Uncitral Model Law Commentary

UNCITRAL MODEL LAW
ON INTERNATIONAL COMMERCIAL
ARBITRATION
This book provides a comprehensive commentary on the UNCITRAL

Model Law on International Arbitration. Combining both theory and
practice, it is written by leading academics and practitioners from
Europe, Asia and the Americas to ensure the book has a balanced
international coverage. The book not only provides an article-by-article
critical analysis, but also incorporates information on the reality of legal
practice in UNCITRAL jurisdictions, ensuring it is more than a recitation
of case law and variations in legal text. This is not a handbook for
practitioners needing a supportive citation, but rather a guide for
practitioners, legislators and academics to the reasons the Model Law
was structured as it was, and the reasons variations have been adopted.
ilias bantekas is Professor of International Law and Arbitration at

Hamad bin Khalifa University (Qatar Foundation) and Senior Fellow at
the Institute of Advanced Legal Studies (IALS) of the University of
London.
pietro ortolani is an Assistant Professor at Radboud University, in
the Netherlands. He specialises in international arbitration and transna-
tional dispute resolution. Before joining Radboud University, he was a
Senior Research Fellow at the Max Planck Institute Luxembourg for
Procedural Law, a Research Associate at the University of Pisa and a
Law Research Associate at Queen Mary, University of London. Pietro
has acted as an expert for the European Parliament and the European
Commission. In 2016 Pietro won the James Crawford Prize.
shahla ali is a Professor of Law and Associate Dean (International) at
the University of Hong Kong.
manuel a. gómez is Professor of Law and Associate Dean of
International and Graduate Studies at Florida International University
College of Law, USA.
michael polkinghorne is a dual-qualified lawyer at White & Case in
Paris, where he heads the office’s International Arbitration Practice
Group. He is also joint-head of the firm’s oil and gas practice, as well as
pro bono leader of the firm’s Paris office.
Published online by Cambridge University Press

UNCITRAL MODEL LAW
ON INTERNATIONAL
COMMERCIAL
ARBITRATION
A Commentary
ILIAS BANTEKAS
Hamad Bin Khalifa University
PIETRO ORTOLANI
Radboud University
SHAHLA ALI
University of Hong Kong
MANUEL A. GÓMEZ
Florida International University
MICHAEL POLKINGHORNE
White & Case

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It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.
www.cambridge.org
Information on this title: www.cambridge.org/9781108498234
DOI: 10.1017/9781108633376
© Ilias Bantekas, Pietro Ortolani, Shahla Ali, Manuel Gómez and Michael Polkinghorne 2020
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2020
Printed in the United Kingdom by TJ International Ltd. Padstow Cornwall
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ISBN 978-1-108-49823-4 Hardback
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accurate or appropriate.

UNCITRAL MODEL LAW
ARBITRATION


London.

UNCITRAL MODEL LAW
ON INTERNATIONAL
COMMERCIAL
ARBITRATION
A Commentary
ILIAS BANTEKAS
PIETRO ORTOLANI
Radboud University
SHAHLA ALI
MANUEL A. GÓMEZ
White & Case


www.cambridge.org
DOI: 10.1017/9781108633376
ISBN 978-1-108-49823-4 Hardback

UNCITRAL MODEL LAW
ARBITRATION


London.

UNCITRAL MODEL LAW
ON INTERNATIONAL
COMMERCIAL
ARBITRATION
A Commentary
ILIAS BANTEKAS
PIETRO ORTOLANI
Radboud University
SHAHLA ALI
MANUEL A. GÓMEZ
White & Case


www.cambridge.org
DOI: 10.1017/9781108633376
ISBN 978-1-108-49823-4 Hardback

CONTENTS
Preface page xxxv

List of Contributors xl
List of Abbreviations xlviii
Table of Treaties and Other International
Instruments lvii
Table of Cases lxxii
Table of Legislation cxvii
Article 1: Scope of Application 1

m i c h a e l p ol ki n g h or n e, tu u l i t i m on e n
a n d n i k a la r k i m o
1. Travaux Préparatoires 2
2. Paragraph 1 5
2.1 International Commercial Arbitration 5
2.2 International 6
2.3 Commercial 7
2.4 Subject to Any Agreement in Force between This
State and Any Other State or States 10
3. Paragraph 2 10
4. Paragraph 3 13
4.1 Paragraph 3(a) 14
4.2 Paragraph 3(b) 15
4.3 Paragraph 3(c) 18
5. Paragraph 4 19
6. Paragraph 5 22
Article 2: Definitions and Rules of Interpretation 25
p ie t r o o r to l a n i

vi c o n t en t s
1. Background and Travaux

Préparatoires 25
2. Article 2(a): ‘Arbitration’ 28
3. Article 2(b): ‘Arbitral Tribunal’ 30
4. Article 2(c): ‘Court’ 31
5. Article 2(d): Party Autonomy and Third-
Party Determination 31
6. Article 2(e): Incorporation by Reference of
Arbitration Rules 33
7. Article 2(f): Applicability of Model Law
Provisions to Counterclaims 35
Article 2A: International Origin and General
Principles 38
i l i a s ba n t e k a s
Préparatoires 38
2. Paragraph 1 39
2.1 ‘Interpretation of This Law’ 39
2.2 Promotion of Uniformity 41
2.3 ‘International Origin’ 45
2.4 ‘Observance of Good Faith’ 46
3. Paragraph 2 47
3.1 ‘General Principles on which This Law
Is Based’ 48
Article 3: Receipt of Written Communications 50

2. Paragraph 1 54
2.1.1 Notification as a Due Process
Guarantee 54
2.1.2 The Requirements of Proper
Notification 56
2.1.3 The Contents of the Notice 59

c o n te n t s vii
2.1.4 Delivered to the Addressee
Personally 60
2.1.5 Mailing Address 61
2.1.6 Place of Business 63
2.1.7 Habitual Residence 64
2.1.8 Reasonable Inquiry 65
2.1.9 Last-Known Place of Business 67
2.1.10 Proof of Delivery in Electronic
Notifications 68
3. Paragraph 2 70
Article 4: Waiver of Right to Object 71
i l i a s b a n t e ka s
2. Scope of the Waiver 73
3. Nature of the Waiver 76
3.1 Good Faith 77
3.2 Abuse of Right and Estoppel 78
3.3 Knowledge 80
4. ‘Without Undue Delay’ 81

5. Time Limits 82
Article 5: Extent of Court Intervention 84
m a n u e l a . g óm e z
Préparatoires 84
2. Matters Governed by This
Law 89
3. Exceptional Court Intervention 92
Article 6: Court or Other Authority for Certain
Functions of Arbitration Assistance and
Supervision 96
shahla ali and odysseas g.
repousis

viii co ntents
2. Involvement of Courts in Arbitral

Proceedings and Inclusion under
Article 6 100
3. Appointment of Arbitrators 103
4. Other Inclusions – Challenges to Procedure,
Failure or Impossibility to Act, Review of
Jurisdiction, Setting Aside Arbitral
Awards 106
5. Other Forms of Court Involvement Not
Mentioned under Article 6 109
6. Contracting Out of Article 6 110
Article 7: Definition and Form of Arbitration
Agreement 112
i l i a s ba n t e k a s a n d pi e t r o
ortolani
Préparatoires 113
2. Commentary on Option One 116
2.1 Paragraph 1 116
2.1.1 Existence of an Arbitration
Agreement 116
2.2 Pre- and Post-Dispute Arbitration
Agreements 121
2.3 Types of Instruments Containing an Arbitration
Agreement 122
2.3.1 Contracts 123
2.3.2 Trusts 124
2.3.3 Corporate Articles of
Establishment 125
2.3.4 Testamentary Wills 126
2.4 Range of Disputes 126
3. Paragraph 2: Agreement in
Writing 129
4. Paragraph 3: Forms of Agreement in
Writing 131
4.1 Oral Agreements 131

c o n te n t s ix
4.2 Incorporation by Conduct or Common
Usage 132
5. Paragraph 4: Electronic
Communications 134
6. Paragraph 5: Conduct-Based
Estoppel 135
7. Paragraph 6: Incorporation by
Reference 135
8. Commentary on Option Two 138
8.1 Similarities between Option One and Option
Two 138
8.2 Differences between Option One and Option
Two 138
Article 8: Arbitration Agreement and Substantive Claim

before Court 141
Préparatoires 141
2. Paragraph 1 143
2.1 The Scope of an ‘Action’ 144
2.2 Referral by Request of a Party 145
2.3 Referrals in respect of Actions Not Seised by the
Forum Court 147
2.4 Null and Void Arbitration
Agreements 148
2.5 Inoperable and Ineffective Arbitration
Agreements 150
2.6 The Absence of a Dispute 153
2.7 Standard of Review Required of the
Courts 154
2.8 ‘Not Later than When Submitting First Statement
on Substance of the Dispute’ 156
3. Paragraph 2 158
3.1 Autonomy of Arbitral Proceedings 158

x contents
Article 9: Arbitration Agreement and Interim Measures

by Court 160
s h a h l a a l i a n d o d y s s ea s
g. repousis
2. Protection under Interim
Measures 163
2.1 ‘Interim’ 166
3. Grant of Interim Measure by

Courts 167
4. Defining ‘Interim Measure of
Protection’ 168
5. Comparison of Article 9 with
Article 17 170
6. Interim Measures Out of
Jurisdiction 173
7. Contracting Out of Article 9 176
Article 10: Number of Arbitrators 178
Préparatoires 178
2. Paragraph 1 180
2.1 Odd and Even Number of Arbitrators 180
3. Paragraph 2 181
3.1 More than Three Arbitrators 183
3.2 Number of Arbitrators in the Event of Multiple
Parties 183
4. Truncated Tribunals 185

Article 11: Appointment of Arbitrators 187
s h a h l a a l i a n d o d y s s ea s g .
r e po us i s
Préparatoires 188

c o n te n t s xi
2. Paragraph 1 189
3. Paragraph 2 192
3.1 Procedures for Appointing
Arbitrators 192
3.2 Limits of Autonomy 194
4. Paragraph 3 195
5. Paragraph 4 198
5.1 Paragraph 4(a) and (b): Court
Intervention 199
5.2 Paragraph 4(c): Specified Authority to Make the
Appointment 200
5.3 Default Procedure in Multi-Party
Arbitrations 201
6. Paragraph 5 202
6.1 Decision of Court or Specified Authority Not
Subject to Appeal 202
6.2 Considerations to Be Taken into Account in
Appointment 203
6.3 Nationality of Arbitrators 204
Article 12: Grounds for Challenge 206

Préparatoires 206
2. Paragraph 1: The Arbitrator’s Duty of
Disclosure 208
2.1 When? – The Moment the Duty of Disclosure
Arises 209
2.2 What? – Scope of the Duty Ratione
Materiae 210
2.3 Who? – Scope of the Duty Ratione
Personae 213
2.3.1 Who Should Disclose? The Case of
Administrative Secretaries and Tribunal-
Appointed Experts … 213
2.3.2 To Whom Should the Circumstances Be
Disclosed? 214

xii c o n te n ts
2.4 No Distinction between Presiding and Party-
Appointed Arbitrators 215
2.5 Notions of Independence and Impartiality –
General Contours 217
2.6 Duration of the Duty 218
2.7 Relevance of Notorious Facts before and after the
Appointment 222
3. Paragraph 2: The Challenge 223

3.1 ‘Only’: Exhaustiveness of the Model
Law 224
3.2 Rejection of the List Approach 225
3.3 Broad Understanding of
‘Circumstances’ 226
3.4 The Applicable Standard 227
3.5 Recurring Scenarios 229
3.5.1 Arbitrator’s Relationship with a
Party 229
3.5.2 Arbitrator’s Relationship with the
Dispute 230
3.5.3 Arbitrator’s Relationship with a Counsel,
Expert or Another Arbitrator 231
3.6 Interaction with Paragraph 1: Consequences of the
Arbitrator’s Failure to Disclose 232
3.7 Qualifications Agreed to by the
Parties 233
3.8 Good Faith of the Challenging Party 234
Article 13: Challenge Procedure 236

m a n ue l a . g óm e z
Préparatoires 236
2. Paragraph 1 241
2.1 The Parties Are Free to Agree on a Procedure for
Challenging an Arbitrator 241
2.2 Subject to the Provisions of Paragraph 3 of This
Article 243
3. Paragraph 2 244
3.1 Unless the Challenged Arbitrator Withdraws … the
Arbitral Tribunal Shall Decide on the
Challenge 247

contents xiii
4. Paragraph 3 250
4.1 If a Challenge … Specified in Article 6 to Decide on
the Challenge 250
4.2 A Decision Subject to No Appeal 252
4.3 While Such a Request Is Pending, the Arbitral
Tribunal … May Continue the Arbitral Proceedings
and Make an Award 253
Article 14: Failure or Impossibility to Act 255

m i c h a e l p o l k i n gh o r n e , k i r s t e n
odynski, mariele coulet-diaz and
zehaan trivedi
Préparatoires 255
1.1 Grounds Giving Rise to the Termination of an
Arbitrator’s Mandate 256
1.2 Manner of Termination of an Arbitrator’s
Mandate 258
1.3 Resolving Disagreements between Parties
Regarding the Termination of an Arbitrator’s
Mandate 259
2. Paragraph 1 260
2.1 Standard 261
2.1.1 Inability to Perform 261
2.1.2 Failure to Act without Undue
Delay 263
2.2 Mechanisms for Terminating the Arbitrator’s
Mandate 268
2.2.1 Arbitrator’s Withdrawal 269
2.2.2 Parties’ Agreement 271
2.2.3 Request to a Court or Other
Authority 271
2.3 Procedure for Termination 272
2.3.1 Non-Formal Proceeding 272
2.3.2 No Specific Time Limit 272
2.3.3 Non-Mandatory Character 273
2.4 Termination of an Arbitrator’s
Mandate 274
3. Paragraph 2 275
Article 15: Appointment of Substitute Arbitrator 277

xiv c o n te n ts

Préparatoires 277
2. Termination of Arbitral
Mandate 279
2.1 Qualification of the Relationship between
Arbitrator and Parties as a ‘Mandate’ 279
2.2 References to Articles 13 and 14 281
2.3 ‘Withdrawal from Office for Any Other
Reason’ 282
2.4 Revocation ‘by Agreement of the
Parties’ 285
2.5 ‘Any Other Case of Termination’ 287
3. Appointment of a Substitute
Arbitrator 287
3.1 ‘According to the Rules That were Applicable to the
Appointment of the Arbitrator Being Replaced’:
Rationale and Consequences of the
Rule 287
3.2 Party Autonomy and the Limit of Equality of
Arms 289
3.3 The Problem of the Truncated
Tribunal 290
Article 16: Competence of Arbitral Tribunal to Rule on Its

Own Jurisdiction 292
m i c h a e l po l k i n g h o r n e , a l v a r o
p e r a l t a , h a z e l le v e n t a n d g w e n
w a c k w it z
Préparatoires 293
1.1 Concerning Subparagraph 1 293
2. Paragraph 1 297
2.1 Competence-Competence 297
2.2 Severability 300
3. Paragraph 2 302
3.1 Form and Timing of Plea as to Tribunal’s Lack of
Jurisdiction 302

c o n te n t s xv
3.2 Effect of Failure to Raise a Plea 303
4. Paragraph 3 306
4.1 Character of a Jurisdictional Decision 307
4.2 Reviewability of a Negative Jurisdictional
Decision 308
4.3 Method of Contesting the Tribunal’s
Jurisdiction 310
4.4 Standard of Judicial Review 311
Article 17: Power of Arbitral Tribunal to Order Interim

Measures 314
Préparatoires 314
1.1 The 1985 Version 314
1.2 The 2006 Revision 318
2. Paragraph 1 320
2.1 The End of the Prohibition against Arbitral Interim
Relief 320
2.2 The Role of Party Impulse 322
2.3 The Role of Party Autonomy 324
3. Paragraph 2 326
3.1 Temporary Nature of the Interim
Measure 326
3.2 Relationship with the Subject Matter of the
Dispute 328
3.3 Form of the Interim Measure 329
3.4 Temporal Scope of Application and the Problem
of Interim Relief before the Constitution of the
Tribunal 331
3.5 Exhaustiveness of the List 331
3.6 Paragraph 2(a): Status Quo Maintenance or
Restoration 334
3.7 Paragraph 2(b): Protection of the Arbitral Process
Itself 335
3.8 Paragraph 2(c): Asset Preservation 337
3.9 Paragraph 2(d): Evidence
Preservation 339
3.10 The Problem of Anticipatory Relief 339

xvi c o n te n ts
3.11 Relationship between Arbitral Interim Relief and
EU Law: Brussels I bis Regulation and European
Account Preservation Order
Regulation 340
Article 17A: Conditions for Granting Interim

Measures 343
shahla ali and tom kabau
2. Paragraph 1 (Chapeau) 346
2.1 Requesting Ex Parte Interim
Measures 346
2.2 Satisfying the Tribunal 348
2.3 Burden and Standard of Proof: The Party
Requesting 350
2.3.1 Paragraph 1(a): Balance of Convenience –
Harm Not Adequately
Reparable 355
2.3.2 Paragraph 1(b): Reasonable Possibility of
Success 361
2.4 Paragraph 2: Interim Measures for Preservation of
Evidence 364
2.5 Relevance of Matters Other than Those Listed in
Paragraph 1(a) and (b) 366
3. Requesting Interim Measures in

Courts 367
Article 17B: Applications for Preliminary Orders and
Conditions for Granting Preliminary
Orders 373
p i e tr o o r t o l a n i
Préparatoires 373
2. Paragraph 1 375
3. Paragraph 2 377
4. Paragraph 3 378
Article 17C: Specific Regime for Preliminary Orders 381

contents xvii

Préparatoires 381
2. Paragraph 1 389
3. Paragraph 2 392
4. Paragraph 3 394
5. Paragraph 4 394
6. Paragraph 5 396
Article 17D: Modification, Suspension, Termination 399
m i c h a e l p o l k i n gh o r n e a n d m o u n i a
l a r ba o ui
2. The Temporary Nature of Provisional
Measures and Preliminary
Orders 402
3. The Initiative to Modify, Suspend or
Terminate Interim Measures or Preliminary
Orders 403
4. Review upon a Party’s Request 404
5. Review upon the Tribunal’s
Initiative 406
6. Form of Interim Measures and Preliminary
Orders 407
7. Tribunal or Court-Ordered Interim Measures
and Preliminary Orders 408
8. Damages Claim 409
9. In Practice 410
Article 17E: Provision of Security 412
Préparatoires 412
2. Paragraph 1 415

xviii c o n t en t s
2.1 ‘May’: Discretion of the Arbitral
Tribunal 415
2.2 ‘Require the Party Requesting an Interim Measure’:
Conditionality between Security and
Measure 416
2.3 ‘Appropriate’: Factors Influencing
Quantification 417
2.4 ‘In Connection with the Measure’: Scope of
Security 417
3. Paragraph 2 419
3.1 ‘Shall’: Need for Security in Connection with
Preliminary Orders 419
3.2 ‘Security’ and ‘Adequate Security’ 420
3.3 ‘Unless the Arbitral Tribunal Considers It
Inappropriate or Unnecessary to Do So’:
Exceptional Cases of Preliminary Orders without
Security 420
Article 17F: Disclosure 422

Préparatoires 422
2. Paragraph 1 428
3. Paragraph 2 432
Article 17G: Costs and Damages 435
1.1 Liability under Previous State Practice 439
2. Liability for Costs 441

3. Fault-Based Liability 443
3.1 Substantive Liability Test 443
4. Security for Costs and Damages 445

5. Practical Implementation 448
6. Enforcement 448
7. Liability for Interim Measures Requested in
Good Faith 450

contents xix
8. Liability of Arbitral Tribunal? 451

Article 17H: Recognition and Enforcement 453
Préparatoires 453
2. Paragraph 1 461
3. Paragraph 2 466
4. Paragraph 3 468
Article 17I: Grounds for Refusing Recognition or
Enforcement 473
1.1 Role of the Arbitral Tribunal 476
1.2 Form of Interim Measures 476
1.3 Parties against Whom It Is Invoked 477
1.4 Burden of Proof 477
2. Chapeau: Refusal at the Request of a

Party 479
2.1 Paragraph 1(a)(i) 479
2.1.1 Invalidity of Arbitral
Agreement 479
2.1.2 Party Not Given Proper Notice 480
2.2 Paragraph 1(a)(ii): Non-Compliance with Security
Provisions 483
2.3 Paragraph 1(a)(iii): Interim Measure Terminated or
Suspended 484
3. Paragraph 1(b): Refusal by a Court

Finding 487
3.1 Paragraph 1(b)(i): Measure Incompatible with a
Court’s Powers 487
3.2 Paragraph 1(b)(ii): Subject Matter of the Dispute
Not Arbitrable or Measures Conflicting with Public
Policy 490
3.2.1 Contrary to the Public Policy of the
State 491
3.3 Broader Grounds for Court to Refuse
Enforcement? 497

xx c o n te n t s
4. Paragraph 2: Review of the Substance of the

Interim Measures 498
Article 17J: Court-Ordered Interim Measures 500
i l i a s ba n t e k a s a n d ik r a m u l l a h
Préparatoires 500
2. Conditions to be Fulfilled in Order to Secure
Interim Measures from the
Court 502
3. Serious Question to Be Tried or Making a
Prima Facie Case 504
4. Irreparable Harm 506
5. Balance of Inconvenience 508
6. Can the Court Go beyond the Three-Prong
Test? 509
7. Requirements to Be Fulfilled for a Court to
Assume Jurisdiction 511
8. Extraterritoriality of Court’s Power to Issue
9. Powers of Court to Grant Interim Measures
before the Commencement of Arbitral
Proceedings 516
10. Interaction between the Power of Court and
Arbitrator on the Point of Issuance of
Article 18: Equal Treatment of Parties 522
2. Limitations to Party Autonomy: Fair Trial
Guarantees 525
3. Equality 529
3.1 Equality of Arms 530

contents xxi
4. Full Opportunity to Present One’s

Case 534
4.1 The General Rule 534
4.2 Oral Hearings 535
Article 19: Determination of Rules of Procedure 539

m a n u e l a . g óm e z a n d i kr a m u l l a h
Préparatoires 539
2. Paragraph 1 547
2.1 Arbitration Procedure: Party
Autonomy 547
2.2 Parties’ Choice of Procedural
Regime 547
2.3 Parties’ Choice of Institutional Rules 548
2.4 Prohibition of Unilaterality in Choosing and
Amending Arbitral Procedure 549
2.5 Arbitral Procedure: Arbitrator’s
Discretion 549
2.6 Arbitrator’s Role during Arbitration
Proceedings 550
2.7 Validity of Arbitration Agreement without
Provisions on Arbitral Procedure 551
2.8 Subordination of Article 19 to Mandatory
Rules 552
2.9 Objectives of Subordination 552
2.10 Regulatory Force of Natural Justice 553
2.11 Role of Arbitrator When Mandatory Rules
Contradict with Procedures Chosen by the
Parties 553
2.12 Opting Out of the Model Law 554
3. Paragraph 2 556
3.1 Arbitrator’s Discretion in Evidentiary
Matters 556
3.2 Principles Governing Relevance, Admissibility,
Materiality and Weight of Evidence 557
3.2.1 Relevance of Evidence 557
3.2.2 Admissibility of Evidence 557
3.2.3 Materiality and Weight of
Evidence 558

xxii contents
3.3 Ambit of the Arbitrator’s Discretion on Evidentiary
Matters 558
3.4 Privileged and Confidential Evidence 560
4. Judicial Scepticism to Touch Arbitrator

Discretion on Matters of
Evidence 561
4.1 Courts’ Attitude When the Arbitration Is Pending:
Three-Factored Test 561
4.2 Courts’ Attitude after Arbitrator’s Decision on
Evidentiary Matters 562
4.2.1 Procedural Fairness Test 562
4.2.2 Disregard and Oversight of Evidence as
Ground to Challenge Arbitrator’s
Decision 563
Article 20: Place of Arbitration 565

Préparatoires 565
2. Paragraph 1 569
2.1 Notion of ‘Seat’ in the Model Law 569
2.2 ‘The Parties Are Free to Agree’: Selection of the Seat
by the Parties 571
2.2.1 Mode of Selection of the Seat by the
Parties 571
2.2.2 Indirect Choice of Seat 574
2.2.3 Limitation of the Parties’
Freedom 576
2.3 ‘Failing Such Agreement’: Selection of the Seat by
the Arbitral Tribunal 577
2.3.1 Mode of Selection of the Seat by the
Tribunal 578
2.3.2 Circumstances of the Case: Relevant
Factors 579
2.3.2.1 Suitability of the Lex Arbitri and
Local Courts 580
2.3.2.2 Existence of Treaties on the
Enforcement of Arbitral
Awards 581
2.3.2.3 Practical
Considerations 581

c o n te n t s xxiii
2.3.3 Reference to the Convenience of the
Parties 583
2.3.4 Tribunal’s Failure to Determine the Seat of
Arbitration 585
3. Paragraph 2 587
3.1 ‘Unless Otherwise Agreed by the Parties’: Role of
Party Autonomy 587
3.2 Activities That the Tribunal Can Carry Out Outside
of the Seat 589
Article 21: Commencement of Arbitral

Proceedings 591
1. Background and Introduction 591
3. Commencement of Arbitration 597
3.1 Time of Commencement 598
3.2 A ‘Request’ as a Means of Commencing
Arbitration 601
3.3 Details of the Dispute 602
3.4 Intention to Refer a Dispute to
Arbitration 602
3.5 Receipt of Request 604
3.6 Limitation Period 606
4. Application for Interim Measures before

Commencement of Arbitration 609
Article 22: Language 611
Préparatoires 611
2. Paragraph 1 613
2.1 ‘Language’ 613
2.2 Scope of ‘Arbitral Proceedings’ 615
2.3 The Basic Rule: Party Autonomy 616
2.4 Failure to Expressly Designate a
Language 618

xxiv contents
2.5 Language Requirements Imposed under
Institutional Rules 621
2.6 Due Process Guarantees 622
3. Paragraph 2 625
Article 23: Statements of Claim and Defence 628
1 Introduction and Background 628
2 Travaux Préparatoires 630
2.1 The Travaux of Paragraph 1 630
2.2 The Travaux of Paragraph 2 633
3. Paragraph 1 634
3.1 Within the Period of Time 634
3.2 Stating the Claim and Defence 635
3.3 Elements of Statements 639
3.4 Agreement of the Parties on Elements 646
3.5 Jurisdictional Questions and the Filing of Statement
of Defence 648
4. Paragraph 2 651
4.1 Making Amendments and
Supplements 651
4.2 Delay 651
4.3 Right to Supplement 653
Article 24: Hearings and Written Proceedings 655

Préparatoires 655
2. Paragraph 1 659
2.1 The Role of Party Autonomy 659
2.1.1 The Parties’ Agreement to Exclude Oral
Hearings 660
2.1.2 Request by One of the Parties to Hold
Hearings 661
2.1.3 Tribunal’s Failure to Comply with the
Request 662
2.1.4 Requests to Hold Hearings on Substantive
and Procedural Issues 664

contents xxv
2.1.5 ‘Appropriateness’ as an Overarching
Criterion 664
2.2 Arbitral Discretion in the Absence of Agreements
or Requests 665
2.3 Choice between Oral Hearings and Documents-
Only Arbitration 666
3. Paragraph 2 667
4. Paragraph 3 671
Article 25: Default of a Party 675
Préparatoires 675
2. Chapeau 686
2.1 ‘Unless Otherwise Agreed by the
Parties’ 686
2.2 Without Showing Sufficient Cause 687
3. Subparagraph (a) 689

4. Subparagraph (b) 691
5. Subparagraph (c) 693
Article 26: Expert Appointed by Arbitral Tribunal 697
m i c h a e l p o l k i n gh o r n e , k a r i m m a r i e y
a n d t o m a s v ai l
Préparatoires 697
2. Paragraph 1(a) 701
2.1 ‘Unless Otherwise Agreed by the
Parties …’ 701
2.2 ‘… The Arbitral Tribunal May Appoint One or
More Experts to Report to It …’ 702
2.3 ‘… On Specific Issues to Be Determined by the
Arbitral Tribunal …’ 709
3. Paragraph 1(b) 713

3.1 ‘… May Require a Party to …’ 713
3.2 ‘… To Give the Expert …’ 714

xxvi contents
3.3 ‘… Any Relevant Information or to Produce, or to
Provide Access to, Any Relevant Documents,
Goods or Other Property for His
Inspection …’ 714
4. Paragraph 2 715
4.1 ‘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 …’ 715
4.2 ‘… 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 …’ 715
Article 27: Court Assistance in Taking Evidence 718

s h a h l a a l i a n d o d y s s ea s g .
r e po us i s
Préparatoires 718
2. Request for Assistance from Court – Approval
of the Tribunal 722
3. Exercise of the Court’s Discretion and Scope
of Assistance 723
3.1 Specificity 724
3.2 Timeliness 724
4. Pre- and At-Trial Evidence 724

5. Witnesses 726
6. Abuses of Process 726
7. Types of Assistance 727
8. Assistance from Non-State
Courts? 727
Article 28: Rules Applicable to Substance of
Dispute 732
Préparatoires 732

c o n te n t s xxvii
2. Paragraph 1 736
2.1 ‘Law’ and ‘Legal System’ 738
2.2 Rules of Law 739
2.3 Lex Mercatoria 741
2.4 Concurrent Laws and Dépeçage 743
3. Paragraph 2 745
3.1 Ordinary Operation of Conflict of Laws
Rules 746
3.2 The Operation of Conflict of Laws Rules in Arbitral
Proceedings 747
4. Paragraph 3 750
4.1 Ex Aequo et Bono 751
4.2 Amiable Composition 754
5. Paragraph 4 755
5.1 The ‘Terms of the Contract’ Supersede Choice of
Law 755
5.2 ‘Applicable Trade Usages’ 756
Article 29: Decision-Making by Panel of

Arbitrators 758
Préparatoires 758
2. More than One Arbitrator 765
3. Any Decision, by a Majority 767
4. Unless Otherwise Agreed by the
Parties 769
5. Questions of Procedure May Be Decided by
the Presiding Arbitrator 770
Article 30: Settlement 772
m i c h a e l p o l k in gh o r n e a n d p oo r v i
satija
1. Introduction 772

xxviii c o n te n ts
2.1 Who Should Request the Consent
Award? 777
2.2 Should the Arbitral Tribunal Be Vested with
Discretion to Refuse the Consent
Award? 778
3. Paragraph 1 780
3.1 During Arbitral Proceedings 780
3.2 Settle the Dispute 781
3.3 Shall Terminate the Proceedings 783
3.4 If Requested by the Parties 785
3.5 Not Objected to by the Arbitral
Tribunal 785
3.6 Form of Arbitral Award 790
4. Paragraph 2 791
4.1 Same Status and Effect as Any Other
Award 792
4.2 Interface between Arbitration and Other Forms of
Alternative Dispute Resolution 801
4.2.1 Arbitration as a Means of Inducing
Settlement 801
4.2.2 Can a Settlement Reached during Mediation
Proceedings Be Transformed into a Consent
Award? 801
4.2.3 Outcome of Conciliation/Mediation
Proceedings to Be Treated at Par as a
Consent Award 803
4.2.4 Gazing into the Crystal Ball: Convention on
the Enforcement of Mediation
Settlements? 803
Article 31: Form and Contents of Award 805

Préparatoires 805
2. Paragraph 1 807
2.1 ‘Award’ 807
2.2 Res Judicata 810
2.3 ‘Award in Writing’ 812
2.4 ‘Signed by the Arbitrator(s)’ 813
2.5 Failure to Sign 814

c o n te n t s xxix
2.6 Dissenting Opinions 817
3. Paragraph 2 819
3.1 Reasoned Awards 820
4. Paragraph 3 822
4.1 Date of the Award 823
4.2 The Place of the Award 824
5. Paragraph 4 827
5.1 Delivery of Copies of Award 827
Article 32: Termination of Proceedings 831

2. Paragraph 1 834
2.1 Final Award 835
2.2 Interim and Partial Awards 836
2.3 Termination Orders 837
2.4 Functus Officio 839
3. Paragraph 2 840
3.1 Chapeau 840
3.2.1 Legitimate Interest 841
3.2.2 Claimant Withdrawal 842
3.2.3 Revocation of Termination Order by the
Tribunal 842
4. Paragraph 2(b) 843

5. Paragraph 2(c) 844
6. Paragraph 3 845
Article 33: Correction and Interpretation of Award;
Additional Award 846
i l i a s b a n t e ka s a n d i k r a m ul l a h
Préparatoires 847
2. Paragraph 1: Chapeau 850
3. Subparagraph (a): Errors Amenable to
Corrections 850

xxx contents
4. Subparagraph (b): Interpretation of

Award 851
5 Notice Requirement 852
6. Paragraph 2 852
7. Paragraph 3: Additional Award 853
7.1 Notion of ‘Claim’ 853
7.2 Claim Presented, but Omitted 853
7.3 Conscious Omission of Claim on the Part of the
Tribunal 854
7.4 Timelines before Corrected, Interpreted and
7.5 Moment of the Request and Deadline
Extension 855
8. Paragraph 4: Extension of Time Limit for the

Issuance of Correction, Interpretation or
9. Paragraph 5: Applicability of Provisions on
Form and Contents of Award 856
Article 34: Application for Setting Aside as Exclusive
Recourse against Arbitral Award 858
1. Introduction 859
Préparatoires 860
3. Paragraph 1: Exclusive Nature of the
Recourse 862
4. ‘An Arbitral Award May Be Set Aside …
Only If’: Obligations, Discretion and Powers
of the Court in Setting Arbitral Awards
Aside, or Refusing to Do So 863
5. Relevance of Party Impulse 865
6. Paragraph (2)(a)(i) 866
6.1 Incapacity of One of the Parties to the
Agreement 866

c o n te n t s xxxi
6.2 Invalidity of the Agreement 870
7. Paragraph (2)(a)(ii) 872

7.1 Failure to Give the Party Proper Notice of the
Appointment of an Arbitrator or of the Arbitral
Proceedings 872
7.2 Inability to Present the Case 876
8. Paragraph (2)(a)(iii): Excess of

Mandate 879
8.1 Cases of Excess of Mandate 880
8.2 Severability 883
9. Paragraph 34(2)(a)(iv) 883

9.1 Composition of the Tribunal Not in Accordance
with the Agreement of the Parties 884
9.2 Arbitral Procedure Not in Accordance with the
Agreement of the Parties 885
9.3 Conflict between the Agreement of the Parties and
Mandatory Provisions of the Model
Law 888
9.4 Composition of the Tribunal or Arbitral
Procedure Not in Accordance with the Model
Law 890
10. Paragraph 2(b)(i): Subject Matter of the

Dispute Not Capable of Settlement by
Arbitration under the Law of the
Seat 891
11. Paragraph 2(b)(ii): Award in Conflict with
Public Policy 892
12. Paragraph 3: Time Limit for Applications for
Setting Aside 895
13. Paragraph 4: Suspension of Setting-Aside
Proceedings and Remission of the Award to
the Tribunal 897
Article 35: Recognition and Enforcement 899
1. Introduction 899

xxxii c o n te n t s

Préparatoires 900
2.1 Desirability of Regulating the Recognition and
Enforcement of Foreign Awards 900
2.2 No Distinction between Domestic and Foreign
Awards 902
2.3 Exclusion of Double
Exequatur 902
3. Paragraph 1 903
3.1 ‘An Arbitral Award’ 903
3.1.1 Determining the Nature of Arbitral
Decisions 903
3.1.2 Awards on Jurisdiction 905
3.1.3 Awards on Agreed
Terms 908
3.1.4 Awards Confirmed by a Judgment at the
Seat 909
3.1.5 Awards Already Recognised by Another
Court 910
3.1.6 Uncertainties Concerning the Operative
Part of the Award 911
3.2 ‘Irrespective of the Country in Which It Was
Made’ 911
3.3 ‘Shall’: Obligation to Recognise and
Enforce 912
3.4 ‘Recognised as Binding’ 913
3.4.1 Subjective Scope 914
3.4.2 Chronological
Scope 915
3.5 Enforcement upon
Application 916
3.6 Jurisdiction to Recognise and
Enforce 917
3.6.1 Identification of the Court Competent to
Hear Applications 918
3.6.2 Scope of the Court’s
Jurisdiction 918
3.6.3 Need for a Jurisdictional
Nexus 919
3.7 Requirements for Recognition and
Enforcement 922
4. Paragraph 2 923

contents xxxiii
Article 36: Grounds for Refusing Recognition or

Enforcement 927
m i c h a e l p o l k i n gh o r n e , j a c k b i g g s ,
anna chuwen dai and tolu
obamuroh
Préparatoires 928
2. Paragraph 1 933
2.1.1 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 … 937
2.2 Paragraph 1(a)(i) 938
2.2.1 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 938
2.2.1.1 Incapacity of a Party to the
Arbitration
Agreement 939
2.2.1.2 Invalidity of the Arbitration
Agreement 943
2.3 Paragraph 1(a)(ii) 947
2.3.1 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 947
2.3.1.1 The Content and Criteria of
‘Proper Notice’ 947
2.3.1.2 Proving That a Party Is ‘Unable to
Present His Case’ 949
2.4 Paragraph 1(a)(iii) 953
2.4.1 Excess of Mandate/Partial Recognition and
Enforcement 953
2.4.2 What Constitutes Submission to
Arbitration? 954
2.4.3 Scope of Parties’ Consent 955

xxxiv c o n te n t s
2.4.4 Partial Recognition and Enforcement of an
Award 956
2.5 Paragraph 1(a)(iv) 957
2.5.1 Composition of the Tribunal and Arbitral
Procedure 957
2.6 Paragraph 1(a)(v) 961
2.6.1 The Effects of Not-Yet-Binding Arbitral
Awards 961
2.6.2 The Effect of the Setting Aside or Suspension
of an Arbitral Award 964
2.7.1 If the Court Finds That … 966
2.8 Paragraph 1(b)(i) 966
2.8.1 The Subject Matter of the Dispute Is Not
Capable of Settlement by Arbitration under
the Law of This State 966
2.8.1.1 Arbitrability 966
2.9 Paragraph 1(b)(ii) 967
2.9.1 The Recognition or Enforcement of the
Award Would Be Contrary to the Public
Policy of This State 967
2.9.1.1 Public Policy 967
2.9.1.2 Substantive Grounds 970
2.9.1.3 Procedural Grounds 972
3. Paragraph 2 975
3.1 Adjournment 975
Index 977

PREFACE
This book tells the story of a remarkable success. From its adoption by the
United Nations Commission on International Trade Law on 21 June
1985 and until the time of writing, the UNCITRAL Model Law on
International Commercial Arbitration has been adopted in eighty
States and a total of 111 jurisdictions. The Model Law is, therefore, a
prime example of transnational legal harmonisation, levelling the playing
field for international commercial arbitration.
The swift rise of the Model Law, both before and after the 2006
amendments, triggered the need for comparative legal analysis assessing
how the instrument is implemented and applied in the different enacting
jurisdictions. Given the unique reality of a single legal template inform-
ing such a significant number of arbitration legislations the world over,
interpretive problems arising in one legal system may be resolved by
seeking guidance in the way other adopting States have tackled similar
challenges. Furthermore, the need for a comparative focus is embedded
in the architecture of the Model Law itself: article 2A requires that the
Model Law be interpreted in the light of ‘its international origin’ and of
‘the need to promote uniformity in its application and the observance of
good faith’. It is thus particularly important to enable such an interna-
tionally oriented interpretation, sharing knowledge and practices across
national borders. This commentary is an attempt to meet this demand for
comparative legal analysis, facilitating the duties of counsel, arbitrators,
arbitral institutions, judges and academics.
The Model Law is a legislative template for arbitration statutes; its
ambition, thus, is to ‘lead the way’ for national legislators, exemplifying
the core characters of a liberal, friendly, efficient, easily understandable
and reliable regulation of arbitration at the domestic level. This is
undoubtedly an important objective, as national law (and more specifi-
cally, the law of the seat) is entrusted with the task of governing all
procedural issues concerning the arbitration, beyond the infrastructure
of basic guarantees set forth by the 1958 New York Convention and other
xxxv
https://doi.org/10.1017/9781108633376.001 Published online by Cambridge University Press

xxxvi pr eface
relevant international instruments. In other words, one could hardly

disagree that the national law applicable to the arbitral procedure
(often referred to with the Latin expression lex arbitri) plays a key role
in modelling arbitration as we know it. Yet, the Model Law does not
intend to stress the importance of the seat of arbitration, but rather the
opposite: one of the key goals of the instrument is, in fact, to uniform the
regulatory regime of international commercial arbitration, irrespective of
the geographical location of the seat. The Model Law pursues this goal in
two complementary ways: first, by encouraging the harmonisation of
arbitration laws across different States, it wishes to minimise the risk that
comparable procedural issues be resolved in diverging fashions. Second,
the Model Law makes certain provisions applicable to any arbitration,
without differentiating between ‘domestic’ and ‘foreign’ proceedings: this
is, for instance, the case of article 36, which sets forth a single regime for
the recognition and enforcement of arbitral awards, irrespective of the
country in which the award was made. Given such a cosmopolitan policy
objective, pursuing the detachment of arbitration from the specificities of
the law of the seat, it is particularly desirable for a commentary focusing
on the Model Law to investigate the ways in which enacting legislators
have protected arbitration from the idiosyncrasies of domestic law, or
have occasionally failed to do so.
Starting from its title, the Model Law focuses on international com-
mercial arbitration. Nevertheless, the transnational legislative effort
undertaken by UNCITRAL may also have a spillover effect on other
types of arbitration. The prime example is, of course, domestic arbitra-
tion: any State adopting the Model Law is allowed to apply the same
legislative template not only to international arbitration as defined in
article 1(3), but to purely domestic proceedings as well. Second, the
Model Law may occasionally be applicable to treaty-based investor–
State arbitrations, inasmuch as the non-ICSID proceedings are seated
in the territory of an enacting State. For these reasons, while this com-
mentary will mainly focus on international commercial arbitration,
references to domestic arbitration and to investor–State proceedings
will also be made where appropriate.
This commentary adopts an article-by-article structure: each chapter
scrutinises a provision of the Model Law, paragraph by paragraph.
Special attention is devoted to the case law of arbitral tribunals and
national courts in the enacting States, so as to ensure the practical
relevance of the analysis. While ample references are also made to
monographs and academic articles, we deemed it especially important

preface xxxvii
to portray the reality of international arbitration conducted under the

Model Law, providing a reliable overview of the ways in which this
instrument is translated into practical reality by arbitrators and judges.
To this end, the vast majority of cases included in the Case Law on
UNCITRAL Texts (CLOUT) database are discussed in the footnotes. In
addition, specific efforts were made to include references to the most
recent cases available at the time of writing. The multinational character
of the authors’ team was pivotal in the adoption of a broad comparative
perspective.
Although the main purpose of this commentary is to follow the
structure of the Model Law closely and offer an in-depth discussion of
all of its provisions, parallels with national arbitration statutes that do not
conform to the Model Law (such as the English Arbitration Act 1996) are
occasionally drawn. It is, however, important to stress that this book is
not a general arbitration treatise, but an investigation of the Model Law
and its specificities. Consistent with this approach, references to other
statutes are not made systematically and mainly have an illustrative
purpose, highlighting the distinctive features and the ‘added value’ of
the Model Law.
As already mentioned, the enactment of the Model Law is to a large
extent a success story. There are, however, some exceptions to the general
trend, i.e. cases of specific provisions that have not been widely enacted
(or, at least, not yet). An obvious example is the case of articles 17B–17C,
enabling the arbitral tribunal to issue ex parte preliminary orders: despite
the introduction of these provisions in the context of the 2006 amend-
ments to the Model Law, not many legal systems have chosen to confer
this type of power upon arbitral tribunals, and arbitrators have in any
case proved averse to any type of ex parte communication with the
disputants. For the purposes of this commentary, however, we have
chosen not to differentiate in any way between the Model Law provisions
which enjoy widespread implementation and the less ‘successful’ ones:
each article is discussed in a separate chapter, irrespective of how fre-
quently the enacting States have decided to adopt it. There are at least
three reasons for such a methodological choice. First, the least frequently
implemented articles of the Model Law offer a relevant counterfactual
perspective on what the law of international arbitration may have looked
like, had the States made different choices. Second, the law of interna-
tional arbitration is best understood as a living and ever-evolving being:
what may come across as merely theoretical now could become practi-
cally relevant in the future. Third, the more ‘obscure’ provisions offer a

xxxviii preface
demonstration of the delicate balance that an instrument of transnational

law, such as the Model Law, must strike between the need for innovation
and the practical reality of arbitration. On the one hand, a Model Law
would make little sense if it merely codified the currently existing prac-
tices without adding or modifying anything. It is exactly for this reason
that the Model Law must be understood as an exceptional achievement,
as it managed to effectively inject a progressive attitude towards arbitra-
tion in a plurality of legal systems around the world, changing the way
they conceive of this mechanism of dispute resolution. On the other
hand, however, transnational law should not run ahead of time and
propose solutions that, while potentially useful in theory, are not com-
patible with real-life legal practice.
Another lesson that the readers may draw from this commentary is
that, in its practical application, the Model Law functions as a legal
laboratory, where different legal traditions and approaches to private
and procedural law interact with each other and, occasionally, start living
a new life. The function of the Model Law as a cultural bridge is a
recurring theme throughout the book and offers yet another confirma-
tion of the exceptional role that this instrument, together with other
sources of transnational commercial law, play in inspiring and trans-
forming a multitude of national legal systems. The most striking demon-
stration of this impact of the Model Law on national legal cultures is
perhaps to be found in the circumstance that, at the time of writing,
several domestic legislators seeking to establish specialised commercial
courts for international disputes look at the Model Law for inspiration on
procedural matters. In other words, if just a few decades ago doubts were
cast as to the degree of autonomy of arbitration from State court litiga-
tion, today the latter looks at the former (and at the Model Law in
particular) for guidance.
An additional recurring theme of the commentary is the influence of
the Model Law not only on national arbitration statutes, but also on
different sets of arbitration rules. From this point of view, the most
interesting relationship is probably the one between the Model Law
and the UNCITRAL Arbitration Rules. Needless to say, when the original
version of the Model Law was being drafted during the first half of the
1980s, the UNCITRAL Arbitration Rules (as adopted on 15 December
1976) already existed. The Rules, in fact, constituted a fundamental
source of inspiration and drafting basis for the 1985 version of the
Model Law. Later on, however, the roles changed and the Model Law
(including its 2006 amendments) served as a crucial touchstone during

preface xxxix
the revision process leading to the 2010 version of the UNCITRAL Rules.
The Model Law, hence, demonstrates an extraordinary ability to enter
into a long-lasting dialogue with other sources of law, shaping the land-
scape of international arbitration in manifold ways.
Each of the chapters in this commentary follows the same structure, to
maximise the ease of consultation. Before the paragraph-by-paragraph
discussion of the relevant provision, every chapter starts with a section
devoted to the article’s background and travaux préparatoires. While
potentially interesting from a historical perspective, these sections are
not only of academic relevance; to the contrary, they will hopefully feed
in the work of practitioners, adding a further layer of detail to provisions
that would otherwise often be regarded as uncontroversial. The travaux,
in a nutshell, demonstrate that many of the core ideas of arbitration (such
as the primacy of consent and party autonomy) that we are used to
accepting as a given in our current day-to-day practice were subjects of
intense debate until a relatively short time ago. By delving into these
histories and the policy considerations animating the drafters, this com-
mentary will hopefully allow for an evolutionary, deeper understanding
of the Model Law.
The highest honour and achievement for this commentary would be to
offer a small contribution to the evolution of the ideas and passions that
sustain the edifice of international arbitration. We hope that the book can
at least partially achieve this goal, assisting the lawyers that will have the
patience to read it.

CONTRIBUTORS
Principal Authors
s h a hl a a l i received her JD and PhD from UC Berkeley in
Jurisprudence and Social Policy and BA from Stanford University.
Her research and practice centre on questions of governance,
development and the resolution of cross-border disputes in the Asia-
Pacific region. She is as an Associate Professor and Associate Dean
(International) and Deputy Director of the LLM in Arbitration and
Dispute Resolution in the Faculty of Law at the University of Hong
Kong. Shahla is the author of Court Mediation Reform: Efficiency,
Confidence and Perceptions of Justice (2018), Governing Disasters:
Engaging Local Populations in Humanitarian Relief (Cambridge
University Press, 2016); Consumer Financial Dispute Resolution in a
Comparative Context (Cambridge University Press, 2013) and
Resolving Disputes in the Asia-Pacific Region (2010), and writes for
law journals in the area of comparative ADR. She has consulted with
USAID, IFC/World Bank and the United Nations on issues pertaining
to access to justice, peace process negotiation training and land use
conflict resolution. She serves as a bilingual arbitrator (English/
Chinese) with CIETAC, HKIAC (ADNDRC) and SIAC, and is a
member of the IBA Drafting Committee for Investor–State
Mediation Rules, the DOJ Mediation Regulatory Framework Sub-
Committee, the UN Mediation Roster and the FDRC Appointments
Committee. Prior to HKU, she worked as an international trade
attorney with Baker & McKenzie.
i l ias ba n t e k a s FCIArb, LLB (Athens), BA/Dip (Cambridge), LLM

and PhD (Liverpool) is Professor of International Law and
International Arbitration at Hamad bin Khalifa University (an
initiative of Northwestern University Pritzker School of Law and
Qatar Foundation) and a Senior Fellow at the Institute of Advanced
xl

lis t of contributo rs xli
Legal Studies (IALS) of the University of London. He acts as consultant

to various intergovernmental organisations, such as UNDP, UN
Special Procedures, the Council of Europe and the EU. He also
advises State entities, law firms and NGOs in most fields of
international law, human rights, international development law and
arbitration, and is regularly appointed as an arbitrator in international
disputes. He has held academic appointments at Brunel, Harvard,
SOAS, Miami, Cleveland-State and elsewhere. He was a member of
the Greek Debt Truth Committee and advises several debt-related
organisations. Key books include: International Human Rights Law
and Practice (3rd edn, Cambridge University Press, 2019);
Introduction to International Arbitration (Cambridge University
Press, 2015); Criminological Approaches to International Criminal
Law (Cambridge University Press, 2014); International Law (4th edn,
2019); The International Criminal Court and Africa (2017);
International Criminal Law (4th edn, 2010); and Commentary on the
UN Disabilities Convention (2018, with M. A. Stein and D.
Anastasiou).
ma nue l a. góm ez is a Professor of Law and the Associate Dean of

College of Law (FIU Law). He specialises in international arbitration,
comparative complex litigation and international law with a focus on
Latin America. He also leads FIU Law’s Global Legal Studies Initiative,
is a founding Academic Board Member of the Miami International
Arbitration Society (MIAS) and serves on the Executive Council of the
International Law Section of the Florida Bar. Manuel is also the Editor-
in-Chief of the World Arbitration and Mediation Review (WAMR)
and the co-coordinator of the Latin America & Caribbean Group of
the Silicon Valley Arbitration and Mediation Center (SVAMC).
Manuel holds masters and doctoral degrees from Stanford University
School of Law, and a law degree (cum laude) and a specialisation in
procedural law from the Universidad Católica Andrés Bello
(Venezuela).
pi e tro o rto lani is an Assistant Professor at Radboud University in

Nijmegen, the Netherlands. He specialises in international arbitration
and transnational dispute resolution. Pietro holds a law degree from
the University of Pisa and a PhD in arbitration from LUISS Guido
Carli University, Rome. Before joining Radboud University, he was a

xlii list of contributors
Senior Research Fellow at the Max Planck Institute for Procedural

Law, a Research Associate at the University of Pisa and a Law Research
Associate at Queen Mary, University of London. Pietro is admitted to
the Bar in Italy. He has experience in both ad hoc and institutional
arbitration. He has acted as an expert for the European Parliament and
the European Commission. In 2016, Pietro won the James Crawford
Prize.
michael polkinghorne is a dual-qualified (civil and common law)

lawyer at White & Case in Paris, where he heads the office’s arbitration,
energy and pro bono groups; he is also joint-head of the firm’s oil and
gas practice. He has served as counsel in arbitrations conducted under
most major institutional rules, and has in recent years been involved in
a number of mediations, notably in the industrial gas sector. He has in
addition served in over two dozen cases as arbitrator (sole, party-
appointed or chair) under, among others, the ICC, LCIA and
UNCITRAL Rules. Michael is the former Australian member of the
International Court of Arbitration of the ICC, and a current member
of the Legal Advisory Task Force of the European Energy Charter
Secretariat. Having written extensively on energy dispute resolution
and foreign investment, he also provides courses on long-term energy
contracts and dispute resolution. He is a graduate of Adelaide (LLB
Hons: Stow medalist) and Cambridge (LLM: Commonwealth Scholar)
universities.
Co-Authors
jack biggs is currently undertaking post-graduate study at Queen
Mary University, London. His studies focus on investment law and
energy and resources law. Jack was previously an associate in the
White & Case International Arbitration Practice Group in Paris. His
practice included investment arbitration and international
commercial arbitration, with a particular focus on energy- and
construction-related disputes. He is admitted as a solicitor in New
South Wales, Australia.
a n n a c h u w e n d a i is an associate in the White & Case LLP

International Arbitration Practice Group in Paris. Her practice
includes international commercial and investment arbitration. She
also works on pro bono projects concerning public international law
and policy. Prior to joining White & Case LLP, Anna acquired

l i s t o f c o n tr i but o r s xliii
experience in international law and dispute resolution at the Office of

Legal Affairs of the United Nations New York Headquarters, the
UNCITRAL secretariat in Vienna and a number of international law
firms in China and France. She has been involved in the United
Nations Volunteers programme and assisted with a local governance
support project in Central Asia. In addition, she worked on legislative
issues at the United States Senate and served as a foreign law clerk at
the Supreme Court of Israel. While reading law, Anna was an editor of
the Harvard International Law Journal.
ma riele coule t-diaz is an associate in the White & Case

International Arbitration Practice Group in Paris and will be going
to the Firm’s Mexico office on secondment. Mariele has experience in
representing corporations, States and State entities in both commercial
and investment treaty arbitrations. Her practice encompasses disputes
relating to mining, energy, infrastructure and M&A. Mariele also has
experience in arbitrations relating to Latin America. Prior to joining
White & Case, Mariele worked as an associate in the corporate and
arbitration departments of major international law firms in Paris,
where she notably gained experience in matters involving sovereign
entities and Latin America. Mariele is French and Guatemalan, and is
admitted to practise in Paris and New York. She speaks fluently
French, Spanish and English.
tom kabau is a Senior Lecturer at the School of Law, Jomo Kenyatta

University of Agriculture and Technology, and an Advocate of the
High Court of Kenya. He has previously served as a Senior Lecturer
and Chair of Department at the Africa Nazarene University Law
School, and has provided research and consultancy services to
various organisations. He also serves as an African Area Advisor for
the Oxford Bibliographies in International Law. Tom holds a Doctor of
Philosophy (PhD) degree in Public International Law from the
University of Hong Kong, and Master of Laws (LLM) and Bachelor
of Laws (LLB) degrees from the University of Nairobi. He has also been
a Research Fellow at Utrecht University, and was a 2015 Transnational
Law Summer Institute Fellow at King’s College London. He has
various publications in the form of book chapters and articles in
peer-reviewed journals. His research interests are in Public
International Law, Law and Development, International Arbitration
and Intellectual Property Law.

xliv list of contributors
Mounia Larbaoui is an associate in the White & Case International

Arbitration Practice Group in Paris. Her practice focuses primarily
on public international law and international arbitration, including
investor–State, commercial and sports arbitration. She has advised
corporate clients and governments in international arbitrations
before the International Center for Settlement of Investment
Disputes, the International Chamber of Commerce and other
arbitral institutions, and has acted as Tribunal Secretary in
commercial and sports arbitrations. She has acted as Co-Chair of the
Lagos Court of Arbitration – Young Arbitrators Network (LCA-YAN)
since 2018.
nika larkimo is an associate in the White & Case International

Arbitration Practice Group and currently based in the Paris office.
She has acted both as counsel and as tribunal secretary in domestic and
international arbitration proceedings. Nika also has experience in
corporate and financial transactions, including mergers &
acquisitions and capital markets transactions, having worked for the
firm’s transactional department for two years. Nika has represented a
variety of clients from a variety of jurisdictions and industry sectors.
She also regularly publishes on issues related to international dispute
resolution.
h a z e l le v e n t is an associate in the White & Case International

Arbitration Practice Group in Paris. Previously, Hazel worked in the
firm’s London office for several years where she represented clients in
international arbitration, commercial litigation and regulatory matters
in a range of industry sectors, including financial services, oil and gas,
infrastructure, pharmaceuticals and social media. Prior to joining the
Paris team, Hazel spent eight months on a client secondment in an
Independent Oil & Gas Company where she gained in-depth
experience on upstream operations in the North African region.
Hazel frequently advises non-governmental organisations on a
pro bono basis and leads projects in relation to topics such as legal
aid, homelessness, torture, whistleblowing and freedom of speech
legislation and post-conflict transition. She is a native Turkish
speaker and is fluent in English and French.
kar im mariey is an associate in the White & Case London

Construction and Engineering Group. He is a fluent Arabic speaker

lis t of contributo rs xlv
and has been active in the Middle East representing sovereign

governments, developers and contractors in large construction and
engineering disputes in the MENA region, including Oman, Kuwait
and Iraq. Karim has experience in litigation, arbitration (including
under the auspices of the LCIA, ICC and UNCITRAL Rules) and
mediation. He is also a member of the Society of Construction Law
and a member of the Society of Construction Law Astra’s organising
Committee.
t o l u o b a m u r o h is an associate in the White & Case International

Arbitration Practice Group in Paris. His practice includes
international commercial and investment arbitration. Prior to
joining White & Case, Tolu was the Associate General Counsel of
the Lagos Court of Arbitration, where he was responsible for case
management and dispute resolution of the court. Tolu currently
serves as Co-Chair of Young ICCA (International Council for
Commercial Arbitration).
kirsten odynski is a partner in the White & Case International

Arbitration Practice Group in Paris. She is a member of the Paris
and New York State bars and has experience in commercial and
investment treaty arbitration, having acted as an advisor in ad hoc
and institutional arbitrations. Kirsten transferred to the Paris office in
2012 after having spent her first three years with the firm in the New
York office. She is also active in White & Case’s pro bono work in the
area of public international law and legal education service
programmes.
alv aro per alta is an associate in the White & Case International
Arbitration Practice Group in Washington, DC. His practice includes
international commercial and investment arbitration cases and
commercial litigation. Alvaro is also active in pro bono activities
involving representation of asylum applicants in US immigration
proceedings. Prior to White & Case, Alvaro worked at the
International Centre for Settlement of Investment Disputes of the
World Bank and at the Chambers of the Honorable Judge Reyna at
the US Court of Appeals for the Federal Circuit. A native of the United
States and Nicaragua, Alvaro is bilingual in English and Spanish. He is
admitted to practise in New York and Washington, DC.

xlvi list of contributors
o dys s e as g. repousis received his Master of Laws Degree from

Harvard Law School and his PhD from the University of Hong
Kong. He has received several prizes and awards, including the
Harvard University Scholarship and the Li Ka Shing Prize (also
known as the Best PhD Thesis Award). He is an associate in Quinn
Emanuel’s London office and a member of the international
arbitration and transnational litigation groups. His practice focuses
on international commercial arbitration, investor–State disputes and
business litigation. Odysseas also has experience in international and
EU trade law, trade defence investigations and white-collar crime.
Prior to joining private practice, Odysseas worked at the
International Chamber of Commerce and the European Commission
and held research positions with the British Institute of International
and Comparative Law, the Hong Kong International Arbitration
Centre and the United Nations International Law Commission.
Odysseas has spoken and written extensively on international
arbitration and litigation topics, and has delivered lectures on
international law and arbitration at universities in the United States
and Hong Kong.
poorvi satija is an associate in the White & Case International

Arbitration Practice Group in Paris. Her practice includes
international commercial and investment arbitration cases. Poorvi is
a trained mediator and negotiator and has been actively involved in the
Willem C. Vis International Commercial Arbitration Moot
competition as an arbitrator and coach for a number of years. Prior
to joining White & Case, Poorvi was an associate with one of India’s
leading law firms, during which time she was involved in high-profile
transactions and disputes.
t u u l i ti m o n e n is a senior associate in the White & Case International

Arbitration Practice Group. Tuuli is currently based in the firm’s
Helsinki office after spending years at White & Case’s Paris and New
York offices. Tuuli has experience in international arbitrations under a
number of arbitration rules, as well as in ad hoc arbitrations. She has
represented clients in both commercial and investment arbitrations.
Tuuli has been recognised by the Global Arbitration Review among the
‘Future Leaders’ of arbitration in Finland.

l i s t o f c o n tr i but o r s xlvii
ze ha an t rivedi is an associate in the White & Case International

Arbitration Practice Group in Paris. He has experience in both
commercial and investor–State disputes under several leading
institutional rules, as well as ad hoc proceedings. He is admitted to
practise law in India, where he previously worked with a leading
Indian law firm.
ikram ullah is Assistant Professor of International Arbitration at the

International Islamic University Islamabad, with an LLM and a PhD in
International Arbitration. He has acted as arbitrator and counsel in
several domestic and international arbitrations. He represents clients
in courts on civil, commercial and arbitration matters. He has taught
international arbitration at various universities in Pakistan and
London. He has published with Arbitration International, Asia
International Arbitration Journal, Contemporary Asia Arbitration
Journal, International Arbitration Law Review and World Mediation
and Arbitration Review.
to m as vai l is the founder of Vail Dispute Resolution, an independent

disputes practice based in London. A native speaker of Russian and
English, Tomas represents clients in international commercial
arbitrations and investment treaty disputes, including under the
UNCITRAL, ICSID, LCIA and ICC rules. Tomas has particular
experience in the petroleum and mining industries, advising on
corporate/nationality planning for investment treaty protection,
production sharing agreements, tax stability provisions and cost
recovery mechanisms. Tomas sits on the Advisory Board of the
Institute for Transnational Arbitration and serves as a legal specialist to
the American Bar Association’s Rule of Law Initiative, advising States on
aspects of investment treaty disputes. He regularly publishes and presents
on arbitration-related issues. Tomas is a member of the bar in New York
and is a Solicitor of England and Wales.
gwen wackwitz is an associate in the White & Case Commercial

Litigation Group in London. She has experience in international
arbitration and commercial litigation across a variety of sectors and
jurisdictions. Gwen is qualified to practise in England and Wales and
has worked in both the London and Paris offices. Gwen is fluent in
English, Dutch and French.

ABBREVIATIONS
AA Arbitration Act
AAA American Arbitration Association
AALCC Asian-African Legal Consultative Committee
ABCA Alberta Court of Appeal
ABQB Alberta Queen’s Bench (Reports)
AC Appeals Cases (Reports)
ACHR American Convention on Human Rights
AIHC All India High Court Cases
AIR All India Reporter
ALI American Law Institute
All ER All England Reports
ALR Australian Law Reports
Alta LR Alberta Law Review
Am. J. Comp. L. American Journal of Comparative Law
Am. J. Intl L. American Journal of International Law
Am. Rev. Intl Arb. American Review of International Arbitration
Am. U. Intl L. Rev. American University International Law Review
App. Application
Arb. Intl Arbitration International
Arb. J. Arbitration Journal
Arb. LR Arbitration Law Review
ARBLR Arbitration Law Reporter (India)
ASA Bull. Swiss Arbitration Association Bulletin
Austrian YB Intl Arb. Austrian Yearbook of International Arbitration
AWLD Alberta Weekly Law Digest
Bankr. Bankruptcy
BCCA British Colombia Court of Appeal (Reports)
BCJ British Columbia Judgments
BCLR British Columbia Law Reports
BCSC British Columbia Supreme Court
BDA Beth Din of America
Bda LR Bermuda Law Reports
BGB Bürgerliches Gesetzbuch (German Civil Code)
xlviii

li st of abbreviations xlix
BGBl Bundesgesetzblatt (Federal Law Gazette)
BGE Entscheidungen des Schweizerischen Bundesgeri
chts (Swiss Supreme Court decisions)
BGH Bundesgerichtshof (German Federal Court of Justice)
BLR Building Law Reports
BomCR Bombay Cases Reporter
BR Banc de la Reine (Rapports judiciaires officiel de Quebec)
Brooklyn J. Intl L. Brooklyn Journal of International Law
Bull. Civ. Bulletin des arrest de la Cour de Cassation (France)
Bull. Laurent Bulletin Laurent
BVIAC British Virgin Islands International Arbitration Centre
BYIL British Yearbook of International Law
CA Cour d’Appel
CAA Commercial Arbitration Acts
CADER Centre for Arbitration and Dispute Resolution
Cal. California
Cal. App. California Appeals Reports
Cal. L. Rev. California Law Review
Cal. Rptr California Reporter
CAM-CCBC Centro de Arbitragem e Mediação da Câmara de
Comércio Brasil–Canadá (Center for Arbitration and
Mediation of the Chamber of Commerce Brazil–Canada)
CanLII Canadian Legal Information Institute (Reporter)
CAS Centre of Arbitration for Sport
Cass. Civ. Cassation Civile
CC Civil Code
CCP Code of Civil Procedure
CEO Chief Executive Officer
CEPANI Belgian Centre for Arbitration and Mediation
CIArb Chartered Institute of Arbitrators
CIETAC China International Economic and Trade Arbitration
Commission
Cir. Circuit
CIS Commonwealth of Independent States
CISG Convention on the International Sale of Goods
CJEU Court of Justice of the European Union
CLC Commercial Law Cases (Reporter)
CLJ Commonwealth Law Journal
CLOUT Case Law on UNCITRAL Texts
CLR Commonwealth Law Reports and Cyprus Law Reports
CMLR Common Market Law Review
Comm. Commercial

l l ist of abbreviations
Contemp. Asia Arb. J. Contemporary Asia Arbitration Journal
CPR Civil Procedure Rules and Directions
CRCICA Cairo Regional Center for International Commercial
Arbitration
Croatian Arb. YB Croatian Arbitration Yearbook
DAB Dispute Adjudication Boards
D. Conn. District of Connecticut
DDC District Court of Columbia
Del. Delaware
DIFC Dubai International Financial Centre
DIS German Arbitration Institute
Disp. Resol. J. Dispute Resolution Journal
DLT Delhi Law Times
D. Or. District of Oregon
DRJ Delhi Reported Judgments
EAPO European Account Preservation Order
ECC UN Convention on the Use of Electronic
Communications in International Contracts
ECHR European Convention on Human Rights
ECLI European Case Law Identifier
ECPA Electronic Communications Privacy Act
ECR European Court Reports
ECtHR European Court of Human Rights
ED Cal. Eastern District California (USA)
ED Penn. Eastern District Pennsylvania (USA)
EDI electronic data interchange
ED La. Eastern District of Lousiana
EFAA Enforcement of Foreign Arbitral Awards Act
EHRR European Human Rights Reports
eKLR Electronic Kenya Law Reports
EPC engineering, procurement and construction
ER Editorial Records
EU European Union
EWCA Civ. England and Wales Court of Appeals Civil Division
EWHC England and Wales High Court
f. Federal Reporter (USA)
F.2d Federal Reporter 2nd Circuit
F.3d Federal Reporter 3rd Circuit
FAA Federal Arbitration Act
FC Federal Court
FCA Federal Court of Australia
FCAFC Federal Court of Australia Full Court

list of abbreviations li
FCDR Fulton County Daily Report
FCR Federal Court Reports (Australia)
Fed. App’x Federal Appendix (Reporter)
FIDIC International Federation of Consulting Engineers
FLR Family Law Reports and Federal Law Reports (Australia)
Fn. footnote
Fordham Intl LJ Fordham International Law Journal
FRD Federal Rules Decisions (USA)
F. Supp. Federal Supplement (Reporter)
Ga St. UL Rev. Georgia State University Law Review
GC Grand Chamber (ECtHR)
Georgetown J. Intl L. Georgetown Journal of International Law
Groningen J. Intl L. Groningen Journal of International Law
HCA High Court of Australia
HCCT High Court of Construction and Arbitration
Proceedings (Hong Kong)
HKAO Hong Kong Arbitration Ordinance
HKC Hong Kong Cases (Reporter)
HKCA Hong Kong Court of Appeal
HKCFI Hong Kong Court of First Instance (Reporter)
HKDC Hong Kong District Court (Reporter)
HKEC Hong Kong Electronic Cases Index
HKIAC Hong Kong International Arbitration Centre
HKLD Hong Kong Law Digest
HKLR Hong Kong Law Reports
HKLRD Hong Kong Law Reports and Digest
HKLT Hong Kong Lands Tribunal (Law Reports)
IAA International Arbitration Acts
IAMA Institute of Arbitrators and Mediators of Australia
IBA International Bar Association
IBP Integrated Bar of the Philippines
ICA International Commercial Arbitration
ICAC International Commercial Arbitration Court
ICC International Chamber of Commerce
ICC Bull. ICC International Court of Arbitration Bulletin
ICC Ct Bull. International Chamber of Commerce Court Bulletin
ICCA International Council for Commercial Arbitration
ICDR International Centre for Dispute Resolution
ICJ International Court of Justice
ICJ Rep. International Court of Justice Reports
ICLQ International and Comparative Law Quarterly

lii list of abbreviations
ICSID International Centre for the Settlement of Investment
Disputes
ICSID Rev. ICSID Review – Foreign Investment Law Journal
IEHC High Court of Ireland Decisions
ILA International Law Association
ILM International Legal Materials
ILPr. International Litigation Procedure (Reporter)
ILR International Law Reports
Ind. LHC India Lord High Chancellor (Reports)
Intl ALR International Arbitration Law Review
Intl Com. Arb. Brief International Commercial Arbitration Brief
Intl Law. International Lawyer
Intl Litigation International Litigation
IR Irish Reports
Iran–US CTR Iran–United States Claims Tribunal
JCAA Japan Commercial Arbitration Association
JDI Journal du Droit International Privé
J. Disp. Resol. Journal of Dispute Resolution
JIDS Journal of International Dispute Settlement
JL & Commerce Journal of Law and Commerce
J. LCIA Journal of the London Court of International Arbitration
JOIA Journal of International Arbitration
LCA Law on Commercial Arbitration
LCIA London Court of International Arbitration
Leiden J. Intl L. Leiden Journal of International Law
LICA Law of International Commercial Arbitration
LJ Lord Justice
LJ Law Journal
Lloyd’s Rep. Lloyd’s Law Reports
Mass. App. Massachusetts Appeal
MinSiTaZi 民四他字第 (Guide on Foreign-related Commercial
and Maritime judgments)
MLJ Madras Law Journal
MPEPIL Max Planck Encyclopedia of Public International Law
NAFTA North American Free Trade Agreement
NBQB New Brunswick Queen’s Bench
NCCP New Civil Code of Procedure
NCPC Nouveau Code de Procédure Civile (New Code of Civil
Procedure)
ND Cal. Northern District of California
ND Ohio Northern District of Ohio
Nev. Nevada

list of abbreviations liii
Nev. Adv. Op. Nevada Advanced Opinion
Nfld Newfoundland
NGO non-governmental organisation
NJ Supreme Court of New Jersey
NJA Nytt juridiskt arkiv, avdelning I (Supreme Court reports,
Sweden)
NJW Neue Juristische Wochenschrift
Notre Dame L. Rev. Notre Dame Law Review
NSJ Nova Scotia Judgments
NSWIR New South Wales Industrial Relations Commission of
New South Wales Decisions
NSWSC New South Wales Supreme Court (Reports)
NWLR Nigerian Weekly Law Reports
NY 2d New York Reports
NYIL Netherlands Yearbook of International Law
NYU L. Rev. New York University Law Review
NYS New York Supplement
NZCA New Zealand Court of Appeal
NZFLR New Zealand Family Law Reports
NZHC New Zealand High Court
NZLR New Zealand Law Reports
OAC Court of Appeal for Ontario
Ob. Oberster Gerichtshof (Austrian Supreme Court)
[also OGH]
OGEL Oil, Gas and Energy Law (Journal)
OGH Oberster Gerichtshof (Austrian Supreme Court)
[also Ob.]
OIC Organisation of the Islamic Conference
OJ Official Journal
OLG Oberlandesgericht (German higher regional court)
OLGZ Oberlandesgericht München
ONCA Ontario Court of Appeal
ONSC Ontario Supreme Court
OR Ontario Reports
Oxford U. Comp. Oxford University Comparative Law Forum
L. Forum
P. Probate Division (USA)
Pac. Pacific Reporter
Pace L. Rev. Pace Law Review
PAL Portuguese Arbitration Law
Pas. Lux. Pasicrisie Luxembourgeoise
PCA Permanent Court of Arbitration

liv list of abbreviations
PECL Principles of European Contract Law
Penn. State L. Rev. Pennsylvania State Law Review
PIL/PILA Private International Law Act (Swiss)
PJ Permanent Judge
PRC Peoples’ Republic of China
PRNZ Procedure Reports of New Zealand
PwC PricewaterhouseCoopers
QB Queen’s Bench (Reports)
QCA Queensland Court of Appeal
QCCA Court of Appeal of Québec (Reports)
QCCQ Court of Quebec (Reports)
QCCS Superior Court of Québec (Reports)
QDC Queensland District Court
QJ Quebec Judgments
QMUL Queen Mary University of London
RAJ Rajasthan (India)
Rev. Arb. Revue de l’Arbitrage
Revista de Revista de Arbitraje Pontificia Universidad Católica del
Arbitraje PUCP Perú
RH Rättsfall från hovrätterna (Case Reports, Swedish Courts
of appeal)
RJQ Rapports Juridiques du Quebec
s. section
SAP MU Audiencia Provincial of Murcia
SAR Special Administrative Region
Sask. R. Saskachawan Reports
SC Supreme Court
SCAI Swiss Chambers’ Arbitration Institution (Rules)
SCC Supreme Court Canada (Reports)
SCC Supreme Court Cases (India) (Reporter)
SCC Swedish Chamber of Commerce
SCCA Supreme Court CanadaSch.
SchiedsVZ Zeitschrift für Schiedsverfahren (German Arbitration
Journal)
SCJ Supreme Court Judgments (Mauritius)
SCR Supreme Court Reports (Canada)
S. Ct Supreme Court
SD Cal. Southern District of California
SD Fla Southern District of Florida
SD Ga Southern District of Georgia
SD Ind. Southern District of Indiana
SDNY Southern District of New York

list of abbreviations lv
SE Southeastern Reporter (USA)
SGCA Singapore Court of Appeal
SGHC Singapore Court of Appeal (Reporter)
SIAC Singapore International Arbitration Centre
SK Saskatchewan
SKCA Saskatchewan Court of Appeal
SKQB Saskatchewan Queen’s Bench
SLR Singapore Law Reports
ss sections
Stan. JIL Stanford Journal of International Law
Stan. L. Rev. Stanford Law Review
STC Sentencia del Tribunal Constitucional
STJ Superior Tribunal de Justiça
subs. subsection
SW South Western Reporter (USA)
TCC Technology and Construction Court
TDM Transnational Dispute Management
Touro Intl L. Rev. Touro International Law Review
TSJM Madrid High Court of Justice
UAE United Arab Emirates
UCC Uniform Commercial Code
UCLA L. Rev. University of California Law Review
UGHC Uganda High Court (Reports)
UGSC Uganda Supreme Court (Reports)
UK United Kingdom
UKCA UK Court of Appeal
UKHL UK House of Lords (Reports)
UKPC UK Privy Council
UN United Nations
UNCITRAL YB UNCITRAL Yearbook
UNCLOS UN Convention on the Law of the Sea
UNCTAD UN Conference on Trade and Development
UNGA United Nations General Assembly
UN GAOR UN General Assembly Official Records
UNIDROIT International Institute for the Unification of Private Law
Unif. L. Rev. Uniform Law Review
unrep. unreported
UNSW LJ University of New South Wales Law Journal
UNTS UN Treaty Series
U. Penn. J. Intl L. University of Pennsylvania Journal of International Law
US US Supreme Court Reports
USC United States Code

lvi list of abbreviations
USSR Union of Soviet Socialist Republics
Va L. Rev. Virginia Law Review
VCLT Vienna Convention on the Law of Treaties
VIAC Vienna International Arbitration Centre
Vindobona J. Intl Com. Vindobona Journal of International Commercial Law and
L. & Arb. Arbitration
VR Victorian Reports (Australia)
VSC Victoria Supreme Court (Reports, Australia)
VSCA Victoria Supreme Court of Appeal
WASC Western Australia Supreme Court
WD La Western District of Louisiana
WIPO World Intellectual Property Organization
WL Westlaw
WLR Weekly Law Reports
World Arb. World Arbitration and Mediation Review
& Med. Rev.
YB Yearbook
YB Com. Arb. Yearbook of Commercial Arbitration
YB Intl Arb. Yearbook of International Arbitration
ZACC Constitutional Court of South Africa (Reports)
ZAKZZDHC Kwazulu-Natal High Court, Durban, South Africa
ZASCA Supreme Court of Appeal, South Africa
ZIP Zeitschrift für Wirtschaftsrecht
ZPO Zivilprozessordnung (German Code of Civil Procedure)
ZR Case numbers of the BGH, indicating the deciding senate

TABLE OF TREATIES AND OTHER INTERNATIONAL
INSTRUMENTS
Treaties (in chronological order)
1923 Geneva Protocol on Arbitration Clauses, 939

1927 Geneva Convention on the Execution of Foreign Arbitral
Awards, 925, 939, 941, 948, 961
1945 International Court of Justice (ICJ) Statute
Art. 38(1)(c), 45
1945 United Nations Charter, 46
1948 Universal Declaration of Human Rights, 529
1950 European Convention on Human Rights (ECHR), 55, 523, 525,
528, 532, 538, 624, 667
Art. 1, 153
Art. 6, 55, 118, 326, 526, 622, 667
Art. 6(1), 525, 526, 529–530, 714
Art. 8, 527
Art. 10(1), 819
1958 New York Convention on the Recognition and Enforcement of
Foreign Arbitral
Awards
Art. I, 801
Art. I(1), 6, 571
Art. I(2), 808, 837
Art. I(3), 567, 581, 900, 911
Art. II, 113–114, 139, 547
Art. II(1), 802
Art. II(2), 39, 782
Art. II(3), 89, 139, 335
Art. III, 900
Art. IV, 899–900, 917
Art. IV(1), 616, 925
Art. IV(1)(a), 813, 827
Art. IV(1)(b), 115
lvii

lviii t a b l e of t r e a t i e s
(cont.)
Art. IV(2), 616, 925

Art. V, 474–475, 481, 797, 859–860, 864, 865, 875, 881, 889, 920,
928–929, 965
Art. V(1), 75, 478
Art. V(1)(a), 113, 139, 571, 748, 867, 868, 938–939,
943
Art. V(1)(b), 589, 876, 947, 949, 951
Art. V(1)(c), 881, 882, 953, 957
Art. V(1)(d), 184, 291, 571, 889, 931, 959
Art. V(1)(e), 571, 864, 889, 962
Art. V(2), 794, 866
Art. V(2)(a), 126, 891
Art. V(2)(b), 291, 589, 668, 957
Art. V(i)(b), 668
Art. VI, 928–929, 933
Art. VI(2), 626
Art. VII, 114, 965
Art. VII(1), 140, 901
Art. XVI(1), 881
1961 European Convention on International Commercial
Arbitration, 28, 89, 188, 302
Art. II, 190
Art. III, 190
Art. IV(1), 89
Art. IV(2), 161
Art. V(1), 295
Art. V(3), 298
Art. VI(1), 141
Art. VI(4), 161–162
Art. IX, 962
1965 Convention on the Settlement of Investment Disputes between
States and Nationals of Other States, 26
Art. 41(1), 298
Art. 56(3), 284, 289
1966 European Convention providing a Uniform Law on Arbitration,
188, 879
1966 International Covenant on Civil and Political Rights, 529
1968 Brussels Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters, 341, 383, 458

t a b l e of tr ea ti e s lix
(cont.)
1969 American Convention on Human Rights (ACHR), 529
1969 Vienna Convention on the Law of Treaties (VCLT), 40, 47,
77
Art. 19, 42
Art. 26, 47
Art. 31, 40
Art. 31(1), 47, 77, 756
Art. 31(3)(b), 47
Art. 31(3)(c), 47
Arts 31–33, 40
Art. 32, 40
1970 Convention on the Taking of Evidence Abroad in Civil or
Commercial Matters, 721
1974 Convention on the Limitation Period in the International Sale
of Goods
Art. 14(2), 51
1975 Inter-American Convention on International Commercial
Arbitration, 89
Art. 3, 89
1978 International Court of Justice (ICJ) Rules
Art. 75(1), 411
Art. 75(2), 411
Art. 76(1), 405
Art. 76(2), 405
1980 Convention on Contracts for the International Sale of Goods
(CISG), 19–20, 38, 42, 43, 45, 49, 63–64, 733, 743
Art. 1, 14
Art. 7, 38, 41
Art. 7(1), 42, 43
Art. 7(2), 42
1980 Rome Convention on the Law Applicable to Contractual
Obligations 1980, 739, 746
1981 African Charter on Human and Peoples’ Rights (ACHPR),
529
1982 United Nations Convention on the Law of the Sea, 46, 183, 752
1986 Hague Convention on the Law Applicable to International Sale
of Goods, 742
1988 Lugano Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters, 458

lx t abl e o f tr eaties
(cont.)
1992 CIS Agreement on Settling Disputes Relating to Business
Activities
Art. 11(e), 750
1994 Energy Charter Treaty, 887
1994 WTO Understanding on Rules and Procedures Governing the
Settlement of Disputes
Arts 3(10) and 4(3), 46, 249, 250
1995 Agreement on Trade-Related Aspects of Intellectual Property
Rights
Arts 24(4) and (5), 46
2000 Charter of Fundamental Rights of the European Union
Art. 47, 118
2005 Convention on the Use of Electronic Communications in
International Contracts, 69,
130, 134, 813
Art. 10(4), 69
2006 United Nations Convention on the Rights of Persons with
Disabilities (UNCRPD),
262, 941
2019 Singapore Convention on International Settlement Agreements
Resulting from Mediation, 804
Arbitration Rules
American Arbitration Association (AAA), Commercial Arbitration Rules, 320, 560,
594, 641, 694, 767
British Columbia International Commercial Arbitration Centre Rules, 844
CIArb Arbitration Rules, 453
CIETAC Rules, 621, 960
Art. 30, 622
DIS Rules, 180, 210
HKIAC Arbitration Rules, 192, 204, 249, 453, 560, 772
Art. 4(2), 600
Art. 11(7), 245
IAMA Arbitration Rules, 548, 551
ICC (International Chamber of Commerce) Arbitration Rules, 83, 111, 193, 273, 554,
560, 694, 767, 780, 787, 789, 806
Art. 3(1), 58

t a b l e of tr ea ti e s lxi
Art. 3(2), 57, 58, 61, 70
Art. 3(3), 70
Art. 4(1), 595
Art. 4(3), 641
Art. 4(3)(h), 573
Art. 5(1)(f), 573
Art. 6, 292, 694
Art. 6(3)–(6), 111
Art. 6(5), 297
Art. 6(6), 111
Art. 8(5), 409
Art. 12, 34
Art. 12(2), 193
Art. 12(3), 182
Art. 12(4), 196
Art. 12(6)–(8), 184, 202
Art. 13, 111, 193
Art. 13(5), 192, 202, 204
Art. 14, 111
Art. 14(3), 249
Art. 15, 111, 273
Art. 15(5), 282, 290
Art. 17E(2), 421
Art. 18, 34, 954
Art. 18(1), 574
Art. 19, 886
Art. 20, 622
Art. 21(1), 748
Art. 21(3), 752
Art. 22(1), 528, 553
Art. 22(4), 878
Art. 23, 710
Art. 23(1)(f), 579
Art. 23(4), 654
Art. 23(g), 710
Art. 24, 666
Art. 25(4), 703
Art. 27, 290, 662
Art. 28, 320, 580
Art. 28(2), 325–326
Art. 29, 453
Art. 30, 661

lxii t a b l e of t r e a t i e s
Art. 30(1), 824, 829
Art. 30(2), 661
Art. 32, 769, 774
Art. 32(1), 767
Art. 33, 908
Art. 34(1), 829, 830
Art. 34(2), 828
Art. 34(3), 828
Art. 34(6), 808
Art. 35(2), 925
Art. 40, 78
ICC (International Chamber of Commerce) Emergency Arbitrator Rules, 331
ICDR Rules, 178, 182, 245, 692, 694, 767, 768, 774, 845
ICSID (International Centre for Settlement of Investment Disputes) Rules, 10, 45, 220–
221, 374, 402, 594, 641, 694, 794
Art. 9, 248
Art. 23, 46
Arts 23–25, 641
Art. 39(3), 323
Art. 39(4), 406
Art. 43, 794
LCIA (London Court of International Arbitration) Arbitration Rules, 33, 177, 182, 191,
275, 336, 560, 595, 631, 648, 768
Art. 1, 595
Art. 4(1), 57, 61
Art. 4(2), 64
Art. 4(3), 57, 61
Art. 4(6), 70
Arts 5ff, 193
Art. 5(8), 890
Art. 5(9), 182
Art. 6(1), 192
Art. 6(1)(v), 204
Art. 7(2), 196
Art. 8, 184
Art. 9(B), 453
Art. 10, 111
Art. 10(3), 245
Art. 10(4), 249
Art. 11, 111
Art. 14, 886
Art. 14(5), 78

tab l e of t reat ies lxiii
Art. 15, 648
Art. 16(1), 574
Art. 16(2), 579
Art. 17(1), 619
Art. 19, 660
Art. 22(3), 33
Art. 23(1), 298
Art. 25, 320
Art. 25(3), 176, 325–326
Art. 25(4), 176
Art. 26(1), 836
Art. 26(5), 769
Art. 26(7), 808, 828, 829, 830
Art. 26(9), 790
Art. 30(2), 709
Madrid Court of Arbitration Arbitration Rules, 554
PCA Conciliation Rules, 46
SCC Arbitration Rules, 111, 275, 887
Art. 5(2), 57
Art. 12(i), 111
Art. 13(4), 184
Art. 17, 111
Art. 19, 111
Art. 21, 111
Art. 37, 320
SIAC Rules, 275, 453, 560, 661
Swiss Rules of International Arbitration, 320, 382
UNCITRAL Arbitration Rules
Art. 1(3), 554
Art. 1(4), 594, 641
Art. 2(1), 52, 58
Art. 2(5), 70
Art. 2(6), 70
Art. 3, 51, 595, 602, 689
Art. 3(1), 594
Art. 3(3), 641
Art. 6, 193
Art. 6(3), 234
Art. 6(4), 204–205
Arts 6–7, 193
Arts 6–8, 97
Art. 7, 178

lxiv t a b l e of t r e a t i e s
Art. 7(2), 196
Art. 8, 198
Art. 8(2), 234
Art. 8(2)(b), 235
Art. 9, 206
Art. 9(2), 196
Art. 9(i), 193
Art. 10, 201, 206
Art. 10(2), 184
Art. 11, 206
Art. 12, 206
Art. 13, 260
Art. 13(2), 256, 258
Art. 13(3), 248
Art. 13(4), 245
Art. 14, 275, 279
Art. 14(2), 283
Art. 15, 655
Art. 15(1), 523, 541
Art. 15(2), 655, 659
Art. 16, 565
Art. 17, 612
Art. 17(1), 407, 617
Art. 17(3), 655
Art. 18, 632
Art. 18(1), 825
Arts 18–20, 630
Art. 19, 612, 619
Art. 19(1), 619
Art. 2(2), 58
Art. 20, 633, 690
Art. 21(1), 298
Art. 21(3), 71
Art. 22, 651–652
Art. 23, 632
Art. 23(1), 297, 298
Art. 25(6), 541
Art. 26, 319, 328, 333, 409
Art. 26(1), 315
Art. 26(2), 318, 333, 408, 412
Art. 26(3), 161
Art. 26(9), 161

t a b l e of tr ea ti e s lxv
Art. 27, 698–699
Art. 29, 703
Art. 29(1), 710
Art. 30, 72, 80
Art. 30(1)(b), 691
Art. 31, 221, 224
Art. 32(1), 836
Art. 32(6), 829
Art. 33(3), 735
Art. 34, 807, 832, 834
Art. 34(1), 785, 794, 807, 808
Art. 34(2), 810, 833
Art. 34(3), 820
Art. 34(4), 815
Art. 34(6), 827, 829
Art. 35, 733, 848
Art. 35(1), 732, 745
Art. 35(3), 755, 757
Art. 36, 775, 848
Art. 36(1), 790
Arts 37–39, 827
Art. 40(3), 844
Art. 41(4), 689
Vietnam International Arbitration Centre Rules, 180
Vienna International Arbitration Centre Rules, 245, 842
WIPO Arbitration Rules, 769
Zagreb Rules (Rules of Arbitration of the Permanent Arbitration Court of the Croatian
Chamber of Commerce), 249, 250
Other International and Transnational Law Instruments

ALI/UNIDROIT Principles of Transnational Civil Procedure Art. 11.1, 77
Eritrea-Ethiopia Boundary Commission, Rules of Procedure, 410, 411
Hamburg Rules, 576–577
Hague-Visby Rules, 137
IBA Rules on the Taking of Evidence in International Arbitration, 77, 339, 626, 695,
696, 704, 713, 715, 730
Art. 3(12)(d), 626
Art. 3(8), 706
Art. 4(9), 583
Art. 6(5), 709
Art. 8(2), 536

lxvi t a b l e of t r e a t i e s
Art. 8(3), 537
Art. 8(4), 537
Art. 8(5), 537
Art. 9(5), 696
Art. 9(7), 77
ILA Principles on Provisional and Protective Measures in International Litigation, 422
UNCITRAL Model Law on Cross-Border Insolvency, 64, 459
Art. 18, 459
Art. 22(3), 459
UNCITRAL Model Law on Electronic Commerce, 69, 130, 134, 813
UNCITRAL Model Law on International Commercial Arbitration, 343
Art. 1, 1–24, 70
Art. 1(1), 10, 577, 901
Art. 1(2), 5, 10–13, 99, 173, 278, 513, 570, 727, 730, 859
Art. 1(3), 7, 13–19
Art. 1(3)(a), 14–15, 19
Art. 1(3)(b), 4, 15–17
Art. 1(3)(b)(i), 15, 18, 570
Art. 1(3)(b)(ii), 16–17
Art. 1(3)(c), 4, 15, 18–19
Art. 1(4), 19–21
Art. 1(4)(a), 19
Art. 1(4)(b), 21
Art. 1(5), 8, 22–24
Art. 2, 25–37, 937
Art. 2(a), 28–30
Art. 2(b), 30, 192, 260
Art. 2(c), 31, 99, 110, 736
Art. 2(d), 31, 33, 34, 241, 575
Art. 2(e), 18, 33–34, 594, 660
Art. 2(f), 35–37, 629–630
Art. 2A, 38–49, 809
Art. 2A(1), 39–47, 743
Art. 2A(2), 47–49
Art. 3, 50–70, 103, 604–605, 876, 948
Art. 3(1), 54–70
Art. 3(1)(a), 54–69, 594, 605, 828
Art. 3(1)(b), 70
Art. 3(2), 70
Art. 3(4), 134
Art. 4, 71–83, 272–273, 527
Art. 5, 84–95, 100, 147, 486, 951

tab l e of t reat ies lxvii
Art. 6, 27, 96–111, 147, 187, 204, 240, 250, 259–260, 300, 305, 858
Art. 7, 39, 112–140, 148, 303, 604, 858, 923–924, 943
Art. 7(1), 116–129
Art. 7(2), 18, 129–131, 149, 924
Art. 7(3), 131–134
Art. 7(4), 134
Art. 7(5), 135, 882
Art. 7(6), 135–138
Art. 8, 1, 12, 71, 73, 82–83, 94, 100, 109, 141–159, 300, 570
Art. 8(1), 142, 143–158, 300
Art. 8(2), 143, 158–159, 598
Art. 9, 1, 12, 94, 100, 160–177, 316, 324, 367–370, 500, 509, 516, 520, 727–728
Art. 10, 178–186, 768
Art. 10(1), 180–181, 241
Art. 10(2), 108, 181–185, 193
Art. 11, 27, 85, 99–102, 105, 109, 110–111, 187–205, 260, 274, 288
Art. 11(1), 103, 189–192, 204
Art. 11(2), 103, 184, 192–195, 241
Art. 11(3), 94–96, 102–105, 107, 110, 195–198
Art. 11(3)(a), 196–198, 603
Art. 11(3)(b), 195, 198
Art. 11(4), 94–96, 103–105, 107, 198–202
Art. 11(4)(a), 199
Art. 11(4)(b), 199
Art. 11(4)(c), 200–201
Art. 11(5), 202–205
Art. 12, 189, 194, 204, 206–235, 272, 273
Art. 12(1), 194, 208–223, 232
Art. 12(2), 194, 223–235, 256
Art. 13, 85, 99–102, 105, 109, 110–111, 236–254, 260, 272, 273, 281
Art. 13(1), 103, 212, 241–244
Art. 13(2), 73, 103, 212, 240, 244–250, 251, 256, 275
Art. 13(3), 94–96, 104–105, 107, 238, 243, 250–254
Art. 14, 85, 94–96, 99–102, 104, 106–107, 109, 110–111, 255–276, 281
Art. 14(1), 104–105, 107, 260–275, 635
Art. 14(2), 271, 275–276
Art. 15, 185, 273–274, 277–291
Art. 16, 85, 99–102, 109, 110–111, 292–313, 867
Art. 16(1), 154, 200, 293, 297–302, 649
Art. 16(2), 300, 302–305, 648–649
Art. 16(3), 94–96, 106–107, 143, 300, 306–313, 649–650, 906
Art. 17, 13, 94, 162, 168, 169, 170–173, 314–342, 367, 486, 727

lxviii t a b l e of tr ea ti e s
Art. 17(1), 103, 320–326
Art. 17(1)(a)(i), 480
Art. 17(1)(b)(i), 487
Art. 17(1)(b)(ii), 490–496, 498
Art. 17(2), 168–169, 171, 326–342, 407
Art. 17(2)(b), 323
Art. 17(2)(a), 334, 361
Art. 17(2)(a), (b) and (c), 343
Art. 17(2)(b), 335–337
Art. 17(2)(c), 337–338
Art. 17(2)(d), 339, 365
Art. 17A, 343–372, 373, 509
Art. 17A(1), 346–364, 366
Art. 17A(1)(a), 355–361, 366, 373
Art. 17A(1)(a) and (b), 355
Art. 17A(1)(b), 361–364, 366
Art. 17A(2), 355, 364–365
Art. 17B, 373–380, 398, 419, 448, 509
Art. 17B(1), 103, 346, 348, 375–377, 510
Art. 17B(2), 377–378
Art. 17B(3), 378–380
Art. 17C, 381–398, 448
Art. 17C(1), 389, 390, 394, 395
Art. 17C(2), 392–393, 395
Art. 17C(3), 394
Art. 17C(4), 380, 387, 394–396, 419
Art. 17C(5), 374, 396–398, 408
Art. 17D, 399–411, 467, 484, 485
Art. 17E, 319, 412–421, 471, 483
Art. 17E(1), 415–418, 419
Art. 17E(2), 415, 419–421
Art. 17F, 404, 422–434, 467
Art. 17F(1), 428–432
Art. 17F(2), 432–434
Art. 17G, 427, 435–452, 468
Art. 17H, 1, 5, 12, 85, 100, 345, 453–472, 483, 570, 727
Art. 17H(1), 461–466
Art. 17H(2), 466–468
Art. 17H(3), 468–472
Art. 17I, 1, 5, 12, 100, 345, 453, 461, 466, 468, 473–499, 570
Art. 17I(1), 479–498
Art. 17I(1)(a)(i), 479–483, 484

t a b l e of t r e a t i e s lxix
Art. 17I(1)(a)(ii), 483–484
Art. 17I(1)(a)(iii), 483, 484–487
Art. 17I(1)(b), 487–498
Art. 17I(1)(b)(i), 487–490
Art. 17I(2), 498–499
Art. 17J, 1, 5, 12, 169, 170, 173, 324, 367, 500–521, 570
Art. 18, 55, 81, 290, 522–538, 546, 552–554, 589, 623, 624, 667, 672
Art. 19, 524, 539–564, 567, 665, 723
Art. 19(1), 103, 547–556
Art. 19(1) and (2), 818
Art. 19(2), 103, 323–324, 551, 556–561, 633, 665
Art. 19(3), 546, 684
Art. 20, 565–590
Art. 20(1), 103, 569–587, 805, 825
Art. 20(2), 103, 587–590
Art. 21, 103, 591–610, 780
Art. 22, 103, 611–627
Art. 22(1), 613–625
Art. 22(2), 616, 625–627
Art. 23, 628–654
Art. 23(1), 630–633, 634–650, 675, 688–691, 948
Art. 23(2), 37, 103, 546, 633–634, 651–654
Art. 24, 553, 655–674
Art. 24(1), 103, 535, 546, 659–667
Art. 24(2), 546, 552, 667–671, 673
Art. 24(3), 389, 530, 546, 552, 671–674, 684
Art. 24(4), 546
Art. 25, 103, 546, 630, 637–638, 675–696
Art. 25(a), 25, 35–36, 689–691, 832, 838, 840, 948
Art. 25(b), 650, 683, 691–693, 877
Art. 25(c), 633, 669, 683–685, 693–696, 722, 877, 953
Art. 26, 103, 697–717
Art. 26(1), 710
Art. 26(1)(a), 701–713
Art. 26(1)(b), 713–715
Art. 26(2), 546, 701, 715–717
Art. 27, 85, 100, 108, 110, 165, 437, 718–731
Art. 28, 732–757
Art. 28(1), 736–744, 745, 757
Art. 28(2), 33, 745–750
Art. 28(3), 750–755
Art. 28(4), 736, 738, 740–741, 751, 753, 755–757

lxx tab l e of t reat ies
Art. 29, 103, 578–579, 758–771
Art. 30, 772–804, 805, 820, 822
Art. 30(1), 780–791, 822
Art. 30(2), 776, 791–804, 822, 908
Art. 31, 805–830, 856, 904–905, 961
Art. 31(1), 807–819, 826, 829
Art. 31(2), 103, 819–822
Art. 31(3), 571, 806, 822–826
Art. 31(4), 56, 814, 827–830
Art. 32, 403, 637, 831–845
Art. 32(1), 834–840, 845
Art. 32(2), 831, 834, 840–845
Art. 32(2)(a), 25, 35–37, 839, 841–842
Art. 32(2)(b), 843–844
Art. 32(2)(c), 840, 844–845
Art. 32(3), 832, 845
Art. 33, 827, 831, 834, 840–841, 845, 846–857, 897
Art. 33(1), 850–852, 855
Art. 33(1)(a), 850, 963
Art. 33(1)(b), 851
Art. 33(2), 404, 852, 855
Art. 33(3), 103, 853–855, 963
Art. 33(4), 855
Art. 33(5), 856–857
Art. 34, 85, 88, 98–102, 109, 110, 635, 637–638, 797, 799, 858–898, 929, 930–932, 958–
959, 965
Art. 34(1), 862–866
Art. 34(2), 94–96, 101, 106–107, 312, 637
Art. 34(2)(a)(i), 113, 159, 866–872, 877
Art. 34(2)(a)(ii), 59, 533, 872–879, 888, 893, 896
Art. 34(2)(a)(iii), 127, 879–883
Art. 34(2)(a)(iv), 291, 544, 663, 883–891, 958–959
Art. 34(2)(b), 305
Art. 34(2)(b)(i), 891–892
Art. 34(2)(b)(ii), 291, 498, 703, 861, 865, 891, 892–895
Art. 34(2)(ii), 623
Art. 34(2)(iii), 820
Art. 34(3), 895–897
Art. 34(4), 831, 897–898
Art. 35, 1, 12, 74, 85, 100, 110, 461, 570, 727, 899–926, 961
Art. 35(1), 903–923, 963
Art. 35(2), 39, 917, 923–926

t a b l e of t r e a t i e s lxxi
Art. 36, 73–74, 473, 475, 477, 481, 862–863, 893, 895, 899, 911–914, 920–922, 927–976
Art. 36(1), 477, 864, 908, 912, 933–975
Art. 36(1)(a), 478, 483, 491, 933, 936, 937–966
Art. 36(1)(a)(i), 113, 930, 938–946
Art. 36(1)(a)(i), (ii), (iii) and (iv), 479–480
Art. 36(1)(a)(ii), 58, 931, 947–953
Art. 36(1)(a)(iii), 931, 953–957
Art. 36(1)(a)(iv), 544, 798, 889, 931, 957–960
Art. 36(1)(a)(v), 483, 484–485, 916, 928, 932, 961–966
Art. 36(1)(b), 305, 933, 936, 966–975
Art. 36(1)(b)(i), 932, 966–967
Art. 36(1)(b)(i)–(ii), 490–491
Art. 36(1)(b)(ii), 491–493, 498, 931, 932, 947, 967–975
Art. 36(2), 933, 975
UNIDROIT Principles of International Commercial Contracts, 42, 739, 743
Art. 1.9, 756
Art. 7.4.3, 753
European Union Instruments

Brussels I bis Regulation, 340, 383, 455, 871
Art. 35, 341, 377
Brussels II bis Regulation, 21
Brussels II Regulation, 746
European Account Preservation Order Regulation, 340, 342
Rome I Regulation, 16, 21, 280, 739, 746
Art. 1(1), 739
Art. 1(2)(e), 280, 746, 748
Art. 4, 280
Art. 4(1), 16
Art. 4(2)–(4), 747
Art. 4(4), 749
Art. 19(1), 21
Rome II Regulation, 21

TABLE OF CASES
National Cases
Abu Dhabi
Federal Supreme Court of Abu Dhabi, Case No. 245/2000, judgment (7 May
2000), 122
Argentina
Enrique C Wellbers SAIC AG v. Extraktionstechnik Geseelschaft fur Anlagenbau
MBM, CLOUT Case 27, 301
Australia
AED Oil Ltd and AED Services Pte Ltd v. Puffin FPSO Ltd [2010] VSCA 37,
325, 367
Aerospatiale Holdings Australia Pty v. Elspan Intl Ltd (1992) 28 NSWLR 321,
555
Amalgamated Pest Control Pty Ltd v. SM & SE Gillece Pty Ltd, Trustee of the Gillece
Family Trust [2016] QDC 134, 510
American Diagnostica Inc. v. Gradipore Ltd (1988) 44 NSWLR 312, 555
Angela Raguz v. Rebecca Sullivan (2000) NSWCA 240, 577
APC Logistics Pty Ltd v. C. J. Nutracon Pty Ltd [2007] FCA 136, 148
Austra Tanks Pty Ltd v. Running [1982] 2 NSWLR 840, 551
Australian Broadcasting Co. v. O’Neill (2006) 227 CLR 55, 505, 508
Australian Competition and Consumer Commission v. Valve Corp. (No. 3)
(2016), 697
Bauen Constructions Pty Ltd v. Bauen Constructions Pty Ltd v. Sky General Services
Pty Ltd and Another (NSW), 69
Beecham Group Ltd v. Bristol Laboratories Pty Ltd (1968) 118 CLR 618,
505
Brali v. Hyundai Corp. (Rep. of Korea), Supreme Court of New South Wales,
Commercial Division, (1990) XV YB Com. Arb. 360, 910
Buller v. Murray Grey Beef Cattle Society Ltd, [2014] FCA 1127, 505, 508
Cameron Australasia Pty Ltd v. AED Oil Ltd [2015] VSC 163, 557
Cargill Intl SA v. Peabody Australia Mining Ltd [2010] NSWSC 887, 555, 878
lxxii

t a b l e of c a s e s lxxiii
Castel Electronics Pty Ltd v. TCL Air Conditioner (Zhongshan) Co. Ltd [2012] FCA
21, 370
Castlemaine Tooheys Ltd v. State of South Australia (1986) 161 CLR 148, 508,
509, 510
Commandate Marin Corp. v. Pan Australia Shipping Pty Ltd (2006) 157 FCR 45,
129
Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH v. Australian Granites Ltd
[2001] 1 Qd R 461, 554–555
Electra Air Conditioning BV v. Seeley Intl Pty Ltd [2008] FCAFC 169, 180
Evans Marshall & Co. Ltd v. Bertola SA [1973] 1 WLR 349, 507
Gordian Runoff Ltd (formerly Gio Insurance Ltd) v. The Underwriting Members of
Lloyd’s Syndicates [2002] NSWSC 1260, 265, 269, 285
Hui v. Esposito Holdings Pty Ltd [2017] FCA 648, 217
InfraShore Pty Ltd v. Health Administration Corp., [2015] NSWSC 736, 152
Hebei Jikai Industrial Group Co. Ltd v. Vincent Martin and others [2015] FCA 228,
548, 550, 551
Johnson v. Cetin [2011] WASC 344, 507
Kolback Securities Ltd v. Epoch Mining NL (1987) 8 NSWLR 533, 508
Lief Investments Pty Ltd v. Conagra Intl Fertiliser Co., [1998] NSWSC 481, 137
Lime Nominees Pty Ltd v. Adelaide Brighton Cement Ltd [2014] WASC 503, 508
Madaffari v. Labenai Nominees Pty Ltd [2002] WASC 67, 509
Marsh v. Baxter [2013] WASC 209, 509
Oil Basins Ltd v. BHP Billiton Ltd [2007] 18 VR 346, 821
Passlow v. Butmac Pty Ltd [2012] NSWSC 225, 551
Patrick Stevedores Operations No. 2 Pty Ltd v. Maritime Union of Australia (1998)
195 CLR 1, 508
Port Coodgee No. 790 Pty Ltd v. Coastal Development Management Pty Ltd [2014]
WASC 400, 505
Public Service Association & Professional Officers’ Association Amalgamated Union
of New South Wales and State of New South Wales, Director General of the
Department of Premier and Cabinet [2013] NSWIR Comm. 4, 505
Resort Condominiums Intl Inc. v. Bolwell and Another (1993) 118 ALR 655, 462,
463, 809–10, 838, 935
Resort Condominiums Intl Inc. v. Bolwell (1995) XX YB Com. Arb. 628, 330, 906
Samsung Electronics Co. Ltd v. Apple Inc. (2011) 217 FCR 238, 505, 508, 510
Sauber Motorsport AG v. Giedo van der Garde BV [2015] VSCA 37, 553
Sino Dragon Trading Ltd v. Noble Resources Intl Pte Ltd, Federal Court of Australia,
[2016] FCA 1131, 556
Sports Data Pty Ltd v. Prozone Sports Australia Pty Ltd [2014] FCA 595, 508
Subway Sys. Australia Pty Ltd v. Ireland (2013) VSC 550, 870
SZTYO v. Minister for Immigration and Border Protection [2015] FCA 30, 505

lxxiv t a b l e of c a s e s
TCL Air Conditioner (Zhongshan) Co. Ltd v. Castel Electronics Pty Ltd (2014) 311
ALR 387; [2014] FCAFC 83, 553, 894
teleMates Pty Ltd v. Standard Soft Tel Solutions Pty Ltd (2011) 257 FLR 75, 103
Timoney Technology Ltd and Another v. ADI Ltd [2007] VSC 402, 144
Traxys Europ SA v. Balaji Coke Industry Pvt Ltd (No. 2) [2012] FCA 276, 968, 969
Uganda Telecom Ltd v. Hi-Tech Telecom Pty Ltd [2011] FCA 13, 62
Underwriting Members of Lloyd’s Syndicates (revised 5 February 2003) [2002]
NSWSC 1260, 180
Wagners Nouvelle Caledonie Sarl v. Vale Inco Nouvelle Caledonie SAS [2010] QCA
219, 555
Westport Insurance Corp. v. Gordian Runoff Ltd [2011] HCA 37, 821
WesTrac Pty Ltd v. Eastcoast OTR Tyres Pty Ltd [2008] NSWSC 894, 146
Austria
Handelsgericht Vienna, 16 Nc 2/07, 231
Oberlandesgericht Graz, 29 July 2004, CLOUT Case 746, 19
Supreme Court, (2008) XXXIII YB Com. Arb. 354, 616
Supreme Court, 11 May 1983, 970
Supreme Court, 25 June 1992, (1997) XXII YB Com. Arb. 619, 878
Supreme Court, 30 June 2010, CLOUT Case 1442, 663
Supreme Court, 3 Ob. 208/15g, 17 February 2016, 875
Supreme Court, 3 Ob. 221/04b, (2005) XXX YB Com. Arb. 421, 957
Supreme Court, 3 Ob. 65/11x, 925
Supreme Court, 7 June 2017, 882
Supreme Court, CLOUT Case 106, 2 Ob. 547/93 (1994), 14, 19
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Bulgaria
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lxxvi t a b l e of c a s e s
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lxxviii ta ble of c as es
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I/S (17 March 1994), 755

t a b l e of ca s e s lxxxi
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2002), 135

t a b l e of ca s e s lxxxv
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Agence Transcongolaise des Communications – Chemin de fer Congo Océan (ATC-
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Bargues Agro Industrie SA (France) v. Young Pecan Co. (US), Paris Court of Appeal,
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BKMI and Siemens v. Dutco, French Cassation Court judgment (7 January 1992),
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CN v. Minhal, Paris Court of Appeals judgment (28 November 1996), 752
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Court of Appeal of Angers, 16 September 2008, 07/01636, 796
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809, 837

lxxxvi t a b l e of ca s es
Société d’études et représentations navales et industrielles (Soerni) et autres v. Société
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Germany
Bayerisches Oberstes Landesgericht, 16 March 2000, CLOUT Case 402, 668
Bayerisches Oberstes Landesgericht, 27 June 1999, CLOUT Case 452, 911
Bayerisches Oberstes Landesgericht, 4 Z Sch. 9/04, SchiedsVZ 2004, 791
Bayerisches Oberstes Landesgericht, 4 Z Sch. 12/03 (10 July 2003), 904
Bayerisches Oberstes Landesgericht, 4 Z Sch. 23/99, 702
Bayerisches Oberstes Landesgericht, 4 Z SchH 1/01 (23 February 2001), 200
Bayerisches Oberstes Landesgericht, 4 Z SchH 2/98 (16 September 1998), 199
Bayerisches Oberstes Landesgericht, 4 Z SchH 4/02 (13 May 2002), 201
Bayerisches Oberstes Landesgericht, 4 Z SchH 1/99 (4 June 1999), 197, 200
Bayerisches Oberstes Landesgericht, 4 Z SchH 12/99 (20 June 2000), 201
Bayerisches Oberstes Landesgericht, 4 Z SchH 13/99 (28 February 2000), 151,
197
Bayerisches Oberstes Landesgericht, 4 Z Sch. 2/00 (12 April 2000), 938
BGH, 17 April 2008, SchVZ (2008), 76
BGH, 2 July 2009, (2009) SchiedsVZ 285, 910
BGH, 20 September 2001, CLOUT Case 451, 896
BGH, 28 February 1972, (1972) NJW 827, 229
BGH, 3 July 1975, (1976) NJW 109, 229
BGH, 30 May 2011, (2012) SchiedsVZ 47, 893
BGH, 6 June 2002, III ZB 44/01, CLOUT Case 560, 310, 872
BGH, F v. G, judgment (14 July 2011), (2011) SchiedsVZ 284, 150
BGH, 30 January 2003, III ZB 06/02, 955

ta ble of c as es lxxxvii
BGH, 18 January 2007, III ZB 35/06, 905
BGH, 2 November 2000, III ZB 55/99, 798, 799, 908
BGH, 27 March 2003, III ZB 83/02, 311
BGH, 12 January 2006, III ZR 214/05, 144
BGH, 13 January 2005, III ZR 265/03, 149
BGH, 14 September 2000, III ZR 33/00, 153, 526
BGH, 25 January 2007, VII ZR 105/06, 118, 148
BGH, 25 January 2011, XI ZR 351/08, 149
BGH, 3 May 2000, XII ZR 42/98, 148
Brandeburgisches Oberlandesgericht, 26 June 2000, CLOUT Case 439, 575
Hanseatisches Oberlandesgericht Bremen, 30 September 1999, (2) Sch. 4/99, CLOUT
Case 371, 950, 952, 955, 958, 973
Hanseatisches Oberlandesgericht Hamburg, 14 May 1999, 1 Sch. 2/99, CLOUT Case
457, 535, 937, 944
Hanseatisches Oberlandesgericht Hamburg, 8 June 2001, 11 Sch. 1/01, CLOUT Case
569, 732, 820
Hanseatisches Oberlandesgericht Hamburg, 24 January 2003, 11 Sch. 6/01, CLOUT
Case 571, 572, 863, 936, 943
Hanseatisches Oberlandesgericht Hamburg, 22 July 1998, 14 Sch. 2/98, 199
Hanseatisches Oberlandesgericht Hamburg, 8 November 2001, 6 Sch. 4/01, CLOUT
Case 562, 303
Hanseatisches Oberlandesgericht Hamburg, 4 November 1998, 6 Sch. 11/98, 973
Hanseatisches Oberlandesgericht Hamburg, 12 July 2005, 9 SchH 1/05, 242
Kammergericht Berlin, 10 August 2006, 20 Sch. 7/04, 920
Kammergericht Berlin, 22 March 2000, 28 Sch. 24/99, 246
Kammergericht Berlin, 7 July 2010, (2010) SchiedsVZ 225, 229
Landgericht Duisburg, 6 October 1981, (1982) ZIP 229, 230
Landgericht Hamburg, (2000) XXV YB Com. Arb. 641, 880
Landgericht Munchen II, 27 June 2002, CLOUT Case 902, 231
Oberlandesgericht Berlin, 3 September 2012, 150
Oberlandesgericht Celle, 2 October 2001, 8 Sch. 3/01, CLOUT Case 559, 623, 943,
944, 955
Oberlandesgericht Celle, 4 September 2003, 8 Sch. 11/02, 303
Oberlandesgericht Dresden, 28 February 2001, 11 Sch. 1/01, 195, 242
Oberlandesgericht Dresden, 15 March 2006, 11 Sch. 19/05,
CLOUT Case 870, 67, 68, 875, 949
Oberlandesgericht Dresden, 13 January 1999, 11 Sch. 6/98, 971
Oberlandesgericht Dresden, 27 January 2005, (2005) SchiedsVZ 159, 229
Oberlandesgericht Dresden, 20 February 2001, 11 Sch. 2/00, CLOUT Case
454, 233
Oberlandesgericht Düsseldorf, 15 December 2009, 670
Oberlandesgericht Düsseldorf, 19 January 2005, I-26 Sch. 5/03, 904

lxxxviii t a b l e of c a s e s
Oberlandesgericht Düsseldorf, 23 March 2000, 6 Sch. 2/99, CLOUT Case 374, 966
Oberlandesgericht Düsseldorf, 8 July 2008, 266
Oberlandesgericht Frankfurt, 10 January 2008, (2008) SchiedsVZ 199, 229
Oberlandesgericht Frankfurt, 12 October 2009, 663
Oberlandesgericht Frankfurt, 16 January 2014, (2016) XLI YB Com. Arb. 581, 887
Oberlandesgericht Frankfurt, 14 March 2003, 20 Sch. 1/02, 790
Oberlandesgericht Frankfurt, 27 August 2009, 26 SchH 3/09, 951
Oberlandesgericht Frankfurt, 27 April 2006, (2006) SchiedsVZ 330, 229
Oberlandesgericht Frankfurt, 28 January 1998, 229
Oberlandesgericht Frankfurt, 28 June 1999, 3 Sch. 1/99, 790
Oberlandesgericht Frankfurt, 4 October 2007 (2008) SchiedsVZ 96, 212, 231
Oberlandesgericht Frankfurt, 5 April 2001, CLOUT Case 565, 327
Oberlandesgericht Frankfurt, 8 May 2013, 225, 230
Oberlandesgericht Hamburg, 28 June 2004, 231
Oberlandesgericht Hamburg, 30 July 1998, 881
Oberlandesgericht Hamm, 18 September 2003, 17 SchH 7/03, 262
Oberlandesgericht Hamm, 28 November 2008, 674
Oberlandesgericht Hamm, 5 October 2011, 225
Oberlandesgericht Karlsruhe, 4 July 2006, 231
Oberlandesgericht Karlsruhe, 5 June 2007, 797, 840
Oberlandesgericht Karlsruhe, 3 July 2006, 9 Sch. 1/06, 937
Oberlandesgericht Karlsruhe, 27 March 2006, 9 Sch. 2/05, 937
Oberlandesgericht Karlsruhe, 14 September 2007, 9 Sch. 2/07, 937
Oberlandesgericht Köln, 2 April 2004, 9 Sch. (H) 22/03, CLOUT Case 1062,
225, 231
Oberlandesgericht Köln, 26 February 2014, (2016) XLI YB Com. Arb. 484–485, 886
Oberlandesgericht Köln, 11 April 2003, 9 SchH 27/02, 262
Oberlandesgericht Köln, 14 September 2000, 9 SchH 30/00, CLOUT Case 442, 245
Oberlandesgericht Köln, CLOUT Case 667, 2002, 843
Oberlandesgericht München, 10 July 2013, 225
Oberlandesgericht München, 17 December 2010, 266
Oberlandesgericht München, 26 July 2005, 791
Oberlandesgericht München, 3 February 2010, (2010) SchiedsVZ 336, 576
Oberlandesgericht München, 19 January 2009, 34 Sch. 4/08, 924
Oberlandesgericht München, 5 July 2011, 34 Sch. 9/11, 876
Oberlandesgericht München, 5 October 2009, 34 Sch. 12/09, 876
Oberlandesgericht München, 1 September 2009, 34 Sch. 14/09, 922
Oberlandesgericht München, 27 February 2009 34 Sch. 19/08, 926
Oberlandesgericht München, 22 June 2009, 34 Sch. 26/08, 622, 623, 905
Oberlandesgericht München, 6 February 2006, 34 SchH 10/05, 252

ta ble of c ases lxxxix
Oberlandesgericht München, 29 January 2010, 34 SchH 11/09, 204
Oberlandesgericht Naumburg, 19 December 2001, (2003) SchiedsVZ 134, CLOUT
Case 665, 225, 228, 229, 233
Oberlandesgericht Naumburg, 21 February 2002, 10 Sch. 8/01, CLOUT
Case 659, 81, 536, 549, 663
Oberlandesgericht Rostock, 28 October 1999, 1 Sch. 3/99, CLOUT Case 372, 964
Oberlandesgericht Stuttgart, 6 December 2001, 1 Sch. 12/01, (2004) XXIV YB Com.
Arb. 742, 954, 955
Oberlandesgericht Stuttgart, 20 December 2001, 1 Sch. 13/01, 840
Oberlandesgericht Stuttgart, 20 December 2001, 1 Sch. 16/01, 303, 305
Oberlandesgericht Stuttgart, 2002, CLOUT Case 664, 808
Oberlandesgericht Thüringen, 21 November 2013, 231
Saarländisches Oberlandesgericht, 29 October 2002, 4 Sch. 2/02,
CLOUT Case 662, 59, 286
Greece
Areios Pagos, judgment 329/197, 186
Athens Court of Appeal, judgment 4966/1975, 752
Athens Court of Appeal, judgment 7195/2007, 138
Supreme Cassation Court, judgment 1219/2014 (Civil Division A1), 749
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Hong Kong
Aggressive Construction Co. Ltd v. Data-Form Engineering Ltd, High [2009] HKCU
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China Nanhai Oil Joint Service Corp. Shenzen Branch v. Gee Tai Holdings Co.
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China Ocean Shipping Co., Owners of the M/V Fu Ning Hai v. Whistler Intl Ltd,
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Chok Yick Interior Design & Engineering Co. Ltd v. Fortune World Enterprises Ltd
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Chongqing Machinery Import & Export Co. Ltd v. Yiu Hoi and Others Trading as
Tin Lee Ship Builders & Trading Co., 11 October 2001, 943, 945
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D. Heung & Associates, Architects & Engineers v. Pacific Enterprises (Holdings) Co.
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Fai Tak Engineering Co. Ltd v. Sui Chong Construction & Engineering Co. Ltd
[2009] HKDC 141, 136, 155

xc t a b l e o f ca s e s
Fung Sang Trading Ltd v. Kai Sun Sea Products and Food Co. Ltd [1991] HKCFI 190;
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Fustar Chemicals Ltd v. Sinochem Liaoning Hong Kong Ltd [1996] 2 HKC 407, 603
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Ho Fat Sing t/a Famous Design Engineering Co. v. Hop Tai Construction Co. Ltd
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Brunswick Bowling & Billiards Corp. v. ShangHai ZhongLu Industrial Co. Ltd and
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Leviathan Shipping Co. Ltd v. Sky Sailing Overseas Co. Ltd [1998]
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Louis Dreyfus Trading Ltd v. Bonarich Intl (Group) Ltd, CLOUT Case 710, 82

ta ble of c ases xci
Lucky-Goldstar Intl (HK) Ltd v. Ng Moo Kee Engineering Ltd [1993] HKCFI 14,
150
Madison Co. Ltd v. Victor (Far East) Ltd [2000] HKC 502, 926
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William Co. v. Chu Kong Agency Co. Ltd and Guangzhou Ocean Shipping Co.
[1993] HKCFI 215, 132

xcii tab l e of c ases
Wuzhou Port Foreign Trade Development Corp. v. New Chemic Ltd [2001] 3 HKC
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Hungary
Hungarian Chamber of Commerce and Industry, Arbitration Court, CLOUT Case
266, 80
India
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Anita Mantri v. Karvy Stock Broking Ltd and Another, Case No. 198/2007 (High
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Atul Ltd v. Parakash Industries Ltd, 2003 (2) RAJ 409, 521
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G. Engineers Pvt. Ltd v. Calcutta Improvement Trust, AIR 2002 SC 766, 78

t a b l e of ca s e s xciii
Great Offshore Ltd v. Iranian Offshore Engineering & Construction Co., [2008] 14
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Harendra H. Mehta and Others v. Mukesh H. Mehta and Others, Supreme Court, 13
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House Productions Pvt. Ltd v. Meediya Plus (2005) 2 MLJ 256, 503, 506
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Indowind Energy Ltd v. Wescare (I) Ltd and Another, Indian Supreme Court
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Intl Airports Authority of India v. KD Bali and Another, AIR (1988) SC 1099, 225
Iqbal Ali v. Mahindra and Mahindra Financial Services Ltd, Court of Shri Vinod
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Ircon Intl Ltd v. Budhiraja Mining & Construction Ltd, 2007 (4) Arb. LR 159, 851
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Kotak Mahintra Prime Ltd v. Balraj Mann, Delhi District Court, Suit No. 04/
2013, 354, 357, 610
M/S Anuptech Equipments Pvt. v. M/S Ganpati Co-op Housing AIR 1999 (Bom.)
219, 298, 637
M/S Control Systems v. MP Micro and Small Enterprises Facilitation
Council and Others, High Court of Madhya Pradesh, Case No. WP No. 2312/2017,
632, 653
M/S Everest Holding Ltd v. Shyam Kumar Shrivastava and Others (2008) 16 SCC
774, 199
M/S Magma Leasing & Fin. Ltd and Another v. Potluri Madhavilata and Another,
AIR 2010 SC 488, 870
M/S Rapti Contractors v. Reliance Energy Ltd and Others, Delhi High Court
judgment (10 February 2009), 181
M/S SBP & Co. v. M/S Patel Engineering Ltd and Another (2005) 8 SCC 618, 199
M/S SBP & Co. v. M/S Patel Engineering Ltd and Another, 21 October 2009, 289
M/S Senbo Engineering Ltd v. State of Bihar and Others, AIR 2004 Patna 33, 691
Maharashtra State Electricity v. Datar Switchgear Ltd, 2003 (2) BomCR 81, 630, 636
Marina World Shipping v. Jindal Exports and Imports Pvt., New Delhi High Court
judgment (28 February 2012), 155
Max India Ltd v. General Binding Corp., Delhi High Court, India (16 July
2009), 176

xciv t a b l e of c a s e s
Milkfood Ltd v. M/S GMC Ice Cream (P) Ltd, Supreme Court of India, Civil Appeal
No. 9672 of 2003, 600, 602, 603, 605, 608
Ministry of Railway, New Delhi v. Patel Engineering Co. Ltd (2008) 10 SCC 240,
201
ML Lakhanpal v. Darshan Lal and Another, High Court of Delhi, OMP (COMM)
447/2017, 635
MMTC v. Sterlite Industries (India) Ltd, AIR (1997) SCC (India) 605, 181, 766
Narayan Prasad Lohia v. Nikunj Kumar Lohia (2002) AIR 1139, 78, 181
Nathani Steels Ltd v. Associated Construction (1995) 3 SCC 324, 780, 799
Natl Building Construction v. Ircon Intl Ltd, 1998 (44)
DRJ 399, 517
Natl Council of YMC v. Sudhir Chandra Datt, Madhya Pradesh High Court
judgment (12 September 2012), 181
Natl Highways Authority of India v. China Coal Construction Group Corp., 2006 (1)
RAJ 621, 329, 520
Natl Insurance Co. Ltd v. Boghara Polyfab (P) Ltd (2009) 1 SCC 267, 199
Natl Thermal Power Corp. Ltd v. Wig Bros Builders and Engineers Ltd [2009]
INDLHC 1466, 702
NBCC Ltd v. JG Engineering Pvt Ltd (2010) 2 SCC 385, 267, 843
P. Manohar Reddy & Bros v. Maharashtra Krishna Valley Dev. Corp. (2009) 2 SCC
494, 870
Polytron & Fragrance Industries Ltd v. Natl Insurance Co. Ltd, unreported
judgement (2009), No. 144/2008, 799
Prabhat Steel Traders Pvt. Ltd v. Excel Metal Processors Pvt. Ltd and Others, Bombay
High Court (31 August 2018), 472
Prabhjot Singh Mand v. Bhagwant Singh (2009) 9 SCC 435, 511
Rangaraj v. Gopalakrishnan, AIR 1992 SC (India) 453, 126
Reliance Industries Ltd and Another v. Union of India, 570
SA Builders Ltd v. Municipal Corp. of Delhi, EA No. 270/2002 in Ex. P. No. 99/1998
(High Court of Delhi) (19 February 2008), 855
SH Satinder Narayan Singh v. Indian Labour Cooperative Society Ltd and Others,
2008 (1) ARBLR 355 Delhi, 722
Shin Satellite Public Co. Ltd v. Jain Studios Ltd (2006) 2 SCC 628; Dehli High Court
(3 October 2008), 520, 578
Shin-Etsu Chemical Co. Ltd v. M/S Aksh Optifibre Ltd and Another (2005) 7 SCC
234, 155
Shri Lal Mahal Ltd v. Progetto Grano Spa, Civil Appeal No. 5085 of 2013, 494, 496
SN Malhotra & Sons v. Airport Authority of India, 149 (2008) DLT 757 (DB), 78
Srei Infrastructure Finance Ltd v. Tuff Drilling Private Ltd, Supreme Court of India,
Civil Appellate Jurisdiction, Civil Appeal No. 15036/2017, judgment (20
September 2017), 687, 688, 691, 842

ta ble of c ases xcv
Sundaram Finance Ltd v. NEPC India Ltd, Supreme Court of India (13 January
1999); [1999] 2 SCC 479, 368, 517, 519, 609–610
Techmo Car Spa v. The Madras Aluminium Co. Ltd, 2004 (2) ARBLR 284, 505
Union of India v. M/S Singh Builders Syndicate, Supreme Court (26 February
2009), 195
Uppal Eng. Co. (P) Ltd v. Cimmco Birla Ltd 2005 (2) ARBLR 404 (Delhi),
521
VALE Australia Ltd v. Steel Authority of India Ltd, Case No. 414/2011, 854
Vipul Agarwal v. Atul Kanodia and Co., AIR 2003 All 280, 639
Visa Intl Ltd v. Continental Resources (USA) Ltd (2009) 2 SCC 55, 199
Vishal Engineering Works v. The Chief Engineer, High Court of Judicature at
Bombay, Arbitration Petition No. 106 of 2012, 635, 640
Yashwith Construction P Ltd v. Simplex Concrete Piles India Ltd (2006) 6 SCC
204, 289
Ireland
AIB Plc and Others v. Diamond and Others [2011] IEHC 505, 508
Barnmore Demolition and Civil Engineering Ltd v. Alandale Logistics Ltd and
Others, Irish High Court judgment (11 November 2010), [2010] IEHC 544, 155
Campus Oil Ltd v. Minister for Industry and Energy (No. 2) [1983] IR 88,
503, 507
Crossplan Investments Ltd and Another v. McCann and Others [2013] IEHC
205, 506
Curust Financial Services Ltd v. Loewe-Lack-Werk [1994] 1 IR 450
(Ireland), 507
Ireland No. 3, Kastrup Trae-Aluvinduet A/S (Denmark) v. Aluwood Concepts Ltd
(Ireland) [2009] 169 MCA, judgment (13 November 2009), 136, 624, 625
Kinsella and Others v. Wallace and Others [2013] IEHC 112, 505
Osmond Ireland on Farm Business v. McFarland [2010] IEHC 295, 503, 505, 507
Israel
Pickholz v. Sohachesky, Israel Supreme Court, CA 10854/07, 910
Italy
Calaresu v. Pintus, (1961) 18 Rep Foro 161, 754
Dalmine SpA. v. M. & M. Sheet Metal Forming Machinery AG, Court of Cassation
(23 April 1997), (1999) XXIV YB Com. Arb. 709, 943
Del Medico v. Iberprotein, Decision No. 3231 of 16 June 2011, 137
Dreyfus Commodities Italia v. Cereal Mangimi, Decision No. 11529 of 19 May
2009, 137
Société Arabe des Engrais Phosphates et Azotes – SAEPA and Société Industrielle
d’Acide Phosphorique et d’Engrais – SIAPE v. Gemanco srl, Court of Cassation, 9
May 1996, (1997) XXII YB Com. Arb. 737, 939
SpA Abati Legnam (Italy) v. Fritz Häupl, (1992) XVII YB Com. Arb. 529, 820
Kenya

xcvi t a b l e of c a s e s
Anne Mumbi Hinga v. Victoria Njoki Gathara [2009] eKLR, 496
Apa Insurance Co. Ltd v. Chrysanthus Barnabas Okemo, Nairobi High Court, Kenya,
24 November 2005, Miscellaneous Application 241 of 2005, 918
Blue Ltd v. Jaribu Credit Traders Ltd, Nairobi High Court, Civil Case No. 157/
2008, 870
Deekay Contractors Ltd v. Construction and Contracting Ltd [2014] eKLR,
642, 644
Glencore Grain Ltd v. TSS Grain Millers Ltd, High Court Mombasa, Civil Suit No.
388 of 2000, 5 July 2002, (2006) XXXIV YB Com. Arb. 666, 672, 970
Henry Muriithi Mvungu and Another v. Bruno Rosiello, High Court, Nairobi
(Milimani Commercial Courts), Kenya (18 July 2006), 197
National Oil Corp. of Kenya Ltd v. Prisko Petroleum Network Ltd [2014]
eKLR, 639
Open Joint Stock Co. Zarubezhstroy Technology v. Gibb Africa Ltd, Nairobi High
Court, (2017) XLII YB Com. Arb. 421, 882
Safaricom Ltd v. Ocean View Beach Hotel Ltd and Two Others [2010]
eKLR, 650
Sebhan Enterprises Ltd v. Westmont Power (Kenya) Ltd, High Court at Nairobi
(Milimani Commercial Courts) (13 March 2006), 309
Tanzania National Roads Agency v. Kundan Singh Construction Ltd [2014] eKLR,
352, 487, 495
William Oluande v. American Life Insurance Co. (K) Ltd, High Court at Nairobi
(Nairobi Law Courts), Kenya (10 February 2006), 199
Korea
Trocellen GmbH v. Youngbo Chemical Co., Ltd (3 April 2012), High Court of Seoul, 708
Lithuania
Supreme Court of Lithuania, 23 October 2015, 3 K-7–458-701/2015, 908
Luxembourg
Luxembourg Cour Superieure de Justice, Judgment of 24 November 1993, (1996)
XXI YB Com. Arb. 617, 969
Luxembourg District Court judgment (3 January 1996), Bull. Laurent 1996,
IV, 135
Luxembourg District Court judgment, No. 11376 (15 January 2009), 152, 824
Malaysia
Sundra Rajoo v. Mohamed Abd Maked and PORAM, High Court at Kuala
Lumpur (Commercial Division – Saman Premula), judgment of 23 March
2011, 249
Malta
Untours Insurance Agency Ltd and Emanuel Gauci v. Victor Micallef and Others,
App. No. 81/2011/1, Maltese Constitutional Court, 526
Mexico

t a b l e of ca s e s xcvii
Banco de Paris, File 3287/58, Decision of 23 April 1958, Third Chamber, Supreme
Court of Justice, 393
Case 457/2014-III, Fifth District Court on Civil Matters of Mexico City, 57
Third Civil District Court in the Federal District, 22 April 2010, CLOUT Case No.
1155, 893
Netherlands
A v. Vertex Standard Co., Ltd, Case No. 385138/HA ZA 11–208 (24 July 2013),
622
Bursa Büyüksehir Belediyesi v. Güris Insaat VE Mühendislik AS, Case No. CO7/
166HR, judgment (5 December 2008), 815
Nedspice Sourcing BV, Tybex Warehousing BV and Others (‘Xin An Jiang’), Hague
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Nelux Holdings Intl NV and Lawton Corporatino NV, 31 March 2017, ECLI:NL:
HR:2017:555, 586
Republic of Ghana v. Telekom Malaysia Berhad, The Hague District Court, civil law
section, provisional measures judge, Challenge No. 13/2004, Petition No. HA/RK
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Russian Federation v. Veteran Petroleum Ltd, Yukos Universal Ltd (Isle of
Man) and Hulley Enterprises Ltd, Hague District Court, C/09/477160/HA ZA
15–1, C/09/477162/HA ZA 15–2 and C/09/481619 HA ZA 15–112, 20 April
2016, 885
Yukos Capital SARL (Luxembourg) v. OAO Rosneft (Russian Federation),
Gerechtshof Amsterdam, (2009) XXXIV YB Com. Arb. 703, 913
New Zealand
Alexander Property Developments v. Clarke, High Court New Plymouth, 10 June
2004, CIV. 2004–443-89, 674
Basingstoke v. Groot [2007] NZFLR 363, 65
Carter Holt Harvey Ltd v. Genesis Power Ltd [2006] 3 NZLR 294 (HC) 61, 93
Casata Ltd v. General Distributors Ltd [2006] 2 NZLR 721, 850, 851, 853, 854
Coromandel Land Trust Ltd v. Milkt Investment Ltd, High Court, Hamilton, NZ (28
May 2009), 535
Danone v. Fonterra [2014] NZHC 1681, 93
Klissers Farmhouse Bakeries Ltd v. Harvest Bakeries Ltd [1985] 2 NZLR
143, 503
Marnell Corrao Associates Inc. v. Sensation Yachts Ltd (2000) 15 PRNZ
608, 169
Methanex Motunui Ltd v. Spellman [2004] 3 NZLR 454; [2004] 1 NZLR 95, 527, 668,
672, 711
Pathak v. Tourism Transport Ltd [2002] 3 NZLR 681, 146, 161, 168, 169
Safe Kids in Daily Supervision Ltd v. McNeill [2010] NZHC 605; [2012] 1 NZLR 714,
353, 356, 361, 364, 366, 370, 447, 503, 505, 509
Shady Express Ltd v. South Star Freightliner Ltd, judgment (14 March 2008), 820

xcviii t a b l e of ca s es
Todd Petroleum Mining Co. Ltd v. Shell (Petroleum Mining) Co. Ltd [2014] NZCA
507; [2015] 2 NZLR 180, 850, 851, 853
Trustees of Rotoaira Forest Trust v. Attorney-Gen. [1999] 2 NZLR 452 (Comm.),
CLOUT Case 658, 535, 878
Nigeria
Murmansk State Steamship Line v. Kano Oil Millers Ltd (1974), 823
Bendex Eng. v. Efficient Pet. (Nig.) [2001] 8 NWLR (Pt 715) 333, 199, 203
City Engineering Nigeria Ltd v. Federal Housing Authority (1997) 9 NWLR (Pt 520)
224, 823
NNPC v. Lutin Investment Ltd (2006) 2 NWLR (Pt 965) 506, 826
Ogunwale v. Syrian Arab Republic [2002] 9 NWLR (Pt 771) 127, 200, 203
Tulip Nigeria Ltd v. Noleggioe Transport Maritime SAS (2011) 4 NWLR (Pt 1237)
254, 823
Peru
STC No. 1042–2011-PA/TC, 94
STC No. 2945–2013-PA/TC, 94
STC No. 4972–2006-PA/TC, 93
STC No. 8448–2013-PA/TC, 93
Philippines
Gonzalez v. Climax Mining Ltd, CLOUT Case 816, 301
Transfield Philippines Inc. v. Luzon Hydro Corp., Philippines Supreme Court
judgment (19 May 2006), 174, 514
Poland
AL v. Spółka Akcyjna v. P, Katowice Court of Appeal, V ACz 1106/12, 16 January
2013, CLOUT Case 1465, 229, 251, 529
Iwona G. v. A. Starosta i Wspólnicy spółka jawna w B, CLOUT Case 1467, 526
Rzeszow Court of Appeal, reported in Kubas Kos Gałkowski, 342
Portugal
A Coruña Provincial High Court, 27 June 2006, CLOUT Case 968, 669
S, LDA and MJ v. A, SA and R SA, Case No. 477/11.8TBACN.C1, Coimbra Court of
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Wall Street Institute de Portugal – Centro des Ingles SA WSI – Consultadoria e
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X v. Z, Case No. 170751/08.7YIPRT.L1.S1, Portuguese Supreme Court judgment (12
July 2011), 149
Russian Federation
Case No. KG-A40/9109/09, Moscow Federal Arbitrazh Court ruling (21 September
2009), 151
CLOUT Case 1347, VAS-8148/12, Judicial Division of the Supreme Commercial
Court of the Russian Federation (VAS) (2012), 15

t a b l e o f ca s e s xcix
CLOUT Case 1349, Judicial Division of the Supreme Commercial Court of the
Russian Federation, 232
CLOUT Case 643, Presidium of the Higher Arbitration Court of the Russian
Federation, Decision No. 14548/04 (22 February 2005), 58
CLOUT Case 148, Moscow City Court (10 February 1995), 303
CLOUT Case 637, Presidium of the Supreme Court (24 November 1999), 303
Federal Arbitrazh Court of North-Western District (cassation court), Case No. А42-
6967/2008 (4 December 2009), 22
Judicial Division of the Supreme Commercial Court of the Russian Federation,
CLOUT Case 1348, 232
Sokofl Star Shipping Co. Inc. v. GPVO Technopromexport, District Court of
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Supreme Arbitrazh Court, Resolution 11535/13 (28 January 2014), Major
Repairs and Construction Agency at the Health Department of Moscow v.
ArbatStroy, 22
Supreme Commercial Court of the Russian Federation, 20 July 2010, CLOUT Case
1352, 82, 291
Supreme Court, 7 October 2015, A56-14627/2015, 908
Tensbur Investment Inc. (BVI) v. Renaissance Capital Investment Management Ltd
(BVI), 156
Tribunal of International Commercial Arbitration at the Russian Federation
Chamber of Commerce and Industry, Arbitration Proceeding 2/1995 (11 May
1997), 20
Yukos Capital SARL (Luxembourg) v. OAO Tomskneft VNK (Russian Federation),
Federal Arbitrazh Court, District of Tomsk, A67-1438/2010, 7 July 2010, (2010)
XXXV YB Com. Arb. 435, 668, 876, 970
Serbia
CLOUT Case 1021, Foreign Trade Court of Arbitration attached to the Serbian
Chamber of Commerce T-4/05 (15 July 2008), 20
Singapore
AJU v. AJT [2011] SGCA 41, 893
AKN v. ALC [2015] SGCA 18, 554
ALC v. ALF [2010] SGHC 231, 723, 724
Aloe Vera of America Inc. v. Asianic Food (S) Pte Ltd, High Court, Singapore
(10 May 2006); [2006] SGHC 78; [2006] 3 SLR 174, 922, 937, 944, 953,
956, 967
AMZ v. AXX [2015] SGHC 283, CLOUT Case 1660, 533, 878
AQZ v. ARA [2015] SGHC 49, CLOUT Case 1535, 887
Astro Nusantara Intl BV v. PT Ayunda Prima Mitra [2012] SGHC 212, 311
AYH v. AYI and Another [2015] SGHC 300, 876

c tab l e of c ases
Beijing Sinozonto Mining Investment Co. Ltd v. Goldenray Consortium (Singapore)
Pte Ltd [2003] 3 SLR 130, 788
Concordia Agritrading Pte Ltd v. Cornelder Hoogewerff, Singapore High Court
judgment (13 October 1999), [1999] 3 SLR 618, 137
Co-op Intl Pte Ltd v. Ebel SA [1998] 3 SLR 670, 554
Denmark Skibstekniske Konsulenter A/S I Likvidation (formerly known as Knud E.
Hansen A/S) v. Ultrapolis 3000 Investments Ltd (formerly known as Ultrapolis
3000 Theme Park Investments Ltd) [2010] SGHC 108, 924
Dermajaya Properties Sdn Bhd v. Premium Properties Sdn Bhd and Another, [2002]
2 SLR 164, 554
Doshion Ltd v. Sembawang Engineers and Constructors Pte Ltd [2011] SGHC 46,
784, 793
Econ Corp. Intl Ltd v. Ballast-Nedam Intl BV [2002] SGHC 293, 174
Evergreat Construction Co. Pte Ltd v. Presscrete Engineering Pte Ptd [2006] 1 SLR
634, 27, 904
Five Ocean Corp. v. Cingler Ship Pte Ltd (PT Commodities & Energy Resources,
intervener) [2015] SGHC 311, 515
Front Carriers Ltd v. Atlantic & Orient Shipping Corp., High Court, Singapore, 19
July 2006, [2006] SGHC 127 [2006] 3 SLR(R) 854, 161
Galsworthy Ltd v. Glory Wealth Shipping Pte Ltd, High Court, (2011) XXXVI YB
Com. Arb. 329, 888
Government of the Republic of the Philippines v. Philippine Intl Air Terminals Co.
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Insigma Technology Co. Ltd v. Alstom Technology Ltd [2009] SGCA 24,
298
Intl Coal Pte Ltd v. Kristle Trading Ltd [2008] SGHC 182, 922
John Holland Pty Ltd aka John Holland Construction & Engineering Pty Ltd v. Toyo
Engineering Corp. (Japan) [2001] 2 SLR 262, 554
Kiyue Co. Ltd v. Aquagen Int’l Pte Ltd, [2003] SGHC 156, 788
Larsen Oil and Gas Pty Ltd v. Petroprod (in official liquidation in the Cayman Islands
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Luzon Hydro Corp. v. Transfield Philippines Inc. [2004] SGHC 204, 707, 708,
709
LW Infrastructure Pte Ltd v. Lim Chin San Contractors Pte Ltd [2012] SGCA
57, 852
Maldives Airports Co. Ltd and Republic of the Maldives v. GMR Malé Intl Airport
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Mitsui Engineering & Shipbuilding Co. Ltd v. Easton Graham Rush and Another
(2004) SGHC 26; [2004] 2 SLR 14, 92, 254
Mitsui Engineering and Shipbuilding Co. Ltd v. PSA Corp., Keppel Engineering Pte
Ltd (2003) 1 SLR 446, 16, 17, 20, 21

t a b l e of ca s e s ci
NCC Intl AB v. Alliance Concrete Singapore Pte Ltd, Court of Appeal, Singapore, 26
February 2008, [2008] SGCA 5, [2008] 2 SLR(R) 565, 161, 167
Ng Chin Siau and Others v. How Kim Chuan, Singaporean Court of Appeal
judgment, [2007] 4 SLR 809; [2007] SGCA 46, 694, 696
PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA, CLOUT Case 742, [2006]
SGCA 41; [2007] 1 SLR 597, 306, 309, 463, 643, 665, 872, 969
PT First Media TBK v. Astro Nusantara Inl BV [2013] SGCA 57, 305,
895
PT Garuda Indonesia v. Birgen Air (2002) 1 SLR 393, 573, 966
PT Prima Intl Development v. Kempinski Hotels SA and other appeals [2012] 4 SLR
98; [2012] SGCA 35, 531, 629, 697, 876
PT Pukuafu Indah and Others v. Newmont Indonesia Ltd and Another [2012] SGHC
187, CLOUT Case 1537, 326, 896
PT Tri-MG Intra Asia Airlines v. Norse Air Charter Ltd, Singapore High Court
judgment (12 January 2009), [2009] SGHC 13, 118
PT Tugu Pratama Indonesia v. Magma Nusantara Ltd [2003] SGHC 204; [2003] 4
SLR (R) 257, 298, 312, 649
Quanzhou Sanhong Trading Ltd Liability Co. Ltd v. ADM Asia-Pacific
Trading Pte Ltd, Singapore High Court (2018) XLIII YB Com. Arb.
forthcoming, 881
Sembcorp Marine Ltd v. PPL Holdings Pte Ltd [2013] 4 SLR 193, 560
Soh Beng Tee & Co. Pte Ltd v. Fairmount Development Pte Ltd [2007] 3 SLR (R) 86;
[2007] 3 SGCA 28, CLOUT Case 743, 527, 550, 644, 723, 878
Swift-Fortune Ltd v. Magnifica Marine [2006] 2 SLR 323; [2006] SGCA 42, 169, 175,
329, 515
Tan Poh Leng Stanley v. Tang Boon Jek Jeffrey [2000] SGHC 26, 17
Tay Eng Chuan v. United Overseas Insurance Ltd [2009] SGHC 193, 267,
850, 851
Ting Kang Chung John v. Teo Hee Lai Building Constructions Pte Ltd and Others,
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TMM Division Maritima SA de CV v. Pacific Richfield Marine Pte Ltd [2013] 4 SLR
972, 553
Triulzi Cesare SRL v. Xinyi Group (Glass) Co. Ltd [2014] SGHC 220; [2015] 1 SLR
114, 502, 503, 876
Vanol Far East Marketing Pte Ltd v. Hin Leong Trading Pte Ltd High Court,
Singapore (1996), 17
WSG Nimbus Pte Ltd v. Board of Control for Cricket in Sri Lanka, Singapore High
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South Africa
Exploitatie- en Beleggingsmaatschappij Argonauten 11BV and Another v. Honig
(649/2010) [2011] ZASCA 182, 470

cii t a b l e of ca s es
Futura Footwear Ltd v. Salomon SAS (5459/2011) [2012] ZAKZDHC 68 (30 October
2012), 470
Lufuno Mphaphuli & Associates (Pty) Ltd v. Nigel Athol Andrews Bopanang
Construction CC [2009] ZACC 6, CLOUT Case 1691, 529
Spain
Audiencia Provincial Civil de Madrid, Camimalaga, SAU v. DAF Vehiculos
Industriales SAU, Decision No. 147/2013, 118
Audiencia Provincial of Murcia, 8 October 2009, SAP MU 1645/2009, 885
CLOUT Case 1421, Judgment No. 241/2006 (27 September 2006), Madrid Provincial
High Court, 57
CLOUT Case 967, Madrid Provincial High Court (Section 19) Judgment No. 225/
2006 (12 September 2006), 61, 66
D. Andrés v. Díez Carrillo S, Audiencia Provincial de Palma de Mallorca judgment (5
October 2006), rec. apel. 399/2006, 145
Fashion Ribbon Co., Inc. (US) v. Iberband, S (Spain), Spanish Supreme Court, (2005)
XXX YB Com. Arb. 627, 905
Jaral Decoración, SL v. Peñasco Rodilla, SL, Madrid Court of Appeal, Spain (2
February 2007), Case No. 94/2007-7/2005, 956, 957
Madrid Court of Appeal, 4 March 2005, 86/2005–52/2005, 924
Madrid Provincial High Court (section 14), 21 June 2011, CLOUT Case 1420, 222
Madrid Provincial High Court, section 12, 30 June 2011, CLOUT Case 1419, 211
Madrid Superior Court of Justice, 28 January 2015, 212
Ms Cristina-Victoria Utrilla Utrilla (Spain) v. Explotaciones Mineras Justiniano
Muñoz SL, Juzgado de lo Mercantil nú mero 1 de Madrid, Spain (5 July
2006), 203
Murcia Court of Appeal (8 October 2009), Case No. 448/2009-161/2008, 958
Pueblo Film Distribution Hungary KFT (Hungary) v. Laurenfilm SA, Spanish
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Rosso e Nero GastsättenbetriebsgmbH v. Almendrera Industrial Catalana S.A.
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Union Générale de Cinéma SA v. X Y Z Desarrollos SA (2007) XXXII YB Com. Arb.
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Valencia Court of Appeal, 11 October 2005, 603/05, 924
Valencia Provincial High Court, 10 October 2006, CLOUT Case 965, 893

ta ble of c ases ciii
Viza Automoción SAU v. Inser Robótica, SA (Superior Court of Justice of Galicia; 2
May 2012), 790
Zaragoza Provincial High Court, 5 February 2010, CLOUT Case 1158, 78, 877
Sweden
AJ v. Ericsson AB (2007) NJA 841, 79
Alcatel CIT SA v. Titan Corp. (2005) XXX YB Com. Arb. 139, 825
American Pacific Corp. v. Sydsvensk Produktutveckling AB in Bankruptcy, 955
Carpatsky Petroleum Corp. (Carpatsky II) case, decided by the Svea Court of
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Soyak Intl Construction and Investment Inc. v. Hochtief AG [2009] NJA 128, 822
State Oil Co. of the Republic of Azerbaijan (Socar) and Frontera Resources
Azerbaijan Corp. (Frontera), RH 2009:55, 80
Supreme Court, Case No. O 4227–06 (3 December 2008), 839
Switzerland
Bettydo SA v. Torriani, BGE 107, 752
Case 4A_124/2014, 153
Case 4A_178/2014, judgment (29 July 2014), 153, 525
Case 4A_240/2009, 743, 757
Case 4A_277/2017 (28 August 2017), 702
Case 4A_348/2009 and 4A_69/2009, 75
Case 4A_400/2008, ASA (2009 3 ASA Bull. 495, 535
Case 4A_438/2013, judgment (27 February 2014), 131, 299
Case 4A_452/2007, judgment (29 February 2008), 299
Case 4A_564/2013, Swiss Federal Supreme Court judgment (14 May 2014), 536
Case 4A_669/2012, Swiss Federal Supreme Court judgment (17 April 2012), 308, 536
Compagnie de Navigation et Transports SA v. MSC Mediterranean Shipping Co. SA,
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Egemetal v. Fuchs, (2000) 18 ASA Bull., 705
Hitachi Ltd v. SMS Schloemann Siemag AG, Swiss Federal Tribunal, 30 June 1994,
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TA G v. H Co., Re. (1997) ASA Bull. 316, 536
X v. Z, Case No. 5A_754/2011 (2 July 2012), 616, 626
Syria
Fougerollem SA v. Ministry of Defence of the Syrian Arab Republic, Administrative
Tribunal of Damascus (31 March 1988), (1990) XV YB Com. Arb. 515, 942
Thailand
Supreme Court, Case No. 7277/2549, 970
Turkey
4th Civil Chamber of Turkish Supreme Court, judgment 15806/8615 (4 October
1973), 816

civ t a b l e of ca s es
Uganda
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t a b l e of ca s e s cv
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cvi t a b l e of ca s es
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Haworth v. Superior Court, 112 Cal. Rptr 3d 853, 233

ta ble of c ases cvii
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Howard Appel and Others, Plaintiffs, v. Concierge Auctions, LLC, and Others,
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McLean Homes South East Ltd v. Blackdale Ltd, (2001) WL 1560746, 851

cviii t a b l e of c a s e s
McWane Cast Iron Pipe Corp. v. McDowell, 263 A.2d 281 (Del. 1970), 561
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Venezuela
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Cairo Regional Center for Commercial Arbitration Rules
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October 1995), CLOUT Case 786, 570, 620

ta ble of c ases cxi
Cairo Regional Center for Intl Commercial Arbitration, decision of 25 March 1996,
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IBM/Fujitsu Arbitration, 186
ICAC, Latvian v. Russian Co., 781
ICC Case 10047, 740
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ICC Case 16426, 790
ICC Case 3892, 335
ICC Case 3896, 335
ICC Case 4381, 868
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ICC Case 6476, 868
ICC Case 6497, 710, 714
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SEEE v. Yugoslavia (1974) Rev. Arb. 318, 826

t a b l e of ca s e s cxiii
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Van Uden Maritime BV, trading as Van Uden Africa Line v.
Kommanditgesellschaft in Firma Deco-Line and Another, Case C-391/95, ECLI:
EU:C:1998:543, 341
ECtHR
Anđelković v. Serbia, App. No. 1401/08, ECtHR judgment (9 April 2013), 532
Barać and Others v. Montenegro [2011] ECHR 2101, 532
Beer v. Austria, App. No. 30429/96, ECtHR judgment (6 February 2001), 531
Beian v. Romania (No. 1), App. No. 30658/05, judgment (6 December 2007), 533
Bochan v. Ukraine (No. 2), App. No. 22251/08, ECtHR (5 February 2015), 532
Bramelid and Malstrom v. Sweden (1983) 5 EHRR 249, 526
Centro Europa 7 Srl and Di Stefano v. Italy (2012) ECHR 974, 531

cxiv t a b l e of c a s e s
Clinique des Acacias and Others v. France, App. No. 65399/01, ECtHR judgment (13
October 2005), 531
Deweer v. Belgium (1979–80) 2 EHRR 439, 522
Dombo Beheer BV v. Netherlands (1994) 18 EHRR 213, 522, 531
Donadze v. Georgia, App. No. 74644/01, ECtHR judgment (7 March 2006), 534
Dulaurans v. France (2001) 55 EHRR 45, 532
García Ruiz v. Spain [GC], (1999) 31 EHRR 589, 531, 532
H v. Belgium (1987) 10 EHRR 339, 534
Immeubles Groupe Kosser v. France, App. No. 38748/97, ECtHR judgment (9 March
1999), 530
KS v. Finland, App. No. 29346/95, ECtHR judgment (31 May 2001), 531
Khamidov v. Russia [2007] ECHR 928, 532
Klausecker v. Germany [2015] EHRR SE8, 522
Kraska v. Switzerland, App. No. 13942/88, ECtHR judgment (19 April 1993), 534
Krčmář and Others v. Czech Republic, App. No. 35376/97, ECtHR judgment (2 May
2000), 530
Lithgow and Others v. UK (1986) 8 EHRR 329, 522, 667
Lupeni Greek Catholic Parish and Others v. Romania [GC], [2016] ECHR 1061,
532, 533
Miroļubovs and Others v. Latvia, App. No. 798/05, ECtHR judgment (15 September
2009), 530
Moreira de Azevedo v. Portugal (1991) 13 EHRR 721, 531
Nideröst-Huber v. Switzerland (1998) 25 EHRR 709, 531
Osmo Suovaniemi and Others v. Finland, App. No. 31737/1996, Decision (23
February 1999), 55, 153, 526
Pellegrini v. Italy (2002) 35 EHRR 2, 531
Perez v. France (2005) 40 EHRR 39, 532, 534
Pocius v. Lithuania, App. No. 35601/04, ECtHR judgment (6 July 2010), 531
Şahin and Şahin v. Turkey [GC], App. No. 13279/05, ECtHR judgment (20 October
2011), 532
Steel and Morris v. United Kingdom (2005) 41 EHRR 22, 532
Stran Greek Refineries and Stratis Andreadakis v. Greece (1994) 19 EHRR 293, 529
Tabbane v. Switzerland (2016) ECHR 109, 522
Transado-Transportes Fluviais do Sado v. Portugal, App. No. 35943/02, ECtHR
judgment (16 December 2003), 528
Užukauskas v. Lithuania, App. No. 16965/04, ECtHR judgment (6 July 2010), 531
Van de Hurk v. Netherlands (1994) 18 EHRR 481, 534
Vardanyan and Nanushyan v. Armenia, App. No. 8001/07, ECtHR judgment (27
October 2016), 532
Wierzbicki v. Poland (2004) 38 EHRR 38, 531
X v. Germany, App. No. 1197/1961, Decision (5 March 1962), 55, 153, 526
Yvon v. France (2005) 40 EHRR 4, 531, 532

ta ble of c ases cxv
ICJ
Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction, (2000) ICJ Rep.
12, 46
Border and Transborder Armed Actions (Nicaragua v. Honduras), Judgment, (1988)
ICJ Rep. 69, 77
Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), Request for the modification of the Order of 8 March 2011, ICJ, Order
of 16 July 2013, 405
Corfu Channel (United Kingdom v. Albania) [1949] ICJ Rep. 4, 706
Gulf of Maine case (Delimitation of the Maritime Boundary in the Gulf of Maine
Area) (Canada v. USA), (1984) ICJ Rep. 246, 46
Israeli Wall Advisory Opinion (Legal Consequences from the Construction of a Wall
in the Occupied Palestinian Territory), (2004) ICJ Rep. 136, 46
North Sea Continental Shelf Cases (FRG v. Netherlands, FRG v. Denmark) [1969]
ICJ Rep. 3, 752
Nuclear Tests case (Australia v. France), (1974) ICJ Rep. 253, 46, 77
ICSID
Apotex Holdings Inc. and Apotex Inc. v. USA [Apotex III], ICSID Award, 25 August
2014, 811
Blue Bank & Trust (Barbados) v. Bolivarian Republic of Venezuela, ICSID Case No.
ARB/12/20, Decision on the Challenge to José Maria Alonso, 12 November 2013,
217, 231
BSG Resources Ltd, BSG Resources (Guinea) Ltd and BSG Resources (Guinea) SARL
v. Republic of Guinea, ICSID Case No. ARB/14/22, Procedural Order No. 3 of 25
November 2015, 321
Caratube Oil Co. LLP and Devincci Salah Hourani v. Republic of Kazakhstan, ICSID
Case No. ARB/13/13, 557
ConocoPhillips Petrozuata BV, and Others v. Bolivarian Republic of Venezuela,
ICSID Case No. ARB/07/30, Decision on Jurisdiction and the Merits, 3 September
2013, 557
Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines,
ICSID Case No. ARB/03/25, 220
Hrvatska Elektroprivreda d.d. v. Republic of Slovenia, ICSID Case No. ARB/05/
24, 220
Hydro Srl and Others v. Republic of Albania, ICSID Case No. ARB/15/28, Procedural
Order on Provisional Measures of 3 March 2016, 320
Libananco Holdings Co. Ltd v. Republic of Turkey, ICSID Case No. ARB/06/8,
Decision on Preliminary Issues, 23 June 2008, 558
Liberian Eastern Timber Corp. (Letco) v. Government of the Republic of Liberia,
ICSID Case No. ARB/83/2, Award, 31 March 1986, 693

cxvi t a b l e of c a s e s
Marvin Feldman v. Mexico, ICSID Case No. ARB(AF)/99/1, Award, 16 December
2002, (2003) 42 ILM 625, 432
Menzies Middle East and Africa SA and Aviation Handling Services Intl Ltd v. Senegal,
ICSID Case No. ARB/15/21, Procedural Order No. 2 of 2 December 2015, 320
Metal-Tech v. Uzbekistan, ICSID Case No. ARB/10/3, Award, 4 October 2013, 35
Methanex Corp. v. United States of America, 558, 569, 619, 826
Millicom Operations BV and Sentel GSM SA v. Republic of Senegal, ICSID Case No.
ARB/08/20, Decision on the Application of Provisional Measures, 9 December
2009, 402
Perenco v. Ecuador, ICSID Case No. ARB/08/6, Interim Decision on the
Environmental Counterclaim, 11 August 2015, 35
Repsol v. Argentine Republic, ICSID Case No. ARB/12/38, Decision on the Request
for Disqualification of the Majority of the Tribunal, 13 December 2013, 231
RSM Production Corp. v. Saint Lucia, ICSID Case No. ARB/12/10, Decision on St
Lucia’s Request for Security for Costs, 13 August 2014, 321, 337, 470
RSM Production Corp. v. Saint Lucia, ICSID Case No. ARB/12/10, Decision on Saint
Lucia’s Request for Provisional Measures, 12 December 2013, 416
Saipem SpA v. People’s Republic of Bangladesh, ICSID Case No. ARB/05/7, Decision
on Jurisdiction and Recommendation on Provisional Measures, 21 March 2007, 231
SARL Benvenuti et Bonfant v. Congo, ICSID Award, 8 August 1980, 750
Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/1, Award, 7 December 2011, 35
TWC Inc. v. Dominican Republic, Procedural Order No. 2, 15 August 2008, 619
United Utilities (Tallinn) BV and Aktsiaselts Tallinna Vesi v. Estonia, ICSID Case
No. ARB/14/24, Decision – Respondent’s Application for Provisional Measures,
12 May 2016, 320
Urbaser SA and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v.
Argentine Republic, ICSID Case No. ARB/07/26, Award, 8 December 2016, 35, 231
Victory Pey Casado v. Chili, Decision sur les Mesures Conservatoires sollicitées par
les Parties dans l’Affaire, ICSID Case No. ARB/98/2, 25 September 2001, 402
Iran–US Claims Tribunal
Case A/1 (Issue II), Decision (14 May 1982), 787
Decision No. DEC 116-A15(IV) and A24-FT, 328
Richard Harza and Others v. Islamic Republic of Iran, [1983] Case No. 97,
Interlocutory Award No. 14–97-2, 716
Rockwell Intl Systems Inc. v. Government of the Islamic Republic of Iran (The
Ministry of Natl Defence), Award No. 438–430-1, (1990) XV YB Com. Arb.
239–240, 712
Starrett Housing Corp. v. Iran [1987] 16 Iran–US CTR 196, 706

TABLE OF LEGISLATION
Argentina
Ley de Arbitraje Comercial Internacional, 244, 465
Australia
Commercial Arbitration Acts, 243, 249, 382, 448, 497, 555
Evidence Act 2008
s. 135, 557
International Arbitration Act 1974, 104, 352, 436, 497
s. 2(a), 548
s. 8(7)(a), 967
s. 16, 351
s. 16(1), 498
s. 18, 103
s. 18(3), 511
s. 18B, 382
s. 19, 498
s. 21, 554
Sch. 2, 352, 636
New South Wales Commercial Arbitration Act
Art. 17G, 448
New South Wales Electronic Transactions Act 2000, 69
Austria
Arbitration Law, 102
Code of Civil Procedure
s. 585, 520
s. 586(1), 180
s. 586(2), 182
s. 603, 749
s. 604, 767
Enforcement Act, 409
Belgium
Judicial Code, 22, 214, 338, 448
Art. 578–583, 22
Art. 1676(5), 22
cxvii

cxviii t a b l e of l e g i s l a tio n
Art. 1681(3), 182
Art. 1684, 30, 891
Art. 1689(1), 290
Art. 1691, 334, 338
Art. 1693(1), 550
Art. 1695, 448
Art. 1712, 779
Patents Act, 914
Bermuda
International Conciliation and Arbitration Act
Art. 25, 101
Bolivia
Ley de Arbitraje y Conciliación No. 1770, 125
Brazil
Art. 807, 490
Art. 835, 469
Canada
Alberta Rules of Court, 559
Arbitration Act, 960
s. 11(2), 192
s. 14, 266
Consumer Protection Act of Québec
s. 11(1), 22
Ontario International Commercial Arbitration Act, 9
Quebec Code of Civil Procedure, 205
Chile
International Commercial Arbitration Act, 490, 930
Art. 11(3), 102
Art. 17, 382
Art. 20(2), 826
China
Arbitration Law
Art. 16, 151
Art. 18, 151
Art. 53, 818
Colombia
Decreto 1818, 471
Costa Rica
Ley sobre Arbitraje Comercial, 244, 465
Croatia
Arbitration Law, 599, 619

tab l e of l egisla tio n cxix
Art. 6(3)(2), 132, 137
Art. 20, 599
Art. 21(3), 619
Cyprus
International Commercial Arbitration Law
Art. 21, 520, 606
Art. 23, 636
Czech Republic
Denmark
s. 10(2), 182
Dominican Republic
Ley sobre Arbitraje Comercial, 242, 249
Ecuador
Arbitration and Mediation Law, 471
Egypt
Arbitration Law, 647
Art. 1, 515
Art. 14, 516
Art. 30, 647
Art. 40, 786
England and Wales
Arbitration Act, 182, 192, 198, 299, 352, 738, 797, 855
s. 4(1), 748
s. 7, 301
s. 7(1), 814
s. 9(1), 372
s. 9(4), 372
s. 103(2)(d), 953
s. 103(3), 494
s. 12, 607
s. 12(3), 608
s. 13(1), 607
s. 14(1), 607
s. 14(3)–(5), 59
s. 15(3), 182, 766
s. 16(1), 192
s. 17, 198
s. 30, 299, 649–650
s. 30(1), 299
s. 31, 306, 648

cxx table o f l eg islation
s. 31(1), 648
s. 32, 649
s. 32(4), 158
s. 32(6), 306
s. 33, 528, 550
s. 34, 550
s. 34(2)(b), 621
s. 37, 702
s. 39, 368
s. 39(2)(a), 340
s. 42, 330
s. 43, 729
s. 44, 177, 368, 729
s. 44(1), 729
s. 44(3), 177
s. 44(5), 177
s. 44(6), 409
s. 46(3), 748, 749
s. 47(3), 835
s. 51, 784
s. 51(2), 790
s. 52(4), 822
s. 53, 825
s. 54, 823
s. 56, 275, 814
s. 68(2)(a), 800
s. 69, 55, 526, 533
Sch. 1, 511, 748
Sch. 2, 275, 814
Civil Procedure Rules, 70, 697
Limitation Act, 823
Finland
Arbitration Act
Art. 3, 125, 126
Art. 43(2), 626
Former Yugoslavia
Code of Civil Procedure, 765
France
Civil Code
Art. 1351, 811
Art. 1359, 131
Art. 1361, 131

tab l e of l egisla tio n cxxi
Art. 1492, 7
Art. 2052(1), 773
Code of Civil Procedure (CCP), 79, 180, 734
Art. 1456(2), 219
Art. 1465, 223
Art. 1466, 79
Art. 1489–1503, 862
Art. 1494, 550
Art. 1508, 192
Art. 1511, 739, 749
Art. 1511(2), 743
Art. 1512, 751
Art. 1515, 626
Art. 1520, 893
Art. 1520(3), 953
Constitution
Art. 55, 10
Germany
Civil Code
s. 126(a), 130
s. 242, 46, 77
Code of Civil Procedure (ZPO), 449, 450
s. 110, 469
s. 128, 536
s. 917, 503
s. 608(2)(1), 840
s. 826, 799
s. 916, 503
s. 926, 516, 518
s. 935, 503
s. 945, 449
s. 1025, 514
s. 1027, 81
s. 1028(1), 67–68
s. 1031(1), 130
s. 1031(2), 133
s. 1032(1), 83
s. 1033, 514, 520
s. 1035(1), 192
s. 1036, 321
s. 1038(1), 59
s. 1039, 59, 290

cxxii t a b l e of l e g i s l a tio n
s. 1041, 333, 382, 449
s. 1041(4), 449
s. 1043(1), 826
s. 1044, 601
s. 1046, 646
s. 1051(2), 749
s. 1051(3), 750
s. 1052(2), 286
s. 1053(1), 798
s. 1056(3), 844
s. 1057, 809, 837
s. 1058, 809, 837
s. 1059, 798, 868
s. 1059(2)(1)(b), 798
s. 1060, 912
s 1061, 912
s. 1061(1), 963
Commercial Code, 742
Greece
Civil Code
Art. 1712, 126
Law on International Commercial Arbitration, 101
Art. 7(4), 132
Art. 7(6), 137
Guatemala
Decree No. 67–92 of 1995, 242, 249
Guernsey
Trusts Law 2007, s. 63, 125
Honduras
Ley de Conciliación y Arbitraje, 242
Hong Kong
Arbitration Ordinance, 6, 175, 352, 369, 371, 442, 448, 466, 598, 605, 628
s. 4, 6
s. 8, 182
s. 9, 41
s 13, 107
s. 13(3), 108
s. 13(6), 108
s. 21, 369, 371
s. 23, 108
s. 23(3), 107–108
s. 24, 108

t abl e o f l eg i s l at i o n cxxiii
s. 27(1), 262
s. 31(2)(d), 953
s. 32(1), 107–108
s. 34C(1), 192
s. 36, 352, 369
s. 41, 448
s. 44, 466
s. 44(3), 973
s. 45(1), 514, 518
s. 45(2), 514, 518
s. 45(5), 517
s. 45(7), 514
s. 46, 528
s. 49, 598
s. 49(2), 598
s. 51, 636
s. 60(1), 514, 518
s. 60(8), 514
s. 61, 171, 466
s. 67, 822
Special Administrative Region Ordinance No. 17 of 11 November 2010, 419
Hungary
Arbitration Act, 599, 617, 619, 728
s. 5(4), 135
s. 13(1) and (2), 180
s. 32, 599
s. 49(3), 750
s. 55, 180
India
Arbitration and Conciliation (Amendment) Act 2015 No. 3, 516–517
Arbitration and Conciliation Act, 11–12, 352, 368, 494, 516–517, 600, 631, 632, 635,
638, 953
s. 2(1)(f), 9
s. 2(2), 515–516
s. 9, 368, 515–517
s. 9(ii), 368
s. 10(1), 181, 766
s. 10(2), 182
s. 14(2), 635
s. 21, 517, 600, 608
s. 23, 630, 636, 637
s. 23(1), 634

cxxiv t a b l e of l e g i s l a tio n
s. 25, 630, 637–638
s. 25(a), 842
s. 27, 722
s. 32, 637
s. 34, 635, 637–638
s. 34(2), 637
s. 43(1), 608
s. 43(2), 608
s. 43(3), 608
s. 43(4), 608
s. 48(2)(b), 494
s. 73–74, 803
Companies Act
s. 36, 126
Limitation Act, 608
Iran
Law Concerning International Commercial Arbitration, 248
Ireland
Arbitration Act 2010
s. 2(1), 132
s. 8(1), 40
s. 8(2), 40
Italy
Art. 82(1)(12), 879
Art. 809, 180, 769
Art. 815, 225
Art. 816-bis, 620
Art. 816-quater(1), 184
Art. 818, 322
Art. 822, 750
Art. 823(5), 821
Art. 823(7), 817
Art. 827–831, 862
Decreto Legislativo 5 of 17 January 2003, 125, 126
Law 162/2014, 157
Jamaica
Japan
Civil Provisional Remedies Act, 518
Kenya
Arbitration Act, 352, 372, 487, 495, 642

tab l e of l egisla tio n cxxv
s. 24, 636, 642
s. 36, 487
s. 37, 487
s. 37(1)(b)(ii), 494
Korea
Arbitration Act
s. 36(2)(i)(b) and (d), 708
Lithuania
Luxembourg
Civil Procedure Code, Art. 1226, 129
Malaysia
Arbitration (Amendment) Act 2011, 515
Arbitration Act 2005, 516
s. 11(3), 515
s. 13, 105
s. 13(4), 105
s. 13(5), 105
s. 13(6), 105
s. 13(7), 105
s. 15(3), 105
s. 16, 106
s. 18, 106
s. 37, 106
Malta
Art. 21A(1), 183
Constitution, 526
Trusts and Trustees Act, 124
Mauritius
International Arbitration (Miscellaneous Provisions) Act, 109
International Arbitration Act, 109
s. 5(1), 146
s. 43, 109
Supreme Court (International Arbitration Claims) Rules, 157
Mexico
Commercial Code
Art. 1436, 826
Art. 1448, 56
Art. 1479, 465
Art. 1480, 452
Netherlands

cxxvi t a b l e of l e g i s l a tio n
Art. 1042, 702
Art. 1056, 432
New Zealand
Arbitration Act, 23, 164, 353, 370–371, 509, 953
Art. 9, 370–371, 853
Art. 11, 22
Art. 17A, 370–371
Art. 17B, 366, 370–371
Art. 18, 534
Sch. 1, 164, 636
Art. 9(1), 168
Art. 9(2), 511
Art. 9(3), 520
Art. 11(2), 192
Art. 17, 510
Art. 36(3)(a), 968
Arbitration Amendment Act 2007, 370
s. 9, 509
s. 9(2), 509
High Court Rules
r 6.28(5)(b) to (d), 512
Nicaragua
Ley de Mediación y Arbitraje, 242
Nigeria
Arbitration and Conciliation Act, 353, 372
s. 53, 352
Limitation Law of Lagos State
Art. 8(1)(d), 823
Panama
Trust Law 1984, s. 41, 125
Paraguay
Ley No. 921 de Negocios Fiduciarios, 125
Ley No. 1,879 de Arbitraje y Mediación, 244
Peru
General Arbitration Act, 471
Legislative Decree No. 1071 of 2008, 249
Art. 52(2), 767
Philippines
Alternative Dispute Resolution Act 2004, 511
s. 26, 104–105
Poland

t abl e o f l eg i s l at i o n cxxvii
Civil Procedure Code
Art. 1187(1), 621
Art. 1194(1), 750
Art. 733, 518
Portugal
Arbitration Law, 753, 809, 837
Art. 8(1), 180
Art. 10, 184
Art. 11, 183
Art. 18(8), 809, 837
Art. 32(1), 621
Art. 39(5), 753
Art. 45(5), 753
Art. 47(2), 753
Civil Code
Art. 564(2), 753
Voluntary Arbitration Law, 127
Romania
Code of Civil Procedure, 124, 624
Art. 550(3), 128
Art. 556(3), 183
Art. 570(1), 620
Art. 586(1), 180
Art. 601(2), 750
Art. 603(1)(g), 813
Art. 1119(2), 750
Russian Federation
International Commercial Arbitration Act, 15, 66–67, 749
Art. 28(2), 749
Saudi Arabia
Arbitration Law, 44, 131
Art. 13, 180
Art. 29(1), 621
Art. 29(2), 626
Art. 38(1)(a), 737
Art. 38(1)(b), 749
Art. 38(1)(c), 737
Royal Decree No. M/46, 768
Singapore
Civil Law Act
s. 4(10), 175
Evidence Act, 560

cxxviii table of l eg islation
International Arbitration (Amendment) Act 2010, 515
International Arbitration Act, 175, 352, 636, 953
s. 6(1), 372
s. 6(2), 372
s. 8, 108
s. 9, 182, 766
s. 9A, 192
s. 10(4), 306
s. 12(1), 163
s. 12(1)(i), 369
s. 12(7), 515
s. 12A, 175, 515
s. 12A(2), 164
s. 12A(3), 175
s. 12A(6), 167
s. 20, 452
Sch. 1
Art. 1(2), 352
Slovakia
Arbitration Act, 135, 737
Slovenia
Arbitration Law 2008
Art. 2, 41
Art. 10(5), 137
South Africa
International Arbitration Act, 352, 372
s. 6, 352
Sch. 1, 636
Spain
Arbitration Act, 65, 212, 368, 619, 666
Art. 5(a), 56
Art. 9, 132
Art. 10, 126
Art. 11(bis)(3), 125
Art. 12, 180
Art. 23, 367
Art. 28(1), 624
Art. 28(2), 626
Art. 34(2), 737, 750
Art. 37(2), 824
Art. 247(1), 77

table of l eg islation cxxix
Constitution
Art. 14, 56
Sri Lanka
Arbitration Act 1995, 598
s. 8(2), 271, 601
Sweden
Arbitration Act, 652, 751
s. 25, 702
s. 26, 726
s. 48(1), 737, 747
Switzerland
Art. 374(4), 450
Art. 380, 153, 525
Art. 396(2), 528
Code of Civil Procedure of Geneva, 469
Concordat
Art. 26, 409
Private International Law Act, 451, 729
Art. 178(1), 132
Art. 179, 192
Art. 182(2), 550
Art. 183, 330
Art. 187, 749
Art. 187(2), 751
Art. 189(2), 820
Art. 190(2)(b), 872
Art. 190(2)(d), 703
Swiss Confederation Constitution
Art. 5(3), 46
Tanzania
Village Land Act, 742
Thailand
Turkey
Civil Procedure Code, 516, 518
International Arbitration Code, 516, 518, 930
Uganda
Arbitration and Conciliation Act
s. 11(3), 110
s. 68(a), 110

cxxx tab l e of l egis latio n
Ukraine
Civil Code, 738
United Arab Emirates
Civil Code, 968
United States
California Code of Civil Procedure, 164
Electronic Communications Privacy Act (ECPA), 391
Federal Arbitration Act (FAA), 90, 129, 156, 164, 223, 352, 369–370, 547, 548, 796,
822, 823
s. 5, 182
s. 207, 909
Oregon International Commercial Arbitration and Conciliation Act, 164
s. 1782 USC, 730
Texas Civil Practice and Remedies Code, 164
Universal Commercial Code
Art. 1–201(20), 46
Venezuela
Ley de Arbitraje Comercial, 83, 243, 768
Organic Law of Protection of Constitutional Rights and Guarantees, 93
Zimbabwe
Art. 9, 163

Article 1
Scope of Application
michael polkinghorne, tuuli timonen
a n d n i ka la r k i m o
(1) This Law applies to international commercial** 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, 17H, 17I, 17J, 35 and
36, apply only if the place of arbitration is in the territory of this State.
(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 differ-
ent States; or
(b) one of the following places is situated outside the State in which
the parties have their places of business:
(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 arbitra-
tion 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.
1

2 a r t i cl e 1: s co p e o f applic ation
** ‘The term “commercial” should be given a wide interpretation so as to

cover matters arising from all relationships of a commercial nature,
whether contractual or not. Relationships of a commercial nature
include, but are not limited to, the following transactions: any trade
transaction for the supply or exchange of goods or services; distribution
agreement; commercial representation or agency; factoring; leasing; con-
struction of works; consulting; engineering; licensing; investment; finan-
cing; banking; insurance; exploitation agreement or concession; joint
venture and other forms of industrial or business cooperation; carriage
of goods or passengers by air, sea, rail or road.’
1. Travaux Préparatoires
General agreement between member States regarding the provisions of
article 1 existed early on in the drafting process. The Working Group
agreed that the Model Law should specify its scope of application and that
this scope should be ‘international commercial arbitration’, correspond-
ing to the mandate given to the Working Group.1 As a result, the
discussion centred on the meaning of the terms ‘international’, ‘com-
mercial’ and ‘arbitration’, as the delegates expressed differing views on
the need for inclusion of definitions of those terms in the Model Law and
on the content of those definitions.
In 1982, two alternative drafts of article 1 were presented to the
Working Group. The Working Group agreed that the more precise
alternative should serve as the basis for the article.2 Although the article
is materially different in its current form, certain important elements
have survived since the first draft. For example, parts of the definition of
‘international’ can still be found in article 1.
As noted above, the beginning of the first paragraph of article 1, i.e. the
statement that the law should apply to ‘international commercial arbitra-
tion’, did not generate any debate. In 1983, the Working Group decided,
however, to clarify the Model Law’s yield to treaty law by adding the
wording ‘subject to any multilateral or bilateral agreement entered into
by this State’ to the end of the paragraph (current wording being ‘subject
to any agreement in force between this State and any other State or
1
Report of the Working Group on International Contract Practices on the Work of Its Fifth
Session, UN Doc. A/CN.9/233 (28 March 1983), para. 48.
2
Report of the Working Group on International Contract Practices on the Work of Its
Fourth Session, UN Doc. A/CN.9/232 (10 November 1982), para. 27.

1 . trav aux p réparatoires 3
States’).3 As noted by the Working Group, this addition could be

regarded as superfluous since the priority of treaty law would follow in
most legal systems from the internal hierarchy of sources of law.4
However, the provision was considered as a useful declaration of the
legislative intent not to affect the validity and operation of multilateral
and bilateral agreements in force in state.5
Soon after agreeing on the starting point for the draft article 1 quoted
above, the Working Group decided, without much discussion, that the
draft definition of ‘arbitration’ should not be retained.6 The need to
define the terms ‘commercial’ and ‘international’ generated more debate
among the Working Group.
The Working Group agreed that the term ‘commercial’ should be given
a wide interpretation. But the term was understood in differing ways in
different legal systems, which led to divergent views being expressed as to
how the term should be defined in the Model Law. The participating states
therefore wanted to avoid defining this term too precisely. At the same
time, the Working Group was well aware that leaving the term undefined
could lead to uncertainty and unnecessary disputes. In 1983, the Working
Group came up with a compromise solution by moving the definition of
‘commercial’ to an explanatory footnote.7 The Working Group also con-
cluded that, instead of trying to define the term ‘commercial’ as precisely as
possible, it was more practical to give a non-exhaustive list of areas that are
to be considered ‘commercial’.8
Several documents of the Working Group reveal that the participants
of the Working Group held diverging views as to the appropriateness of
the footnote.9 The main concern was that the footnote could be without
legal value and effect in legal systems that do not recognise such
3
Sixth Session, UN Doc. A/CN.9/245 (29 August–9 September 1983), para. 161.
4
Report of the Secretary-General: Analytical Commentary on Draft Text of a Model Law on
International Commercial Arbitration, UN Doc. A/CN.9/264 (25 March 1985), para. 9.
5
Ibid.
6
However, the Working Group concluded that the Model Law should explicitly state that it
covers arbitration whether or not administered by a permanent arbitral institution. This
provision was moved to art. 2. UN Doc. A/CN.9/233 (n. 1), para. 50.
7
Ibid., paras 55–56.
8
See Report of UNCITRAL on the Work of Its Thirty-Ninth Session, UN Doc. A/61/17
(14 July 2006), paras 144–145.
9
UN Doc. A/CN.9/245 (n. 3), para. 162. Report of the Working Group on International
Contract Practices on the Work of Its Seventh Session, UN Doc. A/CN.9/246
(6 March 1984), para. 159; Report of the Secretary-General: Analytical Compilation of
Comments by Governments and International Organizations on the Draft Text of a Model

4 a rticle 1: scope of application
a legislative technique.10 Indeed, certain nations expressed their sup-

port for defining the term in the body of the law.11 The International
Chamber of Commerce also noted that it did not consider leaving the
definition of the term in a footnote advisable and that it supported the
definition of the term in the body of the article.12 At the other end of
the spectrum, there was some support for not retaining any illustrative
list at all.13
Although the Working Group agreed that the technique of a footnote
was not ideal,14 it decided to maintain it. The Working Group observed
that ‘the footnote could provide guidance to the legislature of a state
when adopting the model law but was unlikely to be reproduced in the
national enactment of the model law’.15 The Working Group seems to
have been right in this assumption: the footnote has not been reproduced
in any of the national enactments of the Model Law that these authors
have reviewed.
As to the term ‘international’, the Working Group agreed early on that
its definition was of utmost importance for the practical effects of the
Model Law.16 However, finding a satisfactory solution proved to be
a difficult task, as recognised by the Working Group.17 The definition
revealed a clear dilemma: a precise formula was found to be too narrow to
cover all cases encountered in the practice of international commercial
arbitration, whereas the wider definition was likely to lack precision.18
The solution was to start with a rather precise criterion (the parties have
their places of business in different States) and then widen the scope of
application with an increasing reduction in precision (criteria corre-
sponding to current paragraphs 3(b) and 3(c)).19
Law on International Commercial Arbitration, UN Doc. A/CN.9/263 (19 March 1985), para.
17; UN Doc. A/CN.9/264 (n. 4), para. 17.
10
UN Doc. A/CN.9/264 (n. 4), para. 17.
11
See e.g. Comments of the Federal Republic of Germany, Poland, Sweden and the United
States, UN Doc. A/CN.9/263 (19 March 1985), para. 17.
12
Ibid., para. 12.
13
UN Doc. A/CN.9/245 (n. 3), para. 162.
14
UN Doc. A/CN.9/246 (n. 9), para. 159.
15
Ibid.
16
Third Session, UN Doc. A/CN.9/216 (23 March 1982), para. 20. See also UN Doc. A/
CN.9/264 (n. 4), para. 23.
17
The Working Group noted that ‘to find a satisfactory solution was one of the most
difficult tasks in the preparation of the model law’. UN Doc. A/CN.9/245 (n. 3), para. 164.
18
UN Doc. A/CN.9/264 (n. 4), para. 23.
19
Ibid., para. 23.

2. paragraph 1 5
In addition, divergent views were expressed as to whether an arbitra-

tion should qualify as international if parties that have their places of
business in the same State have chosen a seat outside their place of
business.20 Certain delegates considered that there was no justification
to qualify a purely domestic relationship as international solely because
a foreign place of arbitration was chosen.21 Further, as such a provision
would also mean that situations where the seat was determined later by
an arbitral tribunal or institution would qualify as international despite
the common domicile of the parties, it was deemed to create
uncertainty.22 However, the prevailing view was to extend party auton-
omy to this question and to retain the suggested provision.
The last paragraph of article 1, which clarifies that the Model Law does
not overrule national legislation that restricts arbitrability of certain types
of disputes, was introduced without any debate at a relatively late stage of
the drafting process, in 1985.23
In 2006, specific provisions relating to recognition and enforcement of
tribunal-ordered interim measures and to court-ordered interim mea-
sures issued in aid of arbitration were added to the Model Law (articles 17
(H)–(J)). For the sake of clarity, the Commission and the Working Group
felt that it was necessary to expand the list of provisions referred to in
article 1(2) to include these new articles.24 The suggestion to include
articles 17(H)–(J) in article 1(2) was adopted at the Working Group’s
thirty-ninth session without discussion.25 Aside from this update, which
resulted from the (relative) renewal of the interim measures regime
under the Model Law, article 1 has remained untouched.
2. Paragraph 1
2.1 International Commercial Arbitration
Article 1 begins by specifying that the Model Law applies to ‘international
commercial arbitration’. This specification is pertinent in two respects.
First, article 1 thereby excludes certain arbitrations from the scope of the
Model Law – those that are domestic (although States can decide to expand
20
UN Doc. A/CN.9/263 (n. 9), para. 22.
21
Ibid.
22
Ibid.
23
Summary Records of the 319th UNCITRAL Meeting (12 June 1985), paras 41–60.
24
As noted above, art. 1(2) contains a list of articles that apply regardless of the seat of
arbitration.
25
See UN Doc. A/61/17 (n. 8), paras 144–145.

6 a rticle 1: scope of application
the application of the Model Law to domestic arbitration as, for example,
Hong Kong has done26), and those that are not commercial. Second, it
enables the determination of arbitrations and arbitration agreements that
are subject to the regime set out by the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (the ‘New York
Convention’) in Model Law countries. Indeed, the New York Convention
applies only to arbitral awards that (1) are ‘made’ in a State other than the
one where recognition or enforcement is sought, or (2) are ‘not considered
as domestic awards’ under the law of the enforcing State.27
The meaning of the terms ‘international’ and ‘commercial’ is speci-
fied in article 1, in the body of the article (for ‘international’) and as
briefly mentioned above in an explanatory footnote (for ‘commercial’).
The article is silent on the meaning of the term ‘arbitration’, as the
latter was not on the table when the Commission addressed the con-
tent of article 1 in 1985. Its lack of definition since that time has had
little or no wide-reaching consequences. Indeed, the concept of ‘arbi-
tration’ causes little trouble in modern times whereby international
arbitration has become the norm in resolving international commer-
cial disputes.
That being said, the proliferation of different types of alternative
dispute resolution (ADR) proceedings involving parties from different
origin may make distinguishing ‘arbitration’ under article 1 from these
other forms of ADR challenging. Examples of such dispute resolution
methods that may or may not qualify as arbitration under the Model Law
are certain forms of expert determination, online arbitration and man-
datory, state-related arbitration proceedings, such as tax arbitration.
2.2 International
An arbitration must be international to benefit from the Model Law’s
regime. In the words of one renowned author, ‘[t]his is consistent with
the purpose of [the] instrumen[t], which is to facilitate the international
arbitral process, without disturbing local legal rules for domestic arbitra-
tion matters’28 (although some States, such as Hong Kong, have decided
to expand the law’s application to domestic arbitrations as well – see
26
Hong Kong Arbitration Ordinance, Cap. 609 (Arbitration Ordinance), s. 4.
27
New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
New York, 1958, art. 1(1). See also G. Born, International Commercial Arbitration:
Commentary and Materials, 2nd edn (Martinus Nijhoff, 2001), p. 119.
28
Ibid.

2. paragraph 1 7
below in this regard). States have – traditionally – adopted differing

approaches to what constitutes international arbitration and many
States do not even have a codified definition of this concept.29 It was
therefore necessary to address this term in the Model Law. Article 1(3)
clarifies the meaning of ‘international’ as described in more detail below
in the commentary on paragraph 3.
2.3 Commercial
The definition of ‘commercial’ was problematic at the time of the
drafting of the 1985 Model Law. Many countries wanted to avoid
defining the term too precisely in case it prevented certain countries
from incorporating the Model Law. Thus, contrary to the concept of
‘international’, the Model Law does not provide for a definition of
‘commercial’. Instead, the drafters of the Model Law decided to address
this term in an ‘illustrative’ footnote,30 which begins with a statement
that the ‘term “commercial” should be given a wide interpretation so as
to cover matters arising from all relationships of a commercial nature,
whether contractual or not’.
It was thereby largely left to the countries’ local laws to define which
specific disputes fall within the ambit of ‘commercial’. To guide the
interpretation, article 1’s footnote contains a non-exhaustive list of
cases that are commercial, the purpose being to ‘circumvent any techni-
cal difficulty that may arise, for example, in determining which transac-
tions should be governed by a specific body of “commercial law” that may
exist in some legal systems’.31 This footnote also specifies that commer-
ciality does not require that the parties’ relationship be contractual in
29
An example of a liberal approach to ‘international arbitration’ can be found in the French
Civil Code. France has a long line of jurisprudence, codified in art. 1492 of its current Civil
Code, stating that an arbitration is international when it ‘implicates the interests of
international trade’. To take an example of a more restrictive view, it is generally thought
that an arbitration in China is ‘foreign-related’ only when a dispute involves a Chinese
party and a foreign party; two foreign parties; or two Chinese parties, if the legal relation-
ship between them or the subject matter in dispute takes place or is located in a foreign
country. See Mayer Brown’s presentation, ‘Arbitration of Disputes in China and
Hong Kong: Challenges and Opportunities’ (2008), p. 69, www.mayerbrown.com/pub
lic_docs/Event_FinalBook.pdf.
30
See UNCITRAL, ‘2012 Digest of Case Law’, p. 9, para. 7 (‘The footnote to Article 1 (1) . . .
offers an illustrative and open-ended list of relationships that might be described as
commercial in nature . . .’).
31
‘2012 Digest of Case Law’, ibid., p. 9.

8 a rticle 1: scope o f application
nature.32 Thus, the Model Law is intended to apply to disputes arising out
of extra-contractual relationships,33 as long as those relationships are
international and commercial and governed by an arbitration agreement.
Neither the actual article nor the footnote takes a stance on whether the
quality of the parties has an impact on the commercial nature of the
arbitration.
Although the footnote does state that the term ‘commercial’ should be
given a broad meaning, and contains only a list of activities that are
commercial, it does give some indication as to what is not commercial as
well. In light of the list set out in the footnote, employer–employee
relationships, matrimonial relationships, family affairs and matters
implicating the application of criminal law seem to be outside the
Model Law’s scope. Other areas, such as the ownership of intellectual
property rights and antitrust matters, leave room for interpretation.
This notwithstanding, some authors consider that as ‘the Model Law’s
list of examples of commercial relations is non-exclusive (“include, but
are not limited to”), [it is] difficult to draw conclusions from the exclu-
sion of particular types of transaction from the Law’s footnote’.34 Instead,
in those authors’ view, as the law’s list of commercial transactions
‘extends expressly to “carriage of . . . passengers” and “consulting,”
which very arguably include at least certain consumer or employment
relations’, the question of ‘why other types of consumer and employment
relations are any less “commercial” or more appropriately excluded
entirely from the Model Law’s coverage’ becomes relevant.35 ‘The better
view’, in those authors’ view, ‘is that the Model Law includes within its
coverage both consumer and employment matters, subject to any specific
non-arbitrability rules adopted in particular states pursuant to article
1(5) of the Law’. They go as far as stating that the contrary decisions are
‘difficult to reconcile with the text of article 1(5)’s footnote and the
objectives of the Model Law’.36
32
Model Law, art. 1, footnote ** (‘The term “commercial” should be given a wide inter-
pretation so as to cover matters arising from all relationships of a commercial nature,
whether contractual or not’).
33
Extra-contractual relationships are not governed by a contract. For example, a duty of
care may arise between two parties, creating a relationship between them. This relation-
ship is governed by the law on the tort of negligence, rather than any terms to which the
parties had the opportunity to contractually agree.
34
G. B. Born, International Commercial Arbitration, 2nd edn (Kluwer, 2014), p. 291.
35
Ibid.
36
Ibid.

2. paragraph 1 9
At least as plausible an interpretation would be that consumer and

employment disputes in their generality were intentionally left out of the
definition of ‘commercial’. After all, the footnote explicitly qualifies
certain types of activities with consumer or employer–employee
elements, such as the above-mentioned carriage of passengers and
consulting, as ‘commercial’, but it does not mention consumer- or
employment-related activities per se – a contrario, such activities are
arguably not included within the concept of ‘commercial’ under the
Model Law.
Of note is that a number of Model Law States omitted the list of
examples. For example, India expressly provided that the term ‘commer-
cial’ shall be interpreted under the law in force in India.37
Although some case law interpreting the term ‘commercial’ is
available,38 this concept has not been very problematic in practice. This
was anticipated by one of the observers of the eighteenth session of the
UNCITRAL Model Law Commission on Trade Law in 1985, who pre-
dicted that ‘one might, without being taxed for excessive optimism,
venture that there will not be many international arbitrations where the
commercial nature of the dispute gives rise to argument’.39
One case in which the term ‘commercial’ was under discussion, how-
ever, came before the Court of Appeal of Ontario in 2008. The case
concerned the wrongful dismissal of an employee, negligent misrepresen-
tation and the valuation of damages, the damages consisting of the value of
the shares that the dismissed employee claimed he should have been
entitled to. The court, applying the International Commercial Arbitration
Act of Ontario, which implements the Model Law, held that the claim was
not commercial in nature and, thus, did not belong to arbitration.40
This case confirms that, as noted above, although the list of examples
in the explanatory footnote is expansive, and although the footnote states
that the term ‘commercial’ should be interpreted broadly, the concept of
‘commercial’ is not without limits. Those limits may vary from one
Model Law country to another.
37
The Arbitration and Conciliation Act, 1996, Pt I, s. 2(1)(f), which states that ‘international
commercial arbitration means an arbitration relating to disputes arising out of legal
relationships, whether contractual or not, considered as commercial under the law in
force in India . . .’.
38
See e.g. CLOUT Case 390, Re. Carter and Others and McLaughlin and Others [1996] 27 OR
(3d) 792, Ontario Court; CLOUT Case 1048, Patel v. Kanbay Intl Inc., 2008 ONCA 867.
39
J. Paulsson, ‘Report on the UNCITRAL Model Law on International Commercial
Arbitration as Adopted in Vienna on 21 June 1985’ (1986) 52 Arbitration 98.
40
CLOUT Case 1048 (n. 38).

10 a r tic l e 1 : s c o p e o f a pp l i c a ti o n
2.4 Subject to Any Agreement in Force between This State

and Any Other State or States
Paragraph 1 of article 1 concludes by subjecting the Model Law’s applica-
tion to ‘any agreement in force between this State and any other State or
States’. Thus, although the Model Law adopts a broad definition of
international commercial arbitration, it remains respectful towards
countries’ engagements with other States.
In some countries, such a carve-out would not even be necessary as it
would result from the hierarchy of norms according to which interna-
tional agreements prevail over national laws,41 but this is not the case
everywhere. In any event, this specification provides clarity, in particular
in fields in which other means of dispute resolution may be better
adapted to – or more appropriate for – the parties’ disputes. This is
particularly relevant for bilateral investment treaties and multilateral
investment treaties, which typically contain arbitration clauses with
a specific investment arbitration regime (e.g. ICSID). Disputes arising
out of those instruments will follow their specific regime without con-
flicting with the Model Law. In the same vein, this provision gives
primacy to the dispute resolution mechanisms set up by certain tax
treaties, as well as to the Court of Justice of the European Union, which
derives its powers from a number of treaties between the member States
of the EU.
3. Paragraph 2
Paragraph 2 clarifies that the Model Law applies (only) to arbitrations
seated in the State in question. Paragraph 2 does not specify how the
seat must be determined for the Model Law to apply. Thus, the place of
the seat does not necessarily need to result from an express agreement
of the parties, but can derive from the arbitrators’ or a national court’s
decision.
The selection of the seat as the determining nexus for application of the
Model Law results from the Commission’s tentative decision to that
effect addressed at the Working Group’s meeting in June 1985. This
strictly territorial approach was accepted without much debate. Indeed,
as explained in the Explanatory Note of the UNCITRAL Secretariat, in
many legal systems, the place of arbitration is the ‘exclusive criterion for
41
e.g. in France, the bloc de conventionnalité, which includes international treaties signed by
France, is above national legislation. See Constitution of France (1958), art. 55.

3. para gra ph 2 11
determining the national law’,42 and even where the national law allows
the parties to choose the arbitration law of a different State from that of
the seat to govern their proceedings, the parties rarely make use of that
possibility.43
The territorial application of the Model Law means that ‘virtually all
aspects of an international arbitration’s “external” relationship with national
courts’, as well as the arbitration’s ‘“internal” procedural issues, including
the applicability of basic guarantees regarding party autonomy and due
process’, are determined by where the ‘place of arbitration’ is located.44
The consequence of this territorial criterion is that, on the one hand,
the law applicable to the merits of the case or the law of the common
domicile of the parties will (or should) have no impact on the arbitration
proceedings seated in a Model Law country (except to the extent that the
parties need to have recourse to those countries’ courts to obtain support
for their arbitration proceedings). On the other hand, however, it means
that if a party domiciled in a Model Law country is engaged in an
arbitration abroad, it cannot benefit from the Model Law’s arbitral
regime even if that regime is more favourable. According to some
authors, this provision also prohibits the parties from choosing another
country’s arbitration law if the arbitration is seated in a Model Law
country.45 Thus, while the Model Law allows the parties to adapt many
of its provisions to their needs, ‘it is doubtful that parties may contract
out of the Model Law’s basic legal framework insofar as an arbitration
seated on local territory is concerned’.46
The territorial criterion was applied in a ruling of the Indian Supreme
Court in 2012, in a case addressing – among other issues – the Indian
Arbitration Act’s omission of the word ‘only’ from its equivalent of article
1(2) of the Model Law.47 The court considered that the omission of this
42
H. M. Holtzmann and J. E. Neuhaus, ‘Explanatory Note by the UNCITRAL Secretariat on
the 1985 Model Law on International Commercial Arbitration as Amended in 2006’ in
J. E. Neuhaus, E. Kristjansdottir, T. W. Walsh and H. M. Holtzmann (eds), 2006
Amendments to the UNCITRAL Model Law on International Commercial Arbitration:
Legislative History and Commentary (Kluwer, 2015), p. 797.
43
Ibid., p. 797.
44
Born (n. 34), p. 1567.
45
Ibid., p. 1568.
46
Ibid.
47
CLOUT Case 1424, Bharat Aluminum Co. v. Kaiser Aluminum Technical Services, Inc.,
Supreme Court of India (2012), www.sci.gov.in/jonew/judis/39545.pdf. For a commentary,
see e.g. U. A. Chaudhry, ‘Marking Their Territory: Bharat Aluminum v Kaiser Aluminum
Technical Services (2012)’, Kluwer Arbitration Blog (13 September 2012), http://arbitration
blog.kluwerarbitration.com/2012/09/13/marking-their-territory-bharat-aluminum-v-kaiser-

12 ar ti cle 1 : sco pe of a pplic ation
term from the Indian Arbitration Act had no relevance because the
structure of the Act was different from that of the Model Law. Thus, by
agreeing to a seat of arbitration outside India, the parties had chosen the
laws of that country as the governing arbitration law. The court viewed
this choice as a reflection of party autonomy, which was allowed under
the applicable arbitration law. The Supreme Court concluded that the
Indian courts did not have the authority to supervise the conduct of
international commercial arbitration proceedings seated outside India
because, among other reasons, the Arbitration Act adopts the territorial
principle of the Model Law.48
The strictly territorial criterion of Model Law contains a number of
exceptions set out in paragraph 2 of article 1. Indeed, because of their
nature, certain provisions – dealing mostly with the aid that State courts
must give to international arbitration proceedings – apply to interna-
tional arbitration proceedings regardless of the seat. The provisions that
are carved out from the law’s territorial application address the courts’
duty to refer the parties to arbitration where a valid arbitration agreement
exists (article 8); the compatibility of court-ordered interim measures
with a valid arbitration agreement (article 9); and the recognition and
enforcement of awards rendered abroad (articles 35 and 36). The 2006
amendments expanded this list by including three new articles that deal
with the recognition and enforcement of tribunal-ordered interim
measures (articles 17H and 17I) and with the courts’ duty to issue interim
measures in aid of arbitration regardless of where the arbitration is
conducted (article 17J).49
As mentioned above, the 2006 amendments to article 1 result from
the Commission’s desire to clarify and modernise the Model Law’s
interim measure regime (see the commentary of articles 17H–J below
in this volume for a description of the updated regime). While
updating the provisions relating to interim measures, the drafters
recognised that an interim measure may be needed before the seat
is known or in a jurisdiction in which assets are located, without that
aluminum-technical-services-2012/. See also between the same parties Bharat Aluminum Co.
v. Kaiser Aluminum Technical Services, Inc., Supreme Court of India (2016), www.sci.gov.in
/jonew/judis/43305.pdf (in which the Supreme Court of India confirmed that the parties had
chosen English law to govern their arbitration and that they had excluded the application of
Indian arbitration law).
48
See Chaudhry, ibid.
49
For a discussion regarding these new articles, see the commentary to art. 17 in this
volume.

4. paragraph 3 13
jurisdiction necessarily being that of the seat (in particular as the seat
is often chosen for its independence from the parties or for its
arbitration-friendliness). Therefore, it was necessary to include these
new articles within the list of articles that a Model Law country’s
courts should apply even if the arbitration proceedings are not seated
within its jurisdiction.50
To these authors’ knowledge, at the time of drafting, no case law is
available applying these amendments.
4. Paragraph 3
Pursuant to paragraph 3, an arbitration is ‘international’ when one of the
following conditions is met:
(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
(b) one of the following places is situated outside the State in which the
parties have their places of business:
(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 con-
nected; or
(c) the parties have expressly agreed that the subject matter of the
arbitration agreement relates to more than one country.
The Model Law, thus, adopts a rather broad, international arbitration-
friendly definition of internationality, although States may adopt (and at
times have adopted) a different or more restrictive approach.
50
During the Working Group’s meeting in 2005, the Group noted that it had not been
requested to amend art. 1(2). Therefore, it was initially suggested that the list in art. 1,
para. 2 remain untouched and that the relevant provisions of art. 17 state ‘notwithstand-
ing Article 1, paragraph (2)’. (See Report of the Working Group on Arbitration and
Conciliation on the Work of Its Forty-Third Session, UN Doc. A/CN.9/589
(12 October 2005), para. 101.) This suggestion was later rejected, arts 17H–J added to
the list of exceptions of art. 1(2), and the amended art. 1 adopted by the Commission in
July 2006 (see Report of the United Nations Commission on International Trade Law on
the Work of Its Thirty-Ninth Session, UN Doc. A/61/17 (14 July 2006), para. 145).

14 a r tic l e 1 : sc o p e o f a pp l i c a t i o n
4.1 Paragraph 3(a)

An arbitration is international if, at the time of conclusion of the arbitration
agreement, the parties’ places of business are in different States. Of note is
that the relevant point in time for assessing the parties’ places of business is
that of the conclusion of the arbitration agreement – not that of the dispute.
Subsequent changes to the place of business have therefore no bearing on
the international nature of the arbitration under article 1, paragraph 3(a),
thereby indicating that the drafters wished to promote some foreseeability
and stability in these types of international transactions.
The law leaves it to national legislations to define what a ‘place of
business’ is.51 Some courts have taken a lenient approach to this term,
considering that virtually any place in which business is being conducted
constitutes a party’s place of business.52 For instance, in the words of the
Supreme Court of Austria, ‘any location from which a party participates
in economic transactions in a somehow independent manner’ qualifies as
a place of business.53
Ascertaining the place of business may be difficult in some circum-
stances, such as when a respondent refuses to disclose its own identity or
its place of business54 or when a party only has a registered office in
a Model Law country. The Model Law does not address such situations,
leaving it again to national legislation to deal with these issues.
Further, in some Model Law countries, the parties having their places
of business in different States is not automatically sufficient for their
51
Although para. 4 clarifies the interpretation of a ‘place of business’ where a party has
several places of business or has no place of business at all (see below). Therefore, para. 1
must be read in conjunction with para. 4.
52
As noted in UNCITRAL’s ‘2012 Digest of Case Law’ (n. 30), a party’s place of business
‘should thus include activities such as the establishment of a production plant, sales/
marketing base, distribution, transport, or the place where the financial and adminis-
trative functions of the business are carried out’. See pp. 8–9.
53
CLOUT Case 106, 2 Ob. 547/93, Supreme Court, Austria (1994) (where the term ‘place of
business’ is interpreted in the context of art. 1 of the United Nations Convention on
Contracts for the International Sale of Goods (Vienna, 1980)).
54
CLOUT Case 601, China Ocean Shipping Co., Owners of the M/V Fu Ning Hai v. Whistler Intl
Ltd, Charters of the M/V Fu Ning Hai, High Court of Hong Kong Special Administrative
Region, Court of First Instance (1999) (‘The court observed that there was nothing in the
MAL that governed the matter of refusal by a party to make disclosures about its identity and,
therefore, the restriction in Article 5 MAL did not apply in this case. Nor was the court
satisfied that an order requiring a party to supply such details was an “interim measure of
protection”, in the meaning of Article 9 MAL. In the court’s view, there was no express
provision in the law that dealt with the issue and, to prevent an abuse of process, the matter
must be decided on the basis of the inherent jurisdiction of the court’).

4. paragraph 3 15
arbitration to qualify as international. According to one national court,

even if one of the parties had its place of business abroad at the time of
conclusion of the arbitration agreement, the arbitration between the
parties was qualified as domestic because the parties had failed to choose
international arbitration.55 The court considered that, on the contrary, by
signing the contract, the foreign party had accepted domestic
arbitration.56 It is questionable whether such a solution is in line with
the Model Law, as article 1 clearly states that an arbitration ‘is’ interna-
tional if one of the parties has its place of business abroad and that the law
‘applies’ to international commercial arbitration. This case demonstrates,
however, that the Model Law gives State courts broad freedom when
applying the law within the framework of their national legislation.
4.2 Paragraph 3(b)

Paragraphs 3(b) and (c) of article 1 broaden the notion of internationality
to encompass a range of circumstances in which both parties’ places of
business are in the same State.
Pursuant to article 1(3)(b)(i), if the place of arbitration is in a State
other than the parties’ places of business, the arbitration is international.
This means that by choosing a foreign seat, parties from the same State
will have subjected their arbitration to the Model Law even if all other
indicators would lead to their common place of business. The foreign seat
needs to result from the parties’ agreement, although the seat does not
need to be expressly determined in that agreement (‘if determined in, or
pursuant to, the arbitration agreement’). In other words, it would appear
that an arbitration can be international under article 1(3)(b)(i) even if the
55
CLOUT Case 1347, VAS-8148/12, Judicial Division of the Supreme Commercial Court of
the Russian Federation (VAS) (2012).
56
Ibid. The Supreme Commercial Court of the Russian Federation held that, although the
parties can choose to submit their dispute to international arbitration if the business of at
least one of the parties is abroad, the provisions of the International Arbitration Act of
Russia (art. 1 of which is said to be compatible with art. 1 of the Model Law) are not
mandatory. And given that according to the Federal Arbitration Tribunals in the Russian
Federation Act of 2002, any dispute arising from a civil law relationship could, with the
consent of the parties, be referred to domestic arbitration, the parties have more options
for the resolution of their dispute if the dispute has a foreign element to it (either
international commercial arbitration or domestic arbitration). In this case, the court
held that the dispute between the Russian and Italian companies could be heard in the
framework of domestic arbitration, since the Italian company had given its consent
thereto by signing the contract providing for the same.

16 a r tic l e 1 : s c o p e o f a pp l i c a ti o n
seat being abroad results from a third party interpreting the parties’
agreement to derive their common intention in that regard.
Under article 1(3)(b)(ii), if (a) any place where a substantial part of the
obligations of the commercial relationship is to be performed or (b) the
place with which the subject matter of the dispute is most closely con-
nected is in a State other than the parties’ place of business, the arbitra-
tion is again international. The first situation – a substantial part of the
obligation of the commercial relationship takes place in a place other
than the parties’ place of business – can cover a broad range of circum-
stances. It appears clear that subparagraph (b)(ii) encompasses what the
Rome I Regulation of the European Parliament and Council57 calls the
‘characteristic performance’ of the agreement (i.e. the obligation that
distinguishes a given contract from other contracts).58 But the Model
Law goes beyond that: if ‘a substantial part of the obligation of the
commercial relationship’ – i.e. any substantial part, and not necessarily
the most substantial part of the obligation – is performed in a place other
than the parties’ places of business, the arbitration is international. The
substantial part of the obligation that takes place abroad does not even
need to be the cause of the dispute. Instead, it is sufficient that ‘some
substantial activities were performed outside the place of business of one
of the parties’ for the arbitration to be international.59 It would in fact
57
Regulation (EC) No. 593/2008 of the European Parliament and the Council of
17 June 2008 on the law applicable to contractual obligations (Rome I).
58
Rome I Regulation, art. 4(1). See I. Kunda and C. M. Gonçalves de Melo Marinho, ‘Practical
Handbook on European Private International Law’, pp. 14, 15, http://old.just.ro/LinkClick
.aspx?fileticket=Mx%2BaR1qqfmU%3D&tabid=2285 (‘Ascertaining the characteristic per-
formance is based on the assessment of the socio-economic function of the contract in
a certain legal system in order to identify the contractual obligation distinguishing that
contract from other contracts’, and ‘[t]he question of characteristic performance has to be
decided on the basis of functional analysis of the parties’ main counter performances’).
59
See UNCITRAL, ‘2012 Digest of Case Law’ (n. 30), p. 9. See also Mitsui Engineering and
Shipbuilding Co. Ltd v. PSA Corp., Keppel Engineering Pte Ltd, High Court, Singapore
(2003) 1 SLR 446 (‘It was not disputed that Mitsui had places of business in Japan and
Singapore. An issue to be determined was which of those two places of business had
a closer relationship to the arbitration agreements.’ The court considered that it was
important to assess ‘the place where a substantial part of the obligations of the commer-
cial relationship was to be performed’ and as ‘Mitsui’s main responsibility was the design
works, which were to be done in Japan, the place of substantial performance by Mitsui
was therefore Japan’. The court also noted that ‘[e]ven if it had been concluded that
Mitsui’s place of business was Singapore, Mitsui’s substantial performance of its obliga-
tions was in Japan. It followed that the arbitration between Mitsui and Keppel was an
international one’. In its dicta, the court stated that ‘5(2)(b)(ii) refers to “any” place where
a substantial part of the obligations of the commercial relationship is to be performed . . .
and not the place of substantial performance. Thus, for example, even if the place of

4. paragraph 3 17
seem that the substantial part of the obligation that takes place abroad
does not even need to be performed by a party to the arbitration agree-
ment. This was noted in a case of the Singapore High Court (dicta):
The reference [in the arbitration act] to the performance of ‘a substantial
part of the obligations’ is not confined to performance by a party to the
arbitration agreement. It can be performance by a non-party for a party so
long as that performance constitutes a substantial part of the obligations
undertaken under the contract in dispute.60
Under article 1(3)(b)(ii), an arbitration can also be international if the

obligation giving rise to the dispute (the one ‘most closely connected’ to
the dispute) is situated outside the common place of business of the
parties. This criterion was applied by the Singapore High Court in a case
in which both parties’ places of business were in the same State and the
agreement was governed by the law of that State. The court found that the
arbitration was nevertheless international, as the place of substantial
performance of the contract (Yosu, Korea) and the place with which
the subject matter of the dispute was most closely connected (also Yosu,
Korea) were not the same as the parties’ common place of business.61
Similarly, although both parties’ places of business were in the same State,
the arbitration was deemed international as the activities that led to the
dispute (namely the overall supervision and development of the project)
took place abroad.62
It would appear that these cases fulfil both of the alternative criteria in
article 1(3)(b)(ii): the subject matter with the closest connection to the
dispute and a substantial obligation under the agreement in question
both took place abroad. Indeed, it would seem that where the second
criterion for internationality under paragraph 3 (subject matter with the
closest connection to the dispute is situated abroad) is fulfilled, the first
criterion (a substantial part of the obligation of the commercial relation-
ship takes place abroad) will often be so as well.
substantial performance by Mitsui were to be, say, Singapore, a substantial part of the
performance by Mitsui could still be in Japan. Conversely, if a substantial part of
performance by Mitsui was in Japan, it did not necessarily mean that Japan was the
place of substantial performance by Mitsui’).
60
Mitsui Engineering and Shipbuilding (n. 59), paras 30 et seq. (referencing Fung Sang
Trading Ltd v. Kai Sun Sea Products & Food Co. Ltd (1992) 1 HKLR 40).
61
CLOUT Case 208, Vanol Far East Marketing Pte Ltd v. Hin Leong Trading Pte Ltd, High
Court, Singapore (1996). And see UNCITRAL, ‘2012 Digest of Case Law’ (n. 30), p. 9.
62
‘2012 Digest of Case Law’, ibid. And see CLOUT Case 108, D. Heung & Associates,
Architects & Engineers v. Pacific Enterprises (Holdings) Co. Ltd, High Court – Court of
First Instance, Hong Kong (1995).

18 article 1 : sco pe of a pplication
4.3 Paragraph 3(c)

Finally, even if no element of the dispute is connected to a State other than
the one where all parties have their places of business, the Model Law still
allows the parties to agree that the ‘subject matter of the dispute is interna-
tional’ (article 1(3)(c)). The Model Law does not define what form the
parties’ agreement regarding the internationality of their dispute must take,
only that it be ‘express’. By comparison, article 7(2) states that an arbitration
agreement ‘shall be in writing’, suggesting that, a contrario, the parties’
agreement regarding the internationality of their dispute does not need to
be in writing. Thus, it could be argued that the parties have ‘expressly’
indicated their intention to have their arbitration treated as international if
they, for instance, subject their arbitration to: (1) the arbitration rules of an
arbitration institute situated abroad; (2) rules specifically dedicated to
international arbitration; or even (3) the rules of an institute that defines
itself as ‘international’ (e.g. the International Chamber of Commerce or the
London Court of International Arbitration). It would seem that the parties’
express consent is evidently present if the chosen arbitration rules provide
that, by selecting them, the parties are deemed to have qualified their
arbitration as international. But arguably the parties’ express consent
could result from their simply choosing international arbitration rules
even without the relevant rules containing such a provision.63
Article 1(3)(c), which reflects a strong pro-international arbitration
philosophy, has been criticised by some as being ‘imprecis[e]’64 and some
Model Law jurisdictions, such as Russia and Ukraine, have left it out from
their national arbitration laws. Yet, the paragraph was maintained when
the law was amended in 2006.
To conclude on paragraphs 1 and 3 of article 1, and borrowing the
words of the Indian Supreme Court, the Model Law has defined the term
‘international’ in a broad and expansive manner, allowing full sway to
‘party autonomy’: ‘it is open to the parties to give international flavour to
an otherwise purely domestic relationship, merely by choosing a situs of
arbitration abroad [article 1(3)(b)(i)] or even merely by labelling the
arbitration an international one [article 1(3)(c)]’.65
63
See Model Law, art. 2(e), which states that ‘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’.
64
P. Sanders, ‘What May Still Be Done in the World of Arbitration’ (1999) 65 Arbitration
260, 261.
65

5 . p ar agr ap h 4 19
That said, national legislations may, of course, impose limits to this

party autonomy by, e.g., requiring a certain type of nexus with a foreign
jurisdiction before the parties can benefit from the Model Law’s regime.
5. Paragraph 4
Article 1(4) clarifies the location of a party’s place of business in two specific
situations: (1) if the party has more than one place of business; or (2) if the
party has no place of business at all. Thus, paragraph 4 – which has remained
in its original form since the adoption of the Model Law in 1985 – provides
additional guidance for the purposes of paragraph 3. However, as with the
rest of article 1, this paragraph is silent on the definition of ‘place of business’.
A number of cases illustrate the different manners in which a party’s place of
business has been determined in the silence of an explicit definition, in
particular, in relation to the 1980 United Nations Convention on
Contracts for the International Sale of Goods (CISG).66
Pursuant to article 1(4)(a), where a party has several places of business,
the determinant place of business is that with the ‘closest relationship to
the arbitration agreement’. This specification is relevant if a party has two
or more places of business, one of which is in the same State as the other
party’s place of business, since,67 in such circumstances, the arbitration
does not qualify as international under article 1(3)(a) (although it could
still be international pursuant to other subparagraphs of article 1(3)).
Equally, of note is that the relevant place of business is described as being
that with which the arbitration agreement has the closest connection,
although – as noted by some authors – the proximity of a certain place
of business to the arbitration agreement is not necessarily evident.68
During the preparation of the original text of the Model Law in 1985, the
66
See e.g. CLOUT Case 746, Oberlandesgericht Graz (29 July 2004). The Appellate Court
considered the seller’s place of business to be the construction site where the contract had
been concluded and where the equipment was to be picked up by the buyer. CLOUT Case
155, Société Fauba v. Société Fujitsu, Court of Cassation (4 January 1995). According to
the Court, a business liaison office did ‘not have a corporate status of its own’ as it was
‘simply a commercial office set up in France by the German-regulated company Fujitsu’.
Therefore, it was not considered as the party’s place of business. CLOUT Case 106,
Austrian Supreme Court (10 November 1994). The Austrian Supreme Court stated that
‘“[p]lace of business” is every location from which [a party] participates in economic
transactions in a somehow independent manner’.
67
UN Doc. A/CN.9/264 (n. 4), para. 32.
68
A. Broches, ‘Commentary on the UNCITRAL Model Law (1990)’ in J. Paulsson and
L. Bosman (eds), ICCA International Handbook on Commercial Arbitration (Kluwer,
1990), p. 12, para. 26.

20 a rticle 1 : scope of appl ication
Working Group considered whether the seat of the head office should be
the decisive factor instead of the relationship to the arbitration agreement.
Although the seat of the head office was considered to provide a clearer
criterion, the criterion of the closest relationship was adopted for two main
reasons. First, it was thought to better reflect the expectations of the parties
and, second, it was consistent with article 10(a) of the CISG.69
Article 1(4) does not specify which criterion should be given prepon-
derant weight if several places of business are connected to the arbitration
agreement. In a commentary on the draft text of the Model Law, the
Secretary-General noted that an instance of a close relationship (although
not – the authors’ note – necessarily of the closest) with the arbitration
agreement would be one in which a contract, including its arbitration
clause, is fully negotiated by the branch or office, even if the contract is
subsequently signed at another place, such as the principal place of
business. This example indicates that the location of the principal place
of business (or head office) is irrelevant when it is evident that the
arbitration agreement has a closer nexus with another place of
business.70 It also demonstrates that the decisive criterion is the closest
relationship with the arbitration agreement, not with the dispute.
In Mitsui Engineering and Shipbuilding Co. Ltd v. PSA Corp., Keppel
Engineering Pte Ltd, the High Court of Singapore seems to have followed
to a certain extent the Secretary-General’s approach, although it did not
mirror it to the letter. The court considered the following criteria in
69
UN Doc. A/CN.9/264 (n. 4), para. 33. Pursuant to art. 10(a) of the CISG, for the purposes
of that Convention, ‘[i]f a party has more than one place of business, the place of business
is that which has the closest relationship to the contract and its performance, having regard
to the circumstances known to or contemplated by the parties at any time before or at the
conclusion of the contract . . .’ (emphasis added). For the definition of the closest
connection under the CISG, see CLOUT Case 360, Amstgericht Duisburg, 49 C 502/00
(13 April 2000). The court considered that the contract had its closest connection to Italy,
as the seller had its main place of business in Italy and formed the contract as part of its
commercial activity. CLOUT Case 1021, Foreign Trade Court of Arbitration attached to
the Serbian Chamber of Commerce T-4/05 (15 July 2008). The seller’s place of business
that, among others, conducted the negotiations, signed the contract, delivered the
machine and received the payments was considered the place of business with the closest
relationship to the contract. The seller’s other place of business was only involved in an
attempt to reach a settlement regarding an existing debt. Tribunal of International
Commercial Arbitration at the Russian Federation Chamber of Commerce and
Industry, Arbitration Proceeding 2/1995 (11 May 1997). The address that was specified
on a seal attached to the contract, and through which the performance of the contract,
namely the payment for the goods, was to be made (and in fact was made) was considered
to be the place of business with the closest relationship to the contract.
70
UN Doc. A/CN.9/264 (n. 4), para. 32.

5 . p ar agr ap h 4 21
determining the party’s place of business that had the closest connection
to the arbitration agreement:
(a) the place where a substantial part of the party’s commercial obliga-
tions was to be performed under the agreement;
(b) the location of the person in charge of the contract negotiations; and
(c) the party’s address used in the agreement and to which any formal
communication was to be sent.71
The High Court also noted that the governing law and the place of
arbitration were irrelevant, as the question was not which place had the
closest relationship to the agreement in general, but which place of
business of the party had the closest relationship.72
Finally, pursuant to article 1(4)(b), if a party does not have a place of
business, the relevant place is that of his or her habitual residence. This
provision becomes relevant if a party to the arbitration operates as a private
person or under a trade name. The Model Law does not provide for
a definition of habitual residence and the test for determining such
a residence varies among jurisdictions and under different regulations.
Therefore, although habitual residence is a notion used in several conven-
tions and regulations concerning, inter alia, conflicts of law and family
law,73 those conventions and regulations do not provide unequivocal
guidance for the purposes of article 1(4)(b) of the Model Law.74 A fuller
inquiry into the definition of habitual residence is provided in the com-
mentary of article 3 in this volume. Using the key jurisprudence in the
context of the Brussels II bis regulation, habitual residence may be defined
as a place serving as the ‘center of someone’s interests’ if it is deemed that
there was a true intention by the person establishing this centre to treat the
said place as habitual.75 To these authors’ knowledge, no case law addres-
sing article 1(4)(b) of the Model Law is readily available.
71
Mitsui Engineering and Shipbuilding (n. 59), paras 38–41.
72
Ibid., para. 40.
73
See e.g. Rome I Regulation, which contains numerous references to a party’s habitual
residence to determine the applicable law (e.g. arts 4, 5, 6, 7, 8). See also Regulation (EC)
No. 864/2007 of the European Parliament and the Council of 11 July 2007 on the law
applicable to non-contractual obligations (Rome II) (e.g. arts 4, 5, 10, 12).
74
For example, pursuant to art. 19(1) of Rome I Regulation, the habitual residence of
a natural person acting in the course of his business activity shall be his principal
place of business. This definition is circular for the purposes of the Model Law as art.
1(4)(b) is specifically applicable to situations where the person has no place of
business.
75
Case C-90/97, Swaddling v. Adjudication Officer [1999] 2 FLR 184, paras 29, 34.

22 a r t i c l e 1: sc o p e o f a p p l i c a ti o n
6. Paragraph 5
Article 1(5) enables a country to be a Model Law country and yet exclude
certain disputes from arbitration or from the scope of the Model Law.
Thus, article 1(5) enhances the attractiveness of the Model Law, in
particular among jurisdictions that take a more conservative approach
to arbitration than that taken by the Model Law.
Article 1(5) concerns situations where (1) disputes may not be sub-
mitted to arbitration at all under other legislation of the Model Law
country or (2) disputes may be submitted to arbitration only according
to other provisions than the ones provided in the Model Law.
The types of claims and disputes that are not arbitrable at all, or the
arbitrability of which is limited, differ from State to State. Typically, they
relate to the protection of weak parties (such as employees76 or
consumers77) or of public interests (such as taxation,78 environmental
matters79 or public procurement80).
76
See e.g. Belgian Judicial Code 1967, art. 1676.5, which provides that ‘an arbitration
agreement entered into prior to any dispute that falls under the jurisdiction of the
Labour Court, pursuant to articles 578 through 583 [of the Belgian Judicial Code], shall
be automatically null and void’.
77
For instance, section 11.1 of the Consumer Protection Act of Québec (CQLR c P-40.1)
provides that ‘[a]ny stipulation that obliges the consumer to refer a dispute to
arbitration . . . is prohibited’. In New Zealand, an arbitration agreement is enforceable
against a consumer only if ‘the consumer, by separate written agreement, certifies that,
having read and understood the arbitration agreement, the consumer agrees to be bound
by it’ and the arbitration agreement discloses that the consumer is waiving certain
protections (New Zealand Arbitration Act 1996 No. 99, s. 11).
78
See Case No. А42-6967/2008, Federal Arbitrazh Court of North-Western District (cassa-
tion court) (4 December 2009). The claimant sought recovery of funds and alleged that
the respondent incorrectly applied the VAT rate, which caused the claimant to pay the
respondent more than it should have paid. The claimant further argued that the dispute is
non-arbitrable as it is regulated by tax law. The court agreed with the claimant and ruled
that the dispute was to be resolved by State courts. However, as noted by certain
authorities, courts and arbitral tribunals nowadays generally uphold the arbitrability of
tax disputes. See Born (n. 34), p. 1035.
79
For example, Chilean courts may refuse to enforce arbitration clauses relating to environ-
mental issues as they are considered to be a part of Chilean public order, which is not
arbitrable. See A. L. Jana, ‘National Report for Chile (2018)’ in J. Paulsson and L. Bosman
(eds), ICCA International Handbook on Commercial Arbitration (Kluwer, 2018), p. 16.
Disputes arising from relations connected with compensation of harm to the environment
are also considered non-arbitrable in the Russian Federation. See B. Romanovich
Karabelnikov, ‘National Report for Russian Federation (2018)’ in Paulsson and Bosman,
ibid., p. 21.
80
See, for instance, the Supreme Arbitrazh Court, Resolution 11535/13 (28 January 2014),
Major Repairs and Construction Agency at the Health Department of Moscow
v. ArbatStroy. The court declared that public procurement disputes are non-arbitrable

6. p ar agr ap h 5 23
National courts have typically required a clear and express statement

of legislative intention before concluding that a subject is not arbitrable in
an international setting.81 As a result, as confirmed by certain court
decisions,82 the existence of national legislation providing that certain
matters belong to the jurisdiction of a specific court, or should follow
a prescribed procedure, does not automatically render the Model Law
inapplicable (unless the legislation explicitly precludes international
arbitration or sets aside the application of the Model Law). Some States
that have enacted the Model Law have made this position clear by adding
explicit wording to that effect to their arbitration laws.83
Further, the non-arbitrability doctrine has evolved materially over
time. The historic scepticism about the arbitral process’s ability to resolve
particular categories of disputes has eroded substantially in recent
decades.84 In the 1950s and 1960s, judicial decisions in a number of
jurisdictions adopted expansive interpretations of national regulatory
regimes that rendered various categories of commercial disputes entirely
or partially non-arbitrable.85 Nowadays, many jurisdictions impose only
very few and limited restrictions on the subject matters that may be
arbitrated, in particular with regard to international matters (as opposed
to domestic ones).86
While the Model Law allows States to narrow its applicability, it also
enables the States to expand the law’s scope from that prescribed in
article 1. Indeed, as described in the explanatory note to the Model Law,
under Russian law. The dispute concerned a contract concluded between the Major
Repairs and Construction Agency and ArbatStroy in which ArbatStroy undertook to
carry out works in State hospitals in Moscow. The court held that public procurement
contracts are of public nature and may only be tried before State courts.
81
Born (n. 34), p. 958.
82
UNCITRAL, ‘2012 Digest of Case Law’ (n. 30), p. 11, para. 12, and the cases referred to
therein. See e.g. CLOUT Case 526, Union Charm Development Ltd v. B+B Construction
Co., Ltd (in which the claimant applied for an order allowing it to proceed with arbitration
despite the defendant being in liquidation). The liquidator argued that under the applic-
able national law, the usual method of proceeding in such circumstances was not by
litigation or arbitration, but by submitting a proof of debt. The court, however, ordered
the parties to proceed with arbitration.
83
For example, the Arbitration Act 1996 of New Zealand provides that ‘[t]he fact that an
enactment confers jurisdiction in respect of any matter on the High Court or the District
Court but does not refer to the determination of that matter by arbitration does not, of
itself, indicate that a dispute about that matter is not capable of determination by
arbitration’. The arbitration laws of Singapore and Malaysia contain similar provisions.
84
Born (n. 34), p. 957.
85
Ibid., p. 1039.
86
Ibid.

24 a r t i c l e 1 : sc o p e o f a p p l i c a t i o n
while the Model Law was ‘designed with international arbitration in

mind, it offers a set of basic rules that are not, in and of themselves,
unsuitable to any other type of arbitration’.87 Several States, such as
recently Hong Kong, have extended the application of the Model Law
to, for example, domestic arbitrations. Thus, the Model Law may con-
stitute a suitable framework for disputes that were not originally
intended to be in its scope of application.
87
Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on International
Commercial Arbitration as Amended in 2006, para. 10, www.uncitral.org/pdf/english/
texts/arbitration/ml-arb/MLARB-explanatoryNote20-9-07.pdf.

Article 2
Definitions and Rules of Interpretation

p i e tr o o r to l a n i
For the purposes of this Law:

(a) ‘arbitration’ means any arbitration whether or not administered by
a permanent arbitral institution;
(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.
1. Background and Travaux Préparatoires

During the drafting of the Model Law, article 2 was a relatively uncon-
troversial provision.1 The drafters never meant to include an exhaustive
list of definitions for all the terms and notions that the Model Law refers
to, or to set forth an articulate body of rules determining how the Law
should be interpreted. Less ambitiously, the Commission simply aimed at
offering some basic clarifications, in order to avoid certain foreseeable
1
A. Broches, ‘Commentary on the UNCITRAL Model Law’ in J. Paulsson and L. Bosman
(eds), ICCA International Handbook on Commercial Arbitration (Kluwer, 1990), Supp.
No. 11, pp. 1, 25.
25

26 article 2: definitions and r ules of interpretation
misunderstandings and guide the interpretation of the Law. Article 2,

hence, is best understood as a set of ‘targeted interventions’, addressing
specific points without any pretence at completeness. It must be also noted
that, despite its title (‘Definitions and rules of interpretation’), article 2 is
not the only provision of the Model Law where definitions can be found:
the notion of ‘arbitration agreement’, for instance, is defined at article 7(1),
and the notion of ‘interim measure’ is defined in article 17(2).
While the following sections in this chapter will scrutinise the mean-
ing and consequences arising from the definitions and rules of inter-
pretation contained in article 2, it is interesting to have a preliminary
look at the preparatory materials, which offer insights on possible
further definitions that the Commission initially considered, but
eventually discarded.
Notably, the Working Group and the Commission discussed a possible
definition of the term ‘award’ in detail. The scope of the notion of award
has an obvious practical relevance, inter alia because it affects whether the
parties have access to setting aside procedures to challenge
a determination made by the tribunal.2 The Working Group considered
a draft that defined the award as:
a final award which disposes of all issues submitted to the arbitral tribunal
and any other decision of the arbitral tribunal which finally determines
any question of substance or the question of its competence or any other
question of procedure but, in the latter case, only if the arbitral tribunal
terms its decision an award.3
The final part of the definition, which referred to decisions determining

questions of procedure, gave rise to disagreements. It was noted, in
particular, that the international legal framework applicable to
arbitration,4 and the New York Convention specifically, did not offer
2
Broches (n. 1), pp. 26–27; H. M. Holtzmann and J. E. Neuhaus, A Guide to the UNCITRAL
Model Law on International Commercial Arbitration: Legislative History and Commentary
(Kluwer, 1989), pp. 153–154. See the comments of Mexico, Austria, Norway, Poland and
Japan in Analytical Compilation of Comments by Governments and International
Organizations on the Draft Text of a Model Law on International Commercial
Arbitration, UN Doc. A/CN.9/263 (19 March 1985), 56, para. 7.
3
Working Group Report on the Work of Its Seventh Session, UN Doc. A/CN.9/246
(6 March 1984), para. 192.
4
ICSID arbitration constitutes a partial exception in this respect, as the Washington
Convention refers to ‘the award’ in the singular, entailing that the name is only applicable
to the decision, whereby the arbitrators deal with every question submitted to the tribunal:
see Convention on the Settlement of Investment Disputes between States and Nationals of
Other States, arts 48–49.

1 . b a c k g r o u n d a n d trav aux p ré p a r a t o i r e s 27
any conclusive indication as to whether the notion of award should

extend to decisions that are procedural in nature.5 Furthermore, the
decision to entrust the tribunal with the power to decide whether
a given procedural decision should qualify as an award was incompatible
with the practice of many State courts, which adopt a ‘substance over
form’ approach and may disregard the formal label that the tribunal has
appended to the decision.6 As a final result, the Commission did not
include a definition of ‘award’, consistently with the solution adopted in
the New York Convention.
Another definition that the Working Group and the Commission
considered, but eventually discarded, concerned the expression ‘this
State’, which repeatedly occurs throughout the Model Law to indicate
the State adopting the Model Law. Mexico, in particular, suggested
the adoption of a definition, but the proposal was not retained.7 The
absence of a definition has not seemingly caused problems to date.
A similar lexical debate concerned the use of the word ‘State’ in article
2. The draft text considered by the Commission used the word ‘country’,
rather than ‘State’: more specifically, a ‘court’ was defined as ‘a body or
organ of the judicial system of a country’.8 The word ‘country’ had
initially been preferred in order to avoid the misconception that in
federal jurisdictions the Model Law would only refer to ‘state courts’,
and not to ‘federal courts’.9 Eventually, however, the word ‘State’ was
preferred, in order to ensure consistency between article 2 and the other
provisions of the Model Law.10
Germany proposed that article 2 include a definition of ‘appointing
authority’, since the notion was then referred to in article 11 of the Model
Law.11 The final version of article 11, however, ruled out the need for
such a definition, since it simply referred to article 6, which in turn left it
to the enacting States to identify the court or other authority competent
to perform appointing functions.
5
Report of UNCITRAL on the Work of Its Eighteenth Session, UN Doc. A/40/17
(21 August 1985), paras 48–49.
6
Evergreat Construction Co. Pte Ltd v. Presscrete Engineering Pte Ptd [2006] 1 SLR 634; see
also comment on art. 17, section 3.3.
7
Analytical Compilation (n. 2), 56, para. 4.
8
Emphasis added; see Analytical Commentary on Draft Text of a Model Law on
International Commercial Arbitration, UN Doc. A/CN.9/264 (25 March 1985), 14. For
an analysis of the definition of ‘court’, see below, section 4.
9
UN Doc. A/CN.9/264 (n. 8), 15.
10
Ibid., 26.
11

28 articl e 2 : d efinitions an d r ules of interpretation
Finally, India proposed to include a definition of ‘party’ as a ‘natural

or juridical person who has entered into an arbitration agreement,
irrespective of whether that person is named or identified in the
agreement’.12 This proposal entailed a harmonised approach as to the
subjective scope of application of arbitration agreements across all
jurisdictions enacting the Model Law; as such, while certainly ambi-
tious, it was also problematic, as it disregarded the circumstance that
different legal systems have divergent views as to the extent to which
a person who is not ‘named or identified’ in an agreement may be
nonetheless bound by it (e.g. through doctrines like piercing the cor-
porate veil, or group of companies). Furthermore, the definition at hand
touched upon a number of general contract law-related topics (such as
agency and the effects of a contract vis-à-vis non-signatories) whose
regulation was beyond the scope of the Model Law. The proposal was
not retained.
2. Article 2(a): ‘Arbitration’

It has been aptly noted that the definition of arbitration contained in article
2(a) is, in fact, ‘not a definition at all’, but a simple clarification
concerning ad hoc arbitration.13 This ‘minimalistic’ solution, however,
was only adopted after some initial attempts to devise a complete definition
had not yielded conclusive results. At its twelfth session, the Commission
had decided that the Model Law would provide a uniform regime applic-
able to ‘international commercial arbitration’;14 subsequently, the
Secretariat noted that a definition would be desirable, since the term
‘expresses the “heart of the subject-matter” or activity governed by the
model law’.15 Against this background, the Working Group considered
inserting a detailed definition, modelled after the European Convention on
International Commercial Arbitration.16 It was noted that the notion of
12
13
Holtzmann and Neuhaus (n. 2), p. 150.
14
Note by the Secretariat: Further Work in respect of International Commercial
Arbitration, UN Doc. A/CN.9/169 (11 May 1979), para. 6.
15
Report of the Secretary-General: Possible Features of a Model Law on International
Commercial Arbitration, UN Doc. A/CN.9.207 (14 May 1981), para. 29.
16
Note by the Secretariat: Model Law on International Commercial Arbitration: Draft
Articles 1 to 24 on the Scope of Application, Arbitration Agreement, Arbitrators, and
Arbitral Procedure, UN Doc. A/CN.9/WG.II/WP.37 (submitted to the Working Group
on International Contract Practices at its Fourth Session, 4–15 October 1982), draft art. 1
(B)(2).

2 . a r t i c l e 2( a ) : ‘arbitration ’ 29
‘arbitration’ should be limited to those types of arbitration that are

based on the parties’ consent, rather than on a compulsory statutory
requirement to arbitrate.17 It was also observed that arbitration should
be kept distinct from other types of out-of-court adjudicative dispute
resolution, which may resemble it superficially, but which are structu-
rally different.18
Despite the overall agreement as to the desirability of some basic
boundaries limiting the scope of application of the Model Law, providing
an exact definition of the words ‘international’, ‘commercial’ and ‘arbi-
tration’ proved challenging. As far as internationality was concerned, the
Working Group discussed whether the requirement should be assessed in
light of the place of business of the parties, the subject matter of the
dispute, the existence of commercial interests connected to more than
one State, the parties’ agreement to qualify a certain transaction as
international, or a combination of such factors.19 As for the qualifier
‘commercial’, some observers suggested a restrictive interpretation, so as
to exclude ‘public law issues’,20 while others argued that an arbitration
should be regarded as commercial if the subject matter ‘is in the widest
sense of a commercial nature’.21 In addition, the notion of arbitration
triggered a debate concerning not only the aforementioned quasi-arbitral
mechanisms existing in some national legal systems, but also the question
of whether administered and ad hoc arbitration would be equally covered
by the Model Law.22
In order to minimise the problems arising out of the attempts to devise
a precise definition, the Working Group prepared a draft clarifying what
the word ‘arbitration’ included, rather than specifying what it, in fact,
meant. The draft provision read as follows:
‘(a)rbitration’ includes
(a) Arbitration agreements;
(b) The preparation and conduct of arbitration proceedings based on
such agreements whether or not administered by a permanent
arbitration institution; and
(c) The arbitral award resulting therefrom.
17
UN Doc. A/CN.9.207 (n. 15), para. 39.
18
Ibid., para. 29, with reference to the Italian ‘arbitrato irrituale’, the Dutch ‘bindend advies’
and the German ‘Schiedsgutachten’.
19
Analytical Compilation (n. 2), 11–14, paras 18–29.
20
Ibid., para. 12.
21
Ibid., para. 14.
22
Ibid., para. 11.

30 article 2: d efinitions and r ules of interpretation
The Commission, however, noted that the draft constituted a mere ‘table
of contents’, and therefore discarded it as superfluous.23 The only clar-
ification that was maintained in article 2(a) concerns the fact that, for the
purposes of the Model Law, the notion of arbitration covers ‘any arbitra-
tion whether or not administered by a permanent arbitral institution’.
This specification may nowadays come across as obvious, as most legal
systems in the world enable private parties to use institutional or ad hoc
arbitration without particular restrictions. It must, however, be kept in
mind that, at the time when the Model Law was drafted, some jurisdic-
tions (especially in centrally planned economies) conceived of arbitration
as a state-controlled procedure, with institutions established by or linked
to the State, conversely limiting or excluding the possibility to conduct
arbitral proceedings on an ad hoc basis.24 Therefore, since the Model Law
aimed at setting the transnational standard for a friendly regulation of
arbitration at the municipal level, it was important to specify that the
decision whether or not to involve an administering institution depended
entirely on the parties’ choice.
3. Article 2(b): ‘Arbitral Tribunal’

The definition of ‘arbitral tribunal’ set forth in article 2(b) avoids two
types of misunderstandings. First, it specifies that the expression can
equally designate a sole arbitrator or a panel of arbitrators. Second, it
clarifies that whenever the Model Law refers to the ‘tribunal’, it alludes to
a private adjudicative body and not to a court of the State.
From the first point of view, the Model Law leaves the parties com-
pletely free to determine the number of arbitrators.25 ‘Tribunal’, hence,
should not be read as necessarily designating a panel composed by more
than one person: the word is essentially a conceptual placeholder, used by
23
Fifth Session, UN Doc. A/CN.9/233 (22 February–4 March 1983), paras 50–51.
24
J. N. Hazard, ‘Production Discipline: The Role of State Arbitration in the USSR’ (1982) 4
Review of Socialist Law 297. Limitations on the availability of ad hoc arbitration still exist
in some jurisdictions: see e.g. P. Ortolani, ‘The Role of Arbitration Institutions in China’
(2013) 4 TDM.
25
See art. 10. There are, however, Model Law jurisdictions where this freedom has been
partially restricted: art. 1684 of the Belgian judicial code, for instance, expressly prohibits
the constitution of tribunals with an odd number of arbitrators. If the parties have
provided for an even number of arbitrators, an additional arbitrator is appointed; see
M. Draye, ‘Article 1684’ in N. Bassiri and M. Draye (eds), Arbitration in Belgium (Kluwer,
2016), p. 115.

5. ar ti cle 2(d) 31
the Model Law to articulate rules that are generally applicable in the same
way, irrespective of whether the dispute will be decided by a sole arbi-
trator or by a panel comprising more than one (typically three)
individuals.
From the second point of view, the Model Law aims at avoiding
misunderstandings that may arise out of linguistic peculiarities and
nuances. In some languages, such as French or Spanish, the word ‘tribu-
nal’ is commonly used to identify a court of the State, rather than an
arbitral panel.26 For this reason, article 2(b) clarifies that, in the context of
the Model Law, ‘tribunal’ is a mere abbreviation of ‘arbitral tribunal’ and
never designates a court forming part of the judicial architecture of
a State.
4. Article 2(c): ‘Court’

The definition of ‘court’, like the one of ‘arbitral tribunal’, is inserted
in article 2 with the main purpose of avoiding misunderstandings. In
this case, however, the confusion may derive not from the character-
istics of different national languages, but from the denominations of
many widely used arbitral institutions, which contain the word ‘court’
(e.g. ‘International Court of Arbitration of the International Chamber
of Commerce’ or ‘London Court of International Arbitration’).27 The
Model Law, therefore, clarifies that whenever the word ‘court’ is used,
reference is made to a body or organ of the judicial system of a State,
rather than to the institutions administering the arbitration.
5. Article 2(d): Party Autonomy and Third-Party

Determination
The first two rules of interpretation contained in article 2 deal with the
role of party autonomy in arbitration. Both of these rules were initially
indicated by the Secretariat as general assumptions under which an early
draft of the Model Law had been developed.28 In later drafts, the assump-
tions were recast as explicit rules of interpretation, so as to exclude
26
UN Doc. A/CN.9/264 (n. 8), 15, para. 1.
27
Ibid.
28
Note by the Secretariat: Model Law on International Commercial Arbitration: Revised
Draft Articles I to XXVI, UN Doc. A/CN.9/WG.II/WP.40 (submitted to the Working
Group on International Contract Practices at its Fifth Session, 22 February–
4 March 1983), para. 4.

32 a r t i c l e 2: d efi n i t i o n s an d r u l e s of in t e r p r e t a t i o n
doubts as to how the parties may in practice make use of the autonomy
that the Model Law affords them.29
The first rule of interpretation specifies that when a provision of the
Model Law leaves the parties free to determine a certain issue, this
freedom generally includes ‘the right . . . to authorize a third party,
including an institution, to make that determination’. This clarification
avoids the risk of overly restrictive interpretations of the Model Law’s
provisions that empower the parties to make a determination. It is
particularly important to ensure that the disputants be allowed to refer
to the determination of a third party, as this is one of the typical ways in
which private autonomy expresses itself in arbitration. In other words,
there are numerous scenarios where the parties avoid a deadlock in the
arbitration by entrusting a third party (typically an arbitral institution) to
make a determination for them (e.g. appointing an arbitrator); relying on
a trusted third party, such as an administering institution, allows
a determination to be made, and hence the arbitration to proceed further,
even in cases where the parties would factually be unable to reach any
type of agreement on their own. Therefore, it would be certainly detri-
mental for the practice of arbitration if the Model Law were interpreted in
such a way as to require a direct agreement between the parties to the
exclusion of any other entity.
There is an interesting exception to the rule set forth in article 2(d); the
freedom to authorise a third party to make a determination does not
extend to the choice of the rules applicable to the substance of the dispute
under article 28 of the Model Law. The Commission added this carve-out
on the suggestion of the Hague Conference on Private International Law.30
According to the legislative history, this choice was based on two ratio-
nales. First, it was observed that the nature of the parties’ freedom to select
the applicable law did not encompass the possibility to empower a third
party to make such a determination.31 The implicit reasoning behind this
statement seems to be a differentiation between two apparently analogous
types of private autonomy: in a nutshell, while the parties’ power to
determine a wide range of procedural matters may on the surface seem
similar to their autonomy to choose the applicable substantive law, the
latter situation is different, as it has an impact on the merits of the dispute
which the former does not have. Second, it was observed that if the parties
29
UN Doc. A/CN.9/233 (n. 23), paras 101–102.
30
UN Doc. A/CN.9/SR.323 (14 June 1985), cited in Holtzmann and Neuhaus (n. 2), p. 177.
31
Ibid., with specific reference to the International Chamber of Commerce; see also UN
Doc. A/40/17 (n. 5), 47, para. 242.

6. ar t i cl e 2(e) 33
allowed the arbitrators to select the applicable law, this would lead to
a circular result, as in accordance with article 28 the tribunal must decide
the dispute in accordance with the law chosen by the parties. This line of
argument is not particularly convincing: in principle, given an agreement
whereby the arbitrators are entrusted with the task of selecting the applic-
able law, the ‘law chosen by the parties’ for the purposes of article 28 could
be understood to be any law that the arbitrators have indicated. At any rate,
the exclusion of article 28 from the range of determinations that can be
deferred to a third party does have the positive effect of enhancing legal
certainty. This is especially true in cases where the parties fail to specify the
law applicable to the merits. Although it should be noted that the tribunal
is not bound by the conflict rules of the seat and enjoys a certain margin of
discretion, it is at the very least required to determine the applicable
conflict of laws rules first, pursuant to article 28(2), rather than simply
apply any substantive law of its choice.32
6. Article 2(e): Incorporation by Reference

of Arbitration Rules
Although the parties are in principle able to reach an agreement on many
aspects of the arbitration, they are often unlikely to do so directly. In
practice, it is common for the disputants to simply refer to a set of
arbitration rules, which determine in detail how the arbitration will
function and develop; the exertion of private autonomy, thus, frequently
consists of a simple reference to a pre-existing body of rules, which the
parties decide to adopt. For this reason, it is particularly important to
avoid restrictive interpretations of the Model Law. Were national courts
allowed to freely hold that the parties only reach a valid agreement if they
32
Given the fact that art. 2(d) expressly excludes the choice of the law applicable to the
merits, the question arises whether a set of arbitration rules containing a provision for the
identification of the law applicable to the merits more liberal than art. 28(2) can be
applied, if the arbitration is seated in a Model Law jurisdiction. Under art. 22(3) of the
2014 LCIA Rules, for instance, in the absence of party choices, the tribunal ‘shall apply the
law(s) or rules of law which it considers appropriate’. Where such a rule is applied in an
arbitration seated in a State that has enacted the Model Law, this would practically
amount to the parties agreeing (indirectly, pursuant to art. 2(e)) that the arbitrators
have the power to apply any law that they consider appropriate. In principle, this result
would be difficult to reconcile with the carve-out of art. 2(d). It must be noted, however,
that art. 28(2) of the Model Law and provisions such as art. 22(3) of the LCIA Rules
pursue the same goal of ensuring that the tribunal (failing any choice by the parties) has
an adequate margin of manoeuvre when determining the applicable law; in practice,
therefore, there does not seem to be a real conflict of incompatible legal standards.

34 article 2: definitions and r ules of interpretation
expressly negotiate and reach a consensus on a ‘one-off’ basis, a great deal

of the flexibility that arbitration aims to ensure would be practically lost
to protect an overly broad understanding of the doctrine of unconscion-
ability. Article 2(e) prevents this type of problem by setting forth a rule of
interpretation whereby whenever the Model 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’.33
An interesting interaction can be observed between article 2(e) and
article 2(d) of the Model Law, as the agreement to arbitrate may refer to
rules which in turn authorise a third party to make a certain
determination;34 the rules, for instance, may give the administering institu-
tion the power to appoint arbitrators,35 or to fix the place of arbitration.36 In
these cases, the provisions enter into a circular interaction: the reference to
the arbitration rules enables an authorisation for the purposes of article 2
(d), and such authorisation in turn constitutes an agreement for the
purposes of article 2(e).
Needless to say, the parties remain free to reach an agreement on their
own, without making reference to pre-existing rules. In some cases, the
parties may have selected no rules at all; in other circumstances, the
agreement may provide for the applicability of a given set of rules, but
the parties may make arrangements of their own on aspects which are not
covered by the rules, or derogating from the default provision included in
the rules they have selected.37
33
In practice, the doctrine of incorporation by reference is routinely applied by domestic courts
to the arbitration rules which the parties have referred to in their agreement: see Howard
Appel and Others, Plaintiffs v. Concierge Auctions, LLC, and Others, Defendants, No. 17-CV
-02263-BAS-MDD, 2018 WL 1773479, 9 (SD Cal., 13 April 2018) (‘the Court recognizes that
requiring parties to attach arbitration rules to their agreements to avoid a finding of
procedural unconscionability would place arbitration contracts on a different footing than
other contracts as to the doctrine of incorporation by reference, which is prohibited by the
Supreme Court’); Wiseley v. Amazon.com, Inc., 709 Fed. Appx 862 (9th Cir. 2017); Lane
v. Francis Capital Mgmt LLC, 168 Cal. Rptr 3d 800, 813 (2014); Tony Do v. CashCall, Inc.,
SACV 13–01242 JVS (RNBx), 2013 WL 12116340, 6 (CD Cal. 2013).
34
The Commission expressly acknowledged the existence of an overlap between the two
provisions: UN Doc. A/CN.9/264 (n. 8), 16, para. 5.
35
See e.g. ICC Rules, art. 12.
36
Ibid., art. 18.
37
Most rules are not mandatory in nature: they only set forth a fall-back regime that is
applicable unless the parties reach a different agreement. Whenever this is the case, the
incorporation by reference of a set of rules in the agreement is not incompatible with the
conclusion of a divergent agreement concerning a certain aspect of the arbitral
proceedings.

7. article 2(f) 35
7. Article 2(f): Applicability of Model Law Provisions

to Counterclaims
Whenever two or more parties have entered into an agreement to
arbitrate, any of them normally has the power to commence arbitral
proceedings and bring a claim against the other one(s); hence, it is in
practice not infrequent for more than one party to put forth claims in the
same arbitration.38 The labels that are normally appended to these claims
presented by opposing parties (‘claim’ and ‘counterclaim’) are nothing
more than an acknowledgement of the chronological order in which the
actions have been brought in the arbitration, and they do not entail any
type of structural differentiation. For this reason, the clarification offered
by article 2(f) is not surprising: whenever the Model Law refers to
a ‘claim’, it also applies to counterclaims, and whenever it refers to
a defence, it also applies to a defence to a counterclaim.39 This rule of
interpretation confirms that the chronological order of different claims
brought by opposing parties is merely accidental, and does not presup-
pose any sort of priority or hierarchical relationship between them.
Article 2(f) mentions two exceptions, i.e. two cases where a provision
concerning a claim is not equally applicable to a chronologically subse-
quent counterclaim: article 25(a) and article 32(2)(a). In order to under-
stand the rationale behind these carve-outs, it is necessary to consider
that the basic purpose of any arbitral proceeding is to lead towards a final
decision, whereby the tribunal determines whether or not to grant the
relief that the parties have sought. Therefore, there is simply no reason
for an arbitration to proceed if none of the parties is any longer pursuing
a claim: there must be at least one claim to be decided for an arbitration to
38
The situation may be less clear in cases where consent to arbitration is not enshrined in an
agreement signed by the parties, but in a standing offer to arbitrate made by one of the
parties and accepted by the other, as routinely happens with bilateral investment treaties:
see e.g. ICSID Case No. ARB/06/1, Spyridon Roussalis v. Romania, Award,
7 December 2011; ICSID Case No. ARB/10/3, Metal-Tech v. Uzbekistan, Award,
4 October 2013; Al-Warraq v. Indonesia, Final Award of 15 December 2014; ICSID
Case No. ARB/08/6, Perenco v. Ecuador, Interim Decision on the Environmental
Counterclaim, 11 August 2015; ICSID Case No. ARB/07/26, Urbaser SA and Consorcio
de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. Argentina, Award,
8 December 2016.
39
The Working Group initially discussed counterclaims when addressing art. 23, on the
statements of claim and defence. Rather than adding a separate article on counterclaims,
it was decided to simply add a rule of interpretation to art. 2, clarifying that the rules
concerning the claim are applicable mutatis mutandis to a counterclaim: see UN Doc. A/
40/17 (n. 5), 39, para. 201.

36 article 2 : d efinitions and r ules of interpretation
take place. Both article 25(a) and article 32(2)(a) acknowledge this basic
functional link between the existence of a claim and the continuation of
the arbitration.
Pursuant to article 25(a), if the claimant fails to communicate his
statement of claim in accordance with article 23(1) of the Model Law,
the tribunal must terminate the proceedings. The reason for this rule is
that, if no statement of claim has been communicated, there is effectively
no claim in the arbitration, and hence the proceedings have no subject
matter and no reason to go on. For the same reason, however, the rule is
not transposable to counterclaims: even if the statement of claim for
a counterclaim is missing, the proceedings still have a subject matter (the
original claim), and should therefore not be discontinued.
Article 32(2)(a) deals with the partially different scenario where a party
regularly brings a claim and communicates a statement of claim, but then
decides to withdraw it at a later stage. Once again, if that is the only claim
to have been put forth in the proceedings, the arbitration no longer has
any subject matter and the tribunal should terminate the proceedings.
Conversely, if the respondent brings a counterclaim and then withdraws
it, the arbitrators are still required to decide on the original claim that has
not been withdrawn, and the arbitration should therefore continue.
Despite the similarity between article 25(a) and article 32(2)(a), the
latter contains a significant specification that is missing in the former:
once a party has communicated the statement of claim, the other party
(against whom the claim was brought) can object to its withdrawal. Even
if the claimant no longer has the intention to pursue the claim, the
respondent may wish that the proceedings continue, e.g. in order to
obtain a negative declaratory award on the merits clarifying that the
original claimant is not entitled to compensation. In this scenario, the
tribunal must evaluate whether the party objecting to the termination of
the proceedings has ‘a legitimate interest . . . in obtaining a final settle-
ment of the dispute’; if that is the case, the arbitration will proceed,
despite the original claimant’s intention to withdraw the claim.
In light of this legislative framework, the question arises as to what the
inapplicability of article 32(2)(a) to counterclaims actually means.
Certainly, article 2(f) entails that the arbitral proceedings should not be
terminated when a counterclaim is withdrawn, as long as the arbitration
still has a subject matter (the original claim). It is doubtful, however,
whether article 2(f) also prevents the original claimant from objecting to
the respondent’s request to withdraw a counterclaim. In this situation,
the arbitration is bound to proceed, whether the counterclaim is

7. article 2(f) 37
withdrawn or not; objecting to withdrawal, then, does not serve the

purpose of avoiding the termination of the proceedings. Nonetheless,
the original claimant may have an interest to have the counterclaim
adjudicated and rejected on the merits, so as to ensure preclusive effects
against future possible arbitration or litigation. It would be fair, therefore,
to enable the original claimant to seek a negative declaratory award
concerning the unfoundedness of the counterclaim, by allowing either
an opposition pursuant to article 32(2)(a), or a supplementation of the
interested party’s claim according to article 23(2). Such a solution would
be consistent with the basic idea that, once a claim is submitted for the
tribunal’s consideration, the party who put it forth no longer has com-
plete control over it, even when it is formally labelled as a counterclaim.

Article 2A
International Origin and General Principles

ilias bantekas
(1) In the interpretation of this Law, regard is to be had to its interna-

tional 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.

Article 2A was first adopted in 2006 and was inspired and modelled
after article 7 of the Convention on the International Sale of Goods
(CISG) in an attempt to promote and enhance the uniformity of the
Model Law.1 Despite its importance, one finds very little discussion in
the 2006 travaux,2 and hence the assumption must have been that the
principles enunciated in article 2A were either self-evident or that
they were already settled (to a larger or lesser degree) on the basis of
judicial and arbitral pronouncements in the context of article 7 of the
CISG; or that they were discernible in general international law. This
conclusion is justified by the fact that unification was already on the
agenda since the first draft of the Model Law in the mid-1980s3 and
hence was not an innovation of the 2006 revision. Indeed, one of the
key arguments behind the launch of the Model Law in 1985 was the
desire to revise the New York Convention, but such a task seemed
1
The promotion of uniformity was high on the agenda. See UNGA Draft Resolution on the
Model Law, UN Doc. A/C.6/81/L.8 (25 October 2006), para. 1.
2
Report of UNCITRAL on the Work of Its Thirty-Ninth Session, UNGAOR 61st session,
UN Doc. A/61/17, Supp. No. 17 (2006), paras 174–175.
3
UNGA Res 40/72 (11 December 1985). See also A. Broches, ‘The 1985 UNCITRAL Model
Law on International Commercial Arbitration: An Exercise in International Legislation’
(1987) 18 NYIL 3.
38

2. paragraph 1 39
formidable and the prospect of a model law was much more

attractive.4 The idea of addressing discrepancies among jurisdictions
in the application and interpretation of the New York Convention
resurfaced in the 2006 discussions leading to the revision of pertinent
provisions of the Model Law. Although discussed in the context of
other provisions, the issue of uniformity was raised in relation to the
written form of the arbitration agreement in article II(2) of the
New York Convention with a view to inserting corresponding refer-
ences in the Model Law.5 This led to the adoption of a wholly revised
provision (article 7) on the written form of the arbitration agreement
and a new paragraph 2 in respect of article 35, which will be analysed
more fully in relevant chapters.
2. Paragraph 1
Paragraph 1 concerns the interpretation of the Model Law by judges and
executive bodies. It embodies three important concepts, namely: (1) aids
of interpretation; (2) the notion of uniformity in the application of the
Model Law, as opposed to mere uniformity in its incorporation or
transformation in the domestic sphere;6 and (3) the observance of good
faith by all those applying the Model Law.
2.1 ‘Interpretation of This Law’

Paragraph 1 of article 2A is addressed to all those entities or persons that are
called upon to apply the Model Law in the domestic sphere. This includes
judges as well as administrative entities, in addition to quasi-judicial bodies
4
Report of the UN Secretary-General, Study on the Application and Interpretation of the
New York Convention, UN Doc. A/CN.9/168 (20 April 1979).
5
See UNCITRAL Working Group II, Preparation of Uniform Provisions on Written Form
of Arbitration Agreements, UN Doc. A/CN.9/WG.II/WP.139 (14 December 2005);
UNCITRAL Working Group II, Preparation of Uniform Provisions on Written Form of
Arbitration Agreements: Proposal by the Mexican Delegation, UN Doc. A/CN.9/WG.II/
WP.137 (20 April 2005); UNCITRAL Working Group II, Preparation of a Model
Legislative Provision on Written Form for the Arbitration Agreement: Note by the
Secretariat, UN Doc. A/CN.9/WG.II/WP.136 (19 July 2005).
6
The examination of incorporation or transformation is not pertinent in the context of the
Model Law because its adoption does not raise the constitutional issues associated with the
reception of treaties into the domestic sphere. See C. H. Schreuer, ‘The Interpretation of
Treaties by Domestic Courts’ (1971) 45 BYIL 255; P. M. Dupuy, ‘International Law and
Domestic (Municipal) Law’ (2011) MPEPIL.

40 a r t i c le 2a: i n t l o r i gi n an d genera l princ iples
such as ombudspersons.7 Given that the Model Law is not a treaty – and
hence does not require incorporation or transformation into domestic law –
nor is there an expectation that States adapt it verbatim into their legal
systems, reference to ‘this Law’ means the statute that corresponds to the
adaptation of the Model Law into the domestic sphere. However, as we shall
see in a subsequent section, the internationalist approach to the Model Law
ultimately demands that its fundamental principles override any conflicting
domestic provisions.
Even so, it is not clear from the wording of article 2A whether the
various principles enunciated therein constitute rules, aids (tools) or
objectives of interpretation. This is an important observation because if
they are classified as rules (or canons) of interpretation, in the sense of
articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT),
local courts must construe the domestic arbitration statute first and
foremost on the basis of the pertinent rules/principles. If, on the other
hand, they are viewed as mere aids or tools, the courts may rely upon
them, but their decision will not suffer from any irregularity should they
choose to ignore them in favour of other rules of construction imposed or
made available under domestic law. The Explanatory Note of the
UNCITRAL Secretariat to the 2006 version of the Model Law stipulates
that article 2A is meant, among others, ‘to facilitate interpretation’,8 thus
clearly suggesting that the principles constitute aids or tools, as opposed
to rules of interpretation. This result is also confirmed by those domestic
statutes that are predicated on the Model Law, such as sections 8(1) and
(2) of the 2010 Irish Arbitration Act, which refer to the travaux of the
Model Law as a possible aid to its interpretation. By extension, given the
international origin of the Model Law, the customary principles of
interpretation in articles 31 and 32 of the VCLT, otherwise reserved for
treaties, constitute useful aids of interpretation, namely the teleological
(object and purpose) and supplementary (travaux) approaches.9
7
Article 2A is addressed to arbitrators only to the degree that they are called upon to
interpret the Model Law or where it constitutes the governing law of the parties’
agreement.
8
Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on International
Commercial Arbitration as Amended in 2006, UN Sales No. E.08.V.4 (2008), para. 4.
9
According to Bachand, this is justified by the fact that the Model Law is a transnational
instrument requiring an ‘internationalist interpretative approach’. F. Bachand, ‘Judicial
Internationalism and the Interpretation of the Model Law: Reflections on Some Aspects of
Article 2A’ in F. Bachand and F. Gelinas (eds), The UNCITRAL Model Law after 25 Years:
Global Perspectives on International Commercial Arbitration (JurisNet, 2013), pp. 235, 249.

2. paragraph 1 41
It is useful to spell out those principles enunciated in article 2A of the

Model Law which serve as aids of interpretation. These are: (1) the
international origin of the Model Law; (2) the promotion of uniformity;
and (3) the observance of good faith. These principles serve a dual role.
On the one hand, they are interpretative tools, whereas on the other they
clearly also constitute objectives or goals to which Model Law nations
should strive.
It should be emphasised that because the Model Law is not a treaty,
article 2A does not impose an autonomous interpretation. Treaties are
self-contained systems,10 save where they specifically refer to external
means and sources of interpretation – or where their subject matter is
restricted by customary law or jus cogens. The legal nature of the Model
Law, however, entails that in construing questions arising from its appli-
cation, recourse may be had to sources and principles that are external to
it, such as treaties, general principles, lex mercatoria and domestic law.11
Finally, one should assess the significance of the practice of Model Law
States by which they choose not to incorporate article 2A in their arbitral
statutes, as opposed to those that do.12 By the end of 2015, only sixteen
Model Law States had incorporated article 2A in their arbitral laws (as
well as several States in the United States and Australia). Even so, the
absence of incorporation should not be viewed as determinative of
a State’s rejection of the aids and principles contained in article 2A. For
one thing, many States may not find it expedient to amend their arbitral
statutes in the aftermath of the 2006 revision of the Model Law. Second,
the practice of the courts of industrialised nations, whether Model Law
adherents or not, demonstrates a strong inclination towards internatio-
nalisation and uniformity. It is assumed, therefore, that unless a State
expressly rejects the principles and aids contained in article 2A, these are
presumed to apply in its application and interpretation of the Model Law.
2.2 Promotion of Uniformity

The promotion of uniformity is both an aid to interpretation of the Model
Law as well as an underlying principle. Indeed, the role and function of
uniformity is to enhance certainty, but article 2A does not put forward
10
As is the case with CISG, art. 7.
11
See M. Gebauer, ‘Uniform Law, General Principles and Autonomous Interpretation’
(2005) 10 Unif. L. Rev. 683.
12
As is the case, for example, with s. 9 of the Hong Kong Arbitration Ordinance (HKAO);
Slovenian Arbitration Law, art. 2.

42 a r t i c l e 2a : i n t l o r i g i n a n d g e n e r a l p r i n c i p l e s
a clear methodology by which to achieve such uniformity. Uniformity has

been defined as ‘the varying degree of similar effects on a legal phenomenon
across boundaries of different jurisdictions resulting from the application of
deliberate efforts to create specific shared rules in some form’.13 Before we
go on to examine the various forms and varieties of uniformity, it is
appropriate to ascertain the sources from which it may emanate: (1)
model or uniform laws; (2) principles declared by NGOs, such as the
UNIDROIT Principles of International Commercial Contracts;14 (3) stan-
dard contract terms, such as those adopted by the International Federation
of Consulting Engineers (FIDIC) in relation to construction; and (4) multi-
lateral treaties, such as the CISG and the New York Convention.15
Before we explore the type of uniformity that is envisaged, or is
otherwise more appropriate, in respect of the Model Law, it is useful to
set out the types of uniformity that are generally available. At the apex
one finds textual or absolute uniformity, the aim of which is to ‘trans-
plant’ the instrument in question verbatim in the legal system of the
participating or member States.16 This type of uniformity is exceptional
and difficult to implement in practice. It is demanded in respect of EU
Regulations and is envisaged (but by no means demanded) in the case of
most treaties (bilateral and multilateral), save where member States are
offered the possibility of extensive reservations – which cannot, however,
violate the instrument’s object and purpose.17 Whereas in the EU
13
C. Baasch Andersen, ‘Defining Uniformity in Law’ (2007) 12 Unif. L. Rev. 5.
14
See M. Bonell, ‘Unification of Law by Non-Legislative Means: The UNIDROIT Draft
Principles for International Commercial Contracts’ (1992) 40 Am. J. Comp. L. 617;
R. Ashby Pate, ‘The Future of Harmonization: Soft Law Instruments and the Principled
Advance of International Lawmaking’ (2010) 13 Touro Intl L. Rev. 142. The UNIDROIT
Principles have been identified by several domestic courts and arbitral tribunals, in CISG-
related disputes, to constitute general principles under art. 7(2) of the CISG. See
UNCITRAL, ‘2012 Digest of Cases on CISG’, p. 46.
15
The situation with treaties is somewhat different because parties are obliged to adapt the
treaty into their domestic law without significant changes. Even if reservations are
allowed, these must not be in conflict with the treaty’s object and purpose. See VCLT,
art. 19. This is not tantamount to textual uniformity because, unless otherwise stated,
States are allowed to implement treaties into their domestic law in accordance with
existing legal rules and principles.
16
An extensive literature regarding the textual interpretation of CISG under art. 7 therefore
exists. See L. A. DiMatteo, International Sales Law: A Global Challenge (Cambridge
University Press, 2016), pp. 66ff; P. Schlechtriem and I. Schwenzer (eds), UN Convention
on the International Sale of Goods: Commentary (Oxford University Press, 2005).
17
See H. Flechtner, ‘The Several Texts of the CISG in a Decentralised System: Observations
on Translations, Reservations and Other Challenges to the Uniformity Principle in
Article 7(1)’ (1998) 17 JL & Commerce 187.

2. paragraph 1 43
context, textual uniformity is viable because of the large cultural, eco-

nomic and legal convergence,18 it is doomed to failure in situations where
such convergence is absent among a group of States, even if ultimately
they ‘transplant’ the text of the agreement verbatim in their domestic
laws.19 Textual uniformity was never envisaged or pursued in respect of
the Model Law as this would not only have dissuaded many States from
adopting it, but would have been practically impossible in practice as it
would have required a wholesale amendment of fundamental areas of
law, such as contract and civil procedure. Such strict uniformity is not
desirable in the context of the Model Law.
Below textual uniformity one encounters applied uniformity. The
intention here is not to achieve word-by-word textual correspondence
across jurisdictions, but rather to develop a uniform understanding and
a uniform interpretation of the text/rules in question.20 In this manner,
there is no requirement that texts actually meet or correspond linguisti-
cally. Applied uniformity is indeed the hallmark of article 7(1) of the
CISG.21 In the process of achieving applied uniformity, there is typically
a harmonisation of values and norms – this also arises as an outcome
from a sustained process of applied uniformity.
Another type of uniformity is so-called functional uniformity or func-
tional similarity. Here, the objective is to create similar rules across
18
Even so, in the field of criminal law, the principle of ‘mutual recognition’ was not based on
textual uniformity. Paragraph 8 of the Vienna Action Plan rejected the notion of procedural
criminal law harmonisation and unification ideology by proclaiming that the aim of the
member States was ‘not to create a common territory where uniform detection and
investigation procedures would be applicable to all law enforcement agencies in Europe
in the handling of security matters’. Vienna Action Plan of 3 December 1998 on How Best
to Implement the Provisions of the Treaty of Amsterdam on an Area of Freedom, Security
and Justice, [1999] OJ C19/1. This was achieved through approximation, which foresaw as
a starting point the gradual adoption of common definitions for a set of core offences
bearing a transnational nature. See A. Weyembergh, ‘Approximation of Criminal Laws, the
Constitutional Treaty and the Hague Programme’ (2005) 42 CMLR 1567.
19
See A. Watson, Legal Transplants: An Approach to Comparative Law, 2nd edn (Georgia
University Press, 1993).
20
Schlechtriem and Schwenzer (n. 16), p. 6.
21
There exists an extensive jurisprudence on art. 7(1) of the CISG and despite the fact that
its wording is very close to that of art. 2A of the Model Law – and in fact the latter was
inspired by the former – we shall avoid replicating or applying this body of law in order to
analyse art. 2A of the Model Law. This approach is justified for several reasons. First, the
CISG is a treaty (subject to many reservations), whereas the Model Law is not. Second, the
CISG concerns substantive rules where the focus of the Model Law is largely on rules of
civil procedure. This, of course, is not an impediment to applying CISG case law mutatis
mutandis to art. 2A of the Model Law. See UNCITRAL, ‘2012 Digest of Cases on CISG’,
pp. 42ff.

jurisdictions, even in the absence of a general cross-border framework of

applied uniformity in order to achieve a functional similarity of substan-
tive or procedural trade rules, which ultimately leads to harmonisation.
Functional uniformity is therefore a short-cut hybrid between applied
and textual uniformity.22
Article 2A(1) of the Model Law expressly refers to applied (‘applica-
tion’) uniformity, although in some cases functional similarity may have
to be introduced until applied uniformity has been fully and universally
achieved. By way of illustration, legal systems that do not provide for an
equivalent of interim measure requests by arbitral tribunals cannot be
expected to develop a pertinent culture overnight and hence the avail-
ability of interim measures must be introduced as a first step.
Having established the preferred test/method for uniformity, one must
next adopt an appropriate methodology. However, this process cannot be
undertaken (only) unilaterally, but in conjunction with other Model Law
States. Article 2A offers no assistance in this respect. Given that the
Model Law is predicated on respect for the diversity of legal cultures
and legal principles (e.g. as to the definition of contract or agreement, the
choice of public policy rules, or in respect of contractual gap-filling by the
courts among others), functional uniformity is required in respect of
fundamental principles underlying the operation of international com-
mercial arbitration. An indicative example is the removal of the Diwan
(an executive body which among others passed judgment on the validity
of the arbitration clause) from the arbitral process in the 2012 Saudi
Arbitration Law.23 Thereafter, applied uniformity requires the adoption
of a particular culture that is not necessarily dependent on reciprocity –
in fact, reciprocity may be viewed as alien to applied uniformity.24
Rather, the courts and executive must assume an internationalist view-
point that is consistent with the prevailing practice in the courts of other
jurisdictions, as well as the practice of arbitral tribunals themselves.
Although this may be seen as an arduous task, relevant trends and
practices are nowadays easily accessible through databases such as
CLOUT, the UNCITRAL ‘2012 Digest of Case Law’ and the Yearbook
22
Several commentators refer to it also as ‘harmonisation’. See Andersen (n. 13), p. 28.
23
See A. A. Baamir and I. Bantekas, ‘Saudi Law as Lex Arbitri: Evaluation of Saudi
Arbitration Law and Judicial Practice’ (2009) 25 Arb. Intl 239, for an analysis of the
role of the Diwan prior to the 2012 Law.
24
No doubt, the promotion of uniformity ‘forces’ other States towards reciprocity, in which
case reciprocity constitutes a fruitful or a desired outcome.

2. paragraph 1 45
of International Commercial Arbitration and, in any event, academic

writings are abundant on legal aspects of the Model Law.
2.3 ‘International Origin’

The ‘international origin’ of the Model Law is inextricably linked to the
promotion of its uniform application. This is justified on account of
several reasons. First, the combination of the Model Law’s international
origin and the need for applied uniformity culminates in the adoption of
an internationalist approach, which as already explained constitutes
a method of interpretation. Second, the international origin of the
Model Law emanates from several processes, namely: (1) UNCITRAL
conferences with the participation of government experts and the for-
mulation of official travaux; (2) general principles of arbitration law;25
(3) customary international law; and (4) relevant multilateral treaties,
such as the New York Convention, ICSID, CISG and others. The idea,
therefore, is that the Model Law reiterates existing principles and does
not introduce new rules. As a result, in their application of the Model
Law, local courts and executive bodies must construe their adapted
arbitral statute in accordance with the source of the rule under consid-
eration (i.e. treaty, custom, other).
The internationalist approach is consistent with the objective of
applied uniformity. However, if article 2A required courts to consider
only the Model Law’s international origin, but not the pursuit of uni-
formity, an assessment of the pertinent sources would not necessitate
recourse to an internationalist outlook (i.e. to the decisions of domestic
courts, and practice of States, arbitral tribunals and arbitral institutions).
Practice suggests that the courts of industrialised or arbitration-friendly
nations take into consideration the international origin of the Model Law
(or other similar instruments)26 on the basis of an internationalist
approach, whereby significant reference is made to foreign judgments
on the basis that they are reflective of customary international law or
general principles.27
25
In the sense of ICJ Statute, art. 38(1)(c).
26
As is the case with Fothergill v. Monarch Airlines [1981] AC 251, 282, 290.
27
See pertinent case law in this respect from Hong Kong, Australia and Singapore in
S. D. Lewis, ‘Testing the Harmonisation and Uniformity of the UNCITRAL Model Law
on International Commercial Arbitration’ (PhD Thesis, Leicester University, 2015),
133ff. Lewis demonstrates that the courts of these three nations make significant citations
to the judgments of foreign courts and although a significant degree of applied uniformity

46 a r t i c l e 2a : i n t l o r i g i n a n d ge n e r a l p r i n c i p l e s
2.4 ‘Observance of Good Faith’

Good faith is used in domestic28 and international law as both a substantive29
and a procedural30 principle, as well as method of treaty interpretation. In
the context of article 2A(1), it is meant as an aid of interpretation given what
we have already said in previous sections and on account of the other two
principles identified therein. Beyond treaty interpretation to which we shall
return shortly, it is interesting to note that the International Court of Justice
(ICJ) and other international arbitral tribunals have taken good faith to
constitute a cardinal principle, at the very least, in the creation and imple-
mentation of legal obligations,31 as well as in the context of bilateral or
multilateral negotiations.32 The customary nature of good faith and its
underlying function in both substantive and procedural international law
has been viewed by commentators as sharing a high degree of proximity
with justice and equity, which is further concretised in specific applicable
rules, such as ‘acquiescence, estoppel or duties of information or
disclosure’.33
The aforementioned observations are important in our examination of
good faith as a principle of construction, chiefly because article 2A is
addressed to States (i.e. judges and executive organs).34 Moreover, the
obligation to pursue uniformity in conjunction with the international origin
of the Model Law suggests that the enforcer of the Model Law should
exercise good faith in all cases before him, in his discharge of the duties
assumed by the State. Although the Model Law is not binding as such, the
fact that one or more Model Law States have discharged their ‘obligations’
is ultimately achieved, few adoptions of the ratio descidendi of these foreign judgments is
taken on board.
28
Especially in the field of contract law, see French CC, art. 1134; German BGB, art. 242;
Swiss Confederation Constitution, art. 5(3); and US UCC, art. 1–201(20).
29
UN Charter, art. 2(2); ICC Statute, art. 86; 1994 Agreement on Trade-Related Aspects of
Intellectual Property Rights, art. 24(4) and (5); and UNCLOS, art. 300.
30
WTO Understanding on Rules and Procedures Governing the Settlement of Disputes,
arts 3(10) and 4(3); ICSID Rules of Procedure for Conciliation Proceedings, art. 23; and
PCA Conciliation Rules, art. 11. In the Israeli Wall Advisory Opinion (Legal
Consequences from the Construction of a Wall in the Occupied Palestinian Territory),
(2004) ICJ Rep. 136, para. 94 and the Aerial Incident of 10 August 1999 (Pakistan v. India),
Jurisdiction, (2000) ICJ Rep. 12, para. 53, the ICJ relied on art. 2(2) of the UN Charter in
order to substantiate a procedural duty to settle disputes in good faith.
31
Nuclear Tests case (Australia v. France), (1974) ICJ Rep. 253, para. 46.
32
Gulf of Maine case (Delimitation of the Maritime Boundary in the Gulf of Maine Area)
(Canada v. USA), (1984) ICJ Rep. 246, para. 87.
33
M. Kotzur, ‘Good Faith (Bona Fide)’ (2009) MPEPIL, para. 23.
34
Ibid., para. 20.

3. pa rag raph 2 47
thereunder gives rise to a legitimate expectation that other Model Law States
also fulfil their obligations. In this manner, good faith is not merely a moral
duty, but a legal one, the violation of which can in theory incur State
responsibility. In any event, where one or more States fulfil their ‘obliga-
tions’ under the Model Law, others are deemed to acquiesce in respect of
similar performance, in addition to any reciprocity.
As a result of these considerations, it is pertinent to resort to the VCLT
in order to clarify the content of good faith in article 2A(1). Article 26 of
the VCLT expresses the pacta sunt servanda principle, namely that
agreements must be performed in good faith. Good faith is not only an
element of pacta sunt servanda, but its very foundation. In the case of the
Model Law, as has already been explained, its binding nature arises from
the legitimate expectations of compliant States that all others will act
likewise. From a strict textual interpretation perspective, article 31(1) of
the VCLT stipulates that agreements shall be interpreted in good faith in
accordance with their context and the agreement’s object and purpose.
Of particular interest in this connection is article 31(3)(b) and (c) of the
VLCT, which applies mutatis mutandis to the Model Law. Subparagraph
(b) points out that, along with context, account shall be taken of ‘any
subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation’. The judicial
practice of States with regard to the Model Law and the New York
Convention is extensive and certainly constitutes ‘subsequent practice’,
thereafter giving rise to reciprocity, legitimate expectations and acquies-
cence. Subparagraph (c) notes that account shall also be taken of ‘any
relevant rules of international law applicable in the relations between the
parties’. This not only encompasses customary law and other treaties
such as the VCLT and the New York Convention, but also rules accepted
by States which have been established by private practice, essentially lex
mercatoria.35 A widely accepted industry-based rule, whether procedural
or substantive, is as much a rule of international law as a provision in an
inter-State agreement.
3. Paragraph 2
Paragraph 2 was meant as a gap-filling or residual provision within the
context of the interpretative function of paragraph 1 of article 2A.
35
See I. Bantekas, ‘The Private Dimension of the International Customary Nature of
Commercial Arbitration’ (2008) 25 JOIA 449.

Although its main quality is flexibility, the absence of any indication as

to what is meant or encompassed under the term ‘general principles on
which this Law is based’ creates considerable ambiguity and lack of
certainty for litigators. It also provides judges and the executive with an
unnecessary degree of discretion.
3.1 ‘General Principles on which This Law Is Based’

Paragraph 2 is a residual or gap-filling clause. As a consequence, the
term ‘general principles’ does not include the three principles (interna-
tional origin, uniformity and good faith) found in paragraph 1.
The second question is whether the term encompasses general princi-
ples of international or domestic laws. The key to answering this ques-
tion is the first part of the sentence of paragraph 2 and particularly
‘matters governed by this Law’. Matters governed by the Model Law
cover a broad range of fields. Some are quintessentially of a public
international law nature, such as immunities from enforcement, while
others pertain to domestic law, as is the case with the permissibility of
oral agreements; yet others are mixed, with party autonomy having
been established by multilateral treaties (e.g. New York Convention)
and general principles of domestic (contract) laws. Hence, although
there are several principles underlying the entirety of the Model Law
(e.g. party autonomy, right to fair trial), there are others that are specific
to some or all of its articles. Their existence is a matter of proof and,
depending on their origin (general principle, custom, treaty), the par-
ties must rely on the appropriate methodology for demonstrating the
existence of each principle claimed.
What is clear, however, is that the term ‘general principles’ does not
encompass principles derived from or existing solely in one legal system,
or a minority of legal systems, especially where the rule/principle found
there is antithetical to the practice of the majority of States. This is
justified by the fact that the Model Law is ‘based’ on internationally
agreed rules as it is the product of an inter-governmental process that
is not divorced from other multilateral developments, such as the
New York Convention and case law that is supportive of international
commercial arbitration. Moreover, as a residual provision, paragraph 2
cannot be construed in isolation or in conflict with paragraph 1 of article
2A; rather, it must be consistent with it. This means that any residual
general principles identified by the parties or the courts under paragraph

3. para gra ph 2 49
2 must take into consideration the international origin of the Model Law,
promote uniformity and observe good faith.36
At the time of writing, there were no known cases whereby a general
principle under paragraph 2 of article 2A had been identified by a court
or tribunal.37 On the contrary, the case law on article 7(2) of the CISG is
extensive, but significant caution must be exercised before accepting any
analogies. First, the content of article 7(2) of the CISG is broader,
stipulating that in the absence of general principles recourse is to be
made to rules of private international law. Second, the scope and subject
matter of the CISG is largely different from that of the Model Law and
a principle common to the CISG and the Model Law in name may not be
so in substance. The ‘2012 Digest of Cases on CISG’ lists the following
general principles as identified by national courts and arbitral tribunals in
accordance with article 7(2) of the CISG: party autonomy; good faith;
estoppel; place of payment of monetary obligations; currency of payment;
burden of proof; full compensation; informality; dispatch of communi-
cations; mitigation of damages; binding usages; set-off; right to withhold
performance and the principle of simultaneous exchange of perfor-
mances; right to interest; costs of one’s own obligations; changed circum-
stances and right to renegotiate; and favor contractus.38 It is beyond the
scope of this commentary to identify which of these may be adapted for
the purposes of article 2A(2) of the Model Law, but if the context and
purpose is similar, there is no impediment why a court or tribunal cannot
apply any one of these in a residual manner mutatis mutandis.39
36
An example of a general principle identified by the ICJ, and which is relevant to arbitral
proceedings, concerns the right of parties in review proceedings to have an opportunity to
submit oral statements. Application for Review of Judgment No. 158 of the UN
Administrative Tribunal, Advisory Opinion, (1973) ICJ Rep. 166, para. 36.
37
UNCITRAL’s ‘2012 Digest of Case Law’, p. 15 does not attempt to identify any general
principle under art. 2A(2).
38
UNCITRAL, ‘2012 Digest of Cases on CISG’, pp. 42ff.
39
The 2002 UNCITRAL Model Law on International Commercial Conciliation with Guide to
Enactment and Use (2004), para. 41 identifies four general principles.

Article 3
Receipt of Written Communications

ilias bantekas
(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.
The travaux to article 3 evince from the very outset a clear dilemma.
While there is no dissention as to the fact that the award should be
communicated to the parties,1 it is not clear whether such obligation
should burden the parties or the tribunal. Draft article 20(2) of the Model
Law in 1982 expressed itself in the following terms:
All documents or information supplied to the arbitral tribunal by one party
shall [at the same time] be communicated [by that party] to the other party.2
1
Working Paper Submitted to the Working Group on International Contract Practices at
Its Third Session. Note by the Secretariat: Possible Features of a Model Law on
International Commercial Arbitration: Questions for Discussion by the Working Group,
UN Doc. A/CN.9/WG.II/WP.35 (1 December 1981), para. 29.
2
Articles 1–24, UN Doc. A/CN.9/WG.II/WP.37 (15 July 1982), 5.
50

1 . t ra v a u x p rép a r a t o i r e s 51
Footnote 36 in the same document explained that the brackets were

meant in case the provision was declared mandatory and/or where
service was required to be made by the tribunal and not the parties.3
So, the delicate matter of the sender had not been decided early on in the
discussions. During the same time, discussions concerning other provi-
sions entailing an element of notification focused very little, if at all, on
setting out a general rule as to proof of receipt.4
Draft article 20(2) does not correspond to the current version of article
3 of the Model Law and it is not until late 1982 that the travaux show
some discussion of the subject matter of article 3. Surprisingly, the
delegates are more concerned with the commencement of arbitral pro-
ceedings for the purpose of calculating limitation periods, rather than the
modalities of written communications and notices. To this end, the early
drafting committee placed reliance on the wording of article 14(2) of the
Convention on the Limitation Period in the International Sale of Goods
1974 (also known as the Prescription Convention).5
Express mention was made of article 3 of the UNCITRAL Arbitration
Rules to the effect that it sets out a concrete set of rules applicable to
a ‘particular arbitration by the agreement of the parties’, whereas article
14(2) of the Prescription Convention was deemed as a rule of ‘general
applicability to arbitral proceedings’.6 The following article B was pro-
posed as a starting point for subsequent discussions:
(1) The limitation period in respect of a claim submitted to arbitration
shall cease to run when any party commences arbitral proceedings in
the manner provided for in the arbitration agreement.
(2) In the absence of any such agreement, the arbitral proceedings shall be
deemed to commence on the date on which a request that the claim in
dispute be referred to arbitration is delivered at the habitual residence
or place of business of the other party, or if he has no such residence or
3
Ibid.
4
See e.g. Note by the Secretariat: Model Law on International Commercial Arbitration:
Revised Draft Articles I to XXVI, UN Doc. A/CN.9/WG.II/WP.40 (14 December 1982), 5.
Here, the focus on draft art. XVII(3) concerned the requirement simply to communicate
all documents supplied to the tribunal to the other party. A timeliness obligation was also
put forward. The drafters must have expected a more thorough statement on the general
conditions of delivery or receipt to appear earlier in the text, but this is not mentioned in
the pertinent discussions.
5
Note by the Secretariat: Model Law on International Commercial Arbitration: Possible
Further Features and Draft Articles of a Model Law, UN Doc. A/CN.9/WG.II/WP.41
(12 January 1983), 3, para. 15.
6
Ibid., 3, para. 16.

52 article 3: receipt of written c ommunications
place of business, then at his last known residence or place of business

[provided that such a request sufficiently identifies the claim].7
This is an interesting development because it is the first time that mention is
made of the actual notification, but only with a view to concretising the
commencement of arbitral proceedings. The provision is rudimentary as it
refers to the ‘delivery’ and not the effective ‘receipt’ of the notice, and makes
no mention of what later became a requirement of a ‘reasonable inquiry’.
The bracketed sentence at the very end of paragraph 2 is equally interesting
because it fuses notice requirements (and limitation calculations) with the
proper content of the claim contained in the notice.8 This fusion is evident
in other phases of the discussions.9 These two issues were ultimately placed
in different provisions because it was thought that although interlinked, they
related to distinct processes and the validity of one should not be made
dependent on the other. That the issue of the delivery/receipt of written
communications, as now framed in article 3, was given little attention is
nowhere more evident than in footnote 4, appended at the end of draft
article B, which pointed out that: ‘The reference to the residence or place of
business could be left out if a general rule on delivery of notices, notifica-
tions, communications or proposals were included in the model law.’10
By late 1982, it was accepted that the provision related to written
communications should be modelled after article 2(1) of the
UNCITRAL Arbitration Rules. As a result, the concept of ‘receipt’, as
opposed to mere ‘delivery’, had been inserted in draft article B, but the
fusion between content (‘sufficiently identifies the claim’) and notifica-
tion was retained.11 The fusion between content and notification was
retained by the Working Group in its sixth session.12
At the seventh session, a text that is close to the current version of
article 3 emerges, but is placed in article 2, which deals with definitions.13
The keen reader will not fail to notice several significant differences with
7
Ibid., 3, para. 17.
8
Ibid., 3, para. 18.
9
See Revised Draft Articles A to G on Adaptation and Supplementation of Contracts et al.:
Note by the Secretariat, UN Doc. A/CN.9/WG.II/WP.44 (1983), para. 32, fn. 6.
10
UN Doc. A/CN.9/WG.II/WP.41 (n. 5), 3, fn. 4.
11
UN Doc. A/CN.9/WG.II/WP.44 (1983) (n. 9), para. 32.
12
Report of the Working Group on the Work of Its Sixth Session, UN Doc. A/CN.9/245
(1983), para. 24.
13
Working Papers Submitted to the Working Group at Its Seventh Session, Composite
Draft Text of a Model Law on International Commercial Arbitration: Note by the
Secretariat, UN Doc. A/CN.9/WG.II/WP.48 (1983), reprinted in (1984) XV
UNCITRAL YB 218, 220–21, concerning para. (e).

1. t ra v a u x p répa ra toir es 53
the current version. There is reference to ‘physical’ delivery and the

process of reasonable inquiry only mentions the addressee’s last-known
place of business and residence. Article 3(1)(a) continues further by
adding: ‘or mailing address by registered letter or any other means
which provides a record of the attempt to deliver it’. However, this is
the first time that notice and content are not conflated, but at this point
notification is treated as a matter of definition, chiefly because its precise
definition has a bearing on all those other provisions in the Model Law
that require some kind of notification by the tribunal or the parties intra
se. In the first comprehensive draft of the Model Law, the issue of
notification was retained in article 2(e), but what currently constitutes
the chapeau (‘unless otherwise agreed by the parties’) of article 3 was
inserted in the very beginning of the provision. Moreover, reference to
‘physical’ delivery was dropped and the draft provision became almost
identical to the current version of article 3, save for the final part of the
sentence,14 namely: ‘by registered letter or any other means which pro-
vides a record of the attempt to deliver it’. The Analytical Commentary to
the 1985 version of the Model Law devotes little space to article 2(e), but
places emphasis on the presumption of receipt (‘deemed to have been
received’).
Despite this latter wording, the list starts with instances of actual (i.e.
non-fictional) receipt and then enters into the realm of legal fiction. The
last sentence makes it clear that any such instance is not only conclusive
of the fact of receipt, but also determines the date of receipt.15
The travaux suggest that there was little expressed interest on the
modalities of notification and the presumption of receipt. Exceptionally,
Norway remarked that according to article 2(e) communication would in
some cases be deemed to have been received if it has been delivered to the
addressee’s last-known place of business, habitual residence or mailing
address even if the communication has never reached the addressee. While
recognising the need for such a provision, the Norwegian delegation also
observed that articles 11(3)(a), 11(4)(a) and 25 of the 1985 version of the
Model Law create the possibility of an arbitral award being rendered
against a defendant who has not been aware of the proceedings. On the
basis of these observations, it suggested that the defendant be given a right
of recourse or appeal which could be exercised in such cases, or that the
14
Draft Text of a Model Law on International Commercial Arbitration as Adopted by the
Working Group, UN Doc. A/CN.9/246 Annex (1984), draft art. 2.
15
See Analytical Commentary on Draft Text of a Model Law on International Commercial
Arbitration: Report of the Secretary-General, UN Doc. A/CN.9/264 (25 March 1985), 16.

54 article 3 : receipt of written c ommunications
defendant be allowed to challenge the award on the merits of the case as

a defence to an action of recognition or enforcement.16 The German
Democratic Republic proposed to make clear that the last-known place
of business, habitual residence or mailing address is the one last known to
the sender.17 Czechoslovakia suggested that the requirement of receipt be
discharged by proof of registered mail.18 Canada proposed that the precise
modalities for written notices be regulated by the law of the seat.19
2. Paragraph 1
This chapeau makes it clear from the outset that the parties may agree on
any method of delivery of written communications, as well as proof of
effective receipt. This is in contrast to delivery in domestic legal systems,
which generally requires dispatch through a court-appointed bailiff and
even involves requirements concerning the person or persons (legal
representative or other) authorised by the respondent or by law to be
served with legal notices. As will be demonstrated below, this disparity
between arbitration and litigation led to a constitutional challenge in
Spain, where the claimant argued a violation of the principle of equality.
2.1 Paragraph 1(a)

2.1.1 Notification as a Due Process Guarantee
The provision of appropriate notice or the delivery of documents perti-
nent to the arbitral process serves two purposes. On the one hand, it
satisfies the parties’ mutual contractual obligation, chiefly by reason of
the arbitration agreement, the pertinent notification requirements of the
lex arbitri, as well as those of the arbitral (institutional) rules to which the
arbitration has been subjected. On the other hand, the obligation to
provide appropriate notice is inextricably linked to the right to fair trial
because of the impact on the parties’ right to present their case, and
challenge the appointment of arbitrators or the award once it is issued. At
16
Analytical Compilation of Comments by Governments and International Organizations
on the Draft Text of a Model Law on International Commercial Arbitration: Report of the
Secretary-General, UN Doc. A/CN.9/263 (19 March 1985), 15.
17
Ibid.
18
Ibid.
19
Analytical Comments by Governments and International Organisations on the Draft
Text of a Model Law on International Commercial Arbitration: Report of the Secretary-
General, UN Doc. A/CN.9/263.Add 1 (15 April 1985), 4.

2. paragraph 1 55
the same time, all parties must have timely access to documents relied
upon by their opposing counterpart. The European Court of Human
Rights (ECtHR) has confirmed that arbitration is consistent with due
process rights and that arbitral tribunals must ensure fair trial
guarantees.20 In fact, the fulfillment of fair trial guarantees is bestowed
upon the tribunal and the courts of the lex arbitri.21 Party autonomy
alone cannot substitute these guarantees and as the Paris Court of Appeal
has emphasised, arbitral tribunals are not exempt from applying fair trial
guarantees in their proceedings.22 The Model Law in article 18 has also
long subscribed to the fair trial principle in arbitral proceedings.
It is therefore imperative to circumscribe the fair trial exceptions inher-
ent in the party autonomy principle, as this applies to the regulation of
arbitral proceedings on the basis of consent. The agreement to arbitrate
should be our starting point. It is now well settled that exclusion clauses in
commercial contracts by which the parties freely dispose (or waive) their
right to litigation before ordinary courts do not prejudice fair trial guaran-
tees in and by themselves. As regards actual arbitral proceedings, two
principles are universally accepted as being applicable, namely: due process
and fair hearing; and tribunal independence and impartiality. Due process
is a broad principle encompassing many different aspects of proceedings.
Its most salient manifestation for our purposes is party equality, which is
guaranteed in all regional and global human rights treaties.23 Article 3(1)(a)
of the Model Law gives rise to a due process obligation, albeit its practical
application is framed in permissive terms. The parties to arbitration must
notify in writing their opposing counterparts, as and where required by the
20
The relevant case law is consistent. In Sumukan Ltd v. Commonwealth Secretariat [2007]
EWCA Civ. 243, the English Court of Appeal held that an agreement in an arbitration
clause to exclude an appeal to a court on a point of law under s. 69 of the English AA (the
exclusion agreement) did not breach the right to a fair trial as provided by art. 6 of the
ECHR. Equally, as far back as the early 1960s, in Osmo Suovaniemi and Others v. Finland,
App. No. 31737/1996, Decision (23 February 1999) and X v. Germany, App. No. 1197/
1961, Decision (5 March 1962), the ECtHR and the Commission stressed that waivers in
favour of exclusive arbitration are consistent with the right to a fair trial.
21
This notwithstanding, the Swiss Federal Supreme Court has held that because arbitral
tribunals are not ‘established by law’ as dictated by art. 6 of the ECHR (right to fair trial),
they are not encompassed within the juridical space of the ECHR. See Abel Xavier
v. UEFA [2001] ASA Bull. 566. The Court, nonetheless, stressed that tribunals are
bound to respect fundamental rights of due process.
22
Société Licensing Projects and Others v. Société Pirreli & C SpA and Others, Paris Appeals
Court judgment (17 November 2011); see also Mousaka v. Golden Seagull Maritime
[2001] 2 Lloyd’s Rep. 657.
23
See ECHR, art. 6.

56 article 3 : receipt of written c ommunications
law, but they are free to choose the methods of such communication
among themselves. Since the process of notification serves the goals of
equality and fair trial and is otherwise mandatory, an agreement by the
parties, the effect of which is to restrict the right of notification to one or
both parties, would be null and void.24
Although constitutional or fair trial challenges against notice require-
ments are rare, in 2005 the Spanish Constitutional Court entertained
a claim that article 5(a) of the 2003 Spanish Arbitration Act, which
corresponds to article 3(1)(a) of the Model Law, infringed the principle
of equality set out in article 14 of the Spanish Constitution. The ground for
this claim was that the requirements for notification of a judicial decision
were different from those for notification of an arbitral award. The
Constitutional Court held that such a comparison overlooked the differ-
ences between arbitration and litigation, as well as the legal effect when an
intention to provide notification of a judicial decision was thwarted for
reasons not attributable to the administration of justice.25
2.1.2 The Requirements of Proper Notification

We shall deal with the proper meaning of ‘habitual residence’, ‘place of
address’, ‘last-known place of address’ and ‘reasonable inquiry’ in other
subsections of paragraph 1(a). For the purposes of this subsection, it is
important to note that article 3 does not set out an obligation on the
parties to communicate anything to each other. Such an obligation exists
in other provisions of the Model Law, as indicated in the introduction.
Rather, if any of the parties wish to rely on a document requiring
notification, or satisfy the tribunal that it has alerted the other side to
a process (e.g. appointment of arbitrators, notice of arbitration, issuance
of award), it is obliged to notify the other party in an appropriate manner.
In any event, article 3 covers only written communications26 and does
not encompass oral processes, if any, in the arbitral proceedings. As has
already been stated, article 3 is a generic provision that relates to pro-
cesses in the Model Law requiring mandatory notification.27 Hence, the
24
Case (commercial) 193/2010, Bulgarian Supreme Court of Cassation Judgment No. 71
(2 September 2011); confirmed also by the French Supreme Cassation Court judgment
(26 September 2012) in Mme X v. Banque Privée Edmond de Rothschild [2013] ILPr 12.
25
CLOUT Case 971, Constitutional Court Case No. 2771/2005 (5 July 2005).
26
Fung Sang Trading Ltd v. Kai Sun Sea Products and Food Co. Ltd, High Court – Court of
First Instance, Hong Kong, 29 October 1991, [1991] HKCFI 190.
27
This relates, among others, to proper notice of the award when formally issued, in
accordance with art. 31(4) of the Model Law. Article 1448 of the Mexican Commercial
Code, which is based on the Model Law, dictates that a signed copy of the award must be

2. paragraph 1 57
key word is not so much the delivery of the communication, but proof of
receipt. Moreover, the notice itself must be such as to be clearly under-
stood by the party upon whom it is served and it must also be timely28
and be delivered and received at an address that is effective, and the
receiving party must actually take notice of the communication.
The term ‘delivery’ is important in one particular way. Whereas
effective receipt is the sine qua non condition for a lawful notification,
proof of delivery or attempts to deliver will go a long way in satisfying the
requirement of ‘reasonable inquiry’ as demanded by article 3(1)(a) of the
Model Law. Hence, proof of delivery, even if unsuccessful, is important in
discharging this duty.29 Some institutional rules require that, whatever
the method of delivery, it must be susceptible to proof of delivery
(effectively a record) and not solely receipt of the notification.30
A proper notification must satisfy the formal requirements set out by the
lex arbitri or the parties’ chosen institutional rules, whichever prevails.31
Either of these may prescribe a notification process that is different from
similar processes before the courts. Article 3(2) of the ICC Arbitration
Rules (2017) provides several methods of notification, such as delivery
against receipt, registered post, courier, email, or any other means of
telecommunication that provides a record of the sending thereof.
Similarly, article 4(1) of the LCIA Arbitration Rules stipulates that
a written communication may be ‘delivered personally or by registered
postal or courier service or (subject to article 4(3))32 by facsimile, e-mail or
any other electronic means of telecommunication that provides a record of
delivered to each party. See Case 457/2014-III, Fifth District Court on Civil Matters of
Mexico City.
28
As has already been explained, the content and timeliness of written communications fall
outside the purview of art. 3 of the Model Law.
29
In this sense, it is generally wise to distinguish between ‘delivery’ and ‘filing’ a written
communication. See Bell Canada v. The Plan Group [2009] ONCA 548, where it was held
that if the arbitration clause provides that any notice of arbitration must be filed with the
administering institution, the applicant must accordingly file the notice in order to
initiate the arbitral proceedings. The court distinguished the concept of ‘filing’ from
that of ‘servicing’ or ‘delivering’, and held that ‘filing’ requires the party to deposit or place
the notice with the institution overseeing the arbitral proceedings.
30
SCC Arbitration Rules, art. 5(2).
31
The Madrid Provincial High Court has held that the notification guarantees applicable to
civil judgments apply in respect of the notification requirements of arbitral awards.
CLOUT Case 1421, Judgment No. 241/2006 (27 September 2006). Here, the court was
referring to due process guarantees and not the formalities or the procedure as such.
32
Article 4(3) of the LCIA Rules provides that ‘delivery by electronic means (including
e-mail and facsimile) may only be effected to an address agreed or designated by the
receiving party for that purpose or ordered by the arbitral tribunal’.

58 article 3: receipt of written c ommunications
its transmission, or in any other manner ordered by the arbitral tribunal’.

The general rule thus seems to be that notification, if not otherwise agreed,
may be delivered by any means of communication that provides or allows
for a record of its transmission and in the event of electronic communica-
tion this must have already been designated or authorised.33
In some cases, the registered address of one of the parties will not be
conclusive for the purposes of proper notification. If the party’s legal
representative uses a letterhead with a particular address in all its com-
munication with the tribunal and the other party, it is not unreasonable
to assume that such address suffices for any formal notice.34 It is accep-
table to designate the party’s legal or other representative as the entity to
which notifications are to be made, in which case the address of said
representative becomes effective,35 but most legal systems require that
only authorised persons from a legal entity can receive written commu-
nication from a court, a tribunal or a party to an arbitral process.36
Paragraph 1(a) does not limit itself to communications between the parties
to the dispute alone. The obligation to provide a notice may be borne by an
arbitral institution37 or the tribunal itself. Even so, institutional communica-
tion requirements are not generally within the purview of article 3 of the
Model Law,38 unless a different result has been explicitly agreed. The
Hong Kong Supreme Court, relying on article 36(1)(a)(ii) of the Model
Law, held that because the appellant had not been properly notified of an
inquiry process conducted by the arbitral tribunal, this prevented further
submissions and as a result had a negative outcome on his chances of
success.39 In a similar vein, the Saarländisches Oberlandesgericht held the
tribunal must notify the parties in advance of its intention to make an award
without the involvement of an obstructing arbitrator under article 29 of the
Model Law. The court held that this notification must be given to the parties
33
UNCITRAL Arbitration Rules, art. 2(1) and (2).
34
CLOUT Case 643, Presidium of the Higher Arbitration Court of the Russian Federation,
Decision No. 14548/04 (22 February 2005).
35
ICC Rules, art. 3(2).
36
In Sino Channel Asia Ltd v. Dana Shipping and Trading Pte Singapore and Another [2016]
EWHC 1118 (Comm.), the English High Court set aside an award because the claimant
had served its notice of arbitration to an agent of the respondent that was not authorised
to accept service.
37
See CLOUT Case 1446, TNK-Ukraine LLC v. SRL TAT Gazgrup, Supreme Court of
Ukraine Judgment No. 12178 (21 February 2007).
38
See e.g. ICC Arbitration Rules, art. 3(1), which states that a ‘copy of any notification or
communication from the arbitral tribunal to the parties shall be sent to the Secretariat’.
39
Apex Tech Investment Ltd v. Chuang’s Development (China) Ltd [1996] 2 HKLRD 155.

2. paragraph 1 59
in a timely way so as to provide them with the opportunity to attempt to

persuade the arbitrator to cooperate or, alternatively, to terminate his or her
mandate pursuant to sections 1038(1) and 1039 of the Zivilprozessordnung
(ZPO, German Code of Civil Procedure). One day’s notice was found to be
too short.40
Finally, the burden of proof for the propriety or not of the notice lies
with the party arguing against it.41
2.1.3 The Contents of the Notice

Article 3 is not prima facie concerned with the content of written commu-
nications. There is nothing in the language of the provision that can be read
in that light. However, the section of this chapter dealing with the travaux of
article 3 demonstrated that until the very end of the drafting process the issue
of proper/minimum content was fused with the modalities concerning the
requirements of proper notice. It would defeat every notion of justice to
assume that simply because one party effectively served a notice to the other,
it has discharged its obligations. Imagine a situation where the respondent
signs for a couriered notification in a language completely unknown to him
or where the notice contains the wrong arbitral venue and dates thereof. It is
clear that such intentional or unintentional errors in the notice do not fall
under article 3. The best approach is that they do not, even if the servicing of
a written communication under article 3 is often conflated with the much
broader notion of ‘proper notification’ under article 34(2)(a)(ii) of the Model
Law, which concerns both effective receipt and proper content of the
notice.42 The reason for such conflation is usually because arbitral statutes,
such as section 14(3)–(5) of the English Arbitration Act (AA), embody
effective receipt and proper notice in the same sentence. It is no wonder
that English courts have construed section 14 ‘broadly and flexibly’, empha-
sising substance over form and considering whether a reasonable person in
the position of the recipient would have understood the notice.43
40
CLOUT Case 662, Saarländisches Oberlandesgericht, 29 October 2002, 4 Sch. 2/02.
41
42
See Note by the Secretariat: Model Law on International Commercial Arbitration:
Possible Further Features and Draft Articles of a Model Law, UN Doc. A/CN.9/WG.II/
WP.41 (12 January 1983), para. 17, where the draft provision on the calculation/com-
mencement of arbitral proceedings by reason of service was conflated in brackets as
follows: ‘provided that such a request sufficiently identifies the claim’. See the pertinent
discussion in the travaux section, where this conflation was dropped only at the very end.
43
See Easybiz Investments v. Sinograin and Another (The ‘Biz’) [2010] EWHC 2565
(Comm.); Bulk & Metal Transport (UK) LLP v. Voc Bulk Ultra Handymax Pool LLC
(The ‘Voc Gallant’)[2009] EWHC 288 (Comm.).

60 arti cle 3: r eceipt of written communications
Although proper content of a notice is beyond the scope of article 3(1)

(a), for the purposes of coherency this chapter shall offer an example of
problematic content so that the reader can effectively see how the two
issues are interlinked in practice. In CEEG (Shanghai) Solar Science &
Technology Co., Ltd v. Lumos Solar LLC, the parties entered into a co-
branding agreement that contained a warranty provision, a stipulation
that arbitration proceedings should be in English and a provision for
China International Economic and Trade Arbitration Commission
(CIETAC) arbitration. A dispute arose from a later sales contract
between the parties that contained a separate arbitration clause from
the co-branding agreement. Unlike the co-branding agreement, the arbi-
tration clause in the sales contract stipulated that arbitration proceedings
should be conducted in accordance with the CIETAC Arbitration Rules,
which designate Chinese as the default language. After a dispute arose,
EEG sent a notice of arbitration to CIETAC, which in turn forwarded the
arbitration notice and other documents to Lumos in Chinese. Until that
time, it was undisputed that the parties had communicated exclusively in
English. Lumos contacted the CEEG CEO and made it clear that it could
not understand the documents, upon which the CEO responded via
email explaining their source and content. The tribunal was constituted
without input from Lumos, who subsequently, however, participated in
the arbitral proceedings. The award ultimately went in favour of CEEG,
whose efforts to enforce the award in the United States was challenged on
the ground of improper notice. A US Court of Appeal upheld the claim,
finding that under the circumstances the language of the notice did not
meet the forum’s standards of due process, which requires it to be
‘reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to
present their objections’. In the case at hand, the Chinese language
deprived the applicant from participating in the constitution of the
tribunal and caused it prejudice.44
2.1.4 Delivered to the Addressee Personally

Article 3(1)(a) permits delivery to the addressee personally. No particular
issues are raised where the addressee is a physical person and is named as
such as a party to arbitral proceedings. Delivery may be effectuated by
any of the means set out above, in which case the addressee will sign as
proof of receipt in his or her own name. If a ‘delivery to an addressee
44
CEEG (Shanghai) Solar Science & Technology Co., Ltd v. Lumos Solar LLC (10th Cir. 2016).

2. paragraph 1 61
personally’ is to be meaningfully distinguished from the other places of

address stipulated in article 3(1)(a), it can only mean that the sender may
deliver the notice or written communication to the addressee at any
location, as long as this is not unlawful under the laws of the lex arbitri.
Hence, the addressee may be served at his or her place of work, at
a restaurant, or while on vacation, but the service must be upon his
person.45
The concept of ‘personal delivery’ may be appropriate for legal persons
only in circumstances where notice is received by a legal representative in
a place other than the company’s place of business, habitual residence or
mailing address. The Model Law seems to imply that this is indeed possible,
unless the lex arbitri or the parties’ agreement expressly stipulates otherwise.
2.1.5 Mailing Address

It is only in exceptional circumstances that a party’s mailing address will
not coincide with one of the three ‘places’ identified in paragraph 1(a). In
the event that the mailing address is indeed different, this will be, or should
have been, notified to the other party and the tribunal at the soonest
possible instance. In fact, the purpose of a ‘mailing address’ is not to render
this a distinct fourth ‘place’, but rather to serve as the actual place of
delivery of documents, legal notices and awards. In practice, all written
notices are served by courier-type services46 – or by electronic means
where the parties have specifically designated these – and hence
a mailing address effectively corresponds to one or all of the three afore-
mentioned ‘places’. It has already been noted elsewhere47 that institutional
rules afford the parties significant latitude with regard to means of delivery.
Even so, an agreement as to a means of delivery does not imply agreement
that such delivery will always lead to an effective receipt. The Madrid
Provincial High Court has held that the mere acknowledgement of receipt
of a letter was not evidence of its content, since it was not registered and,
moreover, it might be delivered to a person who was not the addressee and
who had no obligation to ensure that it reached the addressee.48
45
Contrast this to Cherney v. Deripaska [2007] EWHC 965 (Comm.), which concerned an
attempt to effect service on a Russian businessman, but such service was ultimately made
to his butler at the businessman’s residence. This was held as not constituting ‘personal
service’ on the respondent.
46
The last line of art. 3(1)(a) of the Model Law specifically stipulates ‘registered letter or any
other means which provides a record of the attempt to deliver it’.
47
For example, LCIA Rules, art. 4(1) and (3), and ICC Rules, art. 3(2).
48
CLOUT Case 967, Madrid Provincial High Court (Section 19) Judgment No. 225/2006
(12 September 2006).

62 a r t i c l e 3 : r e c e i p t o f wr i t t e n co m m u n i c a t i o n s
However, in situations where a registered notification was delivered to

the addressee’s mailing address, without having been returned or denied
receipt, the Australian Federal Court was willing to assume that someone
associated with the party had signed and effectively received it.49 Courts
elsewhere have accepted that mailing receipts constituted sufficient evi-
dence of delivery,50 assuming the parties agreed on such a form of notice.
One should not, however, underestimate situations where a party or its
representative either refuses to accept a notice or otherwise intentionally
fails to record receipt. In CLOUT Case 451, the award was sent to the
claimant’s counsel via registered mail receipt. Although it was delivered,
counsel did not sign or return the receipt. This was confirmed upon
subsequent inquiry by the chairman of the tribunal and counsel for the
claimant sent a letter to this effect. The Bundesgerichtshof held that the
requirement of acceptance as being served was not fulfilled, as counsel
did not sign the postal form indicating receipt of the document and did
not send this form back to the sender, but kept it in his records. His letter
to the chairman of the tribunal just indicated that the award arrived, but
did not constitute a clear acceptance as service.51 In such situations, the
sending party should not be complacent and cannot rely on residual
means of notification under the second limb of paragraph 1(a) of article
3. Rather, the sender should serve the other party in any other way under
the laws of the seat that vitiates refusal to receive or acknowledge receipt.
This may involve the formal process of notifications otherwise reserved
for judicial processes.
It is not clear whether a post box (or a mere postal address) that does
not correspond to an actual place of business satisfies the criteria of
article 3(1)(a). Given that the first part of subparagraph (a) does not
place any qualification on the four possible ‘addresses’, it would seem that
if one of the parties to an arbitral dispute had consistently used that postal
box for the entirety of his contractual dealings with the other party (e.g.
through their communication or other service of documents), this should
suffice for the purposes of article 3(1)(a). Of course, the practical problem
here is that upon delivery there would be no one to verify receipt. In this
case, the sender would be well advised to choose a different place of
delivery, such as where proof of receipt can be verified.
49
Uganda Telecom Ltd v. Hi-Tech Telecom Pty Ltd [2011] FCA 13.
50
Vicere Livio v. Prodexport, Italian Court of Cassation, Case No. 3456, judgment
(26 May 1981), [1982] VII YB Intl Arb. 345.
51
CLOUT Case 451, III ZB 572/00 (2001).

2. paragraph 1 63
2.1.6 Place of Business

Other multilateral treaties or model laws and instruments adopted by
UNCITRAL stipulate notification addresses other than the three articulated
in article 3(1)(a) of the Model Law. Some of these are similar to the concept
of place of business and include: ‘centre of main interests’52 and ‘establish-
ment’. Article 10 of the 1980 Convention on the Sale of Goods (CISG) refers
to a ‘place of business’ and ‘habitual residence’ in the following terms:
(a) if a party has more than one place of business, the place of business is
that which has the closest relationship to the contract and its perfor-
mance, having regard to the circumstances known to or contemplated
by the parties at any time before or at the conclusion of the contract;
(b) if a party does not have a place of business, reference is to be made to
his habitual residence.
Although two of the terms are identical to that in article 3 of the Model
Law, article 24 of the CISG makes it clear that the various addresses
intend to ensure, among others, that ‘an offer, declaration of acceptance
or any other indication of intention reaches the addressee’. In fact, this
may be done orally as well as in writing. The CISG definition aims to
serve an objective different from the notice requirement of article 3 of the
Model Law,53 but there is no other reason why the parties to arbitral
proceedings cannot rely on it to determine ‘a place of business’.54 In fact,
the less detailed definition of ‘place of business’ in article 1(4) of the
Model Law follows the rationale and wording of article 10 of the CISG as
is confirmed by the travaux.
The most appropriate definition of a party’s ‘place of business’, for the
strict purposes of article 3, is not necessarily the legal seat of a party, or its
principal place of business, or head office.55 Given that the objective of
article 3 is effective receipt of a written communication – and in this light
it allows even for personal delivery – the place of business may be
52
See In re. Legend Intl Holdings Inc. [2016] VSC 308, which concerned arts 6 and 16(3) of
the 1997 Model Law on Cross-Border Insolvency; equally, in Re. Paul Zeital Kemsley, 489
BR 346 (Bankr. SDNY 2013).
53
See also CISG, art. 69(2), which links a party’s place of business with the delivery of goods.
54
In fact, the travaux to the Model Law confirm that art. 1(4) of the Model Law was
predicated on art. 10 of the CISG. It was clearly stated that the ‘criterion of “closest
connection” was adopted because it was thought to reflect better the expectations of the
parties and, in particular, for the sake of consistency with [Art 10 CISG]’. See Analytical
Commentary on Draft Text of a Model Law on International Commercial Arbitration:
Report of the Secretary-General, UN Doc. A/CN.9/264 (25 March 1985), para. 33.
55
Ibid., para. 33.

64 a r t i c l e 3 : r e c e i p t o f wr i tt e n co m m un i c a t i o n s
different from the seat of the party, if its actual place of business is
elsewhere. In transnational arbitration, a company ordinarily seated in
country A may have to incorporate again in country B, which is where the
contract is to be performed. The new company premises in country B are
merely a representative office, with its principal seat and place of key
operations remaining in country A. For the purposes of arbitral proceed-
ings, however, the party’s place of business is the address in country B, as
long as this remains an effective address during the arbitral proceedings.
We have already seen that in CLOUT Case 1448 the claimant sought to
identify the defendant’s place of business through the Russian register of
foreign companies. As a matter of caution, he was advised to look in the
similar register of the defendant’s country of origin (Turkey) because its
accreditation in the Russian register had expired.56 In case of multiple
places of business, the prevailing one is that which has featured the most
in the parties’ transactions (i.e. by reason of prior mail exchanges,
effective letterheads, appearance in official website, past place of meet-
ings, registered company address, etc.).57 In general, substance over form
is the best determinant of a party’s place of business.
2.1.7 Habitual Residence

Unlike article 10(b) of the CISG, where a habitual residence is subsidiary
to a party’s place of business, this is not the case in the context of the
Model Law.58 However, the Model Law does not explain the meaning of
‘habitual residence’ and there is a scarcity of case law specifically pertain-
ing to the Model Law in this respect. The term is encountered in other
contexts, such as the Brussels II bis Regulation,59 the 1980 Hague
Convention on the Civil Aspects of International Child Abduction and
the UNCITRAL Model Law on Cross-Border Insolvency. The latter
instrument is closely connected to the purposes of article 3(1)(a) of the
Model Law and has been the subject of some interpretation by the courts.
56
CLOUT Case 1448, International Commercial Arbitration Court judgment 126/2008
(7 September 2010).
57
See e.g. LCIA Rules, art. 4.2.
58
The travaux suggest that the Federal Republic of Germany had proposed that reference to
a habitual residence in art. 1(3) and (4) of the Model Law be made subsidiary to a place of
business, where such a place was not found to exist. The proposal was not accepted. See
59
Council Regulation 2201/2003 of 27 November 2003, [2003] OJ L338/1, repealing
Regulation 1347/2000.

2. paragraph 1 65
In Steven Williams v. Alan Geraint Simpson, the High Court of New

Zealand held that the inquiry into habitual residence was a broad factual
one that took into account: ‘settled purpose, the actual and intended
length of stay in a state, the purpose of the stay, the strength of ties to the
state and any other state (both in the past and currently), the degree of
assimilation into the state (including living and schooling arrangements),
and cultural, social and economic integration’.60
2.1.8 Reasonable Inquiry

The requirement of a reasonable inquiry arises only after exhausting
efforts to serve notice at: (1) the addressee’s personal address; (2) his
place of business; (3) his habitual residence; or (4) his mailing address.
Arbitral institutions do not as a rule refer to a requirement of ‘reasonable
inquiry’ because of their own personal responsibility in most types of
notification. The general rule is, however, well stated in article 2(4) of the
UNCITRAL Arbitration Rules, whereby: ‘If, after reasonable efforts,
delivery cannot be effected . . . a notice 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
that provides a record of delivery or of attempted delivery.’ This is in
line with one of the earliest recorded cases in the UNCITRAL ‘2012
Digest of Case Law’, namely Skorimpex Foreign Trade Co. v. Lelovic
Co., where the winning party demonstrated that it had sent notice of
the arbitral proceedings to all three known addresses of the respondent,
thus having satisfied the requirement of a reasonable inquiry, with which
the Ontario Court of Justice agreed.61
In a Spanish case, it was held that proper notification of the award had
not taken place because of a lack of the necessary diligence to ensure
receipt by the addressee. In that case, a registered fax had been sent to the
domicile specified in the contract in which an arbitration clause had been
agreed, but the postal service had left notification saying ‘Undelivered,
house closed, notice mailed’. The Madrid Provincial High Court ruled
that there had been no other attempt at notification of the award and in
fact twelve days before the alleged notification of the award, the addressee
had registered another domicile.62 Article 5(a) of the Spanish Arbitration
60
Steven Williams v. Alan Geraint Simpson [2010] NZHC 1631; equally, Basingstoke
v. Groot [2007] NZFLR 363 (CA).
61
CLOUT Case 384, judgment (26 April 1991).
62
(6 October 2006). The violation concerned art. 5 of the Spanish Arbitration Act 60/3003.

66 a r t i c l e 3: r ec e i p t o f wr i tt e n co m m u n i c a t i o n s
Act 2003 provides that if the addressee’s address cannot ‘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’. Spanish case
law suggests, as a result, that an attempt to send notification by registered
post is acceptable only as a back-up measure, where an attempt had
previously been made to provide notification in person or by electronic
or telematic means, and where, following a reasonable inquiry, the
addressee’s domicile, habitual place of residence or place of business
could not be established.63
In another case, there had been two notifications of the award deliv-
ered by the post office. One of them, sent by post with return receipt
requested, read ‘Returned – deceased’, and the other, also sent by post
with return receipt requested, had a handwritten notice saying ‘Absent’.
Such attempts to notify the addressee did not, in the Madrid Provincial
High Court’s opinion, conform to the requirement of reasonable inquiry,
particularly since the addressee had not been advised that he could collect
the communication at the post office. The court therefore considered that
a further attempt at notification ought to have been made so that there
could be proof of delivery.64
In a case heard by the Russian International Commercial Arbitration
Court, the claimant, a Russian company, had summoned the plaintiff,
a Turkish construction company, at its primary and secondary places of
business in Russia, where the agreed work was to be constructed. Both
failed and the claimant adjourned the hearing in order to retrieve the
address through the Russian Uniform State Register of Foreign
Companies. The addresses of the respondent in the Register coincided
with those to which a notice of summons had been sent, but by that time
the respondent’s registration permit in Russia had expired and the
claimant was advised by the Arbitration Court that his notification
would have little chance of success, especially since the claimant did
63
CLOUT Case 967 (n. 48). This is to be contrasted with an earlier decision in the same year
by the same court, which ruled that it was valid to send a notification of an award by
registered post with acknowledgement of receipt, on the assumption that the envelope
contained the arbitral award, since no other content was likely. See CLOUT Case 969,
judgment 208/2006 (18 April 2006). CLOUT Case 967 is better aligned with the objectives
of art. 3(1)(a) of the Model Law, where the addressee’s place of business, habitual
residence or last-known address has not been identified.
64
(27 October 2005).

2. paragraph 1 67
not appear at the subsequent hearing. It requested the claimant to take

additional steps to establish the respondent’s location at its place of
registration in Turkey. Subsequently, the claimant notified the
Arbitration Court that he had retrieved the respondent’s last-known
address from the register of the Istanbul Chamber of Commerce and
that notice by courier had been sent, but the claimant had not received it.
The Arbitration Court was satisfied that the claimant had done every-
thing in his power to make a reasonable inquiry under article 3(1) of the
Russian International Arbitration Act, which notes that as a last resort
notice may be sent ‘by registered letter or any other means which
provides a record of the attempt to deliver it’.65
It should be pointed out that service to the addresses associated with
the requirement of a ‘reasonable inquiry’ (i.e. the second part of subpar-
agraph (a)), although exhaustive, does not require receipt; what is
required is ‘a record of the attempt to deliver’. It goes without saying
that if the respondent demonstrates that although it was difficult to be
tracked down, it could have received the service elsewhere, a record of an
attempt to deliver shall not suffice.
2.1.9 Last-Known Place of Business

In practice, where the party intending to serve notice is unable to find
a current and effective mailing address, business address or habitual
residence, he will turn to the other party’s last-known address.
However, because a ‘last-known address’ is situated in the second part
of subparagraph (a), the sender is not discharged of its responsibility of
proper notice simply by delivering a notice to such address. Rather, at
this stage of ‘reasonable inquiry’, the sender must seek to find the most
effective address in order to effect service and this may not necessarily
be the last-known address of the other party. So, clearly, the last-known
address is an address of last resort where the sender has satisfied the
court or the tribunal that despite all its efforts it has been unable to
service the other party at any other address.
In CLOUT Case 870, the claimant had delivered a declaration of
enforceability of an award to the defendant’s last-known business address
and the last-known address of its general manager, but not to the habitual
address of its general manager. The Oberlandesgericht Dresden empha-
sised that since section 1028(1) of the German ZPO does not require the
tribunal or the parties to make a ‘reasonable inquiry’, delivery to the last-
65

68 a r t i c l e 3 : r e c e i p t o f wr i t t e n co m m u ni c a t i o n s
known address of the defendant was sufficient.66 The court deduced that
the agreement gave rise to an obligation to inform each other about
changes to their respective addresses. Where a party fails to notify the
other of a change of address and the place of business or habitual
residence of that party is not known to the other party, the latter is
justified in making a notification to the last-known address. Such
a process may also satisfy the ‘reasonable inquiry’ requirement.
This sensible rule was overlooked by the Swedish Supreme Court in
2010.67 The claimant, a Russian company, had through the International
Commercial Arbitration Court (ICAC) delivered a notification of arbitral
proceedings to the respondent, a Swedish company, at its last-known
address, given that it could not be traced elsewhere. As it later transpired,
the respondent had changed its address prior to the arbitral proceedings,
but had not informed the claimant, even though such an obligation
existed under their mutual contract. The arbitration went ahead without
the participation of the respondent, who only later appealed against
enforcement of the award in Sweden. Surprisingly, the Swedish
Supreme Court sided with the respondent, in a way that is hardly justified
and in breaking with the rationale of existing practice or indeed article
3(1)(a) of the Model Law.
Unlike paragraph 1(a), which requires a ‘reasonable inquiry’, section
1028(1) of the German ZPO does not in respect of a party’s current
address. Service to the last-known address was sufficient as the arbitral
tribunal was not obliged to investigate the address of the defendant.68
2.1.10 Proof of Delivery in Electronic Notifications

Proof of receipt in the case of non-electronic notices is generally straight-
forward because the addressee or its representative will have to sign, or
accept receipt upon service. In the context of electronic notices, there are
not always available mechanisms by which to show receipt, unless the
addressee expressly declares as such. Practice, therefore, suggests that
electronic service is deemed effected upon successful delivery, without
any subsequent proof of receipt by the intended addressee. This is based
on the rationale that modern technology is able to provide confirmation
of delivery. As a result, it is assumed, in those cases where the parties have
66
CLOUT Case 870, Oberlandesgericht Dresden, 15 March 2006, 11 Sch. 19/05.
67
OAO Lenmorniiproekt v. Arne Larsson & Partner Leasing AB, judgment (16 April 2010).
See H. Dahlberg and M. Örhström, ‘Proper Notification: A Crucial Element of Arbitral
Proceedings’ (2010) 27 JOIA 539.
68

2. paragraph 1 69
agreed to electronic forms of written communication, that upon success-

ful delivery the responsibility of the sender has been discharged and that
the recipient is able to access the notice. In this respect, one should note
the definition of receipt offered by article 10(4) of the 2005 UN
Convention on the Use of Electronic Communications in International
Contracts.69
In Bauen Constructions Pty Ltd v. Sky General Services Pty Ltd and
Another,70 the plaintiff had served an adjudication response to the
defendant by email. While the email was received it was, nonetheless,
withheld by the spam filter of the adjudication body. Although the case
pertains to the UN Convention on the Use of Electronic
Communications in International Contracts (ECC), this treaty is impor-
tant for the purposes of the Model Law, because electronic means of
notification are permitted, albeit without any indication as to proof of
delivery.71 In the case at hand, the Supreme Court of New South Wales
held that the email was clearly received, even though it was caught by the
spam filter. Additionally, the court noted that the words ‘capable of being
retrieved’, required under the pertinent law, certainly do not require an
email to be opened, or read. The spam filter caught an email that was
archived and accessible via the adjudication body’s external IT consul-
tant. Consequently, according to the pertinent Act,72 when an email was
sent and was capable of being retrieved, but had not been actually opened
or read, it could be considered as being received by the addressee, and
thus ‘lodged’.
In Anhui Provincial Import and Export Corp. v. Hart Enterprises Intl,
the notification of the respondent regarding the commencement of
arbitral proceedings was done by fax. The respondent argued that he
had not received the fax in question and claimed a denial of justice and
sought to stay the arbitration. Ultimately, a US District Court for the
Southern District of New York held that a fax activity report and a copy of
an airway bill showing dispatch of the notice satisfied the requirements of
proper notice.73
69
See also 1996 UNCITRAL Model Law on Electronic Commerce, art. 15(2)–(4).
70
[2012] NSWSC 1123.
71
Article 10(2) and (4) of the ECC stipulate that the ‘time of receipt of the electronic
communication is the time when the electronic communication becomes capable of being
retrieved by the addressee at an electronic address designated by the addressee’.
72
New South Wales Electronic Transactions Act 2000.
73
Anhui Provincial Import and Export Corp. v. Hart Enterprises Intl, 888 F. Supp. 587
(1995).

70 a r t i c l e 3 : r e c e i p t o f wr i t t e n co m m u ni c a t i o n s
2.2 Paragraph 1(b)

Paragraph 1(b) makes the point that a communication is deemed to have
been received on the day it is so delivered.74 The purpose of this provision
is to cater for the various deadlines in the arbitral process, whether these
are stipulated in the law of the seat or the parties’ chosen institutional
rules. There has to be some definite point upon which such deadlines
commence, otherwise the entire process of arbitration would be in dis-
array and the parties could argue varying dates of receipt. In this sense,
paragraph 1(b) sets out a rebuttable presumption of same-day delivery-
receipt, against which the respondent bears the burden of proof. Such
a rebuttal will be exceptionally difficult to substantiate, unless the sender
has somehow manipulated the service. This sensible rule is replicated in
institutional rules in similar terms, thus giving rise to a uniform
approach. The rule applies aptly in respect of both electronic and non-
electronic forms of written communication.75
Concerning periods of holiday that are close to the date of delivery,
institutional rules are again consistent in their approach. This is certainly
the case with article 3(4) of the ICC Rules.76
3. Paragraph 2
The arbitral process in any given dispute may require recourse to the
courts of the seat, or the courts of other countries (e.g. in order to seek
evidence or to request the stay of parallel proceedings). In such cases, the
parties’ mutual arrangements as to service, or indeed the stipulations of
article 1 of the Model Law, have no application. The law of the seat
regarding service will apply in all cases, as such law is mandatory on the
parties to a civil dispute. This is usually quite extensive and detailed as is
the case with part 6 of the English Civil Procedure Rules (CPR) Rules and
Directions.
74
Article 3(3) of the ICC Rules goes even further, adding to this sentence: ‘or would have
been received if made in accordance with Article 3(2) [ICC Rules]’.
75
Article 2(5) of the UNCITRAL Arbitration Rules makes a departure in this respect.
76
See also, to the same effect, LCIA Rules, art. 4.6 and UNCITRAL Arbitral Rules, art. 2(6).

Article 4
Waiver of Right to Object

ilias bantekas
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.
The Working Group’s preliminary discussions on the Model Law do not
reveal any real contemplation of the waiver now the subject matter of
article 4. In passing, the Working Group made reference to a waiver of
sovereign immunity in the event of a sovereign party entering into an
arbitration agreement1 and at the same time reference was made to article
21(3) of the UNCITRAL Arbitration Rules, which corresponds to article
8 of the Model Law.2 In the first draft of the Model Law, no reference to a
waiver of non-mandatory procedural rights was made,3 save for draft
article 28, concerning time limits for challenging the jurisdiction of the
tribunal.4 The issue was not discussed in the fourth or fifth sessions of the
1
Third Session, Discussions and Conclusions of the Working Group, UN Doc. A/CN.9/216
(23 March 1982), para. 28.
2
Ibid., para. 81.
3
See e.g. Note by the Secretariat: Model Law on International Commercial Arbitration,
Draft Articles 1–24, UN Doc. A/CN.9/WG.II/WP.37 (15 July 1982), reprinted in (1983)
XIV UNCITRAL YB 51; Report of Working Group II on the Work of Its Fourth Session,
UN Doc. A/CN.9/232 (1982).
4
Note by the Secretariat: Model Law on International Commercial Arbitration: Draft Articles
25 to 36 on Award, UN Doc. A/CN.9/WG.II/WP.38 (31 August 1982), draft article 28.
71

72 article 4 : w aiver of rig ht to object
Working Group, although by now there was an elaborate draft article on

time limits for jurisdictional claims.5
It is only at the sixth session of the Working Group that a draft article
on the waiver of procedural rights is introduced. Draft article I quater
stipulated that:
A party who knows that any provision of, or requirement under, this Law
has not been complied with and yet proceeds with the arbitration without
stating his objection to such non-compliance promptly, or if a time-limit
is provided therefor in this Law, within such period of time shall be
deemed to have waived his right to object.6
A footnote to draft article I quater makes it clear that it was modelled under
article 30 of the UNCITRAL Arbitration Rules.7 Although article 4 of the
Model Law is a verbatim reproduction of article 30 of the Arbitration
Rules, some rather important features render the two distinct despite their
similarities. The Rules do not make a distinction between mandatory and
non-mandatory rules and omit any reference to the parties’ arbitration
agreement. Significantly, the Rules fail to set out a timeliness test for the
operation of the waiver, as is the case with article 4 of the Model Law,
although it is true that the Model Law does not elaborate the concept of
timeliness. The general feeling was that this matter should be left to party
autonomy or the law applicable to arbitral proceedings.
The final wording of article 4 was put in place at the seventh session of
the Working Group.8 During the same session, one version of the final
draft included a supplementary knowledge element in brackets, namely
‘ought to have known’,9 alongside actual knowledge. This, however, did
not survive into the final draft.10
5
See e.g. Note by the Secretariat: Model Law on International Commercial Arbitration:
Revised Draft Articles I to XXII, UN Doc. A/CN.9/WG.II/WP.40 (14 December 1982);
Fifth Session, UN Doc. A/CN.9/233 (4 March 1983).
6
Redrafted Articles I–XII on Scope of Application, General Provisions, Arbitration
Agreement and the Courts and Composition of Arbitral Tribunal, UN Doc. A/CN.9/
WG.II/WP.45 (1983), reprinted in (1984) XV UNCITRAL YB 183, 185.
7
Ibid., fn. 12, referring further to suggestions made in UN Doc. A/CN.9/233 (n. 5), paras
66, 188.
8
Seventh Session, UN Doc. A/CN.9/246 (6 March 1984).
9
Composite Draft Text of a Model Law on International Commercial Arbitration: Note by
the Secretariat, UN Doc. A/CN.9/WG.II/WP.48 (1984), reproduced in (1984) XV
UNCITRAL YB 218, 221.
10
Analytical Commentary on Draft Text, UN Doc. A/CN.9/264 (25 March 1985), 17.

2 . s c o p e of t he w a i v e r 73
Interestingly, the Working Group raised the issue as to whether a party

would be able to submit a non-compliance claim at the annulment (set-
aside) or enforcement (in respect of foreign awards) stage. The Working
Group was adamant that the waiver in article 4 should have such ‘an
extensive effect’, stating that this should be incorporated explicitly in
article 36 of the Model Law.11 States did not make extensive comments
on the development of article 4. Sweden felt that the non-mandatory
character of a provision is somewhat fluid and should ultimately be left to
the judgment of the tribunal or the courts.12 It went even further, along
with India, stating that the waiver should cover in addition to non-
mandatory provisions also mandatory ones, because it does ‘not appear
appropriate to allow a party who has taken part in the arbitral proceed-
ings without objecting to a deficiency in the form of the arbitration
agreement to raise such objection later when the award is made against
him’.13 Poland wished for this matter to be clarified in the text of the
Model Law.14 The Finnish delegation emphasised that parties should be
precluded from raising claims at the set-aside and enforcement stages if
they had failed to raise these in a timely manner during the arbitral
proceedings.15
2. Scope of the Waiver

Article 4 should be read in conjunction with article 8 of the Model Law.16
Article 4 encompasses only non-mandatory requirements, thus effec-
tively confirming that waivers in respect of non-mandatory provisions
of the Model Law are null and void. This is true, for example, in respect of
fundamental due process guarantees, as these are enshrined in article 18
of the Model Law. Second, besides non-mandatory requirements
11
Composite Draft Text of a Model Law on International Commercial Arbitration: Some
Comments and Suggestions for Consideration: Note by the Secretariat, UN Doc. A/CN.9/
WG.II/WP.50 (1984), para. 11; see also to the same effect in UN Doc. A/CN.9/264 (n.
10), 17.
12
on the Draft of a Model Law on International Commercial Arbitration, Report by the
13
Ibid., 15.
14
Ibid., 16.
15
Ibid.
16
Article 13(2) of the Model Law is also relevant in respect of challenges against arbitrators.
This provision is specific to its particular subject matter and its timeliness rule cannot be
extended to situations covered under art. 4.

74 a r t i c l e 4 : w a i v e r of ri g ht t o o b j ec t
stemming from the law, article 4 covers also requirements arising from
the arbitration agreement.
Article 4 does not concern itself with a tacit waiver of arbitral proceed-
ings in favour of litigation in the event that one of the parties to an
arbitration agreement fails to request a stay of court proceedings.17 Such
a waiver is dealt with by article 8 of the Model Law, but several cases
concerning the application of article 8 shall be relied upon here because
of their conceptual similarities with the issues encountered in respect of
article 4 of the Model Law. Article 4 encompasses all those situations
following the triggering of the arbitration clause by one of the parties and
even before the tribunal has been constituted.
This means that a party is precluded from challenging the violation of a
non-mandatory provision even at the stage of enforcement of a foreign
award. The New York Convention (as well as articles 35 and 36 of the
Model Law) is silent as to whether the party challenging an award before
the courts of the country where enforcement is sought must have availed
itself of pertinent remedies available at the seat of the arbitration, namely
set-aside proceedings.18 This observation is significant because set-aside
remedies are almost identical to challenges against awards under the New
York Convention and hence failure to avail oneself of the former may be
perceived as an abuse of process that serves to preclude later challenges at
the enforcement stage. Given the absence of a direction in the
Convention, two considerations are relevant. On the one hand, the
Convention clearly grants the right to challenge recognition and enforce-
ment of a foreign award without subjecting it to preclusion limitations;
this individual entitlement must no doubt be preserved. On the other
hand, the Convention gives significant weight to the lex fori and it is
natural that the aforementioned individual entitlement under the
Convention cannot override the forum’s fundamental principles of civil
17
In practice, arbitral tribunals have distinguished (tacit) waivers on procedural matters
within the arbitral process from similar waivers concerning stays in favour of litigation. In
CLOUT Case 780, the tribunal established under the Cairo Regional Center for
International Commercial Arbitration (CRCICA) accepted that the respondents had
filed a case before the competent national court against the claimant who neither invoked
the arbitration clause nor submitted a plea for non-admissibility (and in fact submitted a
memorandum of defence). Ordinarily, therefore, and given that the respondent’s claim of
inadmissibility was made in their first submission, they had not waived their right in
favour of litigation. However, it felt reluctant to stay arbitral proceedings, stating that the
waiver of the right to arbitrate under an arbitration clause may not be presumed and that
it has to be clear and unequivocal.
18
See n. 12 for the clear view of the travaux on this issue.

2 . s c o p e of t he w a i v e r 75
procedure. This argument is even more convincing where such civil

procedure principles are common to several nations, thus giving rise to
a general principle of law.
The practice of national courts demonstrates some uniformity in
their approach to a party’s failure to raise defences before the courts
of the seat, especially if it had participated in the arbitral proceedings.
As regards challenges against arbitral jurisdiction, these must be raised
no later than one’s statement of defence. In respect of other challenges
under subparagraph (1) of article V of the New York Convention,
failure to raise a challenge in the course of arbitral proceedings gen-
erally precludes similar objections in enforcement proceedings.19 Three
legal justifications are utilised in order to preclude subsequent chal-
lenges, namely estoppel, waiver (especially by conduct) and bad faith.
Estoppel precludes the invocation of an otherwise legitimate claim by
reason of the fact that the claimant has consistently induced others to
rely on prior contradictory conduct.20 The French Court of Cassation
has employed estoppel to bar further challenges under article V of the
Convention if: (1) there is a change in position of the concerned party
and; (2) its behaviour is such as to mislead the other party with a view to
relying on said behaviour.21 A waiver suggests that the claimant has
implicitly waived its right to invoke a particular claim by consciously
failing to exercise that claim,22 or by engaging in conduct that necessa-
rily extinguishes the claim.23
Preclusion on the basis of bad faith is similar to estoppel in that the
claimant is not permitted to rely on its claim after having misled its
counterpart. A party will be precluded from making fresh challenges
under the New York Convention, as a matter of bad faith, where its
19
Natl Wrecking Co. v. Intl Bhd of Teamsters, 990 F.2d 957 (7th Cir. 1993), 960; SOCAR v.
Fronter, Svea Appeals Court judgment (4 April 2009); see also CLOUT Case 1349,
decided by the Judicial Division of the Supreme Commercial Court of the Russian
Federation.
20
See S. Wilken and K. Ghaly, The Law of Waiver, Variation and Estoppel (Oxford
21
Merial v. Clocke Verspakung-Service Gmbh [2010] Rev. Arb. 93; Hebei Import & Export
Corp. v. Polytek Engineering Ltd [1999] 2 HKC 205. See R. Wolff (ed.), New York
Convention Commentary (Beck, 2012), pp. 256–257.
22
See CLOUT Case 1656, Assam Co. India Ltd v. Canoro Resources Ltd (2014) BCSC 370.
23
See Intl Standard Electric Corp. v. Bridas Sociedad Anonima Petrolera Industrial v.
Comercial, 745 F. Supp. 172 (SDNY 1990); Swiss Federal Supreme Court, Case Nos
4A_348/2009 and 4A_69/2009; Spanish Supreme Court (TS) judgment in Union
Générale de Cinéma SA v. XYZ Desarrollos SA (2007) XXXII YB Com. Arb. 525.

76 article 4 : w aiver o f right to object
behaviour is contradictory and at the same time said behaviour consti-

tutes an abuse of law.24
Overall, despite the clear inclination in favour of precluding challenges
not raised in the course of arbitral proceedings (including set-aside), if
the claimant was for some compelling reason prevented from exercising
its right to challenge the award at the seat (particularly absence of knowl-
edge and incapacity to make a claim), the forum should not lightly
preclude its claims against enforcement.
3. Nature of the Waiver

The waiver contemplated in article 4 is of a procedural, rather than a
contractual (substantive), nature. This distinction is important because if
the conduct giving rise to the waiver was premised on contract, it would
have to be assessed on the basis of pertinent principles of contract law.
These principles are similar in both name and content in the law of civil
procedure and contract, but there might be small or significant differ-
ences between them in the two bodies of law. Hence, it is of vital
importance that counsel do not simply transplant a contractual principle
and apply it in the realm of civil or arbitral procedure. For the purposes of
article 4, the legal nature of the waiver may be grounded on general
procedural principles such as good faith, estoppel or its civil law equiva-
lent venire contra factum proprium,25 as these are found in the law of civil
procedure, which in turn would apply to arbitration as a lex specialis
creature of procedure. The Model Law is silent as to the precise legal
nature of the waiver in article 4 and hence states adapting the Model Law
into their domestic legal systems may rely on existing principles,26 or
enact the waiver as an autonomous principle that is unconnected to
existing procedural rules/principles. The autonomy model seems to pre-
vail in all those Model Law jurisdictions that have adopted article 4
verbatim. One should, however, investigate whether more detailed ele-
ments of the waiver exist in discreet laws (e.g. timeliness test or time
limits). A discussion of all relevant connecting principles is beyond the
scope of this chapter, so we shall confine our analysis to two – namely,
good faith and abuse of right.
24
BGH judgment (17 April 2008), SchVZ (2008), 196.
25
See UN Doc. A/CN.9/264 (n. 10), 17.
26
Some commentators assert that the origins of art. 4 of the Model Law are found in the
common law principle of estoppel. See L. Mistelis (ed.), Concise International Arbitration
(Kluwer, 2010), p. 593.

3. nature of the wa iver 77
3.1 Good Faith

Good faith constitutes a general contractual duty in civil law legal sys-
tems,27 but it is not an integral part of contracts in several jurisdictions,
most famously under English law (unless the parties have specified as
much).28 Good faith does exist as a principle of civil procedure law, in
addition to its contractual manifestation, and is encountered in: (1)
general international law; (2) domestic procedural laws; (3) soft law
instruments; and (4) the rules of arbitral institutions.
As regards (1), the key principle is article 31(1) of the 1969 Vienna
Convention on the Law of Treaties (VCLT), where good faith is a rule of
treaty interpretation. Given that the VCLT applies to all treaties, it
naturally encompasses treaties or treaty provisions with a procedural
character. The ICJ has confirmed that although good faith ‘is not in itself
a source of obligation’,29 it has nonetheless made it clear that it is a
fundamental principle of legal obligations,30 including also procedural
obligations.
As regards (2), good faith is also enshrined in a significant number of
domestic procedural laws, such as article 247(1) of the Spanish Code of
Civil Procedure.31
Concerning (3), there exists a significant body of lex mercatoria.
Article 11.1 of the ALI/UNIDROIT Principles of Transnational Civil
Procedure provides that ‘[t]he parties and their lawyers must conduct
themselves in good faith in dealing with the court and other parties’. A
similar principle may be found in paragraph 3 of the Preamble and article
9(7) of the IBA Rules on the Taking of Evidence in International
Arbitration, whereby the tribunal may take into account a party’s failure
27
See e.g. section 242 of the German Civil Code (BGB).
28
English contract law has traditionally prided itself for refusing to recognise an implied
duty of good faith between contracting parties. See H. Beale, Chitty on Contracts, 31st edn
(Sweet & Maxwell, 2012), vol. 1, para. 39. Despite some judgments to the contrary, chiefly
Yam Seng Pte Ltd v. Intl Trade Corp. Ltd [2013] EWHC (QB) 111 (UK), paras 119–154,
but esp. para. 124, the situation seemed to remain the same. However, in MSC
Mediterranean Shipping Co. v. Cottonex Anstalt [2015] EWHC 283, the High Court
recognised the existence of good faith as an ‘organising principle’ of the common law,
following the judgment of the Canadian Supreme Court in Bhasin v. Hrynew, 2014
SCC 71.
29
Border and Transborder Armed Actions (Nicaragua v. Honduras), Judgment, (1988) ICJ
Rep. 69, 105.
30
Nuclear Tests case (Australia v. France), (1974) ICJ Rep. 253, 268.
31
See B. M. Cremades, ‘Good Faith in International Arbitration’ (2012) 27 Am. U. Intl L.
Rev. 761, 769.

to conduct itself in good faith. The drafters of the IBA Guidelines have
described good faith as an ‘overarching balancing exercise to be con-
ducted [by the arbitral tribunal] in addressing matters of misconduct by a
party representative in order to ensure that the arbitration proceeds in a
fair and appropriate manner’.32
Finally, as regards the rules of arbitral institutions, it is natural that
they are not constrained by the vexing debate as to the status of good faith
in substantive and procedural law. Article 14.5 of the 2014 LCIA
Arbitration Rules provides, for example, that: ‘at all times the parties
shall do everything necessary in good faith for the fair, efficient and
expeditious conduct of the arbitration, including the arbitral tribunal’s
discharge of its general duties’. Although no express reference to good
faith is made in the ICC Arbitration Rules, article 40 thereof iterates the
procedural estoppel enunciated in article 4 of the Model Law.
3.2 Abuse of Right and Estoppel

While we have already explained that several domestic laws view the
absence of a formal objection under the terms of article 4 of the Model
Law as a violation of procedural good faith, others have viewed it also
from its opposite lens. The Indian Supreme Court, for example, has
consistently held that failure to raise an objection estops the party from
raising an objection after the award is issued.33 The Supreme Court has
effectively described a party’s failure to raise an objection to constitute a
tacit waiver as to the claim,34 which in turn estops it from its entitlement
as to that particular claim. The principle of estoppel (in its many man-
ifestations) requires knowledge on the part of the actor that fails to make
a timely claim and this is expressly recognised in article 4 of the Model
Law.35 The plea of estoppel is often associated with the plea of waiver.
The French Supreme Court has defined this type of procedural estoppel
32
See K. P. Berger and T. Arntz, ‘Good Faith as a General Organizing Principle of Common
Law’ (2016) 32 Arb. Intl 167, 168.
33
G. Engineers Pvt. Ltd v. Calcutta Improvement Trust, AIR 2002 SC 766; equally, see
Narayan Prasad Lohia v. Nikunj Kumar Lohia (2002) AIR 1139, BSNL v. Motorola
India Pvt. Ltd, 2008 (7) SCC 431 and SN Malhotra & Sons v. Airport Authority of India,
149 (2008) DLT 757 (DB), as per the Delhi High Court.
34
See CLOUT Case 1158, decided by the Zaragoza Provincial High Court (section 5), which
talks of a tacit waiver.
35
But the type of estoppel in art. 4 of the Model Law should be distinguished from other
types of estoppel applicable in arbitration, such as collateral estoppel, which precludes re-
litigation of issues already conclusively determined.

3 . na tur e o f the w aiver 79
as ‘procedural behaviour … constituting a change of position, on the

merits, the nature of which misleads [the opposing party] about [the
challenging party]’s intentions’.36
In Telestat Canada v. Juch-Tech, it was alleged by the applicant that the
tribunal had exceeded its jurisdiction by apportioning costs in its award,
even though the arbitration agreement explicitly stated that each party
was to bear its own costs. The award was issued in New York, but was
contested during its enforcement in Ontario. The Ontario Superior
Court of Justice held that the applicant had not waived the parties’ clause
providing that each was to bear its own costs. The court emphasised that
for a waiver of the right to object to be considered as such under the
Model Law, the waiving party must have unequivocally and consciously
abandoned rights of which it had full knowledge.37 In equal manner, the
Swedish Supreme Court in AJ v. Ericsson AB was confronted with a
challenge of impartiality against an arbitrator after the award had been
issued. The court held that the claimant was not precluded from making
the claim because he only found out about the facts giving rise to
impartiality at a late stage of the proceedings.38
In Merial SAS v. Klocke Verpackungs-Service GmbH, the claimant
sought to set aside an award, arguing that it was not given the opportunity
to reply in writing to new claims introduced by the defendant two months
before a scheduled hearing during the arbitration proceedings, and that in
addition the tribunal passed judgment on claims in tort contrary to the
parties’ submission agreement. The Paris Court of Appeal rejected the
claimant’s arguments on the basis that the claimant had not objected to a
procedural order issued by the arbitral tribunal stating that both parties
had an opportunity to explain their views about the admissibility of the
defendant’s new claims. The court also added that the claimant signed the
transcript of the hearing, which took place after the introduction of the
defendant’s new claims, without protesting. It concluded that the claimant
was estopped from entertaining its claims in accordance with article 1466
of the French Code of Civil Procedure (CCP).39
36
Société Merial v. Société Klocke Verpackungs, Cass. Civ. 1 (3 February 2010), No. 08–
21.288. See ‘Principle of Procedural Estoppel under French Arbitration Law’, www
.lexology.com/library/detail.aspx?g=246b1c08-e4f1-406d-88d5-10e2c1e5e8b1#6.
37
CLOUT Case 1266, Telestat Canada v. Juch-Tech.
38
AJ v. Ericsson AB (2007) NJA 841.
39
Merial SAS v. Klocke Verpackungs-Service GmbH (9 October 2008); see also, to the same
effect, Sociétés TAI, ESW et IEC v. Sociétés SIAPE, Engrais de Gabès et autres, CA Paris (2
June 1989), No. 88/8256; STPIF v. SB Ballestrero, CA Paris (16 May 2002), No. 2000/
20742; Golshani v. Gouvernement de la République Islamique d’Iran, Cass. Civ. 1 (6 July

80 article 4 : waiver of right to object
3.3 Knowledge
All domestic procedural principles related to the waiver in article 4 require
some degree of knowledge as to the irregularity on the part of the claimant.
Without actual knowledge, the right to challenge the irregularity cannot be
waived. The thorny issue is the degree of knowledge required by the
claimant. While the Model Law is silent, during the negotiating history
of article 4 a draft circulated at the seventh session enunciating an ‘ought to
have known’ standard, in addition to actual knowledge.40 This, however,
was omitted from the final version of article 4 of the Model Law, so it is
clear that the drafters purposely decided to uphold a standard of actual
knowledge. Even so, given that article 4 allows adapting states to ground
the waiver on existing principles within their legal systems, negligence-
based standards should not be ruled out. By way of illustration, a waiver
based on good faith may demand that if the irregularity could have been
ascertained by a very simple and logical due diligence, then failure to do so
substantiates bad faith and abuse of process, in which case the claimant is
deemed to have waived his right to invoke the irregularity. In State Oil Co.
of the Republic of Azerbaijan (Socar) and Frontera Resources Azerbaijan
Corp. (Frontera), the Svea Court of Appeal, relying on article 30 of the
UNCITRAL Arbitration Rules, whereby the waiver applies to a party ‘who
knows’ of a procedural error, held that the waiver does not apply to
circumstances which a party ought to have known.41 No doubt, the result
would be different where a party suspects a procedural irregularity but
intentionally omits to investigate when it could have done so.42
In practice, it will not always be possible to demonstrate the claimant’s
knowledge of an event or fact, so the tribunal or the court will have to rely
on circumstantial evidence in order to infer knowledge. In the absence of
a valid arbitration clause, the submission of the dispute to arbitration by
the claimant, followed by a submission of defence by the respondent, has
been found to constitute a waiver in favour of arbitration.43 Of equally
2005), No. 01–15.912; Société Intl Co. for Commercial Exchanges (Income), Cass. Civ. 1 (6
May 2009), No. 08–10.281.
40
the Secretariat, UN Doc. A/CN.9/WG.II/WP.48 (1984), reproduced in (1984) XV
41
State Oil Co. of the Republic of Azerbaijan (Socar) and Frontera Resources Azerbaijan
Corp. (Frontera), RH 2009:55.
42
See Carpatsky Petroleum Corp. (Carpatsky II) case, decided by the Svea Court of Appeals,
RH 2013:30.
43
CLOUT Case 266, decided in 1999 by the Arbitration Court attached to the Hungarian
Chamber of Commerce and Industry.

4 . ‘w i t ho u t un d u e d e l a y ’ 81
quantifiable nature, one may cite the absence of any submissions in

respect of claims made at a much later stage of the proceedings. In
CLOUT Case 1349, one of the parties claimed at the enforcement hearing
in Moscow that the award should not be enforced because the tribunal
had breached the equal treatment principle under article 18 of the Model
Law. Whatever the validity of these arguments, the enforcement court
emphasised that on the basis of the case file the claimants had partici-
pated in the arbitral hearings and had not made any objections regarding
the way in which the arbitration proceedings had been conducted, nor
how their rights to due process had been violated. Their representative
had not submitted any evidence to the contrary to the courts, either.44
The Supreme Commercial Court of the Russian Federation rightly
rejected the application for non-enforcement.
The same line of reasoning applies in respect of late challenges against
arbitrators concerning alleged bias. Tacit waivers in such cases typically
concern the amount of information available to the claimant during the
proceedings. In Atlantic Industries Ltd v. SNC-Lavalin Constructors
(Pacific) Ltd, once the arbitrator had been confirmed, he realised that
his law firm was representing one of the parties in an unrelated transac-
tion and duly informed the parties, noting that if they felt uncomfortable,
he was happy to resign. The arbitrator subsequently informed the parties
through a series of letters of pertinent developments, but neither asked
him to resign. It was only at the end of the proceedings that one of the
parties challenged the arbitrator’s impartiality and the case ultimately
reached the British Columbia Supreme Court. Gaul J. noted that a waiver
cannot occur if the party’s knowledge is incomplete.45
4. ‘Without Undue Delay’

Article 4 does not explain the meaning of this phrase, and rightly so. This
is a matter that is dealt on a case-by-case basis by arbitral tribunals on the
basis of context and circumstances. What constitutes undue delay in a
44
See, equally, CLOUT Case 659, where the respondent failed to object to the arbitrator’s
decision to hold a documents-only process, only to raise a claim at the stage of enforce-
ment. The Oberlandesgericht Naumburg found that, according to s. 1027 of the ZPO
(which corresponds to art. 4 of the Model Law), the respondent was precluded from
relying on this procedural irregularity, since he did not object immediately when the
arbitrator announced his intention not to hold an oral hearing.
45
Atlantic Industries Ltd v. SNC-Lavalin Constructors (Pacific) Ltd (2017) BCSC 1263,
para. 23.

relatively straightforward dispute of small duration may not be so in a

much more complex and lengthier dispute. Unlike article 4, article 8 of
the Model Law sets out a much more definite time limit, namely ‘not later
than when submitting his first statement on the substance of the dispute’.
Given that the drafters of the Model Law deliberately chose not to use the
same language in both provisions, it is clear that different time limits are
envisaged in respect of the two waivers. But even in respect of article 8,
the courts have not hesitated to interpret ‘the submission of first state-
ment’ contextually, rather than literally. In Louis Dreyfus Trading Ltd v.
Bonarich International (Group) Ltd, the plaintiff argued that the defen-
dant could not rely on the waiver in article 8 of the Model Law because it
had made a first statement on the substance of the dispute. In an
affirmation, the defendant had stated: ‘[T]he defendant denies liability
to the plaintiff and will dispute the plaintiff’s claim on the ground that the
contracts in question do not bind the defendant.’ The Hong Kong
Supreme Court concluded that a single paragraph in an affirmation did
not amount, in the circumstances, to a first statement.46
In another case concerning an application for set-aside proceedings
because one of the parties was prevented from appointing a substitute
arbitrator, the Supreme Commercial Court of the Russian Federation
upheld the challenge. It noted that the challenging party had submitted
its first application for the case to be reheard with a substitute arbitrator
without undue delay after the original arbitrator’s death.47
5. Time Limits
Article 4 of the Model Law makes it clear that if a time limit has been set
by the parties, or by their chosen arbitration rules, then failure to make a
pertinent submission within such a deadline constitutes a waiver of the
procedural right in question. In contrast, article 8 of the Model Law
makes no reference to time limits for challenging the arbitration agree-
ment. In CLOUT Case 435, which concerned a challenge under article 8
of the Model Law, the defendant did not challenge the jurisdiction of
the tribunal within the time limit set by the court for the defence, but
invoked the existence of the arbitration clause before the hearing and
before taking any steps on the merits. The German Supreme Court held
the defence to be timely. On the basis of section 1032(1) of the
46
CLOUT Case 710, Louis Dreyfus Trading Ltd v. Bonarich Intl (Group) Ltd.
47
CLOUT Case 1352.

5. time limits 83
Zivilprozessordnung (ZPO, German Code of Civil Procedure), the

courts have an obligation to stay court proceedings if one party invokes
the existence of an arbitration agreement before the oral hearing on the
merits. Therefore, the expiry of the time limit set for the submission of
the defence was found to be immaterial.48 Such an outcome seems
untenable for the purposes of article 4 of the Model Law, as opposed
to article 8, because of its express stipulation therein. The rationale, of
course, is that the subject matter of article 8 concerns the arbitral
process as a whole (and the variety of rights and freedoms circum-
scribed therein) and hence cannot readily be dispensed by artificial time
limits, whereas article 4 encompasses a number of procedural issues of a
non-mandatory nature, from which the parties may freely depart by
consent.
In Fibre Excellence v. Tembec, the French Supreme Court dismissed an
application to set aside an award rendered by a truncated tribunal
because the claimant had failed to submit within the eight-day time
frame imposed by the ICC Arbitration Rules its comments regarding
the continuation of the proceedings without one of the arbitrators.49
Article 13 of the Vietnamese Law on Commercial Arbitration (LCA)
reproduces article 4 of the Model Law. While it does not set out ‘time
limits’, article 6 of Resolution No. 01/2014/NQ-HDTP issued by the
Council of Judges of the Supreme People’s Court stipulates that the
time limit to object is determined in accordance with the LCA. Where
the LCA does not specify such time limit, this may be determined by the
parties’ agreement or their chosen institutional or other rules.
48
CLOUT Case 435, (2001) NJW 2176.
49
Fibre Excellence SAS v. Tembec SAS, Cass. Civ. 1 (26 January 2016), No. 15–12.363.

Article 5
Extent of Court Intervention

ma nuel a. gó m ez
In matters governed by this Law, no court shall intervene except where so

provided in this Law.

Article 5 of the Model Law embodies the premise that the effectiveness of
the arbitral process is owed – at least in part – to the coercive authority of
state courts.1 The current text of article 5 was adopted in 1985 and was
left untouched by the 2006 amendments. Despite its limited scope, court
intervention has the potential of preventing and remedying injustices or
abuses – either by the parties or the arbitral tribunal – that might occur at
the outset of the arbitration or during the proceedings. Furthermore,
judicial intervention is precisely what ensures the effectiveness of the
decisions made by the arbitral tribunal and gives practical meaning to the
parties’ decision to prefer international arbitration over other forms of
dispute resolution. The critical role of the judiciary in aid of international
arbitration was recognised during the Working Group deliberations on
draft article 5, as one of the core elements of the Model Law. In this sense,
it was said that ‘the concept of a Model Law would be meaningless
without courts to enforce its provisions’.2
The recognition of the importance of court intervention was, however,
met with resistance by several Working Group members who cautioned
that judicial intervention ‘should be kept to a minimum’3 or even
‘avoided as far as possible’.4 One of their main concerns voiced during
1
UNCITRAL, ‘2012 Digest of Case Law’, p. 20.
2
Comment by Sir Michael Mustill (United Kingdom), at the 309th meeting, Wednesday, 5
June 1985, Summary Records for Meetings on the UNCITRAL Model Law on
International Commercial Arbitration, (1985) XVI UNCITRAL YB 414, para. 1.
3
Comment by Mr Bonnell (Italy), ibid., 416, para. 16.
4
Comment by Mr Lavina (Philippines), ibid., 415, para. 10.
84

1. ba ck ground a n d trav aux prép a r a t o i r e s 85
the Working Group deliberations was the possibility that ‘extensive

judicial control might delay arbitral proceedings and go against the
interests of international trade’.5 As a result, the text of article 5 was
worded in a way that limited judicial intervention ‘strictly to such matters
as are specifically provided’ in the Law.6 Furthermore, as expressed by the
Chairman of the 309th Working Group meeting, ‘states when enacting
the Model Law were not obliged to follow it to the letter. The fact that the
area which it governed was not defined precisely gave arbitrators and
judges a certain amount of discretion.’7
The inclusion of article 5, alongside several other provisions that
regulate the role of national courts under the Model Law,8 reveal that
its drafters recognised judicial intervention as a key component of the
international arbitration ecosystem. Moreover, despite having been
added relatively late to the Working Group deliberations, article 5 came
to be ‘regarded as a valuable attempt to reflect the philosophy underlying
the model law’.9 This is not to say that the meetings that led to the
approval of the 1985 text took place without any meaningful debate.
The travaux reveal important differences among delegates and observers
regarding the intensity of the proposed judicial intervention on the
arbitral process.10 The different positions articulated among the
Working Group members could be pictured along a spectrum ranging
from those who favoured more judicial control as a way ‘to prevent abuse
of the arbitration process,11 on the one hand, to those who believed that
‘courts should not have the right to intervene in arbitration cases’,12 on
the other. At the end of the discussions, the Commission came to an
agreement and the current text of article 5 was approved.
Interestingly, the deliberations about article 5 were not centred on
whether national courts should intervene to some degree or not at all, but
5
Comment by Mr Stalev (Observer for Bulgaria), ibid., 416, para. 19.
6
UNCITRAL, ‘2012 Digest of Case Law’ (n. 1), p. 20.
7
Comment by Mr Loewe (Chairman), at the 309th Meeting, Wednesday, 5 June 1985,
Summary Records (n. 2), 418, para. 40.
8
Model Law, arts 8, 9, 11, 13, 14, 16, 17J, 17H, 17I, 27, 34, 35, 36.
9
Comment by the United Kingdom of Great Britain and Northern Ireland, in Analytical
Compilation of Comments by Governments and International Organizations on the
Draft Text of a Model Law on International Commercial Arbitration, Report of the
Secretary-General, UN Doc. A/CN.9/263/Add. (21 May 1985), para. 19.
10
See, generally, Summary Records for Meetings on the UNCITRAL Model Law on
International Commercial Arbitration, 309th Meeting, Wednesday, 5 June 1985, (1985)
XVI UNCITRAL YB 414–418, paras 1–46.
11
Comment by Mr Goh (Singapore), at the 309th Meeting, ibid., 416, para. 12.
12
Comment by Mr de Hoyos Gutierrez (Cuba), ibid., 417, para. 34.

86 article 5 : extent of c ourt intervention
rather on how and when such intervention might occur.13 These two
central issues – scope and timing of judicial intervention – emerging
from the text of article 5 are seemingly straightforward. However, as can
be gathered from the travaux, the solution of any potential problems
regarding the practical application of article 5 would have to be addressed
by national legislation and the courts of each state, and not by the
Model Law.
Several national delegations and observers to the Working Group
contributed meaningfully to the debate on article 5, but perhaps the
most detailed observations were the ones contained in the addendum
to the Report to the Secretary-General, authored by the United Kingdom
(hereinafter, ‘UK Addendum’).14 It is important to note that – in addition
to article 5 – the UK Addendum addressed issues affecting other provi-
sions of the Model Law. As shown by the travaux, the UK was generally
supportive of the idea to include a special provision that regulated
judicial intervention, but it nonetheless expressed certain concerns that
in the view of its delegate could hinder the effective application of
article 5.
In general terms, the UK Addendum emphasised two principles that
the delegation considered to be the pillars of arbitration, to wit: (1) ‘the
flexibility and freedom of choice’ by the parties as an inherent feature and
prime advantage of arbitration; and (2) ‘the need to have in reserve a
prompt and effective means of [judicial] control’ that provides proper
remedy to a party injured by an arbitral process that is unfair.15 In
combination, these two principles supported the idea of limited judicial
intervention, which is precisely the scope of article 5.
The UK Addendum emphasised the need for a thorough exploration
of certain aspects of draft article 5, which could cause it to be ‘unworkable
in practice’.16 In this sense, the UK Addendum raised four questions for
consideration by the Working Group, namely:
(1) What matters are ‘governed by the model law’?
(2) At what stages of the arbitral process does the model law permit the
court to intervene?
(3) In what circumstances may a court properly intervene, when it is
proved that the award is the result of a procedural injustice?
13
Comment by the United Kingdom (n. 9), para. 37.
14
Ibid.
15
Ibid., paras 2 and 3.
16
Ibid., para. 21.

(4) Should the parties be enabled to vary by consent the incidence of

judicial intervention?17
In order to illustrate its concerns regarding the matters governed by the
Model Law, the UK Addendum posed by way of example a case where
one of the parties to arbitral proceedings seeks the intervention of a court,
which in turn determines that the situation is not ‘covered by any express
words’ of the Model Law.18 A court facing this situation should be able to
ascertain whether the framers of the Model Law: (1) had considered the
situation and decided that it should not be dealt with under the Model
Law; (2) after considering the situation, ‘decided that there should be no
power of judicial intervention’;19 or (3) they had not considered the
situation at all. According to the UK Addendum, the phrasing of the
Model Law unfortunately failed to achieve its main goal to provide ‘a
clear idea of the extent to which the law would affect the existing rules,
whether statutory or otherwise, governing judicial intervention’.20
The second question posed by the UK regarding the ‘stage at which
judicial control is permissible’21 concerned cases involving abuse of the
arbitral process. Concern was raised by the fact that article 5 omits any
reference to the recognition of the court’s residual power to intervene in
situations not covered by articles 9, 11, 14, 15, 27 and 34 of the Model
Law. Other delegations agreed with this concern and even proposed ‘to
replace the words “In matters governed by this Law” with the admittedly
narrower provision “During the course of the arbitration proceeding”’.22
Another proposal made by Mr Broches (Observer for the International
Council for Commercial Arbitration) suggested the use of wording such
as ‘unless otherwise agreed’ or ‘if the parties so agree’,23 but this, too, was
found unacceptable by some delegations.24
Regarding the question about judicial intervention in cases of serious
procedural injustices, the UK Addendum urged the Working Group to
clarify whether ‘(a) the model law already confers a right to recourse in
17
Ibid., para. 19.
18
Ibid.
19
Ibid.
20
Ibid., para. 26.
21
Ibid., para. 27.
22
Comment by Mr Moeller (Observer from Finland), (1985) XVI UNCITRAL YB (n. 2),
416, para. 20.
23
Comment by Mr Broches (Observer for the International Council for Commercial
Arbitration), ibid., 417, para. 29.
24
Comment by Mr Bonell (Representative from Italy), ibid., 417, para. 39.

respect of all serious procedural injustice, or (b) the model law intention-
ally withholds a right of recourse in certain of such cases’.25 The
Commission did not act upon this request and the matter was therefore
left to the individual States.
The fourth question raised in the UK Addendum dealt with the
purported mandatory nature of article 5, which could potentially hinder
the principle of party autonomy by ‘eliminating even those means of
judicial control which the parties themselves desire to retain’.26 Simply
put, this specific concern aimed at clarifying whether or not the Model
Law sets a minimum or a maximum level of judicial control.27 The UK
Addendum took the view that the principle of party autonomy would
best be served if the Model Law assumed the former approach.28 This
position was directly opposite to the one espoused by the Italian repre-
sentative, who was under the impression ‘that the purpose of article 5 was
to set a maximum’.29
A finer point regarding article 5 that can be found in the travaux refers
to a proposed distinction between the words intervention and assistance,
to characterise the two types of conduct in which national courts could
engage.30 According to this view, a request from an arbitral tribunal to a
court regarding the production of a witness should be regarded as a
request for assistance, not an intervention.31 Some delegates proposed
yet another classification stating ‘that court intervention could be under-
stood to mean assistance, which should be provided as full as possible, or
control, which should be kept at a reasonable minimum’.32 The final text
of article 5 did not include any express demarcation in this regard.
25
Ibid., paras 30, 31 (emphasis added). Since this aspect of the UK Addendum dealt more
specifically with art. 34, we will leave its discussion to the commentary in this volume on
art. 34.
26
Ibid., para. 37.
27
Ibid.
28
Another State that endorsed the idea of minimum judicial intervention was Norway,
which contributed a statement to that effect. See UNCITRAL, Analytical Compilation of
Comments by Governments and International Organizations on the Draft Text of a
Model Law on International Commercial Arbitration, Report of the Secretary-General,
UN Doc. A/CN.9/263 (19 March 1985), 16.
29
Comment by Mr Bonnell (Italy) (n. 24), 416, para. 17. See also Comment by Mr Lebedev
(Union of Soviet Socialist Republics), ibid., 417, para. 30.
30
Comment by Mr Hjerner (Observer for the International Chamber of Commerce), ibid.,
4, para. 25.
31
Ibid.
32
Comment by Mr Tang Houzhi (China), ibid., 417, para. 33.

2. matters governed b y t his l aw 89
2. Matters Governed by This Law

Article 5 is one of the most succinct provisions of the Model Law, but it is
also very important. ‘Courts have consistently held article 5 as a manda-
tory provision of the Model Law, confirming that it is the basic rule for
determining whether court intervention is permissible under the Model
Law in particular cases.’33 Article 5 is made up by two short sentences that
recognise the importance and set the limits of judicial involvement in
connection with arbitration. This latter aspect is particularly significant
as it relates to the principle of judicial non-interference in international
arbitration. This principle, according to which national courts are barred
from supervising the procedural decisions of arbitrators through inter-
locutory appeals and similar mechanisms, ‘is no less – and arguably more
– important than’ other pillars of international arbitration such as the
principles of ‘procedural autonomy, arbitrator discretion and procedural
fairness’.34 The principle of judicial non-interference has also been
recognised by key international arbitration-related conventions such as
the New York Convention,35 the Inter-American Convention36 and the
European Convention.37
National laws have generally embraced the principle of judicial non-
interference by ‘either excluding judicial supervision of arbitral proce-
dures, or omitting any provision for interlocutory judicial review or
supervision of arbitrators’ procedural rules’.38 In some jurisdictions,
33
D. Williams, ‘Defining the Role of the Court in Modern International Commercial
Arbitration’ (2012), p. 8, www.arbitrationconference.com/download/file/218/.
34
G. Born, ‘The Principle of Judicial Non-Interference in International Arbitration’ (2009)
30 U. Penn. J. Intl L. 1025.
35
New York Convention, art. II(3). See ibid., 1026 (‘The effect of this requirement –
particularly as interpreted in light of the Convention’s purpose (i.e., to prescribe uniform
international rules that facilitate the arbitral process) and structure (i.e., only providing
for review of awards in article V) – is to forbid the courts of Contracting States from
supervising or second-guessing the ongoing procedural conduct of arbitrations’ (emphasis
added)); see also A. J. van den Berg, The New York Convention of 1958 (Kluwer, 1981),
p. 137.
36
Inter-American Convention, art. 3. See Born (n. 34), p. 1026 (‘These provisions, coupled
with the absence of any provisions for general judicial supervision of ongoing arbitral
proceedings, leave no room for interlocutory judicial intervention in the procedural con-
duct of the arbitration’ (emphasis added)).
37
European Convention, art. IV(1); see also Born (n. 34), p. 1026 (‘Nothing in the European
Convention provides for judicial supervision of arbitral procedures; instead, it contem-
plates only national court involvement in relation to jurisdictional decisions, interim
relief, and the review of awards. This leaves no room for national courts to supervise or
regulate the arbitrators’ procedural decisions’ (emphasis added)).
38
See Born (n. 34), p. 1029, fns 107 and 108.

90 a r t i c l e 5 : e x t e n t of co u r t i n te r v en t i o n
such as the United States of America, although the text of the law39 ‘does
not expressly provide for judicial non-interference in arbitral proceed-
ings … lower U.S. courts have repeatedly held that judicial intervention
in pending arbitral proceedings (both international and domestic) is
improper to correct procedural errors or evidentiary rulings’.40
The purpose of the first sentence of article 5 is to set some objective
parameters regarding the scope of ‘all possible instances of court inter-
vention’41 under the Model Law. The phrase ‘in matters governed by this
law’ is a reaffirmation of the scope and the limited reach of the Model Law
regarding the regulation of the fundamental aspects of international
commercial arbitration. The first sentence of article 5 also suggests that
the Model Law does not regulate or govern all matters related to inter-
national commercial arbitration, and more specifically to the arbitral
process. As a result, ‘the courts remain able to intervene where matters
of international arbitral procedure are not governed by the Model Law’.42
Conversely, there are matters governed by the Model Law that warrant
judicial intervention in some cases but not in others,43 thus making the
39
Federal Arbitration Act, Pub. L. 68–401, 43 Stat. 883, 9 USC (United States of America).
40
Born (n. 34), p. 1030. See e.g. In re. Security Life Ins. Co. of America, 228 F.3d 865 (US
Court of Appeals, 8th Circuit, 2000) (‘Transamerica’s attempt to transform this language
into a requirement that the district court second-guess the panel’s judgment is thus
misleading at best. Although there is some support for imposing such a requirement on
the district court, see Oceanic Transport Corp. v. Alcoa Steamship Co., 129 F. Supp. 160,
161 (SDNY 1954), we believe it is antithetical to the well-recognized federal policy
favoring arbitration, and compromises the panel’s presumed expertise in the matter at
hand. We therefore decline to saddle the courts of this circuit with such a burden’); see
also In re. Arbitration Between Brazell v. American Color Graphics, 2000 WL 364997
(SDNY 2000) (‘In sum, the case law, and specifically Stanton, Meadows and Integrity,
support the arbitrator’s authority to provide for pre-hearing production of documents
from third parties’); Stanton v. Paine Webber, 685 F. Supp. 1241, 1242 (SD Fla, 1988) (‘the
court can find no support for plaintiffs’ contention that the court may interfere with the
procedures of the arbitration panel’); Foremost Yarn Mills, Inc. v. Rose Mills Inc., 25 FRD 9
(ED Penn., 1960) (‘From the foregoing it is clearly evident that the Arbitration Act itself
does not in any wise attempt to regulate the procedures before the arbitrators or prescribe
rules or regulations with respect to hearings before arbitrators’).
41
UNCITRAL, ‘2012 Digest of Case Law’ (n. 1), 20, para. 4.
42
Williams (n. 33).
43
One example can be found in the possibility allowed by arts 16(3) and 34 of the Model
Law of granting judicial review to positive jurisdictional rulings, but not for negative
rulings. See P. Fohlin, ‘A Case for a Right to Appeal from Negative Jurisdictional Rulings
in International Arbitrations Governed by the UNCITRAL Model Law’ (2008) 10 Asian
Dispute Review 114. See also Singapore Academy of Law, ‘Report of the Law Reform
Committee on Right to Judicial Review of Negative Jurisdictional Rulings’ (January
2011), pp. 5, 6.

2. matters governed by t his l aw 91
seemingly straightforward issue of court intervention in aid of arbitration

a potentially complicated one.
Some key matters excluded from the Model Law concern the ‘con-
solidation of arbitral proceedings, contractual relationship between arbi-
trators and parties or arbitral institutions, or fixing of costs and fees,
including deposits’.44 Some authorities have held that such exclusions do
not prevent courts from asserting their inherent jurisdictional power to
prevent or correct any abuses of process that might affect the develop-
ment of arbitration.45 Furthermore, there have been cases where the
existence of parallel arbitral and court proceedings, entailing the risk of
a ‘conflict between what is to be decided in an arbitral proceeding in
which the same questions of law and fact are raised’,46 has served as
justification ‘for a residual inherent jurisdiction to enable the court to
intervene and stay either the arbitration or the court proceeding if
procedural unfairness would otherwise occur’.47 The complex interplay
between litigation and arbitration has prompted some national courts to
approach their residual inherent jurisdiction regarding matters not gov-
erned by the Model Law with caution,48 and to decide the scope of their
involvement on a case-by-case basis. One clear message, though, is the
intention of article 5 in allowing court intervention only exceptionally.49
44
UNCITRAL, Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on
International Commercial Arbitration as amended in 2006, p. 5, para. 17, www.uncitral
.org/pdf/english/texts/arbitration/ml-arb/MLARB-explanatoryNote20-9-07.pdf.
45
See e.g. China Ocean Shipping Co., Owners of the M/V Fu Ning Hai v. Whistler Intl Ltd,
Charters of the M/V Fu Ning Hai [1999] HKCFI 693 (finding that art. 5 did not prevent the
court from issuing an order related to the posting of security for costs despite not being a
matter governed by the Model Law). But see G. Hermann, ‘UNCITRAL’s Work towards a
Model Law on International Commercial Arbitration’ (1984) 4 Pace L. Rev. 537, 550
(opining that the language of then draft art. 5 according to which ‘courts may supervise or
assist arbitrations only if so provided in the model law’ would ‘therefore, exclude any
general or residual powers envisaged in a domestic system which the parties or the
arbitrators may not expect or want’ (emphasis added)).
46
Williams (n. 33), p. 13.
47
Ibid.
48
See e.g. Injazat Capital Ltd and Injazat Technology Fund B.S.C. v. Denton Wilde Sapte &
Co. (CFI 019/2010 – judgment of 6 March 2012) (Dubai International Centre Courts)
(concluding that the court did not possess inherent jurisdiction to stay proceedings). But
see Intl Electromechanical Services v. Al Fattan Engineering (CFI 004/2012) (Dubai
International Centre Courts, Court of First Instance) (deciding in favour of the court’s
inherent jurisdiction to stay proceedings). A commentary about this case may also be
found in Williams (n. 33), p. 17.
49
Born (n. 34), p. 1033.

3. Exceptional Court Intervention

One specific way in which article 5 enhances the principle of judicial non-
interference and helps ensure ‘the efficacy of the arbitral process as a
means of international dispute resolution’50 is by expressly stating – in its
second sentence – that court intervention in international arbitration
shall be exceptional, and according to some, ‘limited to such matters as
are specifically provided in’ the Model Law.51 This latter position has also
been espoused by national courts52 by considering that judicial interven-
tion ‘would only be appropriate to the extent such intervention is
expressly sanctioned by the Model Law itself’.53 Along these lines, some
have understood article 5 to be used not only in support of court inter-
vention, but also as the basis for excluding court intervention in any other
matters (general or residual) not expressly listed in the Model Law.54
The use of the mandatory word ‘shall’ by article 5 of the Model Law has
raised concerns in some jurisdictions regarding the scope of court inter-
vention.55 Despite a restrictive interpretation of the second sentence of
article 5 (‘no court shall intervene except where so provided in this Law’),
some national courts have ruled on certain matters falling outside the
scope of the Model Law, such as the application of a statute of limitations
rule when deciding on the recognition and enforcement of an arbitral
award.56 Similarly, national courts have ruled that article 5 cannot be
50
Ibid.
51
52
Mitsui Engineering & Shipbuilding Co. Ltd v. Easton Graham Rush [2004] 2 SLR 14, cited
in ibid. See also M. Hwang, ‘Court Has No Power under Model Law to Restrain
Challenged Arbitrator from Proceeding Prior to Completion of Arbitration’ (2005) 3
TDM 3.
53
54
CLOUT Case 18, Rio Algom Ltd v. Sammi Steel Co., Ontario Court of Justice, Canada (1
March 1991) (‘It seems to me to be at least arguable that the matters referred to trial are
not matters that permit the intervention of the court in the light of article 5’); see also
CLOUT Case 116, BWV Investments Ltd v. Saskferco Products Inc. and Others and UHDE
GmbH, Saskatchewan Court of Appeal, Canada (25 November 1994), [1994] CanLII 4557
(SKCA) (‘The ICAA/EFAA legislative scheme is replete with indications that the legis-
lature intended courts to observe the pattern of judicial deference to arbitration that has
become the international practice. For added certainty, article 5 of the Model Law states
that no court shall intervene except as permitted by the Model Law itself, and s. 3 of the
EFAA states that where conflict exists with other Acts, the EFAA prevails’).
55
See Vale Do Rio Doce Navegacao v. Shanghai Bao Steel Ocean Shipping Co. [2000] EWHC
205 (Comm.), [2000] 2 All ER (Comm.) 70. See also Williams (n. 33), p. 18 (‘The 1996
DAC Report shared Lord Mustill’s concerns and it was therefore decided that the word
“shall” in Article 5 should be replaced with the word “should”’).
56
See CLOUT Case 1009, Yugraneft Corp. v. Rexx Management Corp. [2010] 1 SCR 649.

3 . e x c e p t i o n a l co u r t i n t e r v e n t i o n 93
invoked to limit the support that courts can provide to arbitral tribunals,
for example, regarding security for costs,57 in relation to granting an
order that requires a party to disclose its place of business,58 in decisions
concerning the stay of arbitral proceedings,59 or in requests for issuing
anti-suit injunctions in aid of arbitration.60 Similarly, courts have main-
tained their authority to intervene in cases where violations of constitu-
tional rights have been alleged in connection with arbitral proceedings.61
The use of writs of constitutional protection such as the amparo consti-
tucional,62 cautela or mandato de segurança, which are particularly
common in Latin American jurisdictions, has not been exempt from
controversy.63 Whereas it is positive that the parties have access to a swift
57
See China Ocean Shipping Co. (n. 45) (‘In the absence of an agreed comprehensive set of
procedural rules governing the arbitration proceedings, the court decided that Hong
Kong procedural rules on matters such as liability to provide security for costs would
apply. The court observed that there was nothing in the MAL that governed the matter of
refusal by a party to make disclosures about its identity and, therefore, the restriction in
article 5 MAL did not apply in this case’); but see Crest Nicholson (Eastern) Ltd v. Mr and
Mrs Western [2008] EWHC 1325 (TCC), cited in V. Ramayah, C.S.C. Leng Sun and A.
Vergis, ‘Singapore Academy of Law, Report of the Law Reform Commission of Right to
Judicial Review of Negative Jurisdictional Rulings’ (2011), p. 12, para. 32 (‘In situation (c)
the Court is entitled to order costs of the proceedings before it’).
58
China Ocean Shipping Co. (n. 45).
59
Carter Holt Harvey Ltd v. Genesis Power Ltd [2006] 3 NZLR 294 (HC) 61 (‘Except to the
extent clearly limited by statute, this court has a wide discretion to prevent abuse of its
own processes’).
60
Danone v. Fonterra [2014] NZHC 1681.
61
See e.g. File No. 8448–2013-PA/TC (Peru); File No. 4972–2006-PA/TC (Peru); Decision
T-288/13 Constitutional Court (Colombia); Companhia do Metropolitano de São Paulo-
Metro Tribunal Arbitral do Proc. 15.283/JRF da Corte Internacional de Arbitragem da
Câmara Internacional de Comércio-ICC, Processo No. 053.10.017261–2, 13a. vara da
Fazenda Pública de São Paulo (Brazil).
62
M. A. Gómez, G. Guerrero-Rocca and D. Vieleville, ‘Venezuela National Report,
International Handbook on Commercial Arbitration’ (ICCA, 2018) (‘As a result of the
tremendous importance given to the protection of constitutional rights in Venezuela,
Amparo suits involve “expedited proceedings through specially appointed ‘constitutional’
courts”. Amparo courts are vested with ample powers to avert the alleged constitutional
violation, issue any measures they deem appropriate, and ensure instant compliance with
their rulings. The sanction for not complying with an Amparo ruling entails imprison-
ment for a term of six to fifteen months. Despite the popularity of Amparo actions in
Venezuelan courts, the filing of a writ of Amparo against an arbitral award shall be
deemed inadmissible as per article 6.5 of the Organic Law of Protection of Constitutional
Rights and Guarantees (“Amparo Statute” or “AS”). The CC-SJT has reaffirmed this
posture through several important decisions’).
63
See A. Herrera González, ‘El Arbitraje y su Interacción con el Juicio de Amparo’ (2002) 10
Revista del Instituto de la Judicatura Federal 71–109. See also C. Albanesi, ‘Tendencias
Comunes en Arbitraje Internacional en América Latina’ (2017) 7 Revista de Arbitraje

94 a r t i c l e 5 : e x t e n t of co u r t i n t e r v e nt i o n
judicial remedy against any potential violation of their constitutional

rights as these might be attributed to the arbitral tribunal, there are also
instances where constitutional writs of protection are used as delay tactics
or as a means of undermining the authority of arbitrators.64 As a result,
some jurisdictions have restricted or foreclosed the use of these actions in
the realm of arbitration, even at the post-award stage.65
The matters for which the Model Law warrants court intervention and
support are scattered throughout different articles and may be divided
into two categories.66 The first category refers to the specific instances of
assistance and supervision listed in article 6 ‘as functions that should be
entrusted, for the sake of centralization, specialization and efficiency, to a
specially designated court’67 or to another authority. This concerns
articles 11(3) and (4), 13(3), 14, 16(3) and 34(2) of the Model Law. The
second category refers to all other instances of judicial support related to
the recognition of the arbitration agreement, substantive claims and
interim measures (articles 8, 9 and 17J), taking of evidence (article 27),
and recognition and enforcement of both interim measures (articles 17H
and 17I) and the arbitral award (articles 35 and 36).68
PUCP 52–54; see also G. Priori Posada, ‘El Control de Constitucionalidad de Laudos
Arbitrales en el Perú, a la Luz de lo Señalado en el Precedence Vinculante 142–2011-PA/
TC’ (2012) 2 Revista de Arbitraje PUCP 26–33.
64
M. A. Gómez, ‘The “Amparization” of the Justice System in Latin America and
International Arbitration’, Kluwer Arbitration Blog (1 November 2013) (‘The frequent
use of writs of amparo throughout the region to circumvent annulment proceedings and
other proper remedies set forth in the national arbitration laws, have become a staple in
the practice of international arbitration in some Latin American jurisdictions’); see also
D. E. González and J. Valdenebro, ‘Two Key Considerations on Infrastructure and Energy
Disputes with the Arbitral Seat in Latin America’ (2017), https://latinlawyer.com/chap
ter/1151911/two-key-considerations-on-infrastructure-and-energy-disputes-with-the-
arbitral-seat-in-latin-america (‘While the constitutionalisation of arbitration was
intended to serve as a protection of the system, it also had the boomerang effect of
creating an additional basis of challenge to an award. The amparo actions became the
biggest enemy of international arbitration in the region, seen as a local law particularity,
rare to those outside the region and used to obstruct and threaten the progress made in
favour of international arbitration’).
65
See e.g. STC No. 1042–2011-PA/TC (Peru) (foreclosing the possibility of filing an amparo
action against an arbitral award); STC No. 2945–2013-PA/TC (Peru); see also Supreme
Justice Tribunal, Decision Nos 1,541/2008, 462/2010, 1,067/2010 and 1,773/2011
(Venezuela).
66
Nevertheless, some have proposed to categorise the power of the courts regarding
arbitration in four types, to wit: ‘powers of assistance, powers of intervention, powers
of supervision or control, and powers of recognition and enforcement’. M. Kerr,
‘Arbitration and the Courts: The UNCITRAL Model Law’ (1985) 34 ICLQ 1, 2–3.
67
UNCITRAL, Explanatory Note (n. 44), 4.
68
Ibid.

3 . e x c e p t i o n a l co u r t i n t e r v e n t i o n 95
Notwithstanding the desire of the Model Law to foster certainty

regarding the role of courts in relation to international arbitration, ‘the
line between the restriction on court intervention provided for under
article 5 of the Model Law, and the residual inherent power of the court is
not always easy to determine’.69 National courts have relied on different
approaches to manage ‘the tension between the need for judicial restraint
and the understandable inclination of some judges to intervene to pre-
vent abuses of process’;70 but the outcome will always depend on the
limitations imposed by their own legal systems and the state of their
domestic case law.
69
70
Ibid.

Article 6
Court or Other Authority for Certain Functions

of Arbitration Assistance and Supervision
shahla ali and odysseas g. repousis
The functions referred to in articles 11(3), 11(4), 13(3), 14, 16(3) and
34(2) shall be performed by … [Each State enacting this model law
specifies the court, courts or, where referred to therein, other authority
competent to perform these functions.]
Article 6 serves to allow State legislatures to confer competence upon
local courts or other bodies in domestic legal systems to intervene in
certain key aspects of the arbitral process. Its main purpose is to assist
foreign parties to more easily identify the competent local court or other
authorised institution and obtain information in relation to the features
of that court or body.1 It was also expected that the designated court or
other authority would over time become more specialised because the
same court or body would hear and be referred all cases arising from the
relevant Model Law provisions as listed under article 6.2 Designating a
court or other authority that is already experienced in the field of
arbitration would be beneficial in centralising the competence of and
consolidating all references to that court or other body.3
Article 6 permits the enacting State to designate more than one court
or authority to execute the relevant functions under different provisions
1
UNCITRAL, Analytical Commentary on the Draft Text of a Model Law on International
Commercial Arbitration, UN Doc. A/CN.9/264 (25 March 1985), art. 6, para. 2. For
example, the procedures and practices of the court and the policies adopted in its previous
decisions.
2
Ibid., para. 2.
3
UNCITRAL, Report of the Working Group on International Contract Practices on the
Work of Its Fourth Session, UN Doc. A/CN.9/232 (10 November 1982), para. 90.
96

1 . tr ava ux p r é paratoires 97
and hence the adoption of the Model Law should not require any funda-
mental reform to the local judicial system.4 As such, existing procedural
rules may be retained, or would only require slight modification to
accommodate the provisions of the Model Law.5
It was suggested that in order to give primacy to party autonomy, the
parties should be provided with the choice of court, where more than one
court is competent to perform the relevant functions listed under this
article.6 It was further suggested that possible conflicts of court compe-
tence should be resolved by providing priority to the court first seised of
the matter.7 It was eventually decided in drafting article 6 that the choice
of forum within a given jurisdiction should be governed by local legisla-
tion.8 If the problem existed across different jurisdictions, it would not be
effectively settled by the Model Law, which could have some difficulty in
creating a widely or universally acceptable solution.9
The initial draft of article 6 was put forward following the Working
Group’s discussion on the procedures of appointing arbitrators. The
Working Group acknowledged that the Model Law should provide
supplementary rules where the parties to arbitration could not agree on
the appointment procedures for arbitrators.10 It was suggested by some
during the drafting process that the Model Law should merely state that
in such cases the appointment of arbitrators should be made by an
appointing authority designated by the enacting State, but it was also
suggested that the Model Law should incorporate more elaborate or
detailed rules akin to those under articles 6 to 8 of the UNCITRAL
Arbitration Rules.11 A later draft showed that the Working Group
intended to deal with other procedural issues in article 612 – these
procedural issues regarding the review of and the standing (jus standi)
of the arbitral tribunal were formulated in a general way in the draft, but
4
H. Holtzmann and J. Neuhaus, A Guide to the UNCITRAL Model Law on International
Commercial Arbitration: Legislative History and Commentary (Kluwer, 1989), p. 240.
5
UN Doc. A/CN.9/232 (n. 3), para. 91.
6
UNCITRAL, Report of the United Nations Commission on International Trade Law on
the Work of Its Eighteenth Session, UN Doc. A/40/17 (21 August 1985), para. 70.
7
Ibid., para. 70.
8
Ibid.
9
Ibid.
10
Work of Its Third Session, UN Doc. A/CN.9/216 (23 March 1982), para. 50.
11
Ibid., para. 50.
12
See UNCITRAL, Revised Draft Articles I to XXVI, UN Doc. A/CN.9/WG.II/WP.40 (14
December 1982), Pt C, art. V (hereinafter, ‘Second Draft’).

98 article 6 : arbitration as sistance a n d supervisio n
the Working Group eventually decided to leave those issues to individual

provisions entrusting the courts with the relevant judicial functions.13
The second draft is noteworthy in that it attempted to regulate some
procedural matters that arose from the jurisdiction of the court:14 It read
as follows:
Article V
(1) The special Court entrusted by this Law with functions of arbitration
assistance and control [under articles VIII (2), (3), X (2)/(3), XI (2),
XIII (3), XIV, XXV, XXVI] shall be the … (blanks to be filled by each
State when enacting the model law).
(2) Unless otherwise provided in this Law,
(a) This Court shall act upon request by any party or the arbitral
tribunal; and
(b) The decisions of this Court shall be final.15
To ensure the expediency of arbitral proceedings, it was proposed that
there should be no appeal against the decisions of the court.16 Another
view was that any provision concerning the finality of arbitral proceed-
ings should not contravene the basic principles of court control of
arbitration.17 The second draft did include a paragraph to the effect
that no appeal should be allowed.18 However, the Working Group
decided not to retain this paragraph because it ‘infringed upon funda-
mental concepts and rules of court procedure’.19 In the final text, all
articles referred to in article 6 (except article 34) provide that the decision
of the court or other authority shall not be subject to appeal.
Another discussion during the drafting of article 6 concerned the issue
of international competence in relation to the designated authority. It
was suggested that the Model Law should not provide special rules on the
international competence of the authority, because such rules might tend
to be too detailed.20 Any question of international competence should be
13
Work of Its Fifth Session, UN Doc. A/CN.9/233 (28 March 1983), para. 85.
14
Second Draft (n. 12), Pt C, art. V.
15
Arts VIII (2), (3), X (2)/(3), XI (2), XIII (3), XIV, XXV, XXVI referred to in the Second
Draft (n. 12) are arts 11, 13, 14, 16, 17 and 35 in the final text.
16
UN Doc. A/CN.9/232 (n. 3), para. 92.
17
Ibid.
18
Second Draft (n. 12), Pt C, art. V(2)(b).
19
UN Doc. A/CN.9/233 (n. 13), para. 85.
20
UN Doc. A/CN.9/232 (n. 3), para. 94.

1 . trav aux prép a r a t o i r es 99
governed by general rules on international conflicts of competence.21

However, it was also suggested that the Model Law should contain
provisions on international competence based on the special functions
of the relevant domestic authorised bodies, and the primary considera-
tions should be the seat of arbitration and the procedural law to which the
arbitral proceedings were subject.22 As regards the seat of arbitration, it
was suggested that if the parties had not agreed on a relevant jurisdiction,
the court of competence would be determined by the place where the
arbitration agreement had been concluded.23 By virtue of article 1, if the
seat of arbitration had not been chosen by the parties, the appointment of
arbitrators and the challenges to such appointments would be matters
falling outside the ambit of the Model Law, and therefore would not be
covered by article 6. Matters related to the territorial jurisdiction of the
Model Law would ultimately be dealt with under article 1(2) by the
draftsmen of the Model Law.
Despite the notion of centralisation that underpins article 6, the
wording explicitly provides that more than one court or other authorised
body may be designated – for example, because larger countries may wish
to designate one particular category of courts to exercise the functions
related to arbitration cases (e.g. commercial courts or commercial cham-
bers of district courts).24
It should also be noted that the designated judicial organ does not
necessarily have to be a full court – for instance, it could be the president
of a court or the presiding judge of a chamber, especially bearing in mind
the need for expediency and finality of arbitration (e.g. under articles 11,
13 and 14).25 The adopting jurisdiction may also choose to entrust the
administrative or judicial functions to an authority other than a court in
the domestic judicial system (e.g. a national arbitration commission, or
other domestic arbitral institutions).26 The functions under articles 11, 13
and 14 allow for the choice of a non-judicial authority, whereas articles 16
and 34 may only be performed by a court, as defined in article 2(c), to
review the jurisdiction of an arbitral tribunal or to set aside an arbitral
21
Ibid.
22
Ibid., para. 95.
23
UNCITRAL, Analytical Compilation of Comments by Governments and International
Arbitration, UN Doc. A/CN.9/263 (19 March 1985), art. 6, para. 1.
24
UN Doc. A/CN.9/264 (n. 1), para. 3.
25
Ibid., para. 4.
26
Ibid.

100 article 6 : arbitra tion a ssis tance and superv ision
award. The reason for the distinction lies in the fact that articles 16 and 34
require the exercise of a judicial function, while the other functions may
potentially be performed by a specialised body outside the court system,
as well as by a court.27
Thus, the approaches in different jurisdictions towards designation
have been varied, raising some questions about whether or not the idea of
centralisation has been realised, and whether it can or should be realised
in view of the different functions listed.
Article 6 was not amended in 2006, and thus case law and other
interpretative material on article 6 prior to 2006 remain relevant.
2. Involvement of Courts in Arbitral Proceedings

and Inclusion under Article 6
Although generally frowned upon for the purposes of self-determina-
tion, privacy and finality in arbitral proceedings, court intervention is
accepted in a number of circumstances. This is explicitly provided for
under article 6 of the Model Law, and the circumstances included under
article 6 may be distinguished in two categories. The first group of
interventions included under this article concern the appointment of
arbitrators, the challenge and termination of the mandate of arbitrators
(articles 11, 13 and 14), and the second group includes the review of the
jurisdiction of the arbitral tribunal (article 16) and setting aside of
arbitral awards (article 34). Article 6 thus expressly provides for the
appointment of a court, courts or other competent authority for the
purposes of the circumstances listed. By virtue of article 5, no court shall
intervene in other matters governed by the Model Law.28
Outside of the interventions under article 6, but provided for under the
Model Law, are: court assistance in taking evidence (article 27); recogni-
tion of the arbitration agreement and its compatibility with court-
ordered interim measures (articles 8 and 9); recognition and enforcement
of interim measures (articles 17H and 17I); and enforcement of arbitral
awards (articles 35 and 36).
It follows that three different types of intervention in respect of an
arbitration should be borne in mind: first, those articles under the Model
Law that prescribe powers under article 6 which can be fulfilled by the
27
P. Binder, International Commercial Arbitration and Conciliation in UNCITRAL Model
Law Jurisdictions (Sweet & Maxwell, 2010), p. 72.
28
Article 5 provides that: ‘In matters governed by this Law, no court shall intervene except
where so provided in this Law.’

2 . i n v o l v e m e n t of co u r t s in ar b i t r a l p r o c ee d i n g s 101
courts or a designated authority; second, powers prescribed by article 6

under the Model Law that may only be utilised by the courts in an
exercise of their judicial function; and, finally, powers under other
provisions or articles of the Model Law that are exercisable by the courts,
but which have not been prescribed to a particular court of the forum
under this article.
As discussed above, the travaux préparatoires reveal some of the possible
ways in which article 6 may be implemented in domestic law. Most
enacting States simply name State courts for the purposes of article 6.
Examples of this approach include Australia, Bermuda, Chile, Cyprus,
Denmark, Germany, Guatemala, Ontario, Japan, Korea and Turkey.
Within this category, certain countries tend to designate certain higher
or district courts as the competent courts to perform functions referred to
in articles 11, 13, 14, 16 and 34. This is the approach taken by, inter alia,
Cyprus (district courts), Egypt (Cairo Court of Appeal) and Germany
(higher regional courts). In other jurisdictions, the functions prescribed
in articles 11, 13, 14 and 16 are fulfilled by lower (first instance) courts and
the functions of article 34 by higher courts (Courts of Appeal). This is the
case, for example, in Bermuda and Greece.29
Another approach taken, especially by some larger jurisdictions, is to
designate a type or category of courts, such as commercial courts or
commercial chambers of district courts, to perform the functions
referred to in articles 11, 13, 14, 16 and 34.30 British Columbia, Hong
Kong, India, Lithuania, Malta, the Sultanate of Oman, the Russian
Federation, Singapore, Sri Lanka and Ukraine are some of the jurisdic-
tions that follow this approach.
Again, as discussed above, the designated judicial organ does not have
to be a full court. Given concerns for the expediency and finality of
29
The Greek Law on International Arbitration has modified art. 16, so that domestic courts
are not competent to review a finding of a tribunal on its jurisdiction. Such decisions are
only subject to normal set-aside proceedings under art. 34. See Greek Law 2735/1999. See
also Bermuda International Conciliation and Arbitration Act 1993, art. 25 (‘(1) The
courts that are competent to perform the functions referred to in Article 6 of the Model
Law are as follows: (a) for the purposes of Articles 11(3), 11(4), 13(3), 14 and 16(3) of the
Model Law, the Supreme Court and there is no right of appeal from a decision of that
court; (b) for the purposes of Article 34(2) of the Model Law, the Court of Appeal and
there is no right of appeal from a decision of that court. (2) Notwithstanding section 12 of
the Court of Appeal Act 1964 (jurisdiction of the Court of Appeal) the Court of Appeal
shall have jurisdiction to hear and determine an application made to it pursuant to Article
34(2) of the Model Law’).
30
UN Doc. A/CN.9/264 (n. 1), para. 3.

102 article 6: a rbi trati on ass ista n ce and s upervision
arbitration, the adopting jurisdiction may wish to delegate the duty (or
part thereof) to the president of a court or the presiding judge of a
chamber.31 Some countries, or jurisdictions, following this approach
include Austria, British Columbia, Chile, India, Kenya and Tunisia. For
example, under the latest amendment of the Austrian Arbitration Law in
2013 (the legislative counterpart to the Model Law), a division of the
Austrian Supreme Court consisting of judges specialised in arbitration
has been designated to rule on almost all arbitration-related issues and
most importantly on challenges against arbitrators and against arbitral
awards. In Chile, article 11(3) of the International Commercial
Arbitration Act (the legislative counterpart of article 11(3) of the Model
Law) provides that the President of the Court of Appeal of the seat of the
arbitration will perform the functions referred to in articles 11, 13, 14 and
16, while the functions of article 34 will be performed by the competent
Court of Appeal.
Article 6 explicitly allows the adopting jurisdictions to designate any
‘other authority competent to perform these functions’. Such competent
authorities could include bodies outside the judicial system. For example,
with regard to the efficient appointment of an arbitrator, a chamber of
commerce may be in a better position than a court to perform this
function due to the fact that it may have greater knowledge of existing
expertise in the region.32 However, only a limited number of jurisdictions
legislated for non-judicial entities with authority over these functions.
These jurisdictions include Bulgaria, Hong Kong, the Islamic Republic of
Iran, the Philippines, the Russian Federation, Singapore and Ukraine.
The above potentially different approaches are a reminder of the
importance of article 6 – to serve as a reference point, particularly for
those unfamiliar with the jurisdiction in which the arbitration is seated,
as to the court or designated authority that may exercise certain key
interventions in arbitration under the Model Law. As pointed out in the
Explanatory Note by the UNCITRAL Secretariat, recent amendments to
arbitration laws show that there is a trend towards limiting and clarifying
the role of courts and their powers of intervention in international
commercial arbitration. In order to achieve this goal, especially where
the parties have agreed to exclude court intervention in favour of the
finality and expediency of arbitral proceedings, the Model Law should
31
Ibid., para. 4.
32
UN Doc. A/CN.9/263 (n. 23), para. 9.

3 . appointment of arbitrators 103
clearly provide for the degree of optimum court involvement in respect of

different functions.
Bearing also in mind the underlying notion of centralisation, and the
trend observed by the UNCITRAL Secretariat in respect of the exclusion
of courts in arbitrations, the fact that neither centralisation nor total
exclusion is provided for, nor in fact realised under article 6, currently
raises the issue of whether or not future amendments to this provision
may involve the recognition of the three different types of intervention,
and specifically referring only to functions that are exclusively judicial,
leaving the other functions to an appropriate authority instead.
3. Appointment of Arbitrators
As listed under article 6, article 11(3) of the Model Law specifies that if
one party fails to appoint an arbitrator within thirty days of the receipt of
a request to do so from the other party to the proposed arbitration, or if
the two arbitrators fail to agree upon the selection of a third arbitrator, a
court may appoint an arbitrator upon request of a party. Article 11(4)
similarly allows either party to request a court to intervene where there
are difficulties arising out of the appointment process.
In this regard, section 18 of the International Arbitration Act 1974 of
Australia, as amended in 2010, implements article 6 of the Model Law in a
rather elaborate manner. The Australian approach accords due consid-
eration to party autonomy, one of the underlying principles of the Model
Law.33 The first two subsections empower the parties to freely choose a
court or an authority to appoint an arbitrator for the purposes of article
11(3) and (4). Although article 6 of the Model Law does not appear to
refer to party autonomy, article 11 in fact provides the parties with
extensive freedom in choosing an appointment procedure. In respect of
the other functions specified in article 6, different courts have been
named for those purposes under these Australian provisions.34 In this
33
Examples include the words ‘unless otherwise agreed by the parties’ in arts 3, 11(1), 17(1),
17B(1), 20(2), 21, 23(2), 25, 26, 29 and 33(3); ‘unless the parties have agreed’ in arts 24(1)
and 31(2); ‘the parties are free to agree’ in arts 11(2), 13(1), 19(1), 20(1) and 22; ‘failing
such agreement’ in arts 11(3), 13(2) and 19(2); ‘unless the agreement on the appointment
procedure provides other means’ in art. 11(4); and ‘subject to any contrary agreement by
the parties’ in art. 24(1).
34
For further discussion of s. 18 and arts 6 and 11(3) in the case of teleMates Pty Ltd v.
Standard Soft Tel Solutions Pty Ltd (2011) 257 FLR 75, see R. Garnett and L. Nottage,
‘What Law (If Any) Now Applies to International Commercial Arbitration in Australia?’
(2012) 35 UNSW LJ 953.

104 article 6: arbitra tio n assis ta nce and s uperv ision
regard, the scope of the power of that prescribed authority does not
extend to the circumstances of articles 13(3) and 14 of the Model Law.
Under the International Arbitration Act 1974, a request to decide on the
challenge under article 13(3), or a request to decide on the termination of
the mandate of an arbitrator under article 14(1), has to be considered by a
court.
This may be compared with section 26 of the Alternative Dispute
Resolution Act of 2004 of the Philippines, which provides that:
‘Appointing Authority’ as used in the Model Law shall mean the person or
institution named in the arbitration agreement as the appointing author-
ity; or the regular arbitration institution under whose rules the arbitration
is agreed to be conducted. Where the parties have agreed to submit their
dispute to institutional arbitration rules, and unless they have agreed to a
different procedure, they shall be deemed to have agreed to procedure
under such arbitration rules for the selection and appointment of arbi-
trators. In ad hoc arbitration, the default appointment of an arbitrator
shall be made by the National President of the Integrated Bar of the
Philippines (IBP) or his duly authorized representative.35
For the functions prescribed in articles 11(3), 11(4), 13(3) and 14(1) in ad
hoc arbitration, the National President of the IBP is the responsible
authority for the purposes of the implementation of article 6. Section
26 of the Act states that the parties are free to name a person or an
institution as the appointing authority for the purposes of the Model Law.
If the parties agree to incorporate a set of established arbitral or institu-
tional rules for the selection and appointment of arbitrators in their
arbitration agreement, the relevant provisions of those rules will apply.
In the absence of such agreement, the default position shall be that the
appointment be made by the appointing authority under section 26. If
the appointing authority fails to act within the thirty-day time limit, the
applicant may renew the application for appointment with a Regional
Trial Court.36
Section 26 of the Alternative Dispute Resolution Act is also drafted to
take into account the principle of party autonomy. The parties are given
the choice of naming a person or an institution as the appointing
authority. The provision also fully delegates the power of appointing an
arbitrator to the National President of the IBP, subject to its inability to
act within the time limit. The National President of the IBP has been
35
Republic Act No. 9285.
36
See s. 27.

3 . appointment of arbitrators 105
expressly named as the default authority. By virtue of section 26, all

functions under articles 11(3), 11(4), 13(3) and 14(1) are to be performed
by the appointing authority. Unless the appointing authority fails or
refuses to act, the court is not in a position to consider any application
under those articles. As such, the Philippines is one of the few countries
which fully entrusts a non-judicial authority with these administrative
functions in respect of arbitral proceedings. Furthermore, as the appoint-
ing authority has been given the power to perform functions under
articles 13(3) and 14(1), it can be said that the scope of the power of
the appointing authority is broader as regards the implementation of
article 6 in the Philippines.
The Arbitration Act 2005 of Malaysia does not contain an equivalent
provision to article 6 of the Model Law. Instead of designating a single
court or authority to handle matters arising from all Model Law provi-
sions referred to in article 6, Malaysia took a different approach by
naming different bodies for each individual provision for the purposes
of executing the necessary administrative and judicial functions. Section
13 of the Arbitration Act deals with the appointment procedure for
arbitrators and is the Malaysian equivalent to article 11 of the Model
Law. Section 13(4) provides that:
Where subsection (3) applies and –
(a) a party fails to appoint an arbitrator within thirty days of receipt of
a request in writing to do so from the other party; or
(b) the two arbitrators fail to agree on the third arbitrator within thirty
days of their appointment or such extended period as the parties
may agree, either party may apply to the Director of the Kuala
Lumpur Regional Centre for Arbitration for such appointment.
Similarly, by virtue of section 13(5) and (6) of the Arbitration Act 2005,
either party may apply to the Director of the Kuala Lumpur Regional
Centre for Arbitration in the event of difficulties in the process of the
appointment procedure (e.g. when the parties fail to agree upon a single
arbitrator or when a third party fails to perform any function in relation
to the arbitration entrusted to it). Section 13(7) further provides that in
the event the Director fails to act, either party may apply to the High
Court for the appointment of arbitrators. This demonstrates that under
the Malaysian approach, the administrative function of appointing an
arbitrator is primarily provided to an arbitral appointing institution.
However, section 15(3) of the Arbitration Act 2005, which corresponds
to article 13 of the Model Law, names the High Court as the designated

106 article 6: arbitra tio n assis ta nce and s uperv ision
judicial organ competent to deal with challenges against arbitrators,

without naming another institution to perform the same duty:
Where a challenge is not successful, the challenging party may, within
thirty days after having received notice of the decision rejecting the
challenge, apply to the High Court to make a decision on the challenge.
Section 16 of the Arbitration Act 2005 concerns the arbitrator’s inability

to act, and also requires the parties to apply directly to the High Court for
terminating the mandate of the arbitrator. Sections 18 and 37 of the
Arbitration Act 2005, which refer to the review of the jurisdiction of the
arbitral tribunal and the setting aside of the arbitral awards respectively,
also name the High Court as the body authorised for the adjudication of
those matters and disputes arising therefrom. Thus, in Malaysia, the
adjudicative functions of dealing with challenges and reviewing arbitral
decisions have been rendered exclusively under the jurisdiction of the
High Court.
4. Other Inclusions – Challenges to Procedure, Failure

or Impossibility to Act, Review of Jurisdiction, Setting
Aside Arbitral Awards
Other than the appointment of arbitrators, article 6 also provides for the
express assignment of responsibility for a number of other provisions in
the Model Law. Article 13(3) deals with the review of a party’s challenges
where such challenges have already been refused by the arbitral tribunal
(or other body), and allows the challenging party to request the court or
other authority to review the refused challenge.
Article 14 of the Model Law allows either party to request a court or
other authority to decide on the termination of the mandate of the
arbitrator where the arbitrator has either failed, or is unable, to act.
Article 16(3) of the Model Law provides that if an arbitral tribunal
rules as a preliminary question on its own jurisdiction, either party may
seek a review from the court as to the jurisdiction of the arbitral tribunal.
Article 34(2) of the Model Law sets out the grounds for setting aside an
arbitral award. An arbitral award may be set aside by the court specified
under article 6 if, for example, the arbitration agreement is invalid, or the
composition of the arbitral tribunal is not in accordance with the agree-
ment between the parties.
The particulars of procedure and other details as to requirements for
establishing these matters, such as the time limits for seeking recourse

4. other inclus ions 107
through the court or other authority, are set out in the respective articles
cited in article 6. In these provisions, articles 11(3), 11(4), 13(3) and 14
contain a reference to article 6 using the words ‘the court or other
authority specified in article’. Articles 16(3) and 34(2) only use the
words ‘the court specified in article 6’, without referring to other autho-
rities. This difference in wording can be explained by the fact that a court,
under clear constitutional grounds, would be the only appropriate adju-
dicator in respect of determining the arbitral tribunal’s jurisdiction, or
the setting aside of an arbitral award,37 as an exercise of the jurisdiction of
the judiciary, while other authorities outside the judicial system may
perform functions like the appointment of arbitrators without usurping
the functions of the judiciary.38
This distinction between courts and other appointed authorities is
manifest in the implementation of article 6 of the Model Law in Hong
Kong legislation. Section 13 of the Arbitration Ordinance (Cap. 609) of
Hong Kong gives effect to article 6 of the Model Law. It divides respon-
sibility for the functions contained under the various aforementioned
Model Law provisions between the Hong Kong International Arbitration
Centre (HKIAC) and the Court of First Instance of the High Court. As
such, Hong Kong is one of the few jurisdictions where some of the
functions referred to in article 6 are designated to a non-judicial author-
ity, namely the HKIAC. Section 13 provides a clear list that confers the
functions under articles 11(3), 11(4), 13(3), 14(1), 16(3) and 34(2) to
either the HKIAC or the Court of First Instance. Article 11(3) and (4)
relate to the appointment of arbitrators in certain circumstances, for
example where one party fails to appoint an arbitrator in accordance
with the procedure agreed upon appointment. In addition to the circum-
stances envisaged under article 11, certain other functions have also been
delegated to the HKIAC.39 Section 23(3) provides that the number of
arbitrators is to be decided by the HKIAC in the absence of agreement
between the parties.40 Section 32(1) provides for the appointment of a
mediator. In this regard, the power of the HKIAC is not limited to
37
Binder (n. 27), p. 72.
38
UN Doc. A/CN.9/264 (n. 1), art. 6, para. 4. In some countries, the appointment, challenge
and termination procedures are performed by specialised bodies, such as chambers of
commerce or national arbitral institutions.
39
These functions are contained in the Arbitration (Appointment of Arbitrators and
Mediators and Decision on Number of Arbitrators) Rules (Cap. 609C) made under
subs. (3) above.
40
Section 13(3) of the Arbitration Bill 2009 did not expressly allow the HKIAC to make
rules under s. 23(3). This power was later included to broaden the scope of the HKIAC’s

108 article 6: arbitrati on assi stance and s upervision
appointing the arbitrators, but also extends to deciding the number of

arbitrators. By virtue of section 13(3), the HKIAC may make rules to
facilitate the performance of its functions under sections 23(3), 24 or
32(1). The relevant rules are contained in the Arbitration (Appointment
of Arbitrators and Mediators and Decision on Number of Arbitrators)
Rules (Cap. 609 C). In deciding the number of arbitrators, the HKIAC
shall have regard to the amount claimed under the dispute, the complex-
ity of the claim, the nationality of the parties, the customary approach to
arbitration of the relevant industry, the availability of appropriate arbi-
trators and the urgency of the case.41 This may be seen as an example of a
non-judicial authority being entrusted with a function other than the
appointment of arbitrators, although arguably these two functions are
very closely connected. However, it should be noted that this situation is
somewhat peculiar to Hong Kong because article 10(2) of the Model Law,
which provides that the default number of arbitrators shall be three in the
absence of any agreement between the parties, is not applicable in Hong
Kong.42
Subsection (6) is of interest because in addition to the functions
referred to in article 6, the counterpart to article 6 under Hong Kong
legislation further provides that the Court of First Instance is mandated
to perform the functions under article 27 with regard to court assistance
in taking evidence. It may be recalled that article 6 of the Model Law in
fact makes no reference to article 27. As one commentator has suggested,
the designation of a court for assisting with the taking of evidence under
article 27 requires a choice of a competent court based on the context of
the arbitration.43 In Hong Kong, prior designation of a court under
article 27 was made possible through section 13(6), which shows that
the scope of article 6 counterparts implemented in domestic legislation
may go beyond the designations as drafted under article 6 where court
intervention is considered necessary.
Similarly, section 8 of the Singapore International Arbitration Act
employs a binary system, which delegates functions between the
Singapore International Arbitration Centre (SIAC) and the Singapore
High Court.44
power. See Report of the Bills Committee on Arbitration Bill, 3 November 2010, LC Paper
No. CB(2)162/10–11, para. 53.
41
Rule 9(1).
42
See s. 23 of the Arbitration Ordinance.
43
Binder (n. 27), p. 72.
44
Singapore International Arbitration Act (Chapter 143A), s. 8.

5. oth e r f o rms o f cou r t in vol ve me n t 109
The Mauritius International Arbitration Act does not include a provi-

sion corresponding to article 6 of the Model Law, but assigns instead the
functions of articles 11, 13 and 14 to the Permanent Court of Arbitration
(PCA)45 and the functions of articles 16 and 34 to the Supreme Court.46
Section 43 of the Act also puts in place a system of six designated judges
who are to be appointed by the Chief Judge and empowered to hear all
international arbitration matters in Mauritius. Unlike, therefore, Hong
Kong and Singapore legislation, the Mauritius International Arbitration
Act entrusts a non-judicial authority (the PCA) with the functions of
appointment and challenge of arbitrators.
5. Other Forms of Court Involvement Not Mentioned

under Article 6
As noted above, article 6 only deals with the list of articles provided
thereunder where the court’s (or other designated authority) interven-
tion is deemed appropriate for the purposes of arbitration. However,
there are other provisions in the Model Law that provide for the involve-
ment or assistance of the courts, which are not listed under article 6. As
such, article 6 does not provide guidance as to which court should have
jurisdiction in these matters.
According to the travaux préparatoires, the proposal to designate one
or more special courts under article 6 for the purposes of executing
certain court functions should not apply to other court functions stated
in the Model Law, including those set out in articles 8, 9, 27, 35 and 36.47
It was reiterated that the purpose of article 6 was to create a centralised
system where a specialist court or other designated authority would hear
all such cases arising from certain Model Law provisions, and in the
process building up expertise in these matters.48 The instances listed in
article 6 would be the only cases where designation of a specific court (or
other designated authority) is possible. Article 8, which concerns referral
of matters to arbitration, and article 9, which concerns requests for
interim measures, are not mentioned in article 6 because they are
addressed to all courts of the adopting jurisdictions.49 Furthermore, the
45
International Arbitration (Miscellaneous Provisions) Act 2013, ss 12, 14, 15.
46
Ibid., ss 20, 39.
47
UNCITRAL, Summary Records of the 310th Meeting, UN Doc. A/CN.9/246 (5 June
1985), para. 27.
48
Ibid., para. 27.
49

110 a r t i c l e 6 : ar bi t r at i o n as s i s t anc e and su pervisi on
relevant court under article 27 would have to be considered on a case-by-

case basis by reference to the location of the evidence sought, or of the
witnesses. In respect of articles 35 and 36, the court with the most
relevant jurisdiction has to be determined with reference to the location
of the assets of the losing party. As such, these other court functions may
not be designated beforehand to a specific court due to the fact that the
designation would be driven by the context of the individual arbitral
cases.50
The implementation of article 6 has not been controversial. The avail-
able cases in respect of article 6 available on CLOUT mainly concern the
exercise of the power of the authority under article 11(3) with regard to
the appointment of arbitrators. In Ugandan cases, for example, the
applications were filed with the Centre for Arbitration and Dispute
Resolution (CADER), the authority specified in section 68(a) of the
Arbitration and Conciliation Act of Uganda (the Ugandan legislative
counterpart to article 6 of the Model Law).51 In many of these cases,
the CADER affirmed its authority to appoint the arbitrators where the
parties had failed to come to an agreement on that matter, pursuant to
section 11(3) of the Arbitration and Conciliation Act of Uganda (the
Ugandan legislative counterpart to article 11(3) of the Model Law).
6. Contracting Out of Article 6

Article 6 is silent on the possibility of contracting out of it. However, as
explained above, the functions under articles 11, 13 and 14 allow for the
choice of a non-judicial authority, whereas articles 16 and 34 may only be
performed by a court, as defined in article 2(c) (‘a body or organ of the
judicial system of a State’). Therefore, it can be presumed that an arbitra-
tion agreement derogating from articles 11, 13 and 14 (as enacted) will be
valid, whereas an agreement to derogate from articles 16 and 34 will not
be valid. This conclusion may not be readily apparent, especially where
the designated authority under articles 11, 13 and 14 is a judicial (instead
50
Binder (n. 27), p. 72.
51
CLOUT Case 895 (Centre for Arbitration and Dispute Resolution, Uganda, 17 March
2006), Case No. 01/06; CLOUT Case 896 (Centre for Arbitration and Dispute Resolution,
Uganda, 30 January 2006), Case No. 07/05; CLOUT Case 897 (Centre for Arbitration and
Dispute Resolution, Uganda, 30 September 2005), Case No. 03/05; CLOUT Case 898
(Centre for Arbitration and Dispute Resolution, Uganda, 23 May 2005), Case No. 05/04;
CLOUT Case 899 (Centre for Arbitration and Dispute Resolution, Uganda, 26 November
2004), Case No. 09/04; CLOUT Case 900 (Centre for Arbitration and Dispute Resolution,
Uganda, 15 July 2004), Case No. 10/04.

6. co ntra cting out of a rticle 6 111
of a non-judicial) body. In those cases, if the parties have chosen such

institutional rules as the LCIA, ICC and SCC Rules, the judicial bodies
otherwise designated by the law of the seat will not be competent to
determine such issues as the appointment, challenge and replacement of
arbitrators. This is true, for example, in respect of articles 10 and 11 of the
LCIA Arbitration Rules (2014). These provisions assign the functions
that correspond to articles 11, 13 and 14 to the arbitral institutions
themselves (here, the LCIA Court). However, as explained above, this
would not violate any legislative counterpart corresponding to articles 11,
13 and 14 of the Model Law, simply because these provisions allow for the
choice of a non-judicial authority. Similarly, articles 13, 14 and 15 of the
ICC Arbitration Rules (2017) provide that the Secretary-General and the
ICC Court will perform the functions of appointment, challenge and
replacement of arbitrators. Articles 6(3) to (6) further elaborate on the
role of the ICC Court in relation to claims as to the invalidity of the
arbitration agreement. These provisions of the ICC Arbitration Rules do
not derogate from article 16 (the functions of which may only be per-
formed by a court), since as article 6(6) of the ICC Arbitration Rules
(2017) clarifies, the parties retain the right to refer the matter to any court
having jurisdiction. It remains, however, the case that unlike article 16 of
the Model Law, the approach adopted in the ICC Rules is that such issues
may also be determined by non-judicial bodies, albeit subject to further
judicial recourse.
The position is similar under the SCC Arbitration Rules (2017), which
again assign the functions corresponding to appointment, challenge and
replacement of arbitrators to the SCC Board52 and also provide that the
SCC Board ‘shall dismiss a case, in whole or in part, if … the SCC
manifestly lacks jurisdiction over the dispute’.53 While the SCC Rules
do not include a provision similar to that of article 6(6) of the ICC Rules,
it must be the case that the SCC Rules would not derogate or otherwise
carve out the application of article 16 of the Model Law.
52
SCC Arbitration Rules (2017), arts 17, 19, 21.
53
Ibid., art. 12(i).

Article 7
Definition and Form of Arbitration Agreement

i l i a s b a n t e k a s an d p i e t r o o r t o l a n i
Option One
(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 gener-
ated, sent, received or stored by electronic, magnetic, optical or
similar means, including, but not limited to, electronic data inter-
change (EDI), electronic mail, telegram, telex or telecopy.
(5) Furthermore, an arbitration agreement is in writing if it is contained
in an exchange of statements of claim and defence in which the
existence of an agreement is alleged by one party and not denied by
the other.
(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 Two
‘Arbitration agreement’ is an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may arise
112

1. ba ckg round a nd tr ava ux p r é paratoires 113
between them in respect of a defined legal relationship, whether contrac-

tual or not.

When the Model Law was originally developed in 1985, discussions
regarding what became article 7 were not conducted on an entirely
theoretical basis, focusing solely on the question of what types of proof
should be required for a finding that a binding arbitration agreement
exists. Rather, the content of article 7 was also fundamentally informed
by the fact that national laws regarding the validity of arbitration agree-
ments have important consequences for the international enforceability
of arbitral awards.
Under article 34(2)(a)(i) of the Model Law,1 for example, an arbitral
award can be set aside if the arbitration agreement on which it was
based is not valid under the law to which the parties have subjected it or,
failing any indication thereon, under the law of the seat of the arbitra-
tion. Similarly, pursuant to article 36(1)(a)(i) of the Model Law, recog-
nition and enforcement of a foreign award can be denied if the
arbitration agreement is invalid according to these laws. The validity
of an arbitration agreement under the Model Law, then, affects not only
the enforceability of any resulting award in the State in which it was
delivered, but in any other State whose arbitration legislation is based
upon the Model Law.
Just as importantly, article 36(1)(a)(i) of the Model Law constitutes a
direct implementation of article V(1)(a) of the 1958 New York
Convention, which uses precisely the same language to specify one of
the grounds on which a court may refuse recognition and enforcement of
a foreign arbitration award. Given the central role that the New York
Convention plays in the international enforceability of arbitral awards, it
is unsurprising that the contents of article 7 of the Model Law were
significantly modelled after those of the Convention. It is important,
therefore, to pay particular attention to the New York Convention
when attempting to understand the genesis of article 7 of the Model Law.
Article II of the New York Convention states that ‘the term “agreement
in writing” shall include an arbitral clause in a contract or an arbitration
agreement, signed by the parties or contained in an exchange of letters or
telegrams’. Those negotiating the New York Convention could not, of
1
Both 1985 and 2006.

114 article 7: d efinition a nd form
course, foresee the modern evolution of means of telecommunication,

and consequently when the Model Law was originally discussed it was
already clear that some modernisation of this requirement would be
necessary.2 Nonetheless, it was also clear that the Model Law could not
simply abandon the New York Convention’s requirement that an arbi-
tration agreement be ‘in writing’, as doing so would have created a
situation in which arbitral awards could be delivered in Model Law
States based on purely oral arbitration agreements, but could not be
enforced abroad under the New York Convention, because the under-
lying arbitration agreement was not ‘in writing’.3 For this reason, a
compromise solution was adopted: the requirements for the validity of
an arbitration agreement under the Model Law, as set forth in article 7,
were based on article II of the New York Convention, but clarifications
were added regarding what should constitute an agreement ‘in writing’,
in order to ensure increased flexibility in the conclusion of arbitration
agreements without jeopardising the international circulation of the
ensuing award.
When discussions began for the revision of the Model Law, as ulti-
mately carried out in 2006, the new generation of drafters again had to
take into account the further evolution of telecommunications and the
2
Analytical Commentary on Draft Text, UN Doc. A/CN.9/264 (25 March 1985), art. 7,
para. 7.
3
When starting to elaborate the project of the Model Law, the Secretariat carried out a study
concerning the interpretation of the New York Convention by national courts. See Report
of the UN Secretary-General, Study on the Application and Interpretation of the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, UN Doc.
A/CN.9/168 (20 April 1979). The Study revealed how the requirements set forth in art. II of
the Convention had been given diverging interpretations by different courts, with some of
them enlarging the scope of application of the provision in order to take into account the
technological and social evolutions of communications and others maintaining a more
restrictive approach, based on the literary meaning of the provision. The same circum-
stance was highlighted by the Working Group in the context of the 2006 revision of the
Model Law, when harmonisation of the interpretation of the writing requirements was
advocated. See Report of the UN Secretary-General, Possible Uniform Rules on Certain
Issues Concerning Settlement of Commercial Disputes: Conciliation, Interim Measures of
Protection, Written Form for Arbitration Agreement, UN Doc. A/CN.9/WG.II/WP.108/
Add.1 (14 January 2000), para. 8. Some commentators suggest that the more-favourable-
right provision set forth in art. VII of the New York Convention should be construed as
encompassing arbitration agreements as well: A. J. van den Berg, The New York
Arbitration Convention of 1958 – Towards a Uniform Judicial Interpretation (Kluwer,
1981), p. 86. However, since different national systems adopt different approaches as to
the requirements of validity of the arbitration agreement, the Model Law decided to
enlarge the scope of application of the written form requirement set forth in art. II, rather
than radically departing from it.

contemporary reality of international commercial transactions.

Consequently, in order to update article 7, the Working Group first of
all enunciated the three main purposes of an arbitration agreement.4
First, an arbitration agreement serves the purpose of providing evidence
as to the will of the parties to submit to arbitration. Second, the arbitra-
tion agreement enables the parties to be identified. Third, the agreement
constitutes a warning as to the importance of renouncing rights of
recourse to the courts. The reference to this third ‘purpose’, of course,
confirmed that the traditional controversy about the ability of arbitration
agreements to preclude access to domestic courts remained alive.
A wide debate then took place in the Working Group,5 in the
Commission and more generally within the arbitration community6 as
to whether written form requirements are still useful to ensure that these
functions of an arbitration agreement are effectively fulfilled. On the one
hand, it was argued, such functions still play an important role, especially
considering that parties entering into an arbitration agreement waive
their right to access state justice and that the existence of a written
agreement is required for the purposes of recognition and enforcement
by article IV(1)(b) of the New York Convention. On the other hand,
however, it was also argued that requirements of written form are no
longer essential, particularly in contexts in which the contract containing
the arbitration agreement is itself not subject to any requirement that it
be in writing. In such a situation, it was argued, if consent to the main
contract can be adequately ascertained to justify its enforcement, and the
parties to the contract can also adequately be identified, and both without
any need for a written form, it is unclear why the arbitration clause
should be the only clause in that contract that should not be enforceable.
Furthermore, in light of the central importance that arbitration has
acquired as a leading method for the resolution of international
4
Report of the Working Group on Arbitration on the Work of Its Thirty-Second Session
(Vienna, 20–31 March 2000), UN Doc. A/CN.9/468 (10 April 2000), para. 89.
5
The proposal to abolish the written form requirement was formulated by the Mexican
Delegation. See Settlement of Commercial Disputes: Preparation of Uniform Provisions
on Written Form for Arbitration Agreements Proposal by the Mexican Delegation, UN
Doc. A/CN.9/WG.II/WP.137 (20 April 2005).
6
N. Kaplan, ‘Is the Need for Writing as Expressed in the New York Convention and the
Model Law Out of Step with Commercial Practice?’ (1996) 12 Arb. Intl 27; G. Hermann,
‘The Arbitration Agreement as the Foundation of Arbitration and Its Recognition by the
Courts’ in A. J. van den Berg (ed.), International Arbitration in a Changing World (Kluwer,
1994), p. 41.

116 article 7: d efinition and form
commercial disputes, it was argued that the warning function has lost
much of its relevance.7
As already noted, these disagreements could not be resolved, resulting
in the incorporation into the 2006 Model Law of alternative options for
article 7. According to the Report of the Commission, it was initially
proposed that the second option could be inserted as a footnote to article
7, or in any explanatory material.8 However, it was objected that the two
texts represented alternative approaches and that they should therefore
be presented to the enacting States as two different but equivalent
options. Consequently, an explicit choice was incorporated into article
7 for any enacting State: adhere to option one, retaining the written form
requirement, or to option two, adopting a less formalistic notion of
arbitration agreement. The two options will be separately analysed in
detail in the remainder of this chapter.
2. Commentary on Option One

2.1 Paragraph 1
Paragraph 1 introduces several concepts, all of which are central to the
operation of the agreement to arbitrate. More specifically, it discusses: (1)
what constitutes an agreement to arbitrate; (2) the distinction between
pre-dispute and post-dispute arbitration agreements; (3) the range of
legal instruments in which an agreement to arbitrate may be incorpo-
rated; and (4) the range of disputes that may be submitted to arbitration.
2.1.1 Existence of an Arbitration Agreement

Since international commercial arbitration operates on a voluntary basis,
it cannot take place if the parties have not concluded an arbitration
agreement. Nonetheless, it is in practice not always easy to determine
whether such an agreement exists. The Model Law’s requirement that an
arbitration agreement be ‘written’ might seem to resolve the question of
whether or not an agreement to arbitrate exists, even if it leaves open the
question of which disputes that agreement covers. However, the language
used in the clause may raise questions, for example, as to whether the
clause in question is genuinely an agreement to arbitrate or is instead
merely contemplation of the possibility that arbitration may be used.
7
See UN Doc. A/CN.9/468 (n. 4), para. 89.
8
Report of UNCITRAL on the Work of Its Thirty-Ninth Session, UN Doc. A/61/17 (14 July
2006), para. 169.

2. commentary on opti on one 117
Where a court finds the latter, no binding agreement to arbitrate will be

found to have been made.9
One important feature of article 7 is that it does not lay down detailed
requirements that must be met for an arbitration agreement to be
formed, beyond option one’s simple requirement that it be ‘in writing’.
Similarly, article 7 imposes no requirements regarding the degree of
certainty that a court must have that the parties knowingly agreed to
arbitration, or how informed a party’s consent to arbitration must be.
Rather, so long as an arbitration agreement ‘in writing’ exists, it need
have no particular form, and local jurisdictions retain the freedom to
determine for themselves questions of informed consent.
Nonetheless, while the incorporation into the Model Law of such a
permissive and flexible approach to the existence of arbitration agree-
ments might seem to remove the need for protracted disputes regarding
the existence of arbitration agreements, the practical reality is that many
arbitration agreements simply are not clearly drafted. As a result, State
courts reviewing the existence and validity of arbitration agreements are
often faced with complex interpretive questions.
Moreover, even when a court determines that consent to some form of
arbitration does indeed exist, courts in some jurisdictions will also con-
sider whether that consent sufficiently identifies a particular form of
arbitration, and whether that form of arbitration is operable. By way of
illustration, a clause providing that ‘[t]he arbitration power of this con-
tract belongs to the court(s) of the place where the seller is situated’, while
clearly referring to arbitration, was found to be open to multiple inter-
pretations, and hence inoperable.10
It may initially seem that such an approach is inconsistent with the
Model Law, given the absence of any formal requirement beyond that of
‘writing’, and in many leading arbitral jurisdictions courts will enforce
even poorly drafted arbitration agreements provided that consent to
arbitration in some form has been found. However, it is important to
remember in this context that the retention of the ‘writing’ requirement
in the 2006 Model Law was explicitly motivated by concerns surrounding
the importance of the right to access national courts. Consequently, while
refusal to enforce an arbitration agreement due to the existence of a
9
See e.g. Jagdish Chander v. Ramesh Chander and Others (2007) 5 SCC 719, Indian
Supreme Court judgment.
10
Tai-Ao Aluminium (Taishan) Co. Ltd v. Maze Aluminium Engineering Co. Ltd and
Another, Hong Kong First Instance Court judgment (17 February 2006), [2006]
HKCFI 220.

118 article 7: defi nition a nd form
minor drafting issue should be understood as inconsistent with the goals

and structure of the Model Law, refusal to enforce agreements in which
consent itself is unclear is consistent with the policies underlying the
retention of the ‘writing’ requirement.
Issues of the existence of consent, however, can also arise even when
the reference to arbitration itself is clear, particularly in the commercial
context, as commercial contracts are often the result of protracted nego-
tiations, and can be assembled in large part through the compilation of
pre-existing texts. Because of this background, commercial contracts will
sometimes include conflicting dispute resolution clauses, incorporating
both an agreement to litigate disputes before a selected State court and an
arbitration agreement. In such cases, courts have generally adopted one
of three alternative approaches: (1) adopt a pro-arbitration stance and
enforce the arbitration agreement on the ground that the wording of the
arbitration clause is clear enough to demonstrate the will of the parties to
submit to arbitration;11 (2) ignore any reference to arbitration on the
ground that there is no conclusive evidence that this was the parties’
unequivocal choice;12 or (3) interpret the contract in a way that will give
effect to both clauses, while potentially not giving full effect to either.
Alternative (1) relies on the view that the parties’ common intent
should be given effect as much as possible: therefore, as litigation in
national courts is the default method of dispute resolution, incorporation
of arbitration into a contract indicates a clear choice by the parties to
submit certain disputes to arbitration. Alternative (2), on the other hand,
emphasises that access to State justice is a fundamental right, enshrined
in constitutions and in several international instruments:13 therefore,
arbitration clauses should be enforced only inasmuch as they are clear
enough to rule out any doubts as to whether the parties actually agreed to
resolve their disputes through private adjudication, with any significant
ambiguity being resolved in favour of litigation in domestic courts.
11
Audiencia Provincial Civil de Madrid, Decision No. 147/2013, Camimalaga SAU v. DAF
Vehiculos Industriales SAU; Rampton v. Eyre, Ontario Court of Appeal judgment (2 May
2007), [2007] ONCA 331; PT Tri-MG Intra Asia Airlines v. Norse Air Charter Ltd,
Singapore High Court judgment (12 January 2009), [2009] SGHC 13; German
Bundesgerichtshof, judgment of 25 January 2007, VII ZR 105/06.
12
Kenon Engineering Ltd v. Nippon Kokan Koji Kabushiki Kaisha, Hong Kong Court of
Appeal judgment (7 May 2004), [2004] HKCA 101.
13
EU Charter of Fundamental Rights, art. 47; European Convention on Human Rights, art.
6. For a comparative overview and a transnational analysis of access to justice, see M.
Cappelletti (ed.), Access to Justice (Giuffrè Sijthoff, 1978–79).

2. commentary on option one 119
The superior option, however, namely alternative (3), entails accepting

the complexity of the negotiations that often underlie contracts, and
particularly commercial contracts, and ensuring that neither clause be
understood to have been incorporated into the contract in opposition to
the intentions of the contracting parties. Consequently, the inclusion of
an arbitration agreement indicates the will of the parties to submit certain
matters to arbitration, while the inclusion of an agreement to litigate
before State courts indicates the will of the parties to submit certain
matters to the jurisdiction of State courts. The question for a court
reviewing such a contract, then, is not which of these clauses should be
given preference, but which matters should be understood to have been
referred to which forum.14
Further issues can arise where a contract allocates to one or both of the
parties the right to choose between arbitration and litigation once a
dispute has arisen, as some courts have held that in such a situation no
binding arbitration agreement exists due to the absence of an adequate
‘clear’ intention to arbitrate.15 Such an approach is, however, difficult to
defend in the context of the Model Law, as although the existence of an
‘agreement’ to arbitrate does require that an ‘intention’ to arbitrate also
exists, such an intention is included in an agreement to ‘arbitrate or
litigate’. The important question, as reflected in the retention of the
‘writing’ requirement, is whether both parties have agreed that they are
willing to forego their traditional right to access State courts. So long as
this agreement is found, the policies behind the retention of the ‘writing’
requirement are respected, and there is no further justification in the
Model Law itself for imposing stricter formal requirements on arbitra-
tion agreements. Consequently, the approach most consistent with the
Model Law is to enforce agreements incorporating a choice between
14
See e.g. S. Stebler, ‘The Problem of Conflicting Arbitration and Forum Selection Clauses’
(2013) 31 ASA Bull. 27–44, 36: ‘Depending on the exact wording of the clauses and the
circumstances surrounding the case, the courts and arbitral tribunals reconciled the
clauses by holding that the parties were assumed to have subjected their dispute to
arbitration while the forum selection clause merely fulfilled one of the following func-
tions: identifying the seat of arbitration, identifying the juge d’appui competent ratione
loci, identifying the supervisory court competent ratione loci, serving as a fallback rule in
case the arbitration clause does not take legal effect or where no party invokes the
arbitration clause, or a combination of the above. In several cases, the courts and arbitral
tribunals concluded that some issues were supposed to be arbitrated and others should be
referred to the state court designated in the forum selection clause.’
15
Librati v. Barka Co. Ltd, Superior Court of Quebec judgment (5 December 2007), [2007]
QCCS 5724.

120 a r t i c l e 7: de f i n i t i on an d f o r m
arbitration and litigation, as nonetheless clearly expressing a willingness

of the parties to arbitrate their dispute.16
Problems of clarity as to the parties’ intention to arbitrate can also arise
when parties adopt ‘tiered’ dispute resolution clauses, requiring certain
steps to be taken prior to the commencement of arbitration. In this
respect, particular issues arise with the incorporation of non-binding
forms of alternative dispute resolution, such as mediation or negotiation,
prior to either party gaining the right to commence arbitral proceedings.
Such clauses are in some respects highly desirable, as they encourage the
parties to try and resolve their dispute through agreement before com-
mencing arbitration: ‘escalation clauses’ in construction disputes are a
clear example in this regard.17 However, they also raise difficulties,
particularly concerning when a party has the right to commence arbitra-
tion: if, for example, negotiation is required prior to commencement of
arbitration, can a party commence arbitration if it believes the other party
is not negotiating in good faith; can it omit negotiation entirely if it is
genuinely convinced that no agreement is possible; or must it negotiate
until a predetermined deadline arrives, or until both parties agree that
negotiation will not be fruitful?
While the Model Law does not provide any clear guidance in this
regard, the best interpretation would recognise that such a clause does
indeed reflect the willingness of both parties to submit their dispute to
arbitration, and hence meets the minimal formal requirements of an
arbitration agreement that can be justified under the Model Law.18
Questions would remain, of course, regarding when the pre-arbitration
requirements have been satisfied, so that a party may formally commence
arbitration, and the Model Law provides no guidance at all in this respect.
It is therefore up to State courts to determine their own policies regarding
when such a multi-tiered clause has been satisfied. However, any such
rule so strict as to effectively eliminate the right of a party to access
16
See e.g. Grandeur Electrical Co. Ltd v. Cheung Kee Fung Cheung Construction Co. Ltd,
Hong Kong Court of Appeal judgment (25 July 2006), [2006] HKCA 305; WSG Nimbus
Pte Ltd v. Board of Control for Cricket in Sri Lanka, Singapore High Court judgment (13
May 2002), [2002] SGHC 104.
17
I. Hautot and G. Flécheux, ‘La Clause de Règlement des Différends dans les Conditions F.
I.D.I.C. Génie Civil de 1987’ (1989) 4 Rev. Arb. 609.
18
See e.g. Ho Fat Sing t/a Famous Design Engineering Co. v. Hop Tai Construction Co. Ltd,
Hong Kong District Court judgment (23 December 2008), [2008] HKDC 339. By con-
trast, see Tang Chung Wah (Aka Alan Tang) and Another v. Grant Thornton Intl Ltd and
Others [2012] EWHC 3198 (Ch).

2 . c o m m e n t a r y on op t i o n on e 121
arbitration could not be justified by the policies or the structure of the

Model Law.
2.2 Pre- and Post-Dispute Arbitration Agreements

Two types of arbitration agreements exist in law and practice: pre-dispute
arbitration agreements, concluded when the dispute between the parties
has not yet arisen, and post-dispute arbitration agreements, otherwise
known as submission agreements or compromises, concluded when the
dispute has already arisen.19 Article 7 reflects this dichotomy by distin-
guishing between an arbitration clause in a contract and a separate
arbitration agreement.20
Pre-dispute arbitration agreements are usually worded in the form of
an arbitration clause, i.e. an agreement to arbitrate incorporated in a legal
instrument (such as a contract), stipulating that in the event of a future
dispute arising out of or in connection with said instrument, the parties
agree to submit to arbitration. Although the arbitration clause is included
in a contract, it is a separate and independent agreement, related to but
independent from the contract in which it is contained: this basic concept
of arbitration is usually referred to as ‘separability’. One particularly
important consequence of the doctrine of separability is that even if the
contract containing an arbitration agreement is found to be null and
void, the arbitration clause can survive and, assuming it is not itself null
or void, it may validly trigger arbitral proceedings.
The arbitration clause is the most common form of pre-dispute arbi-
tration agreement, but parties can also enter into a separate agreement
before any dispute arises between them; such an agreement will be valid
as long as the parties have specifically defined the legal relationship in
respect of which the agreement applies, as required by article 7(1) of the
Model Law.
One traditional concern has been that pre-dispute arbitration clauses
may not truly suffice to record the parties’ intent to submit future
disputes to arbitration. That is, since at the time of entering into the
agreement the parties do not know the precise nature of the dispute that
will ultimately be submitted to arbitration, they cannot knowingly agree
that this particular dispute is one that they do indeed wish to submit to
arbitration. Consequently, a pre-dispute arbitration clause can be viewed
19
Model Law, art. 7(1) (option I).
20
Ibid.

122 a r t i c l e 7 : de f i n i t i o n an d f o r m
as a speculative agreement. Some States have traditionally viewed spec-

ulative contracts as being null or void, and consequently have held pre-
dispute arbitration agreements to be non-binding.21 There is, however,
no support for such concerns under the Model Law, as article 7(1)
expressly encompasses pre-dispute agreements within the definition of
‘arbitration agreement’.
Where a dispute has already arisen, but the parties have not incorpo-
rated an arbitration clause in their existing agreement, they can none-
theless still have recourse to arbitration, provided that they enter into an
agreement to arbitrate their dispute. Post-dispute agreements are usually
more elaborate than pre-dispute arbitration clauses, because the parties
are now well aware of the contents of the dispute and can therefore agree
on the details of the arbitration. Thus, whereas a pre-dispute arbitration
clause often limits itself to choosing the seat and the chosen arbitral
institution, a post-dispute arbitration agreement may well specify: (1)
the exact nature of the dispute and precise instructions to the panel of
arbitrators; (2) the applicable substantive law; (3) the names of other
willing parties that have subsequently become parties to the original
contract (such as contractors, subcontractors, insurers through subroga-
tion, etc.); (4) detailed procedural rules or guidelines on ethics; (5)
distinct institutional rules; and (6) other procedural details.
2.3 Types of Instruments Containing an Arbitration Agreement

The Model Law does not articulate specific types of instruments which
can contain an arbitration agreement: paragraph 1 simply provides that
an arbitration agreement may refer to disputes arising in respect of a
defined legal relationship, ‘whether contractual or not’. Consequently,
this matter is regulated exclusively by national systems of private law. It
is, therefore, necessary to analyse the various instruments which, under
different national regimes, can incorporate an arbitration agreement.
Although contracts are the most common instrument into which arbi-
tration clauses are inserted, parties are free to declare their intent to
21
Speculative contracts, known as gharar fahish (which may encompass arbitration clauses,
although in practice they are subject to a tacit exception) and interest-based foreign
arbitral awards (as well as loan agreements to this effect) are specifically prohibited under
Islamic law, but are not prohibited in all Sharia-based nations. See e.g. Federal Supreme
Court of Abu Dhabi, Case No. 245/2000, judgment (7 May 2000), which noted that the
pressing international business environment necessitates the imposition of interest.

arbitrate in any instrument, provided that the applicable national law

allows them to employ such an instrument.
In the following paragraphs we shall examine the inclusion of arbitra-
tion clauses in contracts, trusts, corporate articles of agreement (or
corporate bylaws) and testamentary wills.
2.3.1 Contracts
Contracts constitute the most common instrument containing the par-
ties’ agreement to arbitrate. Although contracts share many common
features among all national systems and there are now standardised
contracts in several fields,22 contract law can still differ significantly
across States. Polish civil law, for example, does not view mere agree-
ments lacking the qualities of contract as binding and enforceable. This is
also the case in English law. However, English contract law distinguishes
between three types of contractual clauses, namely conditions, warranties
and innominate terms. A condition, unlike a warranty, is fundamental to
a contract and hence if breached the innocent party may repudiate the
contract and claim damages.23 Innominate terms concern the effect of the
breach, whereby if found to have substantially deprived the innocent
party of the benefits of the contract as a whole, the contract is deemed
terminated.24 The Model Law, however, does not suggest any uniform
approach to such requirements of substance or form, which are left
entirely to be determined by national legal systems.
Importantly, however, while this might indicate that the agreement
containing an arbitration clause must conform to the applicable contract
law if it is to be enforceable, the doctrine of the ‘separability’ of arbitration
agreements entails that an arbitration agreement may be enforceable
even if the document in which it is contained is not.
Nonetheless, this does not mean that contract laws are irrelevant to the
enforceability of arbitration agreements, as ‘separability’ is based on the
principle that the arbitration agreement is itself an independently exist-
ing contract. Consequently, whether or not the contract containing an
arbitration agreement conforms to the applicable contract law, the
22
The Principles of European Contract Law (PECL) provide a uniform transnational
regime of contract law; similarly, the UN Convention on Contracts for the
International Sale of Goods sets forth a harmonised set of rules for international sales.
23
See e.g. Kuwait Rock Co. v. AMN Bulkcarriers Inc. [2013] EWHC 865 (Comm.), where
clauses allowing shipowners to withdraw their vessels upon late payment of hire were
described as conditions.
24
Hong Kong Fir Shipping v. Kawasaki Kisen Kaisha [1962] 2 QB 26.

124 a r t i c l e 7: de f i n i t i o n an d f o r m
arbitration agreement itself must do so, unless the applicable law partially
or wholly exempts arbitration agreements from the normally applicable
contract law.
Ultimately, the arbitration clause and the post-dispute submission
agreement must conform to their appropriate contract law, in which
case form may play a crucial role. By way of illustration, article 548(2) of
the Romanian CCP stipulates that if a contract concerns a dispute con-
nected with the transfer of a property right and/or the creation of another
right in rem related to immovable assets, the arbitration agreement must
be authenticated by a notary public under the sanction of absolute nullity.
Hence, even if the parties record their agreement to arbitrate in a
standardised contract, there is no assurance that this will be valid under
the law governing the contract or the arbitration clause therein. Other
nations take a less formalistic approach to the arbitration agreement.
Swiss courts have held that the signatures of all parties are not required
provided that the agreement was actually concluded.25
2.3.2 Trusts
Trusts typically involve an agreement between the owner of property (the
settlor) transferring said property to a trustee for the benefit of present or
future beneficiaries. In the common law, this triangular relationship is
governed by a trust deed, which, however, only encompasses the settlor
and the trustee, even if as a result of the deed the trustee (who now holds
legal title over the property) owes fiduciary and other duties to the
beneficiaries. The beneficiaries are clearly third parties to the deed and
ordinarily would be excluded from the ambit of an arbitration clause
incorporated therein, chiefly because they have not offered their consent
to the trust deed, including its arbitration clause.26 Civil law nations, on
the other hand, view the formation of trusts from the point of view of
contract (as is the case with the treuhand) and hence find few legal
obstacles to accepting arbitration clauses in trust instruments, viewing
them as contracts for the benefit of third parties.27 In any event, even in
25
Compagnie de Navigation et Transports SA v. MSC Mediterranean Shipping Co. SA, BGE
121 II 38; equally, Case No. 2–05-23561, Estonian Court of Appeals judgment (9 March
2007), which held that an unsigned agreement is valid even through an exchange of letters
and faxes, assuming there is both offer and consideration.
26
By way of illustration, in Schoneberger v. Oelze, 96 P.3d 1078 (Ariz. 2004), 1084, the
Arizona Court of Appeals held that a mandatory arbitration clause in a trust deprived the
beneficiaries, absent a mutual agreement, of their right of access to court and was thus
unenforceable against them.
27
See e.g. 2005 Maltese Trusts and Trustees Act, art. 15.

jurisdictions in which the beneficiaries are deemed to be third parties to

the trust deed, arbitration clauses incorporated in the deed are commonly
interpreted as binding on the beneficiaries as well.28 Thus, section 63 of
the 2007 Guernsey Trusts Law and article 41 of the 1984 Panama Trust
Law recognise the validity of arbitration clauses in trust instruments, as is
the case with the majority of similar statutes in South and Central
America,29 albeit with some limitations in certain jurisdictions.30
2.3.3 Corporate Articles of Establishment

An agreement to arbitrate may also be found in a company’s articles of
establishment (or incorporation) or its bylaws, which otherwise sets out
the initial shareholders, functions and other characteristics of the legal
person.31 Although few arbitration statutes specifically refer to corporate
arbitration, the tendency among those which do is to provide for strict
conditions as regards the incorporation of arbitration clauses in corpo-
rate statutes. Under article 11(bis)(3) of the Spanish Arbitration Act, the
insertion of an arbitration agreement in a corporate statute requires a
vote in favour of, at least, two-thirds of the votes attached to the shares
into which the capital is divided. Moreover, the corporate statutes shall be
able to provide that the challenge to corporate resolutions by share-
holders or directors is submitted to the decision of one or more arbitra-
tors, entrusting the administration of the arbitration and the designation
of the arbitrators to an arbitral institution.32
The obvious complication with the insertion of an arbitration agree-
ment in corporate articles of establishment is that, as the company’s
shares are continuously bought and sold, a range of new shareholders
28
See T. Molloy and S. I. Strong, Arbitration of Trust Disputes: Issues in National and
International Law (Oxford University Press, 2016).
29
e.g. Paraguay’s Ley No. 921 de Negocios Fiduciarios, art. 44.
30
This is true particularly in respect of testamentary arbitration. See 1997 Bolivian Ley de
Arbitraje y Conciliación No. 1770, art. 10.
31
Article 4 of the 1992 Finish Arbitration Act states that arbitration clauses in the bylaws of
an association, of a foundation, of a limited liability company or of another company or
corporate entity shall have the same effects as arbitration agreements; a similar rule is set
forth in art. 1163 of the Polish CCP.
32
As for the appointment of arbitrators, a similar approach is followed in Italy: under art. 34
of D. Lgs. 5/2003, an arbitration agreement included in corporate articles of agreement is
only valid if all arbitrators are appointed by an arbitration institution or another third
person. The reason for such legislative choice is that, when disputes involve more than
two litigants (as commonly happens with disputes among shareholders of a company),
granting each party the right to appoint one arbitrator could prove extremely
problematic.

are subject to the arbitration clause included in the initial articles of

incorporation or bylaws. Most jurisdictions treat corporate articles
(including, of course, relevant arbitration clauses) as contracts that
bind everyone encompassed therein.33 Whether or not a particular cor-
porate matter falls within an arbitration clause depends on the phrasing
of the clause and the arbitrability of the issue under consideration.34
2.3.4 Testamentary Wills

A will is ordinarily a unilateral act mortis causa drawn up by the testator for
the benefit of his or her heirs and legatees.35 As a result, although it is in
writing and the intended beneficiaries must accept its terms, a will is not an
agreement as such. Consequently, most States refuse to recognise and
enforce arbitration clauses in wills as a matter of arbitrability or because
they view them as contrary to public policy.36 Exceptionally, however, some
legal systems see no inherent tension between arbitration and inheritance
law. Articles 3 of the 1992 Finnish Arbitration Act and 10 of the 2003
Spanish Arbitration Act specifically permit arbitration clauses in wills.
The obvious limitation with arbitration clauses in wills is that, where
they encompass real estate or assets in more than one State, the disputes
in question may not be arbitrable in each of those States. Consequently,
recognition and enforcement may potentially be denied under article V
(2)(a) of the New York Convention.
2.4 Range of Disputes

While article 7(1) of the Model Law is broad, it also makes clear that
arbitration agreements cannot be entirely unlimited in scope.
33
See e.g. Indian Companies Act (1956), s. 36; confirmed by the Indian Supreme Court in
Dale & Carrington Investment Ltd v. PK Prathapan [2005] 1 SCC 217. By implication,
agreements that are initially extraneous to a company’s articles, when they themselves are
incorporated, attached or expressly related to the articles, become susceptible to the
arbitration clause contained in the initial articles. Rangaraj v. Gopalakrishnan, AIR
1992 SC (India) 453.
34
For example, under the terms of the 2003 Italian Corporate Arbitration Law, arbitration
clauses incorporated in a non-listed company’s articles of incorporation or its bylaws bind the
company and all of its shareholders. Requests for arbitration must be filed at the Registry of
Enterprises and made available to all members. The law allows third-party intervention in the
arbitral proceedings by other shareholders, either voluntarily or following a party’s request or
an order by the tribunal. Decreto Legislativo 5 of 17 January 2003, art. 34(3).
35
Greek Civil Code, art. 1712.
36
In re. Will of Jacobovitz, 295 NYS 2d 527 (1968), p. 529, it was ruled that arbitration in
probate proceedings was against public policy.

2. comm entary on o ption one 127
Specifically, an arbitration clause must concern ‘all or certain disputes

that have arisen or which may arise between them in respect of a defined
legal relationship’.37 Importantly, while there clearly must be a contrac-
tual relationship between the parties, at least in the form of the arbitration
agreement itself, the Model Law imposes no requirement that the dispute
being submitted to arbitration must itself arise from a contractual rela-
tionship. Rather, so long as the relationship is ‘legal’, the requirements of
article 7(1) in this respect are satisfied. Consequently, disputes regarding
tort or other non-contractual legal claims may also be submitted to
arbitration under the Model Law.
Despite the breadth of this provision, however, questions still arise
regarding the range of disputes covered by arbitration clauses, as the
Model Law provides no specific guidance as to how the scope of
arbitration clauses should be interpreted. This is an important ques-
tion, as arbitrators are not tenured State judges, but only have adju-
dicatory powers if and inasmuch as the parties have agreed to submit
to arbitration, and therefore the language of the arbitration agree-
ment defines the scope of application and the types of disputes it
covers. Consequently, were the arbitrator(s) to decide on matters not
included within the scope of the arbitration clause, the award could
be successfully challenged and set aside under article 34(2)(a)(iii) of
the Model Law, as having been rendered ultra vires. However,
because the Model Law itself provides no guidance on how such
questions should be addressed, they must be resolved at the level of
national legal systems.
Traditionally, the language most widely used for a narrow arbitration
clause refers to disputes ‘arising out of the contract’ (emphasis added),
thereby suggesting consent to submit to arbitration only those disputes
directly encompassed within a particular contractual relationship. By
implication, therefore, other disputes arising in connection with the
relationship between the parties, potentially related to the performance
of the contract but not directly arising from the contract itself, would
not be covered by the arbitration agreement. By way of illustration,
unlawful behaviour by one of the parties, even if undertaken while
performing contractual obligations, will give rise to an independent
37
Emphasis added. The 2011 Portuguese Voluntary Arbitration Law goes a step further,
stipulating that the arbitration agreement may not only submit contentious disputes to
arbitration, but may also confer upon the arbitral tribunal the power to ‘complete and
adapt contracts with long-lasting obligations to new circumstances’: Portuguese
Voluntary Arbitration Law, art. 1(4).

claim in tort or perhaps unjust enrichment, but that claim must be

litigated in court, as it would not be covered by the arbitration
agreement.
By contrast, standardised (or model) clauses with broader phrasing
have been developed by arbitral institutions, intended to ensure that all
matters connected with the transaction to which an arbitration agree-
ment relates can be referred to arbitration. Two prominent model clauses
are as follows:
‘all disputes arising out of or in connection with the present contract’;38
‘any dispute arising out of or in connection with this contract, including
any question regarding its existence, validity or termination’.39
Civil law jurisdictions have generally been inclined to afford a broader

scope to otherwise narrowly drafted arbitration agreements in situations
where this clearly reflected the parties’ mutual intention.40 Article 808
quater of the Italian CCP, for example, introduces a presumption
whereby if doubts arise as to the boundaries of the arbitration agreement,
the tribunal or court interpreting it must do so in the broadest manner
possible as ‘extending to all disputes arising from the contract or from the
relationship to which the agreement refers’.41 Such statutory provisions
mitigate the need for carefully drafted model clauses, whose objective is
to make it absolutely certain that the agreement to arbitrate will be
interpreted as extending to all disputes arising out of the parties’ relation-
ship, whether contractual or other.
The interpretative approach regarding the scope of arbitration clauses
was until recently rather different in England and the USA. In the Fiona
Trust case, which involved several charter-party agreements whose arbi-
tration clause referred to ‘any dispute arising under this charter’, one of
the claimants argued that bribery had taken place. Such conduct would
ordinarily have fallen outside the arbitration clause because it did not
arise under the charter. The House of Lords held, however, following
largely continental precedent and language, that the courts must assume
that businessmen entering into an arbitration agreement are rational
actors and as such are more likely to have intended to subsume within
an arbitration clause all relevant disputes, unless they have explicitly
38
ICC standard clause.
39
LCIA standard clause.
40
[BGH] German Federal Court of Justice decision (27 February 1970), (1990) 6 Arb.
Intl 79.
41
Equally, art. 15(2) of the 1996 Maltese Arbitration Act; art. 550(3) of the Romanian CCP.

3 . p a r a g r a p h 2: ag r e e m en t in w r i t i n g 129
stated otherwise.42 As a result, the tort of bribery was held to be encom-

passed under the parties’ arbitration agreement. In the USA, by contrast,
no presumption similar to that in the Fiona Trust case exists uniformly
across federal courts.43
3. Paragraph 2: Agreement in Writing

The written form requirement is the main difference between the two
options offered to enacting States under article 7 of the Model Law.
When parties enter into an arbitration agreement, they waive their
right to litigate before the competent State courts: in light of the
importance of such a decision, most national legal systems include
requirements of form for the validity of an arbitration agreement.
Consistently with such approach, according to the first option, article
7(2) of the Model Law requires that arbitration agreements be
included in written form.
In practice, this formal validity requirement is now generally under-
stood to encompass any express recording of the parties’ intention to
submit their dispute to arbitration. It is not merely a matter of proof
(written form ad probationem), but at least in principle a condition for
the validity of the arbitration agreement (written form ad substantiam or
ad validitatem).44 It should be noted that, despite the clarity superficially
inherent in the requirement of a written agreement, the practice of
national legal systems is anything but uniform, although there are areas
of convergence. A ten-year study by UNCITRAL on the application of
the formal validity requirement under article II(2) of the New York
Convention revealed several divergences.45 The study highlights that
some States enforce awards only when the parties have signed the
42
Fiona Trust & Holding Corp. and Others v. Privalov and Others [2007] UKHL 40; see also
for a similar liberal approach by Australian courts, Commandate Marin Corp. v. Pan
Australia Shipping Pty Ltd (2006) 157 FCR 45.
43
See Cape Flattery Ltd v. Titan Maritime LLC, 647 F.3d 914 (9th Cir. 2011), whereas the
2nd Circuit has adopted the liberal approach in cases such as Threlked & Co. Inc. v.
Metallgesellshaft Ltd (London), 923 F.2d 245 (2nd Cir. 1991).
44
Article 1226 of the Luxembourg NCCP provides three alternative (written) forms for the
submission agreement, namely: as minutes before the arbitrators; in the form of a
notarised document; or as a private agreement.
45
UNCITRAL, Working Group II (Arbitration), Compilation of Comments by
Governments, Note by the Secretariat, UN Doc. A/CN.9/661 (6 May 2008). See S. I.
Strong, ‘What Constitutes an Agreement in Writing in International Commercial
Arbitration? Conflicts between the New York Convention and the Federal Arbitration
Act’ (2012) 48 Stan. JIL 47.

contract containing the arbitration clause or the compromis46 and others

exclude the validity of agreements which, although recorded in a written
message coming from one of the parties, have not been ratified with a
signature by the other party, as well as agreements by regular prior use of
general conditions of trade.47 Notably, much of this practice goes against
one of the fundamental principles of paragraph 2 of article 7 of the Model
Law, namely that there should be no signatures requirement in respect of
the agreement to arbitrate.48
The extensive definition of an arbitration agreement in writing as articu-
lated in article 7 of the Model Law was intended to bring it into line with the
1996 UNCITRAL Model Law on Electronic Commerce and the 2005
United Nations Convention on the Use of Electronic Communications in
International Contracts.49 Electronic signatures must be distinguished from
digital signatures. An electronic signature is anything in electronic form
which may serve as indisputable evidence that the signing entity intended
its signature as producing legal effect. An electronic signature is generated
by a computer or a computer-like device, a particular form of which is a
digital signature.50 It is now accepted by the majority of nations that an
agreement recorded by electronic means of communication is valid.51
Arbitral legislation based on the Model Law either explicitly recognises
electronic signatures or at least recommends them where the parties’
agreement is recorded by electronic means.52 Under Czech law, it is
recommended that parties entering into an arbitration agreement by
46
UNCITRAL, Working Group II (Arbitration), Preparation of Uniform Provisions on
Written Form for Arbitration Agreements, Note by the Secretariat, UN Doc. A/CN.9/
WG.II/WP.139 (14 December 2005), para. 12.
47
Ibid., para. 13.
48
See Schiff Food Products Inc. v. Naber Seed & Grain Co. Ltd [1996] CanLII 7144 (SKQB).
49
UN GAOR 51st session, Supp. No. 17, UN Doc. A/51/17 (1996), annex I; UNGA Res. 60/
21 (23 November 2005).
50
A digital signature comprises ‘data appended to, or a cryptographic transformation of, a data
unit that allows a recipient of the data to prove the source and integrity of the data unit’. See S.
Mason, Electronic Signatures in Law, 3rd edn (Cambridge University Press, 2012), p. 189.
51
Chloe Z. Fishing Co. v. Odyssey Re. (London) Ltd, 109 F. Supp. 2d 1236, 1250 (SD Cal.
2000); Great Offshore Ltd v. Iranian Offshore Engineering & Construction Co., Indian
Supreme Court judgment (25 August 2008), [2008] 14 SCC 240; Oonc Lines Ltd v. Sino-
American Trade Advancement Co. Ltd, Hong Kong Court of First Instance judgment (2
February 1994), [1994] HKCFI 193.
52
Section 126(a) of the German Civil Code (BGB) which concerns electronic signatures and
is thus integral to the construction of the ‘written’ requirement under s. 1031(1) of the
Code of Civil Procedure (ZPO) states that: (1) if the statutory written form is to be
substituted by electronic form, the author of the statement must add his name to the
statement and append a qualified electronic signature; (2) in the case of a contract, the

4 . p a r a g r a p h 3: f o r ms o f agr eeme nt in w riting 131
email sign the communication by electronic signatures, lest the clause be

declared null and void.53
As will be observed in the following sections, the requirement of an
agreement in writing must be understood broadly and should not be
subject to formalistic interpretations. The fundamental criterion is a clear
record of the parties’ intention to arbitrate. The parties must ensure that
the form of their agreement to arbitrate be consistent with the general law
applicable to the instrument of their choice (e.g. contract, trust or other).54
4. Paragraph 3: Forms of Agreement in Writing

4.1 Oral Agreements
Oral agreements are not considered valid under the first option of article 7
of the Model Law. The difficulty with oral agreements to arbitrate is that
they provide a limited degree of legal certainty, particularly in the absence
of any verifiable record of the agreement. In such cases, how does one
prove or disprove the existence of an agreement to arbitrate? In the case of
written agreements, the signature of the parties suffices (even though a
signature is not generally required under the Model Law), whereas for oral
agreements the existence of the agreement would need to be affirmed by
reference to witnesses and other circumstantial evidence, such as an
exchange of emails or other documents. Many legal systems that strictly
adhere to form are not willing to go that far and adopt a restrictive
understanding of what constitutes an agreement in writing.55 Overall, it
should be explained that one of the fundamental principles of contract law
is that of informality, which requires that no particular form is required for
a binding contract to be established. So, article 7 takes a cautious approach
to the principle of informality in the context of oral or other agreements
that require further proof in order to demonstrate their existence.56
parties must each electronically sign a document identical in wording in the manner
prescribed in subsection 1.
53
This is in accordance with Act No. 227/2000 on Electronic Signatures.
54
The Swiss Federal Supreme Court, although generally inclined towards substance rather
than form, has emphasised that arbitration agreements must be interpreted in accordance
with general principles of contract interpretation: Case 4A_438/2013, judgment (27
February 2014).
55
Article 9(2) of the 2012 Saudi Arbitration Law expressly states that anything other than a
written agreement to arbitrate is void.
56
See e.g. art. 1361 of the revised (2016) French CC, which provides that (contrary to art.
1359 CC) ‘evidence in writing may be supplemented by an admission in court, by a

132 article 7: d efinition and form
Those national legal systems that accept oral arbitration agreements do

so in three alternative ways. The first, exemplified by Danish and French
law, implicitly allows oral arbitration agreements as long as the parties’
intentions can be established with sufficient certainty.57 The second
approach expressly allows oral agreements, provided there is a written
record of it somewhere, as for example in an exchange of emails or by
reference to a subsequent agreement between the parties.58 The third
concerns oral agreements confirmed by conduct and usage. Article 6(3)
(2) of the Croatian Arbitration Law, for example, states that where a party
‘communicates to the other a written communication referring to an
arbitration agreement concluded earlier orally and the other party fails to
object timely, such failure may be considered an acceptance of the offer
according to acceptable usages in relevant transactions’. The oral char-
acter of the agreement, where permitted, need not only concern the
existence of the agreement itself, but also other related conditions of a
written agreement, such as the parties’ agreement on time limits, the
person of the arbitrators and others.59 Article 7(3) of the Model Law
draws from the experience of the second approach by allowing for
agreements to be concluded orally, by conduct or by other means, but
recorded in any form.
4.2 Incorporation by Conduct or Common Usage

Under article 7(3) of the Model Law, an arbitration agreement is in
writing if it has been concluded orally, by conduct or by other means,
but its content is recorded in any form. The article does not elaborate on
the notion of arbitration agreements concluded ‘by conduct’. By way of
illustration, it is standard practice in the harbour towing industry for the
decisive oath, or by a beginning of proof by writing which is supported by other means of

proof’.
57
O. Spiermann, ‘National Report for Denmark (2009)’ in J. Paulsson (ed.), International
Handbook on Commercial Arbitration (Kluwer, 1984), Supp. No. 57, 2009, 7; according to
art. 1507 of the French NCCP, the agreement is not subject to any formal requirement, as
long as the intention to arbitrate is clearly expressed.
58
1999 Greek Law on International Commercial Arbitration, art. 7(4); equally, 2010 Irish
Arbitration Act, s. 2(1) (by implication); 2003 Spanish Arbitration Act, art. 9 (by
implication); Swiss Private International Law Act, art. 178(1) (by implication);
Indowind Energy Ltd v. Wescare (I) Ltd and Another, Indian Supreme Court judgment
(27 April 2010); William Co. v. Chu Kong Agency Co. Ltd and Guangzhou Ocean Shipping
Co., Hong Kong Court of First Instance judgment (17 February 1993), [1993] HKCFI 215.
59
K. Hobér, International Commercial Arbitration in Sweden (Oxford University Press,
2011), p. 95.

4 . p a r a g r a p h 3: f o r m s o f a g r e e m e nt in w r i t i n g 133
towing boat to haul its clients without drawing up a contract as this

would be wholly impractical, particularly since towing operates on a
rolling basis and it is not possible to foresee the identity of future clients.
It may be implicit in such conduct/transaction (assuming it is recognised
under the laws of the coastal State) that any dispute arising between the
parties will be submitted to arbitration as a result of common usage.60 In
this case, it is the conduct (towing) that implicitly gives rise to the
arbitration agreement. In other words, one may claim that the existence
of an arbitration agreement in the parties’ conduct is the result of
common usage inherent in said conduct.61
French courts have admitted an alternative form of conduct-based
estoppel. They generally assume a ‘common intent to arbitrate’ where
one of the parties has by its silence accepted arbitration, particularly
where there is a history of consistent and repeated practice by the parties
of arbitration in successive contracts, even if the disputed contract in
question contains no arbitration clause.62 Such conduct-based estoppel
has been confirmed by the courts of Hong Kong,63 but rejected by
Canadian courts on the basis that tacit assent cannot be arbitrarily
presumed without proof of positive action.64
In conclusion, according to article 7(3) of the Model Law, such ways of
concluding an arbitration agreement have limited relevance: they do not,
in themselves, suffice to bind the parties, but they can be interpreted as a
valid agreement if their content has been recorded and is thus verifiable.
As for the possible means of recording, paragraph 4 mandates an
60
See Sphere Drake Insurance Plc v. Marine Towing Inc., 16 F.3d 666 (5th Cir. 1994), which
considered a similar, although not identical, situation involving an arbitration clause in a
larger contract not signed by the contesting party. As this was not a stand-alone arbitra-
tion agreement (which would have required mutual recording of consent), the contesting
party’s signature was not required. Conversely, in Kahn Lucas Lancaster Inc. v. Lark Intl
Ltd, 186 F.3d 210 (2nd Cir. 1999), it was held that the parties were required to append
signatures to the arbitration clause itself (as opposed to just the compromis).
61
Section 1031(2) of the German ZPO provides that an agreement in writing is deemed to
exist if, in accordance with ‘common usage’, the arbitration clause is considered to be part
of that document.
62
Van Dijk case, Paris Court of Appeals judgment (18 March 1983).
63
Hissan Trading Co. Ltd v. Orkin Shipping Corp., Hong Kong Court of First Instance
judgment (8 September 1992), [1992] HKCFI 286.
64
Achilles (USA) v. Plastics Dura Plastics (1977) ltée/Ltd [2006] QCCA 1523; but see a
contrary approach in Ferguson Bros of St Thomas v. Manyan Inc., Ontario Superior Court
of Justice judgment (27 May 1999), [1999] OJ 1887, where it was held that a cheque
referring to an invoice amounted to a record of the issuer’s consent to an arbitration
clause inserted in a contractual offer to which the issuer had heretofore not replied in
writing.

134 ar t i cl e 7 : def i n i t i o n and form
extensive interpretation of the written form requirement, so as to ensure

that the Model Law takes into account the contemporary evolution of
communications.
5. Paragraph 4: Electronic Communications

The purpose of paragraph 4, in conjunction with the paragraphs
before it, is to emphasise that an agreement in writing exists where it
is recorded in any retrievable form of communication – electronic,
optical or other. This conforms to reality, given that the bulk of
global trade is recorded in one form or another through non-paper
means, whether through fax, telex, email and the many available
software applications. As a result, the majority of national legal
systems now accept that an arbitration agreement recorded in any
electronic means of communication is a valid agreement to
arbitrate.65
As noted above, the justification for the extensive definition of an
arbitration agreement under article 7 is to bring the Model Law in
line with the 1996 UNCITRAL Model Law on Electronic Commerce
and the 2005 United Nations Convention on the Use of Electronic
Communications in International Contracts.66 It is now accepted by
the majority of legal systems that an agreement recorded by
electronic means of communication is valid.67 Accordingly, national
legislation based on the Model Law tends to recognise electronic
signatures. However, it remains crucial for the parties to consider
the precise validity requirements set forth by the law applicable to
the agreement.
Interestingly enough, when defining the notion of ‘data message’,
article 3(4) enumerates several means of long-distance communication
such as email or telex, but specifies that such list is not exhaustive.
Hence, the Model Law is open to future technological evolutions: new
means of electronic communications, although not comprised in the
enumeration of article 3(4), may be considered as a valid form of ‘data
message’.
65
Chloe Z. Fishing (n. 51) Great Offshore (n. 51); Oonc Lines Ltd v. Sino-American Trade
Advancement Co. Ltd, Hong Kong Court of First Instance judgment (2 February 1994),
[1994] HKCFI 193.
66
UN GAOR 51st session, Supp. No. 17, UN Doc. A/51/17 (1996), annex I; UNGA Res. 60/
21 (23 November 2005).
67
Chloe Z. Fishing (n. 51); Great Offshore (n. 51); Oonc Lines (n. 65).

7. par agr aph 6 : incor pora tion by reference 135
6. Paragraph 5: Conduct-Based Estoppel

Estoppel is a procedural rule whereby a person is precluded from denying or
relying on a fact, either because it has been proved elsewhere or because the
person has accepted or denied the fact by his or her very conduct (e.g. through
a promise or consistent practice). A species of conduct-based estoppel recog-
nised by the Model Law is the parties’ participation in arbitral proceedings
without having complained at the first possible instance (in limine litis) that
no written agreement exists. Such conduct-based estoppel makes a dispute
over a written agreement redundant where the party which could have
disputed its existence has freely participated in the arbitration without raising
a defence.68 Article 7(5) of the Model Law expressly states that ‘an arbitration
agreement is in writing if it is contained in 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’.69 In other words, conduct-based estoppel is
treated as a waiver of litigation in favour of arbitration.70 Alternatively, parties
who have not entered into an arbitration agreement but wish to record their
consent to arbitration after the proceedings have already started may record
their agreement in the minutes of the tribunal at its first hearing.71
In any case, it should be noted that such form of estoppel only covers
the arbitral proceedings where the party has failed to raise the defence;
should, for any reason, the arbitration be terminated for procedural
reasons without a decision on the merits, each of the parties will again
have the possibility to start litigation before the competent State court, as
the estoppel only produces its effects within the boundaries of the arbitral
proceedings where it has occurred.
7. Paragraph 6: Incorporation by Reference

Article 7(6) of the Model Law stipulates that ‘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’. It is generally accepted that the instrument
68
Slaney v. Intl Amateur Athletics Association, 244 F.3d 580, 591 (7th Cir. 2001);
Luxembourg District Court judgment (3 January 1996), Bull. Laurent 1996, IV, 282,
285, 289; Golshani v. Gouvernement de la République Islamique d’Iran, French Court of
Cassation judgment (6 July 2005), No. 01–15.912.
69
See also 1994 Hungarian Arbitration Act, art. 5(4).
70
Luxembourg District Court Judgment No. 1115/2007 (24 April 2007); Case No. 3–2-1–
38-02, Estonian Supreme Court judgment (28 March 2002).
71
2002 Slovak Arbitration Act, art. 2(2).

incorporated by reference need not be an agreement previously con-

cluded by the parties: it may just as well be one of the parties’ standard
terms or an instrument to which none of the parties has any other
relationship.72 By way of illustration, A (a company) and B (a bank)
enter into an agreement X, which does not contain an arbitration clause,
but specifically refers to the bank’s standard terms of business (Y) as
being binding upon the parties. Y obliges the parties to submit future
disputes arising from contract X to arbitration, despite the fact that A has
not specifically signed Y. In this context, the validity of the arbitration
clause is particularly controversial, as parties may be deprived of access to
State courts by virtue of the contents of a document (Y in the example)
which they have not directly signed. The Model Law resolves this pro-
blem by stating that incorporation by reference is valid, but the reference
must make it clear that the document containing the arbitration agree-
ment forms part of the contract into which the parties have entered.
In Ireland No. 3, Kastrup Trae-Aluvinduet A/S (Denmark) v. Aluwood
Concepts Ltd, the Irish High Court held that an arbitration agreement
had been validly incorporated into the contract between the parties by
reference to standard conditions and that it was irrelevant that the other
party did not have a copy of the conditions to which the contract
referred.73 Such an approach poses a significant burden on contracting
parties, especially in situations where the bargaining power of the sub-
jects entering into the contract is unbalanced: whenever such contract
includes a reference to a different document, each of the parties should
make sure it is aware of its contents, since the lack of knowledge cannot
be used as a defence against the binding effects of the arbitration clause. A
more cautious approach is adopted by French Court of Cassation,
according to which incorporation by reference is valid, as long as the
party was aware of the contents of the document containing the arbitra-
tion agreement at the time when the contract was concluded.74
The bill of lading, which may include an arbitration clause, is a
significant paradigm for understanding incorporation by reference.
72
See Thyssen Canada Ltd v. Mariana (The), Canadian Court of Appeal judgment (22
March 2000), [2000] 3 FC 398; Fai Tak Engineering Co. Ltd v. Sui Chong Construction &
Engineering Co. Ltd, Hong Kong District Court judgment (22 June 2009), [2009]
HKDC 141.
73
Ireland No. 3, Kastrup Trae-Aluvinduet A/S (Denmark) v. Aluwood Concepts Ltd (Ireland)
[2009] 169 MCA, High Court judgment (13 November 2009), citing Credit Suisse
Financial Products v. Société Général d’Enterprises [1997] ILPr. 165 (CA).
74
Societé Bomar Oil NV v. Entreprise tunisienne d’activités pétrolières (ETAP), 9 November
1993; Dreistern Werk v. Crouzier, 26 June 1990.

7 . par agr aph 6 : inco rpora tion by reference 137
According to article III(3) of the Hague-Visby Rules, the bill is signed by

either the carrier or the master of the vessel or the agent of the carrier. So,
the arbitration clause binds the holder of the bill of lading, even though
the latter does not bear his or her signature. Under article 7(6) of the
Greek Law on International Commercial Arbitration, a bill of lading
expressly referring to an arbitration clause contained in a carriage of
goods contract is binding upon the parties to the bill of lading.75
However, this does not apply to all contracts, particularly those with a
loose connection even if entered by the same parties. Where there are
multiple agreements between the same parties, incorporation by refer-
ence should be viewed as applicable only where the agreements in ques-
tion form part of a single economic transaction.76
There is some divergence of opinion as to whether the parties must
specifically refer to and expressly accept the arbitration clause in the
incorporated instrument, or instead whether it is sufficient merely to
accept the instrument as such, in which case it is assumed that the parties’
intention was to accept all the terms contained in the instrument.
Although this seems the sensible conclusion and the one supported by
the travaux préparatoires of the Model Law77 and several national
courts,78 there are few judgments which take the view that the parties
must expressly refer to the arbitration clause in the incorporated
instrument.79
75
Equally, 2001 Croatian Arbitration Law, art. 6(3)(2); 2008 Slovenian Arbitration Law, art.
10(5).
76
Accordingly, the Coimbra Court of Appeal ordered a dispute over three related contracts
to be heard by State courts when only one of the contracts included an arbitration
agreement: S, LDA and MJ v. A, SA and R SA, Case No. 477/11.8TBACN.C1, Coimbra
Court of Appeal judgment (19 December 2012).
77
See UN Doc. A/CN.9/264 (n. 2).
78
Habas Sinai VE Tibbi Gazlar Isthisal Endustri AS v. Sometal SAL [2010] EWHC 29
(Comm.) (18 January 2010); Sea Trade Maritime Corp. v. Hellenic Mutual War Risks
Association (Bermuda) Ltd [2006] EWHC 2530 (Comm.) (18 October 2006); Pueblo Film
Distribution Hungary KFT (Hungary) v. Laurenfilm SA, Spanish Supreme Court judg-
ment (31 May 2005), rec. 743/2003; Lief Investments Pty Ltd v. Conagra Intl Fertiliser Co.
[1998] NSWSC 481; Skandia Intl Insurance Co. and Mercantile & General Reinsurance
Co. and Others, Bermuda Supreme Court judgment (21 January 1994), [1994] Bda LR 30.
79
See Italian Court of Cassation, Dreyfus Commodities Italia v. Cereal Mangimi, Decision
No. 11529 of 19 May 2009; Concordia Agritrading Pte Ltd v. Cornelder Hoogewerff,
Singapore High Court judgment (13 October 1999), [1999] 3 SLR 618 (although it is
not unlikely that this decision may be reversed if a test case were to come along). It must
be noted that the Italian Court of Cassation adopted a different approach in Del Medico v.
Iberprotein, Decision No. 3231 of 16 June 2011, admitting the validity of a generic
reference to terms and conditions including an arbitration clause.

It must be noted that not all Model Law-based statutes accept incor-
poration by reference to the same extent: some jurisdictions adopt a more
protective approach. Under Bulgarian law, a merchant is deemed to have
tacitly accepted an offer by another party with which the merchant is in a
long-term relationship if the offer is not rejected immediately;80 such a
tacit acceptance, though, is not deemed to encompass the arbitration
clause included in the offer, as the written form is not deemed to have
been complied with.81 In most jurisdictions, however, there is a pre-
sumption that the mere reference to the general conditions also encom-
passes the arbitration clause therein, even if not explicitly stipulated by
the parties.82
8. Commentary on Option Two

8.1 Similarities between Option One and Option Two
Option two is identical to the first sentence of paragraph 1 of option one.
The only difference between the two options, thus, is that the second one
completely omits any provision relating to the form of the agreement.
Both of them, however, analogously define the arbitration agreement as
an agreement by the parties to submit to arbitration all or certain disputes
which have already arisen or which may arise between them. Option two
is also identical to option one in defining the possible scope of application
of the arbitration agreement: it can refer to contractual or non-contrac-
tual legal relationships, as long as such relationships are ‘defined’. Hence,
an agreement can never refer to all possible disputes between the parties,
without any further specification: it is necessary for the parties to enun-
ciate the substantive legal relationship in respect of which access to State
court is waived in favour of private adjudication.
8.2 Differences between Option One and Option Two

As stated above, option two does not regulate in any way the form of the
arbitration agreement. While option one distinguishes between an
80
Law on Commerce, art. 292(1).
81
A. Alexiev, ‘National Report for Bulgaria (2010)’ in J. Paulsson (ed.), International
Handbook on Commercial Arbitration (Kluwer, 1984), Supp. No. 61, September 2010,
8; equally, Ruling of the Supreme Court of Slovakia, file No. 2, 245/2010 (30 November
2011), although this ruling has been severely criticised by Slovak commentators.
82
Athens Court of Appeal, judgment 7195/2007.

8 . c o m m e n t a r y on op t i o n tw o 139
arbitration clause in a contract and a separate arbitration agreement as

two alternative types of arbitration agreement, option two contains no
such distinction. This, however, should not be interpreted as entailing
that the two aforementioned types of agreement are not available under
option two; on the contrary, parties are left absolutely free to enter into a
written arbitration clause, a separate written agreement or any other kind
of arbitration agreement concluded in oral form. The chosen form will
have no consequence on the validity of the agreement: the parties, thus,
may choose to conclude their agreement in writing for evidentiary
purposes, but an oral agreement must be considered as equally binding
and its existence can be proven with any available evidentiary means,
such as witnesses. Under option two, conduct-based estoppel and incor-
poration by reference should also be considered as valid methods to
conclude an arbitration agreement: although this version of article 7,
unlike option one, does not mention such mechanisms, the broad word-
ing of the provision encompasses all forms of arbitration agreement
contemplated in the first option, as well as oral agreements not recorded
in any form and thus falling outside of the scope of application of the first
option.
Option two aims at removing any formalism from article 7, thus
meeting the needs of modern international commerce and enshrining
the central role played by arbitration in the resolution of international
commercial disputes. However, the complete removal of the written form
requirement can potentially give rise to problems as far as the enforce-
ment of the agreement and the international enforcement of arbitral
awards are concerned. As described above, article II of the New York
Convention includes a written form requirement: as a result, it is theore-
tically possible that the courts of a State whose national statute does not
consider the written form of the agreement superfluous, when seised of
an action covered by an oral arbitration agreement, will retain jurisdic-
tion and refuse to refer the parties to arbitration under article II(3) of the
New York Convention. Furthermore, at the recognition and enforcement
stage, an award making reference to an oral arbitration agreement could
be rejected under article V(1)(a) of the New York Convention.
This, of course, does not mean that an oral arbitration agreement
would be radically unable to produce effects: first of all, it would be
enforced by any State court adhering to the anti-formalistic approach
enshrined in option two of article 7 of the Model Law. Second, the
ensuing award could be recognised and enforced on the basis of a
different international instrument not containing any written form

requirement, or under the applicable national arbitration statute simi-

larly dispensing with the written form. Third, it has been argued83 that
the more-favourable-right provision enshrined in article VII(1) of the
New York Convention should be interpreted extensively, as comprising
also the enforcement of arbitration agreements and not only the recogni-
tion and enforcement of arbitral awards.
In conclusion, the second option proposed by the Model Law for
article 7 expresses a modern, progressive approach to the problem of
the validity of an arbitration agreement. However, since this approach is
not shared by all national systems worldwide, an oral arbitration agree-
ment, albeit perfectly valid in Model Law jurisdictions adhering to option
two, could give rise to practical problems which would not arise the in
presence of a written agreement.
83
Van den Berg (n. 3).

Article 8
Arbitration Agreement and Substantive Claim

before Court
ilias bantekas
(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 agree-
ment 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 8 was perceived as expressing a universal general principle that
was fundamental to international arbitration.1 A suggestion was put
forward whereby the courts would be vested with authority to refuse
recourse to arbitration if the award was unlikely to be enforced in the
seat. However, it was felt that this obfuscated the very essence of arbitra-
tion and in any event there were no assurances that the award would
ultimately be challenged, let alone set aside, or that it would not be
recognised or enforced in other jurisdictions.2 While there was no con-
tention that a party could not be allowed to invoke the arbitration
1
There was also strong agreement in favour of inserting a provision in line with art. VI(1) of
the 1961 European Convention in International Commercial Arbitration, the effect of
which would be to limit the period of time during which a party could object to the
jurisdiction of the court on the ground that an arbitration agreement existed. Report of the
Working Group on International Contract Practices on the Work of Its Fourth Session,
UN Doc. A/CN.9/232 (10 November 1982), para. 50.
2
Ibid., para. 51.
141

142 a rt i cl e 8 : su b s ta n tiv e c l aim b e f o re c o u rt
agreement following his or her submission of the first statement on

substance, it was felt that the court should not be empowered ex officio
(i.e. without request) to refer the parties to arbitration.3 It was pointed
out that submission ‘of the first statement on substance’ corresponds to a
specific point in time that ‘should be taken literally and applied uniformly
in all legal systems, including those which normally regard such a request
as a procedural plea to be raised at an earlier stage than any pleadings on
substance’.4 Moreover, it was recognised that failure to invoke the arbi-
tration agreement should have wider repercussions, but a proposal to
formulate these in the Model Law was rejected because ‘it would be
impossible to devise a simple rule which could satisfactorily deal with
all the aspects of this complex issue’.5 Sweden made the point that under
its law, when an anti-arbitration claim fails, the courts merely dismiss the
case and do not refer the parties to arbitration.6 This proposal did not
survive and article 8(1) specifically articulates the obligation of the court
to ‘refer the parties to arbitration’. Italy observed that paragraph 1
requires in practice for the party to be present at the court hearing. Its
representative went on to emphasise that in case of non-appearance ‘the
court may declare on its own motion that it is not competent’.7 The
current range of claims and remedies available to the party seeking
referral – especially if successful – based on the practice of courts and
domestic laws is impressive and is discussed in more detail below.
The relationship between the tribunal and the courts where a party had
raised a jurisdictional challenge, although originally discussed within the
wider context of arbitral jurisdiction, was deemed to deserve particular
attention and hence be incorporated in a discreet provision. It was agreed
that the tribunal should be empowered to continue its proceedings while
the courts reviewed the merits of a challenge, but that in no case did this
imply that the courts did not possess authority to order a stay or suspen-
sion of arbitral proceedings.8
3
Seventh Session, UN Doc. A/CN.9/246 (6 March 1984), para. 22.
4
Analytical Commentary on Draft Text of a Model Law on International Commercial
Arbitration, UN Doc. A/CN.9/264 (25 March 1985), 24.
5
UN Doc. A/CN.9/246 (n. 3), para. 22.
6
on the Draft Text of a Model Law on International Commercial Arbitration, UN Doc. A/
CN.9/263 (19 March 1985), 21.
7
Ibid.
8
Report of the Working Group on International Contract Practices on the Work of Its Sixth
Session, UN Doc. A/CN.9/245 (22 September 1983), para. 67.

2 . p ar agr ap h 1 143
Paragraph 2 of draft article 8 was different from its current version. It

stipulated that: ‘Where, in such case, arbitral proceedings have already
commenced the arbitral tribunal may continue the proceedings while the
issue [of its jurisdiction] is pending with the court [unless the court
orders a stay of the arbitral proceedings].’ The brackets were deleted
despite some support for their retention.9 At a later stage, Egypt made a
plea for retaining the phrase in the last bracket, but this did not survive.10
Although it is not clear why, there exists an absence of uniformity on this
issue and it was sensible for the drafters to avoid significant conflicts with
the court-related laws of aspiring Model Law States. When the current
version was adopted, the USSR representative suggested replacing para-
graph 2 with two new rules, as follows:
One should provide that bringing an action by a party to a court does not
prevent the other party from commencing arbitral proceedings while the
issue of the arbitral tribunal’s jurisdiction is pending with the court. The
other rule should provide that if the arbitral proceedings have already
commenced, the court must postpone the settlement of the arbitral tribunal’s
jurisdiction until the arbitral award is made … by adopting the two provi-
sions the last sentence of Article 16(3) might be deleted as unnecessary.11
The Yugoslav representative noted that where the court finds that it does
not enjoy jurisdiction, it is not customary for the courts to instruct the
parties to approach an arbitral institution in order to resolve their dis-
pute; this was something for the parties to decide.12 This statement
presupposes the existence of an arbitration clause without reference to
an arbitral institution or ad hoc arbitration. In such cases, the clause may
be deemed inoperable where the parties fail to reach agreement on the
institution.
Article 8 of the Model Law was not the subject of any changes or
amendments in the course of the 2006 revision.
2. Paragraph 1
Paragraph 1 is a ‘crowded’ provision as it gives rise to more issues than
those expressly mentioned therein. First, it concerns the scope of ‘actions’
9
UN Doc. A/CN.9/246 (n. 3), paras 20–21.
10
UN Doc. A/CN.9/263/Add.3 (n. 6), para. 26.
11
Ibid., 21.
12
CN.9/263/Add.1 (15 April 1985), 8.

144 ar tic l e 8 : subs ta n tive c l aim b efore c ourt
brought before the courts. Next, it questions whether referrals to arbitra-

tion may be undertaken on the basis of a request by a party or (also) by
the court acting ex officio (on its own motion). Paragraph 1 then sets out a
time limit by which the respondent must raise its claim for arbitration
with the court. It next mentions that in its review of the application for
referral, it may assess whether the arbitration agreement on which the
respondent is relying is null, void, inoperable or incapable of being
performed, as well as whether it exists in the first place. Paragraph 1
does not, however, refer to other crucial issues. These include what is the
appropriate standard of review in respect of referral applications; and,
second, whether a court not seised with a case (and which case is the
subject of an arbitration agreement) may be approached by a party to that
agreement with a view to obtaining an anti-suit injunction to be served
against the seised (foreign) court. Finally, it does not discuss whether the
respondent may seek indemnity costs if his referral request is successful.
2.1 The Scope of an ‘Action’

The rule enunciated in article 8 of the Model Law concerns ‘actions’ brought
to the courts, without specifying whether this term encompasses actions not
dealing with the substance or the merits of the parties’ dispute. The vast
majority of cases demonstrate that the term ‘action’ refers to claims, requests
or suits on the substance or merits of the dispute13 and not to actions
unrelated to the merits, such as applications for emergency interim mea-
sures prior to the constitution of the tribunal.14 Pre-actions, such as those
that seek to obtain documentary evidence, are generally viewed as not falling
within the scope of article 815 and the same is true in respect of applications
for insolvency16 – unless of course insolvency-related matters are the subject
of an arbitration agreement and provided that insolvency is arbitrable under
the parties’ chosen law. The merits of the dispute are objective and their
characterisation as such is unaffected by the particular procedure pursued
by the parties. Thus, the German Federal Court of Justice has held that
courts seised by documents-only proceedings must still refer the parties to
arbitration if the action concerns the merits of the dispute.17
13
Dens Tech-Dens, KG v. Netdent-Technologies Inc. [2008] QCCA 1245; El Nino Ventures
Inc. v. GCP Group Ltd [2010] BCSC 1859.
14
Model Law, art. 9.
15
Timoney Technology Ltd and Another v. ADI Ltd [2007] VSC 402.
16
Re. Southern Materials Holding (HK) Co. Ltd [2008] HKCFI 98.
17
German Bundesgerichtshof, 12 January 2006, III ZR 214/05.

2 . p ar agr ap h 1 145
It is contested whether the parties to an arbitration agreement may

approach the courts in order to clarify preliminary matters rather than
wait for the tribunal to decide such matters once constituted. Article 8(1)
clearly makes judicial determination available to the parties in addition to
the arbitral tribunal. Besides the obvious delays to subsequent arbitral
proceedings in situations where a court is seised of a jurisdictional issue,
there is also the risk that certain preliminary questions may well pertain
to the substance of the dispute.18 In a Danish case, the absence of specific
rules or guidance in respect of evidentiary matters led one of the parties
to petition the courts for a preliminary ruling prior to the commence-
ment of arbitral proceedings. Although such a petition seemingly violates
the authority of the arbitration agreement, the Danish Supreme Court
ultimately held that in the absence of any guidance in the pertinent rules
of the designated institution (the Danish Institute of Arbitration) or
indeed in the country’s Arbitration Act, the request to the courts was
valid and did not constitute a violation of the arbitration clause.19
2.2 Referral by Request of a Party

The travaux, as already explained, clearly emphasise that the courts
should not be empowered ex officio (i.e. without request) to refer the
parties to arbitration.20 This outcome is dictated by party autonomy and
one should not dismiss the likelihood that despite the existence of an
arbitration agreement, both parties are subsequently happy with the
judicial process.21 It would be absurd in such cases for the court to
refer the parties to arbitration (‘shall if a party so requests’). However,
once the court is satisfied that an arbitration agreement on the same
subject matter exists – and at least one of the parties (but typically the
respondent) requests that the arbitration agreement be honoured – the
courts are under an obligation to refer the dispute to arbitration. This
18
See below for a discussion of this very issue by the House of Lords in Channel Tunnel
Group v. Balfour Beatty Ltd [1993] AC 334. See chapter on Article 17A, below.
19
Vestas Wind Systems A/S v. ABB A/S, Danish Supreme Court judgment (13 January
2012).
20
UN Doc. A/CN.9/246 (n. 3), para. 22.
21
CLOUT Case 1071, Hrvatsko Mirovinsko Osiguranje d.o.o. v. EDIS d.o.o., High
Commercial Court of Croatia judgment (17 April 2007); D. Andrés v. Díez Carrillo SL,
Audiencia Provincial de Palma de Mallorca judgment (5 October 2006), rec. apel. 399/
2006; Kolinker Industrial Equipment Ltd v. Longhill Industries Ltd and Another [2004]
HKDC 65; CLOUT Case 508, United Laboratories, Inc. v. Abraham [2002] CanLII 17847
(ONSC).

146 a r tic l e 8 : su bs ta nt i v e c l a i m b e f o r e c o u r t
mandatory nature of the referral is not affected by possible claims that

recourse to arbitration would be unfair or in any way prejudicial to the
parties’ interests.22 The law of the seat is free to designate the procedure
for the referral. The court seised may itself execute the referral by an
order, or as is the case with article 5(1) of the 2008 Mauritius
International Arbitration Act, it may be obliged to transfer the request
to a higher court, in this case the Mauritius Supreme Court.
Traditionally, four types of remedies are available to parties seeking
referral of a dispute to arbitration from the court seised. First, they may
request a stay or dismissal of the judicial proceedings. Second, they may
request another court to issue an anti-suit injunction. Third, they may
seek indemnity to recover costs or other harm caused by litigation.
Finally, they may request that the judgment issued by the court in
contravention of the parties’ arbitration clause not be recognised or
enforced.23
It is generally agreed that the court seised with a referral request
should not possess the power to disregard the arbitration agreement in
situations where a third party to the arbitration agreement is linked
with the parties through an agreement that lacks an arbitral clause.
Although most legal systems would ordinarily order a joinder of such
cases in order to avoid cost and conflicting judgments, this is not the
case with arbitration because it is assumed that the parties intended to
exclude the third party from the ambit of the first agreement; hence, the
arbitral agreement should not be frustrated by the courts in favour of
litigation.24
22
GreCon Dimter Inc. v. J. R. Normand Inc. [2005] SCC 46 (CanLII); Rondabosh Intl Ltd v.
China Ping an Insurance (Hong Kong) Co. Ltd [2009] HKCFI 1198; Ocean Park Corp. v.
Proud Sky Co. Ltd [2007] HKCFI 1221; Pathak v. Tourism Transport Ltd [2002] 3
NZLR 681.
23
Such a request will fail if it does not satisfy the timeliness requirement in art. 8(1) of the
Model Law, which is discussed more fully in a subsequent section.
24
See GreCon Dimter (n. 22), para. 37, where it was emphasised by the Canadian Supreme
Court that: ‘even though the purpose of [Art. 3139 CCQ] was to ensure the efficient use of
judicial resources and efficiency in the administration of justice, its reach cannot be
extended to every action in warranty without regard for the intention expressed by the
parties. Indeed, respecting the parties’ intention is a core principle of the rules of private
international law, and it in turn protects an imperative of that field of law’; equally,
WesTrac Pty Ltd v. Eastcoast OTR Tyres Pty Ltd [2008] NSWSC 894, paras 40–41, which
concerned a request for joinder of two distinct arbitral processes because they arose under
the same agreement. The Supreme Court of New South Wales was not generally against
such a proposition, but dispelled it under the circumstances because the agreements
differed in their choice of procedures and in the nature of their claims.

Equally, although perhaps suggested otherwise in UNCITRAL’s ‘2012

Digest of Case Law’,25 there is no compelling reason, and certainly no
corroboration from the text or the travaux of the Model Law, that the
courts possess authority to attach conditions in their referral orders. Such
an outcome offends party autonomy, attacks the authority of the tribunal
and is not encompassed within the range of interference available to the
courts under the Model Law.26
2.3 Referrals in respect of Actions Not Seised by the Forum Court

Article 8(1) is concerned with the referral power of the court before
which an action has been brought. This means that if an action, which
is also the subject matter of an arbitration agreement, is brought before
the courts of country X, article 8 would not cover anti-suit applications
and subsequent arbitral referrals by the courts of country Y. Although
such a matter is beyond the scope of this chapter, a brief explanation is
warranted. Anti-suit injunctions issued by the courts of the seat against
civil actions abroad possess a qualitative dimension that is different from
injunctions addressed to other domestic courts. In Angelic Grace, Millett
LJ emphasised that where ‘an injunction is sought to restrain a party from
proceeding in a foreign court in breach of an arbitration agreement
governed by English law, the English court need feel no diffidence in
granting the injunction, provided that it is sought promptly and before
the foreign proceedings are too far advanced’.27 The rationale of this
judgment is predicated on four grounds, namely: (1) the other party
should not be burdened with the expense of appearing in those proceed-
ings; (2) injunctions are actions in personam and hence are not directed
against foreign courts; (3) injunctions must be made as early as possible;
and (4) the aim of the injunction was to enforce a contract subject to
English substantive law, not to attack the foreign court’s decision. By way
of example, a delay of six months from the time of a failed jurisdictional
challenge in Brazil was not prohibitive to the granting of an injunction,28
whereas an injunction application submitted seven years after proceed-
ings had been brought in Italy was duly rejected.29
25
26
See Model Law, arts 5, 6.
27
Angelic Grace, The [1995] 1 Lloyd’s Rep. 87; but see contra, Toepfer v. Société Cargill
[1998] 1 Lloyd’s Rep. 379.
28
DVA v. Voest [Jay Bola] [1997] 2 Lloyd’s Rep. 279.
29
Toepfer Intl v. Molino Boschi [1996] 1 Lloyd’s Rep. 510.

148 article 8 : substa n tive claim b efore c ourt
2.4 Null and Void Arbitration Agreements

The Model Law does not explain under what circumstances an arbitra-
tion agreement is null, void, inoperable or incapable of being enforced.
Therefore, given the absence of a uniform or customary definition, the
law applicable to the arbitration agreement dictates when an arbitration
agreement is considered defective.30 There are several reasons rendering
a contract null or void, namely: the absence of offer or consideration (or
its equivalent in civil law nations) which entails the absence of consent;31
the invalidity of the assignment or subrogation of the arbitration agree-
ment;32 the failure to satisfy a condition precedent to the arbitration
agreement, such as an obligation to resort to mediation, the prior entry
into force of another agreement or other;33 the termination, abandon-
ment, rescission, waiver, repudiation or other cessation of the arbitration
agreement;34 the lapse of a deadline specified by the parties or statute;35
the occurrence of an unlawful act which caused one of the parties to sign
the contract (misrepresentation, duress or fraud);36 the absence of
30
The reader should consult the commentary to art. 7 of the Model Law for an analysis of
the form and requirements for a valid arbitral agreement.
31
Mariana Maritime SA v. Stella Jones Inc. [2002] FCA 215 (CanLII); CLOUT Case 1011, H
& H Marine Engine Service Ltd v. Volvo Penta of the Americas Inc. [2009] BCSC 1389;
APC Logistics Pty Ltd v. C. J. Nutracon Pty Ltd [2007] FCA 136.
32
CLOUT Case 561, German Bundesgerichtshof, 3 May 2000, XII ZR 42/98; German
Bundesgerichtshof, 25 January 2007, VII ZR 105/06; CLOUT Case 1046, PS Here, LLC
v. Fortalis Anstalt [2009] QCCA 538; Inc. Owners of Sincere House v. Sincere Co. Ltd
[2005] HKLT 30.
33
Cecrop Co. v. Kinetic Sciences Inc. [2001] BCSC 532 (CanLII); Thorn Security (Hong Kong)
Ltd v. Cheung Kee Fung Cheung Construction Co. Ltd [2004] HKCA 217. In Emirates
Trading Agency LLC v. Prime Mineral Exports Pvt Ltd [2014] EWHC 2104 (Comm.), it was
held that an agreement to resolve a dispute through a continuous four-week period of
friendly discussion before turning to arbitration was a valid and enforceable condition
precedent to arbitration. In general, courts are disinclined to ignore a condition precedent
and will stay arbitral proceedings until the condition is first exhausted. See Kemiron Atlantic
Inc. v. Aguakem Intl Inc., 290 F.3d 1287 (11th Cir. 2002); but see contra Fulgensius
Mungereza v. Africa Central, Ugandan Supreme Court, [2004] UGSC 9. Exceptionally,
some courts have taken the view that the voluntary nature of mediation dictates that
compelling the parties to mediate defeats its very purpose if one of the parties is opposed
to this process. See Jen-Weld Inc. v. Superior Court, 146 Cal. App. 4th, 536 (2007), 543.
34
Bombardier Transportation v. SMC Pneumatics (UK) Ltd [2009] QCCA 861; Aggressive
Construction Co. Ltd v. Data-Form Engineering Ltd [2009] HKCU 1533.
35
Although many courts have shown reluctance to dismiss arbitral referral requests under
such circumstances. See CLOUT Case 9, Coopers & Lybrand Ltd (Trustee) for BC
Navigation SA (Bankrupt); Grandeur Electrical Co. Ltd v. Cheung Kee Fung Cheung
Construction Co. Ltd [2006] HKCA 305.
36
CLOUT Case 504, DG Jewelry Inc. and Others v. Cyberdiam Canada Ltd and Others.

2. pa rag rap h 1 149
capacity; the non-arbitrability of the subject matter;37 violation of public

policy38 (e.g. an agreement to pay a bribe); the absence of a mandatory
form, such as a signature;39 invalidity of non-severable clauses in the
arbitration agreement which entail the invalidity of the latter;40 the
unconscionable, unfair or abusive character of the arbitration clause;41
or even the occurrence of a significant mistake. Moreover, contracts may
be null and void by reason of an error in form, such as the absence of the
parties’ signature or the writing requirement as stipulated in article 7(2)
of the Model Law.42 There could, of course, be other reasons.
In one case, the Portuguese Supreme Court held that an arbitration
agreement was manifestly null and void where it was clear that the
appointment of one or more arbitrators would not guarantee indepen-
dence and impartiality and that such an agreement would impinge on the
parties’ right to a fair trial.43 The Chinese Supreme Court has held that an
arbitral clause specifying ‘arbitration, ICC Rules, Shanghai’ should not be
construed as expressing the parties’ consent to ICC institutional arbitra-
tion – as opposed to simply applying the ICC Rules. The clause was thus
held to be invalid,44 although this is a harsh outcome.
Whether the defect in the arbitration agreement gives rise to absolute
nullity (non-remediable) or qualified nullity (remediable) is a matter of
domestic law and party autonomy. The Model Law may be read as
exhorting States not to subject arbitration agreements to the same strict
technical rules applicable to ordinary contracts, but to salvage them
where possible, particularly where they do not offend public policy or
other peremptory domestic norms.
37
Dell Computer Corp. v. Union des Consommateurs, Supreme Court, [2007] SCC 34
(consumer contracts).
38
Desbois v. Industries AC Davie Inc. [1990] CanLII 3619 (QCCA).
39
Ariel Frenaer v. Enrique Martin Lutteroth Valle and Others (2014) XXXIX YB Com. Arb.
559; First, Second and Third German Investors v. Brokerage House, German
Bundesgerichtshof, 25 January 2011, XI ZR 351/08.
40
Québec Inc. v. Bergeron [2007] QCCA 1393. Of course, such non-severable clauses must
be intrinsic or fundamental to the agreement as a whole, because otherwise the principle
of separability should apply.
41
Dell Computer Corp. (n. 37); German Bundesgerichtshof, 13 January 2005, III ZR 265/03.
42
Achilles (USA) v. Plastics Dura Plastics (1977) ltée/Ltd [2006] QCCA 1523.
43
X v. Z, Case No. 170751/08.7YIPRT.L1.S1, Portuguese Supreme Court judgment (12 July
2011).
44
Reply of the Supreme People’s Court to the Request for Instructions on the Case
Concerning the Application of Züblin Intl GmbH and Wuxi Woco-Tongyong Rubber
Engineering Co., Ltd for Determining the Validity of the Arbitration Agreement, [2003]
MinSiTaZi No. 23.

150 a rticle 8 : substantiv e claim before c ourt
2.5 Inoperable and Ineffective Arbitration Agreements

An agreement is inoperable or ineffective where the information pro-
vided therein makes it impossible to understand what the parties had in
mind, or otherwise, even if comprehensible, is impossible to give effect to.
This is the case where the parties’ chosen arbitral institution does not
exist, there is no dispute to speak of, or the agreement to arbitrate
envisages both arbitration and litigation without granting clear primacy
to arbitration.45 These defects are the result of poor drafting, but the
arbitrator or the court seised cannot be left to guess such matters without
risking the infliction of harm to one of the parties. It is evident that in
most cases the defect is remediable if both parties are genuinely desirous
of the arbitration to go ahead. For example, the parties can designate a
new, mutually acceptable, arbitral institution and declare their unequi-
vocal preference for arbitration. In practice, one of the parties may by
that stage be negatively inclined and employ the defect to render the
arbitration agreement inoperable or ineffective. A few indicative exam-
ples are provided below.
The approach of German courts is to salvage the arbitration agreement
where possible and not be held back by technicalities if the parties’
intention was to submit future disputes to arbitration. The OLG Berlin
has held that in case the arbitration institution designated in an arbitra-
tion agreement does not exist, the arbitration agreement has to be inter-
preted using established principles of contract interpretation, such as the
history of the negotiations and the intent of the parties in order to
determine the competent arbitration institution. The designation of a
non-existing arbitration institution does not, per se, impact the validity
of the arbitration agreement.46 This is also the position of the Estonian
Appeals Court, which has held that the failure of the parties to indicate
their preferred arbitral institution does not serve to invalidate the arbi-
tration agreement.47 Indeed, the courts of Model Law States have shown a
45
This last circumstance, known as ‘bilateral option clause’, is not always viewed as
inoperable in arbitration-friendly jurisdictions and the courts seek to find a solution on
the basis of conflict of laws rules. See Nedspice Sourcing BV, Tybex Warehousing BV and
Others (‘Xin An Jiang’), Hague Appeals Court judgment (22 May 2012). There is no
uniform approach to this issue, however.
46
OLG Berlin, judgment (3 September 2012); equally held by the BGH (Federal Supreme
Court of Justice) in F v. G, judgment (14 July 2011), (2011) SchiedsVZ 284; equally,
CLOUT Case 57, Lucky-Goldstar Intl (HK) Ltd v. Ng Moo Kee Engineering Ltd [1993]
HKCFI 14.
47
Case No. 2–06-39773, Court of Appeals judgment (28 May 2007). Even so, commentators
stress another case by the same court where the same failure of the parties was found to

2. p ara grap h 1 151
willingness to salvage the arbitral clause and refer the parties to arbitra-
tion where the designated arbitral institution had been succeeded by
another entity.48
However, not all courts are prepared to take such a ‘salvaging’ approach.
The Danish Supreme Court held that an arbitration clause was void
because the designated arbitral institution did not exist, namely the
Copenhagen Maritime Arbitrators’ Association.49 Similarly, the Federal
Arbitrazh Court of the Moscow Circuit dismissed an arbitration clause
under the UNCITRAL Arbitration Rules that authorised the ICC as
appointing authority, deeming it to be inoperable.50 In both cases, the
intent of the parties was clear and in respect of the Moscow court ruling
there is evidently no appreciation of the concept of appointing authority,
which is consistent with Russian arbitration legislation, which itself is
premised on the Model Law. However, in other cases, even if the parties’
intent is clear, the designated institution might be the problem. Where the
designated institution is unwilling to administer the dispute, the courts of
Model Law nations have generally decided against referral.51 The Chinese
position stands out. Under articles 16 and 18 of the Chinese (PRC)
Arbitration Law, the identification of an arbitral institution is a necessary
condition for the validity of the arbitral agreement in China. Hence, if the
parties opted for ad hoc arbitration, the agreement is, in theory, null and
void. Nonetheless, the Chinese Supreme Court, in construing the country’s
obligations under the New York Convention, has directed lower courts not
to annul agreements or awards opting for ad hoc arbitration.52
Lack of flexibility is not unknown in domestic legal practice. Under
Luxembourg law, if the arbitrators have failed to meet the deadlines set by
the parties and one party does not agree to an extension, the arbitration
clause is dissolved as a result of the party’s bad faith. Equally, if the parties
have set a deadline for the delivery of an award and this is not delivered in
have invalidated their arbitration agreement. See Case No. 2–05-984, Appeals Court
judgment (6 March 2009).
48
CLOUT Case 509, Dalimpex Ltd v. Janicki [2003] CanLII 34234 (ONCA); Chung Siu
Hong Celment and Others v. Primequine Corp. Ltd and Others [1999] HKCFI 1472.
49
Dregg EHF v. Jensen Shipping A/S, Danish Supreme Court, judgment (12 June 2012).
50
Case No. KG-A40/9109/09, Moscow Federal Arbitrazh Court ruling (21 September
2009).
51
Ferguson Bros of St Thomas v. Manyan Inc. [1999] OJ 1887; CLOUT Case 557, Bayerisches
Oberstes Landesgericht, 4 Z SchH 13/99 (28 February 2000).
52
Reply Regarding the Validity of the Arbitration Agreement in the Bill of Lading of the Intl
Maritime Dispute Between Fujian Province Capital Goods Co. and Jinge Shipping Ltd Co.,
Supreme People’s Court, judgment (20 October 1995), FaHan [1995] No. 135.

152 a r t i c l e 8 : su b s t a n t i v e c l a i m be f o r e co u r t
time, the obligation of the parties to arbitrate expires.53 Luxembourg courts

insist that the issue of time limits and extensions are intrinsic to the
arbitration clause, which can only be altered by an alteration of the clause
itself. Hence, it is within the contractual remit of each party to refuse any
extension.54 In equal manner, article 1168(1) of the Polish CCP stipulates
that: ‘if a person appointed in an arbitration agreement as an arbitrator or
as a chairman of an arbitral tribunal refuses to perform this function, or if
the performance of this function by that person turns out to be impossible
for other reasons, the arbitration agreement loses its force unless the
parties have agreed otherwise’. Moreover, failing a different agreement
by the parties, an arbitration agreement loses its force if the arbitral
tribunal indicated in that agreement has not accepted the case for resolu-
tion, or if the resolution of the case turned out to be impossible for other
reasons.55 This is a harsh outcome because the impossibility of perfor-
mance by the arbitrators should not eliminate the parties’ expressed desire
to settle their dispute through arbitration, unless their intention was to
settle their disputes only with the specific arbitrators and no others.
In a case involving dual action clauses, the parties’ dispute resolution
clause made reference to the possibility of both litigation and arbitration
in case of future disputes. Two questions arise, namely, whether the
clause is valid, and if so, which of the two options prevails. The French
Court of Cassation held that the clause was valid and that, unless the
parties decide otherwise, litigation prevails. The reference in the clause to
a particular arbitral institution was viewed by the court as a mere
indication of the chosen institutional rules should the dispute be sub-
mitted to arbitration.56 Dual or multiple action clauses as a general rule
incline the courts to rule against arbitral referral, particularly where there
are several tiers of dispute resolution (e.g. expert determination) and it is
not clear from the agreement that arbitration would prevail over litiga-
tion.57 However, where the alternative tier is clear, the majority opinion
53
District Court judgment, No. 11376 (15 January 2009).
54
Court of Appeal judgment (5 July 2006), Pas. Lux. No. 33, 263.
55
CCP, art. 1168(2).
56
M-Real Alizay v. Thermodyn, Cassation Court judgment (12 June 2013), [2013] I Bull.
Civ. 121.
57
See InfraShore Pty Ltd v. Health Administration Corp. [2015] NSWSC 736; see contra in
Property Appeal Case No. 75 (2015), where the Dubai Cassation Court held that if an
agreement contains a general clause which requires the parties to try and resolve their
dispute amicably before initiating arbitration, and does not offer any guidance on the
process to be followed by the parties to settle the dispute amicably, then there is no specific
test to determine with certainty whether or not such efforts to reach amicable settlement

2. p ara gra ph 1 153
in construction disputes under the International Federation of

Consulting Engineers (FIDIC) suggests that the courts are compelled to
make a referral even if the outcome of the procedure in question would be
uncertain or that the parties would be forced to return to the courts;58 a
possible exception on the basis of good faith has been found to exist in
respect of referrals to dispute adjudication boards (DABs) under
FIDIC.59 There is clearly analogy here mutatis mutandis to arbitration.
The German Federal Court of Justice has taken the concept of inoper-
ability further by arguing that where one of the parties does not possess the
financial resources to proceed with arbitration, the agreement is incapable
of being performed.60 Although in that case the court was upholding the
fundamental right of access to justice under article 6 of the European
Convention on Human Rights (ECHR),61 it is not clear that non-referral
under such a ground is within the remit of the courts in accordance with
article 8(1) of the Model Law. The European Court of Human Rights has
long held that consent to arbitration (to the exclusion of litigation) does
not violate the right to fair trial,62 and hence the indigence of one of the
parties is irrelevant to the operability of the arbitration agreement.
2.6 The Absence of a Dispute

Article 8(1) of the Model Law is silent as to whether the court seised of an
action may inquire into the existence of a dispute. Indeed, the parties may
have taken place between parties. In such cases, if either party proceeds to arbitration
directly, this implies that settlement attempts have failed. A party that disputes this must
raise such an objection before the arbitral tribunal and may not raise it later in enforce-
ment proceedings.
58
Peterborough City Council v. Enterprise Managed Services Ltd [2014] EWHC 3193.
59
Swiss Federal Supreme Court Case No. 4A_124/2014.
60
CLOUT Case 404, German Bundesgerichtshof, 14 September 2000, III ZR 33/00.
61
Exceptionally, the Portuguese Supreme Court in Wall Street Institute de Portugal – Centro
des Ingles SA WSI – Consultadoria e Marketing and Others v. Centro des Ingles Santa
Barbara LDA, Judgment No. 311/2008 (30 May 2008), held that where a party to arbitral
proceedings had become indigent, it was entitled to legal aid and hence recourse to
litigation, whereby legal aid is available. The court’s rationale was based on the argument
that the interest sacrificed by the rejection of the arbitration clause was purely procedural
as opposed to the substantive interest in the case of the right to a fair trial; see, however,
art. 380 of the Swiss CCP, which excludes the possibility of legal aid from domestic
arbitral proceedings. The Swiss Federal Supreme Court in Case No. 4A_178/2014, judg-
ment (29 July 2014) confirmed that the same exclusion applies also to international
arbitrations.
62
Osmo Suovaniemi and Others v. Finland, App. No. 31737/1996, Decision (23 February
1999); and X v. Germany, App. No. 1197/1961, Decision (5 March 1962).

154 a rticle 8 : sub stantiv e claim befor e c our t
have already resolved their dispute, and/or admitted the claim, and
despite the existence of an arbitral agreement a referral may ultimately
be deemed futile. The key consideration here is whether such a determi-
nation is within the court’s remit under article 8 of the Model Law. Case
law from Canada and Hong Kong compiled in UNCITRAL’s ‘2012
Digest of Case Law’ seems to suggest that where the claim is no longer
in contention between the parties, the courts need not make a referral
order.63 Although such an approach is sensible, if resisted by the respon-
dent the court should not lightly refuse referral, unless it is convinced that
it is a delay tactic with a view to frustrating justice (e.g. in order to
dissipate assets). Such a result is dictated by the principles of party
autonomy and separability (of the arbitration clause) and even if for no
other reason the claimant may wish for an award because it is far more
easily enforced in the preferred jurisdiction(s) than a judgment by the
courts of the forum.
2.7 Standard of Review Required of the Courts

Under article 16(1) of the Model Law, the tribunal may rule on its own
competence, including whether or not the parties have entered into a
valid arbitral agreement. Even so, the very existence of article 8(1) of the
Model Law clearly suggests that the parties may indeed approach the
courts with a view to settling this matter as a jurisdictional issue,
following which that court may, if satisfied that the agreement is
valid, refer the parties to arbitration. Thus, both the tribunal and the
courts are equally competent to decide the validity of the arbitral
agreement and the tribunal’s jurisdiction. However, neither article 8
(1) nor 16(1) of the Model Law clarifies the standard of review required
by the court or the tribunal. In particular, is this subject to a full review
or a prima facie review? The difference between the two is that the latter
requires far lighter scrutiny and inspection of evidence, as well as a
lower threshold of proof. Moreover, a full review culminates in a
judgment (which may be appealed), whereas a prima facie review
results in an order, which is not appealable (at least in the majority of
jurisdictions).
UNCITRAL’s ‘2012 Digest of Case Law’ indicates that in a number of
Model Law States, such as Mexico, Croatia, Spain, Uganda, Kenya and
Australia, the courts either failed to identify the need for a standard of
63
UNCITRAL, ‘2012 Digest of Case Law’, p. 48, fn. 229.

review or were implicitly in favour of the full review standard.64 A

judgment by the Irish High Court is also cited as precedent supporting
the full review standard, but the court itself relied on academic writings
and its wording is not explicit that such a test would be applicable
universally.65 The Supreme Court of India has captured the tensions
between the two standards from a practical perspective and opted for a
prima facie review.66 The justification offered by the Supreme Court was
warranted by the parallel competence of courts and tribunals, the need
for continuity and coherence of the arbitral process and the general
requirement that court intervention be limited as much as possible, in
addition to unnecessary cost, delays and other practical factors. Clearly,
even if tribunals were under an obligation to undertake a full review –
with a view to issuing an order or award on jurisdiction entailing assess-
ment as to the existence of an arbitral agreement – the absence of the
possibility of appeal and its strict time limits would compel them to
render a quicker and less expensive conclusion to this issue. The
Canadian Supreme Court has sided with this line of argumentation. It
emphasised that the general rule is that jurisdictional claims should be
heard by tribunals under their competence-competence powers and that
review by the courts is exceptional. It went on to say that where the
objection to a referral concerns exclusively matters of law, these may be
dispensed by the courts through a prima facie review, whereas if the
dispute relates to factual ambiguities, the arbitral tribunal is best suited to
resolving these. Where questions of mixed law and fact are concerned,
the court must refer the case to arbitration unless the questions of fact
require only superficial consideration of the documentary evidence in the
record. It then stated that:
Before departing from the general rule of referral, the court must be
satisfied that the challenge to the arbitrator’s jurisdiction is not a delaying
tactic and that it will not unduly impair the conduct of the arbitration
proceeding. In the case at bar, the parties have raised questions of law
relating to the application of the provisions on Quebec private international
64
UNCITRAL, ‘2012 Digest of Case Law’, p. 44; equally, Comptek Telecomm v. IVD Corp.
(1997) XXII YB Com. Arb. 905 (1997); SMG Swedish Machine Group v. Swedish Machine
Group (1993) XVIII YB Com. Arb. 457.
65
Barnmore Demolition and Civil Engineering Ltd v. Alandale Logistics Ltd and Others, Irish
High Court judgment (11 November 2010), [2010] IEHC 544.
66
Shin-Etsu Chemical Co. Ltd v. M/S Aksh Optifibre Ltd and Another (2005) 7 SCC 234;
Marina World Shipping v. Jindal Exports and Imports Pvt., New Delhi High Court
judgment (28 February 2012), para. 26; Fai Tak Engineering Co. Ltd v. Sui Chong
Construction & Engineering Co. Ltd [2009] HKDC 141.

156 a rticle 8 : sub stantiv e claim before c our t
law and to whether the class action is of public order. There are a number of
other arguments, however, that require an analysis of the facts in order to
apply the law to this case, such as those relating to the existence of a foreign
element and to the external nature of the arbitration clause. Consequently,
the matter should have been referred to arbitration.67
The Dell Computer judgment has been confirmed by other courts, such as
the Mauritius Supreme Court, which held that a prima facie review is not
only consistent with international practice, but is, moreover, in line with
the required non-interventionist judicial approach.68
2.8 ‘Not Later than When Submitting First Statement

on Substance of the Dispute’
This is a procedural requirement demanded under paragraph 1 of article
8 of the Model Law. The language seems to suggest that the requirement
is a strict one and this is indeed the case. This necessarily gives rise to a
presumption of waiver69 and estoppel in situations where the respon-
dent’s submission is untimely.70 Nonetheless, two considerations are
pertinent. First, the lex arbitri may well stipulate that the prescribed
time limit may be different for the parties in multi-party proceedings
or provide further exceptions in particular circumstances.71 Moreover,
67
Dell Computer Corp. (n. 37), paras 84–88; in support, see CLOUT Case 1047, Dancap
Productions Inc. v. Key Brand Entertainment Inc. [2009] ONCA 135.
68
Mall of Mont Choisy Ltd v. Pick N’ Pay Retailers (Proprietary) Ltd and Others, [2015] SCJ
10. It confirmed that the appropriate test is whether ‘there is a very strong probability’ that
the agreement is null, void, etc.
69
Under Chapter 1 of the US FAA, a party has waived its right to arbitrate a dispute only if: (1)
it had knowledge of its existing right to compel arbitration; (2) it acted inconsistently with
that existing right; and (3) the party resisting arbitration suffered prejudice from the
defendant’s delay in moving to compel arbitration. See Gutierrez v. Wells Fargo Bank, 704
F.3d 712, 720–721 (9th Cir. 2012); Fisher v. AG Becker Paribas Inc., 791 F.2d 691 (9th Cir.
1986), 694. But see also Hooper v. Advance America, Cash Advance Centers of Mo., Inc., 589
F.3d 917, 921 (8th Cir. 2009), which held that waiver from arbitration may be demonstrated
by conduct that is inconsistent with an arbitration agreement, such as the pursuit of litigation.
70
Estoppel, or even perhaps abuse of process, arises also in situations where it is the claimant
and not the respondent that subsequently seeks referral to arbitration. See CLOUT Case 33,
Ruhrkohle Handel Inter GMBH and Natl Steel Corp. and Others v. Fednav. Ltd and Federal
Pacific; Chok Yick Interior Design & Engineering Co. Ltd v. Fortune World Enterprises Ltd
and Another [2010] HKCFI 8. But see below in this section for conclusions relating to
situations where both parties are desirous of an arbitral referral.
71
In Tensbur Investment Inc. (BVI) v. Renaissance Capital Investment Management Ltd
(BVI), the Russian Federal Commercial Court for the North-Western Circuit in its
judgment of 24 April 2014 clarified that a party may seek referral to arbitration until:
(1) it makes a submission on the merits of the case; (2) the trial court renders a judgment

the lex arbitri may assume that the respondent has satisfied his or her
obligation by any notice submitted prior to a first statement72 or response
to one, if any (such as an extra-judicial communication), or by stating its
intention generally, but not through any particular form.73
Second, if both parties subsequently expressed their desire for the
dispute to be referred to arbitration, a determination that the court’s
hands were tied would no doubt violate party autonomy.74 Hence, a
sensible reading of the timeliness requirement imposes upon the courts
an obligation to: (1) refuse referrals where none of the parties has
expressed an intention to honour the arbitration agreement no later
than their first statement; (2) refer the dispute to arbitration where one
of the parties has clearly expressed such intention, although not formally
and in circumstances where it would be unjust not to do so; and (3) refer
the dispute to arbitration without further consideration where both
parties so desire, even if they have both failed to express such desire
following their submission of statements and counterstatements.75
US case law is confusing on this matter and the various circuits have
often offered differing views.76 The timeliness of the referral request is
not treated as a matter of arbitrability and the Texas Supreme Court has
held that whether or not the claimant has waived his right to arbitration
on the merits. The party’s failure to participate in a hearing does not preclude it from
submitting a request to refer the case to arbitration at a later stage.
72
It should be noted that the term ‘first statement’ has been described in pertinent case law
as a ‘statement on the substance of the dispute’. Hence, statements or actions relating to
procedural matters, such as an application for discovery of documents, do not qualify as
‘first statements’. See UNCITRAL, ‘2012 Digest of Case Law’, pp. 47–48.
73
Although this was denied in Restore Intl Corp. v. KIP Kuester Intl Products Corp. [1999]
CanLII 6297 (BCSC), paras 12–14, where one of the parties disengaged its counsel
because he did not agree with an application for arbitral referral and hence while
representing itself filed a statement of defence, as it alleged, in order to avoid a default
judgment; in accordance with art. 13(1) and (2) of the Mauritius Supreme Court
(International Arbitration Claims) Rules 2013, an application for transfer must be
made either with an affidavit or a written statement supported by evidence.
74
In fact, some jurisdictions have gone as far as allowing the parties to request the court
seised of a dispute to refer it to arbitration despite the fact that the parties agreed to
arbitrate only after the dispute was brought to the courts. See Italian Law 162/2014; the
DIFC Court’s Practice Direction No. 2 (2015) on the Referral of Payment Judgment
Disputes to Arbitration allows the judgment debtor and creditor of a DIFC judgment to
refer an unsatisfied debt to arbitration with a view to it being enforceable under the New
York Convention.
75
See, to this effect, CLOUT Case 356, Seine River Resources Inc. v. Pensa Inc. [1999] CanLII
6579 (BCSC).
76
Although the position has now solidified after Howsam v. Dean Witter Reynolds Inc. 537
US 79, 84 (2002), which is that matters of timeliness must be determined by the tribunal.

158 a rticle 8 : sub stanti ve cla im befor e cour t
should be assessed by the arbitral tribunal.77 Such an approach, although

consistent with the competence-competence principle, is not clearly
within the authority of the court seised. Article 8(1) does not provide
authority to the court to refer to the tribunal the question of its own
jurisdiction, but may only compel arbitration as to the merits of the
dispute, having itself dispensed with the jurisdictional issue.
3. Paragraph 2
Paragraph 2 sets out an important rule, which puts to rest many of the
implicit powers assumed by courts in the previous sections. Whether by
reason of the separability doctrine or not, a tribunal may be constituted
and even deliver an award while the court before which an action has
been brought is deliberating the merits of a referral. During the last
revision of the Model Law in 2006, the confusion brought about by the
West Tankers case was nowhere in sight. As a result, an examination of
article 8(2) is compelled to examine the situation of parallel proceedings
(arbitral and judicial) in the context of EU law and particularly in light of
the Recast Brussels I Regulation and its predecessor.
3.1 Autonomy of Arbitral Proceedings

It is clear that the arbitral process is autonomous (or independent) from
parallel judicial proceedings regarding the existence of a valid arbitration
agreement. While such judicial proceedings are ongoing, the parties (or
at least the willing party) may constitute the tribunal and continue
existing proceedings, and the tribunal may even issue an award, even if
the court has not rendered a judgment/order.78 This is sensible, given
that if the court were to require a full review of the dispute and its
judgment subject to further appeal, a final judgment could take a con-
siderable amount of time, during which the parties’ vital interest would
be seriously impaired. Such a predicament, particularly if it constitutes a
calculated delay tactic, can only be avoided if the arbitration agreement is
capable of giving rise to a procedure that is autonomous from any judicial
process. Even if article 8(2) did not say as much, such an outcome would
also be borne from the principles of party autonomy and separability.
77
GT Leach Builders LLC v. Sapphire VP LC (Tex. 2015).
78
See English AA, s. 32(4).

Paragraph 2 further suggests that the court seised of the action does
not possess the authority to order a stay of the arbitral proceedings, save if
it comes to the conclusion that there is no arbitration agreement to speak
of, or where it suffers from any of the maladies referred to in paragraph 1
of article 8. This conclusion is borne from the travaux of paragraph 2,79
and is consistent with the power of the courts to make a finding as to the
validity or existence of the arbitration agreement. It would be absurd if
the courts possessed such a power, but could not subsequently stay the
arbitral proceedings.
What paragraph 2 of article 8 does not address is the likelihood of
conflicting outcomes between the court and the tribunal. Hence, if the
court decides that the arbitration agreement is invalid by which time the
tribunal has already issued a final award, the parties will be handed two
conflicting, yet binding, pronouncements: the award on the merits and
the judgment on jurisdiction. The autonomy of the arbitral process
entails that the court judgment cannot automatically annul the award.
Rather, the party that challenged the referral before the court will have to
pursue set-aside proceedings against the award in accordance with article
34(2)(a)(i) of the Model Law. The judgment of the court will not neces-
sarily be binding on the annulment court – but this is a matter that is
settled by the law of the seat – but it will certainly be of significant
persuasive value. In any event, the claimant will have to present his or
her arguments and the respondent will address them through his or her
counterclaims.
79
Sixth Session, UN Doc. A/CN.9/245 (22 September 1983), para. 67.

Article 9
Arbitration Agreement and Interim Measures

by Court
It is not incompatible with an arbitration agreement for a party to

request, before or during arbitral proceedings, from a court an interim
measure of protection and for a court to grant such measure.
Article 9 is concerned with the compatibility of an arbitration agreement
in connection with a request for interim measures from the courts (as
opposed to such a measure being granted by an arbitral tribunal). The
article was discussed under the common ground that pre-arbitration
attachments and interim measures applied for or granted by the courts
should not be seen as incompatible with an agreement to arbitrate
disputes between the parties. At the same time, it was equally clear that
the Model Law also ought not to prescribe or exclude any specific rules in
relation to the possible measures that may be requested from or granted
by a court, with a view to ensuring respect for domestic laws and
jurisprudence and its separation from the international arbitral legal
system, as well as to provide the maximum extent of freedom to the
parties of the arbitration agreement.1 Court-ordered interim measures
may be important to ensure the effectiveness of arbitration, because the
arbitral tribunal may be unable to respond to a party’s need effectively,
for example, where interim measures may be required before the arbitral
tribunal has been constituted, or where such a measure is sought against a
third party outside the jurisdiction of an arbitral tribunal and thus
warranting the granting of court-ordered interim measures. As has
1
Work of Its Third Session, UN Doc. A/CN.9/216 (23 March 1982), paras 39, 69.
160

1 . tr ava ux p r é paratoires 161
been demonstrated in a number of cases, the practice of court-ordered

interim measures serves to render the outcome of arbitration more
effective, and also serves to reinforce the procedural powers of arbitra-
tors, without, however, encroaching such powers.2
Given that the broad principle contained in article 9 necessarily
embraced the issue of interim measures of protection granted by arbitral
tribunals or the courts, it was suggested that the drafting of article 9 be
modelled upon article 26(3) of the 1976 UNCITRAL Arbitration Rules,
article VI(4) of the 1961 Geneva Convention and article 4(2) of the 1966
European Convention providing a Uniform Law on Arbitration
(Strasbourg Uniform Law).3 Article 26(3) of the 1976 UNCITRAL
Arbitration Rules provides that ‘[a] request for interim measures
addressed by any party to a judicial authority shall not be deemed
incompatible with the agreement to arbitrate, or as a waiver of that
agreement’.4 Although reference to article 26(3) of the 1976
UNCITRAL Arbitration Rules was made at first, it was subsequently
suggested that a neutral and passive approach ought to be adopted
under the Model Law, in order to declare a principle of compatibility
rather than the adoption of the perspective of article 26(3) of the
UNCITRAL Arbitration Rules, as that article was drafted from the view-
point of the adopting parties.5 While another possible approach would
have been to grant the parties the right to request interim measures from
the courts, it was noted that article VI(4) of the 1961 Geneva Convention
had already taken such an approach to the issue.6 Even after further
drafting, the discussions still centred on the issue of the clarity of the
2
Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd, House of Lords, England, 17
February 1993, [1993] AC 334, 365 (where Lord Mustill stated that ‘[t]he purpose of
interim measures of protection … is not to encroach on the procedural powers of the
arbitrators but to reinforce them, and to render more effective the decision at which the
arbitrators will ultimately arrive on the substance of the dispute’); NCC Intl AB v. Alliance
Concrete Singapore Pte Ltd, Court of Appeal, Singapore, 26 February 2008, [2008] SGCA 5,
[2008] 2 SLR(R) 565; Front Carriers Ltd v. Atlantic & Orient Shipping Corp., High Court,
Singapore, 19 July 2006, [2006] SGHC 127, [2006] 3 SLR(R) 854; Pathak v. Tourism
Transport Ltd, High Court, Auckland, New Zealand, 20 August 2002, [2002] 3 NZLR
681; The Owners of the Ship or vessel ‘Lady Muriel’ v. Transorient Shipping Ltd, Court of
Appeal, Hong Kong, 27 March 1995, [1995] HKCA 615; UNCITRAL, Analytical
Commentary on the Draft Text of a Model Law on International Commercial
3
UN Doc. A/CN.9/216 (n. 1), para. 39.
4
The provision of art. 26(9) of the 2010 UNCITRAL Arbitration Rules is identical.
5
Work of Its Fourth Session, UN Doc. A/CN.9/232 (10 November 1982), paras 52–53.
6
Ibid., para. 54.

162 article 9 : interim meas ures
language of the article to ensure that the principle of compatibility

between an arbitration agreement and a request for an interim measure
from a court is laid down clearly.7
At one point in the course of the discussion, the issue of whether or not
the article should include or specify lists and areas of interim measures
considered compatible with an arbitration agreement was raised – for
example, to include interim measures for securing evidence.8 Ultimately,
the Working Group agreed that it would be unnecessary to list possible
interim measures; on the contrary, the general and unspecific approach
adopted in article VI(4) of the 1961 Geneva Convention was considered
more desirable and appropriate in light of the broad and wide application
of such a provision across different jurisdictions, as well as diverse
arbitration contexts.9 As to the term to be used in respect of ‘interim
measures’, the Working Group preferred the language used in the
UNCITRAL Arbitration Rules over the wording from the 1961 Geneva
Convention, and decided to adopt ‘interim measure of protection’
instead of ‘interim measure or a measure of conservation’.10 This was
reflective of the intention behind the drafting, which was that article 9
would cover a wide range of interim measures, including pre-award
attachments. Its range was agreed to be even broader than previous
wording of article 17, which dealt with the issue of interim measures of
protection by an arbitral tribunal.11 Although there is a lack of a defini-
tion or an exhaustive list of interim measures, the latest version of the
Model Law has potentially provided further guidance on this issue.12 The
new definition under article 17 raises the issue of the applicability of that
definition to interim measures under this article, and whether or not in
light of the new material on interim measures added to the Model Law in
2006, this previous Working Group discussion in respect of the specifi-
city of the interim measures under this article needs to be revisited,
7
8
Ibid., para. 81.
9
Work of Its Sixth Session, UN Doc. A/CN.9/245 (29 August–9 September 1983),
para. 188.
10
Work of Its Seventh Session, UN Doc. A/CN.9/246 (6 March 1984), paras 24–25.
11
Ibid., para. 26.
12
See the new Model Law art. 17 definition of ‘interim measures of protection’, as well as art.
17J – for further, see below at ‘4. Defining “Interim Measure of Protection”’.

2 . p r o t e c t i o n u n d e r in t e r i m m e a s u r e s 163
particularly bearing in mind the concept of excluding court intervention

from arbitral proceedings to the greatest extent possible.
2. Protection under Interim Measures

The Working Group noted that it would be more appropriate to include a
general formulation of principle under article 9 rather than to specifically
list the various possible forms of interim measure available to the parties
and the courts.13 This broad approach meant that this provision of the
Model Law would not add to, or detract from, the types of interim
measures of protection courts could grant under the relevant local
legislation. However, the Analytical Commentary indicated certain
kinds of interim measure were considered available to be granted by a
court in an arbitral context, such as interim measures sought by the
parties to conserve the subject matter or to secure evidence, and also
other measures that may be required from a third party, or to ensure
future enforcement of an arbitral award (e.g. pre-award attachments and
any similar seizure of assets).14
In implementing article 9, a number of jurisdictions included a list of
types of court-ordered interim measures allowed under their respective
civil procedure laws in the adoption of article 9 of the Model Law. These
jurisdictions include California, Oregon, Texas, Hungary, India, New
Zealand, Scotland, Zambia and Zimbabwe. For example, article 9 of the
Zimbabwe Arbitration Act 1996 provides a detailed list of possible court-
ordered interim measures. In other jurisdictions, a list of types of tribunal-
ordered interim measures is included and court-ordered interim measures
are defined by reference to that list. For example, section 12(1) of the
Singapore International Arbitration Act provides that an arbitral tribunal
has the power to make orders or give directions to any party in respect of:
(a) security for costs;
(b) discovery of documents and interrogatories;
(c) giving of evidence by affidavit;
(d) the preservation, interim custody or sale of any property which is or
forms part of the subject matter of the dispute;
(e) samples to be taken from, or any observation to be made of or
experiment conducted upon, any property which is or forms part
of the subject matter of the dispute;
13
UN Doc. A/CN.9/245 (n. 9), para. 188.
14
UN Doc. A/CN.9/264 (n. 2), art. 9, para. 4.

(f) the preservation and interim custody of any evidence for the pur-
poses of the proceedings;
(g) securing the amount in dispute;
(h) ensuring that any award which may be made in the arbitral proceed-
ings is not rendered ineffectual by the dissipation of assets by a
party; and
(i) an interim injunction or any other interim measure.
Section 12A (2) of the Singapore International Arbitration Act goes on to
provide that:
the High Court or a Judge thereof shall have the same power of making an
order in respect of any of the matters set out in section 12(1)(c) to (i) as it
has for the purpose of and in relation to an action or a matter in the court.
In addition to sections 12(1) and 12A(2), article 9 of the First Schedule

also transposes into Singaporean law article 9 of the Model Law.
In a slightly different manner, the New Zealand Arbitration Act
includes a general definition of interim measures that may be ordered
by a tribunal and cross-references that definition in its legislative coun-
terpart to article 9 of the Model Law.15
Other than pre-award attachments,16 measures protecting the subject
matter of the dispute17 and measures intended to secure evidence,18 the
implementation of article 9 under the legislation of various jurisdictions
has also led to its extension to measures relating to the protection of trade
secrets and proprietary information19 – for example, the relevant laws in
California,20 Oregon21 and Texas22 expressly allow those US State courts
to grant preliminary injunctions for the purpose of protecting trade
secrets or conserving goods which are the subject matter of the dispute
to be arbitrated.23
15
See Schedule 1, Chapter 2, s. 9 (1) and (2) of the New Zealand Arbitration Act.
16
UNCITRAL, Report of the United Nations Commission on International Trade Law on
the Work of Its Eighteenth Session, UN Doc. A/40/17 (21 August 1985), para. 96.
17
Ibid.
18
19
Ibid.
20
See California Code of Civil Procedure, s. 1297.93.
21
See Oregon International Commercial Arbitration and Conciliation Act, ORS § 36.470.
22
See Texas Civil Practice and Remedies Code, s. 172.175, Subchapter G, Chapter 172,
Title 7.
23
See also A. Tanielian, ‘Arbitration Still Best Road to Binding Dispute Resolution’ (2013) 5
Journal of Legal Affairs and Dispute Resolution in Engineering and Construction (discuss-
ing the Federal Arbitration Act and support for arts 9 and 17 in the USA).

2 . p r o t e c t i o n u n d e r in t e r i m m e a s u r e s 165
Case law in this area tends to be equally broad – cases from Canada, for
example, illustrate how the arrest of a ship for the purposes of enforcing
security for a possible future arbitral award,24 Mareva (i.e. freezing)
injunctions, garnishment (i.e. seizure of assets before judgment or
award)25 and even an interim order to secure the evidence of a witness26
were all deemed interim measures that could be granted by the courts
under article 9 in support of agreements to arbitrate. However, a leading
Hong Kong case held that a subpoena was not an interim measure of
protection and it was further held that a party seeking the court’s
assistance in such a context would have to proceed under article 27 of
the Model Law instead.27
Other examples include orders authorising the inspection of a prop-
erty to preserve evidence,28 and orders to access premises to retrieve
property.29
Due to their broad and draconian nature, it may be something of a
surprise that Mareva injunctions may nonetheless be granted by the
courts in support of arbitral proceedings. It has, however, been held
that the concept of an ‘interim measure of protection’ under article 9 is
wide enough to cover a Mareva injunction because the order allows a
‘reduction in the risk of the amount of the claim, or part of it, being
dissipated or otherwise put out of the plaintiff’s reach before the resolu-
tion of the dispute’.30
In the United States, it has been held that article 9 ‘confirms that a
party’s request to a court for an interim measure already within its legal
arsenal is compatible with that party’s desire to submit the merits of the
dispute to arbitration’.31 For example, in Stemcor, the Fifth Circuit held
that the Louisiana attachment statute could be used as a basis to seek pre-
24
Frontier Intl Shipping Corp. v. The Owners and all others interested in the ship ‘Tavros’ and
Passport Maritime SA [2000] 2 FC 445.
25
Silver Standard Resources Inc. v. Joint Stock Co. Geolog, Cominco Ltd and Open Type Stock
Co. Dukat GOK [1998] CanLII 6468 (BCCA).
26
Delphi Petroleum Inc. v. Derin Shipping and Training Ltd, Federal Court – Trial Division,
Canada, 3 December 1993.
27
Vibroflotation AG v. Express Builders Co. Ltd [1994] HKCFI 205.
28
Lady Muriel (n. 2).
29
Roko Construction Ltd v. Aya Bakery (U) Ltd [2007] UGHC 31.
30
Katran Shipping Co. Ltd v. Kenven Transportation Ltd [1992] HKLD G9.
31
SCL Basilisk AG, Thorco Shipping A/S v. Agribusiness United Savannah Logistics LLC,
Agribusiness United Inc., Agribusiness United DMCC Inc., Agribusiness United DMCC
(Dubai) LLC, Sonada Agro Ltd (UK) LLC, Judgment, 14 November 2017, 11th Cir., Case
No. 16–15535 (on appeal from SD Ga), 17. See also ibid., 14–15 (finding that art. 9 ‘reflects
the policy that a party’s resort to a court for an order to preserve assets (in the event of

award attachment, by finding that: ‘[r]eading Louisiana law to allow for

pre-suit attachment in aid of arbitration makes sense of the statutory
scheme as a whole because other provisions of Louisiana law assume that
some state-law preliminary remedies are available to aid arbitration’.32
2.1 ‘Interim’
It has been held that applications ought to be denied by the courts
where the measure sought is not of an interim nature. In Relais
Nordik v. Secunda Marine Services Ltd,33 the court refused an
application for mandatory compliance with the terms of the agree-
ment as such an order would essentially have decided the substance
of the dispute that was subject to arbitration. In that case, the
applicant was in fact seeking to have the merits of its claim adjudi-
cated immediately. Similarly, in Frontier Intl Shipping,34 an
application for an award of costs was denied by the court as an
award of this nature was not considered an interim measure of
protection under article 9. Specifically, an award of costs to be
collected immediately without any determination on the merits was
incapable of being characterised as interim protection because it was
found to merely amount to a payment and was thus neither ‘interim’
nor ‘protective’ in nature.
An order requiring details of a party to be provided or disclosed was
equally not categorised as an interim measure of protection; the same
was true in respect of an order permitting inspection unless the party
would suffer serious and irreversible damage were the order not to be
granted.35
Hence, from the cases available, it appears that the essence is embodied
in the terms ‘interim’ and ‘protection’, such that the order must be one of
arbitral victory) or to protect trade secrets (in the course of arbitral discovery) is
compatible with having the merits of a dispute determined in an arbitral forum’).
32
Stemcor USA Inc. v. CIA Siderurgica Do Para Cosipar, 870 F.3d 370 (5th Cir. 2017), 379.
See also Everspeed Enters. Ltd v. Skaarup Shipping Intl, 754 F. Supp. 2d 395 (D. Conn.
2010), 405 (finding that it had ‘jurisdiction and authority to grant injunctions and
provisional remedies in the context of pending arbitrations, including international
arbitrations’ under Connecticut’s pendente lite statute).
33
(1988), 24 FTR 256, Federal Court – Trial Division, Canada, 19 February 1988.
34
See n. 24.
35
See China Ocean Shipping Co., Owners of the M/V Fu Ning Hai v. Whistler Intl Ltd,
Charters of the M/V Fu Ning Hai, Hong Kong Court of First Instance judgment (24 May
1999), unrep.; Consolidated Projects Ltd v. The Owners of the Tug .De Ping., unrep.

3. gra n t o f in te ri m m ea s u re b y co u r ts 167
a protective nature and that it is something done pending final determi-

nation of the issues on the merits.36
3. Grant of Interim Measure by Courts

A general principle that may be gleaned from existing case law on article
9 appears to be that courts will exercise their discretion sparingly37 and
grant interim measures cautiously.38 Circumstances in which the courts
may be more willing to grant interim measures of protection include
where the arbitral tribunal does not have the power to grant all the relief
that is sought under a single application,39 and particularly where the
arbitral tribunal has not yet been constituted40 – although in the latter
case, it is possible that while the supervising court will recognise its own
broad jurisdiction to award interim measures, it may decline to issue the
injunction sought as the arbitral tribunal would be better positioned to
review the merits of the dispute. For example, section 12A(6) of the
Singapore International Arbitration Act provides that:
In every case, the High Court or a Judge thereof shall make an order …
only if or to the extent that the arbitral tribunal, and any arbitral or other
institution or person vested by the parties with power in that regard, has
no power or is unable for the time being to act effectively.41
The criteria applied by the courts for the grant of interim measures of
protection will depend on the relevant civil procedure provisions and
36
See e.g. Tavros (n. 24), where the court held that a final cost order was neither interim nor
protective within the meaning of art. 9. The court stated that ‘interim protection is
“interim” in that it is something done pending final determination of the issues on the
merits’.
37
Leviathan Shipping Co. Ltd v. Sky Sailing Overseas Co. Ltd [1998] 4 HKC 347, 355 (where
Findlay J held that ‘[t]he legislature has provided for the intervention of the courts, but, in
my view, this jurisdiction should be exercised sparingly, and only where there are special
reasons to utilise it. A special reason would be where the arbitral tribunal does not have
the power to grant all the relief sought in a single application’); NCC Intl (n. 2), [2008] 2
SLR(R) 565, para. 53 (holding that ‘[t]he court will intervene only sparingly and in very
narrow circumstances, such as where the arbitral tribunal cannot be constituted expe-
diently enough, where the court’s coercive enforcement powers are required or where the
arbitral tribunal has no jurisdiction to grant the relief sought in the matter at hand’).
38
Transorient Shipping Ltd v. The Owners of the Ship or vessel ‘Lady Muriel’, Hong Kong
High Court judgment (27 March 1995), unrep.; (1995) 10(7) International Arbitration
Report J-1.
39
Leviathan Shipping (n. 37).
40
TLC Multimedia Inc. v. Core Curriculum Technologies Inc. [1998] CanLII 3901 (BCSC).
41
Cap. 143A.

other tests for the particular measure in the relevant jurisdiction. The
Zimbabwe Arbitration Act 1996, as cited above, is an example of where
requirements have been added in the implementation of article 9 for the
grant of interim measures, including the absence of an arbitral tribunal,
its lack of competence or urgency of the matter. In African Mixing
Technologies Ltd v. Canamix Processing Systems Ltd, the Supreme
Court of British Columbia held that while it had jurisdiction to order
interim measures in respect of an arbitration seated in South Africa, it
rejected the claimant’s application finding that there was no evidence
indicating that the arbitral tribunal could not order the relief requested,
whose order could subsequently be enforced in Canada.42
4. Defining ‘Interim Measure of Protection’

There was no definition of the term ‘interim measure of protection’
under article 9, which, as the previously discussed case law shows, left
much room for discretionary interpretation and determination by the
forum courts. The same is also true with regard to whether or not the
measures sought fell within or outside the ambit of article 9.
Although the wording of article 9 was not altered in the 2006 amend-
ment of the Model Law, a new definition of ‘interim measure of protec-
tion’ was introduced under article 17. While the amended Model Law
(2006) provides a clear definition and scope of interim measures of
protection under article 17(2), article 17 and the new additions to the
Model Law following article 17 concern interim measures of protection
granted by arbitral tribunals instead of interim measures granted by the
courts.
Article 9 remains a statement of a principle, and as noted above, was
not intended to provide guidance as to the conditions under which
interim measures of protection may be granted by the courts, nor list
the interim measures which might possibly be granted by the court, nor
set out any regulations or rules which the court ought to have in mind
when granting such interim measures of protection. In Pathak v. Tourism
Transport Ltd, the New Zealand High Court observed that article 9(1) of
Schedule 1 of the New Zealand Arbitration Act (as then in force) (the
legislative counterpart to article 9 of the Model Law) authorised the court
‘to act in aid of and to assist the arbitral process by ordering interim
42
African Mixing Technologies Ltd v. Canamix Processing Systems Ltd, Supreme Court of
British Columbia (First Instance) (2014) BCSC 2130.

4 . d e fin i n g ‘interim m easure of protection ’ 169
measures of protection which an arbitral tribunal, cannot, for practical or

legal reasons, order’.43
By contrast, such provisions are set out under the new articles added to
the Model Law in 2006, for example under article 17J and 17(2). This was
emphasised in a Singapore Court of Appeal case, namely that article 9
itself does not provide any positive guidance on the granting of interim
measures of protection by the courts, and it merely declares the principle
of compatibility between an agreement to arbitrate a dispute and a
request of an interim measure of protection from the courts.44 This
thus raises the question of whether or not the definition of ‘interim
measure’ under the revised article 17 can and ought to be applied to
article 9.
A review of the protective measures that have previously been granted
by the courts under article 9 demonstrates that such measures readily fall
within the definition of ‘interim measure’ under the new article 17.
Similarly, where the courts declined to grant applications, the measures
sought would have fallen outside of the definition of ‘interim measure’
under article 17. It is evident that even though the definition of ‘interim
measure’ encompasses those measures granted by an arbitral tribunal, it
may be usefully applied to interim measures granted by the courts.
The application of the definition to both articles 9 and 17 offers several
advantages. Where national courts might previously have had to look to
domestic law for guidance as to what measures fall within and outside the
ambit of article 9, a definition under article 17 leaves far less doubt.
Second, the uniform application of the definition not only ensures that
there is consistency between what the courts and arbitral tribunals con-
sider to be interim measures, but also ensures that even across jurisdic-
tions there will be greater uniformity in such measures. Given the
importance of such measures to the effectiveness of arbitration, such
consistency and predictability can only serve to inspire wider confidence
in the arbitral process.45
43
Pathak (n. 2), para. 40. See also Marnell Corrao Associates Inc. v. Sensation Yachts Ltd
(2000) 15 PRNZ 608, para. 74 (where the New Zealand High Court found that art. 9 of
Schedule 1 was ‘limited to “interim measures of protection” which the arbitral tribunal …
cannot order in time to give necessary protection’).
44
Swift-Fortune Ltd v. Magnifica Marine SA [2006] SGCA 42.
45
S. Ferguson, ‘Interim Measures of Protection in International Commercial Arbitration:
Problems, Proposed Solutions, and Anticipated Results’ (2003) 12 Currents Intl Trade
LJ 55.

Even so, it is suggested here that this also potentially raises the issue of
whether or not by reading article 9 consistently with the definition under
article 17, the power of the courts to interpret the principle of compat-
ibility is fettered. As mentioned above, the power of the courts to grant
interim measures may generally be considered wider than that of an
arbitral tribunal, particularly as regards third parties to arbitration. If
article 9 is to be read consistently with the definition under article 17, it
raises the issue of whether or not the definition in the context of article 9
is unnecessarily restrictive, given the list of orders set out under article 17,
which must be compared with interim measures that might be available
from courts of different jurisdictions. Further potential issues may also be
caused in reading the two articles consistently in respect of jurisdictions
where such measures may not be available or granted by the courts.
If the term ‘interim measure’ under article 9 is not to be read consis-
tently with the definition under article 17, however, this may lead to a
great deal of confusion as to whether interim measures under the two
articles overlap, and what forms of interim measure might be granted by
the court, but not by an arbitral tribunal, and vice versa.
The issue may arguably be resolved by the new article 17J of the Model
Law. The power of the courts in respect of interim measures for arbitral
proceedings are the same as those it would exercise in court proceedings.
This reflects the drafting of article 9 with the aim of not overburdening
the provisions of the Model Law and instead leaving it to member States
to implement the court’s powers of interim measures in arbitration in a
manner consistent with domestic law. At the same time, this provision is
also consistent with the principle that has emerged from the case law on
article 9, whereby although the court has a wide discretion and concur-
rent jurisdiction with an arbitral tribunal, such powers will usually be
exercised carefully, bearing in mind the needs of the arbitration itself.46
5. Comparison of Article 9 with Article 17

Both article 9 and article 17 of the Model Law address the issue of interim
measures of protection – article 9 is concerned with court-ordered
interim measures, while article 17 deals with interim measures issued
by an arbitral tribunal. Unlike article 17, article 9 does not expressly
empower a court to order interim measures in support of arbitral pro-
ceedings. It merely declares that the granting of a party-requested interim
46
Transorient Shipping (n. 38); TLC Multimedia (n. 40).

5. comparis on of article 9 with arti cle 1 7 171
measure by a domestic court is not incompatible with an agreement to

arbitrate disputes between the parties. Article 9 is also silent on the
requirements of granting such interim measures, as well as the types of
available interim measures.47 As discussed above, such matters are
usually dealt with under the relevant domestic law, and there is much
room for interpretation by local courts. Although article 17(2) provides a
detailed definition of the term ‘interim measure of protection’, whether
the same applies to court-ordered interim measures under article 9
remains in doubt (as discussed above) because article 17 is principally
concerned with tribunal-ordered interim measures, and there may be
some differences between those measures and the measures available for
the courts to order in respect of court proceedings that are applicable to
arbitral proceedings. Pre-2006 case law had suggested that article 9
prevails over article 17 due to the limits of the application of article 17
in contrast with the general principle expressed in article 9.48
The key advantage court orders hold over tribunal-ordered interim
measures is that the tribunal only has a binding power over the parties to
arbitral proceedings, whereas court-ordered interim measures may be
issued against third parties who are not involved in the arbitral proceed-
ings. To a large extent, the jurisdiction of an arbitral tribunal is depen-
dent on the parties’ will and consent. As the tribunal has no enforcing
power, tribunal-ordered interim measures may be difficult to enforce or
uphold in the absence of the parties’ cooperation. Ultimately, the request-
ing party may have to resort to court enforcement, or court-ordered
interim measures, which are fully enforceable within the relevant juris-
diction. Certain arbitration laws (in line with article 17H of the Model
Law) also allow for the embodiment of tribunal-ordered interim mea-
sures into court judgments. For example, section 61 of the Hong Kong
Arbitration Ordinance provides as follows:
61. Enforcement of Orders and Directions of Arbitral Tribunal
(1) An order or direction made, whether in or outside Hong Kong, in

relation to arbitral proceedings by an arbitral tribunal is enforceable
47
D. Bucy, ‘How to Best Protect Party Rights: The Future of Interim Relief in International
Commercial Arbitration under the Amended UNCITRAL Model Law’ (2010) 25 Am. U.
Intl L. Rev. 579 (noting that art. 9 ‘lacks clear guidance on the courts’ role in ordering such
measures once arbitral proceedings are initiated’).
48
Trade Fortune Inc. v. Amalgamated Mill Supplies Ltd [1994] CanLII 845 (BCSC).

172 arti cle 9 : interim measures
in the same manner as an order or direction of the Court that has the
same effect, but only with the leave of the Court.
(2) Leave to enforce an order or direction made outside Hong Kong is
not to be granted, unless the party seeking to enforce it can demon-
strate that it belongs to a type or description of order or direction that
may be made in Hong Kong in relation to arbitral proceedings by an
arbitral tribunal.
(3) If leave is granted under subsection (1), the Court may enter judg-
ment in terms of the order or direction.
(4) A decision of the Court to grant or refuse to grant leave under
subsection (1) is not subject to appeal.
(5) An order or direction referred to in this section includes an interim
measure.49
Initially, the draft Model Law expressly allowed a party to request a court
to render assistance in the execution of such measures where the need
arose.50 However, this statement was not included in the final draft of the
Model Law because the Working Group was of the opinion that this
would be unlikely to be accepted by many States.51
As discussed above, under article 9, the words ‘interim measure of
protection’ may potentially denote a wider range of possible measures
than those under article 17, particularly in the context of article 17J.
Where the court considers it appropriate, the court may order interim
measures in relation to matters beyond the subject matter of the dispute
being arbitrated.52 One example may be where a court issues measures of
protection beyond the scope of an arbitral tribunal’s jurisdiction where
there is a need to secure assets in order to avoid endangering the potential
outcome of other non-arbitral proceedings.53
This, however, is not to downplay the significance of the new article 17
in comparison to article 9. It may be more efficient, for example, to seek
interim measures issued by a tribunal in comparison to those ordered by a
court. In light of the relevant case law setting out the position that the
court’s power to order interim measures in support of an arbitration
should be exercised with care, it may well be easier to convince an arbitral
49
Cap. 609 (emphasis added).
50
UNCITRAL, Revised Draft Articles I to XXVI, UN Doc. A/CN.9/WG.II/WP.40 (14
December 1982), Pt C, arts V and XIV (hereinafter, ‘Second Draft’).
51
UN Doc. A/CN.9/245 (n. 9), para. 72.
52
UN Doc. A/40/17 (n. 16), para. 168.
53
Law Jurisdictions (Sweet & Maxwell, 2010), para. 4A-019.

6 . i nt e r i m me a s u r e s ou t o f j u r i s d i c t i o n 173
tribunal to issue an interim measure, particularly as the arbitral tribunal

may be in a better position to assess the merits of the matter at hand and is
already familiar with the circumstances.54 As such, the new article 17 plays
an important role in lending greater clarity to the empowerment of arbitral
tribunals to exercise such power in respect of interim measures, despite the
potential difficulties of enforcement when compared with court-ordered
interim measures.55 It should therefore be clear that courts are increasingly
ready to assist arbitrations in this way even though they may remain
cautious with the actual exercise of their powers. The introduction of the
new article 17J in the 2006 version of the Model Law should further remove
any reluctance local courts may entertain in this regard.
It remains to be seen whether or not the absence of a definition of
‘interim measures’ will lead to reliance by the courts on the new defini-
tion under article 17 for guidance, even though article 17 deals with
interim measures granted by tribunals rather than the courts. It is
suggested here that the issue needs to be approached with some care, so
as not to unnecessarily limit or broaden the scope of interim measures
normally available to be sought from domestic courts in aid of arbitra-
tion.56 In view of the potential confusion this may cause, it may be
necessary in future to examine with greater care the types of interim
measures that may be more appropriately issued by the courts, for
example, against third parties, or prior to the formation of an arbitral
tribunal, and to limit the scope of this article (and the interference of the
courts in the arbitral process) in preference to tribunal-ordered interim
measures under the 2006 amendments to the Model Law. Consideration
of this issue may well be informed by how cases under the amended
provisions of article 17 proceed, including whether or not the enhanced
material on tribunal-ordered interim measures leads to a reduction in the
number of applications for interim measures applied for before the
courts, as one commentator has suggested would be the likely conse-
quence of the 2006 amendments.57
6. Interim Measures Out of Jurisdiction

By virtue of article 1(2) of the Model Law, the principle enshrined in
article 9 applies regardless of whether the application is made to a court of
54
Ibid., para. 4A-020.
55
Ferguson (n. 45).
56
See also Bucy (n. 47), pp. 579–609.
57
Ferguson (n. 45).

174 article 9 : interim measures
a Model Law State or to a court of another State.58 The principle under

article 9 should also apply even if the place of arbitration is undetermined
or located in a foreign jurisdiction.59 As such, the scope of application of
article 9 is potentially wider than most of the provisions in the Model
Law, as it is exempt from the restriction of having the place of arbitration
located in the territory of an enacting State. Numerous cases have illu-
strated this point when concerned with disputes that had been submitted
to foreign arbitrations or where the arbitral clauses providing that orders
should be left to arbitral tribunals were involved.60
The starting point in respect of interim measures of protection is to
ensure that the measure may be executed in the jurisdiction of the court
from which the measure is sought. In this regard, Frontier Intl Shipping61
is illustrative. In that case, the court declined to award security for a
counterclaim in arbitration as there were no assets within the jurisdiction
that the court might move against for the purposes of enforcement, and
the court would not make the stay of court proceedings on the matter
conditional upon such a security.
Such a case raises the issue of whether or not parties to arbitration may
expect to be successful seeking an interim measure of protection from a
court outside of the jurisdiction where the arbitration is seated. The
evolution of case law in Hong Kong on this issue may well demonstrate
the development of the attitudes of the courts in this regard. The case of
Katran Shipping Co. Ltd62 in 1992 established that arbitration would be
considered international if a substantial part of the obligations of the
commercial relationship are to be performed outside of Hong Kong. This
was followed by Interbulk63 in the same year, where it was held that Hong
Kong courts have no jurisdiction to grant interim relief where a valid
arbitration agreement provides for arbitration outside of Hong Kong,
58
See Model Law, art. 1(2), which states that: ‘The provisions of this Law, except articles 8, 9,
17H, 17I, 17J, 35 and 36, apply only if the place of arbitration is in the territory of this
State.’
59
Front Carriers Ltd v. Atlantic & Orient Shipping Corp. [2006] SGHC 127; Econ Corp. Intl
Ltd v. Ballast-Nedam Intl BV [2002] SGHC 293; Amican Navigation Inc. v. Densan
Shipping Co. [1997] CanLII 6263 (CF); Tavros (n. 24); Delphi Petroleum (n. 26); TLC
Multimedia (n. 40); Trade Fortune (n. 48).
60
See, for instance, Interbulk (Hong Kong) Ltd v. Safe Rich Industries Ltd (1992) 2 HKLR
185; Silver Standard Resources Inc. v. Joint Stock Co. Geolog [1998] BCJ No. 2887;
Transorient Shipping (n. 38); Transfield Philippines Inc. v. Luzon Hydro Corp.,
Philippines Supreme Court judgment (19 May 2006).
61
See n. 24.
62
Katran (n. 30).
63
Interbulk (n. 60).

6 . i nt e r i m me a s u r e s ou t o f j u r i s d i c t i o n 175
even though the court considered it open to argument that it might be

more ready to assist a party to an international arbitration agreement.
However, in 1995, the court held in Lady Muriel64 that Hong Kong courts
have an inherent jurisdiction to issue interim measures of protection in
aid of foreign arbitrations, because of the exception to the principle of
non-intervention created under article 9 of the Model Law. The Hong
Kong Arbitration Ordinance now provides that:
Leave to enforce an order or direction made outside Hong Kong is not to
be granted, unless the party seeking to enforce it can demonstrate that it
belongs to a type or description of order or direction that may be made in
Hong Kong in relation to arbitral proceedings by an arbitral tribunal.65
This is similar to section 12A(3) of the Singapore International Arbitration

Act. In Singapore, in Swift-Fortune Ltd v. Magnifica Marine SA, the High
Court had set aside a Mareva injunction, finding that court-ordered
interim measures under the Singapore International Arbitration Act
were intended to apply to arbitrations seated in Singapore and thus did
not apply to arbitrations seated outside Singapore.66 This finding was
upheld on appeal.67 However, in Front Carriers Ltd v. Atlantic & Orient
Shipping Corp., the High Court held that Singaporean courts had the
power to grant interim measures (including a Mareva injunction) in aid
of arbitrations seated outside Singapore.68 In 2009, the International
Arbitration Act was amended, with section 12A now providing that a
court has the power to order interim measures.69 The position in
Singapore is therefore very similar to that applied in Hong Kong, whereby
court-ordered interim measures are available for ‘foreign’ arbitrations, but
such power is discretionary. Overall, and bearing in mind the caveats
above, the evolution of legislation and the courts’ position on granting
interim measures in respect of foreign arbitrations reflect an increasingly
supportive attitude towards arbitration, even where such arbitrations take
place outside of the court’s jurisdiction.
64
Transorient Shipping (n. 38).
65
Cap. 609, s. 61(2).
66
[2006] 2 SLR(R) 323 (Prakash J.).
67
Swift-Fortune (n. 44).
68
[2006] 3 SLR(R) 854 (Ang J) (noting, however, that under s. 4(10) of the Civil Law Act
(Cap. 43, 1999 rev. edn), the court would have such power only where it had personal
jurisdiction over the defendant and where ‘there is a recognisable justiciable right
between the parties’ under Singapore law).
69
Cap. 143A.

176 article 9 : i nterim measures
7. Contracting Out of Article 9

Article 9 is silent regarding the possibility of contracting out of it, and it is
not clear from the wording of the text whether an arbitration agreement
to exclude court-ordered interim measures can be valid. The advantages
of such an exclusion in an arbitration agreement are that the dispute
resolution procedure stays genuinely confidential, and even before the
arbitral proceedings commence, any possible interim measures shall be
administered discreetly outside of the judicial system.70
It was indicated in the travaux préparatoires that article 9 should
neither be construed as precluding such exclusion agreements, nor as
positively endorsing the use of such exclusions.71 In other words, article 9
is to be read as taking a neutral stance on this issue. It should be noted
that article 9 is directed at the courts instead of the parties. It only sets out
a broad principle that all interim measures of protection that may be
granted by local courts under their respective procedural laws are com-
patible with an agreement to arbitrate a dispute. It should thus be possible
to contract out of article 9 if a court attaches due weight to the overriding
principle of party autonomy – the recurrent theme of the Model Law. As
has been held by the Delhi High Court where the parties agreed to refer
their dispute to arbitration in Singapore and, for subsidiary matters, to
confer upon the courts in the Singaporean jurisdiction to resolve disputes
arising out of their arbitral agreement, the parties had validly excluded
the power to grant interim measures of protection from exercise by the
Indian courts in aid of their arbitration (which was, for those purposes,
considered a foreign arbitration).72
The implementation of article 9 by member States, or even other
arbitration rules, may also serve to limit the application of the principle
embodied in article 9. For example, although article 25.3 of the LCIA
Arbitration Rules similarly declares that applications for interim mea-
sures to local courts are permissible,73 it expressly states that the parties
are not entitled to apply for interim measures in relation to any order for
security of costs when the arbitration is underway, thus removing one
type of interim measure of protection from use by the parties where those
rules are applied.74
70
Binder (n. 53), para. 2–100.
71
UN Doc. A/40/17 (n. 16), para. 97.
72
Max India Ltd v. General Binding Corp., Delhi High Court, India (16 July 2009).
73
See LCIA Arbitration Rules (2014), art. 25(3).
74
Ibid., art. 25(4).

7. contra cting out of a rticle 9 177
In addition, when the parties have consented to the application of

expedited arbitration rules or emergency arbitration rules, court-ordered
interim measures may not be available to the parties if such interim or
urgent relief could have been granted by an expedited tribunal or an
emergency arbitrator. This issue has recently arisen in an LCIA arbitra-
tion seated in a non-model law jurisdiction (England). Specifically, in
Gerald Metals SA v. Timis,75 the English High Court had to determine
whether it had the power to grant interim relief (in the form of a world-
wide freezing order) despite the fact that interim relief could have instead
been granted by an expedited tribunal or an emergency arbitrator. In this
respect, it should be noted that the differences between article 9 of the
Model Law and section 44 of the English Arbitration Act are significant,
particularly section 44(3) and (5). Unlike article 9, section 44(3) requires
that the case is urgent and under section 44(5) that the arbitral tribunal or
other institution or person is either not competent or unable to act
effectively. In Gerald Metals, the applicant had previously applied to
the LCIA Court ‘for the appointment of an emergency arbitrator, with
a view to seeking emergency relief’, but the ‘LCIA rejected Gerald Metals’
application for the appointment of an emergency arbitrator’.76 Gerald
Metals then sought to obtain a freezing injunction from the English High
Court by invoking section 44 set out above. However, the court ruled that
it did not have the power to grant interim relief because Gerald Metals’
request for an emergency arbitrator under the LCIA Rules had already
been considered and rejected by the LCIA Court.
This decision of the English High Court in Gerald Metals is significant
because it may further limit the application of article 9 where the parties
have consented to the application of expedited arbitration rules or emer-
gency arbitration rules.
75
[2016] EWHC 2327 (Ch).
76
Ibid., para. 13.

Article 10
Number of Arbitrators
ilias bantekas
(1) The parties are free to determine the number of arbitrators.

(2) Failing such determination, the number of arbitrators shall be three.

Article 10 was very much influenced by the 2010 UNCITRAL Arbitration
Rules, article 7 (article 5 of the 1976 Rules) of which provides that in the
absence of party agreement ‘and if within 30 days1 after the receipt by the
respondent of the notice of arbitration the parties have not agreed that
there shall be only one arbitrator, three arbitrators shall be appointed’. This
default rule is the cornerstone of paragraph 2 of article 10 of the Model
Law.2 Even so, the UNCITRAL Working Group has never exhibited
significant consensus regarding the default option of three arbitrators. A
significant focus on cost, fairness and speed swayed several delegates to
propose the option of a sole arbitrator.3 The same arguments in favour of a
sole arbitrator were echoed in the latest revision to the UNCITRAL Rules.4
1
The Working Group expanded the time limit from fifteen to thirty days. See Report of
Working Group II (Arbitration and Conciliation) on the Work of Its Forty-Ninth Session,
UN Doc. A/CN.9/665 (30 September 2008), para. 65. It was also agreed that the period of
eight days, which was initially set forth, was insufficient for the parties to reach agreement
on the desired number of arbitrators. Report of the UNCITRAL, Summary of Discussion
of the Preliminary Draft, UN Doc. A/10017 (1975), para. 41, reprinted in (1975) VI
UNCITRAL YB 24, 29.
2
See A. Uzelac, ‘Number of Arbitrators and Decisions of Arbitral Tribunals’ (2007) 23 Arb.
Int. 573; M. F. Gusy, J. M. Hosking and F. T. Schwartz, A Guide to the ICDR Arbitration
Rules (Oxford University Press, 2011), pp. 55–64.
3
Summary Record of the Third Meeting of the Committee of the Whole (II), UN Doc. A/
CN.9/9/C.2/SR.3 (1976), para. 5.
4
Report of Working Group II (Arbitration and Conciliation) on the Work of Its Forty-Fifth
Session, UN Doc. A/CN.9/614 (5 October 2006), para. 60; Settlement of Commercial
Disputes: Revision of the UNCITRAL Arbitration Rules: Notes by the Secretariat, UN Doc.
A/CN.9/WG.II/WP.147 (3 August 2007), para. 34.
178

1 . b a c k g r o u n d a n d t ra v a u x p r épa ra toir es 179
Against the cost-based arguments, the travaux préparatoires of the Rules

demonstrate a more widespread inclination towards a default rule of three
arbitrators, chiefly because this was perceived as being consistent with
customary international law,5 because it enhances the panel’s degree of
competence and expertise (including of diverse commercial practices),6 all
of which are clearly imperative in complex cases.7 Divisions among
UNCITRAL delegates over a single or three-member default panel per-
sisted in both the 1976 drafting round as well as in the Rules’ latest revision,
although ultimately the three-member rule prevailed.
From the outset of the drafting of the Model Law, three default variants
were put forward: (1) a three-member panel; (2) a number equal to the
number of the parties, but increased by one in the event this turns out to
be even; and (3) a sole arbitrator.8 Despite these options, early on in the
discussions the current phrasing of article 10 remained largely uncon-
tested.9 At some point, Sudan put forward the proposition that the
default number, notwithstanding the principle of party autonomy,
should always be odd.10 This proposal did not survive. India supported
the view that the default rule should encompass a sole arbitrator for the
sake of economy and expediency.11 The 2006 amendments to the Model
Law, unsurprisingly, had no impact on article 10. However, as the chapter
goes on to demonstrate, the issues that divided delegates and other
stakeholders during the deliberations of the Model Law and the
Arbitration Rules have not been eliminated. Some national laws support
even-numbered panels (or at the very least are willing to tolerate them
5
UN Doc. A/10017 (1975), para. 39. To the degree that private practice in international
commercial arbitration may constitute state practice or opinio juris, it is worth mention-
ing that more than 60 per cent of ICC arbitrations involve submission agreements
appointing three arbitrators. See Gusy et al. (n. 2), pp. 58–59.
6
Ibid., para. 39.
7
UN Doc. A/CN.9/665 (n. 1), para. 58.
8
Note by the Secretariat: Model Law on International Commercial Arbitration, Draft
Articles 1–24, UN Doc. A/CN.9/WG.II/WP.37 (15 July 1982), reprinted in (1983) XIV
UNCITRAL YB 51, 53–54.
9
Redrafted Articles I to XII on Scope of Application, General Provisions, Arbitration
Agreement and the Courts and Composition of Arbitral Tribunal, UN Doc. A/CN.9/
WG.II/WP.45 (1983), reprinted in (1984) XV UNCITRAL YB 183, 186; see also
Composite Draft Text of a Model Law on International Commercial Arbitration: A
Note by the Secretariat, UN Doc. A/CN9/WG.II/WP.48 (1984), reprinted in (1984) XV
10
Organizations, UN Doc. A/CN.9/263.Add.1 (15 April 1985), para. 8.
11
Organisations, UN Doc. A/CN.9/263 (19 March 1985), 23.

180 ar tic l e 1 0: number of ar bit ra tor s
absent other procedural irregularities), while others strictly accept only

odd panels. In equal manner, the default three-member rule is not
universal. Moreover, few statutes cater for the number of arbitrators in
multi-party proceedings and this has caused problems in the practice of
arbitration. In general, article 10 of the Model Law, as supported by its
travaux, is a paradigm of flexibility and absolute deference to the party
autonomy rule, to which all default rules are subservient.
2. Paragraph 1
Paragraph 1 clearly defers to party autonomy. The parties are free to
determine the number of arbitrators of their choice, even if this is not
ultimately cost-effective or expedient. The same provision implies that
the parties are moreover free to select an even number of arbitrators (i.e.
two, four, etc.) and hence are not restricted to an odd number, which
would guarantee the efficiency of proceedings and avoid recourse to the
courts of the forum. This will be discussed in more detail below.
2.1 Odd and Even Number of Arbitrators

If party autonomy is to be meaningful, it should be absolute, especially
where other rules are available, if required, to supplement the wishes of the
parties.12 Paragraph 1 does not impose a particular number of arbitrators,
nor does it impose an odd over an even number, despite the fact that the
default option in paragraph 2 favours an odd number. This result is
confirmed by the travaux of the Model Law.13 The rationale justifying an
odd number is the avoidance of unnecessary impasses in situations of
disagreement between party-appointed arbitrators. It is precisely for this
reason that several institutional rules14 and legal systems, such as article
1451(2) of the French CCP, provide that even where the parties’ express
agreement provides for an even number, an additional arbitrator shall be
appointed lest the agreement is invalid and the award set aside.15 This does
12
Electra Air Conditioning BV v. Seeley Intl Pty Ltd [2008] FCAFC 169; The Underwriting
Members of Lloyd’s Syndicates (revised 5 February 2003), [2002] NSWSC 1260.
13
UNCITRAL, Analytical Commentary on the Draft Text of the Model Law, UN Doc. A/
CN.9/264 (25 March 1985), 26–27.
14
e.g. Vietnam International Arbitration Centre Rules, art. 10; DIS Rules, s. 3.
15
Equally, Austrian CCP, art. 586(1); Italian CCP, art. 809; Portuguese AL, art. 8(1); Romanian
CCP, art. 586(1); Saudi AA, art. 13; Spanish AA, art. 12; Hungarian AA, art. 13(1), (2). If the
parties go ahead with proceedings where the number of arbitrators is even, the ensuing award
may validly be set aside by the courts in accordance with art. 55 of the Hungarian AA.

3 . pa rag rap h 2 181
not, however, constitute a general principle because it is assumed that

parties to transnational contracts are rational and capable creatures and
their intention is not to frustrate the arbitral process. Rather, they
naturally presume that the party-appointed arbitrators will ultimately
agree among themselves the outcome of the dispute or that in any event
they will effectively exercise the role of chairman in casting the deciding
vote; or at the very least that other secondary rules will undertake this
task.
In the eventuality that an award is rendered by an even number of
arbitrators in a seat that specifically requires an odd number, the award
may be set aside from a formalistic legal perspective. However, given that
the rationale underlying odd panels is to enhance party autonomy and
not to obfuscate or restrict it, the more sensible solution would be to
allow such awards where both parties freely participated in the process
and no other irregularities arose. At the very least, there are legitimate
estoppel grounds for such an argument and it is in any event wholly
consistent with the travaux and spirit of the Model Law and the party
autonomy principle (the latter as far as non-Model Law States are con-
cerned).16 In MMTC v. Sterlite Industries (India) Ltd, the Indian Supreme
Court upheld the parties’ choice of an even number of arbitrators even
though section 10(1) of the Indian Arbitration and Conciliation Act
prohibited the appointment of an even number of arbitrators. The
Supreme Court held that an agreement in favour of an even panel did
not invalidate the submission agreement, deferring to the predominance
of party autonomy.17
3. Paragraph 2
The default rule in paragraph 2 is that where the parties have failed to
expressly state the number of desired arbitrators, they shall be three.
There is a clear divide on this issue, with common law jurisdictions
16
In the latest revision to the UNCITRAL Rules, a proposal to include a provision was
made whereby the parties could decide a number of arbitrators other than one or
three, thus recognising the ability of the parties to choose an even number. See
Settlement of Commercial Disputes, Revision of the UNCITRAL Arbitration Rules:
Note by the Secretariat, UN Doc. A/CN.9/WG.II/WP.145 (6 December 2006), 13.
17
MMTC v. Sterlite Industries (India) Ltd, AIR (1997) SCC (India) 605; followed in Natl
Council of YMC v. Sudhir Chandra Datt, Madhya Pradesh High Court judgment (12
September 2012); Narayan Prasad Lohia v. Nikunj Kumar Lohia, Indian Supreme Court
judgment (20 February 2002) (2002) AIR 1139; M/S Rapti Contractors v. Reliance Energy
Ltd and Others, Delhi High Court judgment (10 February 2009).

182 ar tic l e 1 0: numb er of a rb itr at ors
opting for a sole arbitrator,18 whereas their civil law counterparts are
inclined towards the number adopted in article 10(2) of the Model Law.19
In Itochu Corp. v. Johann v. MK Blumenthal GMBH Co. & KG and
Another, the parties had expressly stipulated in a letter of guarantee
(which was effectively their submission agreement) the appointment of
‘arbitrators’ without specifying their preferred number. Given that the lex
arbitri was English law, the Commercial Court and later the Court of
Appeal were asked to decide whether the express preference for multiple
arbitrators (by way of the letter ‘s’) but without any further mention of a
precise number triggered the default rule of a sole arbitrator under
section 15(3) of the English AA. The Court of Appeal, siding with the
judgment of the Commercial Court, held that the default rule prevailed.20
No doubt, the failure of the parties to designate a precise number of
arbitrators – and in order to avoid the operation of the lex arbitri’s default
rule – may be remedied by their chosen institutional rules. Unlike the
Model Law, however, the rationale of institutional rules in the absence of
party agreement is to allow tribunals a wide margin of discretion based
on the particular circumstances of each case. This is reflected, for exam-
ple, in article 12(3) of the International Chamber of Commerce (ICC)
Arbitration Rules.21 This is certainly the most sensible option because a
strict default rule may ultimately lead to injustices, particularly if the
nature and size of the case does not justify three arbitrators.
The limited available judicial practice of Model Law jurisdictions
suggests that where the forum has adopted the default three-arbitrator
rule in its domestic law, its courts will be unable to modify it on other
compelling grounds, such as cost-effectiveness or proportionality.22 This
is sensible because it would prejudice party autonomy in favour of
judicial discretion and in any event it is assumed that the parties can
always reach agreement (even at the last minute) and avoid the applica-
tion of the default rule. Moreover, their counsel is, or should be, well
aware of the default rule under the pertinent lex arbitri.
18
English AA, s. 15(3); US FAA, s. 5; Indian Arbitration and Conciliation Act, art. 10(2);
Singapore International Arbitration Act, s. 9; Hong Kong Arbitration Ordinance, art. 8.
19
Belgian Judicial Code, art. 1681(3); Austrian CCP, s. 586(2); Danish Arbitration Act, s.
10(2).
20
Itochu Corp. v. Johann v. MK Blumenthal GMBH Co. & KG and Another [2012] EWCA
Civ. 996.
21
See, equally, ICDR Rules, art. 11; LCIA Arbitration Rules, art. 5(8), (9).
22
Thésaurus Inc. v. Xpub Média Inc. [2007] QCCQ 10436 (CanLII).

3.1 More than Three Arbitrators

It is highly exceptional for parties, even in complex multi-party proceed-
ings, to agree to a panel of more than three arbitrators. This not only
raises costs, but may produce delays related to their appointment or as
regards coordination. Even in investment arbitration, the parties typi-
cally appoint a panel of three arbitrators. Five or more arbitrators are
usually reserved, but not always, in certain inter-State disputes under
rules agreed in treaty form.23 Moreover, it is also normal practice for
boundary disputes administered ad hoc or by the Permanent Court of
Arbitration (PCA) for the parties to appoint at least five arbitrators.24
3.2 Number of Arbitrators in the Event of Multiple Parties

Although domestic arbitral statutes have not as a rule dealt with this
issue,25 it has caused considerable agitation to the international arbitra-
tion community and has subsequently resulted in the extensive redrafting
of several institutional rules. In the Dutco case, Dutco had entered into an
agreement with a consortium of two German companies and following a
dispute commenced arbitral proceedings against them under the ICC
Rules in France. As this was meant to be a tribunal composed of three
arbitrators, the ICC requested the consortium to designate its preferred
arbitrator so that the two party-appointed arbitrators could go on to
choose the president. Alas, each of the parties to the consortium wanted
to appoint their own arbitrator, but reluctantly agreed to appoint one
jointly, reserving their right to subsequently challenge the ICC’s decision
on the ground that it deprived them of the right to choose an arbitrator of
their choice. The argument certainly makes sense from a strictly legal
perspective, given that unlawful arbitral composition is a ground for
setting aside26 and non-enforcement of awards,27 but at the same time
it is clearly impractical. In the case at hand, the French Court of Cassation
23
In Ch. 20 of NAFTA, five arbitrators may be appointed; UNCLOS, Annex VII, art. 3 and
Annex VIII, art. 3.
24
See Government of Sudan v. The Sudan People’s Liberation Army/Movement (Abyei
arbitration), PCA, Final Award (22 July 2009), where five arbitrators were appointed on
the basis of the parties’ arbitration agreement of 7 July 2008.
25
Exceptionally, art. 556(3) of the Romanian CCP stipulates that if there are multiple
claimants or multiple respondents, the parties having common interests shall appoint a
joint (one) arbitrator; equally, Maltese AA, art. 21A(1); Portuguese AL, art. 11.
26
Model Law, art. 34(2)(a)(iv).
27
Ibid., art. 36(1)(a)(iv).

184 ar tic l e 1 0: number of ar bit ra to rs
approached the issue from a public policy perspective and held that the
absence of equality in the appointment of arbitrators sufficed to set the
award aside.28 As a direct result of the Dutco judgment, the ICC swiftly
amended its Rules in order to dispel any uncertainty for future litigants.
This is now reflected in article 12(6) to (8) of the ICC Rules.29 In this
manner, it is now clear that several parties to a single arbitration agree-
ment, whether as claimants or respondents, must nominate and appoint
a single (joint) arbitrator. Although some commentators suggest, albeit
faintly, that this ‘restriction’ may lead to enforcement failure in some
countries, allegedly because of the deprivation of the right to appoint
one’s preferred arbitrator (unlawful composition),30 this is highly unli-
kely. By designating the ICC or other institutional rules31 in their arbi-
tration agreement, the parties expressly accept that their choice of
arbitrator will be undertaken by joint, mutual consent and that in case
of disagreement the arbitral institution will make the appointment on
their behalf.32 The parties to a multi-party submission agreement may
choose their method of appointment,33 rather than rely on their chosen
institutional rules or the default rules of the lex arbitri.
An extension of these developments clearly suggests that where the
parties have agreed on the number of arbitrators but are unable to agree
on their persons, the court upon which this task befalls cannot increase or
28
BKMI and Siemens v. Dutco, French Cassation Court judgment (7 January 1992), (1993)
18 YB Com. Arb. 140; see in response to Dutco, Report of Working Group II (Arbitration
and Conciliation) on the Work of Its Forty-Sixth Session, UN Doc. A/CN.9/619 (20
March 2007), para. 90.
29
The same default rule is enunciated in art. 8 of the LCIA Rules; art. 10 of the Portuguese
AL stipulates that as a matter of default the ‘court may appoint all arbitrators and indicate
which one of them shall be the chairman, if it becomes clear that the parties that failed to
jointly appoint an arbitrator have conflicting interests regarding the substance of the
dispute, and in such event the appointment of the arbitrator meanwhile made by one of
the parties shall become void’.
30
New York Convention, art. V(1)(d).
31
See SCC Rules, art. 13(4).
32
Article 816 quater (1) of the Italian CCP clearly states that should more than two parties
be bound by the same arbitration agreement each party may request that all or some of
them be summoned in the same arbitral proceedings and may by common agreement
appoint an equal amount of arbitrators. If the parties fail to reach a common agreement as
to the joinder of their cases, there will be as many arbitrators as there are individual
respondents (paragraph 2). Where, however, a joinder of the cases is necessitated by law
and the parties do not reach mutual agreement on a joinder, the arbitration cannot
proceed (paragraph 3). See I. Bantekas, An Introduction to International Arbitration
(Cambridge University Press, 2015), pp. 96–97.
33
Model Law, art. 11(2); UNCITRAL Arbitration Rules, art. 10(2).

4 . t run ca te d t rib un al s 185
decrease the parties’ expressly chosen number. In BP Exploration Libya

Ltd v. ExxonMobil Libya Ltd, the parties had opted for three arbitrators,
each choosing its own, all of which would then elect the chairman.
However, there were three parties in the submission agreement and
following the selection of three arbitrators (which meant that there was
no room for a chairman) the dispute as to the tribunal’s constitution was
decided by the district court, which went on to direct the parties to
proceed with a five-member panel. This decision was reversed upon
appeal on the ground that the courts cannot ignore the parties’ preferred
number.34
4. Truncated Tribunals
The principles emanating from article 10 of the Model Law apply mutatis
mutandis to the appointment of arbitrators in situations of truncated
tribunals under article 15 of the Model Law. It suffices to say here that
although article 15 of the Model Law stipulates that a substitute arbitrator
may be appointed, if the agreement to arbitrate specifically named the
parties’ chosen arbitrators or their number thereof, a breach of the
agreement might occur where the parties opt to continue the proceedings
solely with the remaining arbitrators (truncated tribunal) or without one
or more of the originally named arbitrators.35 An increasing number of
institutional rules cater for truncated proceedings and unless there is
disagreement between the parties there is little reason why truncated
awards should be viewed as suffering from a defect that renders them
unenforceable.36 A string of cases suggests that it is only where the
operation of a truncated tribunal is deemed contrary to the (constitu-
tional) principle of equal treatment that an award may be set aside.37 This
will only affect the parties’ choice of number if the truncated tribunal
34
BP Exploration Libya Ltd v. ExxonMobil Libya Ltd, 689 F.3d 481 (5th Cir. 2012).
35
Articles 15 of the Model Law and 56 of the ICSID Convention do not explicitly reject the
proposition that a truncated tribunal might render an award, but envisage that the
truncated period will be short, the vacancy filled as soon as possible by a substitute
arbitrator.
36
Himpurna California Energy Ltd v. Indonesia, final award (16 October 1999), (2000) XXV
YB Com. Arb. 186, 194, is considered a landmark case in favour of the validity of
truncated tribunal awards. There, the tribunal emphasised that it was not only entitled,
but obliged, to continue.
37
ATC-CFCO v. Compagnie Minière de l’Ogooue – Comilog SA [1998] Rev. Arb. 131; First
Inv. Corp. of the Marshall Islands v. Fujian Mawei Shipbuilding Ltd, 858 F. Supp. 2d 658
(ED La. 2012).

186 ar tic l e 1 0: number of ar bit ra tor s
were to resume the proceedings with a number not specified in the

submission agreement and to which the parties disagreed.38
In the IBM/Fujitsu arbitration, which lasted almost ten years, the
parties had agreed on the appointment of three arbitrators. In the course
of the proceedings one of the arbitrators retired, yet the parties chose not
to appoint a replacement, but to proceed with an even number because
such a result was warranted by the amount of time they had invested in
the case.39 Given that such an arrangement suited their needs and
aspirations, there was never any claim that the award suffered from any
irregularity arising from the tribunal’s numerical composition.
38
By analogy, the Greek Areios Pagos in judgment 329/1977 accepted that where the parties
had agreed to two arbitrators and subsequently one of them failed to appoint the second
arbitrator, the award of the sole arbitrator was valid.
39
C. Bühring-Uhle, ‘The IBM/Fujitsu Arbitration: A Landmark in Innovative Dispute
Resolution’ (1991) 2 Am. Rev. Intl Arb. 113.

Article 11
Appointment of Arbitrators
s ha h l a a l i an d o d y s s e a s g . r e p o u s i s
(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,
(a) in an arbitration with three arbitrators, each party shall appoint
one arbitrator, and the two arbitrators thus appointed shall
appoint the third arbitrator; if a party fails to appoint the
arbitrator within thirty days of receipt of a request to do so
from the other party, or if the two arbitrators fail to agree on
the third arbitrator within thirty days of their appointment, the
appointment shall be made, upon request of a party, by the court
or other authority specified in article 6;
(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 party fails to act as required under such procedure, or
(a) the parties, or two arbitrators, are unable to reach an agreement
expected of them under such procedure, or
(b) a third party, including an institution, fails to perform any func-
tion 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
187

188 a r t i c l e 1 1 : a p po i nt m e n t of ar b i t r a tor s
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.

In the early drafting stages, it was noted that the ultimate aim of the
Model Law was to establish uniform standards of arbitral procedure.1 It
was further noted that some national laws allowed judicial control over
the constitution of the arbitral tribunal and a number of States imposed
nationality restrictions on the appointment of arbitrators.2 The parties’
expectations in the arbitration agreement in relation to the appointment
procedure had previously often been unnecessarily and unduly frustrated
by conflicting national law provisions.3 Against this background, a set of
widely accepted standard rules to govern the composition of an arbitral
tribunal was intrinsically necessary in order to facilitate the smooth
operation of cross-border commercial arbitration. Further to the issue
of uniformity, another significant aim in the drafting of article 11 was to
establish appointment procedures that would be as comprehensive and
complete as possible.4 It was important to provide widely accepted uni-
form standards in international arbitration cases, and it was thus sug-
gested that the Model Law should also tackle issues not otherwise
addressed in the 1966 Strasbourg Uniform Law on Arbitration.5 For
example, the Model Law could be drafted to address the qualifications
of an arbitrator,6 although only very general rules of minimal practical
value could actually be included, taking into consideration that it would
be difficult to reach a broad international consensus on detailed issues
such as whether some specific category of persons (such as, e.g., judges)
1
UNCITRAL, Note by the Secretariat: Further Work in respect of International
Commercial Arbitration, UN Doc. A/CN.9/169 (11 May 1979), para. 6.
2
Ibid., para. 8.
3
UNCITRAL, Report of the Secretary-General: Possible Features of a Model Law on
International Commercial Arbitration, UN Doc. A/CN.9/207 (14 May 1981), para. 10.
4
Ibid., para. 23.
5
European Convention providing a Uniform Law on Arbitration, European Treaty Series
No. 56.
6
UN Doc. A/CN.9/207 (n. 3), para. 23.

2. pa ragr ap h 1 189
ought to be excluded from serving as arbitrators.7 In the process of

developing the Model Law during the 1980s, the discussions during the
drafting of article 11 primarily concerned practical matters in the
appointment procedure – such as the adoption of a party-arbitration
system; providing for supplementary rules as to a reserve mechanism;
and the problems of equality and arbitrator qualifications. The Working
Group agreed that the Model Law should only incorporate a general
formulation as to the qualifications of an arbitrator8 and the requirement
of equality was referred to in article 12 (Grounds for Challenge). Other
such matters concerning arbitration are now well addressed by the Model
Law in its current form. Article 11 was not amended in 2006, and thus
case law pre-dating the 2006 amendments to the Model Law remain
relevant and valid interpretations of article 11.
Further references to the travaux préparatoires and background to
article 11 are made in the sections below and, hence, unlike all the
other chapters in this volume, the travaux section only provides a brief
summary of the pertinent discussions.
2. Paragraph 1
Paragraph 1 prohibits discrimination based on nationality when it comes
to the ability of a person to act as arbitrator. Paragraph 1 explicitly states
that no person shall be disqualified by law (i.e. by national law in the
implementation of the Model Law by member States) from being
appointed as an arbitrator by virtue of his or her nationality. The parties
(or trade associations, or arbitral institutions, as the case may be) are,
however, allowed to agree upon or impose such restrictions based on
nationality if they deem it necessary for the purposes of arbitration. As
some States may preclude non-nationals from acting as arbitrators, even
in international cases seated in the jurisdiction, this paragraph is
‘designed to overcome such national bias on the part of the legislator’,9
and it is clear that this provision is primarily directed at State legislatures
in the implementation of the Model Law, rather than the parties.
To establish international arbitration, it is critically important to
explicitly allow parties to appoint non-nationals as arbitrators in
7
Ibid., para. 64.
8
9
Commercial Arbitration, UN Doc. A/CN.9/264 (25 March 1985), art. 11, para. 1.

190 article 11: appointment of arbitrators
international commercial cases – or perhaps more importantly, to the

greatest extent possible, abolish national hurdles aimed at preventing
non-nationals from serving as arbitrators in such cases. This not only
promotes the highest standards of arbitration in allowing arbitrators of
all nationalities to serve, but also the spread of commercial arbitration
knowledge and higher levels of consistency in commercial arbitration.
The 1966 Strasbourg Convention10 required all contracting States to
abolish laws that prevented non-nationals from serving as arbitrators.
Similarly, article III of the European Convention on International
Commercial Arbitration expressly permits the choice of foreign nationals
as arbitrators.11
The Working Group noted that such a principle should be clearly
addressed among national legislators, as in some instances parties had
been prevented from appointing foreign nationals as arbitrators.12 In the
drafting stage, it was argued that the first subparagraph should be deleted
from article 11 as it would have limited effect in States where persons of
certain nationalities were not legally allowed to serve as arbitrators.13 The
Working Group, in response, stated that the Model Law was not a
binding convention, and it was thus possible that some States might
choose to reflect their own policies in their national legislation.14 The
final version of paragraph 1 reflects the status of these provisions as a
‘Model’ Law.
The fourth draft of paragraph 1 included the words ‘or citizenship’
after ‘nationality’,15 but the words ‘or citizenship’ were later deleted
because many legal systems utilise the term ‘nationality’ only.16 The
term ‘nationality’ is not defined, but the Working Group has indicated
10
See European Convention providing a Uniform Law on Arbitration, ETS No. 56, art. 2.
11
‘In arbitration covered by this Convention, foreign nationals may be designated as
arbitrators’ (art. III, ‘Right of foreign nationals to be designated as arbitrators’,
European Convention on International Commercial Arbitration, 21 April 1961).
12
Work of Its Fourth Session, UN Doc. A/CN.9/232 (10 November 1982), para. 74.
13
Work of Its Sixth Session, UN Doc. A/CN.9/245 (29 August–9 September 1983),
para. 193.
14
Ibid.
15
UNCITRAL, Working Papers Submitted to the Working Group at Its Seventh Session,
Composite Draft Text of a Model Law on International Commercial Arbitration, UN
Doc. A/CN.9/WG.II/WP.48 (6–17 February 1984).
16
Work of Its Seventh Session, UN Doc. A/CN.9/246 (6 March 1984), para. 31.

2. p ar agra ph 1 191
that ‘nationality’ should be given a wide interpretation that embraces

citizenship to fulfil article 11’s aim of preventing discrimination.17
Some academics are of the view that paragraph 1 may be miscate-
gorised, as it relates to the personal characteristics of an arbitrator,
whereas the other provisions of article 11 are procedural in their
nature.18 In fact, Bulgaria, Egypt, Hungary and Peru are all examples
of jurisdictions that have placed paragraph 1 either in local legislation
corresponding to article 10 of the Model Law, or in a separate provision
altogether. It is also notable that a number of jurisdictions completely
omit the stipulations of paragraph 1 in adopting or implementing the
Model Law at the national level.19 For example, in Germany, paragraph
1 was omitted because it was unconnected with the procedure of
appointment, in addition to the perception that restrictions on persons
who were eligible to serve as arbitrators was not an issue in that
country.20
It also is interesting to note that the UK Supreme Court in Jivraj
rejected the argument that EU and UK employment legislation forbids
parties from entering into agreements imposing religious, and by neces-
sary extension nationality, requirements.21 In that case, Mr Jivraj and Mr
Hashwani had entered into a joint venture agreement, which contained
an arbitration clause providing that in the event of a dispute the parties
would have recourse to a panel of three arbitrators, each of whom should
be a respected member of the Ismaili community, of which Mr Jivraj and
Mr Hashwani were members. The Supreme Court agreed with the idea
that when the parties agree that a person may be precluded by reason of
his nationality from acting as an arbitrator, this will not necessarily
violate employment laws or regulations.
Other than a tailor-made arbitration agreement, the most usual way
parties ‘otherwise’ agree is by accepting to conduct the arbitration under
a set of arbitration rules. For example, the LCIA Arbitration Rules
provide that ‘[w]here the parties are of different nationalities, a sole
arbitrator or the presiding arbitrator shall not have the same nationality
17
Ibid.
18
Law Jurisdictions (Sweet & Maxwell, 2010), p. 109.
19
Including Quebec (Canada), Germany, Hungary, the Islamic Republic of Iran, Nigeria,
Sri Lanka and the Australian Capital Territory.
20
K.-H. Bockstiegel, S. Kroll and P. Nacimiento (eds), Arbitration in Germany: The Model
Law in Practice (Kluwer, 2007), p. 192.
21
Jivraj v. Hashwani [2011] UKSC 40.

192 a r t i c l e 1 1 : a p po i nt m e n t of ar b i t r a t o r s
as any party unless the parties who are not of the same nationality as the
arbitral candidate all agree in writing otherwise’.22
3. Paragraph 2
Paragraph 2 deals with the parties’ autonomy to agree upon the procedure
for the selection of arbitrators. Specifically, paragraph 2 empowers parties
to agree upon their own appointment procedure for arbitrators, but the
exercise of this freedom is subject to the default procedures established
under the provisions of article 11. In such instances, where the default
procedures become engaged, the court, or other authority specified under
article 6, is empowered to take the necessary measures to overcome the
parties’ deadlock in the appointment process. The parties are free to
appoint ‘the arbitrators directly, either before or after the dispute has
arisen’, and are also ‘free to delegate to an appointing authority certain
tasks in relation to the constitution of the arbitral tribunal’.23 Indeed, by
virtue of article 2(b), the parties may choose to authorise a third party to
decide on the arbitrator appointment procedure. This part of article 11
guarantees the parties’ extensive freedom in the procedure of choosing
their arbitrators, as party autonomy is the governing principle behind the
constitution of the arbitral tribunal under the Model Law.
Model Law jurisdictions typically enact this provision without any
modifications.24 Party autonomy is similarly a tenet of non-Model Law
jurisdictions. The 1996 English Arbitration Act expressly confirms this
principle,25 as does the Swiss Law on Private International Law.26 Similar
provisions may be found in several European codes, such as the French
and German codes of civil procedure.27
3.1 Procedures for Appointing Arbitrators

In practice, when setting out to appoint a panel or sole arbitrator, parties
select an institutional set of arbitration rules, or a set of ad hoc rules
22
LCIA Arbitration Rules (2014), art. 6(1). See also ICC Arbitration Rules (2017), art. 13(5);
HKIAC Arbitration Rules (2013), arts 11(2)–(3).
23
UNCITRAL, ‘2012 Digest of Case Law’ (2012), p. 67.
24
See e.g. Hong Kong Arbitration Ordinance 2013, art. 34C(1); Canadian Commercial
Arbitration Act 2013, art. 11(2); Singapore International Arbitration Act 2012, s. 9A; New
Zealand Arbitration Act, Sch. 1, art. 11(2).
25
Arbitration Act 1996, s. 16(1).
26
Swiss Law on Private International Law, art. 179.
27
French Code of Civil Procedure, art. 1508; German ZPO, s. 1035(1).

(typically the UNCITRAL Arbitration Rules) and may additionally select

to specify such issues as the number of arbitrators and the procedure for
appointing the presiding arbitrator. Failing such agreement, and assum-
ing that the parties have agreed to conduct the arbitration under a
specified set of arbitration rules, the default procedures enshrined in
such rules will apply. Under most institutional rules, the administrative
authority and its institutional organs (e.g. the ICC or LCIA Courts) act as
default appointing authorities and may also decide upon such issues as
the number of arbitrators.28 For example, the ICC Arbitration Rules
provide that ‘[w]here the parties have not agreed upon the number of
arbitrators, the Court shall appoint a sole arbitrator, save where it appears
to the Court that the dispute is such as to warrant the appointment of
three arbitrators’.29 Conversely, the default Model Law position is three
arbitrators.30
Typically, under most arbitration rules, including the UNCITRAL
Arbitration Rules, the default number of arbitrators is three. However,
unlike most institutional rules, the UNCITRAL Arbitration Rules pro-
vide that if the parties fail to make an appointment or if the co-arbitrators
fail to appoint the presiding arbitrator, a party may ask the Secretary-
General of the Permanent Court of Arbitration (PCA) to designate the
appointing authority.31 Typically, the PCA designates as appointing
authority prominent arbitrators and, in some cases, International Court
of Justice (ICJ) judges. This procedure is often time consuming, hence
most institutional rules designate the institutional organ and procedure
through which an arbitrator is appointed, without having to first establish
the authority that will make the appointment.
When under the default mechanism chosen by the parties, the co-
arbitrators select the presiding arbitrator,32 the parties typically confer
with their appointees and propose several candidates. The co-arbitrators
then choose the presiding arbitrator, or failing an agreement, the task is
referred to the designated body or national court. The parties may agree to
other more tailor-made procedures, such as a ballot or ranking procedures
or a combination thereof. In a ballot procedure, the co-arbitrators or the
arbitral institution may propose potential appointees and request the
28
ICC Arbitration Rules (2017), art. 13; LCIA Arbitration Rules (2014), arts 5ff.
29
ICC Arbitration Rules (2017), art. 12(2).
30
Model Law, art. 10(2).
31
UNCITRAL Arbitration Rules (1976), arts 6–7; UNCITRAL Arbitration Rules (2010),
art. 6.
32
See e.g. UNCITRAL Arbitration Rules (2010), art. 9(1).

194 a r t i c l e 1 1 : a p poi n t m e n t o f ar b i t r a t o r s
parties to advise which, if any, of these appointees they will accept. A party
is not required to share its selection with the other party. If the parties agree
on more than one proposed appointee, the co-arbitrators or the institution
select one of those persons and inform the parties of the selection. If the
parties do not agree on any of the appointees proposed in the list, a
presiding arbitrator (who will not be any of the candidates on the list) is
selected. In the ranking procedure, each party can strike a certain number
of potential appointees and rank the remaining appointees. The candidate
with the best ranking is appointed.
3.2 Limits of Autonomy

It should be noted that this paragraph does not set out express limita-
tions on the parties’ freedom to formulate an appointment procedure.
The words ‘subject to the provisions of paragraphs (4) and (5) of this
article’ only provide for subsequent court or other authorised institu-
tions’ intervention where the agreed-upon appointment procedure or
process fails to result in appointment or constitution of the arbitral
tribunal. In fact, the Working Group noted that the Model Law as a
whole implicitly imposes certain limitations on the parties’ autonomy
in respect of the appointment of arbitrators33 – articles 12 and 34 of the
Model Law, for example, are two such limitations; under article 12,
arbitrators appointed by the parties should be independent and
impartial.34
At the Working Group stage, it was discussed at length whether or not an
express provision to invalidate an appointment procedure if, or to the
extent that, the appointment put either party in a ‘predominant position’
or if it gave either party a ‘manifestly unfair advantage’, ought to be added to
the provisions of article 11.35 Such a provision was not ultimately adopted
because, among other factors, the wording was too vague and could
33
34
Under art. 12 of the Model Law, an arbitrator may be challenged on the grounds that
circumstances exist that give rise to justifiable doubts as to their impartiality or indepen-
dence (art. 12(2)). Disclosure is required to be made by a person who is approached in
respect of appointment (art. 12(1)).
35
First Draft, Note by the Secretariat: Model Law on International Commercial Arbitration,
Draft Articles 1–24, UN Doc. A/CN.9/WG.II/WP.37 (15 July 1982), art. 13(2); Second
Draft, Note by the Secretariat: Model Law on International Commercial Arbitration:
Revised Draft Articles I to XXII, UN Doc. A/CN.9/WG.II/WP.40 (14 December 1982),
art. VI(2); UN Doc. A/CN.9/233 (n. 33), para. 89.

4 . p ar agr ap h 3 195
potentially lead to controversy, dilatory tactics and ‘a misinterpretation

which could endanger well-established and recognized appointment prac-
tices’.36 However, the Working Group made it clear that the decision not to
adopt such a requirement under article 11 was not to be construed as
support for any unfair appointment practices or procedures.37
A German court has held that where the parties have agreed upon the
appointment procedure by way of adopting a particular set of arbitration
rules to be applied to the arbitration of their dispute, a State court will
only intervene where the arbitration rules do not deal with an appoint-
ment procedure, or where the specified institution fails to appoint an
arbitrator.38 The Supreme Court of India has held that an appointment
procedure agreed upon by the parties may only be set aside in exceptional
cases, so as to ensure certainty of arbitral agreements and the expedi-
tiousness and effectiveness of the arbitral process.39 In another decision,
the same court held that an agreement to appoint a specific person as an
arbitrator may only be disregarded or set aside if there are justifiable
doubts as to that person’s impartiality or independence.40 In this regard,
it may be concluded that the parties’ autonomy is not entirely absolute
and may still be subject to court intervention in certain situations,
including the failure of the agreed procedure, or challenges to the poten-
tial arbitrator under article 12.
4. Paragraph 3
Paragraph 3 deals with default appointment procedures in the event that
the parties have not agreed upon an appointment procedure. Paragraph 3
(a) lays out a set of procedures where the arbitral tribunal is composed of
three persons, and paragraph 3(b) equally does so in respect of the
appointment of a sole arbitrator. Paragraph 3(b) only applies where the
parties have agreed to appoint a sole arbitrator under article 10, but have
failed to provide for a procedure by which the single arbitrator is to be
appointed.
36
UN Doc. A/CN.9/233 (n. 33), para. 90.
37
Ibid., para. 91.
38
Oberlandesgericht Dresden, 28 February 2001, 11 Sch. 1/01.
39
Union of India v. M/S Singh Builders Syndicate, Supreme Court, India (26 February 2009).
In this case, the court set aside the agreement in view of several unsuccessful attempts to
establish an arbitral tribunal under the agreed terms.
40
Indian Oil Corp. Ltd and Others v. M/S Raja Transport Private Ltd, Supreme Court, India
(2009) 8 SCC 520.

196 ar ti cle 11: appointment of arbitrators
The first draft of paragraph 3 had included mechanisms for the

appointment of arbitrators in other circumstances,41 but the Working
Group was of the opinion that it would be impractical to attempt to
provide default appointment procedures for all possible forms of arbitra-
tion.42 As a result, only the two existing subsections were retained in the
final form of article 11, out of consideration for the fact that one- and
three-person tribunals are the most prevalent constituent forms of inter-
national arbitration.43 As article 11 does not deal with default procedures
for other forms of arbitral tribunals of different compositions, the
appointment of arbitrators in such situations would likely have to be
governed by relevant domestic legislation, if any, and/or the courts in
general.44
4.1 Paragraph 3(a)

As alluded to above, the parties will frequently agree to conduct the
arbitration pursuant to an institutional or ad hoc set of arbitration
rules, which they incorporate by reference into their arbitration agree-
ment (e.g. arbitration under the ‘ICC Rules’ or the ‘UNCITRAL
Arbitration Rules as in force’).
Paragraph 3 sets out from the premise that there is no disagreement as
to the number of arbitrators, or such disagreement has been resolved by
application of the default rules (article 10 of the Model Law or any other
agreed rule) but there is no agreed appointment procedure. Therefore,
under paragraph 3(a), when the tribunal is to be composed of three
arbitrators, each party appoints one arbitrator and the co-arbitrators
appoint the presiding arbitrator. When either one party fails to appoint
an arbitrator or when the co-arbitrators fail to appoint the presiding
arbitrator, a party may request the court or other authority specified in
article 6 to appoint the arbitrators not yet appointed. Similar provisions
are included in the UNCITRAL Arbitration Rules as well as institutional
rules.45
41
Namely in an arbitration with a number of arbitrators that is equal to the number of the
parties or a multiple thereof, and in a multi-party arbitration with one arbitrator more
than there are parties.
42
43
Ibid.
44
45
UNCITRAL Rules (2010), art. 9(2); UNCITRAL Rules (1976), art. 7(2); LCIA Arbitration
Rules (2014), art. 7(2); ICC Arbitration Rules (2017), art. 12(4).

Several cases demonstrate the circumstances under which a court will

or will not involve itself in the appointment process. In a German
decision, the court dismissed an application for the appointment of an
arbitrator because there was no valid arbitration agreement between the
parties in the first place.46 In another German decision, the court refused
a claimant’s request for the appointment of an arbitral tribunal due to the
fact that the arbitration clause was unclear as to which of the two
chambers of handicraft had been chosen, and thus the arbitration agree-
ment was declared void on grounds of uncertainty.47
A Kenyan case suggests that where there is an application for court
assistance in the appointment procedure, the parties should suggest
suitable candidates for arbitrators to the court because it is not the court’s
function to determine who should be appointed.48
In a Hong Kong decision, where the parties had failed to agree upon a
procedure for the appointment of an arbitrator, the court appointed an
arbitrator pursuant to paragraph 3(a) of the Model Law as there was
prima facie evidence of an arbitral dispute between the parties.49 On
appeal, the decision was upheld and it was further found that paragraph 3
would be engaged only when the parties could not agree upon an
appointment procedure. Paragraph 3 would not be engaged where the
parties did not agree on whether the arbitration should take place at all,
or if the parties did not agree that the arbitration should involve a specific
party.50
The time limits in paragraph 3(a) are the same as those found under
article 7 of the 1976 UNCITRAL Arbitration Rules. Paragraph 3(a) is
potentially misleading as it may be read to suggest that after the expiry of
the specified period of thirty days, the parties may no longer appoint an
arbitrator, or that the two appointed arbitrators may no longer appoint
the third arbitrator.51 Such a reading would unnecessarily hinder the
46
Bayerisches Oberstes Landesgericht, Germany, 4 Z SchH 1/99 (4 June 1999).
47
Bayerisches Oberstes Landesgericht, Germany, 4 Z SchH 13/99 (28 February 2000).
48
Henry Muriithi Mvungu and Another v. Bruno Rosiello, High Court, Nairobi (Milimani
Commercial Courts), Kenya (18 July 2006).
49
Private Co. ‘Triple V’ Inc. Ltd v. Star (Universal) Co. Ltd and Sky Jade Enterprises Group
Ltd, High Court of Hong Kong, 27 January 1995.
50
Private Co. ‘Triple V’ Inc. Ltd v. Star (Universal) Co. Ltd and Sky Jade Enterprises Group
Ltd [1995] 3 HKCA 617.
51
UNCITRAL, Report of the Secretary-General, Analytical Compilation of Comments by
Governments and International Organizations on the Draft Text of a Model Law on
International Commercial Arbitration, UN Doc. A/CN.9/263/Add.1 (3–21 June 1985),
art. 11, para. 2.

198 a r t i c l e 1 1 : a p poi nt m e n t o f ar b i t r a t o r s
arbitral process, and it would be more sensible to interpret the parties’

inaction to request court intervention as an implicit agreement to
lengthen the time limits, even if the default procedure was being resorted
to.52 As one commentator notes, ‘absent the clearest provisions to the
contrary, an interpretation of the parties’ agreement as establishing a
process permitting either party unilaterally to obstruct the process of
constituting the tribunal should not be adopted’.53
Unlike the Model Law, the 1996 English Arbitration Act provides that
if a party fails to nominate a co-arbitrator within the agreed time limits,
then the counterparty may elect to treat the arbitrator it has appointed as
a sole arbitrator.54
4.2 Paragraph 3(b)

Unlike article 3(a), where a sole arbitrator is to be appointed, if the parties
are unable to agree on the arbitrator, a party may request the court or
other specified authority to make the appointment.55
As explained above, under most arbitration rules, the appointing
authority will be the executive organ of the institution (e.g. the ICC
Court). However, in UNCITRAL arbitrations, the default mechanism is
to apply to the Secretary-General of the PCA who will then designate
the appointing authority. It is interesting in this regard to also consider
the elaborate mechanism offered by article 8 of the 2010 version of the
UNCITRAL Rules in relation to the appointment of a sole arbitrator.
5. Paragraph 4
Paragraph 4 authorises a court or other competent authority as specified
under article 6 to make the arbitral appointment in the following three
cases: (1) one of the parties (or a third party authorised to make the
appointment under the arbitral agreement) fails to act under the appoint-
ment procedure; (2) if the parties, or two arbitrators, are unable to reach
an agreement expected of them under the appointment procedure; or (3)
if a third party, including an institution, fails to perform any function
entrusted to it under the appointment procedure.
52
53
G. Born, International Commercial Arbitration (Kluwer, 2014), p. 1689.
54
Arbitration Act 1996, s. 17.
55
See e.g. SIAC Arb. No. 21 of 1995 (4 October 1995), where a party applied to SIAC under
art. 11(3)(b).

5 . p ar agr ap h 4 199
5.1 Paragraph 4(a) and (b): Court Intervention

While paragraph 4 sets out three situations in which intervention by the
courts is justified, it is not an all-encompassing provision. Therefore, the
three situations may not form an exhaustive list of situations in which
court intervention may be required and justified. Paragraph 4(a) in
particular may be read broadly to encompass other factual matrices.
In one German case, although the parties had agreed to a specific sole
arbitrator, which was expressed in the arbitration agreement, the court
had to appoint another arbitrator due to the fact that the original
appointee had declined to serve as arbitrator, and had thus failed to
perform his functions in accordance with the procedure that was agreed
upon by the parties.56 This may be read as an extension of the scope of
paragraph 4(a) and the three scenarios within its scope. In another
German case, the parties had failed to appoint a third party who would
be responsible for suggesting a settlement in respect of the dispute, as the
dispute resolution clause required the parties to take this preliminary step
before resorting to arbitrating the matter. The court held that it had the
power to make such a preliminary appointment in view of the previously
unsuccessful attempts by the parties to reach an agreement.57
A Bermudan judgment has suggested that when a party to arbitration
acts in bad faith to cause the appointment procedure to break down, in
the hope of gaining an advantage through an appointment by the courts
instead, then such an application for appointment may be dismissed at
the discretion of the court.58
In respect of the admissibility of objections in relation to arbitral
jurisdiction, there are controversies as to whether an application for
court intervention under article 11 may be objected to on the ground
that the arbitration agreement in question is non-existent, invalid or
inapplicable. A number of cases suggest that a court could review objec-
tions to arbitral jurisdiction raised by the respondent.59 However, contrary
56
Bayerisches Oberstes Landesgericht, Germany, 4 Z SchH 02/98 (16 September 1998).
57
Hanseatisches Oberlandesgericht Hamburg, 22 July 1998, 14 Sch. 2/98.
58
Montpelier Reinsurance Ltd v. Manufacturers Property & Casualty Ltd [2008] Bda LR 24.
59
Alva Aluminum Ltd Bangkok v. Gabriel India Ltd (2011) 1 SCC 167; Natl Insurance Co. Ltd v.
Boghara Polyfab (P) Ltd (2009) 1 SCC 267 (India SC); M/S SBP & Co. v. M/S Patel
Engineering Ltd and Another (2005) 8 SCC 618 (India SC); Visa Intl Ltd v. Continental
Resources (USA) Ltd (2009) 2 SCC 55; M/S Everest Holding Ltd v. Shyam Kumar Shrivastava
and Others (2008) 16 SCC 774; Rampton v. Eyre [2007] ONCA 331; William Oluande v.
American Life Insurance Co. (K) Ltd, High Court at Nairobi (Nairobi Law Courts), Kenya (10
February 2006); St-Jean v. Poirier, Court [2010] QCCQ 7681 (CanLII); Villeneuve v. Pelletier

200 a r t i c l e 1 1 : a p p o i n t m e n t of ar b i t r a t o r s
to these authorities, case law from other jurisdictions suggests that accord-
ing to article 16(1) of the Model Law, the arbitral tribunal has the power to
rule on its own jurisdiction, including any objections in relation to the
existence or validity of the arbitration agreement. Therefore, a court should
not entertain objections to arbitral jurisdiction,60 or at most, the court may
dismiss an application founded on prima facie evidence.61
In fact, article 11 is dependent to a considerable degree on court assistance
in ensuring the consistency and efficiency of the formation of the arbitral
tribunal. As was noted above, judicial assistance is paramount in securing an
expeditious appointment process, and in turn swift access to arbitral pro-
ceedings.62 In this connection, it may be argued that the court or other
competent authority is justified in its inherent jurisdiction to consider any
objections to arbitral jurisdiction as a preliminary issue. However, another
view may be that the specified court or authority ought to make the
appointment, and allow the arbitral tribunal to determine questions of
arbitrability or jurisdiction, with the disadvantage that such a two-step
process is arguably less efficient and less cost-effective for the parties.
5.2 Paragraph 4(c): Specified Authority to Make the Appointment

The Working Group has clearly stated that under paragraph 4, the words
‘to take the necessary measure’ is to be interpreted as the court or other
specified (under article 6) authority being empowered, and should make
the appointment directly, rather than to order the parties or the appoint-
ing authority to take further action.63
[2010] QCCS 320 (CanLII); Bayerisches Oberstes Landesgericht, Germany, 4 Z SchH 1/99 (4
June 1999); Bayerisches Oberstes Landesgericht, Germany, 4 Z SchH 1/01 (23 February
2001); Ogunwale v. Syrian Arab Republic [2002] 9 NWLR (Pt 771) 127; Bendex Eng. v.
Efficient Pet. (Nig.) [2001] 8 NWLR (Pt 715) 333; Banque Nationale du Canada v. Premdev.
Inc. [1997] CanLII 10830 (QCCA); Robitaille v. Centre Rail-Control Inc., Superior Court of
Quebec, Canada (17 May 2001), JE 2001–1153; Lamothe v. Lamothe, Superior Court of
Quebec, Canada (2 April 2001); Voynaud v. Éditions La Pensée Inc., Superior Court
of Quebec, Canada (2 April 1998).
60
Masterfile Corp. v. Graphic Images Ltd, Ontario Superior Court of Justice, Ontario,
Canada (26 June 2002); Fung Sang Trading Ltd v. Kai Sun Sea Products and Food Co.
Ltd [1991] HKCFI 190; Oonc Lines Ltd v. Sino-American Trade Advancement Co. Ltd
[1991] HKCFI 193.
61
Private Co. (n. 50); Pacific Intl Lines (Pte) Ltd and Another v. Tsinlien Metals and Minerals
Co. Ltd [1992] HKCFI 225.
62
Montpelier (n. 58); Canadian Reinsurance Co. v. Lloyd’s Syndicate, 1995 CarswellOnt
2356; Denel (Proprietary Ltd) v. Bharat Electronics Ltd & Amp. (2010) 6 SCC 394.
63
UN Doc. A/CN.9/246 (n. 16), para. 32.

5 . p ar agr ap h 4 201
The Supreme Court of India has held that the word ‘necessary’ may be
understood as ‘things which are reasonably required to be done or legally
ancillary to the accomplishment of the intended act’, and ‘necessary mea-
sures’ would accordingly mean ‘reasonable steps required to be taken’.64
In a Bermudan case, the court held that the purpose of judicial assistance
pursuant to article 11 is primarily to ensure that the parties are able to
resolve their dispute before an impartial and independent arbitral tribunal
without undue delay.65 However, there often arise disputes between the
parties, and this in turn raises the issue of whether a deadlock would justify
court intervention. Under paragraph 4, the intervention by the court or
other specified authority under article 6 is warranted where the appoint-
ment process has reached such a deadlock. The Bermudan court went on
to dismiss the case because the appointment procedure as agreed between
the parties had not yet broken down, and therefore the court was not
entitled to intervene under the terms of paragraph 4.66 The dismissal was
based on the court’s finding that judicial intervention should be avoided
only when it is very clear that no deadlock actually exists.67
As regards paragraph 4(c), it has been held in a German case that
where an appointing authority is expected to perform its function and
make the relevant appointment, the court should refrain from exercising
that function.68 Only when the appointing authority refuses to make the
appointment, or cannot be expected to perform this function, should the
court consider itself duly authorised to take the necessary step and make a
direct appointment as provided for under paragraph 4(c).69
5.3 Default Procedure in Multi-Party Arbitrations

Unlike the Model Law, article 10 of the 2010 UNCITRAL Arbitration Rules
provides that if there are multiple claimants or multiple respondents and
those cannot agree on one arbitrator, the appointing authority or arbitral
institution has the power to appoint that member of the tribunal. That
provision was inserted into the 2010 Rules in the aftermath of the Dutco
case. In that case, the French court of cassation set aside an arbitral award
because the respondents had jointly nominated an arbitrator ‘under protest’
64
Ministry of Railway, New Delhi v. Patel Engineering Co. Ltd (2008) 10 SCC 240.
65
Montpelier Reinsurance Ltd v. Manufacturers Property (n. 58).
66
Ibid.
67
Ibid.
68
Bayerisches Oberstes Landesgericht, Germany, 4 Z SchH 04/02 (13 May 2002).
69
Bayerisches Oberstes Landesgericht, Germany, 4 Z SchH 12/99 (20 June 2000).

202 article 1 1: appointment of a rbitrators
and no default mechanism allowing an arbitral institution or other authority

to make the appointment was in place.70 After Dutco, major arbitration rules
were amended along the lines of the mechanism explained above. However,
a similar provision was not added to the 2006 version of the Model Law.
What nevertheless appears to be more relevant to the discussion of
article 11 of the Model Law is the nationality issue in the context of multi-
party arbitrations. This is particularly pertinent to multi-party cases
involving parties that have multiple nationalities. A good illustration of
this approach is offered by article 12(6) to (8) of the ICC Arbitration
Rules (2017), which governs arbitral appointments when there are multi-
ple claimants or multiple respondents. As discussed above, article 13(5)
of the ICC Arbitration Rules (2017) provides that ‘in suitable circum-
stances and provided that none of the parties objects within the time limit
fixed by the [ICC] Court, the sole arbitrator or the president of the
arbitral tribunal may be chosen from a country of which any of the
parties is a national’. Arguably, this provision would apply mutatis
mutandis in multi-party arbitrations. For example, if there are two
respondents that have different nationalities, the ICC Court would argu-
ably be able to appoint an arbitrator having the nationality of either of
those respondents or even a nationality of a third state.
6. Paragraph 5
Paragraph 5 states that the decision of a court or other authority as specified
under article 6 in respect of an exercise of power under the preceding
provisions of article 11 shall be final, and is thus not open to an appeal.
Paragraph 5 further sets out the relevant considerations that a court should
take into account in the process of making its appointment(s) of arbitrator(s).
6.1 Decision of Court or Specified Authority Not Subject

to Appeal
As alluded to above, paragraph 5 guarantees that any default (court-
ordered) appointment is as expeditious as possible. Considering that
default appointment procedures are time consuming, subjecting any
court order to further appeals would unduly delay the constitution of
arbitral tribunals and of the arbitral process itself.
70
BKMI and Siemens v. Dutco, French Cassation Court judgment (7 January 1992), (1993)
18 YB Com. Arb. 140.

6 . p ara gra ph 5 203
The Working Group considered the words ‘subject to no appeal’ as a

clearer expression of ‘final’.71 The finality of a court’s (or other specified
authority’s) ruling is vital to the constitution of an arbitral tribunal
without undue delay, and to allow the matter in dispute to proceed swiftly
to arbitration.72 It is suggested that the first sentence should not impact
upon the procedural rights of the parties, as issues with the arbitral
tribunal, as appointed by the court or other specified authority, may be
grounds for potentially setting aside any arbitral award made by such an
arbitral tribunal under article 34 of the Model Law.73
A court (or other specified authority) decision pursuant to paragraph 3
or paragraph 4 is final pursuant to paragraph 5 and may not be appealed.
However, the finality of the appointment only applies insofar as the
grounds of appeal being directly related to the appointment procedure
as provided for under the preceding paragraphs of article 11. The deci-
sion of the court or other specified authority in respect of appointment
may be subject to challenge where, for example, the appeal relates to
whether or not the parties ought to refer the matter in dispute to
arbitration.74 Indeed, it has been argued nevertheless that if ‘a first
instance court disregarded the terms of the parties’ arbitration agreement
(e.g., appointed a national of a state which the parties’ agreement forbid
or ignored clear requirements for qualifications), then there is a substan-
tial argument that appellate review should be available and required’.75
Nonetheless, this may prove to be a rather thin dividing line given that
it has been held in a Spanish court that even concerns as to whether or not
the dispute falls within the arbitration agreement between the parties
may be prohibited from appeal.76
6.2 Considerations to Be Taken into Account in Appointment

When the intervention of a court or other authority is required, then
paragraph 5 provides that ‘due regard’ should be had to any qualifications
that may be required of an arbitrator pursuant to the agreement of the
parties, and in the case of a sole or presiding arbitrator, the court or other
71
UN Doc. A/CN.9/264 (n. 9), art. 11(5).
72
Ibid., art. 11, para. 7.
73
Binder (n. 18), p. 114.
74
Private Co. (n. 50); Bendex Eng. (n. 59); Ogunwale (n. 59).
75
Born (n. 53), p. 1726.
76
Ms Cristina-Victoria Utrilla (Spain) v. Explotaciones Mineras Justiniano Muñoz SL,
Juzgado de lo Mercantil número 1 de Madrid, Spain (5 July 2006).

204 a r t i cl e 11: ap p o i n t men t of arb itrators
authority ‘shall take into account the advisability of appointing an arbi-

trator of a nationality other than those of the parties’.
The second part of paragraph 5 in respect of the relevant considerations
to be taken into account when appointing an arbitrator is modelled on
article 6(4) of the UNCITRAL Arbitration Rules. According to this view,
this provision may be considered somewhat redundant given that these
considerations are also dealt with in other Model Law provisions77 – for
instance, article 12 of the Model Law also deals with the arbitrator’s
independence and impartiality. On the other hand, the criteria set out in
paragraph 5 are couched in very general terms, and a capable and unbiased
court would likely have regard for such matters in any case when con-
sidering the appointment of arbitrators.78
It should be noted that the court or other authority specified under
article 6 must conform with any agreement between the parties in respect
of the qualifications of the arbitrators. For example, if the agreement only
allows physicians to serve as arbitrators, the court should abide by this
requirement.79 Where the agreement does not set out any particular
requirements for the arbitrators, the court shall appoint the most suitable
candidates, not only taking into account the independence and imparti-
ality of the arbitrators, but also the nature of the dispute,80 the availability
of the possible arbitrators and the laws relevant to the dispute to be
arbitrated and those laws governing the interests of the parties.81
6.3 Nationality of Arbitrators

On the issue of nationality of the arbitrator(s), further to the provisions of
paragraph 1, paragraph 5 requires the court or specified authority to
consider the advisability of appointing an arbitrator of a nationality other
than those of the parties.82 However, in a Canadian case on this point, the
court ultimately appointed an arbitrator of the same nationality as one of
the parties as, given the length and nature of the arbitration, the court was
of the opinion that it would be inconvenient and unfair to the parties and
the arbitrator if the court was to appoint an arbitrator who would be away
77
Ibid.
78
Ibid.
79
Oberlandesgericht München, 29 January 2010, 34 SchH 11/09.
80
Canadian Reinsurance (n. 62); Lavergne v. Pure Tech Intl Inc. [1998] QJ No. 2308 (SC).
81
Montpelier Reinsurance Ltd v. Manufacturers (n. 58).
82
See also LCIA Arbitration Rules (2014), art. 6(1)(v); ICC Arbitration Rules (2017), art. 13
(5); HKIAC Arbitration Rules (2013), art. 11(2)–(3).

from his home and his other interests.83 In another case, a court in
Quebec ruled that since the arbitration agreement required the arbitra-
tion to be governed by the Quebec Code of Civil Procedure, the arbi-
trators would also have to be from Quebec.84
Paragraph 5 mirrors article 6(4) of the 1976 UNCITRAL Arbitration
Rules, which states that ‘[i]n making the appointment, the appointing
authority shall have regard to such considerations as are likely to secure
the appointment of an independent and impartial arbitrator and shall
take into account as well the advisability of appointing an arbitrator of a
nationality other than the nationalities of the parties’. However, it bears
noting that the application of this rule becomes more difficult when
dealing with corporate parties as well as when faced with the possibility
of subsequent joinder of other parties. In those cases, it is more difficult to
ascertain the nationalities of the parties. In the former case, regard should
be had to the ultimate beneficial owners of the corporate party and in the
latter case, enquiries should be made as to the identities of the prospective
parties, that is, the parties that are likely to be joined in the proceeding at
a later stage.
83
Quintette Coal Ltd v. Nippon Steel Corp. [1988] BCJ No. 492.
84
I-D Foods Corp. v. Hain-Celestial Group Inc. [2006] QCCS 3889.

Article 12
Grounds for Challenge

p i e t r o o r t o la n i
(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.
(2) An arbitrator may be challenged only if circumstances exist that give
rise to justifiable doubts as to his impartiality or independence, or if
he does not possess qualifications agreed to by the parties. A party
may challenge an arbitrator appointed by him, or in whose appoint-
ment he has participated, only for reasons of which he becomes
aware after the appointment has been made.

When drafting the 1985 version of the Model Law, the UNCITRAL
Working Group on International Contract Practices relied heavily on
articles 9 and 10 of the 1976 version of the UNCITRAL Arbitration
Rules,1 but introduced some significant modifications as well. The reason
why the text of the Rules was modified is twofold: in some cases, the
Commission decided to introduce some clarifications to avoid doubts
that could have arisen if the text of the UNCITRAL Arbitration Rules
were adopted without amendments. In other cases, instead, modifica-
tions were necessary because of the different nature of the Model Law,
whose aim is to provide a transnational template for domestic arbitration
1
Report of UNCITRAL on the Work of Its Eighteenth Session, UN Doc. A/40/17 (3–21 June
1985), 25. The provisions correspond to arts 11 and 12 of the 2010 version of the UNCITRAL
Arbitration Rules.
206

1. ba ck ground a n d trav aux prép a r a t o i r e s 207
statutes rather than to lay down rules to be adopted by private parties and
incorporated in their agreement by reference.
At the beginning of its work, the Working Group agreed that the
Model Law should not include a list detailing all the circumstances
warranting the disqualification of an arbitrator.2 The decision not to
include a list was delicate, as it departed from the tradition of many
national legal systems whose arbitration laws contain such a list (typically
modelled after the grounds for challenge of domestic judges).3 The
rationale for such legislative choice was that, since the Model Law was
to be widely adopted in different jurisdictions, a generic and flexible
wording would be less divisive and more acceptable for domestic
legislators.4
A significant innovation of the Model Law (as compared to the 1976
UNCITRAL Arbitration Rules) was the introduction of precise chron-
ological guidelines for disclosure. Namely, the drafters made it clear that
prospective arbitrators have a duty of disclosure already before appoint-
ment, and such duty continues throughout the proceedings.5 These
specifications were later included in the 2010 version of the
UNCITRAL Rules as well.6
Another fundamental legislative choice of the drafters was to indicate
that, while the standards of independence and impartiality are worded in
a broad fashion and allow for a certain level of flexibility, the authority
deciding on the challenge is not entirely unconstrained when making its
determination. In order to specify this, it was decided to include the word
‘only’ in paragraph 2, so as to stress that a challenge may not be sustained
on grounds other than the ones set forth in article 12.7 Notably, the
Commission rejected proposals to delete the word ‘only’, thus stressing
the importance of explicitly ruling out the availability of additional
grounds for challenge.8
2
Third Session, UN Doc. A/CN.9.216 (23 March 1982), 11, para. 43.
3
Ibid.
4
Commercial Arbitration, UN Doc. A/CN.9/207 (19–26 June 1981), para. 65.
5
H. M. Holtzmann and J. E. Neuhaus, A Guide to the UNCITRAL Model Law on
International Commercial Arbitration: Legislative History and Commentary (Kluwer,
1989), pp. 389–390.
6
Report of the Working Group on Arbitration and Conciliation on the Work of Its Forty-
Fifth Session, UN Doc. A/CN.9/614 (11–15 September 2006), para. 64.
7
See below, section 3.1.
8
UN Doc. A/40/17 (n. 1), 116–119.

208 a r t i c l e 1 2 : g r o u n d s f o r c ha l l en g e
In addition, a policy choice made by UNCITRAL was to preserve an

important role for party autonomy even in the context of the challenge
against an arbitrator: challenges are allowed on grounds of ‘lack of
qualifications agreed to by the parties’.9 In other words, while the
authority deciding on the challenge is prevented from disqualifying an
arbitrator on grounds that are not encompassed in the wording of article
12, the parties are afforded the freedom to agree on additional qualifica-
tions that the arbitrators are required to possess.
When the Model Law was amended in 2006, no changes were made to
article 12; this chapter, therefore, will make reference to pre- and post-
2006 national case law without differentiating, as well as judgments
rendered in Model Law countries where the national legislation does
not incorporate the 2006 amendments.
2. Paragraph 1: The Arbitrator’s Duty of Disclosure

Paragraph 1 enshrines the arbitrator’s duty to disclose any circumstances
likely to give rise to justifiable doubts as to his or her impartiality or
independence. Needless to say, if the arbitrator thinks that there are
circumstances preventing him or her from acting in an independent
and impartial fashion, he or she should not accept the appointment.
Paragraph 1, however, does not address this scenario, but the different
situation where the arbitrator is willing to accept the appointment: in this
case, there may be circumstances likely to give rise to justifiable doubts as
to the arbitrator’s unbiasedness. Such circumstances should be disclosed,
so as to enable external observers to assess the arbitrator’s neutrality. The
basic rationale of the provision, therefore, is to avoid any secrets as to the
arbitrator’s predisposition towards the parties, and the case in general.10
Interestingly, such duty to disclose exists already before the appointment,
when the prospective arbitrator is first approached and continues
throughout the arbitral proceedings.
The principle of good faith underlies the provision with reference not
only to the arbitrators, but also the parties. As for the arbitrator, the duty
to disclose and ensure full transparency serves the purpose of guarantee-
ing the legitimacy and fairness of private decision-making. The parties, in
turn, have an interest to obtain exhaustive disclosure at the outset – not
9
10
K. Daele, Challenge and Disqualification of Arbitrators in International Arbitration
(Kluwer, 2012), p. 1.

2 . p ara gra ph 1 : th e ar bit ra to r ’s du t y of d i s c l o s u r e 209
only to minimise the risk of biased adjudication, but also to avoid any
disruption to the proceedings. In the absence of an obligation to disclose,
situations would be likely to occur where a party is aware of a given
circumstance, but the arbitrator fails to mention it when appointed. In
this scenario, the party could choose not to challenge the arbitrator
immediately, but to wait and potentially use the challenge as a guerrilla
tool at a later stage, particularly where an unfavourable outcome seems
likely. In other words, the mechanism of disclosure ensures that all cards
are put on the table at the very beginning of the arbitral process. If every
relevant circumstance is disclosed, all interested parties have the possi-
bility to promptly bring a challenge, or they will be deemed not to have
objected to the appointment and thus estopped from doing so at a later
stage pursuant to article 13. By imposing such a duty of disclosure, hence,
the Model Law protects not only the right to an unbiased arbitration, but
also the right to an efficient arbitration.
2.1 When? – The Moment the Duty of Disclosure Arises

A duty of disclosure already exists before acceptance, when somebody is
approached in connection with his or her possible appointment. At this
stage, the prospective arbitrator is required to disclose ‘any circum-
stances’ that may potentially cast doubt as to his or her independence
and impartiality. The Model Law, hence, attaches legal significance to the
mere circumstance that somebody has been tentatively contacted in
connection with a potential appointment as an arbitrator. The implicit
corollary of this part of article 12, hence, is that an arbitrator should not
accept the appointment before having run a due diligence and thor-
oughly assessed all circumstances that may generate a perception of
bias.11 By requiring disclosure at such an early stage, the Model Law
aims at deterring the appointment of potentially biased arbitrators: if the
circumstances giving rise to justifiable doubts are thoroughly revealed
before the arbitrator is selected, the subject making the appointment is
incentivised to select a different candidate, in order to ensure neutrality
and avoid disruptions later on in the proceedings.12
11
HSMV Corp. v. ADI LRD, Central District Court for California, 8 November 1999, 72 F.
Supp. 2d 1122 (CD Cal., 1999).
12
Arbitration, UN Doc. A/CN.9/264 (25 March 1985), 30. If all parties agree that, in light of
the circumstances of the case, the arbitrator is unsuitable, a challenge is in principle never
necessary, as the parties are always free to jointly terminate the arbitrator’s mandate

210 ar ticle 1 2: gro und s f or challenge
Analogously to the Model Law, some arbitration rules try to avoid the
appointment of unsuitable arbitrators by setting forth a mechanism of
confirmation. Under such rules, even when the arbitration agreement
gives the parties the power to appoint a member of the tribunal, the
institution performs a preliminary screening, and can deny the appoint-
ment if circumstances exist that may lead to a challenge. For instance,
pursuant to article 13 of the 2017 ICC Rules, the Secretary-General has
the power to confirm the appointment of arbitrators, taking into account
the circumstances that the appointees have disclosed in their statement of
acceptance, availability, impartiality and independence. Similar mechan-
isms are set forth in the Rules of many arbitral institutions operating in
Model Law jurisdictions, such as the German Arbitration Institute
(DIS).13 By preventing inasmuch as possible the appointment of a chal-
lengeable arbitrator, all of these early-stage mechanisms generally pursue
the same objectives of risk-avoidance and efficiency.
2.2 What? – Scope of the Duty Ratione Materiae

The wording of article 12(1) offers little clarification as to what prospec-
tive arbitrators should disclose when approached. The only indication
that can be drawn from a literal interpretation of the provision is that the
scope of the duty of disclosure (extending to ‘any circumstances likely to
give rise to justifiable doubts’14) is somewhat broader than the purview of
paragraph 2 (limited to ‘circumstances that give rise to justifiable
doubts’).15 In other words, there are circumstances which may not give
enough ground for a challenge, but should nonetheless be disclosed by
the appointee. In situations of doubt, hence, discovery should in principle
prevail, so as to preserve the perceived reliability and neutrality of the
arbitration.16
Needless to say, in the practical reality of international arbitration,
there are several grey areas where the relevance of a specific circumstance
is not easy to assess in the abstract. In order to help arbitrators decide
pursuant to art. 14 of the Model Law. A challenge, hence, normally entails a disagreement
between the parties as to whether or not the arbitrator should be removed from the
tribunal.
13
2018 DIS Rules, art. 13.
14
Emphasis added.
15
Emphasis added.
16
S. Azzali, ‘Neutrality in International Arbitration: Too Many Shades of Grey?’ in A.
Carlevaris, L. Lévy, A. Mourre and E. A. Schwartz (eds), International Arbitration
under Review: Essays in Honour of John Beechey (ICC Publishing SA, 2015), p. 45.

2. pa ra graph 1 : the arbitrator ’s duty o f disclosure 211
which circumstances should be disclosed, in 2014 the International Bar

Association (IBA) Council adopted the Guidelines on Conflicts of
Interest in International Arbitration. The Guidelines are composed of
two parts: a list of general standards regarding impartiality, indepen-
dence and disclosure, and a set of practical examples operationalising the
general standards. The practical examples, describing scenarios which
are likely to occur in practice, are divided into three non-exhaustive lists:
(1) a ‘Green List’, exemplifying circumstances which arbitrators need
not disclose, as no justifiable doubt concerning their independence
and impartiality exists;
(2) an ‘Orange List’, comprising scenarios which should be disclosed, so
that the parties can object to the appointment if they wish to do so;
(3) a ‘Red List’, describing cases which give rise to justifiable doubts and
suggest, therefore, that the arbitrator should not be appointed.
Within the Red List, the Guidelines draw a further distinction
between ‘waivable’ and ‘non-waivable’ situations. In ‘waivable’
cases, the parties are allowed to appoint the arbitrator notwithstand-
ing the appearance of a conflict of interest, if they expressly accept
him or her after having being duly informed. By contrast, in ‘non-
waivable’ settings, the arbitrator cannot be appointed, mainly in light
of the overriding principle nemo iudex in causa sua (i.e. ‘nobody can
be a judge in his or her own case’).17
The IBA Guidelines formalise transnationally accepted best practices as
to what should be mentioned by a prospective arbitrator in a disclosure
statement. In light of this, the Guidelines constitute a precious guide for
arbitrators and a widely recognised benchmark for disclosure thorough-
ness. However, it is important to acknowledge that the Guidelines are not
a source of State law and, as such, their normative value is not always
clear, and may vary across different national legal systems.
In a Spanish case,18 a party commenced set-aside proceedings, arguing
that the arbitrator had not been independent and impartial, as he was
connected to the prevailing party in the arbitration by multiple profes-
sional and personal links, which should have been disclosed pursuant to
the IBA Guidelines. During the setting-aside proceedings, both parties
referred to the Guidelines; the court, however, highlighted that the
17
S. Luttrell, Bias Challenges in International Commercial Arbitration: The Need for a ‘Real
Danger’ Test (Kluwer, 2009), pp. 63–68. See also Desbois v. Industries AC Davie Inc. [1990]
CanLII 3619 (QCCA).
18
CLOUT Case 1419, Madrid Provincial High Court, section 12 (30 June 2011).

212 article 1 2: grounds f or challenge
Guidelines were ‘not applicable’, as they lack the status of ‘rules of

positive law’. Nonetheless, the same court then proceeded to consider
the content of the Guidelines (despite having declared them not directly
applicable) and acknowledged that, according to these, a disclosure
should have been made. Relying inter alia on this fact, the Spanish
court set the award aside, pursuant to article 34(2)(a)(iv) and (2)(b)(ii)
of the Model Law. In sum, despite their ‘soft law’ character, the
Guidelines are not infrequently taken into account by national courts,
in order to assess whether the duty of disclosure under article 12(1) of the
Model Law has been respected.19
The IBA Guidelines are a particularly useful instrument to clarify the
scope of the disclosure duty enshrined in article 12(1), not only because
they enumerate scenarios where specific factors should be disclosed or
the appointment refused altogether, but also because they counter the
risk of over-disclosure through the ‘Green List’. Over-disclosure can
constitute a problem, because it increases the parties’ workload and can
ultimately undermine the efficiency of arbitration. Since the moment the
arbitrator renders his or her statement, the parties generally have a short
period of time to bring a challenge;20 a statement replete with irrelevant
disclosures may hence have a disruptive effect, as it forces the parties to
quickly run through an unduly long list of circumstances. Furthermore,
an unnecessarily long statement may be used to render the disclosure of a
suspect circumstance less noticeable: just like white noise can cover
important sounds, irrelevant circumstances may make it difficult to
notice relevant bias indicators in time.
19
See also Madrid Superior Court of Justice, 28 January 2015, in C. J. González-Bueno
Catalán de Ocón, L. Lozano and J. M. Figaredo, The Spanish Arbitration Act: A
Commentary (Editorial Dykinson, 2016), p. 110. For a similar approach, with reference
to Polish case law, see K. Zawiślak, ‘Composition of the Tribunal’ in B. Gessel Kalinowska
vel Kalisz (ed.), Polish Arbitration Law (Lewiatan, 2014), pp. 173, 238. With reference to
Belgium, see G. Keutgen and G.-A. Dal, L’arbitrage en droit belge et international, 3rd edn
(Bruylant, 2015), p. 251; and Poland v. Eureko & Stephen M. Schwebel, Court of Appeal of
Brussels, 29 October 2007. For Germany, see Oberlandesgericht Frankfurt, 4 October
2007, (2008) SchiedsVZ 96. For the relevance of the Guidelines in non-Model Law
jurisdictions, see W Ltd v. M SDN BHD [2016] EWHC 422 (Comm.), especially paras
33–41.
20
Pursuant to art. 13(2) of the Model Law, the parties have fifteen days to bring a challenge.
However, under art. 13(1), the parties are also free to agree on a different procedure for
challenging arbitrators; such agreement is typically concluded by providing for the
application of a set of arbitration rules which sets forth a different, institutional challenge
mechanism.

2 . p ara gra ph 1 : th e ar bit ra to r ’s d u t y of d i s c l o s u r e 213
2.3 Who? – Scope of the Duty Ratione Personae

Article 12(1) raises two main questions as to its scope of application
ratione personae. First, who is bound by the duty of disclosure? And,
second, to whom should the relevant information be disclosed? The
answers to both of these questions are less intuitive than the literal
wording of the provision seems to suggest.
2.3.1 Who Should Disclose? The Case of Administrative

Secretaries and Tribunal-Appointed Experts …
The duty to disclose obviously applies to all arbitrators, as independence
and impartiality are fundamental requirements for an unbiased adjudi-
cation. However, arbitrators are often not alone: in order to take care of
the myriad practical and administrative tasks that every arbitration
entails, tribunals are often supported by secretaries. In the practice of
international arbitration, it is relatively uncontroversial that secretaries
must be as independent and impartial as the arbitrators;21 the Model
Law, however, does not mention that secretaries have a duty to submit a
statement of independence and impartiality of their own.22 On the other
hand, some arbitral institutions offer guidance: the ICC, for instance,
subjects administrative secretaries to the same independence and impar-
tiality requirements as those that apply to arbitrators.23 Secretaries assist-
ing ICC tribunals must submit a declaration where they disclose all
circumstances likely to give rise to doubts as to their unbiasedness, and
the parties subsequently have the possibility to object to the appointment
of the prospective secretary.24
In sum, requiring administrative secretaries to submit a statement of
independence and impartiality is a widespread best practice that can
undoubtedly enhance the perceived legitimacy of arbitration. However,
since the Model Law does not include a mechanism of direct challenge of
administrative secretaries, there does not seem to be a legal obligation of
21
See IBA Guidelines on Conflicts of Interest in International Arbitration, General
Standard 5; Young ICCA Guide on Arbitral Secretaries, p. 7, www.arbitration-icca.org/
media/3/14235574857310/aa_arbitral_sec_guide_composite_10_feb_2015.pdf.
22
Some courts in Model Law countries, however, do require that the secretary’s details be
included in the award, so as to allow a minimum level of external scrutiny as to the
secretary’s role in the arbitration: Greek Supreme Court, judgment 390/2017 (Civil
Division A2).
23
ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the
ICC Rules of Arbitration, 30 October 2017, https://iccwbo.org/publication/note-parties-
arbitral-tribunals-conduct-arbitration.
24

disclosure on their part.25 Some commentators in Model Law jurisdic-

tions have observed that, if a secretary shows a lack of independence and
impartiality, the issue may be raised before the tribunal, and could
eventually lead to a challenge of the arbitrator(s) who supervise(s) the
secretary.26 In addition, these circumstances may also be relevant after
the end of the arbitration, at the setting-aside and recognition and
enforcement stages.
In respect of experts, article 26 of the Model Law enables arbitral
tribunals to appoint them, unless the parties have agreed otherwise, but
it does not expressly extend to tribunal-appointed experts the same duty
of independence and impartiality as that of arbitrators. The reason for
such ambiguity is that the drafters intended the Model Law to be com-
patible with different legal traditions, and not all national systems adopt
the same approach in this respect. Namely, tribunal-appointed experts
are more common in civil law jurisdictions, while in the common law
world experts are typically regarded as witnesses that should be brought
by the litigants, rather than selected by the arbitrators. In order to strike a
balance between these two opposite tendencies, the Model Law does
generally recognise the tribunal’s power to appoint experts, but refrains
from applying the arbitrators’ independence and impartiality duties to
experts as well. For this reason, similarly to what has already been
observed for administrative secretaries, it must be concluded that the
Model Law does not subject party-appointed experts to a duty of dis-
closure, nor does it provide a mechanism of direct challenge. However, it
must be noted that some national systems have ‘tweaked’ the Model Law
in order to allow the direct challenge of tribunal-appointed experts: in
Belgium, for instance, article 1707(4) of the Belgian Judicial Code pro-
vides that an expert may be challenged on grounds outlined in article 12
of the Model Law.27 In these jurisdictions, the arbitrators’ duty of dis-
closure typically extends to tribunal-appointed experts as well.
2.3.2 To Whom Should the Circumstances Be Disclosed?

Article 12 does not expressly indicate to whom prospective arbitrators
should disclose relevant circumstances, when approached in connection
with their possible appointment. The overall structure of the provision,
25
To be sure, such obligation can be imposed by the applicable arbitration rules and
guidelines, as the ICC example mentioned above demonstrates.
26
N. Bassiri and M. Draye, Arbitration in Belgium: A Practitioner’s Guide (Kluwer, 2016),
p. 167.
27
Ibid., p. 375.

2 . p ara gra ph 1 : th e ar bit ra to r ’s du t y of d i s c l o s u r e 215
however, clearly suggests that the pre-appointment disclosure statement

should be submitted to the subject making the appointment: hence, if the
arbitrator is approached by one of the disputing parties, he or she should
disclose all relevant circumstances to the party seeking to make the
appointment. Conversely, when the prospective arbitrator is not
approached by a party but by an appointing authority, the relevant
circumstances should be disclosed to the authority (e.g. the arbitral
institution). Once provided with such information, the subject entitled
to make the appointment has the possibility to make an informed choice
whether to go ahead with the appointment, or select somebody else.
The mechanism set forth in article 12 entails that the parties who do
not participate in the appointment of the arbitrator will receive the
statement of disclosure only after the appointment is made, and will
have the possibility to challenge the arbitrator then.28 Many arbitration
rules, however, impose on prospective arbitrators a more far-reaching
duty of disclosure, requiring that all relevant circumstances concerning
the prospective arbitrator’s independence and impartiality be revealed
before the appointment not just to the subject selecting the adjudicator,
but to all of the parties and the administering institution. For instance,
article 11(2) of the 2017 ICC Rules requires prospective arbitrators to
submit a statement of acceptance, availability, impartiality and indepen-
dence to the ICC Secretariat; subsequently, the Secretariat provides such
information to the parties and fixes a time limit for any comment from
them. Through this provision, the ICC Rules aim at triggering objections
concerning independence and impartiality at an early stage, before the
appointment, so as to resolve potential problems before the tribunal is
even constituted.
2.4 No Distinction between Presiding and Party-Appointed Arbitrators

Article 12 draws no distinction between party-appointed arbitrators and
arbitrators appointed with any other method: by subjecting all arbitrators
to the same duties of independence and impartiality, the Model Law
stresses that private adjudicators must be unbiased at all times, even
when they have been appointed by one of the litigants.
This view, which is currently prevailing in both domestic and interna-
tional arbitration, has not enjoyed universal acceptance in the past:
historically, in some jurisdictions, party-appointed arbitrators were
28

216 article 1 2: grounds for challenge
seen as quasi-counsels, representing the interest of the appointing party

within the tribunal. Consistently with this approach, some courts (espe-
cially in the United States)29 required a different standard of unbiased-
ness, depending on the mode of selection of the arbitrator.30 However, as
arbitration rose to prominence across different legal systems, most jur-
isdictions adopted the view that arbitrators are not advocates and, as
such, they should not be subject to less stringent independence and
impartiality standards.31
Consistently with the approach adopted by article 12, the legal autho-
rities of different Model Law jurisdictions have repeatedly remarked that
party-appointed arbitrators must be as independent and impartial as
presiding arbitrators.32 However, it should also be noted that while the
Model Law requires all arbitrators to be impartial and independent, it
does at the same time protect the effectiveness of the parties’ right to
appoint arbitrators, if the agreement to arbitrate so provides. The prohi-
bition against biased party-appointed arbitrators, hence, does not pre-
vent the parties from selecting an arbitrator capable of comprehending
their position. In fact, one of the key advantages of arbitration over
29
W. Park, ‘Arbitrator Bias’ (2015) TDM 58–59, https://scholarship.law.bu.edu/facul
ty_scholarship/15; J. D. Feerick, ‘The 1977 Code of Ethics for Arbitrators: An Outside
Perspective Symposium: Ethics in a World of Mandatory Arbitration’ (2001) 18 Ga St. UL
Rev. 907; S. H. Lieberman, ‘Something’s Rotten in the State of Party-Appointed
Arbitration: Healing ADR’s Black Eye That Is Nonneutral Neutrals’ (2004) 5 Cardozo
Journal of Conflict Resolution 215.
30
Cia de Navegacion Omsil, SA v. Hugo Neu Corp., 359 F. Supp. 898, 899 (SDNY 1973); Stef
Shipping Corp. v. Norris Grain Co., 209 F. Supp. 249, 253 (SDNY 1962); Astoria Med.
Group v. Health Ins. Plan of Greater NY, 11 NY 2d 128, 135 (NY 1962).
31
S. H. Elsing and A. Shchavelev, ‘The Role of Party-Appointed Arbitrators’ in P.
Shaughnessy and S. Tung (eds), The Powers and Duties of an Arbitrator: Liber
Amicorum Pierre A. Karrer (Kluwer, 2017), pp. 65, 71–72. It has been recently argued
that party-appointed arbitrators often lack impartiality in practice, and therefore fail to
contribute to arbitral decision-making in a meaningful way: on this debate, see J.
Paulsson, ‘Moral Hazard in International Dispute Resolution’ (2010) 25 ICSID Rev.
339; C. N. Brower and C. B. Rosenberg, ‘The Death of the Two-Headed Nightingale:
Why the Paulsson–van Den Berg Presumption that Party-Appointed Arbitrators Are
Untrustworthy Is Wrongheaded’ (2013) 29 Arb. Intl 7; A. J. van den Berg, ‘Dissenting
Opinions by Party-Appointed Arbitrators in Investment Arbitration’ in M. H. Arsanjani,
J. Cogan, R. Sloane and S. Wiessner (eds), Looking to the Future: Essays on International
Law in Honor of W. Michael Reisman (Brill, 2011), p. 821; A. J. van de Berg, ‘Charles
Brower’s Problem with 100 Per Cent – Dissenting Opinions by Party-Appointed
Arbitrators in Investment Arbitration’ (2015) 31 Arb. Intl 382.
32
In Belgium, see the CEPANI Rules of Good Conduct, para. 4: ‘[a]n arbitrator appointed
upon the proposal of one of the parties shall not represent nor act as that party’s agent’.
For Germany, see K.-H. Bockstiegel, S. Kroll and P. Nacimiento (eds), Arbitration in
Germany: The Model Law in Practice (Kluwer, 2008), pp. 185–187.

2. paragraph 1 : t he arbitrato r ’s du t y of d i s c l o s u r e 217
litigation is the possibility for the parties to select the adjudicators, in

light of their ability to understand the litigants’ specific points of view and
approaches to the case. The Model Law fully protects this advantage.
2.5 Notions of Independence and Impartiality – General Contours

The notions of independence and impartiality are notoriously hard to
define. Some authors have observed how no abstract definition can
provide a true understanding of independence and impartiality: accord-
ing to this view, the best way to grasp these concepts is to look at practical
cases, analysing arbitrators’ challenges and their outcomes.33
Furthermore, the expression ‘independence and impartiality’ is some-
times used in arbitration as a single conceptual unit, encompassing all
aspects related to the arbitrator’s neutrality and unbiasedness.34 While
related, though, the two concepts are not entirely interchangeable, and
should not always be conflated. A broad-stroke mapping of the core
features of these concepts, hence, can be useful, before delving into the
practical application of article 12 of the Model Law.
‘Independence’ generally refers to the arbitrator’s lack of links or
connections with the disputing parties. In order to perform his or her
adjudicative tasks without bias, an arbitrator cannot have professional,
economic, legal, personal or other relevant relationship with a party. The
rationale behind the notion of independence is that, if any such relation-
ships exist, the arbitrator may be unable to approach and decide the case
with an open and neutral mind, as he or she would be tempted to favour
(or, depending on the circumstances, disfavour) the party he or she is
linked to.
‘Impartiality’, instead, alludes to the arbitrator’s lack of predispositions
towards any of the parties or the issues in dispute. In other words, an
arbitrator lacks impartiality when he or she fails to approach the case with
an open mind, considering different perspectives without prejudgment.35
33
J. C. Fernández Rozas, ‘Clearer Ethics Guidelines and Comparative Standards for
Arbitrators’ in M. A. Fernandez-Ballesteros and D. Arias (eds), Liber Amicorum
Bernardo Cremades (Kluwer, 2010), p. 414.
34
Blue Bank Intl & Trust (Barbados) Ltd v. Bolivarian Repub. of Venezuela, Decision on
the Proposal to Disqualify a Majority of the Tribunal in ICSID Case No. ARB/12/20 of
12 November 2013, para. 58; Natl Grid Plc v. Argentina, Decision on the Challenge to
Mr Judd L. Kessler in LCIA Case No. UN 7949 of 3 December 2007, para. 76; Hitachi Ltd
v. SMS Schloemann Siemag AG, Swiss Federal Tribunal, 30 June 1994, (1997) ASA
Bull. 99.
35
Federal Court of Australia, Hui v. Esposito Holdings Pty Ltd [2017] FCA 648.

Because of these general contours of the notion, it has sometimes been

observed that impartiality (unlike independence) is a subjective concept,
as it refers to the arbitrator’s internal state of mind, rather than to his or
her external links and connections with a party.36 However, despite the
fact that the assessment of an arbitrator’s impartiality undoubtedly has
something to do with the evaluation of his or her mental predisposition,
the Model Law never requires an actual investigation of the adjudicator’s
state of mind, which would probably be difficult to conduct.37 Even when
an arbitrator’s challenge hinges on questions of impartiality, the Model
Law only gives relevance to external, objective circumstances, from
which inferences relating to the arbitrator’s (lack of) impartiality may
be drawn. In other words, to assess impartiality under the Model Law, it
is necessary to look at externally observable facts or indicators, rather
than performing psychological tests on the arbitrator.
While the definitions provided above offer some basic guidance on the
meaning of ‘independence’ and ‘impartiality’ for the purposes of article
12, the decision on an arbitrator’s challenge unavoidably depends on the
specific facts of each individual case: to a certain extent, every case is
different. Furthermore, the decisive aspect is often not a single facet of the
arbitrator’s profile and relationship with the parties, but rather a combi-
nation of multiple factors, as well as the specific way in which these
factors come to light in the case. Therefore, it is necessary to substantiate
the abstract wording of article 12 through concrete cases: to this end,
section 3.5 below will offer an overview of practical cases where the
relevance of specific circumstances and their impact on the arbitrator’s
independence and impartiality has been assessed by national courts,
tribunals and arbitral institutions. Before moving to the analysis of the
core elements of the arbitrator’s challenge, however, it is necessary to
scrutinise some further aspects of the duty to disclose.
2.6 Duration of the Duty

Disclosure is not a duty to be simply discharged in the initial phases of the
arbitration: it is an ongoing obligation, lasting throughout the proceedings.
36
Decision in LCIA Ref. No. 5660 of 5 August 2005 (2011) 27 Arb. Intl 371; Rostock
Proyectos, SL v. Técnicas Reunidas, judgment of 13 June 2007, Madrid Provincial High
Court.
37
It should nevertheless be noted that the arbitration literature has recently increased its
cross-disciplinary engagement with psychology: see T. Cole (ed.), The Roles of Psychology
in International Arbitration (Kluwer, 2017).

2 . paragraph 1 : t he a rbitrator ’s duty of disclosure 219
As illustrated above, the duty arises already before the constitution of the
tribunal, when a person is approached in connection with a possible
appointment as an arbitrator; then, once appointed, the arbitrator should
disclose all relevant circumstances to all the parties who have not already
received the disclosure statement in the pre-appointment phase. At the
time of appointment, hence, a party-appointed arbitrator should ‘without
delay’ submit a statement of independence and impartiality to the party
who has not participated in his or her selection. An arbitrator selected by
an appointing authority, instead, should submit the statement to all of the
parties, since none of them would generally have received such informa-
tion during the pre-appointment phase. Nevertheless, as already men-
tioned above, some arbitration rules anticipate this flow of information
before the constitution of the tribunal, by setting forth a confirmation
mechanism in order to prevent problems relating to the independence and
impartiality of the members of the tribunal.
By providing that the duty to disclose lasts throughout the proceed-
ings, the Model Law does not aim solely at ensuring that the parties who
did not receive the statement before the appointment be fully informed.
An additional, fundamental purpose is to guarantee information as to
circumstances that did not initially exist, but which arose at a later stage.
In other words, reality changes over time, and arbitrators must disclose
any changes or developments that may give rise to justifiable doubts as to
their independence and impartiality.38 By way of example, an arbitrator
may at some point buy shares which constitute a material holding in an
affiliate of one of the parties. Alternatively, during the proceedings, the
arbitrator’s law firm may merge with another law firm, which is render-
ing services to one of the parties on unrelated matters. Were these
circumstances already existing at the moment the tribunal was consti-
tuted, they should have been disclosed;39 pursuant to the same logic,
hence, article 12 requires their prompt disclosure, whenever they arise
38
UN Doc. A/CN.9/264 (n. 12), 30.
39
See, in particular, the ‘Orange List’ of the IBA Guidelines, examples 3.2.1 and 3.5.1. The
same continuous duty of disclosure also exists in many non-Model Law legal systems,
such as France: see French Code of Civil Procedure, art. 1456(2). In SA Auto Guadeloupe
Investissements v. Columbus Acquisitions Inc., the arbitrator disclosed upon appointment
that his law firm had advised a member of a group of companies participating in the
arbitration, in an unrelated matter. The arbitrator, however, failed to disclose that, during
the course of the arbitration, the law firm had received another mandate from the same
company. The French Court of Cassation held that the arbitrator’s failure to disclose the
new circumstance arising during the arbitration created reasonable doubts as to inde-
pendence and impartiality: SA Auto Guadeloupe Investissements v. Columbus Acquisitions

220 article 12: grounds for challenge
after the arbitral proceedings have already been commenced. In a nut-

shell, an arbitrator’s duty of disclosure includes an obligation to con-
tinuously update the parties (and the other arbitrators, if any), whenever
appropriate.40
An interesting question is whether circumstances arising during the
course of the arbitration may be relied upon to challenge not an arbi-
trator, but a counsel for another party. The practical relevance of the
problem came to light in the context of ICSID arbitration, in the
Hrvatska Elekropriveda v. Slovenia and Rompetrol v. Romania cases.41
The two cases present factual analogies: in both, one of the parties
appointed a different counsel when the arbitration was already ongoing,
and the other party objected that the new counsel worked or had worked
in the same law firm or barrister’s chambers as one of the arbitrators.
However, it is also important to notice a significant difference between
the two cases: while in Rompetrol the counsel and the arbitrator no longer
shared the same law firm at the time of the arbitration, in Hrvatska, the
arbitrator and the counsel were still affiliated with the same Chambers at
the time of the arbitral proceedings. Interestingly, in both cases, the party
raising the conflict of interests issue decided not to challenge the arbi-
trator, but rather requested the tribunal to exclude the counsel. This
strategy is understandable, as a challenge against an arbitrator would
have had a potentially disruptive effect on the arbitration, as it may have
entailed the need to repeat the procedural activities conducted up until
that point; however, nothing in the ICSID Convention or the ICSID
Arbitration Rules suggests that the parties have the possibility to
Inc. and Others, French Court of Cassation, 16 December 2015, 14/26279; see also Court
of Appeal of Paris, 14 October 2014, 13/13459.
40
During the drafting of the Model Law, the adoption of this solution was not uncontro-
versial. For instance, UNCTAD argued that the duty of disclosure should simply be
triggered when the prospective arbitrator is appointed, but ‘should not continue through-
out the proceedings’: Analytical Compilation of Comments by Governments and
International Organizations on the Draft Text of a Model Law on International
Commercial Arbitration, UN Doc. A/CN.9/263 (19 March 1985), 24.
41
ICSID Case No. ARB/05/24, Hrvatska Elektroprivreda d.d. v. Republic of Slovenia, Order
Concerning the Participation of Counsel; ICSID Case No. ARB/06/3, The Rompetrol
Group NV v. Romania, Decision of the Tribunal on the Participation of a Counsel. A
request to disqualify a counsel has also been put forth in ICSID Case No. ARB/03/25,
Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines. In this
case, however, the applicant relied on the fact that one of the claimant’s counsels had
previously acted as counsel for the respondent, in a different case; the Fraport case, hence,
is not directly relevant for the purposes of clarifying the notions of independence and
impartiality of arbitrators.

2. paragraph 1 : t he arbi trato r ’s d ut y of d i s c l o s u r e 221
challenge another party’s counsel. In both cases, the tribunals held that
they had the power to exclude the participation of the counsel, but then
reached different conclusions on the substance of the problem, with the
Hrvatska tribunal ordering the exclusion of the respondent’s new counsel
and the Rompetrol tribunal holding that the counsel could maintain his
position in the case instead.
Similarly to the ICSID regulatory framework, the Model Law also lacks
any provision expressly governing the request to exclude counsels.
Hence, it remains to be seen whether a tribunal seated in a Model Law
jurisdiction would follow the same approach as the Rompetrol and
Hrvatska tribunals, should the question of whether arbitrators have the
power to exclude one of the parties’ counsel on grounds of conflict of
interest arise.
Finally, an interesting question concerns the moment when the arbi-
trator’s duty of disclosure ceases. Article 12(1) states that the duty con-
tinues ‘throughout the arbitral proceedings’, but the Model Law does not
specify the exact moment when the proceedings end. The interpretation
of the provision is somewhat complicated by the circumstance that
(according to some arbitration rules) the tribunal is expected to declare
the proceedings closed before the award is rendered. By way of example,
pursuant to article 27 of the 2017 ICC Rules, the tribunal should declare
the proceedings closed with regard to the matters to be decided in the
award ‘as soon as possible after the last hearing … or the last authorized
submissions … whichever later’. In other words, in ICC arbitration the
proceedings are declared closed when the parties are no longer able to put
forth new written or oral defences, but before deliberation. Similar
provisions can be found in other sets of institutional rules,42 such as
the 2013 CEPANI Rules (article 24). If the provisions at hand are taken
literally, their coordination proves rather difficult: arbitrators, in parti-
cular, would not be bound by the duty to disclose in cases where the
circumstances giving rise to reasonable doubts arise after the proceedings
have been declared ‘closed’ pursuant to the applicable arbitration rules,
but before the issuance of the award. This conclusion is manifestly
untenable, as the scrutiny on the arbitrators’ independence and imparti-
ality must in principle be possible until the award is made. Therefore, a
purpose-oriented interpretation must be preferred over a literal one: the
meaning of the word ‘proceedings’, which appears both in article 12(1) of
42
The UNCITRAL Arbitration Rules, by contrast, refer to the closing of the hearings
(art. 31).

the Model Law and in several sets of arbitration rules, is different in the
two contexts, as the norms pursue different goals. On the one hand,
article 12 imposes a lasting obligation of disclosure, which continues
until the arbitrators have discharged their decision-making duties. On
the other hand, provisions such as article 27 of the ICC Rules or article 24
of the CEPANI Rules simply require the tribunal to set a break-off date,
from which no further defences may be submitted to the arbitrators. In
light of this, it must be concluded that even when an arbitration seated in
a Model Law jurisdiction is conducted under rules which define the
proceedings ‘closed’ after the last exchange of written or oral defences,
for the purposes of article 12 the duty of disclosure continues until the
making of the award.
2.7 Relevance of Notorious Facts before and after the Appointment

Article 12(1) requires the arbitrator to disclose all relevant circumstances
to the parties, ‘unless they have already been informed of them by him’.
According to the literal wording of the provision, hence, it should not
matter whether the parties learned about the circumstances from a
different source: in principle, the arbitrator has an obligation to disclose,
even if certain facts are notorious and may be retrieved elsewhere (e.g. via
the internet). However, the practice of national courts demonstrates a
more nuanced approach to the problem at hand.
National courts generally attach importance to the circumstance that a
certain piece of information was already available online at the time when
the arbitrator was appointed. A Spanish Court, in particular, has held that
even if the arbitrator fails to disclose the information in his or her
statement of independence and impartiality, the parties are expected to
‘take some measure (and certainly more than just an Internet search) to
investigate the concurrent professional circumstances of the arbitrator’.43
A failure to disclose, hence, may in practice be regarded as a less serious
problem, if the parties would have been able to learn about the relevant
circumstance anyway, had they exercised due diligence.
By contrast, some other national courts have held that publication of
the information on the internet is irrelevant if it occurs after the appoint-
ment. The parties, in fact, cannot be expected to continue monitoring the
arbitrator through the internet and other publicly accessible sources once
the tribunal has already been constituted and the proceedings are
43
CLOUT Case 1420, Madrid Provincial High Court, section 14 (21 June 2011).

3. paragraph 2: t he challeng e 223
ongoing. A French court, in particular, held that the parties have no duty
to pursue a constant investigation on the arbitrators during the develop-
ment of a case.44 While France is not a Model Law jurisdiction, the same
line of reasoning seems to be applicable in Model Law countries as well,
given the similarity between article 12 of the Model Law and article 1465
of the French Code of Civil Procedure.
3. Paragraph 2: The Challenge

Paragraph 2 of article 12 regulates the challenge, i.e. the mechanism
through which the parties can obtain the removal of an arbitrator from
the tribunal. The provision at hand pursues two distinct rationales:
guaranteeing the arbitrator’s independence and impartiality, and pro-
tecting party autonomy by ensuring the enforcement of any agreement
concluded between the parties as to the arbitrator’s qualifications. From
the first point of view, an arbitrator may be challenged if, in light of the
relevant circumstances, there are reasonable doubts as to his or her
independence and impartiality. From the second point of view, an arbi-
trator can be challenged if he or she does not possess qualifications agreed
between the parties. While the first rationale aims at preserving the
unbiasedness, fairness and neutrality of private adjudication, the second
does not directly relate to such goals and objectives, as an arbitrator can
in principle be impartial and independent even if he or she lacks a certain
qualification (e.g. a specific academic or professional degree). By allowing
the challenge in this second setting, the Model Law aims at ensuring that
party autonomy be respected and the tribunal comply with the require-
ments imposed by the parties’ agreement.
The existence of a mechanism to obtain the removal of an arbitrator
during the proceedings is not a distinctive feature of the Model Law:
many national arbitration statutes throughout the world provide for tools
broadly following the same logic. However, it would be misleading to
conclude that challenge procedures are a ubiquitous reality, as one
notable exception exists: in the United States, the Federal Arbitration
Act does not generally allow the removal of an arbitrator during the
proceedings on grounds of lack of independence and impartiality.
According to this different logic, the parties should generally wait until
the award is rendered, and then raise all relevant issues at the setting-
aside stage. The US approach, hence, minimises the risk of frivolous
44
SA Auto Guadeloupe Investissements (n. 39).

challenges and procedural disruption, while the Model Law (and other
similar arbitration statutes) tends to preserve the reliability of arbitral
adjudication by giving the parties an opportunity to raise complaints
concerning the arbitrator before the award is issued.
3.1 ‘Only’: Exhaustiveness of the Model Law

Apart from the case of the lack of agreed qualifications,45 an arbitrator
may be challenged pursuant to article 12(2) of the Model Law ‘only if
circumstances exist that give rise to justifiable doubts as to his imparti-
ality and independence’. It is interesting to note that while the provision
at hand is largely based on article 31 of the UNCITRAL Arbitration
Rules, it does contain a meaningful addition: the word ‘only’, present in
article 12(2) of the Model Law, is not mentioned in the corresponding
provision of the Rules. Given the broad wording of the article, which does
not contain any specification as to what may constitute a relevant ‘cir-
cumstance’, the inclusion of the word ‘only’ may seem irrelevant.
However, this aspect of article 12 has been the subject of an interesting
debate during the drafting of the Model Law. According to one view, the
word ‘only’ should have been excluded, as there may be circumstances
(such as nationality) which justify the removal of an arbitrator even
without putting his or her independence and impartiality into question.46
Against this opinion, however, it was objected that an arbitrator’s nation-
ality or other similar circumstances would in any case raise justifiable
doubts, and as such they would fall within the scope of article 12
irrespective of whether the word ‘only’ is included or not.47 Under yet
another view, the inclusion of the word ‘only’ was not problematic, but
simply superfluous, as the grounds for challenge should in any case be
interpreted as being limited to those provided in the Model Law.
Eventually, the Commission decided to maintain the word ‘only’, and
justified this choice by noting a structural difference between the Model
Law and the UNCITRAL Arbitration Rules: while the latter are essen-
tially contractual rules, designed to be complemented by the applicable
lex arbitri (which is likely to include mandatory rules on the challenge of
arbitrators), the former is drafted as a self-sufficient piece of legislation.48
For this reason, and in the interest of uniform interpretation across
45
46
UN Doc. A/40/17 (n. 1), 24.
47
Ibid.
48
Ibid.

3. paragraph 2: t he challeng e 225
different national systems, it is desirable to expressly clarify that the

contents of the Model Law cannot be integrated with other legal sources.
One of the effects of the inclusion of the word ‘only’ in article 12(2) is
that, in principle, the authority deciding on the challenge should not
apply the rules governing the removal of national judges by analogy. This
feature of the Model Law, however, should not be read as suggesting that
an arbitrator’s obligation of independence and impartiality is somewhat
less extensive than the analogous duty binding national judges. In fact,
one of the purposes of article 12 of the Model Law is to clarify that those
circumstances warranting the removal of a State judge should, normally,
be relevant for the purposes of an arbitrator challenge as well.49 In
accordance with this general approach, national courts in Model Law
countries have sometimes held that the grounds for the challenge against
an arbitrator resemble those for the challenge of a State court judge, and
in practice the same standard is often applicable.50
3.2 Rejection of the List Approach

When identifying the scenarios which justify a challenge against an
arbitrator, article 12 relies exclusively on the general notion of ‘any
circumstances likely to give rise to justifiable doubts’. During the drafting
of the Model Law, India criticised this wording because of its broadness,
arguing that the grounds for challenge ‘are too vague to allow easy and
uniform interpretation and application’.51 In theory, a solution to the
problem at hand would be to substantiate the general clause of article 12
by providing a list of recurring scenarios, which would guide the practical
interpretation of the provision. Some non-Model Law jurisdictions fol-
low such a ‘list approach’, and set forth a number of likely instantiations
of the abstract notions of independence and impartiality (and lack
thereof).52 By contrast, the Model Law does not contain a list of examples
and practical cases warranting the removal of an arbitrator. The absence
49
UN Doc. A/CN.9/264 (n. 12), 31: ‘reliance on any specific reason listed in a national law
(often applicable to judges and arbitrators alike) is precluded’.
50
See for Germany, Oberlandesgericht München, 10 July 2013; Oberlandesgericht
Frankfurt, 8 May 2013; Oberlandesgericht Hamm, 5 October 2011; CLOUT Case 1062,
Oberlandesgericht Köln, 2 April 2004; Oberlandesgericht Naumburg, 19 December 2001;
for India, Intl Airports Authority of India v. KD Bali and Another, AIR (1988) SC 1099; for
California, Mahnke v. Superior Court (2009) 103 Cal. Rptr 3d 197.
51
UN Doc. A/CN.9/263 (n. 40), 24.
52
See e.g. art. 815 of the Italian code of civil procedure; S. Grossi and M. C. Pagni, Commentary
on the Italian Code of Civil Procedure (Oxford University Press, 2010), pp. 475–478.

226 article 12: grounds for challenge
of such a list is not an accident, but a conscious choice of the drafters: the
preparatory works confirm that the possibility to include a list was
explicitly considered and rejected by the drafters.53
Undoubtedly, the list approach has an apparent appeal, as it helps
parties, tribunals, institutions and national courts to detect those situa-
tions where a challenge should be seen as justified. However, including
such a list also entails two major problems, which conversely do not arise
under the Model Law. First, no list can be realistically expected to be
exhaustive, since lawmakers cannot predict each and every situation that
can arise in practice and potentially justify the removal of an arbitrator.
The only solution to this problem is to add a catch-all general clause, to
encompass all the settings that are not covered by any other item on the
list; this regulatory approach, however, ends up undermining the useful-
ness of the list, as it reintroduces the very same element of vagueness and
unpredictability that the list approach aimed at avoiding in the first place.
The second fundamental limit of the list approach is that it places an
excessive emphasis on the relevance of single circumstances taken in
isolation from their context. In practice, reasonable doubts often arise not
because of a single factor, but because of the combination of different
elements, as well as the way in which the information comes to light. By
way of example, the same circumstance may give rise to more serious
doubts if the arbitrator fails to disclose it when approached and
appointed. Along similar lines, two different links between the arbitrator
and one of the parties’ counsel may be insignificant when observed in
isolation, but meaningful when combined.
3.3 Broad Understanding of ‘Circumstances’

The appearance of a lack of impartiality and independence may be
generated by a wide range of different factors. An arbitrator may appear
biased not only because of his or her personal features, links and con-
nection, but also because of the way in which he or she behaves during the
proceedings.54 For instance, the arbitrator may appear to have prejudged
the case, if he or she seems to have already formed an opinion and pays
no attention to the written or oral defences put forth by the parties.
Alternatively, a challenge may be warranted by inappropriate remarks
53
UN Doc. A/CN.9/264 (n. 12), 30.
54
Ibid., 31.

3. paragraph 2: the challenge 227
made by the arbitrator, evincing an unjustifiable predisposition in favour

of or against one of the parties.
The considerations above were taken into account by the Working
Group on international contract practices,55 and the word ‘circum-
stances’ was chosen precisely because of its broadness. In other words,
the terminology employed by the drafters highlights that a challenge may
be justified by relying not only on characteristics of the arbitrator, but
also on events and behaviours taking place at any stage, before or during
the proceedings.
It should be noted that many of the factors falling within the scope of
the word ‘circumstances’ for the purposes of a challenge under article 12
may also be relevant at different procedural stages. Arbitrator challenges
serve the purpose of avoiding, whenever possible, biased decision-mak-
ing, but they are not the only tools that can be deployed to guarantee
independence and impartiality. Any interested party may invoke the
same circumstances not only in a challenge, but also after the award
has been rendered, applying for the annulment of the award or resisting
its recognition and enforcement.
3.4 The Applicable Standard

As already mentioned,56 challenges often revolve around the arbitrator’s
predisposition vis-à-vis the parties and the dispute, especially when the
notion of impartiality is invoked. However, the Model Law never requires
the challenging party to prove a mental attitude or state: the standard
applicable under article 12 focuses entirely on external indicators, which
can be observed from the outside. In order for a challenge to be success-
ful, hence, the party does not need to demonstrate that the arbitrator
actually lacks independence and impartiality, but only that ‘reasonable
doubts’ arise when observing the relevant circumstances from the
outside.
On the one hand, requiring actual proof of the arbitrator’s internal
attitude would be unrealistic, and ultimately result in the marginalisation
of challenges as a tool ensuring the fairness of private adjudication; on the
other hand, however, allowing challenges to succeed too easily may
encourage frivolous attempts to have arbitrators removed, and even
55
Fifth Session, UN Doc. A/CN.9/233 (28 March 1983), para. 105.
56
See above, section 2.5.

jeopardise the practical viability of arbitration as a whole. In a nutshell,

arbitrator challenges should be the exception, rather than the norm.57 For
this reason, when applying article 12, national courts tend to employ
balancing techniques, adopting a standard that does not make it impos-
sible for the parties to obtain the exclusion of the arbitrator, while at the
same time ensuring the stability of tribunals and discouraging challenge
attempts which are not solidly grounded in serious and relevant circum-
stances. By way of example, a Spanish court held that it is ‘not enough to
prove the existence of a link between the arbitrator and the participants
in the process, it having to be analysed case by case whether the relations
or circumstances evidenced were significant enough to question the
impartiality or objectivity of the challenged arbitrator’.58 The court
elaborates on the applicable standard by explaining that in order to
determine the outcome of a challenge, it is necessary to assess whether
it is ‘possible to reasonably argue’ that the arbitrator ‘might act biasedly
for or against either side, or that he might not behave in an impartial and
objective manner when resolving the issues before him’.59 The perspec-
tive to adopt, hence, is that of an external, reasonable observer, weighing
the relevant circumstances and the effect they are likely to have on the
arbitrator’s decision-making.
In the same vein, a German court held that the standard is ‘not
whether the arbitrator was not in fact impartial, but whether there
were sufficient objective grounds that, from the standpoint of the
challenging party, raised a reasonable doubt as to the arbitrator’s
impartiality and independence’.60 According to this judgment, a find-
ing of reasonable doubt ‘should not be assumed too easily, given the
disruption caused by any challenge’ and the consequences on the
effectiveness of the parties’ right to use arbitration as a mechanism to
resolve their disputes.61
57
D. D. Caron and L. M. Caplan, The UNCITRAL Arbitration Rules: A Commentary, 2nd
edn (Oxford University Press, 2013), p. 187.
58
Madrid Provincial High Court (n. 18).
59
Ibid.
60
CLOUT Case 665, Oberlandesgericht Naumburg, 19 December 2001, (2003) Neue
Zeitschrift für Schiedsverfahren 135. Some authorities refer to the notion of ‘serious’,
rather than ‘reasonable’ doubt: see e.g. CLOUT Case 785, ad hoc arbitration hosted by the
Cairo Regional Center for International Commercial Arbitration, decision of 25 March
1996. Despite the different terminological nuance, the basic argument seems to be the
need to filter out frivolous challenges, and ensure that the removal of an arbitrator is not
made too easy.
61
Ibid.

3 . p a r a g r a p h 2: t h e c h a l l e n g e 229
3.5 Recurring Scenarios

Challenge decisions rendered by State courts, tribunals and arbitral
institutions offer useful insights as to what circumstances may warrant
a challenge; this section, therefore, will offer a synthetic overview, focus-
ing on some recurring scenarios. Nevertheless, it must be emphasised
that every challenge is, to a certain extent, unique, and case law should be
understood as providing at best some broad-stroke guidance concerning
the indicators giving rise to doubts as to arbitrators’ independence and
impartiality. This section mainly considers decisions issued by courts of
Model Law countries, or by tribunals and institutions seated and operat-
ing in situations where the Model Law was applicable. However, where
appropriate, precedents not directly related to the Model Law will also be
taken into account.
3.5.1 Arbitrator’s Relationship with a Party

Needless to say, relationships between the arbitrator and a party are parti-
cularly problematic, as personal, professional, social or economic links may
generate doubts as to the adjudicator’s ability to decide the case unbiased.
For this reason, the IBA Guidelines prevent the prospective arbitrator from
accepting the appointment if he or she is an employee or representative of a
party, acts as manager or director of one of the parties,62 or regularly advises
a party deriving significant financial income therefrom.63
Sometimes, it is difficult to dispute that the circumstances give rise to
reasonable doubts as to the arbitrator’s independence and impartiality: in
a German case, for example, an arbitrator was removed, because one of
the parties in dispute was a close relative of his.64 Another German court
62
German Bundesgerichtshof, 3 July 1975, (1976) NJW 109. Conversely, partiality should
not necessarily be assumed if the arbitrator has a remote financial link with one of the
parties, but the outcome of the arbitration is not able to affect the arbitrator’s economic
position in any way: see Oberlandesgericht Naumburg, 19 December 2001, (2003)
SchiedsVZ 134. By contrast, it is not generally relevant whether the institution adminis-
tering the proceedings maintains a list of arbitrators which includes individuals having
financial relationships with one of the parties: see CLOUT Case 1465, AL v. Spółka
Akcyjna v. P, Katowice Court of Appeal, V ACz 1106/12 (16 January 2013).
63
See, in particular, the ‘Non-Waivable Red List’; German Bundesgerichtshof, 28 February
1972, (1972) NJW 827; Oberlandesgericht Frankfurt, 28 January 1998; Oberlandesgericht
Dresden, 27 January 2005, (2005) SchiedsVZ 159; Ceriale v. Amco Ins. Co. (1996) 55 Cal.
Rptr 2d 685.
64
Oberlandesgericht Frankfurt, 27 April 2006, (2006) SchiedsVZ 330. By contrast, a simple
friendship was considered as insufficient to justify the arbitrator’s removal in
Oberlandesgericht Frankfurt, 10 January 2008, (2008) SchiedsVZ 199; Kammergericht
Berlin, 7 July 2010, (2010) SchiedsVZ 225.

sustained a challenge against an arbitrator who had physically attacked

the counsel for one of the parties.65 In practice, however, the situations
invoked in a challenge are often more nuanced than the examples above,
and courts are cautious in evaluating them. Belgian courts, for instance,
have repeatedly held that the circumstance that the arbitrator’s law firm
acted against one of the parties in an unrelated matter is not, in and of
itself, sufficient ground for bias.66
An interesting question is whether repeat appointments by or against
the same party may lead to question the arbitrator’s neutrality. In one
case, a Belgian court ordered the removal of an arbitrator who had been
previously appointed in six similar cases against the same party, always
ruling against it.67 In an ICC arbitration seated in Turkey, an arbitrator
was challenged because he had been acting as an expert for the party
making the appointment in two prior cases; the ICC accepted the
challenge.68
3.5.2 Arbitrator’s Relationship with the Dispute

In some cases, an arbitrator may exhibit an undue predisposition towards
the case, generating a suspicion of prejudgment. In other words, a
challenge should be sustained if the arbitrator appears to have already
formed an opinion on the dispute, before the parties are given an
opportunity to present their case.
The problem of prejudgment is particularly evident in investment
arbitration, where tribunals are repeatedly asked to resolve recurring
problems, mainly concerning the substantive standards of protection
enshrined in many international investment agreements. This problem
is sometimes referred to with the expression ‘issue conflict’,69 although
no conflict of interest exists stricto sensu: in this scenario, the challenging
party typically argues that, given the predictability of the legal question
on which the outcome of the case depends, a person who has already
65
Landgericht Duisburg, 6 October 1981, (1982) ZIP 229.
66
Brussels Court of Appeal, 29 October 2007 (Poland v. Eureko & Stephen M. Schwebel);
Brussels Court of Appeal, 14 January 2003.
67
Brussels Court of First Instance, 14 December 2006. However, reasonable doubts may be
ruled out in the different scenario where repeat appointments are due to the fact that the
arbitration clause designates as arbitrator whoever holds a certain position at a given time:
Oberlandesgericht Frankfurt, 8 May 2013.
68
Challenge decision reported in M. Karkın, ‘Appointment of and Challenge to Arbitrators’
in A. Yesilirmak and I. G. Esin (eds), Arbitration in Turkey (Kluwer, 2015), pp. 49, 67–68.
69
‘Report of the ASIL-ICCA Joint Task Force on Issue Conflicts in Investor-State
Arbitration’, ICCA Reports No. 3, 17 March 2016.

3. pa rag raph 2: the challenge 231
clearly expressed his or her views on that legal issue is practically unable
to approach the arbitration with an open mind.70
In commercial cases, the merits of the dispute tend to be less repetitive,
but multiple appointments in arbitrations dealing with the same subject
matter can nonetheless occur.71 Courts have sometimes sustained chal-
lenges when an arbitrator authored or contributed to a publication
expressing a clear position on a pending or future case;72 by contrast,
publications issued before the arbitration and dealing with general legal
issues are often deemed irrelevant.73 Challenges may also be brought
because of opinions expressed by the arbitrator during the hearing,
evincing a premature convincement; by contrast, attempts to facilitate a
settlement or questions and remarks aimed at gaining a better under-
standing of the dispute should in principle not be sanctioned.74
3.5.3 Arbitrator’s Relationship with a Counsel, Expert

or Another Arbitrator
A suspicion of bias may in some cases arise because of a specific link
between an arbitrator and a counsel, an expert or another arbitrator
acting in the proceedings, as the examples above illustrate.
The circumstance that an arbitrator knows one of the counsels does
not, in itself, give rise to any reasonable doubt: arbitration, after all, is a
70
See e.g. Republic of Ghana v. Telekom Malaysia Berhad, The Hague District Court, civil
law section, provisional measures judge, Challenge No. 13/2004, Petition No. HA/RK
2004.667 (18 October 2004); ICSID Case No. ARB/05/7, Saipem SpA v. People’s Republic
of Bangladesh, Decision on Jurisdiction and Recommendation on Provisional Measures,
21 March 2007; ICSID Case No. ARB/07/26, Urbaser SA v. Argentina, Decision on
Claimant’s Proposal to Disqualify Professor Campbell McLachlan, Arbitrator, 12
August 2010; ST-AD GmbH v. Republic of Bulgaria, Oberlandesgericht Thüringen, 21
November 2013; ICSID Case No. ARB/12/38, Repsol v. Argentine Republic, Decision on
the Request for Disqualification of the Majority of the Tribunal, 13 December 2013;
ICSID Case No. ARB/12/20, Blue Bank Intl & Trust (Barbados) v. Bolivarian Republic of
Venezuela, Decision on the Challenge to José Maria Alonso (12 November 2013); ST-AD
v. Bulgaria, ibid.
71
Handelsgericht Vienna, 16 Nc 2/07, reviewing a challenge decision issued by the Vienna
International Arbitral Centre.
72
CLOUT Case 902, Landgericht Munchen II, 27 June 2002; Oberlandesgericht Hamburg,
28 June 2004 (contrasting this case with the different – and not relevant – scenario
expressing general views on a point of law through an academic article);
Oberlandesgericht Karlsruhe, 4 July 2006; Oberlandesgericht Frankfurt, 4 October 2007
(n. 19).
73
CLOUT Case 1178, Danish High Court, 21st Chamber Eastern Division, No. B-1752-08
(27 November 2008).
74
Oberlandesgericht Köln, 2 April 2004.

232 ar ticle 1 2: gro und s f or challenge
niche of legal practice, where personal connections among specialists are

not uncommon and, to a certain extent, even unavoidable. However, it is
important to distinguish normal professional contacts from pathological
situations, where an arbitrator may be repeatedly appointed by the same
law firm, ultimately becoming a de facto weapon of choice within arbitral
tribunals. The IBA Guidelines make it clear that an arbitrator should not
be a lawyer in the same law firm as the counsel to one of the parties,75 and
that he or she should disclose having been appointed on more than three
occasions by the same counsel or the same law firm within the past three
years.76
In a Russian case, two arbitrators failed to disclose that they had a
professional link with the same academic institutions as the expert who
rendered an opinion for the claimant. Russian courts held that this
circumstance gave rise to reasonable doubts as to the arbitrators’ inde-
pendence and impartiality, and set the award aside on these grounds.77
As for links between members of the same tribunal, these are generally
not relevant. However, there may be exceptional circumstances where a
challenge is made on such grounds, especially when the presiding arbi-
trator has a close relationship with a party-appointed arbitrator:78 depend-
ing on the specificities of the case, it may sometimes be argued that the
party who has appointed the co-arbitrator could be unduly favoured.79
3.6 Interaction with Paragraph 1: Consequences of the Arbitrator’s

Failure to Disclose
Undoubtedly, there is an interaction between the two paragraphs of
article 12: disclosure, mandated by paragraph 1, serves the purposes
not only of discouraging the appointment of unsuitable arbitrators, but
also to trigger challenges under paragraph 2. The question arises, hence,
whether an arbitrator’s failure to disclose a relevant circumstance (such
as an example included in the Orange List of the IBA Guidelines) may be,
in and of itself, enough ground to warrant that arbitrator’s removal.
75
Waivable Red List, 2.3.3; HSMV (n. 11).
76
Orange List, 3.3.8. Similar suspicions may arise when the dispute concerns legal fees, and
the arbitrator solicits business from the lawyer or law firm involved in the case: see
Benjamin, Weill & Mazer v. Kors, 116 Cal. Rptr 3d 677.
77
CLOUT Case 1348, Judicial Division of the Supreme Commercial Court of the Russian
Federation (30 January 2012).
78
See IBA Guidelines, Orange List, 3.3.
79
Bassiri and Draye (n. 26), p. 162.

3. p ara gra ph 2: t he c ha l l en g e 233
Courts in Model Law countries generally hold that while the arbitra-
tor’s failure to disclose may not necessarily suffice to sustain a challenge,
it does play a significant role when assessing whether reasonable doubts
as to independence and impartiality exist.80 A Spanish court, for instance,
expressly indicated that the fact that relevant circumstances were not
disclosed ‘had a bearing’ on the outcome of the challenge.81 In other
words, non-disclosure may decrease the arbitrator’s prospects of surviv-
ing a challenge, but no automatic correlation exists between failure to
disclose and removal of the arbitrator. A German court expressed this
concept clearly by holding that ‘an infringement of the disclosure obliga-
tion might justify a challenge even in those cases where the non-disclosed
fact would not of itself justify a challenge’.82
3.7 Qualifications Agreed to by the Parties

As already mentioned, an arbitrator can be challenged not only if reason-
able doubts exist as to his or her independence and impartiality, but also if
he or she lacks qualifications that the parties have agreed to. By allowing
this second ground for challenge, article 12 reinforces private autonomy,
and namely the possibility for the parties to specify which requirements
arbitrators should possess. In order to resolve a complex commercial
dispute, it is often necessary to rely on different types of specialist expertise,
such as technical know-how or personal knowledge of a certain industry.
Hence, by allowing the parties to impose qualification requirements for the
arbitrators, the purpose of the Model Law is to facilitate, inasmuch as
possible, competent and satisfactory decision-making, guaranteeing that
the parties can ‘get the tribunal they want’. It is up to the parties, of course,
to specify which features and characteristics an arbitrator must possess,
depending on their desires and on the peculiarities of the case.
The parties remain free to modify the agreement on the arbitrators’
qualifications. In a German case,83 for instance, the litigants had initially
agreed that the arbitrators had to be members of a certain Chamber of
Industry and Trade. One of the parties, however, nominated a non-
member, and the other party initially accepted the appointment without
80
Haworth v. Superior Court, 112 Cal. Rptr 3d 853; Intl Alliance of Theatrical Stage
Employees, etc. v. Laughon, 14 Cal. Rptr 3d 341; La Serena Properties, LLC v. Weisbach,
112 Cal. Rptr 3d 597.
81
Madrid Provincial High Court (n. 18).
82
Oberlandesgericht Naumburg, 19 December 2001 (n. 60).
83
CLOUT Case 454, Oberlandesgericht Dresden, 20 February 2001, 11 Sch. 2/00.

raising the issue of the lack of qualification. At a later stage, a challenge was
brought, and the competent court held that the initial agreement had been
revised by the parties, through the nomination of a non-member by one of
the parties and its acceptance by the other party. The same court also held
that, in any case, the parties’ agreement as to the arbitrators’ qualifications
should be interpreted in good faith and in light of its purpose.
3.8 Good Faith of the Challenging Party

A challenge against an arbitrator should only be initiated where serious
doubts exist; the parties, conversely, should refrain from using this instru-
ment for frivolous reasons or, even worse, with the purpose of hindering
the development of the proceedings. It is for this reason that the Model
Law indirectly requires the challenging party to act in good faith.
Article 12(2) restricts a party’s ability to bring a challenge against an
arbitrator, in cases where that same party appointed the arbitrator or
participated in the appointment. In this case, a challenge is possible only
if it is based on reasons which the party became aware of after the
appointment. Parties, hence, are prevented from appointing a biased
arbitrator in bad faith, with the purpose of challenging him or her at a
later stage and thus derailing the proceedings. Furthermore, a party is
implicitly required to exert due diligence when participating in any kind
of arbitrator appointment process. More specifically, the restriction of
the right to challenge the arbitrator applies not only in the case of a direct
appointment by one of the parties, but also whenever a party takes part in
different mechanisms of arbitrator selection. In the case of a joint
appointment, for instance, the party is prevented from challenging on
grounds he or she was already aware of before the appointment. The
same restriction also applies when the influence of the party on the
arbitrator’s appointment is even more indirect: the preparatory works
of the Model Law expressly refer to the UNCITRAL Arbitration Rules,
setting forth a list procedure for the appointment of a sole or presiding
arbitrator.84 Under the list procedure, the parties cannot request the
appointment of a specific arbitrator, but can only delete names from a
84
UN Doc. A/CN.9/264 (n. 12), 31, explaining that ‘“participation in the appointment” covers
not only the case where the parties jointly appoint an arbitrator … but also a less direct
involvement such as the one under the list procedure envisaged in the UNCITRAL
Arbitration Rules (article 6(3))’. The reference to article 6(3) of the 1976 version of the
UNCITRAL Arbitration Rules corresponds to article 8(2) of the 2010 version.

3. p ara gra ph 2: t he c ha l l en g e 235
list prepared by the appointing authority and number the remaining

names in the order of their preference. Hence, if a party is aware of
circumstances casting doubts on a prospective arbitrator’s independence
and impartiality, but fails to delete his or her name from the list pursuant
to article 8(2)(b) of the UNCITRAL Rules, that same party may be
prevented from bringing a challenge at a later stage, under article 12(2)
of the Model Law.
An interesting problem is whether a challenge should be allowed when
the party participating in the appointment did not know certain circum-
stances, but should have been aware of them using the normal diligence.
The Model Law tries to minimise the practical relevance of this problem
by mandating an extensive pre-appointment disclosure,85 which should
generally ensure that the parties participating in the appointment are
informed about all relevant circumstances before the arbitrator is nomi-
nated. Even when the arbitrator’s disclosure is incomplete, however, the
parties may not always be allowed to argue that they only learned about
the circumstance after the appointment was made. Namely, each of the
parties participating in the appointment must diligently check whether
reasonable doubts exist as to the appointee’s independence and imparti-
ality, in light not only of the disclosure statement, but also of publicly
available information, as discussed above.86
85
See section 2.1.
86
See section 2.7.

Article 13
Challenge Procedure
m a n u e l a . g ómez
(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 arbi-
trator shall, within fifteen days after becoming aware of the constitu-
tion 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.

Since the beginning of the Working Group deliberations, there was
general agreement among the delegates and observers that the Model
Law should recognise the stipulations of the parties regarding the pro-
cedure for challenging an arbitrator.1 After all, arbitration is a creature of
contract and the principle of party autonomy is one of its pillars. On the
other hand, members of the Working Group were less agreeable about
1
Third Session, UN Doc. A/CN.9/216 (23 March 1982), paras 12, 44.
236

1. background and t r a v a u x p r é pa ra to ires 237
the idea of providing access to the courts ‘in cases where the stipulated
procedure led to a deadlock’,2 or simply because ‘the final decision on a
challenge should always lie with a court’.3 Furthermore, if judicial inter-
vention was provided, then another issue for the Working Group to
decide was the scope and opportunity of said review.
The main discussion among the delegates regarding this latter issue
gravitated around whether court intervention should be permitted dur-
ing the arbitration proceedings, therefore allowing the issue to be
resolved expeditiously; or if court intervention should only be incorpo-
rated in the procedure to set aside the final award as a way to help prevent
dilatory tactics by a party.4 This latter position, which was espoused,
among others, by the observer from Finland5 and the delegate from the
Soviet Union,6 did not gain sufficient acceptance among the rest of the
participants. Instead, the final text embodied a compromise procedure
‘whereby the final decision on the challenge rested with the court but the
arbitral tribunal could continue its proceedings pending that decision’.7
The advantage of such compromise, the Austrian delegate opined, rested
on the fact that ‘it combined the benefit of court assistance in a challenge
while minimizing the risk of delaying tactics by one or other of the
parties’.8
Another important point of discussion during the deliberations of
article 13 was the effect of court decision reached under a challenge
procedure. The proposal of the US delegation was to maintain the
sentence at the end of draft paragraph 3,9 which indicated that the
2
Ibid.
3
Ibid.
4
Fifth Session, UN Doc. A/CN.9/233 (22 February–4 March 1983), 21, para. 110; see also
Report of the Working Group on the Work of Its Sixth Session, UN Doc. A/CN.9/245 (29
August–9 September 1983), 47, para. 209.
5
Article 13 in Summary Records of the United Nations Commission on International
Trade Law for Meetings Devoted to the Preparation of the UNCITRAL Model Law on
International Commercial Arbitration, 313th Meeting, (1985) XVI UNCITRAL YB 432,
para. 45.
6
Article 13 in Summary Records of the United Nations Commission on International
Trade Law for Meetings Devoted to the Preparation of the UNCITRAL Model Law on
International Commercial Arbitration, 314th Meeting, (1985) XVI UNCITRAL YB 433,
para. 4.
7
Ibid., 433, para. 1.
8
Ibid., 434, para. 18.
9
UN Doc. A/CN.9/245 (n. 4), 46, para. 205. See also Report of the Working Group on
International Contract Practices on the Work of Its Seventh Session, UN Doc. A/CN.9/
246 (6 March 1984), 11, para. 36, and UN Doc. A/CN.9/246 (1984) (Annex) 214.

238 ar tic l e 1 3: ch al l e n ge p roc e dure
decision of the court regarding the challenge procedure should be

‘final’.10 Not all delegations understood the meaning of the word ‘final’
and some wondered whether it meant ‘“a final decision” of the Court and,
therefore, one subject to appeal to a higher court, or whether it mean[t)
that the decision itself is final and cannot be appealed’.11 Similarly, the
delegate from France also expressed concerns about the use of the word
‘définitif’ in the French version of the Model Law, and requested the
drafting committee to clarify its meaning.12 After lengthy deliberations,
the solution devised by the Working Group was to mention instead that
the court decision on the challenge ‘shall be subject to no appeal’.13 As a
result, there was no doubt that the respective ruling would be both a final
decision of the court and one that could not be appealed.
The question about the competent court with jurisdiction to decide on
the arbitral challenge also received attention from the delegates and
observers to the Working Group sessions.14 If the place of arbitration
was already known by the time of the challenge, the delegates agreed that
the competent organ to decide would be the court of the place of
arbitration.15 Nevertheless, if the arbitral seat had not been chosen or
was not known, the situation would be different. In such case, some
opined that the competent court should be the court of the country of the
party nominating the challenged arbitrator,16 while others suggested that
it should instead be the court ‘of the State adopting the Model Law’.17
Another possible solution was to defer to the Secretary-General of the
Permanent Court of Arbitration the designation of the competent organ,
as set forth in the UNCITRAL Arbitration Rules.18
10
Article 13 in Analytical Compilation of Comments by Governments and International
11
CN.9/263/Add.1 (1985), 10.
12
13
14
15
Ibid., 435, para. 35.
16
Ibid.
17
Ibid., 435, para. 36 (‘Mr. Lebedev (Union of Soviet Socialist Republics) had reservations
concerning the use of that formula in national legislation since he did not believe it was
possible for that legislation to lay down rules of jurisdiction for the court of another
country. In his view, if the place of arbitration were not known, then the competent court
would be that of the State adopting the Model Law’).
18
Ibid., 435, para. 37.

1. ba ckgr ound and tr ava ux p r é paratoires 239
Notwithstanding the fact that, as some delegates noted, the Secretary-

General of the Permanent Court of Arbitration (PCA) had in fact exer-
cised such role; other delegates opposed any attempt by the Model Law to
specify the competence of international bodies or to deal with matters of
international jurisdiction, which in the view of these delegates, should be
left to the national legislation of each State.19 The proponents of includ-
ing an express provision in article 13 that empowered the governing
council of a permanent arbitral institution or an ad hoc body to decide
which should be the competent court20 also believed that their proposed
solution would help resolve other issues affecting the arbitral process.21
Nonetheless, the Commission decided against expressly regulating this
specific jurisdictional issue and left it to the province of each State.
The role of the challenged arbitrator also became a topic of discussion
during the Working Group deliberations, particularly with regard to the
propriety of his or her involvement in the decision to uphold or reject the
challenge. Some delegates were against this possibility because it contra-
dicted their own national law,22 while others suggested that it went
against the principle that no one should be a judge in their own case
(nemo iudex in causa sua). On the other hand, some delegations were
adamant to allow the challenged arbitrator to participate in a ruling on
that challenge.23 This latter position prevailed, and the final agreement
among the delegates was that ‘the challenged arbitrator should remain
and thus rule on the challenge’.24
The situation of the sole arbitrator against whom a challenge has been
levied was also subject to some discussion. Certain delegations proposed
to include express language indicating that if a sole arbitrator was chal-
lenged and refused to withdraw, then ‘his mandate [would) terminate on
account of the challenge’.25 The reaction from the Chairman was that
19
Ibid., 435, para. 40.
20
Article 13 in Analytical Compilation (n. 10), 10, paras 1, 2.
21
2014), pp. 36–37.
22
See Objections from the Federal Republic of Germany, Article 13 in Summary Records (n.
5), 433, para. 55.
23
See Commentary from Japan, Article 13 in the Summary Records (n. 6), 436, para. 44. See
also Article 13 in Analytical Compilation (n. 10), 24, para. 2.
24
Article 13 in Summary Records (n. 6), 436, paras 45, 46.
25
See Commentary from the Federal Republic of Germany, Article 13 in Analytical
Compilation (n. 10), 24, para. 3. See also Article 13(2) in Summary Records (n. 5), 433,
para. 51.

240 a rt icl e 1 3 : c h al l e n ge pr oce dur e
‘such a provision could give rise to a never-ending series of challenges’,26

and the final text omitted any mention about this, and simply stated that:
‘Unless the challenged arbitrator withdraws from his office or the other
party agrees to the challenge, the arbitral tribunal shall decide on the
challenge.’27
Another point of divergence among Working Group participants was
‘whether the Model Law should set forth supplementary rules for those
cases where parties had not themselves regulated the challenge proce-
dure’,28 and also how detailed those rules should be. Some opined that a
Model Law should avoid proposing a detailed procedure on this issue,29
while others were favourable towards including it because of its perceived
potential for helping ‘avoid protracted controversy and delay in the
arbitration proceedings’.30
The travaux préparatoires also mention a discussion regarding the
time frame to challenge an arbitrator. On this matter, some delegates
argued that a timely challenge was necessary for the sake of an efficient
conduct of the proceeding, so that if a party fails to raise a challenge on
time, it should be precluded from doing so at a later opportunity.31 Other
delegations proposed a different time frame for a challenge of an arbi-
trator that has had an impact on the decision. In such case, the challen-
ging party should be allowed to raise its objection concomitantly with the
petition to set aside the final award.32 The final decision was to establish a
period of fifteen days for the initial challenge to be filed before the arbitral
tribunal itself, and a subsequent thirty-day period to apply for review
with the court or other authority specified in article 6 of the Model Law.
Finally, the Working Group discussed whether the arbitral tribunal’s
decision to reject a challenge should be subject to judicial review. The
delegates had different opinions with regard to this. The inclusion of a
text allowing judicial review immediately after the decision that rejected
the challenge was meant to make the process more efficient. Yet, some
26
Ibid., 433, para. 52.
27
28
UN Doc. A/CN.9/216 (n. 1), 12, para. 45.
29
Ibid.
30
31
A. Broches, ‘Commentary on the UNCITRAL Model Law’ in J. Paulsson and L. Bosman
(eds), ICCA International Handbook on Commercial Arbitration (Kluwer, 1990), para. 11.
See also D. Girsberger and N. Voser, International Arbitration: Comparative and Swiss
Perspectives, 3rd edn (Nomos, 2016), p. 180.
32
B. Spiegelfeld, S. Wurzer and H. E. Preidt, ‘The Arbitrator and the Arbitration Procedure
– Challenge of Arbitrators: Procedural Requirements’ (2010) Austrian YB Intl Arb. 52.

delegations showed concern about this possibility, which they believed

could result in dilatory tactics that endangered the arbitral proceedings as
a whole.33 Another position advocated for deferring the review of the
challenge decision to a later opportunity, for example, when deciding on
the annulment of the final award.34 The compromise that became article
13 of the Model Law allows the losing party to seek judicial review of the
challenge decision while also permitting the tribunal – including the
challenged arbitrator – to continue the proceedings until its conclusion
and make an award.35 Nevertheless, the compromise was still not satis-
factory to some of the participating delegations at the UNCITRAL ses-
sions, who still suggested giving courts the power to order a stay of the
arbitral proceedings or limiting judicial review only to cases in which the
parties had failed to agree on a challenge procedure.36 However, it was
further argued that court review was necessary to ensure the fairness of
the arbitral proceedings.
2. Paragraph 1
2.1 The Parties Are Free to Agree on a Procedure
for Challenging an Arbitrator
Article 13 uses the term ‘freedom’ (‘the parties are free to agree’) – instead
of referring to a ‘right’ – when mentioning the possibility of the parties
choosing or selecting a challenge procedure. This language is the same
used in other provisions of the Model Law about the parties’ freedom to
determine the number of arbitrators37 and to agree on a procedure of
appointing arbitrators.38 At least in one other section of the Model Law –
i.e. article 2(d) – the word ‘freedom’ is used to express something broader
than a right (‘such freedom includes the right of the parties to authorize a
third party’ (emphases added)). Nevertheless, it appears that – at least in
the context of article 13 – both words have the same meaning.39
33
See e.g. commentary of the United States of America, Article 13 in Analytical
Compilation (n. 10), 25, para. 8.
34
Ibid., para. 10, p. 26. See also Article 13(3) in Summary Records (n. 5), 433, para. 46.
35
See Commentary of the Chairman, Article 13 in Summary Records (n. 6), 433, para. 1.
36
See Commentary of the Federal Republic of Germany, Analytical Compilation (n. 10), 25,
para. 7.
37
38
39
Furthermore, in the Spanish version of art. 13, the wording (Las partes podrán acordar
libremente, or ‘the parties may agree freely’) is slightly different and perhaps less confus-
ing than the English and French versions.

242 art ic l e 13 : ch al l e n ge p roc ed ur e
Therefore, one might say that the possibility of agreeing on a challenge

procedure is a ‘right’ of the parties. This fundamental right to decide
which challenge procedure should be followed, if any,40 finds its source in
the notion of party autonomy, which, as we established earlier, is one of
the pillars of arbitration that the Model Law recognises and upholds
throughout its text.
As per article 13, the right (or freedom) to agree on a challenge proce-
dure is not limited to any particular type of arbitration, which means that it
should apply both to ad hoc and institutional arbitration.41 While the
scope of article 13 is obviously limited to the parties’ choice about a
challenge procedure, an agreement about a set of institutional rules usually
extends to the entire arbitral process and not just the challenge or another
specific portion of the procedure. Furthermore, an agreement to a parti-
cular set of institutional rules often entails the submission of the case
administration to the issuing institution.42 Nevertheless, there are cases
in which the parties might opt for mixing and matching institutional
rules43 or ‘combining one arbitral institution’s rules with the case’s admin-
istration by a different arbitral institution’.44
In order to avoid any confusion regarding the potential application of
different rules for the same arbitration, some national laws inspired by
the Model Law have limited the choice of challenge procedure to ad hoc
arbitrations only,45 thus leaving no doubt that when the parties have
agreed to follow a particular set of institutional rules for their arbitration,
those same rules should be the ones governing the challenge procedure as
well.
40
Some courts have found that the principle of party autonomy could go as far as to allow
the parties to waive art. 13(2) altogether and exclude any challenge procedure. See
Hanseatisches Oberlandesgericht Hamburg, 12 July 2005, 9 SchH 1/05.
41
The parties could also incorporate, by reference, a procedure set forth in a particular set of
institutional rules. See e.g. Oberlandesgericht Dresden, 28 February 2001, 11 Sch. 1/01.
42
Nevertheless, there are examples of arbitration rules (e.g. UNCITRAL Arbitration Rules)
that do not necessarily depend on a specific institution and were designed instead to be
used as stand-alone rules.
43
But see U. G. Schroeter, ‘Ad Hoc or Institutional Arbitration – a Clear-Cut Distinction? A
Closer Look at Borderline Cases’ (2017) 10 Contemp. Asia Arb. J. 141, explaining that
there are rules that contain non-derogable (‘mandatory’) provisions that if the parties fail
to adopt might cause the institution to refuse to administer the case.
44
Ibid.
45
See e.g. Ley de Mediación y Arbitraje (Nicaragua), art. 35, Ley de Conciliación y Arbitraje
(Honduras), art. 52, Ley sobre Arbitraje Comercial (Dominican Republic), art. 17 and
Decree No. 67–92 of 1995, art. 17.

Even though, in theory, the parties have the possibility to devise a

specific procedure regarding the challenge of an arbitrator, in reality it
seems unlikely that the parties would create a tailor-made procedure only
for the challenge and select a different set of rules to govern other aspects
of the arbitral process. In any case, it seems that the most obvious choice
would be for the parties to allow the challenge procedure to be governed
either by the arbitration rules of the institution chosen or by the provi-
sions of the lex arbitri.46 Some countries like Mozambique,47 Turkey,48
Canada,49 Austria, Switzerland, England and France50 have included a
text similar to article 13(1) in their national laws, despite the fact that
some of these countries are regarded as non-Model Law jurisdictions. On
the other hand, there are States such as Venezuela – considered a Model
Law jurisdiction – that have adopted a different solution (i.e. to subject
the challenge procedure to the same provisions applicable to civil litiga-
tion, as per the Code of Civil Procedure and the special provisions of the
Commercial Arbitration Act);51 therefore limiting the principle of con-
tractual freedom and party autonomy with regard to this aspect.
2.2 Subject to the Provisions of Paragraph 3 of This Article

The proviso included in the last sentence of article 13(1) generated some
discussion among the delegates of the Working Group in charge of draft-
ing the 1985 Model Law. Some viewed this phrase as an obstacle to the
principle of autonomy of those parties who might want to adopt institu-
tional rules precluding any form of judicial intervention,52 but which could
not do so because of the limitation imposed by article 13(1). Others opined
that since judicial decision-making is inherently a public activity, a provi-
sion that warranted court intervention in the context of a challenge
46
See Girsberger and Voser (n. 31), p. 179.
47
D. Butler, ‘The State of International Commercial Arbitration in Southern Africa:
Tangible Yet Tantalizing Progress’ (2004) 21 JOIA 189.
48
M. Özsunay, ‘The Arbitration Procedure – Principles and Rules of the UNCITRAL Model
Law as Essentially Adopted by the Turkish Act on International Arbitration’ (2008)
Austrian YB Intl Arb. 352, 353.
49
M. Lalonde and L. Alexeev, ‘National Report for Canada’ in J. Paulsson and L. Bosman
(eds), ICCA International Handbook on Commercial Arbitration (Kluwer, 2017), pp.
21–22.
50
On Austria, Switzerland, England and France, see Spiegelfeld et al. (n. 32).
51
Ley de Arbitraje Comercial (Venezuela), arts 45 et seq.
52
See Commentary from Mr Stalev (Observer from Bulgaria), Article 13 in Summary
Records (n. 6), 433, para. 4.

244 articl e 1 3 : challenge pr oc edur e
procedure might create the undesired effect of making the arbitration

public. This would be particularly detrimental if the main reason why
the parties and the arbitrators chose this form of dispute resolution was
because of its potential for maintaining confidentiality.53 Notwithstanding
this concern, the final version of article 13(1) kept the condition that the
parties may agree to a procedure, but subject to court review of the initial
decision that rejected the challenge. The adoption of article 13 at the
national level has ranged from the verbatim incorporation of the Model
Law provision,54 to countries that have included the first sentence, but not
the proviso regarding court intervention.55
3. Paragraph 2
Article 13(2) offers a solution that fills a contractual void in those cases
where: (1) the parties have not agreed upon a specific challenge proce-
dure or (2) established their own,56 or (3) if the procedure they have
chosen does not regulate challenges. The time frame of fifteen days,
which serves a supplementary role, may seem too short, particularly in
the context of international commercial arbitration where the tribunal,
the administering institution, the parties and the parties’ counsel may be
geographically dispersed;57 but given the ease of modern communica-
tions and the fact that most notifications and other exchanges of infor-
mation occur electronically, a fifteen-day time frame seems reasonable.
On the other hand, the rationale for such a seemingly brief window rests
both on the idea of expediency – one of the main perceived advantages of
arbitration – and the possibility of enhancing legal certainty. This latter
goal is accomplished by minimising the period of time during which
53
See Commentary from the ICC, Article 13 in Analytical Compilation (n. 10), 10, para. 1.
54
See e.g. the recently approved Ley de Arbitraje Comercial Internacional (Argentina), art.
29 and Ley sobre Arbitraje Comercial (Costa Rica), art. 13.
55
See e.g. Ley No. 1,879 de Arbitraje y Mediación (Paraguay), art. 15.
56
G. B. Born, International Commercial Arbitration, 2nd edn (Kluwer, 2014), para. 52 (‘If
parties have not agreed upon a procedure for challenging arbitrators, Article 13(2)
provides for challenges to be made in writing to the tribunal itself, which shall, unless
the challenged arbitrator or the other party agree with the challenge, decide upon the
application’).
57
This was, in fact, the opinion of Norway regarding the draft text of the Model Law. They
feared that ‘the period of time of 15 days provided in paragraph (2) (and also in paragraph
(3)) is too short to give the parties adequate opportunity to challenge an arbitrator’. See
Commentary by Norway, Article 13(2) in Analytical Compilation (n. 10), 25, para. 6.
Nevertheless, some national laws such as Venezuela’s give a much shorter time (five days)
to the party to file their challenge. See Ley de Arbitraje Comercial (Venezuela), art. 36.

3 . p ar agr ap h 2 245
there is doubt as to whether or not a particular arbitrator will be allowed

to remain as a member of the arbitral tribunal.
Furthermore, with the exception of the ICC Rules of Arbitration,
which give the challenging party a longer period (thirty days) to submit
their challenge, the tendency among the leading arbitral institutions has
been to give the parties the same time frame set forth in the Model Law
and to submit the challenge in writing to the appropriate authority or the
tribunal itself.58 In some instances, national courts have been asked to
weigh in the timeliness of a challenge application when the procedure
selected by the parties required the filing of the grounds for the challenge
‘with undue delay’,59 which may be different from the time frame set
forth by the applicable national law for the challenge of State courts.60
As per article 13(2), the starting point of the fifteen-day period to file
the challenge is either the day of the constitution of the arbitral tribunal
or when the challenging party became aware of the circumstances that
gave rise to justifiable doubts regarding the impartiality and indepen-
dence of an arbitrator, as indicated in article 12(2). Article 13(2) does not
mention how long the arbitral tribunal has to decide on the challenge or
how soon the challenging party may seek judicial review. The time frame
for filing a challenge has been left to the province of national laws or to
the institutional rules that the parties have adopted for their arbitration;61
and the time frame for seeking judicial review is obviously determined by
the relevant local court rules.
58
See e.g. arbitration rules of the Hong Kong International Arbitration Centre, art. 11.7,
arbitration rules of the CAM-CCBC, art. 5.4, ICDR rules, art. 14 and Vienna International
Arbitration Centre Rules, art. 20. Article 10.3 of the arbitration rules of the London Court
of International Arbitration (LCIA) indicates a slightly shorter period of fourteen days.
59
See e.g. CLOUT Case 442, Oberlandesgericht Köln, 14 September 2000, 9 SchH 30/00
(finding that the challenge filed more than fourteen days after the opponent refused to
agree to the challenge should be deemed filed with undue delay and therefore dismissing
the case on procedural grounds).
60
See CLOUT Case 1062, Oberlandesgericht Köln, 2 April 2004, 9 Sch. (H) 22/03 (the
application was filed within the time limit set by s. 1037(3) of the CCP. (‘While s
1037(2) CCP allows for a period of two weeks, the applicable SGO-Bau requires a
party to raise grounds for challenge without undue delay. The Court doubted
whether the challenge, raised a period of 12 days after the hearing, still met this
condition. The question was left open since the challenge was considered without
merits anyway.’)
61
In the case of the UNCITRAL Arbitration Rules, for instance, art. 13(4) provides that ‘if,
within 15 days from the date of the notice of challenge, all parties do not agree to the
challenge or the challenged arbitrator does not withdraw, the party making the challenge
may elect to pursue it’.

246 art i cl e 1 3 : c h al l e n ge pr oc edur e
If a party does not challenge an arbitrator within the aforementioned

period, the right to challenge is deemed waived.62 However, some
national courts have held that a mere negligent ignorance of the factual
basis for a challenge, even if it rises to the level of constituting construc-
tive knowledge, is insufficient to constitute a waiver or to trigger the time
limit.63 Similarly, other courts have ruled that a party’s failure to chal-
lenge an arbitrator while the proceedings are pending does not foreclose
the possibility of a subsequent challenge against ‘the award on the basis of
a reasonable apprehension of bias’.64 Conversely, the abandonment of a
challenge procedure, both before the arbitral tribunal and the national
courts during the course of an arbitration, has been deemed to constitute
a waiver of a challenge to the arbitral award based on the improper
composition of the tribunal.65
It is important to note that the timely challenge of an arbitrator should
not only be driven by the fear of losing the right to challenge, but more
importantly by the internalisation of the duty to litigate in good faith. The
party that becomes aware of any circumstance that in their view puts into
question the independence or impartiality of an arbitrator, and therefore
the integrity of the arbitral process, should raise their challenge as soon as
possible and not wait until an adverse act is materialised or an unfavour-
able final award is rendered.66 Nevertheless, the veiled threat of the
waiver caused by a party’s failure to challenge an arbitrator in due course
also helps protect the proceedings from questionable advocacy practices.
A party in possession of information that might give rise to justifiable
doubts about the impartiality and independence of an arbitrator is then
dissuaded from withholding it from the arbitrators and the opposing
side, or from keeping it secret for a potential future use. If the challenging
62
See e.g. Cass. Civ. 1, 25 June 2014, Société Tecnimont SpA v. J&P Avax SA (France) (‘A
party who knowingly refrains from challenging an arbitrator on the grounds of circum-
stances related to his alleged lack of independence or impartiality within the time limit
provided by the applicable arbitration rules is deemed to have waived the right to invoke
such circumstances before the annulment judge’). For detailed commentary of this
decision, see E. Kleiman and Y. Dehaudt-Delville, ‘Challenges of Arbitrators:
Clarification on Timeframe and Standard of Review’ (4 December 2014), www.interna
tionallawoffice.com/Newsletters/Arbitration-ADR/France/Freshfields-Bruckhaus-
Deringer-LLP/Challenges-of-arbitrators-clarification-on-timeframe-and-standard-of-
review.
63
See Kammergericht Berlin, 22 March 2000, 28 Sch. 24/99.
64
Oiknine v. Rosenberg-Solny (2009) QCCS 5106.
65
CLOUT Case 1656, Assam Co. India Ltd v. Canoro Resources Ltd (2014) BCSC 370.
66
Girsberger and Voser (n. 31), pp. 180–181.

3 . p ar agr ap h 2 247
party does not act swiftly within the time period mentioned in article 13,
then their opportunity to correct a flawed tribunal will be lost.67
Article 13(2) further regulates the form of the challenge by indicating
that it shall be submitted in writing to the tribunal – or to the arbitrator in
question, in case of a sole arbitrator – and that it shall also include the
reasons on which it is based. Both requirements are obvious if one
considers that both the opposing side and the challenged arbitrator
ought to know the specific motivation behind the challenge, so they can
prepare their defence and objections, if any. Moreover, the reasons on
which a party may base their challenge should either be the ones included
in the procedure agreed upon by the parties68 or the grounds mentioned
in article 12(2) of the Model Law.
3.1 Unless the Challenged Arbitrator Withdraws … the Arbitral

Tribunal Shall Decide on the Challenge
Article 13(2) conflates two separate albeit interrelated issues: the possi-
bility of the challenged arbitrator to participate in the decision regarding
his or her own challenge, and the involvement of the arbitral tribunal (or
the arbitral institution) in the challenge procedure. The second to last
67
Born (n. 56), para. 54 (‘The rationale underlying these requirements is non-controversial.
Parties should not be permitted to proceed with an arbitration, while retaining secret
grounds for objection to the decision-makers. As one court said, this “Heads I win, tails
you lose” approach is unfair and unseemly. Rather, if a party does not promptly raise a
challenge, it will be deemed to have waived its challenge’). See also AAOT Foreign
Economic Association (VO) Technostroyexport v. Intl Development and Trade Services
Inc., 139 F.3d 980 (2nd Cir. 1999) (‘The settled law of this circuit precludes attacks on the
qualifications of arbitrators on grounds previously known but not raised until after an
award has been rendered’); see also Ilios Shipping & Trading Corp. v. American Anthracite
& Bituminous Coal Corp., 148 F. Supp. 698, 700 (SDNY), aff’d, 245 F.2d 873 (2nd Cir.
1957) (‘Where a party has knowledge of facts possibly indicating bias or partiality on the
part of an arbitrator he cannot remain silent and later object to the award of the
arbitrators on that ground. His silence constitutes a waiver of the objection’); see also
Cook Industries, Inc. v. C. Itoh & Co. (America) Inc., 449 F.2d 106, 107–108 (2nd Cir.
1971) (‘Appellant cannot remain silent, raising no objection during the course of the
arbitration proceeding, and when an award adverse to him has been handed down
complain of a situation of which he had knowledge from the first’).
68
Most institutional arbitration rules include a list of grounds for challenging arbitrators,
but the reliance on international practice standards such as the IBA Guidelines on
Conflict of Interest in International Arbitration have become increasingly common in
recent years. See M. Moses, ‘The Role of the IBA Guidelines on Conflicts of Interest in
Arbitrator Challenges’, Kluwer Arbitration Blog (27 November 2017), http://arbitration
blog.kluwerarbitration.com/2017/11/23/role-iba-guidelines-conflicts-interest-arbitrator-
challenges/.

248 art ic l e 13 : ch al l e n ge p roc edur e
sentence of article 13(2) entertains the possibility that the challenged

arbitrator withdraws or that the other party agrees to the challenge.
Allowing the arbitrator to withdraw as soon as he or she becomes
aware of the challenge may spare the arbitrator from accepting the
validity of the grounds that led to the challenge, and also has the potential
of saving the parties time and money. The reference to the possibility of
the other party agreeing to the challenge may refer to either the party who
nominated the challenged arbitrator, or just any other (non-challenging)
party.69 Given the increased importance of multi-party arbitrations,
some rules expressly mention that the agreement is not just required
from ‘the other party’,70 but instead from ‘all parties’.71
Article 13(2) ends with an explicit mention that the decision on the
challenge rests on the tribunal.72 This is clearly a way to avoid delays and
streamline the process, and therefore to ensure the expediency and
efficiency of the arbitration, despite the fact that the provision does not
expressly indicate when the tribunal should render its decision regarding
the challenge. Nevertheless, by allowing the arbitral tribunal rather than
another organ to decide on the challenge, article 13(2) might also give rise
to some problems involving the challenging party and the challenged
arbitrator because the latter would still be part of the tribunal and his vote
would carry weight on the fate of the challenge.73 Furthermore, it could
69
It could also be that the appointing party is the one challenging their own arbitrator, based
on a supervening cause. See Svea Court of Appeal, 27 September 2011, cited in E.
Vassilakakis, ‘The Challenge of Arbitrators and the Impact on the Functioning of
Arbitral Tribunals’ (2014) IV Czech (& Central European) YB Arb. 258, fn. 28.
70
Law Concerning International Commercial Arbitration (Islamic Republic of Iran), art. 13
(2) (‘The “arbitrator” shall make decision on the validity of the objections unless he
resigns from his position or the opponent party accept the objections’).
71
See e.g. UNCITRAL Arbitration Rules, art. 13(3). For an explanation and detailed
commentary on this provision, see also P. Binder, Analytical Commentary to the
UNCITRAL Arbitration Rules (Sweet & Maxwell, 2013), p. 145.
72
Notwithstanding, under the rules of the International Centre for the Settlement of
Investment Disputes (ICSID), the challenge must be filed with the Secretary-General of
ICSID, who in turn shall transmit the proposal to the members of the tribunal. See ICSID
Rules of Arbitration, art. 9. For a thorough discussion regarding challenge procedures in
the context of investment arbitration, see C. Giorgetti, ‘Challenges of International
Investment Arbitrators: How Does It Work and Does It Work?’ (2013) 2 World Arb. &
Med. Rev. 303.
73
Vassilakakis (n. 69), p. 258, para. 13.27 (‘The mistrust of the challenging party is to be
assumed in particular if, by virtue of domestic laws following the UNCITRAL Model Law,
the challenged arbitrator has participated in the tribunal’s decision on the challenge,
instead of stepping down on his/her own. In such a case, the acceptance of the request
requires, in practice, the positive vote of the unchallenged arbitrators’).

be argued that the fact that the challenged arbitrator is allowed to

participate in the decision about whether to accept or reject his or her
own challenge would violate the principle of nemo judex in causa sua,74
and would also potentially prejudice the tribunal and the arbitrator vis-à-
vis the challenging party.75 A more serious conflict could arise where the
challenge has been lodged against a sole arbitrator or against the entire
tribunal;76 or when the challenge has been submitted by an arbitrator
against another member of the arbitral tribunal.77
In order to avoid or at least minimise some of these problems, some
national laws have expressly excluded the challenged arbitrator from
the deliberations regarding their own challenge.78 A similar posture has
been adopted by some of the leading institutional arbitration rules,
which have reserved any decisions on arbitral challenges to their own
administrative bodies79 or to the appointing authority.80 On the other
hand, some national laws have explicitly allowed the challenged
74
S. Suresh, ‘Questioning Model Law’s Challenge Procedure’ (2015) The Roundtable, Penn.
Undergraduate LJ, www.pulj.org/the-roundtable/-questioning-model-laws-challenge-
procedure.
75
W. Jo-Mei Ma, ‘Procedures for Challenging Arbitrators: Lessons for and from Taiwan’
(2012) 5 Contemp. Asia Arb. J. 293, 299.
76
See e.g. Commercial Arbitration Act, Law 489–08 (Dominican Republic), arts 9(8) and 17
(3) (authorising the Court of Appeals to decide on a challenge field against a sole
arbitrator or the entire arbitral tribunal).
77
See T. Várady, ‘On Shifting Players and Roles in the Process of Challenging Arbitrators: A
Comment on Sundra Rajoo v. Mohamed Abd Majeb and Persuatan Penapis Minyak Swait
Malaysia (Poram)’ in P. Wauletet, R. Kruger and G. Coppens (eds), Essays in Honour of Hans
van Houtte (Hart, 2012) (commenting on a Malaysian court judgment regarding the challenge
submitted by one of the co-arbitrators against the other co-arbitrator and the arbitral
institution). See also Sundra Rajoo v. Mohamed Abd Maked and PORAM, High Court at
Kuala Lumpur (Commercial Division – Saman Premula), judgment of 23 March 2011.
78
See e.g. Decree No. 67–92 of 1995 (Guatemala), art. 17(2), Legislative Decree No. 1071 of
2008 (Peru), art. 29; see also Commercial Arbitration Act, Law 489–08 (Dominican
Republic), art. 17(3).
79
Jo-Mei Ma (n. 75), p. 298; see also Vassilakakis (n. 69), p. 258, para. 13.26 (‘The most suitable
solution is that an authority other than the arbitral tribunal itself decides on the disqualifica-
tion of the arbitrator’). See also LCIA Arbitration Rules, art. 10.4; HKIAK Rules, art. 11.9;
Arbitration Rules of the Chartered Institute of Arbitrators (CIArb.), art. 13(4); Rules of the
Madrid Court of Arbitration, art. 15(4); ICC Arbitration Rules, art. 14(3).
80
See e.g. Rules of Arbitration of the Permanent Arbitration Court of the Croatian Chamber
of Commerce (‘Zagreb Rules’) (2011), art. 25. See D. Babic and Z. Mustafa, ‘Challenge of
Arbitrators under the 2011 Zagreb Arbitration Rules’ (2015) 65 Zbornik PFZ 226, 227
(‘Challenges of arbitrators are decided according to the Zagreb Rules by the person or
entity who acts as the appointing authority … A welcome change introduced by the 2011
Rules is that the arbitral tribunal has no part in the decision making regarding the
challenge of an arbitrator’).

250 art ic l e 13 : ch al l e n ge p roc e dure
arbitrators to participate in the decision regarding their own challenge,

in similar terms to the Model Law.81 Finally, there are national laws
such as that of Egypt, under which ‘national courts, and not the tribu-
nals, have exclusive jurisdiction to decide upon challenges submitted
against an arbitrator’.82
A separate situation occurs when the challenged arbitrator with-
draws from the proceedings, or if the opposing party agrees on the
challenge before it is decided. In that case, the issue would become
moot and therefore the tribunal’s decision on this matter would also
be unnecessary.83
4. Paragraph 3
4.1 If a Challenge … Specified in Article 6 to Decide
on the Challenge
The increased popularity of international commercial arbitration in
recent years has invariably caused a heightened engagement by State
courts ‘on public issues as they relate to arbitration’84 and a judicial
scrutiny of the arbitral process. Unsurprisingly, this trend obviously
includes examining the conduct of the arbitrators given its importance
‘to public confidence’.85 Some of the tenets of the legal system such as
due process, transparency and procedural fairness have become of great
concern to the courts called upon to intervene in arbitration. Consistent
with the general direction of the Model Law, article 13 envisions judicial
intervention to occur only exceptionally and swiftly. Pursuant to para-
graph 3, courts are only supposed to become involved to review the
decision that rejected the challenge and make a final determination with
no right to appeal. Article 13 also spells out very short time frames for
the filings of the challenge before the tribunal, but it does not – and it
should not – indicate how long the courts might take to render their
decision. Nevertheless, a seemingly simple and straightforward judicial
81
Jo-Mei Ma (n. 75), p. 300.
82
CLOUT Case 785.
83
In the case of the Zagreb Rules, ‘the appointing authority shall not decide on the
application for challenge if the arbitrator concerned withdraws from his or her office or
if the opposing party agrees to the challenge’. Babic and Mustafa (n. 80), p. 228.
84
S. Karamanian, ‘Courts and Arbitration: Reconciling the Public with the Private’ (2017) 9
Arb. LR 65.
85
S. Maynard, ‘The Current State of Arbitrator Ethics and Party Recourse against
Grievances’ (2017) 8 YB Arb. & Med. 204.

4 . p ar agr ap h 3 251
review might take a long time because of judicial backlog, tactical delays
by the parties and other factors that escape the scope of the Model Law
and even the applicable national arbitration laws.
Article 13(3) regulates the right of a party (‘the challenging party may
request’) to obtain judicial review of a decision that rejects the challenge
of an arbitrator.86 The court intervention envisioned by this provision is
compulsory; in other words, the parties cannot derogate from this limita-
tion meant to monitor the basic fairness of the arbitral process by a court
or the organ specified in article 6. The importance of the judicial review
envisaged here is so significant that it is meant to apply in all circum-
stances, regardless of the type of procedure chosen by the parties (‘if a
challenge under any procedure agreed upon by the parties’ (emphasis
added)) and even when the supplementary procedure listed in article 13
(2) applies as a result of the parties’ failure to choose one themselves (‘or
under the procedure of paragraph (2) of this article is not successful’
(emphasis added)).
It is also important to note that this form of court intervention is
triggered only after the arbitral tribunal has had an opportunity to
decide on the challenge and following its rejection of it, therefore giving
the challenging party another opportunity to have its allegations exam-
ined and a decision made on the merits of the purported lack of
impartiality and independence of the arbitrator.87 It is also possible,
at least in theory, that certain arguments related to challenge might be
put forth again at the setting-aside and/or recognition and enforcement
stage.88
86
The challenging party is obviously not obligated to seek an art. 13(3) court intervention in
every case, nor can the arbitral tribunal refer the matter directly to the court. Moreover,
the court may not review the decision that rejected the challenge sua sponte, either.
Nonetheless, if the party that had the right to request a court’s intervention under art. 13
(3) fails to do so, that same party may not subsequently challenge the validity of the
arbitral award on the same grounds that gave rise to the initial challenge. See Habitations
d’Angoulème Inc. v. Létourneau (2005) CanLII 12888 (QCCQ).
87
In a case decided by Poland’s Court of Appeal in Katowice, the court reaffirmed that the
decisions of the arbitral tribunal regarding a challenge are not final, and that ‘the party
who is not satisfied has the right to file a motion in accordance with Article 1176(6)
(corresponding to Article 13(3) MAL)’. See CLOUT Case 1465, AL v. Spółka Akcyjna v. P,
Katowice Court of Appeal, V ACz 1106/12 (16 January 2013).
88
See L. C. Stope, Y. Terazawa, A. Meyer and S. Kaneko, ‘Japanese Supreme Court Issues
Precedent-Setting Decision Interpreting the Japan Arbitration Act’ (3 March 2018),
www.mofo.com/resources/publications/180319-japanese-supreme-court.pdf (com-
menting on the 21 December 2017 decision of the Supreme Court of Japan affirming
an Osaka High Court regarding the ongoing duty of arbitrators to disclose potential
conflicts of interest).

Regarding the scope of judicial intervention, some national courts

have opined that in the context of an article 13(3) intervention, the
court should not just limit its involvement to merely reviewing and
confirming, or overturning the decision of the arbitral tribunal regarding
the challenge, but should instead undertake an independent review
regarding the merits of the challenge.89
The time limit for requesting judicial review under article 13(3) is
thirty days after the affected party has received notice of the decision that
denied the challenge. Article 13(3) does not expressly indicate how long
the court – or other authority specified in article 6 – may take to decide,
so this aspect is left to the discretion of the relevant national legislation or
local court rules. In any case, it is understood that the court should make
its determination expeditiously and without delay.90 Similarly, any form-
alities to be followed regarding the filing of the petition to the court or
other authority specified in article 6 must obviously conform to the local
rules or applicable law.
4.2 A Decision Subject to No Appeal

The finality of the judicial determination on the rejected challenge is
expressly endorsed by article 13(3) with the unequivocal statement that
the ‘decision shall be subject to no appeal’. As noted earlier, the effect of
the court ruling regarding the challenge elicited a great deal of discussion
during the deliberations of the Working Group. The original language of
draft article 13 mentioned that the decision was ‘final’, to which some
delegations objected, considering it unclear as to its binding effects (in
addition to being a final decision on the issue of the challenge). The
adopted language, which simply refers to the exclusion of an appeal, is
meant to solve any such doubts and give the process a greater degree of
certainty and efficiency. Nevertheless, the final and binding nature of the
decision referred to in article 13(3) does not preclude the possibility of it
being subject to an extraordinary review by way of the constitutional
89
See Oberlandesgericht München, 6 February 2006, 34 SchH 10/05. See also Pacific
China Holdings Ltd v. Grand Pacific Holdings Ltd (2007) HKCFI 715.
90
Notwithstanding the interest in avoiding delays and making the art. 13(3) court review
process as efficient as possible, some national courts have opined that the thirty-day
period set forth in art. 13(3) is not mandatory and could be extended by the courts. See
e.g. Groupe de Charles Lacroix v. Syndicat des Travailleurs Horaires de l’Amiante CSN Inc.
(2003) CanLII 35698 (QCCS).

writs of protection (amparo, mandato de segurança, tutela) that have

become increasingly common in some jurisdictions.91
4.3 While Such a Request Is Pending, the Arbitral Tribunal …

May Continue the Arbitral Proceedings and Make
an Award
The final section of article 13(3) constitutes an attempt to address the
concerns voiced during the discussions within the Working Group
regarding the risk that the judicial review of the tribunal’s decision
rejecting the challenge would cause delays and unduly increase the
costs of the proceedings.92 As a result, there is express language allowing
the tribunal to continue the arbitral proceedings to its conclusion (‘may
continue the arbitral proceedings and make an award’) and even decide
the merits of the dispute.93 Both national laws and court decisions have
endorsed this possibility as a means of dissuading the parties from using a
challenge to cause delay.94 Furthermore, national courts have also dis-
missed attempts to seek an injunction to prevent an arbitral tribunal from
continuing with the proceedings while a judicial decision on the
91
We refer here to the constitutional writ of protection regulated in several Latin
American jurisdictions as amparo constitutional, mandato de segurança or tutela
constitucional. The purpose of a writ of amparo is to grant protection for a violation
of a constitutional right by any person, private entity or public authority including the
courts. This obviously includes the conduct of arbitrators or the decision of a judge
that could be construed as violating the constitutional rights of any of the parties, such
as due process, the right to present one’s case, etc. In some jurisdictions, amparo
actions have been filed against challenge decisions by arbitrators and courts, therefore
creating another layer of (extraordinary) review. See e.g. In the matter of Procter &
Gamble de Venezuela, SA, Constitutional Court of the Supreme Justice Tribunal
(Venezuela), decision of 27 June 2012, file 12–0136. For an abuse of the constitutional
writ of amparo in the realm of international arbitration, see Manuel A. Gómez, ‘The
“Amparization” of the Justice System in Latin America and International Arbitration’,
Kluwer Arbitration Blog (1 November 2013), http://arbitrationblog.kluwerarbitration
.com/2013/11/01/the-amparization-of-the-justice-system-in-latin-america-and-inter
national-arbitration/.
92
93
As the observer from Greece pointed out during the Working Group discussions, the
‘wording of article 13(3) left it to the discretion of the tribunal whether or not to continue
its proceedings’. See Commentary of the Greek observer, Article 13 in Summary Records
(n. 6), 434, para. 10.
94
See e.g. Nikiforos v. Petropoulos (2007) QCCS 3144. See also Groupe de Charles Lacroix
(n. 90). See also Monkland 5765 Plus v. 9101–8309 Québec Inc. (2008) QCCS 253.

challenge of an arbitrator is pending.95 Nevertheless, the risk of the

parties obtaining injunctive relief to prevent the arbitration from
moving forward is always present, not only in the context of ordinary
procedural mechanisms, but also in the realm of the constitutional
writs of protection mentioned earlier.
95
See e.g. Mitsui Engineering & Shipbuilding Co. Ltd v. Easton Graham Rush and Another
(2004) SGHC 26.

Article 14
Failure or Impossibility to Act

m i c h a e l p ol k i n g ho r n e , k i r s t e n o d y n s k i , m a r i e l e
c o u l e t - d i a z an d z e h a a n t r i v e d i*
(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 con-
cerning 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).

In June 1985, the Working Group placed its final draft of the Model Law
before the UNCITRAL Commission for discussion and adoption. Article
14 was discussed at the eighteenth session of the Commission in Vienna
from 3 to 21 June 1985. At the time, the draft text of article 14 provided:
(1) If an arbitrator becomes de jure or de facto unable to perform his
functions or for other reasons fails to act, his mandate terminates if
he withdraws from his office or if the parties agree on the termina-
tion. Otherwise, if a controversy remains concerning any of these
grounds, any party may request the Court specified in article 6 to
decide on the termination of the mandate, which decision shall be
final.
*
The authors would like to thank Ms Lourdes Chavez, Ms Yoon Kung Leia Shin and Ms
Andrea Rosado Uribe for their valuable assistance in the preparation of this commentary.
255

256 a r t i c l e 1 4 : f a i l u r e or im p o s s i b i l i t y t o a c t
(2) The fact that, in cases under article 13(2) or 14, an arbitrator with-
draws from his office or a party agrees to the termination of the
mandate of an arbitrator does not imply acceptance of the validity of
any ground referred to in article 12(2) or 14.1
Three main issues arose in connection with this draft text, namely: (1) the
grounds giving rise to the termination of an arbitrator’s mandate; (2) the
manner in which the mandate would be terminated; and (3) the resolu-
tion of any disagreement between the parties concerning the question of
whether termination is justified.
1.1 Grounds Giving Rise to the Termination of an Arbitrator’s

Mandate
First, after some discussion about its ambiguity, the Working Group
ultimately decided to retain the phrase ‘de jure or de facto’ as it wanted
to ensure consistency with the 1976 UNCITRAL Arbitration Rules. The
text of article 14 of the Model Law was based on article 13(2) of the
Rules, which uses the phrase ‘de jure or de facto’.2 Like article 14 of
the Model Law, article 13(2) of the Rules permits an arbitrator to resign
and withdraw from an arbitration proceeding and allows the parties to
terminate the mandate of an arbitrator where it is impossible for him or
her to perform his or her functions due to a factual and/or legal
impediment. However, unlike article 14 of the Model Law, which does
not contain any procedure for such termination, article 13(2) of the
Rules requires the parties to follow the same procedure as that for
challenging the appointment of an arbitrator, as prescribed in those
Rules.
The Working Group also held the view that the words ‘de jure or de
facto’ gave the provision clarity.3 As explained by the Secretariat, ‘[i]n
substance the word “unable” would of course cover both cases’.4 Thus,
regardless of whether the text of article 14 was drafted as ‘if an arbitrator
becomes unable to perform his functions’ instead of ‘if an arbitrator
1
UNCITRAL, Draft Text of a Model Law on International Commercial Arbitration as
Adopted by the Working Group, UN Doc. A/CN.9/246-Annex (6 March 1984).
2
See 1976 UNCITRAL Arbitration Rules, art. 13(2).
3
UNCITRAL, Eighteenth Session Summary Records of the 305th to 333rd Meetings, 3–21
June 1985, UN Doc. A/CN.9/SR.315 (7 June 1985), 438, para. 8.
4
Ibid.

becomes de jure or de facto unable to perform his functions’, both factual

and legal inability would be included within the scope.5
Second, there were concerns as to whether the phrase ‘fails to act’ was
inherently ambiguous.6 The use of this broad phrase reflects the
Commission’s general approach of providing parties with wide latitude
and flexibility. Such flexibility allows the parties to terminate the mandate
of an arbitrator in a wide array of often-unforeseeable circumstances.
As neither the travaux préparatoires nor the Model Law provided
clarity as to when an arbitrator has failed to act, the participants at the
Commission’s sessions suggested adding qualifying language to clarify
the meaning of the phrase ‘fails to act’. Italy, for instance, suggested
adding the words ‘with appropriate speed and efficiency’ after the phrase
‘fails to act’.7 While the Italian proposal found support from India,8 Iraq,9
Finland10 and France,11 other delegations strongly opposed its inser-
tion.12 The British and US delegations, for example, expressed consider-
able concern about using the term ‘efficiency’, which ‘seemed to invite
any party dissatisfied with the way the proceedings were going to apply to
a court on the grounds that there had been inefficiency’.13 The
Commission Report supported this view, providing that the ‘criterion
of efficiency was particularly inappropriate in the context of article 14
since it could open the door to court review and assessment of the
substantive work of the tribunal’.14
5
See H. M. Holtzmann and J. E. Neuhaus, A Guide to the UNCITRAL Model Law on
1989), p. 439.
6
See A. Broches, ‘Commentary on the UNCITRAL Model Law’ in J. Paulsson and L.
Bosman (eds), ICCA International Handbook on Commercial Arbitration (Kluwer, 1984),
Supp. No. 11, January 1990, p. 65, paras 1–5; see also UNCITRAL, Report of the
Secretary-General, Analytical Compilation of Comments by Governments and
International Organizations on the Draft Text of a Model Law on International
Commercial Arbitration, UN Doc. A/CN.9/263/Add.1 (1985), 11, para. 9.
7
UN Doc. A/CN.9/263/Add.1, ibid., 26, para. 3.
8
See UN Doc. ACN.9/SR.314 (7 June 1985), 436, para. 51.
9
Ibid., 436, para. 52.
10
Ibid., 436, para. 54.
11
Ibid., 436, para. 55.
12
Ibid., 436, paras 50, 56, 59 (e.g. Austria, United States of America, Germany and the
United Kingdom, among others).
13
Ibid., 436, para. 59.
14
UNCITRAL, Report of UNCITRAL on the Work of Its Eighteenth Session, UN Doc. A/
40/17 (1985), 27–28, para. 138; see also M. F. Hoellering, ‘The UNCITRAL Model Law on
International Commercial Arbitration’ (1986) 20 Intl L. 327, 330 (‘One of the key
concepts of the model law is that of limited and clearly defined instances of court

Overall, the participants expressed ‘substantial sentiment in favour of

clarifying that failure to act meant failure to do so within a reasonable
time or with reasonable speed or without undue delay’.15 A number of
alternative formulations were proposed, including the phrases ‘with due
dispatch’, ‘with due diligence’, ‘with reasonable speed’, ‘with appropriate
speed’ and ‘without undue delay’.16
In the end, the phrase ‘without undue delay’ was inserted in the
Working Group draft, partly because of its familiarity to the Model
Law due to its use in article 4,17 and partly because it was capable of
being translated into all official UN languages.18
The addition of this phrase to the final text of article 14 is a departure
from article 13(2) of the Rules. The Secretariat has clarified that under the
Rules there is an unstated time element (i.e. the period of time during
which the arbitrator should have acted, but did not).19 The Secretariat
also explained that with regard to the Model Law, the UNCITRAL
Commission ‘decided to make this element explicit, partly in view of
the fact that a great many national laws and arbitral rules contained a
provision regarding the speed of arbitration’.20 Nevertheless, the
Commission expressly cautioned that the change had been made to
clarify, not to change, the meaning of ‘fails to act’.21
1.2 Manner of Termination of an Arbitrator’s Mandate

Before arriving at the draft text of article 14 presented to the Commission
in June 1985 (see section 1 above), the Working Group rejected a draft in
which termination was the automatic legal consequence of inability or
intervention into the arbitration process, with a curtailed right of appeal from a court
decision sought during the pendency of the arbitral proceedings. A fundamental aim
throughout all stages of drafting was to strike a proper balance in the relationship between
arbitration and the courts. As ultimately reflected in the model law, the role of the courts
in general is one of assistance supportive of the arbitral process and not one of inter-
ference with it’).
15
Broches (n. 6), p. 65.
16
See UN Doc. ACN.9/SR.314 (n. 8), 439, paras 51, 54, 57.
17
Law Jurisdictions (Sweet & Maxwell, 2010), p. 202, para. 3–089.
18
See UN Doc. ACN.9/SR.314 (n. 8), 437, para. 65.
19
See UN Doc. A/CN.9/263/Add.1 (n. 6); and see also UNCITRAL, Analytical Commentary
on Draft Text of a Model Law on International Commercial Arbitration, UN Doc. A/
CN.9/264 (25 March 1985), 36, para. 3.
20
See UN Doc. ACN.9/SR.314 (n. 8), 436, paras 49, 57.
21
See UN Doc. A/40/17 (n. 14), 28, para. 139.

failure to act,22 and instead proposed a draft that linked the termination
of an arbitrator’s mandate to: (1) their withdrawal from office; or (2) an
agreement of the parties to terminate the mandate.
The Working Group’s decision to reject the automatic termination of
an arbitrator’s mandate is notable for two reasons. First, it preserves the
integrity of the arbitrator’s office, insofar as it safeguards his or her
removal from office for trivial or unjustifiable reasons. It also ensures
that a recalcitrant party does not use this provision to capriciously delay
or derail the arbitral process.
The provision as adopted allows an arbitrator to exit voluntarily and
gracefully in instances where an arbitrator’s failure or inability to act is
justifiable. It also empowers the parties to remove and replace an arbi-
trator who is genuinely jeopardising the integrity of the arbitral process
by refusing to withdraw, even in the face of clear and indisputable
evidence of his or her inability to act or failure to act without undue delay.
1.3 Resolving Disagreements between Parties Regarding

the Termination of an Arbitrator’s Mandate
The draft of article 14 originally reserved any disagreement between the
parties regarding the existence of grounds justifying termination of an
arbitrator’s mandate for resolution exclusively by the courts designated
to do so in accordance with article 6 of the Model Law.
Austria, Canada, Germany and the International Chamber of
Commerce (ICC) objected to the provision giving exclusive jurisdiction
to an article 6 court or other authority.23 Austria proposed that the
provision be subject to the parties’ contrary agreement,24 while
Germany argued that it would prefer to permit court control only
where the parties had not agreed on another procedure that would lead
to a conclusive and binding decision.25 Canada was of the view that in an
arbitration with three arbitrators, a party should be able to request the
other members of the arbitral tribunal to terminate the mandate of
the third arbitrator before being required to request the court to do
so.26 The ICC pointed out that giving exclusive jurisdiction to State
22
See UN Doc. A/CN.9/263 (1985), 26, paras 1–6.
23
24
UN Doc. A/CN.9/263 (n. 22), 26, para. 1.
25
Ibid., 26, para. 2.
26
UN Doc. A/CN.9/263/Add.1 (n. 6), 11, para. 3.

courts was not compatible with the rules of arbitral institutions providing
that, in such cases, the institution takes a final decision.27
Ultimately, Germany and Austria withdrew their respective proposals
regarding limiting court control through an agreement of the parties.
They did so at the behest of the Secretary of the Commission, who
reminded the participating countries to ‘bear in mind in their further
discussion of the Working Group draft, which was the product of
detailed consideration by the Group, that the Commission’s schedule
for finalizing the model law imposed severe constraints of time’.28 It is
important to note this ‘sequence of events [serves] as an example of a
situation in which proposals were not considered by the Commission on
their merits but were not dealt with for lack of time’.29
The Commission recognised the difficulties of designating a local
court as the entity with absolute and exclusive jurisdiction to settle
such disputes, and accordingly, clarified at its eighteenth session that
‘[i]t was also agreed that a State should not be compelled to designate a
court in the terms of article (2)(b) for all the functions referred to in
article 6 but should be free to entrust the functions envisaged in articles
11, 13 and 14 to an organ or authority outside its judicial system such as a
chamber of commerce or an arbitral institution’.30 The text of article 6, to
which article 14 refers, was modified to empower ‘other authorit[ies]’,
such as arbitral institutions, to decide on issues relating to the termina-
tion of an arbitrator’s mandate. Thus, the final text of the Model Law as
adopted in 1985 did not provide State courts with exclusive jurisdiction
to hear controversies relating to the termination of an arbitrator’s
mandate.
Finally, as with the similar text appearing in article 13(2) of the 1976
UNCITRAL Arbitration Rules, the Working Group’s characterisation of
the court decision as ‘final’ under article 14 of the Model Law was
amended to read ‘shall be subject to no appeal’.31
2. Paragraph 1
By providing the parties with the ability to overcome any factual and/or
legal impediments preventing an arbitrator from discharging his or her
27
Ibid., 11, para. 2.
28
29
Ibid.
30
See UN Doc. A/40/17 (n. 14), 15, para. 69.
31
See 1976 UNCITRAL Arbitration Rules, art. 13.

functions, article 14 safeguards the continuity of the arbitral process by

ensuring that the proceedings are not unduly disrupted or delayed.
Article 14 distinguishes between two situations that could justify the
termination of an arbitrator’s mandate: (1) the arbitrator’s de jure or de
facto inability to perform his or her functions; and (2) the arbitrator’s
failure to act ‘without undue delay’. Taken together, these two situations
prescribe the standard against which the termination of an arbitrator’s
mandate under article 14 should be assessed.
2.1 Standard
While an arbitrator’s inability to act contemplates objective events exter-
nal to the arbitrator’s intention or behaviour, their failure to act con-
templates subjective incidents attributable to the arbitrator.
Importantly, the termination of an arbitrator’s mandate is not a sanc-
tion for an arbitrator’s poor performance. Rather, it is a practical solution
designed to protect the parties’ interest in having their disputes resolved
efficiently. Thus, the termination of an arbitrator’s mandate, whether it
results from the arbitrator’s voluntary withdrawal or from the parties’
agreement to terminate his mandate, does not imply the acceptance or
validity of any of the grounds of termination described under article 12
(2) or 13(2) of the Model Law.
2.1.1 Inability to Perform

The first part of article 14(1) in turn describes two circumstances under
which an arbitrator may be unable to perform his or her functions.
The first – where an arbitrator is de jure unable to perform – con-
templates an arbitrator’s legal inability to fulfil his or her functions. Such
circumstances frequently concern domestic legal restrictions on the
arbitrator’s ability to perform. The grounds for legal incapacity will
often be found in the lex loci arbitri and relate to circumstances under
which the arbitrator is barred by law, for example, from continuing in
office (e.g. incapacity, bankruptcy, conviction of a criminal offence).32
32
A. I. Okekeifere, ‘Appointment and Challenge of Arbitrators under the UNCITRAL
Model Law Part II: Challenge’ (2000) 1 Intl ALR 17. Depending on the applicable lex
arbitri, examples of a de jure inability may also include procedural impediments. For
example under s. 45 of the German Criminal Code, ‘an incapacity for public office’
constitutes a legal impediment to act. See K. Bockstiegel, S. M. Kroll and P. Nacimiento
(eds), Arbitration in Germany: The Model Law in Practice, 2nd edn (Kluwer, 2015), Pt II,
ch. III, pp. 203–208.

262 article 1 4: failure or impossibility to act
By way of example, in a 2003 case, a German judge had been wrongly

granted special administrative permission to serve as an arbitrator.
The German court determined that the fact that the special adminis-
trative permission had been issued erroneously did not constitute a de
jure obstacle to the arbitrator’s performance of his mission within the
meaning of article 14(1). Rather, such fact made the permission sus-
ceptible to challenge. However, since in that case the challenge to the
arbitrator’s special administrative permission was time barred, the
court upheld the judge’s erroneous appointment as valid.33 Subject
to any arguments on waiver that a party may use as a defence against
the invocation of article 14, article 14 may be relied upon at any stage
of the proceedings.
To take another example, in a 2006 case, a Hong Kong34 court held that
an arbitrator who had been arrested and was detained in a foreign
jurisdiction was unable to perform his functions. The court terminated
the arbitrator’s mandate on the basis of article 14(1).35
The second situation – where an arbitrator is de facto unable to
perform his or her functions – relates to a factual circumstance
that renders the arbitrator incapable of fulfilling his or her man-
date. Examples of factual inability include illness, disability and
death.36
An arbitrator’s mandate may be terminated on the basis of illness or
disability only where such illness or disability is so serious that it prevents
an arbitrator from discharging his or her duties. The bar can be set quite
high. For example, in a 2003 case, a German court refused to terminate
the mandate of an arbitrator on the basis of the arbitrator’s illness.37 The
arbitration proceedings had been repeatedly interrupted over a period of
four years because one of the three arbitrators suffered from recurring
33
Oberlandesgericht Hamm, 18 September 2003, 17 SchH 7/03.
34
Hong Kong has adopted the text of the Model Law without any modification. See
Arbitration Ordinance (Cap. 609), art. 27(1).
35
Noble Resources Pte Ltd v. China Sea Grains and Oils Industry Co. Ltd [2006] HKCFI 334.
36
G. Born, International Commercial Arbitration, 2nd edn (Kluwer, 2014), para. 12.06[H].
Disability may range from physical inabilities – such as the arbitrator travelling abroad for
a long period of time or being in custody – to unusual events such as the sudden non-
existence of the organisation to which the arbitrator belonged. In other instances, old age
could also be regarded as an impediment; in this regard, see Nacimiento et al. (n. 32), p.
205, para. 1038; on disability, see also, specifically, I. Bantekas, M. A. Stein and D.
Anastasiou, The UN Convention on the Rights of Persons with Disabilities: A
Commentary (Oxford University Press, 2018).
37
Oberlandesgericht Köln, 11 April 2003, 9 SchH 27/02.

episodes of anxiety, depression and alcohol abuse and needed to

undergo psychiatric treatment. The party who appointed the arbitrator
eventually requested a German court to terminate his mandate on the
basis of section 1038 of the German Code of Civil Procedure (identical
to article 14 of the Model Law). The challenging party argued that the
arbitrator’s continued need for medical and therapeutic treatment and
the constant risk of relapse made it impossible for him to perform his
task. The German court rejected the party’s request to terminate the
arbitrator’s mandate. The court reasoned that despite the arbitrator’s
long leaves of absence, his intellectual capacity raised no doubts. The
court specifically noted that neither the challenging party nor the other
two arbitrators had expressed any concern about the arbitrator’s intel-
lectual ability to perform his functions. The court thus concluded that
the arbitrator’s illness did not prevent him from discharging his duties,
factually or legally.
In the case at hand, the challenging party did not argue that the
arbitrator failed to act without undue delay. The question remains, there-
fore, whether doing so may have led to a different conclusion.
2.1.2 Failure to Act without Undue Delay

As explained above,38 the travaux préparatoires indicates that the term
‘failure to act’ was deliberately left undefined and was intended to be
broad in scope, so as to cover the great variety of situations in which an
arbitrator’s failure to perform may become intolerable.39 The term ‘with-
out undue delay’ was introduced during the drafting phase to provide an
element of ‘timing’ (i.e. to make clear that the termination of the arbi-
trator’s mandate was not conditioned on a failure to act in absolute
terms).
While the Model Law does not define the terms ‘failure to act’ and
‘without undue delay’, the Secretariat’s commentary on article 14
provides useful guidance in understanding the meaning of these
terms.40 According to the Secretariat, the elements to be considered
when deciding whether an arbitrator has failed to act include: (1) the
action expected or required of him in light of the arbitration agree-
ment and the specific procedural situation; (2) whether the delay in
discharging an action is inordinate and unacceptable in light of the
38
See section 1.1 above.
39
UN Doc. A/CN.9/263/Add.1 (n. 6); and UN Doc. A/CN.9/264 (n. 19).
40
UN Doc. A/CN.9/264 (n. 19), 11, paras 2–4.

underlying circumstances, including the complexity and technicality

of the case; or (3) alternatively, whether an action taken falls clearly
below the standard of what may reasonably be expected from an
arbitrator.41
Likewise, commentators have explained that the meaning of the phrase
‘without undue delay’ should be understood in light of the qualifying
language that was not accepted for inclusion in the final version of article
14.42 By rejecting these terms, the Commission refused to place impor-
tance on the ‘efficiency’ expected from an arbitrator and instead acknowl-
edged that there is an ‘acceptable’ delay inherent in the arbitral process.
The phrase ‘without undue delay’ refers only to deliberate failures to act,
and does not serve as a mechanism for terminating an arbitrator in
circumstances where the arbitration is not proceeding in an efficient
manner.43
In fact, as explained above, the Italian proposal to add the phrase ‘with
appropriate speed and efficiency’ was rejected precisely because it might
be understood as inviting national courts to analyse whether an arbitra-
tor’s decision on a procedural step – such as an additional hearing day or
a request for further briefing – was efficient.44 Rather, the term ‘without
undue delay’ is intended to invite review ‘only of the question of whether
the arbitration is moving along, not whether the conduct of the proceed-
ings is wise and efficacious. It is intended to catch the egregious cases and
not to place a judge with a stopwatch over the shoulder of every
arbitrator.’45
It follows from the above that the question to be considered when
assessing an arbitrator’s failure to act as a ground for termination of his
or her mandate is whether, in the light of the arbitration agreement and
the specific circumstances of the case, his or her ‘conduct falls clearly
below the standard of what may reasonably be expected from an
arbitrator’.46
The available case law considering this issue confirms that, in practice,
terminating an arbitrator’s mandate as a result of his or her failure to act
41
Ibid., 11, para. 4.
42
See Holtzmann and Neuhaus (n. 5), p. 439.
43
C. C. A. Voskuil and J. A. Freedberg-Swartzberg, ‘Composition of the Arbitral Tribunal’
in P. Sarcevic (ed.), Essays on International Commercial Arbitration (Martinus Nijhoff,
1989), p. 88.
44
See UN Doc. A/40/17 (n. 14), 27–28, para. 138; and see also UN Doc. ACN.9/SR.314 (n.
8), 436–437, paras 56, 59, 63, 64.
45
See UN Doc. ACN.9/SR.314 (n. 8).
46
See UN Doc. A/CN.9/264 (n. 19), 36, para. 4.

‘without undue delay’ requires a subjective analysis. A court or monitor-

ing authority’s assessment that a given delay is ‘undue’ may differ from
that of the arbitrator or that of the parties, jointly or individually. Below,
we discuss how these questions have been considered by courts in various
jurisdictions.
Australian courts have held that an arbitrator’s punctual unavailabil-
ity will likely not fall within the scope of article 14(1). For example, in a
2002 Australian case, after the appointment and acceptance of a three-
member tribunal, the parties notified the tribunal of their agreement
regarding the hearing dates. Upon receipt of the parties’ notification,
one of the arbitrators – who had previously confirmed his availability
for the hearing – informed the party who had appointed him that he was
no longer available to hear the case on the dates agreed by the parties
and proposed to withdraw from his appointment. The question that the
court considered was whether the arbitrator’s unavailability for the
hearing gave rise to a ground for termination under article 14(1) (i.e.
de facto inability to act). The relevant Australian court accepted that the
arbitrator’s mandate should be terminated since he was no longer
capable of discharging his duties. However, the court reasoned that
his unavailability on the agreed hearing dates was not a ground for
termination under article 14(1), but rather a ground for termination
under article 15 of the Model Law.47 The court explained that the
arbitrator was not de jure or de facto prevented from discharging his
duties and had not failed to act without undue delay. Rather, his
inability to discharge his functions resulted from ‘other reason[s]’
within the meaning of article 15.
Courts in various jurisdictions have taken different views as to whether
an arbitrator’s failure to render an award within the agreed time limit
constitutes sufficient ground for terminating that arbitrator’s mandate
under article 14(1).
While courts consider the factual circumstances underlying each case,
the failure to render an award within the time limit agreed by the parties,
or conferred by statute generally qualifies as a failure to act without
undue delay, unless the parties had agreed to extend the time limit for
issuing the award. In general, an arbitrator’s failure to issue an award
either within the time limit agreed by the parties, or the time limit
47
Gordian Runoff Ltd (formerly Gio Insurance Ltd) v. The Underwriting Members of Lloyd’s
Syndicates [2002] NSWSC 1260.

266 article 14: failure or impossibi lity to act
conferred by statute, as the case may be, is not a sufficient basis upon
which to seek the termination of an arbitrator’s mandate. However, when
an arbitrator fails to issue an award within the time limit agreed by the
parties, and subsequently the parties extend the time limit, then a failure
to issue an award within the extended time limit may become a ground
for seeking termination.
In a 1992 Canadian case, two parties executed an arbitration agree-
ment whereby the tribunal had sixty days to issue the award.48 After the
tribunal failed to deliver the award within the agreed time limit, the
parties agreed to grant the tribunal an extension of time to do so. One
day before the extended deadline, one of the parties requested that the
Canadian courts terminate the tribunal’s mandate under section 14 of
Canada’s Commercial Arbitration Act (identical to article 14 of the
Model Law). In what some may consider a surprising decision (at least
from a practical perspective), the court reasoned that the tribunal’s
mandate could be terminated in accordance with section 14, as the
parties did not waive the sixty-day time limit for issuing the award, but
rather simply extended it.
German courts have erred on the side of caution. In two recent cases
before the High Courts of Düsseldorf and Munich, the courts limited the
conditions triggering judicial control over the procedural timeline of
arbitration to exceptional cases.49 The courts also limited the scope of
judicial review by adopting a balancing test that considers the complexity
of the case and the parties’ needs, together with a look at what could have
been done if the parties had found themselves before a State court. The
High Court of Düsseldorf held that it ‘would only assume undue delay’ if
(1) the arbitrator had ‘failed to take necessary measures’ thereby causing a
‘delay’ and (2) the delay caused is of an ‘exceptional’ character when
compared to the average pace of the ‘proceedings before a state court’.50
Likewise, the High Court of Munich emphasised that an arbitrator’s
undue delay should be weighed against the parties’ need for expediency,
which notably requires consideration of whether the parties had incurred
any ‘disadvantages that they would not have incurred in front of a state
court’.51
In an Indian case decided in 2010, the parties agreed that the arbitra-
tion proceeding should be concluded by 30 September 2005 and
48
Petro-Canada v. Alberta Gas Ethylene [1992] ABCA 9 (CanLII).
49
Nacimiento et al. (n. 32), pp. 205–206.
50
OLG Düsseldorf, 8 July 2008.
51
OLG München, 17 December 2010.

accordingly the arbitrator should render his award by then. The arbi-
trator failed to render the award by this date, and the respondent
requested that the High Court terminate his mandate. By way of an
interim order, the High Court first restrained the arbitrator from making
an award, and in doing so refused to accept the award that the arbitrator
had produced to the court. The court reasoned that the award had been
produced after the deadline agreed by the parties because, while the
arbitrator prepared the award before the court proceedings commenced,
he did not then share it with the parties.52 Accordingly, the High Court
then terminated the arbitrator’s mandate on the ground of delay in
rendering the award.53 Ultimately, the matter reached the Supreme
Court of India, which held that the delay in issuing the award was indeed
a ground for terminating the arbitrator’s mandate in that case. Further,
the Supreme Court observed that although the High Court had correctly
terminated the mandate for ‘failure to act without undue delay’ under the
Indian Arbitration & Conciliation Act, 1996, it had nevertheless erred in
disallowing the affected party from appointing a substitute arbitrator. On
this basis, the Supreme Court of India directed the High Court to
reconsider its position regarding the procedure for appointing the sub-
stitute arbitrator.
Similarly, in a 2010 Singaporean case, a dispute arose in connection
with the application of article 14(1) of the arbitration rules of the
Singapore Institute of Architects.54 Article 14(1) provides that, unless
the parties have agreed otherwise, the final award is to be issued within
sixty days from the close of the hearing. After the sole arbitrator failed
to comply with this sixty-day time limit, one of the parties notified the
sole arbitrator that his mandate had terminated as a result of his failure
to do so. Some fourteen months later, the sole arbitrator informed the
parties that the final award was ready for collection and demanded
payment of his outstanding fees. The parties did not react to the
arbitrator’s notification. The sole arbitrator then submitted an applica-
tion before the courts in Singapore requesting that the time limit for
issuing the award be extended and that his outstanding fees be paid by
the parties. (This application was made under section 15 of Singapore’s
52
NBCC Ltd v. JG Engineering Pvt. Ltd, Supreme Court, India, 5 January 2010, (2010) 2 SCC
385; see also Ting Kang Chung John v. Teo Hee Lai Building Constructions Pte Ltd and
Others [2010] SGHC 20; Tay Eng Chuan v. United Overseas Insurance Ltd, High Court,
Singapore, [2009] SGHC 193.
53
NBCC v. J. G. Engineering (n. 51).
54
Ting Kang Chung (n. 51).

Arbitration Act 1985, which allows a court to extend the time limit for
issuing a final award.) The parties argued before the courts that the
arbitrator’s mandate had been terminated due to his failure to act
without undue delay. The Singaporean court dismissed the sole arbi-
trator’s application and held that his award was void and of no effect,
and that his fees were accordingly irrecoverable.
In sum, the range of possible circumstances that could give rise to the
termination of an arbitrator’s mandate under article 14(1) of the Model
law are virtually unlimited. This inherent flexibility is reflected in the
observations of one scholar, who noted that article 14 ‘was not intended
to preclude the parties from varying the grounds which would give rise to
the termination of the [arbitrator’s] mandate or from entrusting a third
person or institution with deciding on such termination’.55 The absence
of a well-defined set of circumstances in which the termination of an
arbitrator’s mandate is warranted seems to be a deliberate choice of the
drafters.
However, such absence may also open the door to an abusive use of
article 14 by recalcitrant parties seeking to engage in dilatory tactics. In
such instances, the absence of any guidance in assessing the termination
might conflict with the very objective of article 14 (i.e. to guarantee the
unfettered continuity of the arbitral process).56
2.2 Mechanisms for Terminating the Arbitrator’s Mandate

Article 14(1) of the Model Law empowers three different entities to
terminate an arbitrator’s mandate. First, the arbitrator is empowered to
withdraw voluntarily. Second, the parties can agree to terminate an
arbitrator’s mandate. Third and finally, where an arbitrator has decided
not to step down and the parties are unable to decide whether to
terminate that arbitrator’s mandate, a controversy results and a court
or other authority designated under article 6 may be seised with the issue.
It will be recalled that article 6 requires a State, when adopting the Model
Law, to designate a court or other authority to perform the functions set
out in article 14(1), among others.57
55
See UN Doc. A/40/17 (n. 14), 27, para. 136.
56
See section 2.3, above.
57
UN Doc. A/CN.9/264 (n. 19), 19, art. 6.

2.2.1 Arbitrator’s Withdrawal

As stated above, an arbitrator can voluntarily withdraw from his or her
appointment due to his or her failure or inability to act. An arbitrator’s
power to do so raises three key questions.
First, is the arbitrator required to justify his or her withdrawal
under article 14? An arbitrator may decide to withdraw from
arbitral proceedings in a wide range of circumstances, including a
realisation that he or she may not have the necessary expertise
because the issues to be determined have significantly evolved
since his or her nomination; an acceptance of a professional
position that prevents the arbitrator from carrying out his or her
duties; receipt of a court order that renders him or her incapable of
acting; or a realisation that he or she has lost the confidence of the
parties.
As analysed above, whether such grounds fall within the ambit of
article 14(1) likely depends on the circumstances of each case. While
there is little guidance as to whether an arbitrator is required to justify
his or her position before withdrawing, as a matter of (obvious)
principle, resignations should not be tendered lightly or on the basis
of self-interest, as doing so would ordinarily appear inconsistent with
the arbitrator’s duty to conduct the arbitration in an efficient
manner.58
Second, has the arbitrator the discretion to withdraw, or can he or
she be compelled to remain in office by the parties or a competent
authority? This question was the crux of a 2002 case before the
Supreme Court of New South Wales,59 where, consistent with the
terms of the applicable arbitration agreement, one party unilaterally
appointed a sole arbitrator on behalf of both parties. Subsequently,
the arbitrator expressed an intention to withdraw from his appoint-
ment. Since the parties had the unilateral right to appoint an arbi-
trator, the arbitrator so appointed was not a ‘nominee’ of either
party, in the traditional sense of the term. In these circumstances,
the claimant argued that the arbitrator’s intent to withdraw should
be treated as a resignation and, thus, be given immediate effect. The
defendants argued that as an arbitrator for the parties, rather than a
58
An arbitrator bears, among other things, an ‘obligation of availability’ which includes a ‘duty
to act with reasonable speed and not to obstruct or delay the proceedings’. See D. Alessi,
‘Enforcing Arbitrator’s Obligations: Rethinking International Commercial Arbitrators’
Liability’ (2014) 31 JOIA 771.
59
Gordian Runoff (n. 46).

nominee, the arbitrator could not withdraw unilaterally from the

proceedings. The court ultimately ruled that his unilateral withdra-
wal was effective and that the appointing party could proceed to
appoint a substitute arbitrator unilaterally.60 The court reached this
conclusion on the basis that since at the time of appointment the
parties were under no obligation to consult each other with regard
to the arbitrator’s appointment, it follows that they were not obliged
to consult each other at the time the arbitrator expressed his desire
to withdraw.61
Likewise, if a party-appointed arbitrator resigns shortly before
the hearing in an obvious attempt to delay the proceedings, can the
opposing party ask a court to order that the resigning arbitrator’s
mandate continue? One view expressed by the Working Group was
that a person who accepted the responsibility to act as an arbitrator
should not be allowed to resign without a sound reason.62 The
prevailing view, however, is that adopting such an approach was
impractical, as an unwilling arbitrator could not be
forced to perform his or her functions.63 In the end, the Model
Law does not address the issue of whether a court can compel an
arbitrator to remain in office, leaving it to be dealt with by national
laws.
Third, the question arises as to whether an arbitrator should be
legally responsible for the consequences of his or her withdrawal.
In this respect, the Working Group determined that the Model Law
should not address the issue of responsibility,64 leaving this to be
dealt with under national laws. In most cases, it appears that an
arbitrator will be found liable only if gross negligence can be
proven (as a result of general standards not necessarily limited to
this issue). That being said, certain types of withdrawals will
obviously reflect poorly on an arbitrator’s reputation
and thus impair his or her chances of being appointed in the
future.65
60
Ibid.
61
Ibid.
62
Work of Its Seventh Session, UN Doc. A/CN.9/246 (1984), 12, para. 44.
63
Ibid.
64
65
See Binder (n. 17), p. 202, para. 3–094.

2 . p ar agr ap h 1 271
2.2.2 Parties’ Agreement

Article 14 does not specify the procedure to be followed by a party
seeking to terminate the mandate of an arbitrator. A party therefore
has the option to first address the other party, to see whether there is
agreement on the issue, or to proceed directly to the court or other
authority identified in article 6, which would then solicit comments.
The latter approach is likely to be of interest where the circumstances
are such that the parties are unlikely to agree on the termination of the
mandate.
While article 14 does not specifically require that a court or competent
authority approve the parties’ agreement, it might in some cases be useful
to have a decision formally recording such agreement and declaring the
arbitrator’s removal. It seems that such a decision would be inevitable in
cases where, despite the parties’ agreement, the arbitrator refuses to
withdraw.
2.2.3 Request to a Court or Other Authority

The second sentence of article 14(1) of the Model Law provides that if a
controversy remains with regard to the basis for termination of an
arbitrator’s mandate, ‘each of the parties may request the court or other
authority to decide on the termination of the mandate. Such decision
cannot be appealed.’
The scope of the controversy encompassed in article 14(2) covers
both situations where the arbitrator refuses to withdraw from office
despite having been requested to do so by the parties, and where the
parties fail to reach an agreement regarding the termination of an
arbitrator’s mandate.
Virtually all of the enacting States followed the Model Law’s
approach of granting their national courts the power to deal with
such disputes under article 14(1).66 However, not all States gave the
court’s decision a final (non-appealable) character. Hungary, India and
the Islamic Republic of Iran, for example, make no mention of the
absence of an appeal, thereby leaving the arbitrator with recourse
against such a decision.67
66
For instance, under s. 8(2) of the 1995 Arbitration Act of Sri Lanka, the High Court is
granted the authority to remove the arbitrator and appoint another in case of undue
delay. See A. A. Asouzu and V. Raghavan, ‘The Legal Framework for Arbitration in Sri
Lanka – Past and Present’ (2000) 17 JOIA 111.
67
Binder (n. 17), p. 202, para. 3–095.

2.3 Procedure for Termination

2.3.1 Non-Formal Proceeding
Article 14 does not lay down any specific procedure to follow when
requesting the termination of an arbitrator’s mandate.68 Therefore, the
entity requesting the termination of the arbitrator’s mandate – whether
the arbitrator himself or herself, or the parties, acting jointly or indepen-
dently – has discretion as to the manner in which such an application is
prepared and submitted. The parties’ discretion is, of course, subject to
procedural and formal requirements provided by the applicable rules of
arbitration or civil procedure. Although no specific procedural require-
ments have been prescribed under article 14, it is reasonable to expect
that the entity requesting the termination of the arbitrator’s mandate
send a statement of reasons, explaining or justifying the termination to
the other affected entities, and then, if necessary, to the competent court
or authority (so that it can decide upon the termination request).69
2.3.2 No Specific Time Limit

As mentioned above, a party’s application to terminate an arbitrator’s
mandate under article 14 is not subject to any specific time limit. While a
challenge on the basis of articles 12 and 13 must be brought within fifteen
days following the challenging party’s awareness of either (1) the con-
stitution of the arbitral tribunal or (2) circumstances giving rise to
justifiable doubts as to the arbitrator’s independence, impartiality or
qualifications, a challenge under article 14 can be raised at any time
during the pendency of the arbitral proceedings.
Despite the absence of any time limit, a request to terminate an
arbitrator’s mandate should be raised ‘without undue delay’. Indeed,
article 4 of the Model Law provides that ‘[a] party who knows that any
provision of [the Model Law] from which the parties may derogate … has
not been complied with and yet proceeds with the arbitration without
stating his objection to such non-compliance without undue delay …
shall be deemed to have waived his right to object’.70
68
Ibid., p. 438.
69
Ibid. See also UNCITRAL, Working Papers Submitted to the Working Group on
International Contract Practices at Its Fourth Session, UN Doc. A/CN.9/WG.II/WP.37
(1982), art. 11; UNCITRAL, Working Papers Submitted to the Working Group on
International Contract Practices at Its Fourth Session (A), UN Doc. A/CN.9/232
(1982), 14, paras 66–67.
70
See Article 4 of the UNCITRAL Model Law on International Commercial Arbitration,
UN Doc. A/40/17 (n. 14), annex 1 and A/61/17, annex 1 (21 June 1985) (emphasis added).

The underlying principle is that a party should not be allowed to profit

from its own delay in circumstances where the reasons for bringing a
challenge to an arbitrator’s appointment were known, or could reason-
ably have been known, by that party from the very beginning. Therefore,
if a party becomes aware of (1) any de jure or de facto circumstance(s)
that are likely to prevent an arbitrator from performing their duty, or (2)
other reasons that would prevent the arbitrator from discharging its
functions without undue delay, then such a party must take steps to
terminate the arbitrator’s mandate. If such party fails to do so ‘without
undue delay’, it will be deemed to have waived its right to seek the
termination of the arbitrator’s mandate on those grounds.
While article 4 does not provide explicit guidance as to what consti-
tutes ‘undue delay’, with regard to article 14 of the Model Law, the
starting point for determining whether such delay had occurred could
run from either (1) the date of the challenging party’s awareness of the
arbitrator’s failure or inability to act, or (2) the date of the challenging
party’s acknowledgement that there was a controversy or dispute with
regard to the termination of an arbitrator’s mandate.
While it appears that national courts have yet to consider this issue,
one can contemplate situations where a party’s delay should bar the party
from seeking to terminate the mandate of an arbitrator.
2.3.3 Non-Mandatory Character

As discussed above, during the eighteenth session of the Commission, the
ICC expressed concern as to whether article 14 was mandatory or non-
mandatory, as this had vital implications for the application of institu-
tional rules.71 If article 14 has a mandatory character, parties cannot
choose a different or bespoke challenge procedure for the removal of an
arbitrator. For example, parties may be prohibited from choosing the
challenge procedure provided for in the rules of several arbitral institu-
tions, such as article 15 (‘Replacement of arbitrators’) of the 2017 ICC
Arbitration Rules.72
Consequently, the Commission decided that although article 14 did
not expressly give the parties the freedom to agree on a procedure (as
articles 12 and 13 of the Model Law did), ‘[t]he provision was not
intended to preclude parties from varying the grounds which would
71
See Binder (n. 17), p. 203, para. 3–096.
72
International Chamber of Commerce, 2017 Arbitration Rules, art. 15.

give rise to the termination of the mandate or from entrusting a third

person or institution with deciding on such termination’.73
The non-mandatory character of article 14 can also be inferred from
the parties’ freedom to agree on the arbitrator’s mandate: if the parties are
free to agree on that mandate, they should also be free to choose a
procedure to terminate this agreement.74
One scholar suggests that this point seems not to have posed a problem
for the adopting States or was overlooked, as only a few States included
explicit wording on the mandatory or non-mandatory character of the
provision when adopting the Model Law.75 However, as yet, no examples
have been found by the authors of this chapter whereby article 14 has
been given a mandatory character by an adopting State. In any event, a
plain reading of article 14, coupled with the absence of any indicative
language in the text of this provision, appears to confirm that the provi-
sion does not have a mandatory character. It would then follow that the
parties are free to agree on a bespoke procedure for the termination of an
arbitrator’s mandate under article 14.76
2.4 Termination of an Arbitrator’s Mandate

The termination of an arbitrator’s mandate under article 14 does not
bring the arbitral proceedings themselves to an end. Rather, pursuant to
article 15 of the Model Law, a substitute arbitrator is to be appointed to
replace the arbitrator whose mandate was terminated.77 Article 15 pro-
vides that the appointment of the substitute arbitrator shall be made
‘according to the rules that were applicable to the appointment of the
arbitrator being replaced’. However, as was expressed during the travaux
préparatoires, ‘the party autonomy recognized in article 11 [of the Model
Law] for the original appointment of an arbitrator’ should apply ‘with
equal force to the procedure of appointing the substitute arbitrator since
article 15 refer[s] to the rules that were applicable to the appointment of
an arbitrator being replaced’.78
Article 14 does not provide guidance on how to determine the fees of
the arbitrator whose mandate has been terminated. By contrast,
73
See UN Doc. A/40/17 (n. 14), 27, para. 136.
74
See Binder (n. 17), p. 204.
75
Ibid.
76
Ibid.
77
Born (n. 36), para. 12.06[H].
78
See UN Doc. A/40/17 (n. 14), Supp. 17, Annex I, para. 147.

3. p ar agr aph 2 275
institutional rules usually contain a formula for calculating these.79

Additionally, in order to safeguard against parties’ non-payment of
arbitrators’ fees, institutional rules typically require parties to deposit
part or whole of these fees in advance.80 In exceptional cases, some
national laws expressly permit an arbitrator to withhold the final award
until such time that the arbitrators’ fees are fully paid.81
Lastly, neither article 14 nor article 15 provide any guidance as to what
extent prior phases of the proceedings should be repeated before the
reconstituted arbitral tribunal. Incidentally, albeit a slightly different
point, this raises the question of whether, if the termination of an
arbitrator’s mandate occurs after a hearing has taken place, the remaining
arbitrators are allowed to continue as a truncated arbitral tribunal. While
there is no generalised practice on this point, article 14 of the 1976
UNCITRAL Arbitration Rules suggests that ‘in view of the exceptional
circumstances of the case’, the appointing authority may determine that
it is ‘justified for a party to be deprived of its right to appoint a substitute
arbitrator’. In such case, article 14 provides that the appointing authority
may either ‘(a) appoint the substitute arbitrator; or (b) after the closure of
the hearings, authorize the other arbitrators to proceed with the arbitra-
tion and make any decision or award’.
3. Paragraph 2
This paragraph initially appeared in the Working Group draft as a
separate article.82 The substance of this separate article was approved
by the Commission without discussion and incorporated by the Drafting
Group into article 14 as a new paragraph, paragraph 14(2).83
As stated previously, this provision was designed to facilitate the
voluntary withdrawal of an arbitrator, where the circumstances provided
for in articles 13(2) and 14(1) of the Model Law arose.84 This is confirmed
by UNCITRAL’s Analytical Commentary on Draft Text of a Model Law
on International Commercial Arbitration, which explains that this
79
See e.g. ICC Rules 2017, SIAC Rules 2016, LCIA Rules 2014 and SCC Rules 2017, among
others.
80
Ibid.
81
See e.g. English Arbitration Act, 1996, s. 56 and Sch. 2.
82
Work of Its Seventh Session, UN Doc. A/CN.9/246/Annex (1984), art. 14 bis.
83
See UN Doc. A/40/17 (n. 14), 28, paras 144–145.
84
UN Doc. A/CN.9/264 (n. 19).

provision ‘is designed to facilitate [the] withdrawal or consent in order to

prevent lengthy controversies’.85 In practice, many arbitrators will prefer
to resign if a party, or if all the parties, express a lack of confidence in
them, even if the charge is disproportionate or even false.86
While article 14 of the Model Law provides a useful tool for parties
facing undue delays and inefficiencies in arbitral proceedings, it fails to
address certain practical considerations relating to the ‘removal of an
arbitrator’ during an arbitration. The removal of an arbitrator requires a
great degree of cooperation between the parties, failing which a party will
need to incur costs and face delays pursuing the ‘circuitous’ recourse to a
court.87 The need to spend six months (or more) in court seeking to
remove an indisposed, undedicated or willfully dilatory arbitrator is
unlikely to appeal to a party already facing delays in the context of the
arbitration proceedings.
Importantly, the ‘removal’ of an arbitrator is not a remedy in and of
itself and will not offset the losses incurred by the parties due to proce-
dural delays. Courts and other authorities considering these issues should
consider which remedies are necessary to compensate for any prejudice
to the parties’ economic interests caused by an arbitrator’s de jure or de
facto failure or impossibility to act and to the outer limits of an arbitra-
tor’s immunity88 in order to ensure the practicability of article 14.
85
Ibid., art. 14 bis, 3, para. 1.
86
H. Strohbach, ‘Composition of the Arbitral Tribunal and Making of the Award’ in P.
Sanders (ed.), UNICTRAL’s Project for a Model Law on International Commercial
Arbitration (Kluwer, 1984), ICCA Congress Series vol. 2, p. 111.
87
A. I. Okekeifere, ‘The Parties’ Rights against a Dilatory or Unskilled Arbitrator’ (1998) 15
JOIA 129.
88
Delays can also be caused by factors beyond the arbitrator’s control. This would require a
different qualification from other forms of culpable delays. See Okekeifere, ibid., pp. 129–144.

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.

Article 15 was initially not meant to encompass cases where the arbitra-
tor’s mandate can be terminated: in the first draft, the Working Group’s
sole objective was to regulate what happens after the termination of the
mandate has taken place.1 In later drafts, however, it was acknowledged
that since the termination of the arbitrator’s mandate has fundamental
consequences on the composition of the tribunal, the Model Law should
clarify when and under what circumstances this can occur.2 A specifica-
tion was added, hence, to the effect that both the parties (by agreement)
and the arbitrators have the power to terminate the mandate.3
A disagreement arose as to whether the Model Law should include a
special provision for the situation where the parties have selected a
specific arbitrator in the agreement to arbitrate, and the mandate of
1
1989), p. 464, with reference to Note by the Secretariat: Model Law on International
Commercial Arbitration: Draft Articles 1 to 24 on Scope of Application, Arbitration
Agreement, Arbitrators, and Arbitral Procedure, UN Doc. A/CN.9/WG.II/WP.37 (4–15
October 1982), art. 12.
2
Report of the Working Group on the Work of Its Seventh Session, UN Doc. A/CN.9/246 (6
March 1984), paras 42–45.
3
See below, sections 2.3 and 2.4.
277

278 article 1 5: appointment of substitute arbitrator
that arbitrator subsequently terminates. It was noted in the Working

Group that, in this scenario, the parties have expressed the interest to
have their dispute adjudicated by a particular individual, and it is there-
fore doubtful whether the agreement should remain valid if that indivi-
dual is no longer able to serve as arbitrator.4 This proposal was opposed
by the Secretariat, which, however, noted that a special rule did ‘not seem
necessary or advisable’.5 The Secretariat, in particular, noted that the
practical value of such a rule seemed ‘limited’, and a ‘more flexible
approach’ was ‘desirable and possible’.6 In the end, it was decided not
to include a special rule for the case where the parties have appointed the
arbitrator(s) by name in the agreement. This choice is understandable, as
it would be inappropriate to read specific intentions into the parties’
choice to immediately nominate the arbitrator.7 Of course, if the parties
attach a particular importance to the identity of the arbitrator and they
only agree to arbitrate on the condition that a certain individual perform
adjudicative functions, they are free to specify this in their agreement.8
An additional point of discussion concerned the applicability of article
15 if the seat of arbitration has not yet been determined. The Working
Group considered inserting a rule whereby, if the seat is not yet fixed,
appointment functions would be performed by the court of the State
where a party had its place of business.9 Eventually, however, it was
decided to allow State courts to act as appointing authorities only if the
seat of arbitration has been fixed in that State;10 article 15, hence, only
applies if the seat has already been set in a Model Law jurisdiction, as
made clear in the final text by article 1(2).
4
Fourth Session, UN Doc. A/CN.9/232 (4–15 October 1982), para. 72.
5
Draft Articles I to XXVI, UN Doc. A/CN.9/WG.II/WP.40 (22 February–4 March 1983),
art. XII, n. 14.
6
Ibid.
7
Nevertheless, some Model Law jurisdictions have introduced such a rule, concerning
agreements where the arbitrator has been designated by name: see, for instance, art. 7G of
the Turkish Arbitration Act, according to which the arbitration must be terminated if the
agreement designates the arbitral tribunal by name and, for any reason, the mandate
terminates for the whole tribunal or for the majority of it. See M. Karkın, ‘Appointment of
and Challenge to Arbitrators’ in A. Yesilirmak and I. G. Esin (eds), Arbitration in Turkey
(Kluwer, 2015), pp. 49, 69.
8
9
Report of the United Nations Commission on International Trade Law on the Work of Its
Eighteenth Session, UN Doc. A/40/17 (21 August 1985), para. 148.
10

2 . t e r m i n a t i o n of ar b i t r a l ma n d a t e 279
Finally, while the drafters drew inspiration in many respects from the
1976 UNCITRAL Arbitration Rules, they also departed from them in a
significant respect: the Model Law (unlike the Rules) does not expressly
require that, in case of substitution of an arbitrator, any previously held
hearings be repeated.11 This, of course, does not entail that such a repetition
is never necessary, but only that any decision concerning the repetition of
procedural activities that have already been conducted falls within the
discretion of the tribunal in the organisation of the arbitral proceedings.12
2. Termination of Arbitral Mandate

2.1 Qualification of the Relationship between Arbitrator
and Parties as a ‘Mandate’
It is commonplace to say that arbitration is a creature of contract. In
principle, this holds true not only for the agreement to arbitrate as
concluded between the disputants, but also for the relationship between
them and the arbitral tribunal. There is little doubt that arbitrators and
parties are bound by a contract whereby the former undertake the
obligation to adjudicate the case, normally in exchange for a fee paid by
the latter.13 The exact nature of this contractual relationship, however, is
far from clear: ultimately, the problem of its qualification (i.e. whether the
contract should be qualified as an agency contract, a service contract or
an atypical/sui generis agreement)14 has no single correct answer.15 The
characterisation of the contractual relationship between the parties and
the arbitrators depends on the substantive law applicable to that contract
and can hence vary, depending on the contents of that law.16 The use of
11
See art. 14 of the 1976 UNCITRAL Arbitration Rules, subsequently transposed with
modifications in art. 15 of the 2010 version of the Rules.
12
13
The relationship is defined as a ‘contractual mandate’ in Houston Ref., LP v. United Steel,
Paper & Forestry, Rubber, Mfg, 765 F.3d 396, 411 (5th Cir. 2014); Beaird Indus., Inc. v.
Local 2297, Intl Union, 404 F.3d 942, 946 (5th Cir. 2005).
14
See e.g. for different attempts to characterise this contract, Jivraj v. Hashwani [2011]
UKSC 40; Paris Court of Appeal, Société Qualiconsult v. Groupe Lincoln (1998) 1 Rev. Arb.
121. For an analysis of the contractual links between the arbitrators, the parties and the
administering institution (if any), see T. Clay, L’arbitre (Dalloz, 2001).
15
Doubts also exist as to whether the ‘arbitrator’s contract’ is separate from the parties’
agreement to arbitrate: according to some authorities, when accepting the appointment,
the arbitrators become parties to the agreement to arbitrate (K/S Norjarl A/S v. Hyundai
Heavy Indus. Co. [1992] 1 QB 863, 885).
16
The law applicable to the contract should, of course, be identified on the basis of a conflict
of laws analysis. In the European Union, this raises the additional question of whether the

280 a r t i c l e 15 : a p p o i nt m e n t o f su b s t i t u t e ar b i t r a t o r
the word ‘mandate’ in article 15, then, raises the question of whether the
drafters of the Model Law intended to overcome this state of fragmenta-
tion. It could in principle be argued that, by specifying that arbitrators
receive a ‘mandate’ from the parties, the Model Law aims at providing a
uniform, harmonised characterisation of this contractual relationship.
Undoubtedly, the Model Law does not create a self-sufficient transna-
tional regime applicable to the contract between parties and the arbitra-
tors; this relationship, hence, is for the most part governed by domestic
contract law, even if the arbitration is regulated by the Model Law. This
conclusion is corroborated by the fact that the Working Group expressly
discarded the possibility of regulating the problem of arbitrator liability,
which therefore remains subject to non-harmonised municipal regula-
tion.17 At first sight, hence, one may be tempted to conclude that the use
of the word ‘mandate’ in article 15 has no bearing on the actual nature of
the contract between the arbitrators and the disputants. This conclusion,
however, would not be entirely correct. While it is true that the Model
Law does not contain an exhaustive regulation of the contract, article 15
law applicable to the arbitrator’s contract should be found starting from domestic conflict
rules, or from the Rome I Regulation (Regulation 593/2008 of the European Parliament
and of the Council of 17 June 2008 on the law applicable to contractual obligations).
Apparently, the applicability of the Rome I Regulation seems to be ruled out by art. 1(2)
(e) of that instrument, according to which ‘arbitration agreements’ are excluded from the
scope of the Regulation. Upon closer scrutiny, however, the expression ‘arbitration
agreements’ only encompasses the agreements whereby the disputants agree to use
arbitration and not the separate agreements between those disputants on one side, and
the arbitrators on the other side. This reading is supported by the circumstance that art. 1
(2)(e) also excludes ‘agreements on the choice of court’ from the scope of the Regulation.
In other words, art. 1(2)(e) excludes the applicability of Rome I to agreements with a
jurisdictional focus, whereby the parties either exclude the jurisdiction of State courts
altogether (by submitting to arbitration), or manipulate by way of contract the statutory
allocation of jurisdiction among national courts (by entering into a choice-of-court
agreement). There is no rationale supporting the extension of the same exclusion to the
contract between the parties and the arbitrators, which has no effect on the jurisdiction of
State courts, but simply regulates the terms of the adjudicative services provided by the
arbitrators. Admittedly, however, the application of the Rome I Regulation to the
arbitrator’s contract may lead to less than optimal results, especially in international
cases where a tribunal is often composed of multiple members residing in different
jurisdictions, since art. 4 of the Regulation identifies as the primary connecting factor
the ‘habitual residence’ of either the service provider (art. 4(1)(b)) or, were one to exclude
the qualification of the relationship as a service contract, the party required to effect the
characteristic performance (art. 4(2)). A possible solution to this problem may be
provided by art. 4(3) of the Regulation, on the grounds of which it could be argued that
the arbitrator’s contract is ‘manifestly more closely connected’ with the seat of arbitration.
17
UN Doc. A/CN.9/246 (n. 2), para. 43.

2. termination of arbitral mandate 281
does lay down some rules applicable to the substance of the relationship
between the arbitrators and the parties.
More specifically, article 15 creates a regime applicable to the termina-
tion of the contract, whereby both the parties and the arbitrators are
essentially free to end the contract unilaterally out of their own volition.
On the one hand, the disputants, acting here as one single negotiating
party, are free to revoke the arbitrator’s mandate ‘by agreement’. On the
other hand, article 15 makes it clear that arbitrators can withdraw from
office ‘for any other reasons’, i.e. even in cases where they have not been
challenged (article 13), nor do they face a failure or impossibility to act
(article 14). Article 15, hence, determines a pragmatic ‘division of labour’
between domestic contract law and the Model Law. The task to regulate
the contract between parties and arbitrators is in principle entrusted
upon contract law, but the regime applicable to the termination of that
contract is partially harmonised by the Model Law.18
2.2 References to Articles 13 and 14

By referring to articles 13 and 14 of the Model Law, article 15 clarifies that
an arbitrator’s mandate can terminate either because of a challenge
18
Against this line of reasoning, it could potentially be argued that the Model Law does not
in fact discipline the termination of the contract at all, but simply determines the rule
governing the replacement of the arbitrator, if that particular mode of termination is
available under the law applicable to the contract and is actually triggered. However, the
preparatory works of the Model Law do not support this interpretation, as it is clear that
the Commission wanted to regulate the termination giving both the parties and the
arbitrators the unilateral right to end the contract. The Analytical Commentary on the
Draft Text of the Model Law, in particular, expressly states that art. 15 ‘deals primarily
with the question how a substitute arbitrator would be appointed’, but it deals also ‘in a
less conspicuous manner … with those manifold situations of termination of mandate
which are not covered by articles 13 and 14’: Analytical Commentary on Draft Text of a
Model Law on International Commercial Arbitration, UN Doc. A/CN.9/264 (25 March
1985), 35. The Commentary (ibid., 36) also notes that the Model Law does not deal with
‘other issues pertaining to the contractual party-arbitrator relationship’, hence entailing a
contrario that it does deal with the specific issue of termination. Delving further into the
legislative history, it is telling that in the initial drafts of the Model Law art. 15 only dealt
with substitution of arbitrators, providing that arbitrators would be substituted in case of
termination, death or resignation. Later, the Working Group deemed it necessary to
address the question of when the mandate could be terminated, and whether the parties
and the arbitrators had an unlimited power to terminate. See, in particular, UN Doc. A/
CN.9/246 (n. 2), para. 45: ‘While recognizing the complex nature of those questions the
Working Group, after deliberation, decided that the model law should take a stand on
those issues and express the views prevailing in the Group. It was thought that the
appropriate place for doing so was article 15.’

against him or her has been sustained, or because of his or her failure or
impossibility to act.19 In both cases, once the arbitrator is no longer in
office, the need to appoint a substitute arises.
2.3 ‘Withdrawal from Office for Any Other Reason’

Article 15 allows the arbitrator to withdraw not only if he or she becomes
de jure or de facto unable to perform his or her functions or act without
undue delay, but also ‘for any other reason’. Confronting the provision at
hand with article 14, it emerges that the Model Law contemplates two
different situations where withdrawal is possible. On the one hand, the
arbitrator may withdraw ‘with just cause’, under article 14, in case of
impossibility to perform his or her functions: by way of example, in the
case of an unexpected health problem, the arbitrator may need to give up
all professional engagements. On the other hand, as already noted,20
article 15 authorises a withdrawal in the absence of a just cause, without
restricting the possible reasons in any way.
The choice to grant arbitrators an unrestricted right to withdraw from
office is not without drawbacks: during the drafting of the Model Law, the
Working Group acknowledged that there is a risk that arbitrators ‘resign
for capricious reasons’.21 Sometimes, in fact, an arbitrator may withdraw
for the very purpose of disrupting the proceedings, triggering the need to
appoint a substitute and (depending on the circumstances of the case) the
need to repeat certain complex procedural activities.22 Capricious and
unforeseeable withdrawals can undoubtedly have disruptive effects on an
arbitration. It must be noted, however, that the Model Law does not
regulate arbitrator liability in any way: it is therefore possible that an
arbitrator’s unjustified withdrawal from office be relevant for the purpose
of his or her liability towards the parties. In sum, if an arbitrator resigns
for capricious or even openly abusive reasons, such withdrawal is effec-
tive for the purpose of the arbitral proceedings, but the Model Law does
not exclude that the parties may be entitled to refuse paying the arbitra-
tor’s fees, or even to demand compensation, depending on the contents
19
See the commentary to arts 13 and 14.
20
21
UN Doc. A/CN.9/246 (n. 2), para. 44.
22
In order to avoid these complications, some sets of arbitration rules allow the remaining
arbitrators to continue the proceedings as a truncated tribunal in special circumstances,
without the appointment of a substitute: see e.g. 2017 ICC Rules, art. 15(5). See below,
section 3.2.

2. termination of a rbitral mandate 283
of the applicable law and the applicable immunity regime (if any).23 In
the words of the Analytical Commentary, ‘it is impractical to require just
cause for the resignation … since an unwilling arbitrator could not, in
fact, be forced to perform his functions’.24 However, the Commentary
notes that ‘the model law does not deal with the legal responsibility of an
arbitrator or other issues pertaining to the contractual party-arbitrator
relationship’.25
Apart from the possibility of bringing a claim for damages against the
arbitrator, additional protections against the risk of capricious withdra-
wals can be implemented by way of party autonomy. The parties, for
instance, may provide that if the withdrawal of a party-appointed arbi-
trator is capricious and presumably aimed at disrupting the arbitration,
the party that made the original appointment may lose the right to
nominate a substitute. The 2010 UNCITRAL Arbitration Rules include
a mechanism of this type, aimed at discouraging the instrumental use of
resignations and replacements for disruptive purposes: pursuant to arti-
cle 14(2) of the Rules, in ‘exceptional circumstances’ a party may be
‘deprived of its right to appoint a substitute arbitrator’.26 Unlike the
UNCITRAL Rules, however, the Model Law does not include any provi-
sion to this end. This legislative choice is understandable, given the
different nature of the two instruments: while a set of arbitration rules
is only binding on parties that have decided to incorporate it by reference
in their agreement, the lex arbitri applies to all arbitrations seated in a
certain jurisdiction and must strike a delicate balance between the respect
for party autonomy (which would call for the preservation of the parties’
right of appointment in any case) and the protection of the integrity of
the arbitration (which would, conversely, justify the restriction of that
right in certain circumstances). Thus, if the arbitration is seated in a
Model Law jurisdiction, it is up to the parties to decide whether to take
23
P. Nacimiento, A. Abt and M. Stein, ‘Para 1039 – Appointment of Substitute Arbitrator’
in K.-H. Böckstiegel, S. M. Kroll and P. Nacimiento (eds), Arbitration in Germany: The
Model Law in Practice, 2nd edn (Kluwer, 2014), pp. 209, 212.
24
UN Doc. A/CN.9/264 (n. 18), 36.
25
Ibid. In the Working Group, Sweden proposed to include a clause in art. 14, whereby ‘an
arbitrator who withdraws without cause shall be liable to pay the additional costs
incurred’: Analytical Compilation of Comments by Governments and International
26
edn (Oxford University Press, 2013), pp. 305–307.

284 article 1 5: appo intment o f substi tute arbitrator
additional precautions against the risk of capricious terminations of the

arbitrator’s mandate.27
An interesting problem arises in circumstances where domestic con-
tract law lays down a different regime for the termination of the arbi-
trator’s mandate, as compared to the one set forth in article 15. Let us
assume, for instance, that under the law of a certain State, the relationship
between parties and arbitrators should be qualified as a service contract,
and the law of that State does not allow the service provider to withdraw
in the absence of a just cause. In this case, assuming that the arbitration is
seated in a Model Law jurisdiction, would an arbitrator be allowed to
withdraw from office without just cause, out of his or her own volition,
pursuant to article 15? Or would such an unjustified withdrawal be
impossible because of the contents of the applicable national contract
law? The question as to whether article 15 prevails over the incompatible
provisions of domestic contract law should generally be answered in the
affirmative, for at least two reasons. First, article 15 qualifies as lex
specialis: while domestic law lays down a general regime applicable to
any service contract irrespective of their peculiar content, article 15 deals
with the specific case of a service contract for the provision of arbitral
adjudicative services. Second, it is important to consider that the termi-
nation of the arbitrators-parties’ contract has an effect on the ongoing
arbitral proceedings, namely altering the composition of the tribunal and
triggering the appointment of a substitute arbitrator. Hence, were
national contract law allowed to prevent an arbitrator from withdrawing
in accordance with article 15, one would have to conclude that issues
such as the composition of the tribunal and the appointment of a sub-
stitute arbitrator are (at least partially) regulated not by the lex arbitri, but
by the law applicable to the arbitrator’s contract. Needless to say, this
conclusion would be untenable, as the issues at hand are procedural in
nature and, as such, must necessarily be regulated by the law of the place
where the arbitral proceedings are seated (in the example above, the
27
The Analytical Commentary expressly envisages this possibility by acknowledging that
the parties may draw inspiration from art. 56(3) of the 1965 Convention on the
Settlement of Investment Disputes between States and Nationals of Other States
(Washington Convention). Pursuant to that provision, if a party-appointed arbitrator
resigns without the consent of the other two members of the tribunal, he or she is not
replaced by a party-appointed arbitrator, but by one appointed either by the presiding
arbitrator or by an appointing authority. The parties may provide for a similar substitu-
tion mechanism in their agreement, in order to discourage capricious withdrawals from
office.

2. termination of a rbitral mandate 285
Model Law).28 Therefore, by setting forth such a liberal regime for the
termination of the contract, the Model Law ensures that more restrictive
regimes set forth in domestic contract law have no spillover effects on the
arbitral proceedings.
Article 15 states that arbitrators may withdraw ‘for any other reason’,
but it says nothing about how the withdrawal should be carried out. One
Australian case29 raised a delicate question in this respect: a party-
appointed arbitrator, unable to attend the scheduled hearing, decided
to resign, but only communicated the resignation to the party that
appointed him. The question arose whether such a withdrawal was
effective and, hence, whether the same party had the right to select a
substitute arbitrator. The State court seised of the matter interpreted
article 15 as implying that ‘an arbitrator nominated by party A might
offer to withdraw and make that offer to party A alone and party A, acting
alone, might accept that offer to withdraw. It does not seem … that the
agreement of party B is necessary or that party A is obliged to consult
party B about the matter at all.’30 This conclusion is not entirely convin-
cing. On the one hand, it is certainly true that the arbitrator had the right
to withdraw from office without the need to ask for any of the parties’
consent. On the other hand, however, once appointed, the arbitrator has
a contractual relationship not only with the party that nominated him or
her, but also with all other parties to the arbitration. In the case at hand,
hence, the arbitrator should have communicated his or her intention to
resign to both parties, and the better view is that the withdrawal is only
effective from the moment that all parties are made aware of it.
2.4 Revocation ‘by Agreement of the Parties’

Pursuant to article 15, the mandate can also be revoked ‘by agreement of
the parties’. In the logic of the Model Law, the parties’ unrestricted
freedom to agree on the termination of the abritrator’s mandate is a
corollary of the consensual nature of arbitration:31 an arbitrator, hence,
28
As an additional, untenable consequence, the law regulating composition of the tribunal
and substitution of the arbitrators would change depending on extrinsic factors, which
may be relevant depending on the content of the conflict of laws rules determining the
substantive law applicable to the arbitrator’s contract: see above (n. 16).
29
Gordian Runoff Ltd (formerly Gio Insurance Ltd) v. The Underwriting Members of Lloyd’s
Syndicates [2002] NSWSC 1260.
30
Ibid., para. 29.
31
UN Doc. A/CN.9/246 (n. 2), para. 44.

286 article 1 5: appo intment o f substitu te arb itrator
can only remain in office as long as the parties do not agree to exclude
him or her from the tribunal.
An important consequence of the rule at hand is that, under the Model
Law, a challenge against an arbitrator may only be necessary if the parties
do not agree that a certain member of the tribunal lacks impartiality or
independence, or does not possess some qualification that the parties
themselves have agreed to in accordance with article 12. In other words, if
the parties unanimously want to, they can obtain his or her removal
without the need to trigger the challenge procedure set forth in article 13,
by simply agreeing that the arbitrator’s mandate be revoked.
While the parties have an unrestricted power to terminate an arbitrator’s
mandate, article 15 does not address the position of the other members of
the arbitral tribunal. It is clear that, in a panel composed of three members,
two arbitrators cannot autonomously obtain the removal of the third
member, even when he or she adopts a non-cooperative or even openly
obstructive behaviour. Of course, the two arbitrators have the possibility to
inform the parties of the third member’s failure to cooperate or respond;
this could potentially induce one of the parties to bring a challenge under
articles 12 and 13, or request the termination of the mandate under article
14. Alternatively, once informed, the parties may agree that the arbitrator
be removed, and a substitute arbitrator be appointed in accordance with
article 15. Informing the parties about the non-cooperativeness of one
arbitrator, however, is not the only strategy that the remaining members of
the tribunal may pursue. More specifically, unless otherwise agreed by the
parties, the tribunal may make any decision by a majority of its members,
under article 29 of the Model Law. In cases where the third arbitrator is not
removed, therefore, the other members of the tribunal maintain the ability
to carry the arbitral proceedings further.32
A delicate question is whether the parties may ever be liable towards an
arbitrator because of a capricious decision to terminate his or her
32
However, it should be noted that some Model Law jurisdictions subject the issuance of
majority decisions to special requirements. Pursuant to s. 1052(2) of the German ZPO, for
instance, if a tribunal intends to make a majority decision without one of the arbitrators, the
parties must be given advance notice of this intention: F. von Schlabrendorff and A. Sessler, ‘s
1052 – Decision Making by Panel of Arbitrators’ in Böckstiegel et al. (n. 23), p. 318. In 2002,
an award was set aside because the tribunal rendered a majority award the day after having
informed the parties of its intention to do so, thus failing to provide adequate time to react.
The judgment setting the award aside noted that the requirement of advance notice serves the
purpose of providing the parties with the opportunity ‘to attempt to persuade the arbitrator
to cooperate or, alternatively, to terminate his or her mandate’: CLOUT Case 662,
Saarländisches Oberlandesgericht, 29 October 2002, 4 Sch. 2/02.

3 . a pp o i n t m e nt of a s u b s t i tut e a r b i t r a t o r 287
mandate. In principle, since the parties’ unrestricted freedom to revoke

the mandate stems from the fundamental principle of party autonomy, it
seems difficult to envisage a situation where such revocation, in and of
itself, may give rise to liability. However, an arbitrator whose mandate
has been revoked in the absence of just cause may still require the
payment of his or her fees, once again depending on the contents of the
substantive law applicable to the arbitrator’s contract.
More complex issues could arise as a result of the mode in which the
parties’ decision to revoke the mandate is communicated. For instance, a
widely publicised revocation may have a negative reputational impact on
the arbitrator, affecting his or her ability to attract future appointments.
The Model Law, however, does not regulate this situation in any way.
Whether the (former) arbitrator may ever have a claim against the parties
that agreed to revoke his or her mandate, hence, entirely depends on the
contents of the applicable substantive law.33
2.5 ‘Any Other Case of Termination’

Finally, article 15 provides that the appointment of a substitute arbitrator
is necessary ‘in any other case of termination’ of the arbitrator’s mandate.
This wording serves the ‘catch-all’ purpose of ensuring that, should the
mandate be terminated for any reason other than the ones listed in the
Model Law, a new arbitrator be appointed. The preparatory works of
the Model Law confirm that the intention of the drafters was to cover ‘all
cases in which the need for the appointment of a substitute arbitrator
may arise’.34
3. Appointment of a Substitute Arbitrator

3.1 ‘According to the Rules That were Applicable to the Appointment
of the Arbitrator Being Replaced’: Rationale and Consequences
of the Rule
Whenever the need to nominate a substitute arbitrator arises, article 15
requires that the appointment be made ‘according to the rules that were
33
Importantly, this may not necessarily be the law governing the contract between the
parties and the removed arbitrator: claims concerning reputational damage, for instance,
may (depending on the circumstances) be qualified as tortious.
34
UN Doc. A/CN.9/263 (n. 25), 27, para. 2, with reference to Norway’s proposal to simplify
the draft by deleting the references to the reasons for the termination of the mandate.

applicable to the appointment of the arbitrator being replaced’. The

Model Law does not make any distinction between rules of appointment
laid down by the Law itself and rules created by private autonomy (e.g. by
a set of arbitration rules incorporated in the parties’ agreement by
reference). Hence, the same mechanism applicable for the appointment
of the original arbitrator should be used to appoint a substitute: for
instance, if the arbitrator whose mandate was terminated had been
appointed by party A, party A will normally have the right to appoint a
new member of the tribunal. Along the same lines, if the original arbi-
trator had been nominated by an appointing authority, such as an
administering institution, the same authority should appoint the substi-
tute as well.
The purpose of the rule at hand is, first and foremost, to ensure the
effectiveness of party autonomy. By selecting a certain mechanism for the
appointment of the arbitrators, in accordance with article 11 of the Model
Law, the parties also implicitly create a device for the nomination of a
substitute arbitrator, should the need arise. Thus, in order to find the
applicable mechanism for the appointment of a substitute arbitrator, it is
always necessary to go back to the contents of the parties’ agreement35 or,
failing any relevant indications therein, to the lex arbitri.
It has been aptly noted36 that article 15 does not imply that the
appointment of the substitute arbitrator will necessarily be conducted
in the same way as when the original arbitrator was nominated. Consider,
for example, the case of a binary clause, where each of the parties has the
right to appoint one arbitrator. The agreement may provide that, if a
party fails to make the appointment within a certain period of time, an
arbitral institution will nominate the arbitrator. It is possible that the
original arbitrator was nominated by the institution, as the party entitled
to nominate the arbitrator had not made the appointment in time; yet, if
the mandate of that arbitrator terminates, the substitute arbitrator should
not be nominated by the institution, but by the party. Only if the party
fails once again to nominate an arbitrator within the relevant time limit
will the institution be asked to appoint a substitute.
35
As discussed above (section 2), the agreement to arbitrate may in some cases contain the
appointment of the arbitrators by name. Under the Model Law, if the mandate of one or
more of the arbitrators terminates, this does not generally entail the ineffectiveness of the
arbitration agreement, and the law of the seat will determine the mechanism applicable to
the appointment of the substitute arbitrator.
36

3 . a p poi n t m e n t of a s u b s t i tut e a r b i t r a to r 289
3.2 Party Autonomy and the Limit of Equality of Arms

The Model Law does not explicitly answer the question whether the
parties have the possibility to agree on a mechanism for the appointment
of a substitute arbitrator, other than the one that was applicable to the
nomination of the arbitrator being replaced. In early drafts, article 15
provided that the same rules would be applicable ‘unless the parties
agreed otherwise’;37 the Commission, however, finally decided to delete
these words, noting that they ‘might create difficulties’.38
Despite the final choice not to include an explicit reference to the
parties’ autonomy to ‘agree otherwise’, there is little doubt that the
disputants remain free to provide that, should the need for substitution
arise, the substitute arbitrator be appointed according to a procedure
different from the one originally followed. It is of crucial importance, in
this sense, that the basic purpose of article 15 is to preserve party
autonomy, rather than limit it: the provision ensures that when a sub-
stitute arbitrator must be appointed, this does not interfere with the
parties’ explicit or implicit choice concerning the appointment of arbi-
trators. Therefore, it would be misleading and ultimately against the
spirit of the Model Law to interpret article 15 as limiting party autonomy.
The same conclusion is reinforced by the Model Law’s preparatory
works, where the Commission acknowledges that the deletion of the
wording ‘unless the parties agreed otherwise’ has no impact on the
disputants’ ability to create a rule for the nomination of substitute
arbitrators. The Commission, in particular, noted that ‘the party auton-
omy recognized in article 11 for the original appointment of an arbitrator
applie(s) with equal force to the procedure of appointing the substitute
arbitrators, since article 15 refer(s) to the rules that were applicable to the
appointment of the arbitrator being replaced’.39 Hence, when an arbitra-
tion is seated in a Model Law jurisdiction, the parties should be deemed
free to agree on a certain mechanism for the appointment of arbitrators,
and a different one for their replacement (if necessary).40 It is nonetheless
interesting to note that some national legislators adopting the Model
37
UN Doc. A/CN.9/WG.II/WP.40 (n. 5), art. 12.
38
UN Doc. A/40/17 (n. 9), para. 147.
39
Ibid. Further support for this conclusion can be found in the circumstance that when
discussing different methods for discouraging frivolous withdrawals from office, the
Analytical Commentary mentions the possibility for the parties to agree on a substitution
mechanism modelled after art. 56(3) of the Washington Convention: see above (n. 27).
40
Yashwith Construction P Ltd v. Simplex Concrete Piles India Ltd (2006) 6 SCC 204;
M/S SBP & Co. v. M/S Patel Engineering Ltd and Another, 21 October 2009.

290 a r t i c l e 15 : a p p o i n t m e n t of su b s t i t u t e a r b i t r a t o r
Law, such as Germany41 and Belgium,42 have decided to expressly state

that the parties have the possibility to agree on a mode of arbitrator
substitution.
The only limit to party autonomy in the determination of the mechan-
ism governing the appointment of substitute arbitrators is the principle
of equality of arms enshrined in article 18 of the Model Law. This
principle, in particular, prevents the parties from agreeing on a substitu-
tion mechanism that would put one of them at a disadvantage compared
to the other. For instance, the parties could not agree that if the arbitrator
appointed by party A dies a substitute arbitrator will be chosen by party
B. This basic limitation of party autonomy, however, is not specific to the
case of arbitrator substitution, but covers in the same terms every situa-
tion where the parties make provisions for the constitution of the arbitral
tribunal. In any event, even if the parties agreed on a replacement
mechanism in violation of the principle of equality of arms, the unen-
forceability of such provision would have no effect on the validity of the
agreement to arbitrate as a whole, and substitute arbitrators would be
appointed (if necessary) in accordance with the default rules set forth in
the Model Law or in the applicable arbitration rules (if any).
3.3 The Problem of the Truncated Tribunal

A delicate question is whether, under certain circumstances, the appoint-
ment of a substitute arbitrator may be avoided. Under article 15(5) of the
2017 ICC Rules, for instance, if an arbitrator dies or is removed by a
tribunal after the closing of the proceedings,43 the ICC may decide that
the remaining arbitrators continue the arbitration as a truncated tribunal,
taking into account the views of the remaining arbitrators and of the
parties, as well as the circumstances of the case.
The purpose of rules such as the one above is to avoid the delay in
rendering an award by the need to appoint a substitute arbitrator,
especially where the arbitration is in its final stage. In such circumstances,
allowing a truncated tribunal to render an award may have beneficial
effects in terms of expeditiousness and cost-effectiveness of the
41
See ZPO, s. 1039; Nacimiento et al. (n. 23), pp. 210–211.
42
Belgian Judicial Code, art. 1689(1). M. Draye, ‘Article 1689’ in N. Bassiri and M. Draye
(eds), Arbitration in Belgium (Kluwer, 2016), pp. 191, 194.
43
In ICC arbitration, the proceedings are declared closed ‘as soon as possible after the last
hearing concerning matters to be decided in an award or the filing of the last authorized
submissions concerning such matters, whichever is later’: see 2017 ICC Rules, art. 27.

3. ap p ointment of a subs tit ute a rb itr at or 291
arbitration.44 Nonetheless, this approach also entails some significant

risks as far as the validity and enforceability of the resulting award are
concerned. More specifically, it could be argued that when an award is
rendered by the two remaining arbitrators without the appointment of a
substitute third arbitrator, the composition of the tribunal is not in
accordance with the agreement of the parties; the award, then, could be
exposed to annulment, under article 34(2)(a)(iv) of the Model Law, or
refusal of recognition and enforcement, under article V(1)(d) of the New
York Convention. Failure to appoint a substitute may prove particularly
problematic when the replaced arbitrator had been appointed by one of
the parties, as in this case it could be argued that the parties are no longer
equally represented in the composition of the tribunal. The principle of
equality between the disputing parties may be regarded as part of public
policy, thus once again potentially opening the way for an annulment of
the award under article 34(2)(b)(ii), or a refusal of its recognition and
enforcement under article V(2)(b) of the New York Convention.
It is precisely on these grounds that some national courts in Model Law
jurisdictions have set awards rendered by truncated tribunals aside. In a
Russian case, a party-appointed arbitrator died after the hearing was
closed, but before the award was rendered.45 The other two members
proceeded to render an award, despite the appointing party’s request to
conduct a new hearing with a substitute arbitrator. The Russian courts
annulled the award, holding that failure to give the party the chance to
nominate a substitute arbitrator constituted a violation of the principle of
party equality, and hence of Russian public policy. According to the
Russian Supreme Court, in particular, the Model Law would allow an
award to be issued by a truncated tribunal only after the conclusion of the
decision-making process, when the deliberations have been conducted by
the whole tribunal. In this exceptional scenario, each of the parties would
have been equally represented throughout the proceedings and the delib-
erations, and no public policy issues would hence arise. For analogous
reasons, awards rendered by truncated tribunal have occasionally been
refused recognition and enforcement.46
44
Himpurna California Energy Ltd v. Indonesia, Interim Award of 16 October 1999 (2000)
25 YB Com. Arb. 112, 194.
45
CLOUT Case 1352, Supreme Commercial Court of the Russian Federation (20 July 2010).
46
First Investment Corp. of the Marshall Islands v. Fujian Mawei Shipbuilding, Ltd, 2012 WL
831536 (ED La., 12 March 2012); Paris Court of Appeal, Agence Transcongolaise des
Communications – Chemin de fer Congo Océan (ATC-CFCO) v. Compagnie Minière de
l’Ogooue – Comilog SA (1999) 24 YB Com. Arb. 281.

Article 16
Competence of Arbitral Tribunal to Rule

on Its Own Jurisdiction
m i c h a e l po l k i n g h o r n e , a l v a r o p e r a l t a , h a z e l
l e ven t a n d g w e n wa c k w i t z
(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 contract. 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 defense. 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.
292


An analysis of the travaux préparatoires of article 16 demonstrates
that there was an overriding focus to strike a balance between
providing a wide scope to the tribunal’s discretion and recourse to
the courts when necessary. In that context, the key issues discussed
were: (1) deciding on the ‘force’ attached to a tribunal’s power to rule
on its own competence under article 16(1); (2) ensuring that a plea to
the arbitral tribunal’s jurisdiction was made without a delay under
article 16(2); and (3) the meaning of ‘preliminary question’ when
considering the tribunal’s adjudicatory powers under article 16(3).
Article 16 was considerably amended following the various drafting
sessions. The key discussions on each of the paragraphs are high-
lighted below.
1.1 Concerning Subparagraph 1

There was general agreement that the words ‘including any objections
with regard to the existence or validity of the arbitration agreement’ were
not aimed, in any way, at limiting the competence-competence of the
arbitral tribunal, where a party had raised an objection of that nature.1
The original first draft of subparagraph 1 was framed differently from its
current version. It stipulated that:
The arbitral tribunal [has the power to] rule on its own jurisdiction,
including any objections with respect to the existence or validity of the
arbitration agreement.2
While it was largely accepted that article 16 was very important for
arbitrators, as ‘an arbitral tribunal must be clear about its power to rule
on its own competence’,3 the bracketed part of the drafted article was
ultimately replaced with ‘may rule’. This change was, in large part, the
result of Tanzania’s suggestion that the provision granting such powers
to the arbitral tribunal could create a problem to arbitral institutions and/
or most States, due to the rigid wording. It was thus suggested and
1
Report of UNCITRAL on the Work of Its Eighteenth Session, UN Doc. A/40/17 (3–21
June 1985), 30, para. 150.
2
Working Papers Submitted to the Working Group on International Contract Practices at
Its Fifth Session. Note by the Secretariat: Model Law on International Commercial
Arbitration: Revised Draft Articles I to XXVI, UN Doc. A/CN.9/WG.II/WP.40 (22
February–4 March 1983), 81, para. E.
3
See (1985) XVI UNCITRAL YB 439, para. 32.

294 a r tic l e 1 6 : c o m p et e n ce o f a r b i tr a l t r i b u n a l
accepted that the provision should be expressed less forcefully.4 It was

further contemplated that arbitrators should be able to make certain
determinations ex officio.5 Although the importance of empowering the
arbitral tribunal with this power was accepted by the Chairman of the
Working Group, it was observed that the ‘tribunal should be able to take
such decisions of its own motion. They would not of course be final ones,
because of the judicial setting-aside procedure.’6 However, the same was
not added in the final version in concrete terms.

Subparagraph 2 primarily focuses on ensuring that objections to the
eligibility of the arbitral tribunal’s jurisdiction be raised without delay.
The original wording stipulated that:
a plea that the arbitral tribunal exceeded its [terms of reference] shall be
raised during the arbitration proceedings [promptly after the matter,
allegedly outside the mandate, is taken up].7
The Working Group suggested that the words ‘taken up’ were too vague8
and replaced them with the phrase: ‘arbitral tribunal has indicated its
intention to decide on the matter alleged to be outside the terms of
reference’.9 The article was further amended to have a more precise and
rigid wording.10 The Working Group recognised that while any instance of
the arbitral tribunal exceeding its authority may often occur or become
certain only in the context of the award or other decision, the above time
limit was considered to be relevant and useful in cases where there are clear
indications at an earlier stage, for example, where the arbitral tribunal
requests evidence relating to an issue not submitted to it.11
4
Ibid., 438, para. 27.
5
Ibid., 439, para. 28.
6
Ibid., 439, para. 29.
7
Articles 25 to 36 on Award, UN Doc. A/CN.9/WG.II/WP.38 (31 August 1982), 57,
para. 4.
8
Report of the Working Group on International Contract Practices of Its Sixth Session, UN
Doc. A/CN.9/245 (29 August–9 September 1983), 161, para. 60.
9
Working Paper Submitted to the Working Group at Its Seventh Session. Composite Draft
Text of a Model Law on International Commercial Arbitration: Note by the Secretariat,
UN Doc. A/CN.9/WG.II/WP.48 (1983), reprinted in XV (1984) UNCITRAL YB 218, 222.
10
Arbitration, Report of the Secretary-General, UN Doc. A/CN.9/264 (25 March 1985), 37.
11
Ibid., 39, para. 7.

The wording of this subparagraph was suggested to be made more

rigid, borrowing the phraseology of article V(1) of the 1961 European
Convention on International Commercial Arbitration. The representa-
tive of the Soviet Union suggested replacing the bracketed portion with
‘as soon as the question on which the arbitrator is alleged to have no
jurisdiction’.12 Italy,13 while supporting the above proposition, suggested
that the wording could be misunderstood to mean that the question of
acting in excess of authority could not be raised until the arbitrators
themselves had declared their intention to act in such manner. It was,
therefore, important that the subparagraph clarified that a plea of excess
of authority could be made as a result, not only by the initiative of
arbitrators, but also through the action of any of the parties.
Reminding that the original intent of the Model Law was to adopt a
more flexible provision, Hungary14 and Tanzania15 suggested that such
rigid wording could create issues in developing countries where tribunal
members lack the experience to realise the intended promptness. Thus, as
part of finding a balance between the rigidity and flexibility of the
wording to be retained, while at the same time ensuring the tribunal’s
discretionary power in this regard, the present text of the subparagraph
was adopted.

There was considerable divergence of opinion concerning subparagraph
3 of draft article 16. While there was general agreement on the principle
that the ability of the arbitral tribunal to rule on its own jurisdiction
would be subject to judicial control,16 the main source of contention
concerned when, and under what conditions, could (or should) a party be
allowed to resort to a national court – soon after the arbitral tribunal had
decided on its jurisdiction; thereby treating it as a preliminary question,
or otherwise at the stage of setting aside/enforcement of the award. Initial
drafts of this subparagraph suggest that the inclination of the Working
Group was to subject such awards on jurisdiction to the national court’s
review only at the post-award stage.
12
See n. 3, 439, para. 37.
13
Ibid., para. 41.
14
See n. 3, 439, para. 46.
15
See ibid., 440, para. 48.
16

One view in this regard was that the courts should only be approached
at the stage of setting-aside proceedings in the context of recognition and
enforcement (so as to prevent abuse by a party adopting dilatory tactics
and obstructing the proceedings).17 This approach was adopted to
read as:
… jurisdiction may be contested by any party only in an action for setting
aside the arbitral award. [A ruling by the arbitral tribunal that it has no
jurisdiction maybe contested by any party within 30 days before the Court
specified by article V].18
Another view suggested that more flexibility would be desirable in order

to allow the arbitral tribunal to assess, on a case-by-case basis, the risk of
dilatory tactics, and waste of money and time.19 Specifically, India,
Austria, Norway, Poland and the International Bar Association (IBA)
representative suggested that the arbitral tribunal’s jurisdiction should be
open to judicial review from the early stages of the arbitration proceed-
ings, in order to avoid delays and costs that would be incurred during the
arbitration.20 Canada suggested that the adopted wording would restrict
parties from challenging such findings at an early stage, and thereby the
wording should be altered to allow challenge against an award concern-
ing the jurisdiction of an arbitral tribunal as a preliminary question.21
On the other hand, the United States of America highlighted that if the
parties were empowered to demand such a question as a preliminary
matter, they would be able to dictate to the arbitrators the time when they
would decide the issue. This would dilute the discretionary power of the
tribunal, including its power to deal with the issues as it may deem best.22
In light of the above discussions, the Working Group observed that the
assessment could better be made with regard to each particular case.
Thus, the provision gave the tribunal the discretion to cast its ruling in
the form either of an award, which would be subject to instant court
17
18
Working Papers Submitted to the Working Group on International Contract Practices at
Its Fifth Session. Note by the Secretariat: Model Law on International Commercial
Arbitration: Revised Draft Articles I to XXVI, UN Doc. A/CN.9/WG.II/WP.40 (22
February–4 March 1983), 81, para. E.
19
20
See Analytical Compilation of Comments by Governments and International
Organizations on the Draft Text of Model Law on International Commercial
Arbitration, Report of the Secretary-General, UN Doc. A/CN.9/263 (19 March 1985),
29, paras 7–8.
21
Ibid., 12, para. 2.
22
See (1985) XVI UNCITRAL YB 441, para. 12.

control, or a procedural decision which may be contested only in an

action for setting aside the later award on the merits.23 Further, to
minimise the risk of dilatory tactics, certain safeguards were suggested,
such as a limited time frame for resort to the courts, finality of the court’s
decision and discretion of the arbitral tribunal to continue proceedings
while the issue is pending before the courts.24
The Working Group recognised that the objections to the arbitral
tribunal’s jurisdiction go to the very foundation of the arbitration.
Therefore, such a question is antecedent to matters of substance and
usually ruled upon first in a separate decision to avoid possible wastage of
time and costs.25 However, in some cases, it may be difficult to distin-
guish between the question of jurisdiction and the actual merits. This
article therefore grants the arbitral tribunal discretion to rule on a plea
referred to in subparagraph 2 either as a preliminary question or as an
award on the merits.26
2. Paragraph 1
2.1 Competence-Competence
The opening sentence of article 16(1) expressly recognises competence-
competence as one of the founding principles of international commer-
cial arbitration.27 It is grounded on the notion that objections to the
arbitral tribunal’s jurisdiction go to the very heart of the arbitral proceed-
ings. This power is derived from peremptory rules of constitutional or
customary international law.28
The affirmation in article 16(1) of the power enjoyed by arbitral
tribunals to rule on their own jurisdiction echoes provisions found in
virtually all modern international arbitration statutes and rules.29 That
power is included, for example, in the UNCITRAL Arbitration Rules
(article 23(1)), the Rules of the ICC Court of Arbitration (article 6(5)),
23
24
See UNCITRAL Model Law on International Commercial Arbitration: Note by the
Secretariat, UN Doc. A/CN.9/309, reprinted in (1988) XIX UNCITRAL YB 117, 120,
para. 25.
25
26
UN Doc. A/40/17 (n. 1), 31, paras 158–159.
27
Model Law, art. 16 (1).
28
Advisory Opinion on the Effect of Awards of Compensation made by the UN
Administrative Tribunal (1954) ICJ Rep. 47, 51; ICTY Prosecutor v. Tadić, Decision on
the defence motion for interlocutory appeal on jurisdiction, 105 ILR 453, para. 21.
29
UNCITRAL, ‘2012 Digest of Case Law’, art. 16, para. 9.

298 arti cle 1 6: competence of arbitral tri bunal
the LCIA Arbitration Rules (article 23(1)), the European Convention

on International Commercial Arbitration (article V(3)) and the
Convention on the Settlement of Investment Disputes between States
and Nationals of Other States (article 41(1)).
This has not always been the case. Article 16(1), for instance, has varied
from the pertinent provision in the UNCITRAL Arbitration Rules.30
Article 21(1) of the 1976 version of the UNCITRAL Arbitration Rules
provided that the arbitral tribunal has the power to rule only on ‘objec-
tions that it has no jurisdiction’.31 The 2010 UNCITRAL Arbitration
Rules now reflect the same scope as article 16(1) of the Model Law.32
National courts in Model Law jurisdictions have consistently recog-
nised that article 16 confirms the arbitrators’ competence-competence
power33 and arbitral case law has been consistent on this point. For
example, in the Final Award in the early ICC Cases Nos 6151 and 6516,
it was stated that one of the basic principles in international commercial
arbitration is that ‘Kompetenz-Kompetenz belongs to the arbitral tribu-
nal’.34 This principle remains important in practice for the obvious
reason that without such express authorisation, a party could stall the
arbitration at any time merely by raising a jurisdictional objection that
could then only be resolved in (possibly lengthy) national court proceed-
ings. Indeed, courts around the world have expanded the scope of arbitral
jurisdiction, encompassing within it questions involving the choice of
arbitral institution and institutional rules35 and the choice of seat (or
location),36 as well as questions regarding the tribunal’s proper constitu-
tion.37 The Swiss Federal Supreme Court has emphasised that any inter-
pretation of an arbitration agreement must assume that the parties
intended to provide the tribunal with broad jurisdiction. This principle
dictates that the entirety of claims resulting from an agreement
30
UNCITRAL Arbitration Rules 2010, art. 23(1).
31
F. B. Weigand (ed.), Practitioner’s Handbook on International Commercial Arbitration
(Oxford University Press, 2009), 14.253.
32
See UNCITRAL Arbitration Rules 2010, art. 23(1).
33
See e.g. CLOUT Case 567, PT Tugu Pratama Indonesia v. Magma Nusantara Ltd [2003]
SGHC 204; CLOUT Case 367, NetSys Technology Group AB v. Open Text Corp.; CLOUT
Case 1288, New World Expedition Yachts, LLC v. FC Yachts Ltd.
34
Engineering Co. v. Engineering Company, Producer, Final Award, ICC Case Nos 6515 and
6516 (1994), para. 9.
35
Ace Bermuda Insurance Ltd v. Allianz Insurance Co. of Canada [2005] ABQB 975.
36
Insigma Technology Co. Ltd v. Alstom Technology Ltd [2009] SGCA 24.
37
M/S Anuptech Equipments Pvt. v. M/S Ganpati Co-op Housing, AIR 1999 Bom. 219.

(conclusion, validity and termination) falls within the jurisdiction of the

tribunal.38
This principle has also been confirmed by jurisdictions that have
modified the Model Law text in devising their own set of provisions.
For example, the English Arbitration Act (a non-Model Law jurisdiction)
adopts a sui generis approach towards competence-competence, which
provides for interlocutory judicial consideration of jurisdictional issues,
but (critically) permits parties to agree alternative solutions.39 The
Arbitration Act clearly contemplates that the arbitrators’ competence-
competence power entitles them not only to consider, but also to render,
a decision on their own jurisdiction (subject to subsequent judicial
review).40 Indeed, the Court of Appeal observed in Fiona Trust &
Holding Corp. v. Privalov that ‘it will, in general, be right for the arbi-
trators to be the first tribunal to consider whether they have jurisdiction
to determine the dispute’.41
There are situations where the parties’ agreement does not specifically
grant authority to the tribunal to determine threshold jurisdictional
issues. Such a situation arose in BG v. Argentina before the US
Supreme Court. In the absence of explicit tribunal powers (in the case
at hand no reference was made in the parties’ agreement to institutional
or other rules), the US Supreme Court held that the courts of the seat
possess authority to decide issues such as whether there exists a valid
arbitration agreement, as well as the scope of that agreement. The court
recognised, however, that in similar circumstances arbitral tribunals are
entitled to determine procedural issues such as ‘waiver, delay … time
limits, notice, laches, estoppels and other conditions precedent to an
obligation to arbitrate’.42
Moreover, and as mentioned above, article 16 also recognises that the
arbitral tribunal’s ability to decide on its competence is ultimately subject
to court review and is therefore neither exclusive nor final.43 This under-
lying principle was well expressed, for example, in a Canadian court
38
Ferrotitanium case 4A_452/2007, judgment (29 February 2008), [2008] 2 ASA Bull. 376
and case 4A_438/2013, judgment (27 February 2013).
39
See Arbitration Act 1996, s. 30(1).
40
See ibid., s. 30.
41
Fiona Trust & Holding Corp. and Others v. Privalov and Others [2007] EWCA Civ. 20,
para. 34 (English Court of Appeal), affirmed, [2007] UKHL 40 (House of Lords).
42
BG Group Plc v. Argentina, 134 S. Ct 1198 (2014), 2007.
43
Seventh Session, UN Doc. A/CN.9/246 (6–17 February 1984), 196, para. 55.

300 a r tic l e 1 6: c o m p et e n ce o f a r b i tr a l t r i b u n a l
decision.44 As discussed further below, the tribunal’s decision is subject

first to an immediate review under article 16(3).45 Thereafter, it could be
subject to additional court review under article 3446 and finally to a
review in an action for recognition and enforcement under article 36.47
Furthermore, an issue may arise and be ruled on by a court in a
proceeding brought under article 8 of the Model Law.48 Article 8(1)
operates in parallel with article 16(1) and provides that where a claim is
brought before a national court, which claim is allegedly subject to
arbitration, the national court shall refer the parties to arbitration, unless
the court finds that the relevant arbitration agreement is ‘null and void,
inoperative, or incapable of being performed’.49 Therefore, if there is a
valid arbitration agreement, the court should always refer the dispute to
the arbitral tribunal, thereby reinforcing the principle of competence-
competence.
2.2 Severability
Article 16(1) also explicitly recognises the doctrine of severability of the
arbitration clause, which provides that an arbitration agreement, even
though it is included in and related closely to the underlying commercial
contract, remains a separate and autonomous agreement. Although this
principle may have other consequences – such as permitting the arbitra-
tion to be governed by a different law from the law applicable to the
contract in which it is contained – article 16(1) only considers and deals
with this principle in the context of jurisdictional issues. This means that
any decision by the arbitral tribunal whereby the underlying contract is
44
Harrison v. UBS Holding Canada Ltd [2013] NBQB 125, paras 26–27 (New Brunswick QB).
45
Article 16(3) states that the arbitral tribunal may rule on a plea referred to in art. 16(2)
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 art. 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.
46
Article 34 sets out the procedure for an application to set aside as exclusive recourse
against an arbitral award.
47
Article 36 sets out the grounds for refusing recognition or enforcement of an arbitral
award.
48
See H. M. Holtzmann and J. Neuhaus, A Guide to the UNCITRAL Model Law on
1989), p. 478. Article 8 governs the procedure for a court where a party has brought an
action before it, which is the subject of a valid arbitration agreement.
49
See UNICTRAL Model Law, art. 8(1).

null and void does not automatically invalidate the arbitration clause (as
expressed by the wording ‘shall not entail ipso jure the invalidity of the
arbitration clause’). Indeed, the separability principle was meant to pre-
serve arbitral jurisdiction even where a contract is the result of deceit,
forgery, corruption or other illegality. Therefore, in the event that a party
denies the existence of any contract at all with its counterparty, thereby
denying the existence and validity of an arbitration agreement that
formed part of that contract, the arbitral tribunal is not per se prevented
from acting.
This doctrine complements the power of arbitral tribunals to deter-
mine their own jurisdiction and has been consistently confirmed by
national courts.50 For example, in 2007, the Philippines Supreme Court
stated that:
… we now hold that the validity of the contract containing the agreement
to submit to arbitration does not affect the applicability of the arbitration
clause itself. A contrary ruling would suggest that a party’s mere repudia-
tion of the main contract is sufficient to avoid arbitration. That is exactly
the situation that the separability doctrine, as well as jurisprudence apply-
ing it, seeks to avoid.51
More recently, the English High Court ruled that it would not only
enforce an arbitration agreement where the underlying contract was
found to be unenforceable, but that it may also be prepared to do so
even where there is a public policy rule rendering the underlying contract
void for illegality, as ‘the nature and function of an arbitration clause is
distinct and different from that of other contractual provisions’.52
The claimants in that case argued that as the arbitration agreement was
contained within a transaction that aimed to provide and conceal unlaw-
ful guarantees, they were tainted by this illegality and that it should
therefore be deemed unenforceable. However, the English High Court
held that the arbitration clause was enforceable on the basis that to
50
See e.g. CLOUT Case 19, Krutov v. Vancouver Hockey Club Ltd, as per the British
Columbia Supreme Court; CLOUT Case 20, Fung Sang Trading Ltd v. Kai Sun Sea
Products and Food Co. Ltd, as per the Hong Kong High Court; CLOUT Case 27,
Enrique C. Wellbers SAIC AG v. Extraktionstechnik Geseelschaft fur Anlagenbau MBM,
as per the Camera Commercial (Argentina).
51
CLOUT Case 816, Gonzalez v. Climax Mining Ltd, as per the Philippines Supreme Court,
Special Second Division (22 January 2007).
52
Beijing Jianlong Heavy Industry Group v. Golden Ocean Group Ltd and Others [2013]
EWHC 1063 (Comm.), para. 40. It should be noted that while England has not adopted
the Model Laws, the doctrine of severability is enshrined within s. 7 of the English
Arbitration Act.

302 article 1 6: competence of arbitral tribunal
uphold the clause would be ‘respecting the parties’ choice and providing a
one stop process’, which the High Court considered to be ‘powerful
commercial factors’ that should apply ‘to this otherwise very conven-
tional’ case.53
Some national courts view less favourably the autonomy of arbitration
clauses. For instance, the Rio Grande do Sul Appeals Court, in parting
with well-established case law from the Brazilian Supreme Court, held
that the existence of a police investigation report suggesting forgery of the
agreement in which the arbitration clause was contained was sufficient to
annul the legal effects of the clause.54
The language of article 16(1) goes beyond similar provisions in the
New York Convention and the European Convention on International
Commercial Arbitration by declaring this affirmative legal rule, requiring
that arbitration agreements be treated as separable from the parties’
underlying contract (rather than merely assuming that the parties have
intended such a result).
Significantly, the article does not explicitly state which law the arbitral
tribunal must apply in determining the validity of the arbitration agree-
ment. However, the UNCITRAL Secretariat has suggested that the
applicable law should be the same law as a court would apply in setting
aside proceedings under article 34, since these proceedings constitute the
ultimate court control over the arbitral tribunal’s decision.55
3. Paragraph 2
3.1 Form and Timing of Plea as to Tribunal’s Lack of Jurisdiction
Article 16(2) regulates the timing of challenges against the arbitral tribu-
nal’s jurisdiction on two separate grounds: (1) an initial lack of jurisdic-
tion (including an invalid arbitration agreement); and (2) subsequent
action beyond the scope of the tribunal’s authority.56 These categories
overlap to a certain extent, but the effect of the rule is the same in each
case: objections against a potential lack of jurisdiction should be raised
promptly after their existence is known.57
53
Ibid., para. 46.
54
Companhia de Geração Térmica de Energia Elétrica (CGTEE) v. Kreditanstalt fur
Wiederaufbau Bankengruppe, Appeals judgment (12 June 2013).
55
56
57

Paragraph 2 affirms the principle that if a party has an objection to the

tribunal’s authority, this objection must be raised as soon as the matter
arises during the arbitral proceedings. Several courts have affirmed the
application of this rule and denied belated objections against a tribunal’s
jurisdiction.58 UNCITRAL’s report recognised that this rule could pro-
duce harsh consequences as unsophisticated parties might not realise the
need to object as soon as the matter arose. Therefore, the rule is tempered
considerably by the final sentence which permits the arbitral tribunal to
consider a later plea should it consider that the delay was justified.59 That
being said, general experience has shown that a delay is justified only
under exceptional circumstances. For instance, when a party had not
been informed of the appointment of a chairman and had therefore not
participated in the rest of the arbitration proceedings, a German court
exceptionally allowed that party to raise a jurisdictional objection during
the set-aside stage of the proceedings.60
This is also important in practice, as at an early stage in a dispute it can be
challenging to ascertain whether an issue may or may not be beyond the
tribunal’s authority, particularly in those rare cases where the governing law
(and consequently any restrictions on arbitrability) may not yet be known.
3.2 Effect of Failure to Raise a Plea

The Model Law also requires that any objection to an arbitral tribunal’s
jurisdiction be raised no later than the statement of defence. This is due to
the fact that Option 1 of article 7 (definition and form of arbitration
agreement) states that:
… an arbitration agreement is in writing if it is contained in an exchange
of statements of claim and defense in which the existence of an agreement
is alleged by one party and not denied by the other.
Therefore, in the event that a party fails to raise a plea as required (under
article 16(2)) before the defence is filed, and there is no justifiable delay in
doing so, the view of the Working Group was that said party has waived its
58
See e.g. OLG Celle, 4 September 2003, 8 Sch. 11/02; OLG Stuttgart, 20 December 2001, 1
Sch. 16/01; CLOUT Case 637, Presidium of the Supreme Court, Russian Federation (24
November 1999); CLOUT Case 148, Moscow City Court, Russian Federation (10
February 1995).
59
60
CLOUT Case 562, Hanseatisches Oberlandesgericht Hamburg, 8 November 2001, 6 Sch.
4/01.

right to object. In other words, a failure to raise a plea demonstrates a

party’s tacit acceptance of its counterparty’s initiation of arbitration, which
can provide the basis for a valid arbitration agreement.61 A Russian court
made this explicit by finding the existence of an arbitration agreement in
such circumstances, as the failure to raise an objection to jurisdiction was
held to amount to the conclusion of a new arbitration agreement (by
conduct or estoppel-based).62 This applies not only to the later stages of
the arbitral proceedings, but also in the context of setting aside an arbitral
award and enforcement proceedings, subject to certain important excep-
tions relating to ‘public policy limits, including [arbitrability]’.63
By comparison, the New York Convention is silent as to whether the
party challenging an award before the courts of the country where
enforcement is sought must have availed itself of pertinent remedies
available at the seat of the arbitration, namely set-aside proceedings.
This is significant because failure to avail oneself of set-aside remedies
may be perceived as an abuse of process which serves to preclude later
challenges at the enforcement stage. Given the absence of a direction in
the Convention, two considerations are relevant. First, the Convention
clearly grants the right to challenge recognition and enforcement of a
foreign award without subjecting it to preclusion limitations; this indi-
vidual entitlement must no doubt be preserved. Second, the Convention
gives significant weight to the lex fori and it is natural that the aforemen-
tioned individual entitlement under the Convention cannot override the
forum’s fundamental principles of civil procedure. This argument is even
more convincing where such civil procedure principles are common to
several nations, thus giving rise to a general principle of law.
The practice of national courts demonstrates some uniformity in their
approach to a party’s failure to raise defences before the courts of the seat,
especially if it had participated in the arbitral proceedings. As regards
challenges against arbitral jurisdiction, these must be raised no later than
one’s statement of defence.
The question as to whether a party who had failed to make a jurisdictional
plea under article 16(2) would then be precluded from setting aside an
arbitral award under article 34 was considered in the Commission’s Report
in its deliberations on article 34 (Meeting No. 317).64 Article 34 of the Model
61
See G. Born, International Commercial Arbitration (Kluwer, 2014), p. 709.
62
CLOUT Case 637 (n. 58), 26.
63
Seventh Session, UN Doc. A/CN.9/246 (6–17 February 1984), 195, para. 51.
64
See (1985) XVI UNCITRAL YB 446.

Law gives the parties to an international arbitration the option to request a

court in the country of origin to set aside an award. Similarly, article 36 sets
out the grounds for a court to reject the enforcement or recognition of both
local and foreign international arbitral awards. National representatives at
the UNCITRAL discussions on the Model Law disagreed as to whether the
effect of article 16(2) applied twice, i.e. whether it applied not only to the
arbitral proceedings, but also to the procedures for setting aside the recogni-
tion and enforcement of the award under articles 34 and 36. As a result, the
Commission agreed to leave the question of interpretation, and possibly
regulation, to the States adopting the Model Law.65
Domestic laws and court judgments differ as to the preclusive effect of
failing to make a jurisdictional plea under article 16(2) at the early stages of
arbitral proceedings and certainly before the tribunal has had a chance to
pronounce itself on the merits. German courts have held that if there was
no objection to jurisdiction in the arbitral proceedings, a party loses its
right to raise the lack or invalidity of the arbitration agreement as a basis
for setting aside the award.66 However, in Singapore, the High Court held
that challenging an arbitral decision on jurisdictional grounds under
article 16(2) was not a prerequisite for submitting an application for setting
aside the award based on lack of jurisdiction.67 A more recent ruling by the
Singapore Court of Appeal found that article 16(3) could not constitute an
exclusive remedy where a tribunal held as a preliminary matter that it had
jurisdiction. The court based this interpretation on the ‘choice of remedies’
policy, where a party should be able to choose how it pursues a remedy.68
The preclusive effect of article 16(2) is therefore open. However, the
exceptions relating to public policy, including arbitrability, are the same
as those explicitly recognised in articles 34 and 36, which enable a court
to set aside an award, or refuse to recognise or enforce it.69
65
UN Doc. A/CN.9/SR.317, in (1985) XVI UNCITRAL YB 448, referring to Appendix 3,
Meeting No. 317.
66
OLG Stuttgart (n. 58).
67
Tan Poh Leng Stanley v. Tang Boon Jek Jeffrey [2000] SGHC 260.
68
PT First Media TBK Astro Nusantara Intl BY and Others and another appeal [2013] SGCA
57, 22 (Singapore).
69
According to art. 34(2)(b), an arbitral award may be set aside by the court specified in art.
6 only if the court finds that: (1) the subject matter of the dispute is not capable of
settlement by arbitration under the law of the State; or (2) the award is in conflict with the
public policy of this State and art. 36(1)(b) (recognition or enforcement of an arbitral
award, irrespective of the country in which it was made, may be refused only if the court
finds that: the subject matter of the dispute is not capable of settlement by arbitration
under the law of the State); or (3) the recognition or enforcement of the award would be
contrary to the public policy of this State.

4. Paragraph 3
Article 16(3) provides a procedural framework concerning how and when
arbitral tribunals may rule on their jurisdiction. Specifically, article 16(3)
expressly provides that the arbitral tribunal can determine jurisdictional
objections ‘either as a preliminary question or in an award on the merits’.70
If the tribunal chooses to decide this question in the final award,
additional review will be available in setting-aside or enforcement proceed-
ings under articles 34 and 36. If the tribunal chooses to rule on a plea as a
preliminary question, this decision may be subject to immediate review by
a court. In such situations, there is no recourse to further appeal if the court
dismisses the challenge.71 In exceptional circumstances, such review can
also be subject to appellate review, as is the case with section 32(6) of the
English Arbitration Act, whereby: ‘the question involves a point of law
which is one of general importance or is one which for some other special
reason should be considered by the court of appeal’.72 Where the tribunal
delivers its decision in the form of an award, it may only be susceptible to
set-aside proceedings rather than the proceedings under article 16(3) of the
Model Law. Even so, several senior courts have taken the view that the
form of the decision (award or order) is subordinate to the determination
of the relevant issue as a preliminary (rather than as a final) matter.73
By empowering the tribunal to rule on its own jurisdiction, either as a
preliminary matter or in the body of the final award, article 16(3) enables
the arbitral tribunal to weigh, in each particular case, the risk of dilatory
tactics against the danger of wasting money and time. This is consistent
with the policy underlying the Model Law of ensuring efficiency in arbitral
proceedings. The arbitral tribunal’s procedural decision as to whether or
not to bifurcate the proceedings in dealing with a jurisdictional objection is
not in itself a decision that can be reviewed by the national court.74
70
71
Ibid.; English AA, s. 31.
72
See also International Arbitration Act, enacted on 27 January 1995 (Singapore), Chapter
143A, § 10(4): ‘An appeal from the decision of the High Court made under Art. 16(3) of
the Model Law or this section shall lie to the Court of Appeal only with the leave of the
High Court.’
73
Inc. Owners of Tak Tai Building v. Leung Yau Building [2005] HKCA 87; PT Asuransi Jasa
Indonesia (Persero) v. Dexia Bank SA [2006] SGCA 41.
74
F. Bachand and F. Gelinas, The UNCITRAL Model Law after Twenty-Five Years: Global
Perspective on International Commercial Arbitration (JurisNet, 2013), p. 59 (explaining
that such procedural orders ‘do not form part of the “ruling” that can be revisited by the
courts under art 16(3)’).

Subjecting a tribunal’s jurisdictional ruling to immediate court review

is a rare exception to the general Model Law principle against court
intervention during arbitration proceedings. Indeed, some of the drafters
of article 16(3) argued that the arbitral tribunal should be limited to
determining its jurisdiction as a preliminary matter only, in order to
avoid wasting time and costs should the jurisdictional objection ulti-
mately be upheld, either by the tribunal itself or the court review process.
Working Group II expected that in most cases jurisdiction would be dealt
with separately. However, in the event that a frivolous or weak objection
to jurisdiction was made in order to disrupt the arbitral proceedings, the
tribunal would enjoy the discretion to deal with it in the award on the
merits (in order to avoid time and costs wasted for an additional phase).
Most of the countries adopting the Model Law have opted to enact the
equivalent of the text included in article 16(3) without changing its original
wording, although its meaning and application have been the subject of
debate. The following sections discuss certain ambiguities in the operation
of article 16(3) largely due to the silence on these issues in the Model Law.
In particular, areas that have continued to invite diverging views are:
• the status of a preliminary jurisdictional decision as an ‘award’;
• the ability to contest a tribunal’s jurisdiction, after a preliminary
jurisdictional decision has been made, until a final award is entered
pursuant to an annulment action under article 34;
• the method of contesting the tribunal’s jurisdiction; and
• the standard of judicial review that will apply to either positive or
negative jurisdictional awards.
4.1 Character of a Jurisdictional Decision

While the language of article 16(3) suggests that a positive ruling on
jurisdiction is not an award because it presents an award as an alternative
option, i.e. either as ‘a preliminary question’ or ‘an award on the merits’,
there has been ambiguity as to whether a preliminary decision solely on
jurisdictional grounds by an arbitral tribunal under article 16(3) is consid-
ered an ‘award’. The Model Law is silent on a precise definition of ‘award’. In
the event that a preliminary ruling was considered an award, the ruling
could presumably be contested under article 34, or the aggrieved party could
resist its enforcement under articles 35 and 36 of the Model Law.
Earlier drafts of article 16(3) allowed a ruling by the arbitral tribunal
declaring it has no jurisdiction to be contested by any party within thirty

days.75 However, after the sixth session of the Working Group, these
words were deleted from the provision as the drafters intended that a
negative ruling by the tribunal on jurisdiction be final, given that ‘it was
inappropriate to compel arbitrators who had made such a ruling to
continue the proceedings’.76
Hong Kong and Singapore courts have rejected the argument that an
arbitral tribunal’s preliminary jurisdictional decision, even though it is clad
in the form of an interim award, entails an award on the merits.77 For
example, the Hong Kong Court of Appeal emphasised that what matters –
for the question of admissibility of the application – is whether the
jurisdictional decision had at its heart been rendered as a preliminary
matter, rather than the ultimate form it took.78
Other national courts have considered at least negative jurisdictional
decisions to be final awards.
4.2 Reviewability of a Negative Jurisdictional Decision

Article 16(3) deals explicitly with the reviewability of positive jurisdic-
tional decisions, but is silent on the reviewability of arbitral decisions
denying jurisdiction. The drafting history of the Model Law is also
inconclusive regarding the availability and scope of judicial review of
negative decisions. This necessarily presents a degree of ambiguity under
the UNCITRAL regime as to how courts should review a negative
jurisdictional decision, or if such review may occur at all.
The travaux préparatoires reflect the position that: ‘a ruling by the
arbitral tribunal that it lacked jurisdiction was final as regards its pro-
ceedings since it was inappropriate to compel arbitrators who had made
such a ruling to continue the proceedings’.79 Thus, this would appear to
75
See UN Doc. A/CN.9/WG.II/WP.48 (n. 9) and Report of the Working Group on
International Contract Practices on the Work of Its Seventh Session, UN Doc. A/CN.9/
246 (6–17 February 1984).
76
August–9 September 1983), 161, paras 62–64. The deleted provision read as follows: ‘A
ruling by the arbitral tribunal that it has no jurisdiction may be contested by any party
within 30 days before the Court specified in Article 6.’
77
Inc. Owners (n. 73); CLOUT Case 742, PT Asuransi Jasa Indonesia (n. 73).
78
Inc. Owners (n. 73), paras 13, 16–18.
79
UN Doc. A/40/17 (n. 1), Annex I, para. 163; the Swiss Federal Supreme Court in case
4A_669/2012, judgment (17 April 2013) rejected the argument that the disinclination of
an arbitral tribunal to acknowledge its own jurisdiction (due to a finding that the parties
shared a common intent to terminate the arbitration agreement) violated their right to be
heard.

4 . p ar agra ph 3 309
support the view that negative jurisdictional decisions should not be

reviewed by local courts. Various jurisdictions agree on this point. For
example, the High Court of Hong Kong has held that:
This would necessarily have required Mr. Scott to rule on his own
jurisdiction, particularly on Kenon’s objection that there is no arbitration
agreement. If he had decided as a preliminary question that there was no
arbitration agreement, that would have been an end of the matter. But if
he had decided that there was an arbitration agreement, and he therefore
had jurisdiction, that would have been subject to review by the court
under Article 16(3).80
This has been echoed by the Singapore Court of Appeal,81 and in equal
manner by other courts, such as a Kenyan court.82 Some jurisdictions
have come the other way, however, to find that negative jurisdictional
rulings are in fact reviewable. In fact, the travaux préparatoires seem to
recognise that, while article 16(3) does not address the judicial review of
negative jurisdictional decisions, article 5 – limiting court intervention to
the circumstances described in the Model Law – would not preclude
resort to a court to obtain a ruling on the tribunal’s negative jurisdictional
decision.83 Canadian courts, for their part, have applied article 16(3) to
negative jurisdictional rulings, reasoning that if article 16(3) could only
be invoked in relation to preliminary decisions dismissing jurisdictional
objections, a claimant would need to commence a court action without
ever having had the benefit of a judicial ruling on the disputed jurisdic-
tional issue.84
Courts from other jurisdictions have held that negative jurisdic-
tional rulings may be reviewed on different grounds. For example,
German courts have found negative jurisdictional rulings to be
reviewable on the ground that they constitute awards subject to
set-aside proceedings under article 34. The German Federal Court
of Justice, for instance, found that article 34 allows such decisions to
be set aside in one of the specific circumstances explicitly mentioned
80
Kenon Engineering Ltd v. Nippon Kokan Koji Kabushiki Kaisha [2003] HKCFI 568; see
also CLOUT Case 20 (n. 50), [1991] HKCFI 190.
81
82
Sebhan Enterprises Ltd v. Westmont Power (Kenya) Ltd, High Court at Nairobi (Milimani
Commercial Courts) (13 March 2006).
83
UNCITRAL, ‘2012 Digest of Case Law’ (n. 29), 81, para. 21.
84
Re.Max Platine Inc. v. Groupe Sutton-Actuel Inc. [2008] QCCA 1405; Télébec Ltée v.
Société Hydro-Québec [1997] JQ No. 1431; Micheline Lefebvre and Others v. Les
Habitations d’Angoulème [2000] JQ No. 2733; Piché v. Guilde des Musiciens du Québec
[1998] JQ No. 4896.

310 a r t i c l e 1 6 : c o m p e t en c e o f a r b i t r a l t r i b un a l
under article 34, even if it does not expressly allow courts to review
the merits of negative jurisdictional decisions.85 This ground, there-
fore, remains somewhat limited; in that case, the arbitral tribunal
had denied jurisdiction on the ground that the respondent had
effectively withdrawn from the arbitration agreement. While the
court held that the arbitral tribunal’s jurisdictional decision was
subject to article 34, it also found that none of the grounds (exhaus-
tively) listed in article 34 allowed the court to set aside the decision
on the sole basis that the tribunal had erred in denying jurisdiction.
In the same manner, the Constitutional Court of Croatia agreed to
review a negative jurisdictional ruling in a decision rendered in connec-
tion with an arbitration governed by (legislation enacting) the Model
Law. The applicant did not seek the court’s intervention on the basis of
any provision of the legislation. It rather invoked provisions of the
Croatian constitution setting out remedies available to those who com-
plain of constitutional violations. The court ultimately set aside the
tribunal’s jurisdictional decision on the ground that it was not adequately
reasoned.86
The reviewability of arbitral decisions denying jurisdiction, thus,
remains a point of ambiguity under article 16(3). As noted above,
courts may decide to review negative jurisdictional decisions either
under article 16(3) or – in some places – pursuant to a set-aside
procedure.
4.3 Method of Contesting the Tribunal’s Jurisdiction

Article 16(3) also presents a question of whether, after a tribunal rules
that it has jurisdiction, the party contesting the jurisdiction must imme-
diately challenge that ruling under article 16(3), or whether it can wait
until a final award is made and raise the argument when seeking to set
aside or annul the award under article 34. The majority view is that a
party must challenge the tribunal’s jurisdictional ruling within the thirty-
day limit allowed under article 16(3), and that if it fails, it will be
precluded from doing so in an annulment or setting-aside action under
article 34.
Commentators maintain that by laying out a path to challenge the
arbitrators’ positive jurisdictional ruling, article 16(3) requires the
85
CLOUT Case 560, German Bundesgerichtshof, 6 June 2002, III ZB 44/01.
86
Constitutional Court, Croatia, 27 October 2004, U-III/669/2003.

challenge to be raised within the requisite time period. If one does not
raise the challenge under article 16(3), the ruling becomes binding.87 The
German Federal Court of Justice stated that the ‘intent of the provision …
is to ensure that the issue of jurisdiction is, as a rule, clarified at an early
stage of the proceedings’.88 Article 16(3) was designed to settle jurisdic-
tional questions early on to ensure efficiency and finality, and allowing a
party to reserve its jurisdictional challenges until after the final award
would be contrary to this purpose. The Singapore High Court concluded
similarly that: ‘if a party fails to appeal or decides not to appeal an award
on jurisdiction, the award will be treated as final between the parties and
the hearing on the merits will proceed on the basis (and not simply the
assumption) that the tribunal has jurisdiction’.89 Courts following this
view have only found exception to the requirement in article 16(3) where
the party seeking to set aside or annul the award on the basis of jurisdic-
tion has not participated at all in the proceedings.90
Some courts have reached the opposite conclusion, having taken the
position that a party who failed to seek judicial review through article 16
(3) could still raise the point later in setting-aside proceedings.91 Overall,
however, this view is not common. The interpretation adopted by the
German and Singaporean courts appears more consistent with the pur-
pose of article 16(3) to encourage prompt and binding resolution of
jurisdictional challenges in order to ensure efficiency and finality.
4.4 Standard of Judicial Review

Lastly, article 16(3) does not specify what standard of review a court
should apply when reviewing an arbitral tribunal’s ruling on jurisdiction.
Courts are split between performing a de novo review, or rather adopting
a deferential stance, setting a tribunal’s decision aside only if exceptional
circumstances are present. Many courts assume that interim jurisdic-
tional decisions rendered by arbitral tribunals can be fully reviewed and
87
See Born (n. 61), p. 1105.
88
German Bundesgerichtshof, judgment of 27 March 2003, III ZB 83/02.
89
Astro Nusantara Intl BV v. PT Ayunda Prima Mitra [2012] SGHC 212, para. 151
(Singapore High Court).
90
Ibid., para. 140 (‘A party is not obliged to appeal under Art 16(3), but if it chooses not to
appeal, it is taken to accept the finality of the award on jurisdiction’; ‘if a party does not
raise a timely objection to jurisdiction in accordance with the (then draft) Art 16(2) of the
Model Law, then the party cannot raise the same objection to jurisdiction under Arts 34
and 36. The only exception is where a party has boycotted the proceedings altogether’).
91
Tan Poh Leng Stanley (n. 67).

312 a r tic l e 1 6: c o m pe t e n ce o f a r b i tr a l t r i b u n a l
do not discuss the matter. However, courts that address the issue have not
come to a uniform conclusion.
In one instance, the High Court of Singapore found that a hearing
under article 16(3) is not an appeal of the arbitral tribunal’s decision and
therefore the parties could put forward new arguments not discussed in
the arbitral proceedings.92 With new information, a court would have to
conduct a de novo review instead of applying deference to the arbitral
tribunal. And in an article 34(2) application to set aside an arbitral award,
a Canadian court discussed inter alia whether the arbitral tribunal had
exceeded the scope of its jurisdiction. The court found that ‘the standard
of review of the award the court is to apply is correctness, in the sense that
the tribunal had to be correct in its determination that it had the ability to
make the decision it made’.93
However, even though courts in Model Law jurisdictions have gen-
erally adopted a de novo standard of review, they still accord substan-
tial deference to arbitrators’ findings and holdings. In the same
Canadian case cited immediately above, even though the court found
that the standard of review was correctness, it also emphasised that
courts had to ‘limit themselves in the strictest terms to intervene only
rarely in decisions made by consensual, expert, international arbitra-
tion tribunals, including on issues of jurisdiction’.94 In another
Canadian case, the respondent objected to the arbitral tribunal’s jur-
isdiction on the ground that both parties had previously agreed to hold
the arbitration in London. That court held that the standard of review
in an article 16(3) hearing should be ‘one of reasonableness, deference
[and] respect’.95 It stressed that there is a ‘powerful presumption’ that
a tribunal acted within its power, including when deciding on jurisdic-
tional issues.96
Generally, courts will apply more deference when the tribunal has
conducted extensive fact-finding or has a particular expertise in the com-
mercial sector or applicable law. Additionally, the form of the court’s
decision reviewing the arbitral tribunal’s ruling may imply a certain stan-
dard of review. Article 16(3) does not specify anything beyond the fact that
92
CLOUT Case 567, PT Tugu Pratama Indonesia v. Magma Nusantara Ltd [2003] 4 SLR
(R) 257.
93
Ace Bermuda Insurance (n. 35), paras 39–40.
94
Consolidated Contractors Group SAL v. Ambatovy Minerals SA (2016) ONSC 7171,
para. 34.
95
Ibid., para. 53.
96
Ibid.

the court shall ‘decide the matter’; it does not provide for setting aside or
annulment of the arbitrator tribunal’s jurisdictional decision. If the court is
rendering an independent decision, this usually implies that the court will
review the jurisdictional question de novo. However, deciding on whether
to annul or set aside a tribunal’s decision will more likely entail more
deference to the arbitrator’s ruling. In Singapore, a court explained:
This is clear from the wording of Article 16(3) of the Model Law. It simply
provides for the court to ‘decide the matter’ of jurisdiction after the
tribunal has made a ruling that it has jurisdiction. This is not language
implying that the court’s powers to act are of an appellate nature.
Jurisdictions that apply a more deferential standard do not discuss the

meaning of the phrase ‘decide the matter’, but one could infer that
because they do not apply a de novo standard, they interpret it to mean
that they are annulling the arbitral tribunal’s decision instead of deciding
the matter themselves.
Equal considerations apply to the judicial review of negative jurisdic-
tional rulings. A de novo standard of review would be applicable to
negative, as well as positive, jurisdictional rulings. Similarly, the same
deference to the arbitrators’ fact-finding and industry or legal expertise
would also be applicable. Commentators have noted that a tribunal’s
superior access to the facts or expertise should not be given any more
weight in one setting over another.97
97
Born (n. 61), p. 1110.

Article 17
Power of Arbitral Tribunal to Order Interim

Measures
(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
resolution of the dispute.

1.1 The 1985 Version
In the negotiations leading to the 1985 text of the Model Law, article 171
was the subject of an articulate debate. The draft provision consisted of
one paragraph only, recognising the arbitral tribunal’s power to grant
interim measures and requiring, where appropriate, the provision of
security. The final version of the article read as follows:
1
Throughout the travaux, the provision at hand is indicated as art. 18, as the Working Group
initially considered including an art. 17 (then deleted), dealing with the concurrent control of
the arbitral tribunal and the court at the seat on whether a valid agreement to arbitrate existed.
314

Unless otherwise agreed by the parties, the arbitral tribunal may, at the
request of a party, order any party to take such interim measure of
protection as the arbitral tribunal may consider necessary in respect of
the subject matter of the dispute. The arbitral tribunal may require any
party to provide appropriate security in connection with such measure.
The drafters expressly considered a range of different practical scenarios

where this interim relief may prove necessary: the travaux refer in
particular to an urgent sale of perishable goods,2 the preservation of
assets,3 the protection of trade secrets and proprietary information4 or
the protection of evidence.5 However, it is important to stress that the
purpose of this case-based approach was not to create an exhaustive list of
the circumstances under which an arbitral tribunal would have the power
to issue interim measures: rather, the drafters used the scenarios as
practical examples to ensure that the text of the Model Law would satisfy
the practical needs of the parties in cross-border commercial disputes.
The discussion revolved around four main issues. First, the drafters
discussed whether it was appropriate and desirable at all to confer the
power to issue interim measures upon the arbitrators. Second, they
addressed the relationship (and the possible conflicts) between measures
issued by the arbitrators and measures granted by a State court. Third,
they considered what the consequences of arbitral interim measures (and
of the failure to comply with them) should be. Fourth, they scrutinised
the desirability of requesting the provision of security.
From the first point of view, the regulatory choice of conferring the
power to issue interim measures upon the arbitral tribunal was not
uncontroversial at the time the original text of the Model Law was
drafted; in fact, some jurisdictions still exclude this possibility today
and maintain a monopoly of State courts over interim relief, as will be
illustrated below.6 It is hence not surprising that many States proposed
that the article be deleted, and the power to grant interim relief be
2
CN.9/263 (19 March 1985), 31. The example of a sale of perishable goods was an implicit
reference to art. 26(1) of the 1976 version of the UNCITRAL Arbitration Rules, which
expressly mentioned this type of measure.
3
4
Report of UNCITRAL on the Work of Its Eighteenth Session, UN Doc. A/40/17 (21
August 1985), 33.
5
UN Doc. A/CN.9/264 (n. 3), 43.
6

316 ar ti cle 1 7: po wer to order interim mea sures
exclusively granted to State courts. Austria, in particular, argued that the

provision was superfluous, as most national legislations already allowed
State courts to grant provisional relief during the course of an arbitra-
tion.7 In addition, Austria noted that interim relief could put arbitrators
in a difficult situation and expose them to a claim for damages, in case of
error.8 Other comments evinced a more open mistrust towards arbitra-
tors issuing interim measures: it was argued, in particular, that ‘the power
granted to the arbitral tribunal could operate to the detriment of a party if
it later turned out that the interim measure was not justified’.9 Despite
such criticism, however, the provision was not deleted.
The second point of discussion concerned the relationship of the
provision at hand with article 9, and more generally with the power of
State courts to issue interim measures. Norway highlighted that the scope
of article 9 was different from that of article 17, and proposed the use of
different expressions to mark this difference.10 In the end, this proposal
was not retained, but it was noted that the scope of article 17 is somewhat
more restricted than article 9, since the arbitrators’ authority to issue
interim measures is limited by the parties’ agreement and thus only
covers the subject matter of the dispute and the parties themselves.11
During the discussion, it was noted that the existence of parallel
powers to issue interim measures on the part of both national courts
and arbitral tribunals could lead to conflicting outcomes, with the arbi-
trators, for example, granting an interim measure and a State court
denying it at the same time, or vice versa. For this reason, it was proposed
to include in the Model Law a mechanism to prevent and/or resolve said
conflicts, such as setting out a priority rule granting prevalence to the
decision issued by a State court over an incompatible decision by the
tribunal.12 The Commission, however, eventually decided not to impose
any priority rule, and left it to each State to decide on the appropriate
solution ‘in accordance with its principles and laws pertaining to the
competence of its courts and the legal effects of court decisions’.13 This
policy choice is certainly appropriate, especially considering that article 9
does not in fact confer any power to issue interim measures upon State
7
UN Doc. A/CN.9/263 (n. 2), 31.
8
Ibid.
9
UN Doc. A/40/17 (n. 4), 32.
10
UN Doc. A/CN.9/263 (n. 2), 31.
11
UN Doc. A/CN.9/264 (n. 3), 43. See also below, section 2.1.
12
UN Doc. A/40/17 (n. 9), 33.
13
Ibid.

1. b a c k g r o un d a n d t ra v a u x p rép a r a t o i r e s 317
courts, but merely declares that where such powers exist under national
law their exertion is not incompatible with an arbitration agreement.14
The third issue touched upon in the travaux concerned the conse-
quences of interim measures issued by the arbitrators, and of the parties’
failure to comply with them. Some States raised doubts as to whether the
measures would be binding at all, or whether they should instead be
understood as mere recommendations from the arbitrators to the par-
ties.15 In this respect, UNCITRAL made a clear choice in the 1985 version
of the Model Law: the measures issued by the arbitrators were to be
considered as binding, but not coercively enforceable in the absence of
spontaneous compliance. This limitation is, to a certain extent, a struc-
tural consequence of the private nature of arbitral authority, and of the
State’s monopoly over the use of enforcement measures. Interestingly,
however, the drafters had initially explored alternative solutions to
ensure the enforceability of arbitral interim measures, and envisaged in
particular the possibility of:
(1) setting up a mechanism of enforcement mediated by the support of
State courts;16 or
(2) allowing the States to directly empower arbitral tribunals to enforce
the measure.17
These proposals were eventually not retained in the 1985 version of the
Model Law. The Commission, in particular, expressed the view that
compliance was likely even in the absence of the possibility of enforcement,
for two reasons. First of all, UNCITRAL observed that the parties would
likely feel inclined to comply with the order of the arbitrators, who would
after all then have the power to decide the dispute on the merits.18 In
addition, it was argued that the provision of adequate security may encou-
rage compliance, as it would ensure that the party against whom the
measure is issued would be able to recover costs and damages, if successful
on the merits.19 At any rate, albeit not implemented, the original proposals
14
For a recent application of this concept, see SCL Basilisk AG v. Agribusiness United
Savannah Logistics LLC, 875 F.3d 609 (11th Cir. 2017).
15
See. e.g. the position of Sweden in UN Doc. A/CN.9/263 (n. 2), 31.
16
UN Doc. A/CN.9/264 (n. 3), 43.
17
See in particular the proposal of India in UN Doc. A/CN.9/263 (n. 2), 31.
18
UN Doc. A/CN.9/264 (n. 3), 43.
19
Ibid. Recently, it has been argued that the provision of security can also be used as an
incentive towards compliance in the opposite sense, e.g. ordering the party against whom
the interim measure is issued to post security: Zhenhua Logistics (Hong Kong) Co. v.
Metamining, Inc., No. C-13-2658 EMC, 2013 WL 3360670, *2 (ND Cal., 3 July 2013).

318 a rticle 1 7: power to order interi m mea sures
for the creation of an enforcement mechanism are interesting, as they

demonstrate that the drafters already envisaged the enforcement techni-
ques that were later made possible with the 2006 amendments.20
Fourth, the drafters addressed the problem of the provision of security.
Interim relief is by definition temporary, and therefore its granting
creates an allocation of economic resources that may be subject to
modifications in the future. For this reason, it is intuitively desirable to
subject the issuance of the measure to the provision of security, depend-
ing on the circumstances of the case. To this end, the original draft
considered by the Commission provided that when the arbitrators issue
an interim measure, ‘[t]he arbitral tribunal may require any party to
provide security for the costs of such measure’. This wording was met
with criticism: Mexico, in particular, noted that security should cover not
only the costs of the measure, but also the damage that a party may suffer
as a consequence thereof.21 The reaction of the Commission to this
proposal was particularly interesting. On the one hand, UNCITRAL
did acknowledge that the Model Law should not limit the security to
the costs of the measure only;22 on the other hand, however, the
Commission refused to include an express reference to damages, as this
would have amounted to the creation of a harmonised, substantive rule of
civil liability, falling outside of the scope of the Model Law.23 As a
compromise solution, the final 1985 text adopted the general wording
‘appropriate security’.24 This addition was meant to highlight the differ-
ence between article 17 of the Model Law and article 26(2) of the 1976
UNCITRAL Arbitration Rules, which provided the initial drafting basis
for article 17 and made exclusive reference to the costs of the measure.
1.2 The 2006 Revision

Interim relief was one of the main focuses of the 2006 revision of the
Model Law. Article 17, in particular, was expanded into an entirely new
Chapter of the Law (Chapter IVA), setting forth an articulate regime for
the issuance and the enforcement of interim measures.25 As a result of
20
See below and comments to arts 17H and 17I.
21
UN Doc. A/CN.9/263 (n. 2), 31.
22
UN Doc. A/40/17 (n. 9), 32.
23
Ibid., 32–33.
24
Emphasis added.
25
Third Session, UN Doc. A/CN.9/589 (12 October 2005), paras 105–106.

1 . b a c k g r o u n d a n d t ra v a u x p répa ra toir es 319
this major revision in content and structure, some of the rules and
normative elements contained in the 1985 version of article 17 were
moved to some of the subsequent provisions (and will accordingly be
analysed in the following chapters of this book). By way of example, the
rule on the provision of security was expunged from article 17 and moved
(in a more detailed wording) to the new article 17E.
Leaving aside the other provisions forming chapter IVA of the Model
Law, the main innovation introduced in article 17 with the 2006 revision
is the second paragraph, which contains a detailed definition of the
notion of interim measures.26 The drafters of the 2006 amendments
decided to add a second paragraph to article 17 for the purposes of
clarification, so as to facilitate the enforcement of arbitral interim mea-
sures on the part of State courts. As already mentioned, in fact, one of the
most notable additions of the 2006 revision was the introduction of a
mechanism of mandatory enforcement of interim measures issued by
arbitrators,27 with limited possibilities of refusal largely mirroring those
applicable to the recognition of arbitral awards.28 In light of this, the
drafters of the Model Law considered that State courts would be more
inclined to enforce arbitral interim measures if article 17 contained a
detailed definition expressly clarifying the scope of the arbitrators’ power
to issue the measures.29 The rationale underlying paragraph 2, hence, is
essentially one of reassurance towards municipal courts.30 The same
detail-focused approach was later also adopted in the 2010 revision of
the UNCITRAL Arbitration Rules, in the context of article 26.31
26
See below, section 3.
27
See art. 17H.
28
See art. 17I.
29
J. E. Castello, ‘Generalizing about the Virtues of Specificity: The Surprising Evolution of
the Longest Article in the UNICTRAL Model Law’ (2012) 6 World Arb. & Med. Rev. 7; J.
E. Castello, ‘Unveiling the 2010 UNCITRAL Arbitration Rules’ (2010) 65 Disp. Resol.
J. 21.
30
In this respect, it must be considered that the enforcement of provisional measures issued
by arbitrators is still a delicate issue, especially when the tribunal issuing the measure is
seated abroad. Even in Model Law jurisdictions, where the 2006 amendments have not
been translated into domestic law, courts may tend to scrutinise the nature of the measure
whose enforcement is sought, and to deny its recognition if it is provisional: see e.g.
CLOUT Case 1090, Supreme Court of Chile, Western Technology Services Intl Inc.
(Westech) v. Cauchos Industriales SA (Cainsa), No. 5468-2009 (11 May 2010).
31
Settlement of Commercial Disputes: Revision of the UNCITRAL Arbitration Rules, Note
by the Secretariat, UN Doc. A/CN.9/WG.II/WP.145 (6 December 2006), para. 25; J.
Paulsson and G. Petrochilos, ‘Revision of the UNCITRAL Arbitration Rules’, Report to
the UNCITRAL Secretariat, pp. 108–112, www.uncitral.org/pdf/english/news/arbrules_
report.pdf.

320 a r t i c l e 1 7 : p o w e r t o o r d e r in t er i m m e a s u r e s
2. Paragraph 1
Paragraph 1 enshrines, in general terms, the tribunal’s power to grant
interim measures. This power is subject to two general conditions: first of
all, the parties have the possibility to exclude it by mutual agreement. On
the one hand, agreeing that the arbitrators have no power to issue interim
measures may frustrate two of the main purposes of arbitration, i.e. the
limitation of State court intervention and the creation of a one-stop-shop
for dispute resolution. On the other hand, however, by expressly provid-
ing that the parties retain the possibility to exclude arbitral interim relief,
the Model Law offers a useful clarification concerning the private nature
of the abritrators’ power to grant provisional measures. In a nutshell,
paragraph 1 makes it clear that the tribunal derives this power from the
parties’ agreement, and therefore its jurisdiction over requests for interim
measures is not compulsory, but based on consent.
The second limitation set forth in paragraph 1 concerns the need for a
party request: arbitrators can only issue interim measures if and inas-
much as a party has asked them to do so. This specification constitutes an
important limit to arbitral authority: even in scenarios where the arbi-
trators deem that a temporary measure is seriously needed, they can
never issue such a measure ex officio, in the absence of party impulse.
The following sections will scrutinise the interplay between the arbitral
power to issue interim measures and the two aforementioned limitations
in detail. However, it is preliminarily necessary to consider the policy
choice to allow arbitral interim relief in general terms, contrasting it with
the prohibitions that historically existed against it.
2.1 The End of the Prohibition against Arbitral Interim Relief

For arbitration practitioners, the existence of an arbitral power to issue
interim relief may seem obvious: provisional measures currently consti-
tute a fundamental aspect of arbitration and are routinely issued by
tribunals in both commercial and investment cases.32 Along similar
32
Many sets of arbitration rules expressly recognise the tribunal’s power to issue provisional
measures; see e.g. 2017 ICC Rules, art. 28; 2014 LCIA Rules, art. 25; 2012 Swiss Rules of
International Arbitration, art. 26; 2017 SCC Rules, art. 37; 2014 AAA ICDR Rules, art. 24.
For recent examples of provisional measures in the context of investment arbitration, see e.g.
ICSID Case No. ARB/15/28, Hydro Srl and Others v. Republic of Albania, Procedural Order
on Provisional Measures of 3 March 2016; ICSID Case No. ARB/14/24, United Utilities
(Tallinn) BV and Aktsiaselts Tallinna Vesi v. Republic of Estonia, Decision – Respondent’s
Application for Provisional Measures, 12 May 2016; ICSID Case No. ARB/15/21, Menzies

lines, the proliferation of ‘emergency arbitrator’ procedures33 attests to

the importance of providing the parties with an arbitral forum to seek
interim measures, even before the constitution of the tribunal.
Furthermore, at first glance, the power to issue interim measures seems
to be almost naturally encompassed in the broader arbitral jurisdiction to
decide a dispute on the merits. If the parties’ agreement to arbitrate
empowers the tribunal to make a final and binding determination on
their rights, one may wonder, how can it not also allow the arbitrators to
issue temporary measures while the proceedings are pending?
Despite the fundamental correctness of these observations, national
laws in the past have often prevented arbitrators from issuing interim
measures. Even notoriously arbitration-friendly jurisdictions, such as
Switzerland, used to limit or exclude the arbitrators’ power to grant
provisional relief.34 As a result, State courts frequently held a de facto
monopoly over the issuance of interim measures, and the parties had no
choice but to file an application before them whenever temporary relief
was needed before the issuance of the final award.
The prohibition against arbitral interim relief was often justified by
depicting provisional measures as ‘coercive’ in nature; in other words, it
was argued that their issuance required the use of force and was therefore
incompatible with the private nature of arbitral jurisdiction.35 This
characterisation proved untenable, as the issuance of an interim measure
never requires any sort of coercion: the only stage where the use of force
becomes necessary is enforcement, which must (if available) necessarily
be controlled by State authorities such as courts and bailiffs (similarly to
Middle East and Africa SA and Aviation Handling Services Intl Ltd v. Senegal, Procedural
Order No. 2 of 2 December 2015; ICSID Case No. ARB/14/22, BSG Resources Ltd, BSG
Resources (Guinea) Ltd and BSG Resources (Guinea) SARL v. Republic of Guinea, Procedural
Order No. 3 of 25 November 2015; ICSID Case No. ARB/12/10, RSM Production Corp. v.
Saint Lucia, Decision on St Lucia’s Request for Security for Costs, 13 August 2014.
33
W. G. Bassler, ‘The Enforceability of Emergency Awards in the United States: Or When
Interim Means Final’ (2016) 32 Arb. Intl 559; F. G. Santacroce, ‘The Emergency Arbitrator: A
Full-Fledged Arbitrator Rendering an Enforceable Decision?’ (2015) 31 Arb. Intl 283; A.
Ghaffari and E. Walters, ‘The Emergency Arbitrator: The Dawn of a New Age?’ (2014) 30
Arb. Intl 153; G. Lemenez and P. Quigley, ‘The ICDR’s Emergency Arbitrator Procedure in
Action Part II: Enforcing Emergency Arbitrator Decisions’ (2009) 63 Disp. Resol. J. 66.
34
For Switzerland, see Partial Award in ICC Case No. 4998 (1986) 113 Clunet 1139; see also
the pre-1998 version of the German ZPO, s. 1036; in Germany, the availability of arbitral
interim relief in the pre-1998 regime was disputed, as noted by J. Schäfer, ‘s 1041 –
Interim Measures of Protection’ in K.-H. Böckstiegel, S. M. Kröll and P. Nacimiento (eds),
Arbitration in Germany: The Model Law in Practice, 2nd edn (Kluwer, 2015), pp. 226, 228.
35
G. B. Born, International Commercial Arbitration, 2nd edn (Kluwer, 2014), pp. 2432–2433.

322 a r t i c l e 1 7 : p o w e r t o o r d e r in t e r i m m e a s u r e s
what happens with the enforcement of a final award). The real rationale
behind the prohibition, therefore, was often political: many legal systems
were in the past characterised by a certain degree of scepticism vis-à-vis
arbitration and sought to limit the powers that private parties could
confer upon arbitral tribunals.36
Needless to say, the prohibition against arbitral interim relief generated
numerous problems for the parties to an arbitration agreement. Whenever
in need of urgent relief, the parties had no choice but to file an application
with a national court, even in situations where they would have preferred
to avoid the involvement of State judges in their dispute. Arbitrators were
unable to make temporary orders, even when there was an urgent need of a
measure aimed at protecting the integrity of the arbitral process itself.
Furthermore, this limitation of arbitral jurisdiction undoubtedly curtailed
the attractiveness of arbitration as a dispute resolution mechanism.
Cognisant of this, many (but not all)37 legal systems around the world
have now abandoned the prohibition against arbitral interim relief:
article 17 unequivocally follows this modern approach and allows arbi-
trators to provide provisional relief.
2.2 The Role of Party Impulse

By specifying that the tribunal can issue provisional measures ‘at the
request of one of the parties’, article 17 implicitly excludes the possibility
of granting them ex officio, without any type of party impulse. At first
glance, such limitation is intuitively justifiable: there seems to be no
reason for arbitrators to order a party to do (or refrain from doing)
something, unless another party has asked them to do so. Furthermore,
the rule is consistent with the general principle that arbitrators act in
accordance with the parties’ consent and under their mandate and should
36
Even in relatively recent times, the legitimacy of arbitral interim relief was sometimes
called into question. In a British Columbia case, for instance, a party challenged a decision
whereby the arbitral tribunal had held that it was competent to assess its own jurisdiction
to issue provisional measures, pursuant to provisions of domestic law largely mirroring
arts 16 and 17 of the Model Law. The challenge was based on grounds of constitutionality
of the domestic arbitration statute. The British Columbia Supreme Court rejected the
challenge and held that the conferral of the power to issue interim measures upon a
private tribunal is not contrary to the Constitution Act, and that such power also entailed
the tribunal’s competence to rule on its own jurisdiction: CLOUT Case 626, British
Columbia Supreme Court, Quintette Coal Ltd v. Nippon Steel Corp. (6 July 1988), unrep.
37
Italy, for instance, still maintains this prohibition: see Italian Code of Civil Procedure, art. 818.

therefore refrain from issuing any type of measure beyond what the
parties have requested (ne ultra petita).38
Despite the general correctness of the observations above, however, it
is important to consider an additional complication, arising out of the
different purposes for which interim relief may be granted. Namely,
among the different measures that the arbitral tribunal may issue, article
17(2)(b) of the Model Law contemplates those which aim at avoiding
‘current or imminent harm or prejudice to the arbitral process itself’.39 It
is abstractly possible to consider situations where the tribunal may deem
that the arbitral process would be seriously jeopardised should a certain
event take place (or not take place). In this scenario, at least one of the
parties to the arbitration should normally have an interest in securing the
integrity of the proceedings and would therefore typically file an applica-
tion for an interim measure. A more difficult question, though, arises in
situations where none of the parties would put forth such a request:
should the tribunal issue an order in any case, even in the absence of
party impulse, in order to avoid harm or prejudice to the arbitration
itself?
The basic answer to the above question derives from the principle of
party autonomy, and the centrality of consent in arbitration. Therefore, if
all of the parties to the proceedings agree that no action should be taken,
there is no reason why the tribunal should issue an interim measure in
the absence of a request. In other words, if the parties accept the risk of
dysfunctional arbitral proceedings, the arbitrators should not interfere.
This, however, does not entail that the tribunal is entirely powerless: to
the contrary, and within the limits of the parties’ agreement (or lack
thereof), the arbitrators have the power to conduct the arbitration in such
manner as they consider appropriate, as expressly acknowledged by
article 19(2) of the Model Law.40 In addition, the tribunal has the
inherent power to make non-binding recommendations, with which
the parties are incentivised to comply in order to avoid an appearance
of non-cooperativeness.41
38
Such rule, however, is not universally applicable, as different policy considerations may be
applicable in different contexts: in ICSID arbitration, for instance, the tribunal may
recommend provisional measures also on its own motion, under art. 39(3) of the
ICSID Arbitration Rules.
39
40
See also the comment to art. 19.
41
Born (n. 35), p. 2506, fn. 431 notes that this type of non-binding admonition should be
kept distinct from recommendations in ICSID arbitration, which are binding despite
their formal denomination (see also n. 38).

In sum, article 17(1) should not be read as excluding the arbitrators’

inherent powers to govern the proceedings and ensure (inasmuch as
possible) the efficiency of arbitration, within the discretionary margin
afforded by the ‘appropriateness’ standard of article 19(2). The use of
such powers, however, should not turn into abuse: the tribunal, therefore,
always possesses a certain degree of power to direct the proceedings, but
should never exploit such power to issue provisional measures in the
absence of any party request.
2.3 The Role of Party Autonomy

Article 17(1) specifies that the arbitrators have the power to issue interim
measures ‘unless otherwise agreed by the parties’: in accordance with the
general principle of party autonomy, hence, the disputants have the
possibility to exclude arbitral jurisdiction over provisional relief. If
the agreement specifies that the arbitral tribunal has no power to issue
provisional measures, a party in need of urgent relief will have no choice
but to file an application with the competent State court, in accordance
with articles 9 and 17J of the Model Law. Failing any such restriction, the
party will generally have the possibility to choose between these two
different types of forums. Article 17(1), hence, is essentially a ‘fall-back’
or ‘default’ rule, i.e. a rule that is applicable only inasmuch as parties have
not provided otherwise. The parties’ decision to rule out arbitral interim
relief could result from the explicit wording of the agreement to arbitrate,
or from the mere reference to a set of arbitration rules that exclude this
possibility.42
While the exclusion of arbitral interim relief may in some specific
circumstances be desirable, parties do not generally make use of this
possibility. The standard ‘double-track’ regime put in place by the Model
Law, whereby interim relief is in principle available before both the
arbitral tribunal and State courts (within the jurisdictional limits set
forth in the lex fori), is the one that typically best serves the interests of
the parties to a cross-border commercial dispute. More commonly,
instead, the parties limit the possibility of obtaining interim measures
from State courts, especially at a stage when the arbitration is already
pending.
Typically, the limitation of the parties’ possibility to resort to State courts
and obtain provisional relief is set forth in the arbitration rules and, thus,
42
Schäfer (n. 34), p. 228.

incorporated in the parties’ agreement by reference.43 Pursuant to article

28(2) of the 2017 ICC Rules, for instance, the parties may ask State courts
to issue interim or conservatory measures ‘before the file is transmitted to
the arbitral tribunal, and in appropriate circumstances even thereafter’.44
The rules, hence, subject the recourse to State courts to an appropriateness
test, in cases where the case file is already with the arbitrators. Even more
restrictively, article 25(3) of the 2014 LCIA Rules provides that, after the
formation of the tribunal, recourse to State courts for provisional relief is
only possible ‘in exceptional cases and with the Arbitral Tribunal’s author-
isation’. While such provisions obviously do not exclude recourse to State
courts during the arbitration, they do somewhat limit it, at least implicitly,
by making reference to ‘appropriate circumstances’ and/or by subjecting it
to the overarching control of the arbitrators.
It is important to stress that article 17(1) enables the parties to restrict or
exclude the possibility of arbitral interim relief, but it does not deal in any
way with the different situation considered here, in which the disputants
agree to exclude or limit recourse to State courts. While the principle of
party autonomy underlying article 17(1) enables the parties to limit or
exclude the arbitrators’ jurisdiction over provisional relief, the same does
not hold true as regards the jurisdiction of national courts. Municipal
courts, after all, draw their jurisdiction from the law of the State, rather
than from the parties’ consent, and it is well possible that under the
applicable lex fori the parties are prevented from waiving or restricting
their right to request provisional measures in the future. As a result, it may
43
There are, however, also cases where this limitation is expressly set forth in the agreement.
In one Australian case, for instance, the parties agreed that recourse to State courts would
be possible for ‘urgent interlocutory or declaratory relief’, and a dispute arose as to
whether the relief that one of the parties had requested qualified as ‘urgent’: CLOUT
Case 1177, Victoria Court of Appeal, AED Oil Ltd v. Puffin FPSO Ltd (No. 5) [2010]
VSCA 37.
44
Emphasis added. A typical example of ‘appropriate circumstances’ is the case where a
party is in need of a measure that the arbitral tribunal is unable to grant, such as e.g. an ex
parte order in situations where the lex arbitri prevents arbitrators from issuing an interim
measure without having preliminarily afforded all other parties the right to present their
case. In such cases, a court-issued interim measure may be necessary to protect what has
been described as the ‘meaningfulness of the arbitral process’: Toyo Tire Holdings of
Americas, Inc. v. Continental Tire North America, Inc., 609 F.3d 975, 980 (9th Cir. 2010);
Auntie Anne’s, Inc. v. Wang, No. CV 14-01049 MMM (EX), 2014 WL 11728722, *11 (CD
Cal., 16 July 2014); Barnes v. Jewels, No. CV144098ODWMRWX, 2016 WL 7238832, *2
(CD Cal., 3 March 2016). For an analysis of the criteria justifying the issuance of an
interim measure on the part of a State court in the presence of an arbitration agreement,
see CLOUT Case 1654, Supreme Court of British Columbia, African Mixing Technologies
Ltd v. Canamix Processing Systems Ltd [2014] BSCS 2130.

326 a r t i c l e 17 : p o w e r t o o r d e r in t e r i m m e a s u r e s
be possible for a State court to legitimately exert jurisdiction and issue a

provisional measure, even if the parties directly or indirectly excluded or
limited this possibility in their agreement.45 This, however, does not mean
that provisions such as article 28(2) of the ICC Rules or article 25(3) of the
LCIA Rules have no consequences: the arbitral tribunal retains the power
to assess the appropriateness of the circumstances giving rise to the
request, with possible consequences on the further development of the
arbitration and on the resolution of the case on the merits.
3. Paragraph 2
The main purpose of the second paragraph of article 17 is to provide an
articulate definition of the notion of ‘interim measure’. As already men-
tioned, the paragraph was added as a result of the 2006 revision of the
Model Law and aims at clarifying the scope of application of the provi-
sion, so as to guide its interpretation on the part of State courts and
facilitate the enforcement of the measures.46
3.1 Temporary Nature of the Interim Measure

The second paragraph of article 17 starts by highlighting that an interim
measure is, by definition, ‘temporary’. The purpose of such a measure,
therefore, should not be the definitive resolution of the dispute between
the parties, but the creation of a provisional regime: interim measures
contain orders that are not meant to last indefinitely and should normally
be superseded by the final award.47
45
In this respect, it should also be noted that the possibility to request interim relief from State
courts may be regarded, depending on the legal system, as a constitutional right or even as a
human right. See, in this respect, the case law of the European Court of Human Rights,
according to which art. 6 of the European Convention on Human Rights may, in certain cases,
apply to interim measures: Micallef v. Malta, Application No. 17056/06, 15 October 2009.
46
47
Domestic courts consistently hold that a measure issued by the tribunal should be
qualified as ‘interim’ when it is ‘an “intermediate” step toward a further end’: S. Seas
Navigation Ltd of Monrovia v. Petroleos Mexicanos of Mex. City, 606 F. Supp. 692, 694
(SDNY 1985) (Weinfeld J.); Offshore Expl. & Prod., LLC v. Morgan Stanley Private Bank,
NA, 626 Fed. App’x 303, 307 (2nd Cir. 2015). Conversely, the arbitral decision is to be
regarded as final when it definitively resolves the motions put forth by the parties: First
Merchants Grp Ltd P’ship v. Fordham, No. CV094041764S, 2014 WL 3893065, 8 (Conn.
Super. Ct, 24 June 2014). See, along similar lines, CLOUT Case 1537, Singapore High
Court, PT Pukuafu Indah and Others v. Newmont Indonesia Ltd and Another [2012]
SGHC 187.

The potential need for temporary relief is an unavoidable consequence

of the fact that arbitration takes time: even the most efficient procedure
will have a certain duration, from the commencement to the issuance of
the final award. Furthermore, this need is currently made more evident
by the raise in the average duration of arbitral procedures: as arbitration
has become more technical and formalised over the past few decades, the
period of time between the commencement of the proceedings and the
rendering of the award has generally increased. It is hence common for
the parties to an arbitration to need some type of temporary order, with a
view, for example, to maintain the status quo during the course of the
proceedings, or to protect assets, evidence or the integrity of the arbitral
process itself.
The use of the word ‘temporary’ in article 17(2) apparently seems
to entail that an order issued by the arbitrators can never qualify as
an interim measure if it resolves the dispute with finality without ever
being substituted by a final measure. National courts in Model Law
countries, however, have sometimes adopted a more nuanced
approach to the concept at hand. In a German case, in particular,
an athlete that had been accused of negligent use of stimulant drugs
commenced arbitration proceedings against his sports federation,
which had rejected his application to participate in a tournament.
The athlete obtained an interim measure from the arbitral tribunal
whereby the federation was ordered to allow the athlete’s participa-
tion in the tournament. Such order was not meant by the arbitrators
to be final, but only to ensure that the athlete’s rights would not be
irreparably compromised by his exclusion from the competition,
pending the arbitral proceedings; nonetheless, once the interim mea-
sure was issued and enforced, the athlete had effectively attained his
goal (being allowed to take part in the competition), and therefore
declared the dispute settled. Seised with the matter, the Frankfurt
court held that ‘even though the claim was fulfilled by an interim
measure this did not preclude defining the measure as interim or
protective’.48 In sum, according to the court, when a measure is
issued to protect a party against imminent harm, it should be quali-
fied as ‘temporary’, even if it affords that party the same type of relief
as the one granted in a favourable final award.
48
CLOUT Case 565, Oberlandesgericht Frankfurt, 5 April 2001.

3.2 Relationship with the Subject Matter of the Dispute

In its current form, article 17(2) simply states that an interim measure is
‘any temporary measure’ (subject to the specifications listed in the
remainder of the article), without expressly requiring a connection with
the subject matter of the dispute. At first sight, such specification would
come across as superfluous: since the tribunal’s jurisdiction derives from
the parties’ agreement and extends only to the matters that the parties
have submitted to the arbitrators, it may seem obvious to assume that
even in the absence of explicit references, the measure issued by the
arbitrators should be connected to the main subject matter of the arbi-
tration.49 It must be noted, however, that a reference to the subject matter
of the dispute was present in the 1985 version of the Model Law, accord-
ing to which the arbitral tribunal had the power to ‘order any party to
take such interim measure of protection as the arbitral tribunal may
consider necessary in respect of the subject-matter of the dispute’.50 The
question arises, then, as to why the reference to the subject matter was
excluded as a result of the 2006 revision.
The absence of a reference to the subject matter should not be read as
an attempt on the part of the Model Law drafters to empower the
arbitrators to issue interim orders that are not related to the main subject
of the case: as already noted, such a reading would be incompatible with
the basic principles of party consent and disposition underlying the very
notion of arbitral jurisdiction.51 The purpose of the drafters, rather, was
to avoid unduly restrictive interpretations of article 17 on the part of State
courts.52 Namely, certain domestic courts had contrasted the reference to
49
On the relationship between the parties’ agreement to arbitrate and the arbitrators’
jurisdiction to issue interim measures, see recently Alzheimer’s Disease & Related
Disorders Assn, Inc. v. Alzheimer’s Disease & Related Disorders Assn of San Diego, Inc.,
No. 17-CV-1690-BTM-JLB, 2018 WL 1562012 (SD Cal., 29 March 2018).
50
Emphasis added.
51
edn (Oxford University Press, 2013), p. 517, noting that ‘an arbitral tribunal is not a court
of general jurisdiction’.
52
For the same reason, the reference to the subject matter of the dispute (present in the 1976
version of the UNCITRAL Arbitration Rules) has been excluded in the 2010 revision of
art. 26: see Report of Working Group II (Arbitration and Conciliation) on the Work of Its
Forty-Fifth Session (Vienna, 11–15 September 2006), UN Doc. A/CN.9/614 (5 October
2006), 22. Caron and Caplan (n. 51), p. 518 note that in practice, even under the 1976
Rules, the provision had been interpreted in a sufficient broad fashion, so as to encompass
matters that went beyond the mere preservation of the integrity of the arbitral process:
Islamic Republic of Iran and United States of America, Decision No. DEC 116-A15(IV)
and A24-FT.

3 . p ar agr ap h 2 329
the subject matter present in article 17 with the wording of article 9 of the
Model Law, which did not contain the same specification; against this
background, it had been held that the arbitrators’ jurisdiction to issue
interim measures would be intrinsically more limited than the corre-
sponding power of State court.53 Some municipal courts even theorised
that the Model Law presupposed a hierarchical relationship between
measures issued by arbitral tribunals and measures issued by State courts,
the latter being ‘a superior judicial forum’.54 Other judicial authorities, by
contrast, correctly observed that it would be wrong to derive conse-
quences from the difference in the wording of articles 9 and 17, as the
former (unlike the latter) does not create any power to issue interim
measures, but simply permits State courts to do so if and inasmuch as
such power already exists under the applicable lex fori.55
In order to put an end to these interpretive uncertainties, the current
version of the Model Law excluded reference to the subject matter of the
dispute and included instead a detailed list of practical scenarios, which
should more explicitly illustrate the link between the interim measure
issued by the arbitrators and the main subject of the parties’ dispute.56
3.3 Form of the Interim Measure

The tribunal can issue an interim measure ‘in the form of an award or in
another form’. By inserting this specification, the drafters of the Model
Law have afforded arbitrators a high level of discretion, as to how the
measure should be framed. This, however, also generates a complication,
since the Model Law does not provide any guidance as to what form a
tribunal should choose when it issues an interim measure.
Typically, the form of the award is used when the tribunal makes a final
determination on a certain procedural or substantive aspect of the case;
conversely, orders are used when the objective is to make a provisional
determination that may be subject to variations or amendments in the
future. For this reason, given their temporary nature, interim measures
should in principle be issued in the form of an order. In practice,
53
CLOUT Case 39, Hong Kong High Court – Court of First Instance, Katran Shipping Co.
Ltd v. Kenven Transportation Ltd [1992] HKCFI 173.
54
Delhi High Court, Natl Highways Authority of India v. China Coal Construction Group
Corp., 23 January 2006; UNCITRAL, ‘2012 Digest of Case Law’, p. 87.
55
Singapore High Court, Swift-Fortune Ltd v. Magnifica Marine SA [2006] 2 SLR 323,
affirmed in [2007] 1 SLR 629.
56
See below, sections 3.5–3.9.

however, there is a host of more pragmatic considerations that may play a

role when deciding the form of the measure.
A key question, in this respect, is whether the measure may need to be
enforced and, if so, where and how. In some cases, there may be no
foreseeable need for coercion, as the parties are not required to take any
specific action, but simply to refrain from doing something which may
alter the status quo. Furthermore, depending on the circumstances of the
case and the level of cooperativeness of the disputants, the arbitrators
may assume that no need for coercive enforcement will arise, as the
parties will spontaneously comply with any measure that the tribunal
may issue. Conversely, in other scenarios, it may be important to ensure
that the interim measure may be enforced against a non-cooperative
party, in order to guarantee the practical effectiveness of the arbitrator’s
interim decision.
The reason why the need for enforceability may have a bearing on the
form of the measure is that orders and awards may not be enforceable in
the same terms. As already noted, the Model Law provides for the
recognition and enforcement of interim measures in section 4 of
Chapter IVA,57 and so do other national arbitration statutes.58
However, execution may be necessary in a jurisdiction where domestic
law does not provide for the recognition and enforcement of interim
measures issued by arbitral tribunals in the form of an order. In such a
situation, it may be preferable for the tribunal to issue an award, so that
the party in favour of which the measure has been issued be able to seek
recognition and enforcement (in accordance, inter alia, with the New
York Convention).59 It must nevertheless be acknowledged that certain
municipal authorities adopt a ‘substance over form’ approach and may
therefore in any event deny the recognition of the measure even if issued
in the form of an award, on the grounds that the de facto nature of the
relief is temporary rather than final.60
While the issuance of an award may ensure a higher degree of enforce-
ability, as compared with an order, it also entails a significant increase in
complexity: awards are generally longer than orders, more detailed and
subject to additional formal requirements. For these reasons, tribunals
57
See also the comments to arts 17H and 17I.
58
See e.g. English Arbitration Act, s. 42 and Swiss Private International Law Act, art. 183.
59
L. A. Tucker, ‘Interim Measures under the Revised UNCITRAL Arbitration Rules:
Comparison to Model Law Reflects Both Greater Flexibility and Remaining
Uncertainty’ (2011) 1 Arb. Brief 18.
60
Resort Condominiums Intl Inc. v. Ray Bolwell and Another (1995) XX YB Com. Arb. 628.

may wish to avoid the form of the award when there is a particularly
urgent need to take action.
3.4 Temporal Scope of Application and the Problem of Interim

Relief before the Constitution of the Tribunal
Article 17(2) specifies that the arbitral tribunal may issue an interim
measure ‘at any time prior to the issuance of the award by which the
dispute is finally decided’: provisional relief, in other words, can be
granted at any stage of the arbitration, up until the time when the tribunal
is functus officio. The provision, hence, does not impose any temporal
restriction on the arbitrators’ power. Nonetheless, a chronological
restriction factually exists, and is to a certain extent unavoidable due to
the non-permanent nature of arbitral tribunals: the arbitrators are
obviously unable to issue interim measures at an early stage of the
dispute, before the tribunal is constituted.
The intuitive solution to the problem at hand is that, before the
constitution of the tribunal, the parties can ask the competent State
court to issue interim measures, as allowed inter alia by many sets of
arbitration rules.61 However, it is important to acknowledge that such a
solution entails some significant drawbacks: by bringing their dispute
before a State court, the parties risk losing some of the key advantages of
arbitration, such as the protection of confidentiality or decision-making
expertise (e.g. on technical matters). For this reason, and cognisant of the
fact that several weeks or months may lapse between the initial request
for arbitration and the constitution of the tribunal, numerous institutions
have created ‘emergency arbitrator’ procedures,62 which can be activated
before the tribunal is constituted and even before the referral of the
dispute to arbitration.63
3.5 Exhaustiveness of the List

Article 17(2) contains a list of four different types of interim measures
that may be issued by an arbitral tribunal. Before analysing each of the
scenarios enumerated in the list, it is useful to reflect on its overall nature.
61
62
63
See e.g. art. 1(6) of the ICC Emergency Arbitrator Rules, setting a time limit of ten days for
the filing of a request for arbitration, after the application for emergency measures has
been received by the ICC Secretariat.

332 ar ticle 1 7: po wer to order interim m ea sures
In general, when a provision of law contains a list of examples, such list

can be interpreted as either exhaustive (i.e. covering all relevant situa-
tions) or merely explanatory (i.e. providing examples for guidance, but
without excluding the applicability to further scenarios which have not
been expressly mentioned).64 The question arises, then, as to how the list
at hand should be understood.
The drafters of the 2006 revision of the Model Law meant the list to be
exhaustive, as the preparatory works clearly demonstrate. At its thirty-
sixth session, the Working Group had initially agreed to include a non-
exhaustive list of provisional measures, for purposes of clarification and
guidance merely.65 However, following a redraft, the wording of the
provision suggested that the list was exhaustive; the Working Group,
then, considered the possibility of adding an additional subparagraph, to
‘leave open the possibility that an arbitral tribunal might order an interim
measure in exceptional circumstances not currently covered by para-
graph 2’.66 The Working Group discarded this proposal as unnecessary,
as the draft ‘provided generic broadly cast categories describing the
functions or purposes of various interim measures without focusing on
specific measures’.67 In other words, it was held that even though the list
was exhaustive, the items comprised therein were broad enough to
ensure an adequate level of flexibility. It was also noted that an exhaustive
list may provide more legal certainty, and hence ‘reassure courts at the
point of recognition or enforcement of an interim measure’.68 It is
undoubtedly true that the list is worded in a flexible fashion, indicating
general functions and purposes rather than describing in detail what the
measures consist of.69 As a result, different types of interim measures
may potentially be encompassed in the same item of the list. Nonetheless,
it must also be noted that some other types of measures, which may be
qualified as ‘interim’ or ‘provisional’ under many national legal systems,
64
By way of example, the definition of ‘investment’ in many bilateral investment treaties is
formed by a chapeau and a non-exhaustive list of examples.
65
Report of the Working Group II (Arbitration) on the Work of Its Thirty-Sixth Session,
UN Doc. A/CN.9/508 (12 April 2002), 18.
66
Report of the Working Group on Arbitration on the Work of Its Thirty-Ninth Session,
UN Doc. A/CN.9/545 (8 December 2003), 8–9.
67
Ibid., 9.
68
Ibid.
69
Furthermore, many national authorities interpret art. 17 flexibly, so as to encompass a
wide range of possible measures: see e.g. CLOUT Case 1268, Court of Appeal of Quebec,
Nearctic Nickel Mines Inc. v. Canadian Royalties Inc. (29 February 2012).

could well fall outside the scope of the list, especially when they aim to
anticipate the effects of the final award.70
An additional confirmation of the exhaustive nature of the list in
article 17(2) of the Model Law is that the provision at hand was used as
a drafting basis for article 26 of the 2010 UNCITRAL Arbitration Rules,
but the latter contain a significant specification which is missing in the
former. Namely, the chapeau of article 26(2) of the Rules includes the
wording ‘for example and without limitation’, which was chosen by
UNCITRAL to expressly signal the possibility for the tribunal to issue
measures not covered by any item on the list.71
A delicate question arises in circumstances where an arbitral tribunal
sitting in a Model Law jurisdiction is asked to issue an interim measure
not provided for in article 17(2), but is in principle available under the
more permissive provisions of the applicable arbitration rules.72 In such a
situation, the tribunal is faced with the dilemma whether to refrain from
issuing the measure, in accordance with the lex arbitri, or granting it
pursuant to the arbitration rules that the parties have selected in their
agreement.73
The best view is that, when the law of the seat mirrors the contents of
article 17 of the Model Law, the tribunal is not at freedom to issue a
measure which cannot reasonably be associated with any of the items
comprising the list under paragraph 2, even if the applicable arbitration
rules envisage this possibility.74 The reason for this limitation is that the
tribunal’s power to grant interim relief can be limited or excluded by the
parties,75 but not extended beyond what the law provides. Article 17(2),
in a nutshell, provides a ‘ceiling’ for arbitral jurisdiction in interim
matters. When a national provision of law modelled after article 17 is
70
71
Tucker (n. 59), p. 18.
72
Such as, for instance, the aforementioned art. 26(2) of the UNCITRAL Arbitration Rules.
73
In a Canadian case, for instance, the tribunal issued a measure which arguably did not fall
within the purview of art. 17 (amounting, essentially, to an anticipation of the effects of
the final award). While the case was decided before the 2006 revision of the Model Law, it
is instructive, because the tribunal expressly held that ‘its powers to order interim
measures were wider than those set out in Article 17’: CLOUT Case 588, British
Columbia Industrial Relations Council, Fast Car Co. Inc. and Others v. IATSE Locals
669 & 891 (23 July 1991).
74
Conversely, interim measures that do not fall within the purview of any of the items in the
list can still be issued in Model Law jurisdictions which do not incorporate the 2006
amendments, such as Germany (see ZPO, s. 1041). See e.g. Oberlandesgericht Frankfurt
(n. 48).
75

334 article 17: power to order interim measures
applicable, then, tribunals should frame the interim measures they grant
as temporary in nature and aimed at maintaining or restoring the status
quo or protecting the arbitral process, assets or evidence, in accordance
with the Model Law limitations.
While UNCITRAL’s choice to adopt an exhaustive list is not without
merits, as it maximises legal certainty, it was not received positively in
some of the States enacting the Model Law as their national legislation. In
Belgium, for instance, the wording of article 17 was substituted with a
more flexible provision, whereby the tribunal has the power to issue ‘any
interim or conservatory measures it deems necessary’.76 The Belgian
lawmakers expressly justified this departure from the Model Law by
emphasising the need for a higher level of flexibility.77
3.6 Paragraph 2(a): Status Quo Maintenance or Restoration

During the course of an arbitration, it is sometimes necessary to protect
the state of affairs between the parties.78 In these circumstances, the
tribunal may impose a freezing of the current state of affairs, typically
by ordering the parties to refrain from taking action that would modify
their status quo. The arbitrators, for instance, may order the parties not to
terminate agreements, divulge secrets or sell, transfer or destroy goods;79
in other scenarios, the parties may be required to take action to preserve
the status quo, e.g. by adopting precautions to preserve certain assets
adequately.80 In addition, there are circumstances where the status quo
has already been altered, but it may be possible to restore it if appropriate
76
Belgian Judicial Code, art. 1691. See also N. Bassiri, ‘Article 1691’ in N. Bassiri and M.
Draye (eds), Arbitration in Belgium (Kluwer, 2016), p. 209.
77
Chambre des Représentants de Belgique, ‘Projet de loi modifiant la sixième part du Code
judiciaire relative à l’arbitrage’, Doc. 53 2743/001, p. 24, www.lachambre.be/FLWB/pdf/
53/2743/53K2743001.pdf.
78
A. Reiner, ‘Les mesures provisoires et conservatoires et l’arbitrage international, notam-
ment l’arbitrage CCI’ (1998) 125 Clunet 853, 890. The Working Group initially consid-
ered a wording that expressly acknowledged the aim to ‘ensure or facilitate the
effectiveness of a subsequent award’. However, the text was subsequently deleted, as it
was observed that interim measures may serve a variety of purposes, rather than just being
instrumental to the effects of the award: see, with specific reference to the aggravation of
the dispute, UN Doc. A/CN.9/545 (n. 66), 9.
79
M. Wirth, ‘Interim or Preventive Measures in Support of International Arbitration in
Switzerland’ (2000) 18 ASA Bull. 31, 33.
80
Caron and Caplan (n. 51), p. 518; CLOUT Case 1536, Singapore Court of Appeal,
Maldives Airports Co. Ltd and the Republic of the Maldives v. GMR Malé Intl Airport
Pte Ltd [2013] SGCA 16; Sperry Intl Trade Co. v. Government of Israel, 689 F.2d 301 (2nd
Cir. 1982).

action is taken. In this case, at the request of a party, the tribunal may
issue an order aimed at recreating the state of affairs which existed at
some point in the past (e.g. at the last moment in time before the dispute
arose).81
3.7 Paragraph 2(b): Protection of the Arbitral Process Itself

Interim measures may be necessary in order to ensure that the arbitral
process is not disrupted: in some cases, a party’s obstructive or openly
hostile behaviour may have dramatic effects on the possibility for the
arbitration to proceed in an orderly fashion. Provisional relief can be
granted by the arbitrators so as to ensure the integrity of the process: a
party, for instance, may be ordered to refrain from taking actions that
exacerbate the dispute.82 In order to obtain this type of measure, a party
must not demonstrate that harm or prejudice to the arbitral process is
certain, but only ‘likely’. Nevertheless, the risk may not be merely
hypothetical, as article 17 requires that (if not already occurring) the
prejudice to the arbitral process be at least ‘imminent’.
On the one hand, the protection of the arbitration itself is the most
intuitive and basic purpose for which an arbitral tribunal may issue an
interim measure. On the other hand, however, in practice, the use of
interim measures for the purpose of protecting arbitration has given rise
to some delicate problems. An interesting situation arises when one (or
more) of the parties to the arbitration commences parallel proceedings
before multiple forums dealing with the same subject matter. This beha-
viour, often grounded in strategic considerations, may have an obvious
disruptive effect on the arbitral proceedings, as it generates a conflict of
jurisdictions and may possibly lead to incompatible rulings. Needless to
say, arbitral interim relief is not the only method to resolve this problem:
State courts seised in violation of an agreement to arbitrate are in
principle under an obligation to decline jurisdiction,83 and court-issued
anti-suit injunctions (where available) may provide an additional
mechanism protecting the effectiveness of the agreement. Nevertheless,
tribunals have sometimes issued interim measures ordering the discon-
tinuation of parallel proceedings brought in breach of an arbitration
81
Susanville Indian Rancheria v. Leavitt, 2007 WL 662197, 7 (ED Cal.).
82
Partial Award in ICC Case No. 3892 in S. Jarvin and Y. Derains (eds), Collection of ICC
Arbitral Awards 1974–1985 (Kluwer, 1990), p. 161; Partial Award in ICC Case No. 3896
(1983) 110 Clunet 914.
83
See New York Convention, art. II(3).

clause, so as to preserve the effectiveness of arbitration as a ‘one-stop-

shop’ for dispute resolution.84 It is doubtful whether this type of arbitral
injunction may be encompassed within the scope of article 17(2)(b), and
in any case numerous doubts exist as to its enforceability, even if issued in
the form of an award.85
Another interesting question is whether the arbitral process may be
protected by an order whereby a party is ordered to post security for
arbitration and legal costs. Arbitral tribunals are increasingly willing to
issue this type of order, and numerous sets of arbitration rules expressly
acknowledge this possibility: for instance, pursuant to article 25(2) of the
2014 LCIA Rules, the tribunal has the power ‘to order any claiming or
cross-claiming party to provide or procure security for Legal Costs and
Arbitration Costs by way of deposit or bank guarantee or in any other
manner and upon such terms as the Arbitral Tribunal considers appro-
priate in the circumstance’. On the one hand, the issuance of such a
measure has the potential to protect the arbitral process, inasmuch as it
helps to ensure that parties do not pursue claims in the arbitration
without being ready to cover the costs that may arise therefrom. On the
other hand, however, a request to provide security may discourage
economically weaker parties to bring a claim, and hence indirectly hinder
access to arbitral justice.86
The text of the article does not offer any express indication as to
whether an order to provide security for arbitration and legal costs is
allowed by the Model Law, and (if yes) whether it may qualify as a
measure aimed at preventing ‘harm or prejudice to the arbitral process
itself’. However, the travaux of the Model Law and of the UNCITRAL
Arbitration Rules provide an argument in favour of the availability of
such measure, but against the inclusion of the measure at hand within the
scope of article 17(2)(b). More specifically, during the drafting of the
2010 UNCITRAL Arbitration Rules, a debate arose as to whether an
explicit reference to security for costs should be made; the Working
Group concluded that such addition was unnecessary, as the possibility
to order security for costs also existed under the Model Law, albeit in the
84
Born (n. 35), pp. 2501–2503.
85
The issue has been recently addressed by the Court of Justice of the European Union in
case C-536/13, ‘Gazprom’ OAO v. Lietuvos Respublika, ECLI:EU:C:2015:316. More gen-
erally, on the desirability of this type of injunction, see A. Yesilirmak, Provisional
Measures in International Commercial Arbitration (Kluwer, 2005), pp. 211–212.
86
Yesilirmak (n. 85), pp. 214–218.

absence of explicit references, since security for costs was encompassed in

the broad notion of asset preservation of article 17(2)(c).87
An additional question that has recently arisen is whether security for
costs should be ordered when one of the parties to the arbitration is
relying on a third-party funder. The use of third-party funding has risen
considerably in recent times, facilitating access to arbitration for parties
that would not be able and/or willing to fund the costs of the proceed-
ings without external financial aid.88 It has sometimes been held that
the use of third-party funding generates a presumption of impecu-
niousness and is therefore in itself enough ground to order security
for costs.89 This reading, however, does not take into account that third-
party funding may be used for a variety of different reasons, even by
parties that are not impecunious but simply wish to contractually
dispose of their claim for a variety of possible economic and risk-
management purposes.90
3.8 Paragraph 2(c): Asset Preservation

An award loses a great deal of its practical significance if the party in
favour of which it has been issued is unable to obtain its enforcement and,
hence, economic satisfaction: this basic rationale justifies the issuance of
interim measures aimed at preserving assets out of which the award may
be satisfied in the future. A tribunal, for instance, may order the parties
not to divest their assets, or take other types of action that may result in
the diminishment of their liquidity.
While the Model Law does in principle empower the tribunal to issue
this type of measure, there are two significant limitations that may in
87
Report of the Working Group II (Arbitration and Conciliation) on the Work of Its Forty-
Seventh Session, UN Doc. A/CN.9/641 (25 September 2007), para. 48; see also J. Tirado,
M. Stein and M. Singh, ‘Security for Costs in International Arbitration’ (2013) III YB Intl
Arb. 163, 166.
88
V. S. Sahani and L. Bench Nieuwveld, Third-Party Funding in International Arbitration,
2nd edn (Kluwer, 2017).
89
ICSID Case No. ARB/12/10, RSM Production Corp. v. Saint Lucia, Decision on Saint
Lucia’s Request for Security for Costs, 13 August 2014, Assenting Reasons of Gavan
Griffith, QC, paras 10–19. In litigation, courts sometimes issue an order of security for
costs directly against the funder: see The RBS Rights Issue Litigation [2017] EWHC
1217 (Ch).
90
‘Draft Report for Public Discussion of the ICCA-Queen Mary Task Force on Third-Party
Funding in International Arbitration’ (1 September 2017), pp. 13–14, www.arbitration-
icca.org/media/10/14053115930449/submission_version_for_public_comment_finalver
sion.pdf.

338 ar ticle 1 7: po wer to o rder i nterim mea sures
practice constrain the arbitrators’ ability to provide this type of interim

relief. The first limitation arises out of the circumstance that asset pre-
servation measures often entail the involvement of third parties: it may,
for instance, be necessary to order the preservation of property held by a
third party, or the freezing of money owed to one of the disputants by a
third-party debtor.91 A State court can (within the limits of its jurisdic-
tion as determined by the applicable lex fori) grant such a measure,
authorising e.g. an attachment against the assets out of which satisfaction
may be sought once a final judgment on the merits has been issued. By
contrast, an arbitral tribunal is generally unable to do so, as its jurisdic-
tion derives from the parties’ agreement and thus does not extend to third
parties. Because of this, some countries that have adopted the Model Law
expressly acknowledge that the tribunal’s power to issue interim mea-
sures to protect assets does not extend to attachments. Article 1691 of the
Belgian Judicial Code, for instance, states that the tribunal cannot author-
ise attachment orders.92
The second limitation arises out of the frequent need to ensure a
‘surprise effect’: if one of the parties in the arbitration is hastily divesting
its assets, presumably for the purpose of making the satisfaction of the
award practically impossible, it may be necessary to obtain not only the
issuance of the measure, but also its enforcement without informing that
party in advance. The traditional view was that an arbitral tribunal, unlike
a State court, could not issue an interim measure without having pre-
viously afforded each of the parties the right to present their case, as an ex
parte decision would have given rise to an appearance of partiality. The
Model Law has tried to overcome this limitation by introducing the
possibility of preliminary orders, to be issued ex parte.93 However,
major limitations still exist in this respect: first of all, even under the
2006 Model Law, preliminary orders granted without the previous invol-
vement of the target party are not subject to enforcement by courts, nor
do they constitute awards.94 Second, in practice, many Model Law
jurisdictions have not implemented the preliminary order mechanism,
thus leaving the creditors that need a ‘surprise effect’ with no choice but
to file an application with the competent State court.
91
J. Lew, ‘Commentary on Interim and Conservatory Measures in ICC Arbitration Cases’
(2000) 11 ICC Ct Bull. 23.
92
Bassiri (n. 76), p. 213.
93
See in particular arts 17B and 17C.
94
These limitations are expressly acknowledged by art. 17C(5).

3.9 Paragraph 2(d): Evidence Preservation

The topic of evidence preservation in international arbitration is una-
voidably controversial, as different national legal cultures adopt diver-
ging approaches concerning the degree to which a party may be
obliged to produce evidence, ranging from national systems of civil
procedure which require a generalised discovery to others where a
strong opposition against ‘fishing expeditions’ exists, and production
may only be ordered if a party is aware of the existence of a specific
piece of evidence that is material to the resolution of the dispute.95
Eventually, the Model Law adopted a broad wording, whereby the
tribunal has the power to order the preservation of evidence which
may be ‘relevant and material’. The expression at hand was inspired by
the IBA Rules on the Taking of Evidence in International Commercial
Arbitration96 and essentially required that the evidence be linked to
the case (‘relevant’) and useful for its solution (‘material’). Therefore,
when it is urgent to take action in order to avoid that certain pieces of
evidence be destroyed or otherwise become unavailable at a later stage,
article 17(2)(d) can be generally used at the request of one of the
parties in order to adopt adequate preservation measures. Obviously,
the exertion of such power entails a certain anticipation of the rele-
vance and materiality evaluation that the tribunal would otherwise
perform at a later stage in the proceedings.97
Apart from the case of documents, this kind of interim measure can
also be used to preserve any other type of evidence that may perish in
the absence of urgent action: by way of example, the tribunal may
inspect places, or appoint an expert to evaluate certain factual circum-
stances (e.g. the state of goods) which will deteriorate or change with
time.98
3.10 The Problem of Anticipatory Relief

A party may sometimes have an urgent need to obtain the anticipation of
the effects of the final award, via e.g. an order for interim payment of at
least some of the amounts claimed in the arbitration. In some non-Model
Law jurisdictions, the tribunal’s power to issue this type of measure is
95
UN Doc. A/CN.9/545 (n. 66), 10; UN Doc. A/CN.9/589 (n. 25), 7.
96
UN Doc. A/CN.9/589 (n. 25), 7.
97
Ibid.
98
Yesilirmak (n. 85), p. 207.

340 a rt i cl e 1 7 : p o w er t o or d er i n t er i m me a s u r es
expressly acknowledged;99 the Model Law, conversely, does not make any
reference to it in paragraph 2 of article 17.
It has been argued that even in the absence of explicit references,
nothing in the Model Law would prevent the tribunal from issuing a
measure that effectively anticipates the same type of result that the party
would obtain with the final award, if successful.100 This interpretation,
however, is difficult to reconcile with the clear choice of UNCITRAL to
confer exhaustive character to the list of article 17(2). One would have to
interpret the provision in a particularly extensive fashion in order
to conclude that the Model Law enables the arbitrators to issue orders
for interim payment. Furthermore, it should be noted that the measure at
hand unavoidably implies a certain prejudgment of the merits of the case.
In the absence of any reference, therefore, it would be more cautious to
conclude that this type of measure (whose ‘interim’ nature is debatable) is
not available under the Model Law.101
A similar technique to obtain the anticipation of the effects of the final
award is to request security not for costs, but for payment of the award
that the tribunal may issue in the future.102 At first glance, such a measure
may seem like a specific type of asset preservation, falling within the
scope of article 17(2)(c). In practice, however, this type of interim relief
leads to more invasive and delicate effects, as it effectively anticipates the
payment at a stage when the tribunal has not yet made its final
determination.
3.11 Relationship between Arbitral Interim Relief and EU Law:

Brussels I bis Regulation and European Account Preservation Order
Regulation
As already mentioned, the tribunal’s power to issue interim measures
under article 17 is not exclusive, but concurrent with the (in some
respects broader) power of State courts to provide urgent relief to the
parties. The Model Law, however, does not determine whether domestic
courts have this type of power. It is generally up to national legislation to
determine the limits of a court’s jurisdiction in this respect.
99
See e.g. English Arbitration Act, s. 39(2)(a).
100
Born (n. 35), pp. 2499–2500.
101
As already mentioned, though, anticipatory relief may be available in Model Law
jurisdictions which do not adopt the exhaustive list approach: see n. 74.
102
ICC Interim Award 8786 of 1996 (2000) 11(1) ICC Ct Bull. 81, 84.

In the European Union, jurisdiction in civil and commercial matters is

allocated among member State courts by the Brussels I bis Regulation.103
The Regulation is not applicable to arbitration. By entering into an
agreement to arbitrate, the parties generally exclude the application of
the jurisdictional regime set forth by EU law.104 The Court of Justice of
the European Union, however, has clarified that even in the presence
of an arbitration agreement, the parties can invoke article 35 of the
Regulation.105 According to this provision, ‘[a]pplication may be made
to the courts of a member state for such provisional, including protective,
measures as may be available under the law of that member state, even if
the courts of another member state have jurisdiction as to the substance
of the matter’. In other words, although arbitration is excluded from the
Regulation, nothing prevents the parties from applying for provisional
measures before an EU member State court having jurisdiction pursuant
to its domestic law, even when the merits of the dispute are covered by an
arbitration agreement.
State courts typically have the power to authorise, inter alia, the
attachment of one of the parties’ assets, so as to ensure the effectiveness
of future awards. While some national courts are willing to order the
freezing of the (alleged) debtor’s assets even when these are located
abroad,106 other authorities tend to avoid extraterritoriality, and limit
their orders to assets which are present in the State’s territory. In
addition, if a freezing order is issued in a jurisdiction other than the
one where it must be given effect, it is necessary to obtain the recogni-
tion of the measure, which may prove difficult and nullify any ‘surprise
effect’ that the measure may initially have allowed for, if issued ex
parte.107 For these reasons, a party seeking to obtain the temporary
preservation of its debtor’s assets has often no viable option but to
103
Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12
December 2012 on jurisdiction and the recognition and enforcement of judgments in
civil and commercial matters.
104
Ibid., art. 1(2)(d).
105
Case C-391/95, Van Uden Maritime BV, trading as Van Uden Africa Line v.
Kommanditgesellschaft in Firma Deco-Line and Another, ECLI:EU:C:1998:543, with
reference to art. 24 of the Brussels Convention, corresponding to art. 35 of the
Brussels I bis Regulation.
106
Mareva Compania Naviera SA v. Intl Bulkcarriers SA [1975] 2 Lloyd’s Rep. 509; the case
gave this type of worldwide freezing order its name, ‘Mareva injunction’.
107
Even in the European Union, where a high degree of mutual trust is requested of member
State courts, ex parte interim measures issued in one jurisdiction cannot be recognised
and enforced in a different jurisdiction without prior service: Case 125/79, Bernard
Denilauler v. SNC Couchet Frères, ECLI:EU:C:1980:130.

request this type of measure from the courts of the place where the
assets in question are located.
In order to overcome these difficulties, the European Union has
created the European Account Preservation Order (EAPO), a pan-
European freezing measure that can be used to preserve sums of money
stored in bank accounts.108 Once issued by one member State court, the
order can be enforced in all other States bound by the Regulation, with-
out the need for prior service on the debtor. The measure can undoubt-
edly facilitate creditor protection by creating a level playing field for
cross-border debt recovery in the European Union (with the exception
of the United Kingdom and Denmark). Thanks to this instrument,
creditors are able to retrieve information concerning the debtor’s bank
account and to obtain and enforce the Preservation Order ex parte, so as
to ensure a ‘surprise effect’. Interestingly, however, the EAPO Regulation
expressly excludes arbitration.109 The question arises, hence, whether
parties are allowed to ask a court of an EU member State to issue an
EAPO if they have entered into an agreement to arbitrate.
The literal wording of the Regulation seems to rule out the possibility
of obtaining this type of preservation order if an arbitration agreement
exists. More arbitration-friendly interpretations, however, have been
proposed. According to a recent decision of a Polish court, in particular,
the exclusion of arbitration from the scope of the Regulation would only
entail that arbitral tribunals do not have the power to issue EAPOs. State
courts, by contrast, would retain such power, even when the merits of the
dispute are to be resolved through arbitration.110
108
Regulation (EU) No. 655/2014 of the European Parliament and of the Council of 15 May
2014 establishing a European Account Preservation Order procedure to facilitate cross-
border debt recovery in civil and commercial matters.
109
Ibid., art. 2(2)(e).
110
Rzeszow Court of Appeal, reported in K. K. Gałkowski, ‘Can Arbitrated Claims Be
Secured with European Account Preservation Order?’, www.internationallawoffice
.com/Newsletters/Arbitration-ADR/Poland/Kubas-Kos-Gakowski/Can-arbitrated-
claims-be-secured-with-European-account-preservation-order.

Article 17A
Conditions for Granting Interim Measures

s h a h l a a l i an d t o m k a b a u
(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
(b) There is a reasonable possibility that the requesting party will
succeed on the merits of the claim. The determination on this
possibility shall not affect the discretion of the arbitral tribunal
in making any subsequent determination.
(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.
Article 17A of the Model Law enumerates the conditions for the grant of
interim measures of protection by an arbitral tribunal. Interim measures
of protection are orders of temporary relief, which serve to protect the
parties’ rights pending the final resolution of a dispute.1 Over time, it has
generally become legally acceptable for claimants to be granted such
protective measures in tribunals or courts in most States.2 In the context
1
See L. A. Tucker, ‘Interim Measures under Revised UNCITRAL Arbitration Rules:
Comparison to Model Law Reflects Both Greater Flexibility and Remaining Uncertainty’
(2011) 1 Intl Com. Arb. Brief 15, 15. It has also been observed that virtually all international
arbitration rules permit some form of interim protective measures. P. J. W. Sherwin and D.
C. Rennie, ‘Interim Relief under International Arbitration Rules and Guidelines: A
Comparative Analysis’ (2009) 20 Am. Rev. Intl Arb. 317, 321.
2
Possible Future Work: Court-Ordered Interim Measures of Protection in Support of
Arbitration, Scope of Interim Measures that May be Issued by Arbitral Tribunals,
343

344 ar ti cle 1 7a: c onditio ns f or interim mea sures
of the Model Law, interim measures are specifically defined under the
revised article 17. These measures are increasingly used in international
commercial arbitration, and the effectiveness of arbitration and the
resultant arbitral awards will often depend upon the enforcement of
such interim measures.3 For instance, the fact that assets and funds can
easily and speedily be transferred across jurisdictions in order to avoid a
court or tribunal judgment has contributed to the increasing need for an
effective mechanism for interim measures at the international level.4 As
such, the 2006 revision of the Model Law serves to grant a broader
mandate to arbitrators, and provides them with specific guidance in
respect of the grant of interim measures of protection.
Following the changes to the Model Law in 2006, the revised article 17
(2) defines an interim measure as constituting ‘any temporary measure
[to] … maintain or restore the status quo … take action that would
prevent, or refrain from taking action that is likely to cause, current or
imminent harm … provide a means of preserving assets … or preserve
evidence that may be relevant and material’. Article 17A is a new addition
to the Model Law, which was inserted to prescribe the two conditions
that must be met before an arbitral tribunal grants such interim
measures.
Article 17A of the Model Law is intended to reflect the generally
accepted legal principles concerning the grant of interim measures of
protection, which have long been recognised by the international com-
munity as part of the accepted regime for international commercial
arbitration.5 Thus, as a matter of good practice, in the exercise of their
power to grant interim measures, arbitrators generally have regard to
these considerations.6 Article 17A of the Model Law is a product of the
requirements that govern court-ordered interim measures as found in
Validity of the Agreement to Arbitrate, UN Doc. A/CN.9/WG.II/WP.111 (12 October

2000), para. 9; E. Collins, ‘Pre-Tribunal Emergency Relief in International Commercial
Arbitration’ (2012) 10 Loyola University Chicago Intl L. Rev. 105, 108.
3
Report of the Working Group on Arbitration on the Work of Its Thirty-Second Session,
UN Doc. A/CN.9/468 (10 April 2000), para. 60.
4
UN Doc. A/CN.9/WG.II/WP.111 (n. 2), para. 7. See also Possible Uniform Rules on
Certain Issues Concerning Settlement of Commercial Disputes: Written Form for
Arbitration Agreement, Interim Measures of Protection, Conciliation, UN Doc. A/
CN.9/WG.II/WP.110 (22 September 2000), para. 69.
5
A. Tsang, ‘Transnational Rules on Interim Measures in International Courts and
Arbitrations’ (2011) Intl ALR 35.
6
N. Blackaby, C. Partasides, A. Redfern and M. Hunter, Redfern and Hunter on
International Arbitration, 6th edn (Oxford University Press, 2015), para. 5.31.

case law and legislation of States, such as the English case of American
Cyanamid.7 Therefore, it could be argued that the tests articulated in
article 17A were modelled on the conditions for granting court-ordered
interim measures in court proceedings.8 However, it is important to
distinguish the content of article 17A from the principle set out under
article 9 of the Model Law, which serves to address the compatibility of
court-ordered interim measures with an agreement to arbitrate a dispute.
At present, relevant case law on article 17A is limited. This may be
attributed to the fact that it is a new addition to the Model Law. In
addition, a more fundamental reason for the limited jurisprudence is the
nature of article 17A in particular, and arbitral interim measures under
the Model Law more generally. Article 17A sets out the conditions for
granting an arbitral interim measure. National courts have a limited role,
if any, in reconsidering the ordering of an interim measure of protection
by an arbitral tribunal. This is particularly the case in the context of
article 17H of the Model Law, which provides that an interim measure
issued by an arbitral tribunal should be binding and enforced upon
application to the competent court. There are exceptions provided for
in article 17I for the refusal of enforcement of arbitral awards by a court,
but none of the exceptions concerns the decision-making process of an
arbitral tribunal for the order of interim measures under article 17A.
Similarly, the grounds on which arbitral awards are most commonly
challenged, particularly lack of jurisdiction and procedural irregularity,
in most cases, may not be applicable to the decision-making process of
the arbitral tribunal in ordering interim measures of protection.
Article 17 of the 1985 version of the Model Law provided that ‘[u]nless
otherwise agreed by the parties, the arbitral tribunal may, at the request of a
party, order any party to take such interim measure of protection as the
arbitral tribunal may consider necessary in respect of the subject-matter of the
dispute’.9 Reconsideration of the 1985 Model Law began at the thirty-second
session of the Working Group on Arbitration in March 2000, with final
deliberations taking place at the forty-fourth session in January 2006. As a
result of this reconsideration exercise, a number of areas of the Model Law
were revised,10 in particular, the strengthening of the provisions concerning
enforceability of arbitral orders and awards, and the enhancement of the
7
American Cyanamid Co. v. Ethicom Ltd [1975] AC 396.
8
Law Jurisdictions, 3rd edn (Sweet & Maxwell, 2010), para. 4A-037.
9
Emphasis added.
10
Such as conciliation and the requirement of written form.

346 ar tic l e 1 7a: c onditio ns f or interim mea sures
provisions concerning interim measures. The purpose of these changes

was to address the need for harmonising the approaches to interim
measures in arbitration, by establishing a widely acceptable model
legislative regime to govern the same.
2. Paragraph 1 (Chapeau)
2.1 Requesting Ex Parte Interim Measures
The main controversies in respect of interim measures concerned the
obligation of national courts to enforce arbitral orders and awards, and
whether or not ex parte interim measures ought to be included under the
Model Law, and what requirements ought to be imposed in respect of ex
parte provisional relief.11 Ex parte interim measures are granted upon the
application of one of the parties to the dispute without the other party
being heard.12 With regard to the necessity for ex parte interim measures,
the Working Group opined that they were essential ‘where an element of
surprise is necessary, i.e. where it is possible that the affected party may
try to pre-empt the measure by taking action to make the measure moot
or unenforceable’.13
Article 17B(1) of the Model Law provides that unless the parties have a
contrary agreement, ‘a party may, without notice to any other party,
make a request for an interim measure’. The Working Group enumerated
some of the justifications for the grant of ex parte interim measures by an
arbitral tribunal.14 First, the Working Group observed that such protec-
tive measures may be granted to prevent ‘irreparable loss or damage’ that
may occur if not issued.15 Second, there may be serious urgency that does
not permit the hearing of the other party to the dispute, for instance, in a
matter concerning perishable goods.16 Third, circumstances may be such
that it is not advisable to give notice of the measure applied for to the
other party against whom the application is made.17 Such circumstances
could be due to the fact that the other party is in possession of essential
11
UN Doc. A/CN.9/468 (n. 3), paras 66–79.
12
UN Doc. A/CN.9/WG.II/WP.110 (n. 4), para. 67; M. Roth, ‘Interim Measures’ (2012) 2 J.
Disp. Resol. 425, 430.
13
UN Doc. A/CN.9/WG.II/WP.110 (n. 4), para. 69.
14
Ibid., para. 67.
15
Ibid.; Tucker (n. 1), p. 19; Roth (n. 12), p. 430.
16
UN Doc. A/CN.9/WG.II/WP.110 (n. 4), para. 67; Tucker (n. 1), p. 19.
17
Ibid.

2. paragraph 1 (c h a p e a u) 347
evidence that may be hidden or concealed, or even assets removed, upon

the reception of the notice.18
There was a widely shared perception among the Working Group
members at its thirty-seventh session that in case an explicit provision
permitting an ex parte measure was included in the revised text of the
Model Law, then it should also specify that such protective measures
should ‘only be granted in exceptional circumstances’.19 The United
States had earlier presented a proposal to the Working Group suggest-
ing that besides ex parte measures being granted where there was
urgency, risk of irreparable harm or substantial possibility of success
at the merits stage, it was essential that the claimant further demon-
strates that it was ‘necessary to proceed in that manner in order to
ensure that the measure is effective’.20 According to the US suggestion,
where the tribunal fails to establish that lack of notice to the affected
party was essential for the success of the protective measure, the
respondent would be provided with a notice of the application and an
opportunity to respond at the earliest possible time.21 While deliberat-
ing on the suggestions by the United States, the Working Group also
noted that a mandatory requirement could be included requiring the
applicant for ex parte protective measure to provide security to com-
pensate the other party in case it was subsequently established that the
issuance of the measure was unjustified.22 The Working Group further
noted that additional conditions for the grant of ex parte measures had
been suggested for inclusion, such as the requirement that the claimant
demonstrates ‘the non-existence of any other legal remedy’, and that the
tests of reasonableness and proportionality of the measure be applied to
determine whether it was necessary.23
Despite the highlighted justifications and usefulness of interim
orders, their issuance has also been questioned, particularly in the
case of ex parte provisional relief. Some commentators are of the view
that ex parte interim protective measures are inconsistent with ‘the
principles of fairness and equality, which are particularly important in
18
See generally UN Doc. A/CN.9/WG.II/WP.110 (n. 4), para. 67.
19
Settlement of Commercial Disputes: Interim Measures of Protection, UN Doc. A/CN.9/
WG.II/WP.123 (3 April 2003), para. 29.
20
Arbitration: Interim Measures of Protection – Proposal by the United States of America,
UN Doc. A/CN.9/WG.II/WP.121 (24 September 2002), para. 4(a).
21
Ibid., para. 4(c).
22
UN Doc. A/CN.9/WG.II/WP.123 (n. 19), para. 30. For the earlier US suggestion, see UN
Doc. A/CN.9/WG.II/WP.121 (n. 20), para. 5.
23

348 article 1 7a: c onditi ons f or interi m measures
arbitral proceedings since there is usually no appeal process’.24 They

can also be viewed as violating the right of all parties to the dispute to be
heard and, thus, giving rise to due process violations.25 However, such
criticism against ex parte interim orders can also be countered by the
view that arbitrators have the discretion to withdraw or alter their
earlier decision on the ex parte measure at the request of the respondent
in subsequent hearings if this is found to have been unnecessary and
unjustifiable.26 Before the adoption of the 2006 UNCITRAL Model Law
amendments that explicitly recognise ex parte interim measures,
Houtte had, while cautioning against such awards and orders, empha-
sised that arbitration is based on the agreement of the parties.27 In that
context, he opined that if parties to arbitration had the discretion to
determine whether an arbitrator should have the mandate to issue ex
parte interim measures, they ‘categorically would refuse him such
power’.28 It should be noted that article 17B(1) of the Model Law
addresses some of the concerns raised by Houtte by permitting the
parties to have a clause in their commercial contracts that explicitly
forbids the issuance of interim measures in arbitration without prior
notice to any of the parties.
2.2 Satisfying the Tribunal

The development of the criteria to be considered by an arbitral tribunal
when granting interim measures emerged at the thirty-sixth session of
the Working Group, when a draft of a new article on interim measures
was considered, and a suggestion made as to its improvement by includ-
ing such criteria. Most deliberations on the criteria thereafter concerned
adjustments in wording to accurately reflect the desired threshold of
requirements.
The previous test of necessity under the old article 17 (see above)
served as the starting point for the discussion on the power of arbitral
tribunals to issue interim measures. In the course of discussions, the
Working Group separated the issue of the power to order interim
measures from the issue of enforceability for the purposes of developing
24
Roth (n. 12), p. 430.
25
Tucker (n. 1), p. 20.
26
Roth (n. 12), p. 430.
27
H. Houtte, ‘Ten Reasons against a Proposal for Ex Parte Interim Measures of Protection
in Arbitration’ (2004) 20 Arb. Intl 85, 89.
28
Ibid.

2. paragraph 1 ( chapeau) 349
further provisions on these two matters.29 During this time, it was

suggested that the test of necessity could remain unchanged, because it
granted the arbitral tribunal broad powers in respect of issuing different
types of interim measures of protection.30 However, further discussion
led to the suggestion that the words ‘in respect of the subject-matter of
the dispute’ in fact limited the scope of interim measures that could be
granted by the arbitral tribunal, and that if possible, the wording should
be amended to clarify the scope of this power.31 One suggested approach
was to issue guidelines clarifying the power of arbitral tribunals to grant
interim measures, in connection with a provision establishing an obliga-
tion on courts to enforce those measures.32 The suggestion was based on
the idea that such an approach would foster the acceptance by States of
the overarching legislative provisions on enforcement of interim
measures.33
This led to the suggestion at the thirty-sixth session that conditions or
criteria in respect of the grant of interim measures ought to be included
in the provision on the power of arbitral tribunals to order such mea-
sures, so as to ensure legal certainty. Those discussions addressed
whether or not such criteria would be based on the balance of conve-
nience as compared with the potential harm that would be done, and if
the criteria should be cumulative or alternative. Some members of the
Working Group argued that such additions to the provisions would be
undesirable and counterproductive, because they would limit the powers
of the arbitral tribunal and potentially invite arguments between the
parties and, therefore, have an adverse effect on the efficient conclusion
of arbitral proceedings.34 In this regard, the Working Group noted that
any drafting should take into account the autonomy of the parties and
avoid interfering with the independence of the arbitral tribunal.35
The Working Group had also considered whether or not a non-
legislative approach would suffice if any explanatory details as to the
granting of interim measures were to be introduced.36 For example, it
was suggested that the Working Group should prepare a non-legislative
29
UN Doc. A/CN.9/468 (n. 3), para. 66.
30
Report of the Working Group on Arbitration on the Work of Its Thirty-Fourth Session,
UN Doc. A/CN.9/487 (15 June 2001), para. 65.
31
Ibid.
32
Ibid., para. 66.
33
UN Doc. A/CN.9/468 (n. 3), para. 82.
34
UN Doc. A/CN.9/487 (n. 30), para. 66.
35
Ibid., para. 68.
36
Ibid., para. 67.

350 a r t i c l e 1 7 a: c o n di t i o n s f o r interim measu res
text on, inter alia, how the discretion for ordering interim measures of
protection should be exercised by arbitral tribunals, or the conditions
under which such measures might be ordered.37 This non-legislative
approach, however, was eventually discarded following further
discussion.38
The importance of providing arbitral tribunals with the ‘bandwidth’ to
decide the grant of interim measures with sensitivity to the case at hand
has been noted by one commentator in the context of article 17A’s
implementation.39 In order to avoid the risk of being interpreted as
limiting the autonomy of arbitral tribunals in determining the type of
interim measures to be ordered, it was suggested that article 17A of the
Model Law should only provide general categories instead of any detailed
list of interim measures.40 It was agreed that it would be appropriate to
include the criteria in the provisions of the Model Law, and the new
provisions ought to establish the terms, conditions and circumstances
under which an arbitral tribunal would, or would not, grant interim
measures of protection.41
2.3 Burden and Standard of Proof: The Party Requesting

In comparison to the wording of article 17 of the 1985 version of the
Model Law, article 17A makes it clear that the party requesting the
interim measure of protection bears the burden of proof in respect of
the matters set out under article 17A. The Working Group considered
that the wording of article 17A of the Model Law clearly establishes that
the burden of convincing the arbitral tribunal that the conditions for
issuing an interim measure are met would be borne by the requesting
party. For purposes of clarity, a more neutral alternative, along the lines
of ‘the arbitral tribunal is satisfied that’, was rejected.42
This then raised the issue of the standard of proof for a requesting
party and the evidence needed to ‘satisfy’ the arbitral tribunal. The
Working Group considered that such wording would better reflect the
37
UN Doc. A/CN.9/468 (n. 3), para. 81.
38
UN Doc. A/CN.9/487 (n. 30), para. 67.
39
R. J. J. Wong, ‘Interim Relief in Aid of International Commercial Arbitration – a Critique
on the International Arbitration Act’ (2012) 24 Singapore Academy LJ 499, 501.
40
UN Doc. A/CN.9/487 (n. 30), para. 67.
41
Ibid.
42
UN Doc. A/CN.9/545 (8 December 2003), para. 28.

2. paragraph 1 ( chapea u) 351
intention behind the Model Law to provide a neutral formulation of the

standard of proof.43 At the drafting stage, the wording ‘furnish proof’ was
discarded in favour of ‘satisfy’ due to the fact that requiring ‘proof’ might
be excessively cumbersome and difficult to meet in the context of grant-
ing interim measures. Other possible alternatives, such as ‘demonstrate’,
were similarly discarded at the drafting stage due to concerns about
connoting a high standard of proof.44 Ultimately, it was left to the
individual member States to decide what the appropriate standard of
proof would be when enacting the relevant legislation. However, the
Working Group still resolved that the relevant provision would use the
words ‘[t]he party requesting the interim measure of protection shall
satisfy the arbitral tribunal’.45 The version of article 17A of the Model
Law that was eventually adopted uses the words ‘shall satisfy the arbitral
tribunal’.
It should be noted that despite the Working Group’s concerns with the
appropriate words to indicate the suitable standard of proof, the onus of
the extent and nature of evidence required in the application of interim
measures of protection is already significantly affected and determined
by the provisions of article 17A of the Model Law. Article 17A requires
that an application for interim protective measures demonstrate that
harm that is ‘not adequately reparable by an award of damages is likely’
to occur, and that such claim has ‘a reasonable possibility’ of success at
the merits stage. These requirements, which are discussed in a subse-
quent section of the chapter, have an impact on the standard of proof. In
that sense, States that have adopted the Model Law, and particularly
article 17A, may have core aspects of the standard of proof in the grant
of interim measures in disputes relating to arbitration influenced by the
Model Law.
Based on the contentions and challenges in determining the appro-
priate wording for the suitable standard of proof in the drafting of article
17A, it may be informative to examine the statutory provisions of those
States that have adopted the Model Law and those that have not. Section
16 of the Australian International Arbitration Act permits the direct
application of the provisions of the Model Law, including the require-
ments for the demonstration of harm not adequately reparable by
damages, and reasonable possibility of success at the merits, as articulated
43
Ibid.
44
Report of the Working Group on Arbitration on the Work of Its Thirty-Seventh Session,
UN Doc. A/CN.9/523 (11 November 2002), paras 39–40.
45
UN Doc. A/CN.9/545 (n. 42), para. 28.

352 article 1 7a: conditions f or interim measures
in article 17A of the Model Law.46 The Model Law is annexed to the
Australian International Arbitration Act as Schedule 2.47
Section 36 of the Hong Kong Arbitration Ordinance reproduces article
17A of the Model Law and explicitly provides that the Model Law has
legal effect in the territory.48 In the case of India, although the Arbitration
and Conciliation Act does not explicitly enumerate the standard of proof,
its preamble expressly recognises the incorporation of the Model Law’s
provisions into the Act.49 The English Arbitration Act, situated in a non-
Model Law jurisdiction, does not expressly discuss standard of proof
issues.50 Similarly, in the case of the United States, which has not adopted
the Model Law at the federal level, there is no explicit articulation of
standard of proof issues.51
In the case of Singapore, article 1(2) of the first schedule of the
International Arbitration Act provides that the provisions of the Model
Law on the grant of interim measures apply to Singapore where the seat
of arbitration is within the State.52 There is, however, no explicit refer-
ence to the issue of standard of proof in relation to interim measures in
the Act.53 With regard to South Africa, although there is no specific
reference to the issue of standard of proof in the substantive parts of
the Act, section 6 of the International Arbitration Act provides that the
Model Law has legal force therein.54 There is no specific mention of a
standard of proof or even the Model Law in the Arbitration Act of Kenya,
but the Model Law has legal force therein as the country is a signatory.55
The Court of Appeal of Kenya in the Tanzania National Roads Agency
explicitly acknowledged that the Model Law has legal force in the
national legal system since ratified treaties and adopted soft law instru-
ments have direct legal force domestically.56 Although the Arbitration
and Conciliation Act of Nigeria does not explicitly adopt the Model Law,
46
International Arbitration Act, No. 136 of 1974 of Australia.
47
Ibid.
48
Arbitration Ordinance, Chapter 609 of the Laws of Hong Kong.
49
Arbitration and Conciliation Act, No. 26 of 1996 of India.
50
Arbitration Act of 1996 (Chapter 23) (applicable to England, Wales and Northern
Ireland).
51
Federal Arbitration Act of the United States of America, 9 USC §§ 1–16.
52
International Arbitration Act, Ch. 143A of the Laws of Singapore.
53
Ibid.
54
International Arbitration Act, No. 15 of 2017 of South Africa.
55
Arbitration Act, No. 4 of 1995 of Kenya.
56
Tanzania Natl Roads Agency v. Kundan Singh Construction Ltd [2014] eKLR,
para. 20.

2 . p ar agr ap h 1 (c ha pe a u) 353
section 53 thereto provides that parties to an international commercial

agreement may require that any disputes be resolved in accordance with
‘any … international arbitration rule acceptable to’ them, which may
include the provisions of article 17A of the Model Law.57
Based on the above examination of several legal regimes, it may be
argued that for countries that do not have specific provisions on the
standard of proof under their arbitration legislation, they may obtain
some guidance from the text of article 17A of the Model Law. Notably,
this concerns the test of harm not adequately reparable, and without a
reasonable possibility of success, in addition to other rules regulating the
application of provisional relief under their civil procedure laws.
An examination of case law from both Model Law and non-Model
Law States indicates that there is little concern with the words to be
utilised in determining the appropriate standard of proof. Despite the
Working Group’s preference with the words, ‘[t]he party requesting the
interim measure of protection shall satisfy the arbitral tribunal’, and
being concerned with the impact of the terms such as ‘demonstrate’,
‘show’, ‘prove’ and ‘establish’,58 an examination of case law from dif-
ferent States indicates a liberal choice of words in determining the
standard of proof in the application for interim measures. In some
cases, even the words discussed by the Working Group, and more
specifically the term ‘satisfy’, are not explicitly used in evaluating the
standard of proof, even where the Model Law is referred to or relied
upon. It may appear that courts assume such words to be synonymous
with minimal differences in semantics.
Some of the cases that have utilised the word ‘satisfy’ include the New
Zealand case of Safe Kids in Daily Supervision, although the more utilised
phrase is actually ‘show’.59 In particular, the term ‘satisfy’ is only used
when directly quoting the wording of article 17(B)(1) of Schedule 1,
Chapter 4A of the New Zealand Arbitration Act.60 In other instances
that involve the evaluation of balance of convenience, and whether there
are serious issues to be tried, the term ‘show’ is preferred. For instance,
the Auckland High Court noted that the applicant had ‘shown a serious
question to be tried’ against some of the defendants.61 The court pro-
ceeded to observe that, nevertheless, no serious questions to be tried had
57
Arbitration and Conciliation Act, Chapter 18 of the Laws of the Federation of Nigeria.
58
UN Doc. A/CN.9/545 (n. 42), para. 28; UN Doc. A/CN.9/523 (n. 44), para. 40.
59
Safe Kids in Daily Supervision Ltd v. McNeill [2010] NZHC 605.
60
Arbitration Act, No. 99 of 1996 of New Zealand.
61
Safe Kids (n. 59), para. 72. Emphasis added.

354 a r t i c l e 1 7 a: c o n di t i o n s f o r interim measu res
been ‘shown’ against the fourth defendant.62 While evaluating the bal-
ance of convenience, the court noted that a claimant who does not
provide ‘adequate undertaking as to damages’ will be under greater
difficulty ‘to satisfy a court or tribunal … that the harm if the relief is
not granted outweighs the harm that is likely to result’ to the respondent
if it is issued.63
In the American Cyanamid case, the court observed that the evidence
presented ‘showed’ that there were serious questions to be tried.64 The
court also pointed out that it had to consider whether if the claimant
‘were to succeed at the trial in establishing his right to a permanent
injunction he would be adequately compensated by an award of damages’
for continued loss due to the activities of the respondent before the final
judgment.65 The court further noted that the claimant ‘had satisfied the
court that on the balance of probabilities’ the continuance of the activities
of the respondent would violate his rights.66 In addition, it noted that it
had to ‘be satisfied that the’ application was not frivolous.67 In the
Channel Tunnel Group case, the House of Lords discussed issues inci-
dental to a claimant’s standard of proof without the use of phrases such as
‘satisfy’ and ‘show’, and pointed out that caution should be exercised in
the issuance of interim orders, which should be granted only when the
balance of convenience undoubtedly favours their issuance.68 Similarly,
the deliberation on matters relating to standard of proof in the applica-
tion for interim orders in the English case of Osei Sankofa69 and the
Indian case of Kotak Mahintra Prime70 assessed issues incidental to the
standard of proof without reliance on such terms.
The contrast between clarity in respect of the burden of proof and
ambiguity in respect of the standard of proof may be seen as reflecting
generally accepted principles in court-ordered interim measures. It is
clear in litigation that the party seeking an interim measure will have to
bear the burden of demonstrating to the court the need for the same, but
a degree of flexibility may be necessary in respect of the standard of proof,
62
Ibid., para. 51.
63
Ibid., para. 33. Emphasis added.
64
American Cyanamid (n. 7).
65
Ibid. Emphasis added.
66
67
68
Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993] 1 All ER 664,
para. 99.
69
Osei Sankofa and Another v. The Football Association Ltd [2007] EWHC 78 (Comm.).
70
Kotak Mahintra Prime Ltd v. Balraj Mann, Delhi District Court, Suit No. 04/2013.

2 . p ar agr ap h 1 (c ha pe a u) 355
given that at the early stages of litigation, the discovery of evidence may
not yet be complete, and more importantly, the standard of proof would
have to be commensurate with the measure of protection sought – the
more onerous the potential effect of the protection sought on the other
party, the more rigorous the demonstration of need for such protection.
This flexibility is reflected in the drafting of article 17A, and in the
absence of further elaboration, it may be assumed that the arbitral
tribunal is similarly empowered with a degree of flexibility in respect of
the standard of proof.
The idea of differing standards of proof for different measures of
protection is also reflected in the content of article 17A of the Model
Law itself. For instance, article 17A(2) of the Model Law concerning the
preservation of evidence applies the criteria of article 17A(1)(a) and (b)
only to the extent that the arbitral tribunal considers appropriate. As
early as the thirty-second session of the Working Group, interim mea-
sures had already been separated into different classifications. Three
classifications emerged, namely: those that facilitated the conduct of
proceedings; those for the purposes of avoiding loss or damage and
preserving assets; and those for facilitating the enforcement of an arbitral
award. The primary concern of the review exercise was the latter two
types of interim measures. The new article 17 separates arbitral interim
measures into four different types, with article 17A reflecting the distinct
evidential requirements for these different types of interim measures.71
2.3.1Paragraph 1(a): Balance of Convenience – Harm

Not Adequately Reparable
The test of the ‘balance of convenience’, incorporated in article 17A(1)(a)
of the Model Law means that the arbitral tribunal assesses the potential
harm that would likely be suffered by the applicant if the interim measure
were not granted, and further counterbalances that against an evaluation
of the likely harm that would be suffered by the party opposing the
measure, if that measure were granted.72 This principle was incorporated
into the Model Law by the Working Group based on the observation that
there is a common prerequisite for the issuing of interim measures, where
in ordering such measures, a court or tribunal would generally consider
whether or not a significant degree of harm would result if the interim
71
UN Doc. A/CN.9/468 (n. 3), para. 69.
72
Report of the Working Group on Arbitration on the Work of Its Thirty-Sixth Session, UN
Doc. A/CN.9/508 (12 April 2002), para. 56. See also UN Doc. A/CN.9/WG.II/WP.123 (n.
19), para. 15; Sherwin and Rennie (n. 1), p. 336.

356 a r t i cl e 1 7 a: c o n di t i o n s f o r interim measu res
measure applied for were not ordered.73 In that context, in order to

satisfy the balance of convenience test, the requisite potential harm is
generally considered to be ‘irreparable’ or ‘substantial’. This may be
compared with the leading common law case on the grant of interim
measures where it was established that no interlocutory injunction
should be granted if the plaintiff would be adequately compensated by
an award of damages for the loss it would have sustained if the defen-
dant had continued with the conduct sought to be restrained, and there
would be no reason to refuse an interlocutory injunction if, while
damages would not be adequate, the defendant would be adequately
compensated under the plaintiff’s cross-undertaking in damages for
any loss sustained.74
One commentator has suggested that the ‘balance of convenience test’ is
most frequently applied by the courts of common law jurisdictions in the
exercise of their discretion to grant interim measures of protection.75 This
was reflected in the case of Safe Kids in Daily Supervision, where the
Auckland High Court also remarked that the requirements in the wording
of article 17A essentially covered the traditional ‘balance of convenience’
test used by the courts when considering interim injunction applications.76
In that same case, the court held that if a plaintiff does not provide an
adequate undertaking as to damages (i.e. a promise to compensate the
other party for any harm caused by the interim measure), it will be much
more difficult for the plaintiff to show that the relevant potential harm
caused by not granting the interim measure outweighs the harm that is
likely to result if such measures were granted.77 In the American Cyanamid
case, the House of Lords explained that an applicant’s necessity of such
protection ‘must be weighed against the corresponding need’ of protecting
the respondent from harm that may not be adequately compensated in the
eventuality that it is established that he had unjustifiably been restrained
from exercising his legal rights.78 In such circumstances, the House of
Lords emphasised that it was obliged to establish who, between the appli-
cant and the respondent, was favoured by the balance of convenience.79 In
particular, the House of Lords explained that:
73
UN Doc. A/CN.9/508 (n. 72), para. 51.
74
75
Roth (n. 12), p. 425.
76
Safe Kids (n. 59), para. 33. See also UNCITRAL, ‘2012 Digest of Case Law’, p. 87.
77
Safe Kids (n. 59), para. 33.
78
79
Ibid.

2 . p a r a g r a p h 1 (c ha p e a u) 357
Save in the simplest cases, the decision to grant or to refuse an interloc-
utory injunction will cause to whichever party is unsuccessful on the
application some disadvantages which his ultimate success at the trial
may show he ought to have been spared and the disadvantages may be
such that the recovery of damages to which he would then be entitled
either in the action or under the plaintiff’s undertaking would not be
sufficient to compensate him fully for all of them. The extent to which the
disadvantages to each party would be incapable of being compensated in
damages in the event of his succeeding at the trial is always a significant
factor in assessing where the balance of convenience lies …80
In the subsequent Channel Tunnel Group case, the House of Lords

emphasised the need for caution in the granting of interim orders,
observing that they should only be issued ‘when the balance of advantage
plainly favours the grant of relief’.81 In the Indian Kotak Mahintra Prime
case, an ex parte interim measure was granted upon establishing that the
‘balance of convenience’ was in favour of the applicant, as he would suffer
irreparable harm if the remedy were not granted.82 It should be noted,
however, that by virtue of article 17A(2) of the Model Law, where the
application for interim measures concerns the preservation of evidence,
the tribunal has the discretion not to apply the test of ‘balance of
convenience’ with regard to the party likely to suffer more significant
irreparable harm,83 or even the additional assessment of whether there is
‘reasonable possibility’ that the claimant will succeed during the merits
stage of the dispute.
At the drafting stages, the phrase ‘irreparable harm’ in the evaluation
of balance of convenience between the parties was adopted in favour of
the phrase ‘a significant degree of harm’.84 This was due to the perception
that the latter approach appeared to be quantitative in nature, and as such
it could create uncertainties as to how an arbitral tribunal ought to gauge
whether the degree of potential harm was sufficiently ‘significant’ to
justify the relevant interim measures of protection.85 Similarly, the
phrase ‘irreparable harm’ was also preferred to the phrase ‘substantial
harm’ under article 17A of the Model Law test. During the discussions at
the drafting stage, there was a suggestion that the word ‘substantial’
would better reflect a balancing exercise of potential harm suffered by
80
Ibid.
81
Channel Tunnel Group (n. 68), para. 99.
82
Kotak Mahintra (n. 70), para. 5.
83
Sherwin and Rennie (n. 1), p. 336.
84
UN Doc. A/CN.9/508 (n. 72), para. 56; UN Doc. A/CN.9/WG.II/WP.123 (n. 19), para. 15.
85

the applicant in the absence of interim measures as compared to the

potential harm suffered by the party subject to (and arising from) the
measures.86 However, it was noted that the balance of convenience test is
intended to cover potential harms which might not easily be compen-
sated by damages.87 Since the phrase ‘substantial harm’ would tend again
to suggest that the harm might be quantifiable and could potentially be
remedied by way of ‘substantial’ damages, the form of the wording was
discarded. This analysis suggests that ‘irreparable harm’ is a qualitative
assessment and concerns the nature of the potential harm,88 while ‘sub-
stantial harm’ is quantitative and concerns the sum or magnitude of the
potential harm.
However, the use of the term ‘irreparable harm’ was nonetheless
criticised for several reasons. First, in a commercial context, most matters
would likely be curable by monetary compensation, which might poten-
tially render the application of the term ‘irreparable harm’ too narrow.89
As such, the phrase could be considered unduly restrictive, meaning that
the test might only cover harms of the sort that could not be compensated
for in monetary terms.90 The initial response to this criticism was that by
their general nature, interim measures of protection are an exceptional
form of relief to be granted when damages are not an adequate alternative
remedy.91 When the issue was raised again, the Working Group consid-
ered again whether or not such drafting would lead to the interpretation
that the intention behind article 17A of the Model Law was to adopt such
a restrictive approach that it would potentially exclude from the protec-
tion of interim measures any loss that might be curable by an award of
damages.92 There was also evidence that in practice it was not uncom-
mon for an arbitral tribunal to grant an interim measure merely because
it would be comparatively difficult to assess how to compensate the harm
that had been caused with an award of damages.93
86
Report of the Working Group on Arbitration on the Work of Its Fortieth Session, UN
Doc. A/CN.9/547 (16 April 2004), para. 85.
87
Ibid., para. 86.
88
For instance, loss of a priceless or unique work of art, a business becoming insolvent, vital
evidence being lost, an essential business opportunity (such as the conclusion of a large
contract) being lost, or harm being caused to the reputation of a business as a result of a
trademark infringement. UN Doc. A/CN.9/545 (n. 42), para. 29.
89
Ibid.
90
UN Doc. A/CN.9/547 (n. 86), para. 88.
91
UN Doc. A/CN.9/545 (n. 42), para. 29.
92
93

Second, it was acknowledged that the concept of irreparable harm might

lend itself to various interpretations.94 Although the term ‘irreparable
harm’ was well known in many legal systems, and constituted a common
prerequisite for granting an interim measure,95 some countries might lack
the same familiarity with the concept.96 Further, if the Model Law were to
provide that interim measures of protection could only be granted in order
to avoid harm that could not be compensated for in purely monetary
terms, there was a risk that the provision would be interpreted in an
unnecessarily restrictive manner.97 As a result, interim measures sought
from an arbitral tribunal might be more difficult to obtain, and might be
more limited in type and effect as compared to similar measures sought
before the courts, or in court proceedings.98 It was thus proposed that a
more neutral and descriptive phrase ought to be adopted.99
In light of the foregoing criticisms, the Working Group eventually
replaced the term ‘irreparable harm’ with a longer and more descriptive
phrase, namely ‘harm not adequately reparable by an award of damages’.
This lengthier formulation was considered as presenting a lower threshold,
and it more clearly established the discretion of the arbitral tribunal in
deciding whether or not to issue an interim measure of protection.100 A
comparison between this descriptive approach and the approach in the case
of American Cyanamid may also be drawn (‘adequately compensated by
damages’).101
In adopting this wording, the Working Group indicated that the word
‘adequately’ would be necessary to facilitate a more flexible interpretation of
article 17A(1)(a), requiring the arbitral tribunal to strike a balance between
the degree of potential harm that might be suffered by the applicant if the
interim measure were not granted, and the degree of potential harm that
might be suffered by the opposing party if the measure were granted.102
94
UN Doc. A/CN.9/545 (n. 42), para. 29.
95
Ibid.
96
UN Doc. A/CN.9/547 (n. 86), para. 87.
97
Ibid., para. 88.
98
Ibid.
99
For instance, ‘harm that cannot be adequately compensated or that cannot be compen-
sated by an award of money’; ‘damage that is difficult to repair’; ‘harm that cannot be
compensated’, ‘important harm which cannot be compensated by damages’, ‘inevitable
harm’, ‘unavoidable harm’ or ‘serious harm’. UN Doc. A/CN.9/547 (n. 86), para. 87.
100
Ibid., para. 89.
101
102
Third Session, UN Doc. A/CN.9/589 (12 October 2005), para. 37.

360 ar tic l e 1 7a: co n ditions f or int e rim meas ures
The word ‘substantially’ was also retained under the test in article
17A(1)(a). It was argued that the inclusion of this word could create
uncertainty, as it potentially imposed an unclear standard and it would
thus be more difficult for an arbitral tribunal to order interim mea-
sures.103 However, the Commission decided to retain the word ‘sub-
stantially’, and pointed out that in the context of the wording of article
17A(1)(a), the inclusion of the word ‘substantially’ was consistent with
existing standards in many jurisdictions for the granting of an interim
measure.104
The Working Group also preferred the term ‘is likely to result’ to the
wording ‘will result’, on the basis that the latter formulation could
possibly create problems of proof since at the time an interim measure
is sought, there are often limited facts or discovery to positively demon-
strate the potential resultant harm – that unless a particular action is
taken or refrained from being taken, the harm would inevitably result.105
One commentator has argued that implicit in this standard is a
requirement of ‘imminent danger or risk of serious prejudice’, which in
turn implies ‘urgency’.106 This view, however, is inconsistent with the
internal deliberation of the Working Group, which had in the drafting
stage removed the requirement of ‘an urgent need for the measure’ on the
basis that urgency should not be a general criterion, but a specific
requirement for granting an interim measure ex parte.107
One commentator has criticised that the exercise of balancing the
potential hardships of the parties may not necessarily provide predictable
certainty as to the outcome of applications, and thus the adoption of the
test at least sets a minimum standard understood by the courts when
interim measures are to be enforced.108 It is suggested here that given the
basis of the test in well-established case law for the grant of court-ordered
interim measures, article 17A of the Model Law goes further than merely
setting a de minimis standard, and in fact provides a degree of predict-
ability for parties as well as arbitrators in drawing upon such familiar
criteria.
103
Report of UNCITRAL on the Work of Its Thirty-Ninth Session, UN Doc. A/61/17 (14
July 2006), para. 98.
104
Ibid., para. 99.
105
UN Doc. A/CN.9/545 (n. 42), para. 30.
106
Sherwin and Rennie (n. 1), p. 317.
107
UN Doc. A/CN.9/523 (n. 44), para. 41.
108
Wong (n. 39), p. 501.

2 . p a r a g r a p h 1 (c ha p ea u) 361
It should also be taken into account that those at risk of harm not
adequately reparable by an award of damages should the interim measure
be granted may also include innocent third parties, rather than merely
the applicant and respondent. In such a case, it is questionable whether
an arbitral tribunal should take into account harm to third parties in its
application of the test of convenience. It may be argued that it would be
appropriate for an arbitral tribunal to adopt an approach similar to that
utilised by the UK High Court in the Osei Sankofa case.109 There, the
High Court acknowledged that the ‘effect on a third party is a strong
reason for not granting relief’.110 Having considered the submissions of
the parties, which included the issue of effect on innocent third parties,
the High Court observed that ‘the balance of convenience comes down
very firmly in favour of refusal of the [sought interim] order’.111
The maintenance of the status quo is also often aimed at achieving the
balance of convenience between the parties in the determination of interim
measures.112 As pointed out in the New Zealand case of Safe Kids, status
quo implies the circumstances that existed prior to the respondent or the
defendant embarking on the actions or omissions that the claimant or
applicant seeks to restrain.113 In that sense, status quo may, but not always,
imply the last amiable state of affairs between the claimant and the
respondent.114 In the Safe Kids case, the High Court proceeded to observe
that the concept of status quo is by its nature flexible.115
In that context, the New Zealand High Court emphasised that the
requirement of the maintenance or restoration of the status quo under
article 17(2)(a) of the Model Law should be construed with flexibility.116
According to the court, the phrase as conceptualised in article 17(2)(a)
could be interpreted as implying the ‘maintenance or restoration of a
state of affairs either past or present’.117
2.3.2 Paragraph 1(b): Reasonable Possibility of Success

Article 17A(1)(b) of the Model Law requires that the requesting party
demonstrate a reasonable possibility that it has a good case on the merits
109
See Osei Sankofa (n. 69), para. 22.
110
Ibid.
111
Ibid., para. 23.
112
113
Ibid.
114
115
116
Ibid., para. 26.
117
Ibid.

362 article 1 7a: c onditi ons f or interi m measures
of the main dispute before the interim measure of protection may be

granted. The requirement includes a caveat that an assessment of such a
possibility does not affect the decision of the tribunal when the merits of
the arbitration are ultimately determined. This principle was based on
the observation in many jurisdictions that a common prerequisite for the
issuance of interim measures is a demonstration by the claimant that
‘there is a likelihood of the applicant succeeding on the merits of the
underlying case’.118 One commentator has suggested that this require-
ment could prove to be an effective filter against frivolous and unfounded
applications for interim measures, which may be used as a dilatory
tactic.119 This provision may be compared to the first limb of the test
for the grant of interim injunctions in common law jurisdictions under
the case of American Cyanamid,120 which states that in considering an
application for an interlocutory injunction, the plaintiff should demon-
strate a real prospect of succeeding in his claim at trial, before the court
should go on to consider whether the balance of convenience lay in
favour of granting or refusing the interlocutory relief sought. The
House of Lords specifically observed that in cases where the harms not
compensable for both parties were largely equal, it would be acceptable
‘to take into account in tipping the balance the relative strength of each
party’s case’ through the evidence that would be provided during the
hearing of the application for interim relief.121
The major concern raised at the Working Group stage in respect of
tests connected with or involving the assessment of the likelihood of
success was that such tests would lead to the prejudging of the merits
of the arbitral dispute by the tribunal. In particular, a commentator had
cautioned that some of the interim measures that were being deliberated
upon for inclusion in the 2006 amendments to the Model Law could have
the effect of anticipating the final outcome of the dispute.122 In that
context, he opined that:
[A]rbitrators who have rendered an interim decision risk becoming pre-
judiced as regards the case on the merits; moreover, they also risk sticking
to their original ex parte decision in order not to lose face. For these
118
UNCITRAL, Settlement of Commercial Disputes: Preparation of Uniform Provisions on
Interim Measures of Protection, UN Doc. A/CN.9/WG.II/WP.119 (30 January 2002),
para. 42.
119
Binder (n. 8), para. 4A-038.
120
121
Ibid.
122
Houtte (n. 27), p. 92.

reasons … the risk of prejudice created by ex parte proceedings is dis-
proportionate and thus incompatible with fair proceedings.123
The same commentator was also concerned that some of the harm that
may be caused to the respondent by the grant of interim measures may be
irreversible, and cannot be fully mitigated by compensation.124 The con-
cern about the risk of prejudging the final merits of the case was ultimately
resolved by the inclusion of the second sentence in article 17A(1)(b) – the
idea being that any determination made by the arbitral tribunal when
considering the grant of interim measures should be based on an assess-
ment of seriousness, but not interfere with any later fact-finding by the
arbitral tribunal. Furthermore, the Working Group felt that the provision
should have made it ‘abundantly clear’ that the determination was limited
to the seriousness of the case, without in any way prejudicing the findings
to be made by the tribunal at a later stage when determining the merits.125
The term ‘substantial possibility’ was not utilised in the wording of article
17A(1)(b) because it could easily have been misinterpreted as requiring the
tribunal to make such a prejudgment on the merits of the case given the
quantitative implication of the term.126 Instead, the Working Group sup-
ported a formulation along the lines of ‘provided that any determination
on this issue shall not prejudice any subsequent determination by the
tribunal’, which was considered to be more reflective of the threshold
function of the provision.127
An opposing view was to relocate this phrase to an explanatory guide,
for the purposes of simplifying the drafting of the provision.128 The
Working Group declined to remove the words to an external guiding
document, because it was felt that the Model Law itself should provide
such guidance and the necessary level of discretion to the arbitrators
deciding whether or not to issue an interim measure.129 The Working
Group also observed that case law in a number of States demonstrated
that courts were generally unwilling to grant interim measures in cir-
cumstances that would require preliminary discussions of the merits of
the dispute.130 It noted that on the converse, there was still the willingness
123
Ibid., p. 93.
124
Ibid., p. 94.
125
UN Doc. A/CN.9/523 (n. 44), para. 43.
126
Ibid.
127
Ibid.
128
UN Doc. A/CN.9/545 (n. 42), para. 32.
129
Ibid.
130

364 ar tic l e 1 7a: c onditio ns f or interim mea sures
to issue interim measures in such States based on other factors, such as

the urgency of the protective remedy, and the potential harm that the
claimant may be exposed to in case it was denied.131
The Working Group further considered that the inclusion of the
phrase ‘there is a reasonable possibility’ would achieve the required
level of flexibility to deal with the problem of limited available evidence
at the time when an interim measure is sought in order to demonstrate
the potential harm that would result in the absence of provisional
relief.132 There was thus no need to replace the words ‘will succeed’
with the words ‘is likely to succeed’.133
The Working Group also felt that ‘any subsequent determination’ would
refer not only to an award on the merits, but also other procedural orders
that might be sought or made by the arbitral tribunal.134 Thus, a proposal to
add the words ‘as to the merits’, after the aforementioned phrase, was also
rejected.135 The New Zealand High Court in Safe Kids held that a ‘reasonable
possibility of success’ could potentially be a higher threshold than a ‘serious
question to be tried’, but the requirement for a serious question to be tried is
in itself a significant threshold.136 The court found that there was no
significant difference between the ‘reasonable possibility of success’ test
under article 17A of the Model Law and the normal interim injunction test
of ‘serious question to be tried’, which in fact is a lower threshold than a
‘strong arguable case’.137 In American Cyanamid, the House of Lords
observed that use of diverse phrases such as a ‘prima facie case’ and ‘prob-
ability of success’ could result in vagueness on the objective of the interim
measure.138 In that context, the court observed that what was essential was
for it to be satisfied that the claim was ‘not frivolous or vexatious’, which
would imply that there was ‘a serious question to be tried’.139
2.4 Paragraph 2: Interim Measures for Preservation of Evidence

Article 17A(2) of the Model Law creates a separate test for interim
measures for the protection of evidence under article 17(2)(d), by
131
Ibid.
132
UN Doc. A/CN.9/545 (n. 42), para. 31.
133
Ibid.
134
UN Doc. A/CN.9/589 (n. 102), para. 42.
135
Ibid.
136
137
Ibid., para. 31.
138
139
Ibid.

stipulating that the tests which apply to the other three types of
interim measures under article 17 shall be applied by an arbitral
tribunal only to the extent the tribunal thinks appropriate. The
rationale behind article 17A(2) rests on two premises. The first is
that the arbitral tribunal, when deciding whether or not to grant an
interim measure to preserve evidence, should balance the potential
harm suffered by the applicant in the absence of the interim measure
against the potential harm that the opposing party would suffer
because of the provisional relief in a similar exercise to the grant of
the other three types of interim measures.140 However, unlike the
other types of interim measures, an application for the preservation of
evidence ought not to be subject to the full extent of the tests con-
tained in article 17A.141 This is due to the fact that the adverse effects
are relatively high, particularly those regarding exceptional harm that
would result from the absence of the interim measure.142 One com-
mentator has also argued that the preservation of evidence is a matter
of direct impact to the entire arbitral process, and should, thus, not be
unnecessarily hindered by strict conditions.143 The Working Group
considered that in deciding whether or not to grant an interim
measure to preserve evidence, an arbitral tribunal would have to
engage in a balancing exercise between the degree of harm suffered
by either party when the interim measure is granted or not.144 The
Working Group agreed that the preservation of evidence under article
17(2)(d) should not be subject to the article 17A tests, and that the
inclusion of this exception was warranted.145 Rather than to leave the
matter to external explanatory material accompanying article 17,
the Working Group felt that this issue ought to be made clear directly
in the text of article 17A.146
It should be noted that article 17A(2) applies to interim measures
preserving evidence only to the extent that the arbitral tribunal
considers appropriate. As such, the granting of interim measures
under article 17A(2) is very much subject to the discretion of the
tribunal.
140
UN Doc. A/CN.9/589 (n. 102), para. 34.
141
Ibid., para. 32.
142
UN Doc. A/CN.9/547 (n. 86), para. 91.
143
Roth (n. 12), p. 425.
144
UN Doc. A/CN.9/589 (n. 102), para. 34.
145
Ibid.
146
Ibid.

366 article 1 7a: c onditions f or interim measures
2.5 Relevance of Matters Other than Those Listed

in Paragraph 1(a) and (b)
One further issue is whether or not paragraph 1(a) and (b) of article 17A
provide an exhaustive list of matters that are to be considered by an
arbitral tribunal in the granting of interim measures. The New Zealand
High Court in Safe Kids agreed that while the three tests set out in article
17A must be considered,147 the wording of article 17A does not preclude
an arbitral tribunal going beyond these specific considerations when
granting an interim measure.148 However, the court in that case declined
to consider other issues that might normally arise in an interim injunc-
tion application before the courts, and held that article 17A was intended
to increase certainty for arbitral parties and provide more detail as to how
the discretion of the arbitral tribunal to grant interim measures is to be
exercised.149
The tests in article 17A(1) in respect of harm require that an arbitral
tribunal take into account the practical effects of granting interim mea-
sures of protection, as well as the financial statuses of both the plaintiff
and the defendant in respect of potential damages.150 Although article
17A(1) makes no specific reference to the provision of an undertaking as
to damages, the court held that it could be assumed that if a plaintiff fails
to provide an adequate undertaking of damages, it would be much more
difficult for the plaintiff to satisfy an arbitral tribunal that the harm, if the
measure is not granted, would substantially outweigh the harm that is
likely to result if the measure is granted.151
The court held that the full range of considerations in interim injunc-
tion applications before a court should not be applied when considering
whether an interim measure should be granted in the context of arbitra-
tion.152 Issues such as public interest and the potential consequences to
third parties would not be matters naturally falling within the ambit of
147
Article 17B of the Arbitration Act (the New Zealand equivalent of Model Law art. 17A)
sets out a three-pronged test. It divides art. 17A(1)(a) of the Model Law into two
conditions, which require the applicant to satisfy the arbitral tribunal that: (1) harm
not adequately reparable by an award of damages is likely to result if the measure is not
granted; and (2) the harm substantially outweighs the harm that is likely to result to the
respondent if the measure is granted. The test is in essence identical to the one provided
in the Model Law. See Arbitration Act, New Zealand (n. 60).
148
149
Ibid., para. 35.
150
Ibid., para. 33.
151
Ibid.
152
Ibid., para. 36.

3 . r e ques ting interim mea sures i n cour ts 367
consideration of an arbitral tribunal. As an arbitral tribunal derives its

jurisdiction from the contract between the parties, it is usually not
equipped to consider wider public interest and third-party interest issues.
Likewise, an arbitral tribunal should be hesitant to consider the ‘overall
justice’ of an arbitration case, and should confine its considerations to
those issues set out in article 17A of the Model Law.153
3. Requesting Interim Measures in Courts

International arbitration is characterised by an interaction between
tribunals, which are usually limited by lack of coercive powers in the
enforcement of judgments, and the parallel intervention of domestic
courts, which often provide assistance to the arbitral process particu-
larly in the enforcement of awards.154 Providing a basis for such
dynamic interaction, article 9 of the Model Law provides that a party
may seek the grant of an interim measure from a court at any point of
the arbitral proceedings, even before their commencement, despite the
terms and conditions of the arbitration agreements. The power of
courts to grant interim measures under article 9 of the Model Law is
further reiterated and reinforced by article 17J. By virtue of article 17J,
courts have the same power of issuing interim protective measures as
arbitral tribunals. In addition, it is noteworthy that article 17J proceeds
to provide courts with the power to order interim measures even if the
place of arbitration is outside the territory of the state in which the court
is situated.
On that basis, States that have adopted the 2006 version of the Model
Law permit their domestic courts to issue interim measures of protec-
tion.155 For instance, in the Australian case of AED Oil, it was affirmed
that articles 9 and 17 of the Model Law, which have been incorporated
domestically, envisage the usage of courts to grant interim measures of
protection in arbitral disputes.156 Article 23 of the 2003 Arbitration Act
of Spain domesticates article 17 of the Model Law, and incorporates the
153
Ibid.
154
R. Bismuth, ‘Anatomy of the Law and Practice of Interim Protective Measures in
International Investment Arbitration’ (2009) 26 JOIA 773, 774. In international arbitra-
tion, both arbitral tribunals and domestic courts of States may have the power to grant
interim measures. N. Kaminskienė, ‘Application of Interim Measures in International
Arbitration: The Lithuanian Approach’ (2010) 119 Jurisprudence 243, 251.
155
Collins (n. 2), p. 121.
156
AED Oil Ltd and AED Services PTE Ltd v. Puffin FPSO Ltd [2010] VSCA 37, para. 29.

368 article 1 7a: c onditio ns f or interim measures
mandate of arbitral tribunals to grant interim measures.157 The tribunals’

power to grant interim measures in Spain is ‘concurrent and alternative’
to that of the courts.158 With regard to England and Wales, the House of
Lords in the Channel Tunnel Group case observed that the English courts
have power to issue interim protective measures ‘where such relief is
ancillary to a final order whether to be granted by the English court or by
some other court or arbitral body’.159 The reasoning in the Channel
Tunnel Group case was reaffirmed by the House of Lords in Fourie,
where it observed that ‘provided the court has in personam jurisdiction
over the person against whom an injunction, whether interlocutory or
final, is sought, the court has jurisdiction, in the strict sense, to grant
it’.160 It has, however, still been argued that despite the English courts
possessing wide-ranging powers to grant interim protective measures,
there is hesitation in providing such provisional relief in disputes ‘that are
not connected to England and Wales in some way’.161
Section 9 of the 1996 Indian Arbitration and Conciliation Act domes-
ticates article 9 of the Model Law.162 Section 9(ii) of the Act provides
that a party may apply to the court before or during the arbitral
proceedings to seek its intervention for the grant of interim measures
in the context of various enumerated reliefs and remedies.163 In the
Indian Sundaram Finance case, it was observed that in some States, it
could be construed under their domestic law that a party seeking court
intervention for the grant of an interim measure implies that such a
claimant had waived its right to enforce under the arbitration proce-
dure.164 In that context, the Indian court interpreted article 9 of the
Model Law as having the objective of clarifying that merely because the
claimant has sought the court’s intervention for an interim measure
before or during arbitration does not imply that such an action is
157
Arbitration Act, No. 60 of 2003 of Spain; Tribunal Arbitral de Barcelona, ‘Arbitration
Act 60/2003, of 23rd December – Last amended: 6th October 2015’, p. 6, http://tab.es/
images/documents/normativa/reforma_ley_60–2003_eng.pdf.
158
D. J. A. Cairns, ‘The Spanish Application of the UNCITRAL Model Law on International
Commercial Arbitration’ (2006) 22 Arb. Intl 573, 585.
159
Channel Tunnel Group (n. 68), para. 99. For the statutory basis of the English courts to
grant interim relief in arbitral proceedings, see arts 39 and 44 of the English Arbitration
Act of 1996.
160
Fourie v. Le Roux and Others [2007] 1 All ER 1087, paras 29–30.
161
Collins (n. 2), p. 121.
162
See Arbitration and Conciliation Act, India (n. 49).
163
Ibid.
164
Sundaram Finance Ltd v. NEPC India Ltd [1999] 2 SCC 479.

3 . r e q u e s tin g i n te r i m me a s u re s in co u r ts 369
inconsistent with the arbitration agreement.165 As such, despite a party

applying to court for an interim relief, arbitral proceedings can still
commence and proceed.166 Sections 21 and 36 of the Hong Kong
Arbitration Ordinance grant articles 9 and 17A of the Model Law
domestic legal force.167 Section 12(1)(i) of the Singapore International
Arbitration Act recognises the power of the courts to grant interim
measures without prejudicing the Model Law provisions.
However, as the UNCITRAL Working Group observed, not all domes-
tic laws explicitly affirm the power of courts to grant interim measures in
arbitral proceedings.168 The Working Group opined that in such circum-
stances, such powers could be implied through an ‘interpretation of the
laws of civil procedure’, in addition to ‘some courts deriving the power
from the absence of a prohibition against issuing [of] interim mea-
sures’.169 The Working Group, however, noted that the absence of
express legislation permitting the grant of arbitral interim measures
had resulted in the courts of some States being unwilling to grant such
relief, while in other countries, there was ambiguity ‘whether and under
what circumstances such court assistance was available’.170
Further, the Working Group explained that in some jurisdictions, such
as in non-unitary and federal States, the power to issue interim relief
could be divided along the levels of the courts in tandem with their
jurisdictional mandate in accordance with the levels of governments,
which could be in the form of States, provinces, counties or cantons.171
Such delineations and lack of coherence concerning the powers of the
courts across various regions of a State can present significant uncer-
tainty on the country’s jurisprudence in relation to the issuance of
interim measures. For instance, the practice in the United States presents
substantial ambiguity on whether courts across various States have the
power to grant interim protective orders in aid of arbitration. The only
express power granted to US courts is in the Federal Arbitration Act
165
Ibid.
166
Ibid.
167
Arbitration Ordinance. Article 9 of the Model Law states that: ‘It is not incompatible
with an arbitration agreement for a party to request, before or during arbitral proceed-
ings, from a court an interim measure of protection and for a court to grant such
measure.’
168
UN Doc. A/CN.9/WG.II/WP.119 (n. 118), 134, para. 28; UN Doc. A/CN.9/WG.II/
WP.111 (n. 2), para. 3.
169
170
171

370 article 1 7a: c onditio ns f or interim measures
(FAA), under which tribunals can order parties to a dispute to arbitrate,

but there is lack of unanimity as to whether they can equally issue interim
protective measures.172 The FAA is the principal legislation that governs
arbitration in the United States, and provides the basic structure of the
process at the federal and State levels.173 Despite the fact that the Model
Law has not been adopted at the federal level, some States have drafted
their local arbitration legislation in accordance with it.174 The States of
the federation that have enacted Model Law in their local legislation
include Florida, Texas, California, Louisiana, Georgia, Connecticut,
Illinois and Oregon.175
Article 17A of the Model Law has yet to be widely considered by the
judiciary, although it has been mentioned in brief in a recent case on the
enforcement of Model Law awards in the Australian Federal Court.176
Despite the scarcity of case law in relation to this article, the discussed
New Zealand decision of Safe Kids, which considered article 17A, is
more of a peculiarity in respect of articles 9 and 17 of the Model Law
and their implementation in New Zealand than a paradigm case.177 In
the Safe Kids case, the parties had entered into contracts containing
arbitration clauses.178 The plaintiff applied for an interim injunction
before the High Court of New Zealand. At the relevant time, the
Arbitration Amendment Act, 2007, was passed to incorporate, inter
alia, some adaptations (with regard to articles 9, 17 and 17A of the
Model Law) into, respectively, articles 9, 17A179 and 17B of the
Arbitration Act, 1996.
However, the New Zealand Arbitration Act, 1996, does not merely
reproduce the Model Law. While article 9 of the Model Law provides that
it would not be inconsistent with an agreement to arbitrate a dispute that
a court grants an interim measure in respect of a party to arbitral
172
Collins (n. 2), pp. 120–121. See also J. Garvey and T. Heffelfinger, ‘Towards Federalizing
US International Commercial Arbitration Law’ (1991) 25 Intl Law. 209, 214; see Federal
Arbitration Act, 9 USC § 206.
173
J. Rost, R. Schachter, A. Dodd and E. Grajeda, ‘Comparative International Perspectives
of Arbitration in the Franchising Context’ (2012) 31 Franchise LJ 124, 124.
174
Ibid., p. 124.
175
Status: UNCITRAL Model Law on International Commercial Arbitration (1985), with
Amendments as Adopted in 2006, www.uncitral.org/uncitral/en/uncitral_texts/arbitra
tion/1985Model_arbitration_status.html.
176
Castel Electronics Pty Ltd v. TCL Air Conditioner (Zhongshan) Co. Ltd [2012] FCA 21.
177
See Safe Kids (n. 59).
178
Ibid.
179
The relevant provision stated that ‘[u]nless otherwise agreed by the parties, the arbitral
tribunal may, at the request of a party, grant an interim measure’.

3 . r e q u e s t i n g i n t er i m me a s u r e s in c o u r t s 371
proceedings, the corresponding provision in the Arbitration Act, 1996,

goes further to provide that, for the purpose of such provisional relief, the
High Court of New Zealand ‘has the same powers as an arbitral tribunal
to grant an interim measure under article 17A … and article 17B apply
accordingly’. In exercising the same power as an arbitral tribunal under
the Arbitration Act, the High Court would be expected to apply the same
test under article 17A of the Model Law when deciding the granting of
interim measures in respect of the arbitral proceedings as an arbitral
tribunal would by virtue of the incorporation of the test under article 17B
of the Arbitration Act. This requirement arises out of the way in which
the provisions in the New Zealand statute equate the court’s power under
article 9 with article 17 of the Model Law, and particularly incorporates
and requires the application of the tests under article 17A. This differs
from article 17J of the Model Law, which allows the courts to exercise the
same powers as an arbitral tribunal, without stipulating the test contained
in article 17A. In contrast, it is expected that most jurisdictions would not
have enacted a similar provision when incorporating the new provisions
of the Model Law – such a provision is absent in, for example, the Hong
Kong Arbitration Ordinance.180
The Model Law adopts a ‘free choice model’, which is similar to the
German approach, in its conceptualisation of the interaction between
the courts and the tribunals in the grant of interim measures.181 Under
the free choice model, a claimant of interim measures may, at any
juncture during or before the proceedings, approach either an arbitral
tribunal or the courts for provisional relief, unless there is a contrary
agreement between the parties.182 Such an approach may be contrasted
with the ‘court subsidiary model’, prevalent under the English law, in
which provisional protective relief is first sought from an arbitration
tribunal, with application in court being a last resort.183 In that sense,
the courts’ power to grant provisional relief is significantly restricted, and
is subsidiary to that of the arbitral tribunals’ capacity to act effectively.
Based on the fact that the court and the tribunal represent two different
adjudicating forums, there is the question of whether the hearing of an
application for interim measures may proceed in both settings concur-
rently. Some States have sought to avoid a matter proceeding concur-
rently in both the courts and tribunals by requiring stay of proceedings
180
Arbitration Ordinance, s. 21.
181
Kaminskienė (n. 154), p. 250.
182
Ibid., pp. 250–251.
183
Ibid., p. 250.

for applications made to the courts, and deferring to the tribunal where
justifiable and appropriate. Under article 9(1) of the English Arbitration
Act, a party may apply to the court in which the proceedings are ongoing
for their stay in cases where the agreement requires disputes to be
referred to arbitration. Article 9(4) of the Act proceeds to require that
the stay be granted by a court unless it is ‘satisfied that the arbitration
agreement is null and void, inoperative, or incapable of being performed’.
Under section 6(1) of the International Arbitration Act of Singapore, if a
matter that is subject to arbitration agreement is before a court, then any
of the parties may apply to the court for stay of proceedings. The court is
required to stay its proceedings in favour of arbitration under section 6
(2) of the Act unless it is of the view that the ‘arbitration agreement is null
and void, inoperative or incapable of being performed’. Provisions of stay
of court proceedings in favour of arbitration process are also found under
section 6 of the Kenyan Arbitration Act, sections 4 and 5 of the Nigerian
Arbitration and Conciliation Act, and article 8 of the South African
International Arbitration Act.

Article 17B
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 frus-
trate the purpose of the interim measure requested.
2. The arbitral tribunal may grant a preliminary order provided it con-
siders 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.

Within the Working Group, divergent views were expressed as to
whether it would be desirable to allow an arbitral tribunal to issue an
interim measure ex parte. Some members of the Working Group argued
that this power should be conferred exclusively to State courts, and that
the availability of preliminary orders in arbitration would constitute an
‘open avenue for dilatory and unfair practices that should be avoided’.1
The main rationale justifying this line of reasoning was the need to ensure
the parties’ equality and a full opportunity to present their case.2 Against
this argument, however, it was objected that the same needs are equally
present in State court litigation, but are not regarded as ‘sufficient
1
Doc. A/CN.9/508 (4–8 March 2002), 19, para. 77.
2
Ibid.
373

374 a r t i c l e 1 7 b: ap p l i cat i o n s f o r p relim inary ord ers
grounds for refusing the possibility of ordering ex parte measures in

exceptional circumstances’.3
In light of the arguments summarised above, the Working Group
decided that it was desirable to introduce the possibility of ex parte orders
of protection. At the same time, however, it was acknowledged that
certain precautions were necessary, in order to limit the potential nega-
tive impact of this new feature of the Model Law. To this end, the
Working Group decided to consider the opportunity to ‘limit or exclude
the possibility of court enforcement of ex parte interim measures’.4 This
approach would eventually result in the choice to make this type of order
unenforceable, as eventually confirmed in the final draft by article 17C
(5).5 Furthermore, a proposal was put forth to make ex parte measures
only available if the parties had previously concluded an agreement to
that effect.6 As some members of the Working Group correctly noted,
such an opt-in system would have largely curtailed the practical relevance
of preliminary orders, as it would not be realistic to expect that the parties
to an international arbitration agreement regulate the powers of the
tribunal and the development of the proceedings in such detail.7
Despite the policy choice to make preliminary orders available without
the need for any agreement of the parties to that effect, the concerns of
the Working Group as to the role of private autonomy in this context led
to an important addition to the text of article 17B. More specifically, the
Working Group decided at a later session that the parties should be free
to opt out of the provision at hand, excluding the tribunal’s power to
issue provisional measures without previously affording all of the parties
an opportunity to present their case.8 Arguably, the parties would have
3
Ibid. A possible counter-objection is that, in the context of arbitration, there is little room
for subsequent judicial review, as arbitral awards are normally not subject to appeal. See H.
van Houtte, ‘Ten Reasons against a Proposal for Ex Parte Interim Measures of Protection
in Arbitration’ (2004) 20 Arb. Intl 89.
4
UN Doc. A/CN.9/508 (n. 1), para. 79.
5
See the commentary to art. 17C in this volume.
6
UN Doc. A/CN.9/508 (n. 1), para. 78, with specific reference to the ICSID Rules. The same
opt-in mechanism was initially adopted for interim measures in general in the context of
ICC arbitration with the Pre-Arbitral Referee, which would eventually evolve into the
current system of Emergency Arbitrator: see E. Gaillard and P. Pinsolle, ‘The ICC Pre-
Arbitral Referee: First Practical Experiences’ (2004) 20 Arb. Intl 13.
7
UN Doc. A/CN.9/508 (n. 1), para. 78.
8
Second Session, UN Doc. A/CN.9/573 (27 January 2005), 8, para. 28. See also Report of the
Working Group on Arbitration and Conciliation on the Work of Its Forty-First Session,
UN Doc. A/CN.9/569 (4 October 2004), 8–9, paras 18–22; Report of the Working Group

had this possibility even in the absence of any express provision in the
Model Law; however, it is undoubtedly desirable to reinforce the princi-
ple of party autonomy and rule out doubts in this respect, especially
considering that a controversial mechanism such as ex parte measures of
protection may deter some commercial actors from entering into agree-
ments to arbitrate, or at least from setting the seat of arbitration in a
Model Law jurisdiction that contemplates this possibility.
Another point of discussion within the Working Group concerned the
type of temporary relief that an arbitral tribunal could grant ex parte.
Measures issued ex parte are most commonly associated with an urgent
need to preserve the status quo and avoid the destruction or irreversible
modification of disputed assets or evidence; however, it was not initially
clear whether the tribunal could also issue measures with a positive
content, i.e. ordering one of the parties to undertake a certain action
rather than merely refrain from taking actions that may alter the status
quo. After discussions, the Working Group decided that ‘a preliminary
order might be aimed not only at preventing a party from taking an
action but also at requiring a party to take an action’;9 the tribunal, in
other words, is in principle free to determine the contents of the measure
freely, depending on what is appropriate in each specific case.
Furthermore, the Working Group discussed whether the provision of
security should constitute a condition precedent to the issuance of a pre-
liminary order. On the one hand, such a mechanism would undoubtedly
minimise the risk of abuses on the part of the requesting party, ensuring the
possibility of recovering costs and damages for the party against whom the
order has been issued. On the other hand, however, it was observed that
‘creating such a rigid rule … could create difficulties in practice’.10 It was
therefore decided that the tribunal would only have ‘an obligation to con-
sider the issue of security, but … the decision on whether to require such
security should be left to the discretion of the arbitral tribunal’.11
2. Paragraph 1
The first paragraph concerns the request of an ex parte preliminary order.
Interestingly, the provision makes a clear distinction between the interim
on Arbitration on the Work of Its Thirty-Seventh Session, UN Doc. A/CN.9/523 (11

November 2002), 8, para. 22.
9
UN Doc. A/CN.9/573 (n. 8), para. 29.
10
Ibid., para. 60.
11
Ibid.; see also the commentary to art. 17E in this volume.

376 a r t i c l e 1 7 b: ap p l i cat i o n s f o r p relim inary ord ers
measure, on the one hand, and the preliminary order accompanying that
measure, on the other hand. The notion of interim measure, as defined by
article 17(2) of the Model Law, is applicable irrespective of whether the
requesting party seeks to obtain the measure with or without the prior
involvement of the party against whom the requested measure would be
directed. In case of an ex parte application, however, the interim measure is
coupled with a preliminary order. The purpose of the preliminary order is
to direct a party12 ‘not to frustrate the purpose of the interim measure’.
It may at first sight seem surprising that the same party requests both a
preliminary order and an interim measure, as both of these measures
ultimately aim at ensuring the temporary protection of the requesting
party’s rights and interests. However, the structure of section 2 makes this
double request not only possible, but also necessary if a party wishes to
obtain relief without prior notice to the other party. The reason for this
peculiarity is that article 17C allows the tribunal to issue an interim
measure only after the arbitrators have given all of the parties an oppor-
tunity to present their case.13 The function of the preliminary order, then,
is to bridge the chronological gap between the request and the issuance of
the interim measure, ensuring that the requesting party immediately
receives the protection it needs.14 The preliminary order always expires
after twenty days from the date on which it was issued by the tribunal.15
In order to obtain a continuous provisional protection of its rights, then,
the requesting party necessarily needs both a preliminary order and an
interim measure, which will ‘kick in’ after the expiry of the preliminary
order if granted by the arbitrators.16
12
The same, of course, holds true in cases where the order has been issued towards more
than one party.
13
14
The Explanatory Note prepared by the UNCITRAL Secretariat explains that ‘[p]relimin-
ary orders provide a means for preserving the status quo until the arbitral tribunal issues
an interim measure adopting or modifying the preliminary order’: ‘Explanatory Note by
the UNCITRAL Secretariat on the 1985 Model Law on International Commercial
Arbitration as Amended in 2006’, p. 31, https://uncitral.un.org/sites/uncitral.un.org/
files/media-documents/uncitral/en/07-86998_ebook.pdf. From this point of view, preli-
minary orders are analogous to temporary restraining orders under US law, as noted by I.
M. Schwartz, ‘Interim and Emergency Relief in Arbitration Proceedings’ (2008) 63 Disp.
Resol. J. 56, 58. See also R. J. Sugg, ‘Interim Relief and International Commercial
Arbitration in North Carolina: Where We Are and Where We Should Be Looking’
(2008) 30 Campbell L. Rev. 389, 403.
15
16
U. Draetta and R. Luzzatto, The Chamber of Arbitration of Milan Rules: A Commentary
(Juris, 2012), pp. 359–360.

As already mentioned,17 section 2 of chapter IVA of the Model Law

sets forth an opt-out regime for ex parte interim measures. As such,
article 17B does not require the parties to specify in their agreement
that the tribunal will have the power to grant preliminary orders without
having previously afforded all of the parties an opportunity to present
their case. The disputants, however, remain free to exclude this possibi-
lity, as highlighted by the words ‘[u]nless otherwise agreed by the parties’.
Of course, even if the parties exclude the possibility for the arbitrators to
give ex parte provisional relief, it may be possible for the parties to obtain
this type of measure from a State court having jurisdiction on the
matter.18
The final part of paragraph 1 contains an important clarification
concerning the instrumental relationship between a preliminary order
and the subsequent interim measure. More specifically, the provision at
hand specifies that the function of a preliminary order is to direct ‘a party
not to frustrate the purpose of the interim measure requested’. In other
words, a preliminary order is never a self-sufficient measure; its main-
spring is the protection of the practical effects of the interim measure that
will follow it at a later stage (if issued by the tribunal). The question, then,
is what standard should be applied by the tribunal in order to determine
whether such a preliminary order is indeed necessary to avoid the
frustration of the requested interim measure. Paragraph 2 provides
some important guidance in this respect.
3. Paragraph 2
Any party requesting an ex parte preliminary order should reasonably
believe that it needs not only to obtain provisional relief, but also to ‘take
the counterpart by surprise’ in order to ensure the effectiveness of the
measure. By way of example, if there are good reasons to presume that the
respondent may destroy a piece of evidence that is relevant and material
to the resolution of the dispute, the claimant may wish to ensure the
17
See above, section 2.
18
Pursuant to art. 17J, the Model Law does not affect the jurisdiction of State courts to issue
interim measures; a court’s powers, in this respect, remain essentially the same as they
would be in the absence of an agreement to arbitrate. In the European Union, the
interplay between EU law and domestic law in the allocation of the jurisdiction to issue
provisional measures is regulated by art. 35 of Regulation 1215 of 12 December 2012
(Brussels I bis Regulation). On the concurrent jurisdiction of State courts and arbitral
tribunals in this respect, see M. Roth, ‘Interim Measures’ (2012) J. Disp. Resol. 425, 433.

378 article 1 7b: application s f o r pr e l i m i na r y o r d e r s
preservation of that evidence without giving the counterpart any prior

notice.
There is little doubt that the applicant bears the burden to prove that
such a ‘surprise effect’ is necessary. Paragraph 2 specifies that the tribunal
only has the power to issue 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’. Given
the paucity of case law on article 17B,19 it is difficult to determine the
precise threshold that should be met, in order for such a risk to be
deemed as proven. The preparatory works do not provide conclusive
guidance either and, in fact, they seem to evince a prevailing attitude
within the Working Group to leave the arbitrators largely free in their
assessment. Namely, a proposal was made to specify that the tribunal
could grant a preliminary order ‘provided it considers that there is a
reasonable concern that the purpose of the requested interim measure
will be frustrated by prior disclosure of the interim measure to the party
against whom it is directed’.20 The words ‘reasonable concern’ would
have introduced a standard of reasonableness to be followed by the
tribunal when assessing requests for a preliminary order. This proposal,
however, was not adopted.21 Article 17B, therefore, is essentially silent as
to the problem of when the risk mentioned in paragraph 2 should be
considered as existing. It is certain, however, that the risk should not be
merely hypothetical and abstract; the overall architecture of section 2
rests on the basic idea that the issuance of an ex parte order should be
seen as a rare exception to the general rule of prior inter partes discussion.
4. Paragraph 3
The existence of a risk that the purpose of an interim measure may be
frustrated is not, in and of itself, enough to warrant the issuance of a
preliminary order. Indeed, when such a risk exists, the arbitral tribunal is
not obliged, but merely empowered, to issue such an order, as the use of
the verb ‘may’ in paragraph 2 makes clear. Whether the arbitrator will
actually make use of this power, however, depends on the outcome of a
balancing test, required by paragraph 3.
19
See above, section 1 of this chapter.
20
Third Session, UN Doc. A/CN.9/589 (12 October 2005), 12, para. 59.
21
Ibid.

4 . p ara grap h 3 379
Pursuant to paragraph 3, the same conditions set forth for granting

interim measures apply, in principle, to preliminary orders as well.22 The
tribunal, hence, should only issue the order in the presence of two
requirements, sometimes referred to with the Latin expressions ‘pericu-
lum in mora’ and ‘fumus boni juris’. Under the first requirement, the
tribunal should be satisfied that a harm which cannot be adequately
repaired by an award of damages would be likely to occur if the measure
is not ordered. Such a harm should ‘substantially outweigh’ the harm
potentially resulting from the issuance of the measure. Under the second
requirement, instead, the applicant should have a reasonable possibility
to succeed on the merits of the case; the implicit assumption behind this
provision is that, if it is unlikely that the party making the application will
obtain a favourable award on the merits, there is little need to arrange for
a provisional protection of its rights in the period of time before the final
award is rendered.
For the sake of clarity, the last part of paragraph 3 specifies that the
harm to be evaluated is the one that is ‘likely to result from the order
being granted or not’. In other words, the tribunal should assess whether
(1) the failure to grant an ex parte preliminary order would likely result
in a harm which would not be adequately reparable by an award of
damages; and
(2) such harm would outweigh the harm that would be likely to result to
the party against whom the order would be directed.
Although the test is structurally identical to the one concerning inter
partes interim measures, the circumstance that it concerns an ex parte
preliminary order has important consequences on the contents of the
assessment that the tribunal must conduct. More specifically, it must be
kept in mind that, inasmuch as a request is filed and the conditions are all
met, the tribunal always has the possibility to grant an inter partes
measure. Therefore, in order for an ex parte preliminary order to be
issued, the tribunal should be satisfied that an inter partes measure would
not be sufficient; in other words, a preliminary order would only be
appropriate if the issuance of a ‘standard’ interim measure under section
1 of chapter IVA would be inadequate to prevent an irreparable harm for
the applicant. It is therefore crucial for the applicant to demonstrate the
need for a ‘surprise effect’, as already required in paragraph 2.23
22
See also the commentary to art. 17A in this volume.
23
See above, section 3 of this chapter.

380 a r t i c l e 17 b: ap p l i c a t i o n s f or p r e l i m i n a r y o r d e r s
As for the second limb of the test, the arbitrators must balance the
harm potentially suffered by the applicant with the one that the other
party would endure should a preliminary order be granted. It is difficult
to ignore the fact that, in practice, it may be very difficult for the
arbitrators to assess this latter factor, as the ex parte nature of the
procedure entails that the party against whom the application is filed
will not have the opportunity to point out the harm that it would suffer,
were the order granted. In other words, while the tribunal makes its
decision against the background of the submissions and the information
that both parties have provided, in this context it is necessary to perform
the assessment on the basis of a one-sided and potentially incomplete
exposition of the relevant circumstances. At the same time, however, it
may be argued that the harm resulting from the issuance of a preliminary
order is not likely to be dramatic, since the measure is necessarily short-
lived and the tribunal will be able to perform a new and more thorough
assessment after an opportunity to present the case has been afforded to
all of the disputants. In practice, while the time limit of twenty days set
forth in article 17C(4) offers a measure of reassurance, the harm poten-
tially suffered by the recipient of the measure must necessarily be eval-
uated on a case-by-case basis. Depending on the factual circumstances
and the type of industry in which the disputant is active, even a short
period of time may make it difficult for that party to meet other obliga-
tions, or even to stay solvent.

Article 17C
Specific Regime for Preliminary Orders

ma nuel a. góm ez
(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.
(3) The arbitral tribunal shall decide promptly on any objection to the
preliminary order.
(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.

As the following paragraphs show, the final text of article 17C was the
result of a compromise reached at the forty-second session of the
Working Group, after a particularly lengthy debate that included numer-
ous objections and exchanges among delegates and observers. Despite
the big efforts undertaken by the Working Group, article 17C has found
381

382 a r t i c l e 1 7 c : sp e c i f i c re g i m e f o r p r e l i m i n a r y or d e r s
little support around the world.1 Some national arbitration laws, such as
Australia’s, foreclose the possibility of an arbitral tribunal issuing ex parte
preliminary orders altogether.2 Other countries, such as Germany3 and
Chile,4 are silent on the issue, which leaves the door open to the possi-
bility for a tribunal to grant such measures, but also to preclude them.5
Finally, there are countries where preliminary orders can be issued by an
arbitral tribunal, but with some important limitations – or safeguards –
like an opportunity to hear the other party prior to the issuance of the
order (Austria),6 or immediately thereafter (Belgium and Canada).7
The UNCITRAL Secretariat first considered including ex parte mea-
sures to the list of possible topics for future deliberations of the
Commission during the thirty-first session held in 1999.8 At the time,
there was no clear direction regarding the final outcome of the
Commission’s work except for the desire of its delegates to come up
with acceptable ‘ideas and proposals for improvement of arbitration laws,
rules and practices’.9 One of the possibilities was to craft a uniform
solution either in the form of a model legislative provision, a treaty, a
model contractual rule or a practice guide. At the very least, the
Commission delegates wanted to reach a uniform interpretation that
would, in turn, ‘be a useful contribution to the practice of international
1
There are, however, some institutional rules, such as the Swiss Rules of International
Arbitration (2012), which provide for the possibility of ex parte requests for emergency
relief under certain circumstances. Article 26(3) reads: ‘In exceptional circumstances, the
arbitral tribunal may rule on a request for interim measures by way of a preliminary order
before the request has been communicated to any other party, provided that such
communication is made at the latest together with the preliminary order and that the
other parties are immediately granted an opportunity to be heard.’ See C. Oetiker,
‘Commentary on Article 26 Swiss Rules’ in T. Zuberbühler, C. Müller and P. Habegger
(eds), Swiss Rules of International Arbitration: Commentary, 2nd edn (Juris, 2013), pp.
290, 297–300. See also M. Savola, ‘Interim Measures and Emergency Arbitrator
Proceedings’ (2016) 23 Croatian Arb. YB 90, 73, 81.
2
See International Arbitration Act, art. 18B (Australia).
3
Interim Measures of Protection, German Arbitration Act (Zivilprozessordnung, or ZPO)
(Germany), s. 1041.
4
Commercial Arbitration Act, Statute No. 19,971 (Chile), art. 17.
5
See R. Kreindler and T. Kopp, ‘Germany’ in L. W. Newman and C. Ong (eds), Interim
Measures in International Arbitration (Juris, 2014), pp. 321–342; see also F. Jamarne et al.,
‘Chile’, ibid., pp. 137–160.
6
See N. Pitkowitz, ‘Austria’, ibid., pp. 51–78.
7
See B. Hanotiau, ‘Belgium’, ibid., pp. 79–88. See also J. Brian Casey and J. Mills, ‘Canada’,
ibid., pp. 115–136.
8
UNCITRAL, Report on the Work of Its Thirty-Second Session, UN Doc. A/54/17 (1999),
45, para. 372.
9
Ibid., 40.

1 . b a c k g r o u n d a n d t r a v a u x p r épa ra toir es 383
commercial arbitration’.10 The UNCITRAL Report referred to prelimin-

ary orders as ‘ex parte measures’, and the only mention about their
specific regime was the fact that ‘under some legal systems they could
only be issued for a limited period of time (e.g. ten days), and a hearing
had to be held thereafter to consider the measure’.11 Furthermore, the 6
April 1999 Note, whereby the UNCITRAL Secretariat informed the
General Assembly of the United Nations of the possible future work by
the Commission on international commercial arbitration, mentioned the
‘enforceability of interim measures of protection’12 as a main topic, but
said nothing specifically about preliminary orders or ex parte interim
measures and even less about a specific regime for those measures.
Among the first specific issues that caught the attention of the
Working Group regarding ex parte interim measures was their purported
enforceability. In addition to noting that ‘such interim measures were not
entitled to enforcement under the Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters (Brussels,
1968)’,13 it was also pointed out that some major international arbitration
institutions did not permit the issuance of ex parte interim measures.14
On the other hand, the Working Group also recognised that the implicit
risks of ex parte interim measures were countervailed by ‘the need to
preserve the element of surprise for ensuring the effectiveness of some
10
Ibid.
11
Ibid., 45, para. 371. See also Report of the Working Group on Arbitration on the Work of
Its Thirty-Second Session, UN Doc. A/CN.9/WG.II/WP.108 (14 January 2000), 19,
para. 82.
12
Note by the Secretariat, Possible Future Work in the Area of International Commercial
Arbitration, UN Doc. A/CN.9/460 (6 April 1999), 28.
13
See UNCITRAL, Report of the Working Group on Arbitration on the Work of Its Thirty-
Third Session, UN Doc. A/CN.9/485 (20 December 2000), 25, para. 90. It is important to
note, however, that this commentary by Working Group delegates dealt with interim
measures issued by a State court, and referred (at the time) to both ex parte and inter
partes orders. The delegates did not discuss the applicability of the Brussels Convention to
measures issued by arbitral tribunals. The situation has evolved since that time, as inter
partes orders now qualify as judgments for the purposes of the Brussels I bis or Brussels I
Recast Regulation. EU, Regulation (EU) No. 1215/2012 of the European Parliament and
the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (recast), [2012] OJ L351/1 (Brussels I Recast).
For a discussion about the interplay between the Brussels I Recast and arbitration,
including the regime for the recognition and enforcement of arbitral awards, see N.
Dowers and Z. S. Tang, ‘Arbitration in EU Jurisdiction Regulation: Brussels I Recast and a
New Proposal’ (2014) 3 Groningen J. Intl L. 125–146. See also T. Hartley, ‘The Brussels I
Regulation and Arbitration’ (2014) 63 ICLQ 843–866; and see F. De Ly, ‘The Interface
between Arbitration and the Brussels Regulation’ (2016) 5 Am. UL Rev. 485–510.
14
Ibid.

384 article 1 7c: specific regime f or preliminary orders
interim measures (with a view to preventing, for example, the destruction

of evidence or, more generally, to address any situations requiring urgent
action)’.15
A middle-ground suggestion that received some support among
Working Group delegates was to consider ‘a two-step procedure, com-
bining an ex parte phase with a subsequent inter partes phase’.16 Such
mechanism would permit the arbitral tribunal to issue an urgent and
temporary measure that would have to be subsequently notified to the
party against whom it was issued, so it could present its case. This
procedural condition could also be a prerequisite for the enforceability
of the measure in State courts.17
The disparate treatment of ex parte interim measures by national laws
prompted the Working Group to seek and obtain data that would help
the delegates to understand the current trends and figure the best possible
approach for the Model Law. Regarding the most relevant studies related
to ‘the effectiveness and availability of interim relief on an international
level’, the Working Group considered the Principles of Provisional and
Protective Measures in International Litigation of the International Law
Association,18 the American Law Institute/Unidroit Draft Fundamental
Principles and Rules of Transnational Civil Procedure,19 and the draft
Convention on Jurisdiction and Foreign Judgments in Civil and
Commercial Matters of the Hague Conference on Private International
Law,20 among others.
The UNCITRAL Secretariat also ‘prepared a short questionnaire that was
forwarded to governments to ascertain what kind of powers courts pos-
sessed to order interim measures in support of arbitration and examples of
measures that may have been issued’.21 The trove of information obtained as
a result of this important evidence-gathering exercise helped redirect the
focus of the Working Group discussions and fine-tune the different para-
graphs that built the basis for a revised and more complete article 17.
During the Working Group’s thirty-seventh session, the delegates
centred their discussion on certain aspects of draft article 17, including
15
16
Ibid.
17
UN Doc. A/CN.9/WG.II/WP.108 (n. 11), 22–23, para. 97.
18
Third Session, UN Doc. A/CN.9/WG.II/WP.111 (12 October 2000), 3, para. 8.
19
Sixth Session, UN Doc. A/CN.9/WG.II/WP.119 (30 January 2002), 17–19, paras 68–70.
20
21
Ibid., 5, para. 12.

the regime for ex parte interim measures issued by an arbitral tribunal,

which became one of the most contentious issues.22 Several delegations
were opposed to the proposal of including a provision that granted the
arbitral tribunal power to issue ex parte measures. Their objection rested
on the premise that such function ‘should be reserved for State courts’.23
Some delegates, on the other hand, were in favour of allowing arbitral
tribunals to issue ex parte measures, but only ‘for a limited time period’,24
or ‘if strict conditions were imposed to ensure that the power was not
subject to abuse’.25 In any case, the general view was that ‘if ex parte
measures were eventually dealt with … they should be so drafted as to
indicate that ex parte measures should only be granted in exceptional
circumstances’.26
The Working Group considered various important issues, including
the question of whether different national laws permitted the enforce-
ability of ex parte interim measures. It was noted that some legal
systems did not permit enforcement because they regarded interim
measures rendered on an ex parte basis as procedural decisions, and
therefore excluded from the treatment given to other resolutions.27
Those in favour of including an express provision that allowed arbitral
tribunals to issue ex parte interim measures deemed it an important
contribution towards ensuring the effectiveness of international arbi-
tration. They also noted that this power was becoming ‘a trend in a
number of national laws’,28 and considered that the Model Law should
follow. Despite this view, the opposition to ex parte interim measures
continued. Some considered that ‘such a power could potentially
undermine the fundamental principle of party agreement upon which
arbitration was based’.29 It was also said that ex parte interim measures
ran counter to the principle of party equality.30
22
UNCITRAL, Report of the Working Group on Arbitration on the Work of Its Thirty-
Sixth Session, UN Doc. A/CN.9/523 (11 November 2002), para. 16 (‘The Working Group
was invited to focus its attention on the most contentious issue of the power of an arbitral
tribunal to order ex parte interim measures of protection as set forth in paragraph (4) of
the proposal’).
23
Ibid., para. 17.
24
Ibid.
25
Ibid.
26
Ibid.
27
Ibid., para. 19.
28
Ibid., para. 24.
29
Ibid., para. 21.
30
Ibid.

In light of such antagonistic views, the Working Group delegates

worked towards reaching a compromise. As a result, the proposal pre-
sented by the United States of allowing tribunals to issue ex parte
measures subject to important limitations gained some acceptance.31
Three main limitations were therefore considered: (1) ex parte measures
should have a maximum duration of twenty days; (2) the responding
party should be given notice of the measure and should also be afforded
an opportunity to be heard at the earliest practicable time;32 and (3) the
requesting party should have an obligation to ‘inform the tribunal of all
circumstances that were relevant and material to the determination’.33
All these issues were subject to extensive discussion during the subse-
quent Working Group deliberations, as reflected in the different
reports,34 and also in the specific comments made about each topic.35
After much deliberation, a few strong differences remained, which
prompted some delegations to propose that, if an ex parte measures
provision were to be included, the regime of amended article 17 ‘should
be drafted in the form of an opting-in provision, applying only where the
parties had expressly agreed to its application’.36 What made this solution
particularly attractive was the fact that is was ‘strongly supported by those
delegations that were opposed to preliminary orders’.37 There were
delegates who opined that unless the parties incorporated into their
agreements arbitral rules that ‘contained such a right to order ex parte
interim relief’,38 preliminary orders would probably be unavailable in
most cases. An alternative solution was to adopt an opt-out provision
instead. The proponents of this alternative opined, ‘the opt-out option
was … more in line with efforts by the Working Group at previous
sessions to recognize preliminary orders provided that appropriate safe-
guards were in place to prevent abuse of such orders’.39
31
See generally Working Group II (Arbitration and Conciliation) Thirty-Seventh Session,
Proposal by the United States of America, UN Doc. A/CN.9/WG.II/WP.121, Annex (24
September 2000).
32
Ibid., para. 20.
33
Ibid.
34
See e.g. UNCITRAL, Report of the Working Group on Arbitration on the Work of Its
Thirty-Seventh Session, UN Doc. A/CN.9/545 (8 December 2003), 16, para. 49.
35
Ibid., paras 79, 80, 83, 84.
36
UNCITRAL, Report on the Work of Its Thirty-Eighth Session, UN Doc. A/60/17 (2005),
43, para. 175.
37
UNCITRAL, Report of the Working Group on Arbitration and Conciliation on the Work
of Its Forty-Second Session, UN Doc. A/CN.9/573 (27 January 2005), 6, para. 18.
38
Ibid.
39
Ibid., 3, para. 9.

As the discussions progressed about the structure of draft paragraph 7,40

the need to delineate a procedure for ex parte preliminary orders gained
support. Several decisions were made at this point. First, preliminary
orders could only be issued ‘as a procedural order and not as an
award’,41 which also resulted in them not being enforceable, both under
the New York Convention and article 36 of the Model Law. A second
agreement was to include language that conveyed the tribunal’s obligation
to give notice to the party against whom the preliminary order was
directed; not only of the documents filed, but also the existence of any
oral communications and their contents.42 The obligation to give notice
should be borne by the tribunal, this being independent from whether the
arbitral tribunal had accepted or refused to issue the preliminary order.43
Another important decision by the Working Group was to avoid
defining a time limit (e.g. forty-eight hours, or two days) for the respond-
ing party to present its case, and instead include language that was less
restrictive (so as to minimise any potential clash with national laws), but
still conveyed the need for expedience and urgency.44 The Working
Group also agreed to add the words ‘at the same time’ to indicate when
the notice for the responding party to present its case should be given in
relation to the determination about the preliminary order.45 Finally, the
Working Group discussed different proposals regarding the wording of
then-subparagraph 7(f) regarding the lifespan of twenty days of the ex
parte preliminary orders, and adopted a revised version that formed the
basis of future article 17C(4).46
Despite the fact that by October of 2005 the Working Group had
already ‘reached an agreement upon a compromise text of paragraph
(7) (referred to as “the compromise”)’,47 there was still a considerable
divergence of views regarding ex parte preliminary orders.48 Some dele-
gates still opined that if the article on ex parte preliminary orders were to
be included as an opt-in provision, it would be more acceptable.
Nevertheless, the Working Group decided that such language would be
40
Later on, para. 7 became art. 17C.
41
Ibid., paras 27, 36.
42
43
44
45
46
47
48

388 a r t i c l e 1 7 c : sp e c i f i c re g i m e f o r p r e l i m i n a r y or d e r s
unnecessary because ‘the very nature of a model law provided States with
the freedom to adopt certain provisions or not and that such an opt-in
format had been discussed and rejected in reaching the compromise’.49
Further revisions to paragraph (7) were classified following the Latin
numbering system used in other UNCITRAL instruments, so at this
juncture, the provision on the special regime of preliminary orders
became known as article 17 quater.50
Before approving the final text, the Working Group gave one more
opportunity to member States and international organisations to submit
observations, and six governments did so. The United Kingdom reiterated
its mixed feelings about the compromise solution and lamented the
position in which UNCITRAL found itself regarding what it considered
to be modest results. The UK delegation further regretted that such a
relatively small portion of article 17 – the provision on ex parte prelimin-
ary orders – had been allowed to overshadow the rest of the project.51
Austria and France were also critical of the solution reached, but sug-
gested some changes like deleting the reference to the unenforceability of
ex parte preliminary orders,52 and adding language that ensured that the
party against which an interim measure is invoked ‘was given the possi-
bility to present its position prior to the issuance of such a measure’.53
Italy indicated that its national law did not allow arbitral tribunals to issue
interim measures or preliminary orders, so the adoption of article 17C by
that country was unlikely in the foreseeable future.54 Nevertheless, the
Italian government still offered some suggestions that in its view would
increase the likelihood of the adoption of article 17C by civil law coun-
tries.55 One specific suggestion was the adoption of a more concise style
49
50
Fourth Session, UN Doc. A/CN.9/592 (27 February 2006), 25–28, para. 15.
51
Draft Legislative Provisions on Interim Measures and the Form of Arbitration
Agreement. Comments Received from Member States and International organizations,
UN Doc. A/CN.9/609/Add.4 (18 May 2006), 2.
52
Draft Legislative Provisions on Interim Measures and the Form of Arbitration Agreement.
Comments Received from Member States and International Organizations, UN Doc. A/
CN.9/609/Add. 5 (30 May 2006), 2. See also Draft Legislative Provisions on Interim Measures
and the Form of Arbitration Agreement. Comments Received from Member States and
International Organizations, UN Doc. A/CN.9/609/Add. 6 (19 June 2006), 2.
53
Ibid., UN Doc. A/CN.9/609/Add. 6 (19 June 2006), 2.
54
Agreement. Comments Received from Member States and International Organizations,
UN Doc. A/CN.9/609 (4 May 2006), 5.
55
Ibid., 6.

and more reliance ‘on the gap-filling function of national procedural

rules’.56 The comments from the Guatemalan representation suggested
that the Commission should add a definition of what preliminary orders
(órdenes preliminares, in Spanish) were so it could benefit those jurisdic-
tions that were not familiar with the concept.57 Finally, the comments
from China criticised the language added to paragraph 5 regarding the
unenforceability of preliminary orders by State courts. In its opinion, ‘a
preliminary order that is not subject to enforcement by a court will bring
about no real effect’.58
2. Paragraph 1
The arbitral tribunal’s duty to notify ‘all parties’ of all communications –
oral and written – in connection with the preliminary order and the
accompanying interim measure is an essential factor that preserves the
fundamental principles of equal treatment of the parties and their right to
present their case. This duty also reinforces the principle articulated in
article 24(3) of the Model Law, according to which ‘all statements,
documents or other information supplied to the tribunal by one party
shall be communicated to the other party’.59 The fact that the duty to
notify is conferred upon the tribunal might ‘bestow the preliminary order
with more authority and gravitas’ than if it came from the requesting
party or someone else.60
The timing of the tribunal’s notice was subject to extensive discussion
during the Working Group deliberations, and the solution was to adopt a
text that balanced the need to maintain the element of surprise and the
aforementioned fundamental rights (i.e. equal treatment of the parties and
the opportunity to present one’s case).61 In order to avoid the likelihood
56
Ibid.
57
Ibid., 5.
58
Agreement, Comments Received from Member States and International Organizations,
UN Doc. A/CN.9/609/Add.1 (4 May 2006), 3.
59
Model Law, art. 24(3). See also H. M. Holtzmann, J. E. Neuhaus, E. Kristjansdottir and T.
W. Walsh, A Guide to the 2006 Amendments to the UNCITRAL Model Law on
2015), pp. 173–176.
60
S. Menon and E. Chao, ‘Reforming the Model Law Provisions on Interim Measures of
Protection’ (2006) 2 Asian Intl Arb. J. 13–17.
61
J. Beechey and G. Kenny, ‘How to Control the Impact of Time Running between the
Occurrence of the Damage and Its Full Compensation: Compensatory and Alternative
Remedies in Interim Relief Proceedings’ in ICC, Dossier of the ICC Institute of World

390 ar t icl e 1 7c : s pe c if ic r e gime f or pr el i mina ry or d er s
that the respondent’s right to present its case is not restricted for a longer
period than strictly necessary and also perhaps to avoid clashing with any
existing provisions of national law that set forth a fixed period of time for
giving notice in similar situations the first sentence of paragraph 1 does not
mention any term, but rather says that the notification should occur
‘immediately after the arbitral tribunal has made a determination’.62 In
any case, the use of the words ‘immediately after’ amounts in practice to an
exact chronological indication.63
The use of the word ‘determination’64 is also particularly important for
it signifies that the arbitral tribunal’s duty to notify exists regardless of the
outcome; any decision by the tribunal – and not just a favourable or
negative ruling – triggers the duty to notify. Another important aspect is
that the addressee of the notice is not just the party against whom the
preliminary order and its corresponding interim measure have been
requested, but also any other parties to the arbitration. The use of the
term ‘party’ in its plural form extends the impact of article 17C to multi-
party arbitrations, which have become increasingly common in interna-
tional commercial disputes.65 The obligation to notify ‘all parties’ also
ensures that everyone is treated equally and that all participants in the
Business Law: Interest, Auxiliary and Alternative Remedies in International Arbitration

(ICC, 2008), p. 113.
62
Model Law, art. 17C(1).
63
State courts have acknowledged that, at least in the English language, the adverb ‘imme-
diately’ may have a different meaning depending on the context. See Preferred Masonic
Mutual Accident Association of America v. John H. Jones, 60 Ill. App. 106 (1894),
Appellate Court of Illinois (‘According to standard lexicographers and the common
understanding, it has but two meanings – one indicating the relation of cause and effect,
as direct and proximate, and the other the absence of time between two events. Thus
Webster defines it generally as “in an immediate manner”. His third definition of
“immediate” is “acting with nothing interposed or between, or without the intervention
of another object as a cause, means, medium or condition; producing its effect by direct
agency.” And hence more specifically defines the adverb as “without intervention of
anything, proximately, directly – opposed to immediately”’). It seems obvious that the
meaning of ‘immediate’ in art. 17C(1) of the Model Law refers to an action that has to be
done ‘without interval of time, without delay, instantly’. Ibid.
64
The word ‘determination’ has been understood by some State courts, in general, as the
decision or result of a legal proceeding (e.g. ‘a judgment is the final determination of a
cause’): see Shirley v. Birch, 16 Or. 1, 18 Pac. 344 (1888) (USA). See also Henavie v. New
York Cent. & HRR Co., 154 NY 278, 48 NE 525 (1897).
65
For example, by the end of 2017 the ICC Dispute Resolution Statistics reported: ‘Over a
third of the cases involved multiple parties (37%), the highest figure after 2016, which saw
the registration of several claims in a collective dispute. Out of the multiparty cases, 13%
involved more than five parties and 3% more than ten parties.’ ICC Dispute Resolution
Bulletin (2018), Issue 2.

2 . p ar agr ap h 1 391
arbitration proceeding are given the same opportunities. The broad

scope of the paragraph 1 notice would be especially beneficial for those
parties that might be potentially affected by a preliminary order and/or
interim measure despite not being the ones against whom the orders or
measures were originally issued.66
The final portion of paragraph 1 specifies what information needs to be
included alongside the tribunal’s notice to the parties. Mindful of the fact
that in order to be able to present their case adequately, the parties should
have at their disposal all relevant facts and allegations; paragraph 1
requires the tribunal to inform them of every communication, oral or
written, produced or obtained in relation to the preliminary order and its
corresponding interim measure(s).67 Furthermore, paragraph 1 incorpo-
rates a non-exhaustive list of communications ‘between any party and the
tribunal in relation’68 to the ex parte preliminary order and its corre-
sponding interim measure, that should be provided to all the parties. This
list includes: (1) the request for the interim measure; (2) the application
for the preliminary order; (3) the preliminary order, if any; and (4) all
other communications, including those transmitted orally.
The fact that paragraph 1 refers to any communication ‘between any
party and the tribunal in relation thereto’69 encourages the arbitral
tribunal – as an abundance of caution – to include in its notice to the
parties every possible communication or exchange that it has had with
any of the parties, or which might prove relevant for them in presenting
their case. It is important to note, however, that verbatim records of oral
66
This would be, for example, the case of a preliminary order whereby the arbitral tribunal
suspends the effect of a corporate resolution that contains decisions that affect individuals
or entities – who may also be parties to the arbitration – other than the specific party
against whom the order was issued. The effect of the preliminary order on those
individuals or entities might have not been apparent to the arbitral tribunal when it
initially decided whether to grant the preliminary order. As a result, by giving notice to all
the parties to the arbitration, the tribunal would ensure that anyone potentially affected
by its preliminary order has a right to present their case and therefore help the tribunal
and the rest of the parties make the necessary adjustments.
67
Even though not expressly mentioned, ‘electronic communications’ should be deemed
included within the scope of ‘all other communications’ mentioned in para. 1 as they have
become the preferred of means of communication nowadays. A useful definition of
electronic communications is the one offered by the US Electronic Communications
Privacy Act (ECPA). According to § 2510, electronic communications include ‘any
transfer of signs, signals, writing, images, sounds, data or intelligence of any nature
transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric or
photo-optical system’. 18 USCA § 2510 (United States of America).
68
69
Ibid.

communications are not required,70 unless the tribunal deems it vital.

The tribunal shall have discretion as to the best way to fulfil its obligation
in light of the underlying principles of this provision and also in a manner
that preserves the integrity of the data.71 The main reason for the
tribunal’s obligation to notify all the parties of any documents and
communications related to the preliminary order and corresponding
interim measures is to allow the party against whom the preliminary
order was directed to present its case.
3. Paragraph 2
As we have established, the notification discussed in paragraph 1 above
should occur regardless of whether the preliminary order was issued or
not, and must also include all the parties. In the case of paragraph 2,
however, the arbitral tribunal’s duty to notify is only with regard to the
party against whom the order has been directed, so it can present its case.
The opening sentence of paragraph 2, ‘at the same time’, conveys the fact
that the arbitral tribunal’s duty to notify the party against whom a
preliminary order is directed shall happen concomitantly with the tribu-
nal’s decision to grant it. In practical terms, however, the notice can only
occur immediately after the granting of the preliminary order, following
the logical sequence of events.
Giving a party an opportunity to present its case is paramount when a
preliminary order has been issued (i.e. ‘directed’) against them. Paragraph
2 does not refer to situations where the arbitral tribunal has not yet issued
an interim form of protection, but might do so after hearing the party
against whom the order was requested. On the other hand, if the arbitral
tribunal has already rejected the application for an ex parte preliminary
order, there is obviously no need for the other party to be given an
opportunity to submit arguments or evidence as there would be nothing
to defend or argue against. In any case, if the application is rejected, the
other party will find out about its existence and of the arbitral tribunal’s
determination, when it is given notice under paragraph 1.
70
See Holtzmann et al. (n. 59), pp. 173–176.
71
On the importance of preserving the integrity of data shared in the context of interna-
tional arbitration, see ICC Commission, ‘An Updated Overview of Issues to Consider
When Using Information Technology in International Arbitration, Report on the ICC
Commission Arbitration and ADR Task Force on the Use of Information Technology in
International Arbitration’ (ICC, 2017).

Another important aspect of paragraph 2 is the breadth of the case

presentation afforded to the party against whom the preliminary order
has been directed. In this regard, when a case is to be presented, the
language of paragraph 2 is sufficiently broad to ‘encompass both a
hearing of the responding party and a written submission from that
party’.72 In practice, whether the party against whom the order has
been directed presents its case only through written submissions, oral
arguments or both will really depend on what the tribunal decides, what
the relevant institutional rules indicate, or what the parties have specifi-
cally agreed to. Nevertheless, it is crucial that, irrespective of the method
followed, the opportunity afforded to the party is sufficient, adequate,
full, fair and mindful of the urgency demanded by the nature of pre-
liminary orders and considerations of fundamental fairness.73
A final element of paragraph 2 refers to the time frame given to the
party against whom the order has been directed to present its case.
Similarly to the word ‘immediately’ used in paragraph 1 to convey that
an action should be carried out instantly, without interval of time and
without delay paragraph 2 uses the sentence ‘at the earliest practicable
time’ to convey that the party against whom the preliminary order was
directed should also present its case without delay.74 Naturally, the
specific meaning of ‘earliest practicable time’ has to be interpreted, in
each case, according to the legal provisions of the relevant State, the rules
of procedure chosen by the parties or the arbitral tribunal, all of which
may set forth a particular time frame.75
72
UN Doc. A/CN.9/WG.II/WP.121 (n. 31), 23, para. 80.
73
See e.g. Mullins v. Tennessee, 294 SW 3d 529, Supreme Court of Tennessee (2009) (‘The
“full and fair opportunity to litigate” requirement rests on considerations of fundamental
fairness’). See also L. Reed and S. Saleh, ‘Bon Courage, TRIBUNALS!’ (2015) 2 BCDR Intl
Arb. Rev. 5 (‘the maxim of a speedy conduct of the arbitral proceedings is clearly less
important than the overriding maxim to see to it that the parties have sufficient and
adequate opportunities to be heard’).
74
The omission of a specific time frame was intended to avoid over-regulating the issue and
to give way to the principles and particular rules of each State. See Holtzmann et al. (n.
59), pp. 173–176.
75
In some contexts, the sentence ‘at the earliest practicable opportunity’ means to raise a
claim ‘before appeal if the opportunity to do so is available’. Green v. State, 301 Ga. App.
866, 689 SE 2d 132 (2010). In other cases, it refers to the opportunity of appearing in
court, Caminetti v. Pacific Mut. Life Ins. Co. of Cal., 22 Cal. 2d 386, 139 P.2d 930 (1943).
The equivalent expression in the Spanish language, ‘tan pronto como sea posible’, has also
been interpreted to mean a period of twenty-four hours. In the matter of Banco de Paris,
File 3287/58, Decision of 23 April 1958, Third Chamber, Supreme Court of Justice
(Mexico).

394 article 1 7c: s pecific regime f or preliminary orders
4. Paragraph 3
Whereas paragraphs 1 and 2 require the arbitral tribunal to act immedi-
ately and without any delay, paragraph 3 adopts a more flexible approach
by requiring the arbitral tribunal to ‘decide promptly on any objection to
the preliminary order’.76 The decision of the arbitral tribunal in this
regard will obviously occur after an objection has been filed by a party.
Hence, if there is no objection, then the tribunal would have nothing to
decide about. Regarding the objecting party, paragraph 3 does not limit
this right to the party against whom the preliminary order is directed.
The language of the provision enables any party that is deemed affected
by the order to file an objection.77 The time frame given to the arbitral
tribunal to decide the objection would be naturally guided by any specific
provisions of the applicable arbitration law (i.e. the Model Law as
adopted by each State),78 the institutional arbitration rules79 or what
the arbitral tribunal may decide pursuant to the parties’ agreement.
5. Paragraph 4
Unlike the case of interim measures, which may be issued for as long as
the arbitral tribunal deems it appropriate, or until they are modified,
suspended or terminated,80 preliminary orders are only valid for twenty
days. This relatively short lifespan is first and foremost a burden for the
arbitrators. If they decide to issue an ex parte order, and then fail to
confirm, modify or revoke it after twenty days, this could indeed harm
76
Depending on the applicable law, a prompt decision could be a decision made within a
specific time period (see Voyles v. McKinney, 283 Ga. 169, 657 SE 2d 193 08 FCDR 71
(2008) (indicating a period of ninety days as a period to decide promptly) or left to the
discretion of the decision-maker. State v. Chesson, 948 So.2d 566, 568, Ala. Civ. App.
(2006) (indicating that the word ‘promptly’ means within a reasonable time, in light of all
the circumstances).
77
In the example referred to in n. 66, the party affected by the preliminary order could, in
addition to presenting its case, file an objection against it, as per para. 3.
78
Of the States that adopted the 2006 amendment to the Model Law, some chose not to
incorporate the regime on preliminary orders (e.g. Belgium, Peru and South Korea),
others simply copied it verbatim (e.g. Australia, Bahrain, Hong Kong, Costa Rica, Ireland
and Argentina) and a final group adopted it with some minor modifications (e.g. New
Zealand); but the provision on the objection to a preliminary order of art. 17C(3)
remained the same.
79
Regarding the leading institutional arbitration rules, with very few exceptions (e.g. Rules
of the Swiss Chambers’ Arbitration Institution, art. 26(3)), most of them preclude arbitral
tribunals from issuing ex parte orders.
80
See Model Law, art. 17D.

the parties. Furthermore, the limited duration of the order is also justified
by the need to balance – or minimise – any potential harm that might
result from having issued the preliminary order against a party that has
not yet been notified, and the need to afford the emergency protection
sought by the requesting party. The Model Law drafters considered that
twenty days was a sufficiently reasonable period for this type of ex parte
protection. The twenty-day period stated in paragraph 4 is the only fixed
term mentioned in article 17C regarding preliminary orders, and one of
the safeguards that was ‘central to the Working Group’s agreement to
authorize preliminary orders in the Model Law’.81 Paragraph 4 also states
that the twenty days shall run from the date when the arbitral tribunal
issued the preliminary order, and not from the date when the requesting
party filed its application. As we mentioned earlier, all the other para-
graphs of article 17C avoided the use of specific days, hours or other time
periods; and instead opted for terms like ‘immediately’, ‘at the earliest
practicable time’ and ‘promptly’. The expiration of the twenty-day time
limit marks the automatic termination of the preliminary order as such,
but the requesting party may still pursue – and the arbitral tribunal may
issue – an interim measure that adopts or modifies the preliminary order
and arguably extend the protection sought by the requesting party, in the
first place.
The second and last part of paragraph 4 establishes that the interim
measure issued to adopt or modify the preliminary order may only be
rendered ‘after the party against whom the preliminary order is directed
has been given notice and an opportunity to present its case’.82 In
practical terms, the issuance of an interim measure that adopts or modi-
fies the preliminary order has the effect of converting it ‘from an ex parte
to an inter partes one’.83 Such conversion occurs as a result of the
contentious phase marked by the notice given to all parties under article
17C(1) and the opportunity to present one’s case at the earliest practic-
able time as per article 17C(2).
Paragraph 4 does not state when exactly the interim measure that
adopts or modifies the preliminary order shall be issued; so, depending
on how long the arbitral tribunal has given the party to present its case, it
is possible for the interim measure to be issued before the preliminary
order elapses. If that were the case, then the requesting party would not
81
82
83

396 article 1 7c: s pecific r egime f or preliminary orders
suffer any adverse consequence as a result of the expiration of the

preliminary order. On the other hand, if the arbitral tribunal decided to
wait until after the preliminary order is elapsed to decide on the interim
measure, such delay might increase the risk of the measure being fru-
strated by the party against whom it is directed, now that the element of
surprise has disappeared.84
6. Paragraph 5
The final paragraph of article 17C sets forth one of the main differences
between preliminary orders and interim measures, which is that the
former are not subject to enforcement and do not constitute an award.
After all, ‘it would make no sense to seek inter partes enforcement if
secrecy was the object of the ex parte application to begin with’.85
Conversely, interim measures might potentially be subject to judicial
enforcement ‘upon application to the competent court’86 if certain con-
ditions are met.87 The possibility of being recognised and enforced,
alongside the ex parte nature of preliminary orders and the inter partes
nature of interim measures, are the most important differences between
these two forms of temporary protection available in the course of an
arbitration. As conceived by the Model Law, interim measures are meant
to ‘ensure the effectiveness of the award’88 and preliminary orders, on the
other hand, are intended ‘to make the interim measure effective’.89
Nevertheless, both are meant to be binding on the parties.90
The denial of judicial enforceability of preliminary orders is explained
in part by the due process concerns that might arise – in most legal
systems – regarding a decision that has been issued without giving both
parties prior notice and an opportunity to present their case. As a result,
it is highly unlikely that a State court would – at least in principle –
recognise and enforce any decision ordered by an arbitral tribunal
84
In any case, it is unlikely that an arbitral tribunal would decide to wait, after having ruled
that the situation was so grave and urgent to warrant the issuance of an ex parte order.
85
Menon and Chao (n. 60), pp. 13–17.
86
Model Law, art. 17H.
87
See Savola (n. 1), p. 85.
88
See L. E. Graham, ‘Interim Measures: Ongoing Regulation and Practices: A View from the
UNCITRAL Arbitration Regime’ in A. J. van den Berg (ed.), Fifty Years of the New York
Convention: ICCA International Arbitration Conference (Kluwer, 2009), pp. 553–555.
89
Ibid.
90
Ibid., pp. 539, 554, 558, 566 (explaining that while interim measures and preliminary
orders are binding on the parties, only the former might be subject to court enforcement).

without previously ensuring that the most basic due process safeguards
are met.91 Furthermore, according to the ICC – which participated as an
observer to the Working Group sessions that drafted article 17C – the
possibility of an arbitral tribunal issuing ex parte measures was also
unlikely in practice. To illustrate this point and based on the ICC’s
institutional experience administering ‘over 13,000 arbitrations through-
out the world over the past eighty years’ (as of 2004),92 the ICC reported
that not a single party that sought interim measures from arbitral tribu-
nals in ICC-administered arbitrations did so on an ex parte basis.93
Not only arbitral institutions but also State courts have difficulty
accepting or endorsing the possibility of granting ex parte interim powers
to the arbitral tribunal, despite the characterisation of this possibility as a
trend during the Working Group deliberations about article 17C.94 It is,
of course, possible that there are cases in which the particular situation of
the parties and other circumstances necessitate the arbitral tribunal’s
swift intervention, and that the element of surprise makes a difference
in the life of a case or to a party that otherwise would not stand a chance
in benefiting from such protection. There are also national laws that give
arbitral tribunals powers analogous to State courts, including, inter alia,
the possibility of issuing ex parte orders.95 The reality, however, has
shown that more than a decade after the inclusion of article 17C in the
Model Law, ex parte preliminary orders are scarcely used or not used at
all, even in those countries where it is legally possible to do so. Some have
opined that, among other reasons, arbitral tribunals are still ‘reluctant to
issue ex parte orders for fear that the enjoined party may lose confidence
in the arbitration if such an order is granted very early in the proceedings
and based upon only one party’s version of the facts’.96 Perhaps this is
91
Lack of due process is, after all, a ground for refusing to recognise and enforce an arbitral
award under art. V(1)(b) of the New York Convention. See A. J. van den Berg, ‘New York
Convention of 1958: Refusals of Enforcement’ (2008) 18 Bull. ICC Ct Intl Arb. 21.
92
UNCITRAL, Settlement of Commercial Disputes: Interim Measures of Protection.
Proposal by the International Chamber of Commerce, UN Doc. A/CN.9/WG.II/
WP.129 (3 February 2004), 2.
93
Ibid.
94
But see G. Born, International Commercial Arbitration, 2nd edn (Kluwer, 2014), pp. 2509,
2510 (‘In practice, arbitral tribunals are ordinarily unlikely to consider, much less grant,
provisional measures on an ex parte basis. To date, only a few jurisdictions have adopted
the Model Law’s provisions for ex parte relief ’).
95
See e.g. with regard to Swiss Law, G. V. Segesser and C. Bogg, ‘Interim Measures’ in E.
Geisinger, N. Voser and A. M. Petti (eds), International Arbitration in Switzerland: A
Handbook for Practitioners, 2nd edn (Kluwer, 2013), pp. 116–118.
96
Ibid.

why others have characterised article 17C (alongside article 17B) as a

‘non-functional appendage’97 and a potential cause for distrust in the
arbitral process. Interestingly, even the most vocal opponents of article
17C praised the efforts of UNCITRAL to incorporate the recent trends in
the field of international arbitration in the revised text of the Model Law.
The possibility of empowering the arbitral tribunal to order interim relief
may help advance the reasons why the parties ‘chose international arbi-
tration as a dispute resolution method in the first place’.98 Nevertheless,
they also pointed out that the unenforceability of a preliminary order
‘would rob these measures of much of their effectiveness since juridical
persons, in particular banking establishments, which the arbitrator will
approach to obtain the execution of such orders, would be unable to
comply without a writ of enforcement’.99
97
Born (n. 94), pp. 2510–2511. (‘As discussed above, under existing international arbitra-
tion regimes, an arbitral tribunal’s orders have no direct coercive effects and therefore
cannot accomplish the purpose of ex parte relief to be issued by an arbitral tribunal (e.g.
when a party must be given no chance to evade a binding order) are exactly those in which
articles 17B and 17C fail to provide relief. At best, therefore, articles 17B and 17C are a
non-functional appendage; at worst, if ever used, which fortunately is unlikely, they will
foster distrust of the arbitral process and cause wasted expense’).
98
Some of those reasons are, for example, the desire of the parties ‘to resolve any disputes
confidentially before a neutral tribunal with special expertise. It can also happen that a
competent State court lacks the authority to grant the type of interim measure sought; the
proceedings before the court may be too slow and cumbersome; or the applicant may
have a reason to suspect the court’s impartiality.’ Savola (n. 1), p. 74.
99
UNCITRAL, Draft Legislative Provisions on Interim Measures and the Form of
Arbitration Agreement, Comments Received from Member States and International
Organizations, UN Doc. A/CN.9/609/Add. 5 (30 May 2006), 2.

Article 17D
Modification, Suspension, Termination

m i c h a e l po l k i n g h o r n e a n d m o u ni a l a r b a o u i
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.
The travaux préparatoires reveal that the drafters of the 1985 version of
the Model Law were concerned with two issues with regard to interim
measures:
1. ‘Should the arbitral tribunal be empowered to take interim mea-
sures of protection even without special authorization by the
parties?’1
2. ‘Should the model law deal with the involvement of courts in this
respect?’2
It appears that the question of modification, suspension or termina-
tion of interim measures was not a concern at that time, as it was not
raised by the Working Group or the Commission. One could argue that
one reason behind this is the failure of most national laws to address
this somewhat specific matter.3 In 1985, article 17 (regarding the power
of arbitral tribunals to order interim measures) was adopted, with no
1
UNCITRAL, Possible Features of a Model Law on International Commercial Arbitration:
Questions for Discussion by the Working Group, UN Doc. A/CN.9/WG.II/WP.35 (1
December 1981), 307.
2
Ibid.
3
See generally L. W. Newman and C. Ong, Interim Measures in International Arbitration
(Juris, 2014).
399

400 a r t i c l e 1 7 d : mo d i fi c a t i o n , s u s p e n s i o n , t e r m i n a t i o n
reference to the authority of the arbitral tribunal to review an interim

measure.
The revision of article 17 of the 1985 Model Law was triggered by
a note prepared by the Secretariat on the ‘Possible Future Work in
the Area of International Commercial Arbitration’4 in 1999, which
discussed some of the issues identified in arbitral practice, including
the question of the enforceability of interim measures of protection.5
The Working Group discussed the proposal to prepare a legislative
regime governing the enforcement of interim measures of protection
ordered by arbitral tribunals.6 It is in this context that the question
of the review of an interim measure was put forward, for the first
time.7
Although the Working Group acknowledged that ‘[i]t is in the nature
of an interim measure of protection that it may be modified or termi-
nated by the arbitral tribunal before the issuance of the award’,8 the
Working Group did not consider adding article 17D until its thirty-
sixth session in 2002. The first proposal prepared by the Secretariat
read as follows:
(8) An interim measure of protection may be modified or terminated [on
the request of a party] if the circumstances referred to in paragraph (2)
have changed after the issuance of the measure.9
At its thirty-seventh session in October 2002, the Working Group

decided to continue its deliberations on the basis of a proposal submitted
by the United States, which was prepared taking into account the
Secretariat’s earlier proposal.10 The proposition was reformulated to
read:
4
UNCITRAL, Possible Future Work in the Area of International Commercial Arbitration,
UN Doc. A/CN.9/460 (6 April 1999).
5
6
Ibid.
7
UNCITRAL, Possible Uniform Rules on Certain Issues Concerning Settlement of Commercial
Disputes: Conciliation, Interim Measures of Protection, Written Form of Arbitration
Agreement, UN Doc. A/CN.9/WG.II/WP.108 (14 January 2000), paras 66 and 82.
8
UNCITRAL, Settlement of Commercial Disputes – Possible Uniform Rules on Certain
Issues Concerning Settlement of Commercial Disputes: Written Form for Arbitration
Agreement, Interim Measures of Protection, Conciliation, UN Doc. A/CN.9/WG.II/
WP.110 (22 September 2000), para. 64.
9
UNCITRAL, Settlement of Commercial Disputes – Preparation of Uniform Provisions on
Interim Measures of Protection, UN Doc. A/CN.9/WG.II/WP.119 (30 January 2002), 23.
10
UNCITRAL, Settlement of Commercial Disputes – Interim Measures of Protection, UN
Doc. A/CN.9/WG.II/WP.123 (3 April 2003), para. 2.

1 . t ra v a u x p répa ra toir es 401
(5) The arbitral tribunal may modify or terminate an interim measure of
protection at any time [in light of additional information or a change of
circumstances].11
The Working Group observed that ‘given the extraordinary nature of

such measures, if a tribunal had the power to grant such measures then
it should also have the power to modify or terminate them’ with no
limitation concerning the discretion of the arbitral tribunal.12 The text
in brackets, namely ‘in light of additional information or change of
circumstances’, was not however retained, as it was widely felt to be
superfluous and risked being misread as restricting the discretion of
arbitrators when deciding whether to grant an interim measure in the
first place.13
Further discussions arose as to whether a modification or termi-
nation could be ordered by a tribunal acting on its own initiative.14
It was suggested in this regard that only specific circumstances might
justify such a modification or termination.15 As a result of these
discussions, it was agreed that an arbitral tribunal may only modify,
suspend or terminate an interim measure on its own initiative in
‘exceptional circumstances’ and ‘upon prior notice to the parties’.16
The drafters of the Model Law foresaw that a reference to ‘excep-
tional circumstances’ might be overly restrictive. A suggestion was
made that broader wording, along the lines of ‘in light of additional
information or a change of circumstances’, might be preferable.17
However, after discussions, the Working Group decided to retain the
language of this provision as is.18 It was further agreed that the provi-
sion should be amended to clarify that irrespective of whether it acted at
11
Ibid., 2. See also the Secretariat Proposal, which read: ‘The arbitral tribunal may
modify or terminate an interim measure of protection at any time in light of
additional information or a change of circumstances.’ UNCITRAL, Report of the
Working Group on Arbitration on the Work of Its Thirty-Sixth Session, UN Doc. A/
CN.9/508 (12 April 2002), 22. The Proposal by the United States of America read as
follows: ‘The arbitral tribunal may modify or terminate an interim measure of
protection at any time.’ Proposal by the United States of America, UN Doc. A/
CN.9/WG.II/WP.121 (7–11 October 2002), 3.
12
13
Ninth Session, UN Doc. A/CN.9/545 (8 December 2003), para. 36.
14
15
Ibid., para. 40.
16
17
Ibid., para. 40.
18
Ibid., para. 40.

402 a r t i c l e 17 d : mo d i fi c a t i o n , su s p e n s i o n , t e r m i n a t i o n
the request of a party or on its own initiative, the arbitral tribunal could
only modify or terminate the interim measures issued by that arbitral
tribunal.19
The Working Group agreed to amend the wording of this paragraph
accordingly,20 and noted that, for the sake of completeness and consis-
tency with other paragraphs, the words ‘modify or terminate’ would be
amended to read ‘modify, suspend or terminate’.21 Article 17(6) was thus
amended to reflect these considerations.22
Finally, while the Working Group had initially proposed that this
provision, among others, would also apply to preliminary orders that
the arbitral tribunal may grant, it was suggested to restructure the provi-
sion by grouping paragraphs relating to similar issues.23 Draft article 17D
finally read as follows:
The arbitral tribunal may modify, suspend or terminate an interim mea-
sure 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.24
2. The Temporary Nature of Provisional Measures

and Preliminary Orders
The provisional nature of interim measures and preliminary orders and
the fact that they have no res judicata effect implies that the parties may at
any point during the course of the proceedings request their modifica-
tion, suspension or termination. This was amply illustrated in the ICSID
case of Pey Casado.25
19
Ibid., para. 41.
20
Doc. A/CN.9/WG.II/WP.128 (29 January 2004), para. 26.
21
UN Doc. A/CN.9/545 (n. 13), para. 35; UN Doc. A/CN.9/WG.II/WP.128, ibid., para. 24.
22
Doc. A/CN.9/WG.II/WP.131 (26 July 2004), para. 4.
23
of Its Forty-Third Session, UN Doc. A/CN.9/589 (12 October 2005), para. 106;
UNCITRAL, Settlement of Commercial Disputes – Interim Measures of Protection,
UN Doc. A/CN.9/WG.II/WP.141 (5 December 2005), paras. 1–3.
24
UN Doc. A/CN.9/WG.II/WP.141 (n. 23), 4.
25
Victory Pey Casado v. Chili, Decision sur les Mesures Conservatoires sollicitées par les
Parties dans l’Affaire, ICSID Case No. ARB/98/2, 25 September 2001, para. 14 (free
translation from the French original). See also ICSID Case No. ARB/08/20, Millicom
Intl Operations BV and Sentel GSM SA v. Republic of Senegal, Decision on the Application
of Provisional Measures, 9 December 2009, para. 38.

3 . th e in i t i a t i v e to mo d i f y , s us pe n d or t er m i n a t e 403
Interim measures should thus lapse automatically upon the termina-

tion of the proceedings, whether upon the rendering of the award, or
upon the discontinuance of the proceedings, in accordance with article
32 of the Model Law. Although this is not explicitly provided for in the
Model Law, it clearly seems to be a necessary consequence of their
provisional nature.
3. The Initiative to Modify, Suspend or Terminate Interim

Measures or Preliminary Orders
Article 17D of the Model Law provides that a tribunal can order the
modification, suspension or termination of interim measures or preli-
minary orders at the request of a party or on its own initiative. Of course,
the initiative will generally come from an interested party. Nevertheless,
as discussed below, this is an important issue because an arbitral tribu-
nal’s scope of discretion to modify, suspend or terminate an interim
measure or preliminary order varies depending on whether the tribunal
is acting upon the request of a party or its own initiative.
Initially, there were two diverging views among the members of the
Working Group regarding this matter. Some suggested that in order to
ensure consistency with the consensual nature of arbitration and the
impartiality that should be observed by an arbitral tribunal, an interim
measure granted at the request of a party should only be terminated at the
request of that party.26 It was noted that ‘a party who had sought and
obtained an interim measure had a legitimate expectation that the mea-
sure would produce its intended effect over its intended duration’.27
Those of a contrary view held that ‘a degree of discretion was necessary
to make it possible for the arbitral tribunal to correct the serious con-
sequences of an interim measure, particularly where that measure
appeared to have been granted on an erroneous or fraudulent basis’.28
With a view to reconciling these concerns, it was suggested that the
text of article 17D emphasise the obligation of the parties to inform the
arbitral tribunal of any change in the circumstances on the basis of which
the interim measure had been granted29 and clearly establish that ‘while
under normal circumstances an interim measure could only be termi-
nated or modified at the request of a party, specific circumstances might
26
UN Doc. A/CN.9/545 (n. 13), para. 37.
27
Ibid., para. 37.
28
Ibid., para. 38.
29
Ibid., para. 39.

404 article 1 7d : modi fication, s uspension, termination
justify modification or termination of an interim measure by the arbitral

tribunal on its own initiative’.30
The Working Group drew an analogy in this respect with article 33(2)
of the Model Law, which provides the tribunal with the power to correct
any errors in computation, any clerical or typographical errors or any
errors of a similar nature, on its own initiative within thirty days of the
date of the award.31
The Working Group also noted that the tribunal’s power to modify,
suspend or terminate an interim measure or a preliminary order on its
own initiative is equally linked to the obligation of the party that obtained
the order or measure to update the tribunal on changes and other
circumstances as now set forth in article 17F. Indeed, it is common
practice, when granting interim measures, for arbitrators to expressly
require any party to give prompt disclosure of any material change in the
circumstances which formed the basis for granting the interim measures.
All in all, as noted by a commentator, ‘the tribunal must be able to react to
what it is told’.32
4. Review upon a Party’s Request

Article 17D of the Model Law provides that ‘[t]he arbitral tribunal may
modify, suspend or terminate an interim measure or a preliminary order
it has granted, upon application of any party’. Initially, the Working
Group considered allowing an arbitral tribunal acting on the request of
a party to modify, suspend or terminate a measure or order only if the
conditions for granting the measure or order were no longer met, or if
there was a change in the circumstances under which the measure or
order had been granted.33 The Working Group concluded, however, that
such conditions would ‘unduly’ restrict the discretion of arbitrators when
making the decision to grant an interim measure.34
As a result, article 17D does not include any language restricting the
tribunal’s authority, and it appears that a tribunal acting upon a request
30
Ibid., para. 40.
31
32
H. M. Holtzmann, J. E. Neuhaus, E. Kristjansdottir and T. W. Walsh, A Guide to the 2006
Legislative History and Commentary (Kluwer, 2005), pp. 176–177.
33
UNCITRAL, Report of Working Group II (Arbitration) on the Work of Its Thirty-
Seventh Session, UN Doc. A/CN.9/523 (11 November 2002), para. 51.
34
UN Doc. A/CN.9/545 (n. 13), para. 36.

4 . r e v i e w u p o n a p a r t y’s r eque st 405
of a party has full discretion to modify, suspend or terminate any

measure or order that it has granted.35 Although article 17D does not
in any way define cases that would justify that a tribunal grant a party’s
request to modify, suspend or terminate an interim measure, the 2000
Report of the Secretary-General nevertheless provides two examples in
this regard:
– the respondent is able to show that it has sufficient assets in the

jurisdiction, which may allow the arbitral tribunal to lift or modify
an earlier order prohibiting the removal of certain assets from the
jurisdiction;36 and
– the danger of irreparable damage as the ground for continued perfor-
mance of a construction contract may disappear, which would permit
the earlier interim order to be amended.37
It is generally recognised in international arbitration that a change
of circumstances during the course of the arbitral proceedings may
trigger a request for leave to review the granted interim measure or
preliminary order. This statement also applies more broadly in the
context of international law. For example, under article 76(1) of the
Rules of the International Court of Justice, ‘[a]t the request of a party
the Court may, at any time before the final judgment in the case,
revoke or modify any decision concerning provisional measures if, in
its opinion, some change in the situation justifies such revocation or
modification’. But there may be limits. In such a situation, the
requesting party would have to specify the change in the situation
considered to be relevant.38 Thus, the modification of provisional
measures could or should be confined to the requesting party’s
requests. Nevertheless, ICJ case law has demonstrated that the court
considers itself free to appreciate the situation and to order such
measures as it deems appropriate.39
Interestingly, the drafters of the Model Law had contemplated the
addition of general language such as ‘in the light of additional
35
Holtzmann et al. (n. 32), p. 176.
36
37
Ibid.
38
ICJ Rules 1978, art. 76(2).
39
Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Request for the modification of the Order of 8 March 2011, ICJ, Order of 16 July 2013,
para. 17.

406 article 1 7d: modification, s uspension, termination
information’ or ‘change of circumstances’.40 However, it was decided

not to include such terms as they could again be misread as restricting
the arbitrators’ discretion in deciding whether to grant an interim
measure at all.41 As discussed above, the Working Group had observed
that ‘given the extraordinary nature of such measures, if a tribunal had
the power to grant such measures then it should also have the power to
modify or terminate them’ with no limitation to the discretion of the
arbitral tribunal.42
5. Review upon the Tribunal’s Initiative

While article 17D grants a tribunal full discretion to review an interim
measure or preliminary order upon a party’s request, it nevertheless
seems to limit the tribunal’s power in two regards when acting upon its
own initiative.
First, article 17D recognises a substantive limitation to the tribu-
nal’s discretion. Only ‘exceptional circumstances’ may justify modifi-
cation, suspension or termination of an interim measure or a
preliminary order by the tribunal on its own initiative. The question
thus arises as to what is covered by this phrase. Initially, the drafters
considered that ‘specific’ circumstances might justify modification or
termination of an interim measure by the arbitral tribunal on its own
initiative. This idea was then reflected in what appears to be a
stronger term: ‘exceptional’.43
Second, article 17D also entails a procedural limitation. It stipulates
that the tribunal may amend its measure or order only upon prior notice
to the parties. This limitation does not, however, seem compelling, as it is
not accompanied by a reference to the parties’ ‘opportunity to be heard’.
For example, the corresponding ICSID Rule – namely rule 39(4) –
provides expressly that ‘[t]he Tribunal shall only recommend provisional
measures, or modify or revoke its recommendations, after giving each
party an opportunity of presenting its observations’. This rule applies
when the amendment is requested by a party, as well as where it is
triggered by the tribunal’s initiative.
Of course, the purpose of this limitation is to avoid unwelcome
surprises. However, article 17D does not establish any requirement
40
UN Doc. A/CN.9/545 (n. 13), para. 36.
41
Ibid.
42
A/CN.9/WG.II/WP.123 (n. 10), para. 20.
43
UN Doc. A/CN.9/545 (n. 13), para. 40.

6. form of interim mea sures a nd preliminar y or ders 407
that an arbitral tribunal invite the parties to comment upon its initia-
tive. Nevertheless, it is in the authors’ experience customary for arbitral
tribunals to invite parties to exchange written submissions on the
subject of provisional measures and there seems little reason not to do
the same in the context of changes to interim measures or provisional
orders.
The Rules are equally and logically silent on whether a hearing
should be granted to a party in such a situation. Nevertheless, if a
party requests the tribunal to grant an opportunity to present its case,
consistent with article 17(1) of the 2010 UNCITRAL Arbitration
Rules, the tribunal would likely be expected to provide such an
opportunity.
6. Form of Interim Measures and Preliminary Orders

In a note presented to UNCITRAL delegates, the Secretariat stated that
interim measures of protection ‘may be in the form of an order by the
arbitral tribunal or in the form of an interim “award”’.44 Notably, article
17D does not address this distinction,45 despite the fact that article 17
(2) of the Model Law expressly provides that ‘[a]n interim measure is
any temporary measure, whether in the form of an award or in another
form’.
Under the corresponding provision of the 1976 UNCITRAL
Arbitration Rules, a chief factor in determining whether a tribunal may
review an interim measure is whether the measure is contained in an
instrument that is ‘final’, because unlike an order, an award granting
interim measures is ‘final’ and therefore not ordinarily subject to revi-
sion.46 The Working Group in charge of the revision of the UNCITRAL
Arbitration Rules followed the approach taken in the 2006 amendments
to the Model Law to eliminate the distinction between ‘award’ and
‘order’,47 and accordingly deleted the words ‘[s]uch interim measures
may be established in the form of an interim award’ from the
44
UN Doc. A/CN.9/460 (n. 4), para. 116.
45
The Model Law expressly states that preliminary orders do not constitute awards, in art.
17C(5) of the Model Law, but this is as far as it goes.
46
D. Caron, ‘Interim Measures of Protection: Theory and Practice in Light of the Iran-
United States Claims Tribunal’ (1986) ZaôRV 513.
47
D. Caron and L. Caplan, The UNCITRAL Arbitration Rules: A Commentary, 2nd edn
(Oxford University Press, 2013), p. 525.

408 a r t i c l e 1 7 d : mo d i fic a t i o n , su s p e n s i o n , t e r m i n a t i o n
corresponding article in the revised Arbitration Rules.48 The rationale

was amply explained by the Working Group.49
In practice, UNCITRAL tribunals have framed decisions on interim
measures both as awards50 and as orders,51 and will likely continue to do
so.52
The question concerning the form of the measure is not appropriate
for preliminary orders, which are by essence temporary, as under the
Model Law they expire after twenty days from the date of their issuance
by the arbitral tribunal.53 Moreover, article 17C(5) expressly provides
that ‘[s]uch a preliminary order does not constitute an award’.
7. Tribunal or Court-Ordered Interim Measures

and Preliminary Orders
Article 17D regulates an arbitral tribunal’s authority to modify, suspend or
terminate interim measures or preliminary orders that the tribunal has itself
granted. The terms ‘it has granted’ were retained to reflect the decision of the
Working Group that the arbitral tribunal could only modify or terminate the
interim measure issued by that tribunal.54 However, the Model Law imposes
no restrictions on the right of a party to apply to any competent court for the
grant of interim measures and, as such, parties to a dispute may choose to
take their application for interim measures to that court. The question thus
arises as to whether an arbitral tribunal can suspend, modify or terminate
court-ordered measures. Some UNCITRAL delegates supported the view
that ‘there could be good reasons for allowing the tribunal, once constituted,
to modify such measures’.55 Ultimately, however, the Working Group
decided that this issue should not be dealt with in the Model Law.56
48
UNCITRAL Arbitration Rules, art. 26(2).
49
UNCITRAL, Report of Working Group II (Arbitration) on the Work of Its 47th Session,
UN Doc. A/CN.9/641 (27 September 2007), para. 51.
50
See e.g. Chevron Corp. (USA) and Texaco Petroleum Corp. (USA) v. Republic of Ecuador
(UNCITRAL), First Interim Award on Interim Measures (25 January 2012); Second
Interim Award on Interim Measures (16 February 2012).
51
See e.g. South American Silver Ltd v. Bolivia (UNCITRAL), Procedural Order No. 10 (11
January 2016).
52
J. Paulsson and G. Petrochilos, UNCITRAL Arbitration (Kluwer, 2017), pp. 227–228.
53
54
UN Doc. A/CN.9/545 (n. 13), para. 41.
55
UNCITRAL, Report of Working Group II (Arbitration) on the Work of Its Fortieth
Session, UN Doc. A/CN.9/547 (16 April 2004), paras 102–104.
56
Ibid., para. 104.

8. damages claim 409
Whether an arbitral tribunal can vary or discharge a court-ordered

interim measure remains a matter of conjecture, and may well depend
also on the wording of the order and the lex arbitri of the arbitration. This
is provided for in section 44(6) of the English Arbitration Act 1996.
Conversely, article 26 of the Swiss Concordat precludes any modification
by an arbitral tribunal of interim measures ordered by a judicial author-
ity, as it grants local courts exclusive jurisdiction to order interim mea-
sures.57 This was confirmed in ICC Case No. 4998 of 1985, where the
tribunal held that:
Arbitrators can only propose conservatory or provisional measures; for
which measures the jurisdiction of the arbitral tribunal is precluded.
Article 8–5 of the Rules of the Court of Arbitration of the ICC and
Article 26 of the Swiss Concordat on Arbitration concern specifically
the jurisdiction of arbitrators to order provisional measure, but it is
clear that it would be even more serious to amend a measure already
ordered by an ordinary judicial authority.58
Moreover, parties could, of their own initiative, revert to the court that
issued the measure to seek review of that measure, or they could alter-
natively ask the court to include within the interim measure the right for
the arbitral tribunal to modify that measure once it was established. In
addition, it remains always open to the arbitral tribunal to require the
parties to revert to the court with any decision made by the arbitral
tribunal.59
8. Damages Claim
In case the interim measure proves to be unjustified, some legal systems
provide for the right of the respondent to claim damages that it has
incurred as a result of the interim measure.60 Under article 26 of the
UNCITRAL Arbitration Rules, a party may be liable for any damages
caused by an interim measure to any party in the event the tribunal later
57
Article 26 of the Swiss Concordat reads as follows: ‘1. Les autorités judiciaires ordinaires
sont seules compétentes pour ordonner des mesures provisionnelles. 2. Toutefois, les
parties peuvent se soumettre volontairement aux mesures provisionnelles proposées par
le tribunal arbitral.’ (Free translation: Ordinary judicial authorities have exclusive jur-
isdiction to order provisional measures. 2. However, parties may voluntarily comply with
provisional measures proposed by the arbitral tribunal.)
58
ICC Case No. 4998 of 1985, in Collection of ICC Arbitral Awards 1986–1990, 301.
59
60
See Austrian Enforcement Act, s. 394(1).

410 article 1 7d: modification, suspension, termination
determines that the measure should not have been granted in the cir-
cumstances then prevailing.61
With regard to the Model Law, the situation remains unclear. During
the discussions on the text of the draft, the Working Group noted that in
the event that a modification or termination of a measure caused damage
to a party, ‘it was not clear who would be liable for such damages’.62 This
statement was made in the context of discussions regarding the discretion
of the tribunal, in particular as some opposition was expressed to provid-
ing the arbitral tribunal with the power to modify or terminate an interim
measure without a request by the parties and without hearing from them.
This seems to envisage the possibility of holding an arbitral tribunal liable
for damages caused to a party if the tribunal’s decision to modify or
terminate an interim measure is based upon its own initiative and
discretion.
9. In Practice
The power of an arbitral tribunal to review an interim measure can also be
explicitly stated in the text of the measure issued by the tribunal. In an
order dated 19 December 2008, an arbitral tribunal ruling on a request for
security for costs stated that ‘[t]his decision, however, is without prejudice
to a possible reconsideration of such a request at a subsequent stage of the
arbitral proceedings’.63 This is arguably due to the fact that such power is
not always warranted by the applicable institutional rules. For example, the
ICC, the LCIA and the SCC do not envisage the power of tribunals to
modify or terminate interim measures in their respective rules.64
In addition to the power of the arbitral tribunal to modify the interim
measures that it has granted in arbitration, it would not be unusual for
arbitral tribunals to adopt measures that are different from those
requested.65 For instance, the Eritrea/Ethiopia Commission has refused
61
A. W. Rovine, ‘The 2010 Revision of the UNCITRAL Arbitration Rules’ in A. W. Rovine
(ed.), Contemporary Issues in International Arbitration and Mediation: The Fordham
Papers (Leiden: Martinus Nijhoff, 2011), p. 233.
62
UN Doc. A/CN.9/523 (n. 33), para. 51.
63
Order No. 1 dated 19 December 2008, cited in B. Berger, ‘Security for Costs: Trends and
Developments in Swiss Arbitral Case Law’ (2010) ASA Bull. 59.
64
Conversely, the HKIAC, the CRCICA, the BVIAC, the SCAI and the DIS contain specific
provisions regarding the power of an arbitral tribunal to modify, suspend or terminate an
interim measure.
65
S. Forlati, The International Court of Justice: An Arbitral Tribunal or a Judicial Body?
(Springer, 2014), pp. 91–92.

9 . i n pr ac tic e 411
to adopt the provisional requests called for by Eritrea and instead

adopted different measures directed at both parties, on the basis of
article 27(1) of its Rules of Procedure.66 This approach echoes the
position adopted by the ICJ under article 75(2) of the Rules of Court.67
It can thus be seen that while questions remain, the approach of the
arbitral tribunal itself can often be critical.
66
Article 27(1) of the Eritrea–Ethiopia Boundary Commission Rules of Procedure reads: ‘In
addition to making a final decision regarding the delimitation of the border, the
Commission shall be entitled to make any necessary interim, interlocutory, or partial
decisions.’ The Commission thus adopted a broad reading of its powers in accordance
with the ICJ’s approach. Eritrea–Ethiopia Boundary Commission, Rules of Procedure, p.
11, art. 27(1).
67
See ICJ Rules 1978, art. 75(2). See Certain Activities in the Border Area – Construction of a
Road in Costa Rica, Order of 22 November 2013, p. 17, para. 52: ‘The Court recalls that it
has the power, under its Statute, when a request for provisional measures has been made,
to indicate measures that are in whole or in part other than those requested.’

Article 17E
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 preli-
minary order to provide security in connection with the order
unless the arbitral tribunal considers it inappropriate or unneces-
sary to do so.

Article 17E descends, in part, from the original text of article 17. It is
useful, therefore, to start the analysis of the provision’s background from
an overview of the 1985 version of article 17, in the part where it deals
with the provision of security.
In the 1985 version of the Model Law, article 17 stated that ‘the arbitral
tribunal may require any party to provide appropriate security in con-
nection with’ an interim measure it has issued. The Working Group used
as a drafting basis article 26(2) of the 1976 version of the UNCITRAL
Arbitration Rules, but introduced a significant innovation: while in the
1976 Rules security could only cover the costs of the measure, the Model
Law adopted a broader wording, with no limitation to costs, but a generic
reference to the criterion of appropriateness.
The reference to ‘appropriate security’ was introduced at a relatively
late stage. In the original draft, the arbitral tribunal had the power to
‘require any party to provide security for the costs’ of the interim
measure, thus mirroring the approach of the 1976 UNCITRAL
Arbitration Rules. It was noted, however, that a party against whom an
interim measure is issued may need to recover not only the costs directly
arising out of the measure, but also the damages that the measure has
412

caused.1 The Commission, while agreeing that security should not be

limited to costs, proved reluctant to include a reference to damages, ‘since
the model law should not deal with questions relating to the basis or
extent of possible liability for damages’.2 The insertion of the adjective
‘adequate’, hence, emerged as an intermediate solution, acknowledging
the need to extend the scope of security beyond the costs, but at the same
time avoiding specifying whether the party would be entitled to claim
damages if eventually successful on the merits of the case.
The transposition of the original version of article 17 into article 17E
(1), in 2006, did not prove particularly controversial: the new provision,
like its predecessor, enables arbitrators to require the provision of ‘ade-
quate security in connection with the measure’. There is, however, a
notable difference between the two texts: while according to the 1985
version the arbitrators could require ‘any party’ to provide security, after
the 2006 amendments this possibility is limited to the party requesting
the measure. This limitation does not have a discernible impact on the
way in which article 17E works in the majority of cases, as security must
normally be provided by the party requesting the measure and not by the
one against whom the measure is issued. Nonetheless, the 1985 drafters
had considered the (exceptional) opposite case, where security must be
posted by the party at the receiving end of an interim measure.3 The draft
initially considered by the Working Group authorised the tribunal to
require ‘the requesting party and4 any other party’ to provide security.5
1
CN.9/263 (19 March 1985), 31.
2
Report of UNCITRAL on the Work of Its Eighteenth Session, UN Doc. A/40/17 (21
August 1985), 32–33.
3
The choice to refer to ‘any party’ without further specifications was later explained as a
corollary of the principle of party equality in arbitration: Report of the Working Group on
Arbitration on the Work of Its Fortieth Session, UN Doc. A/CN.9/547 (16 April 2004), 25,
para. 96. Some national authorities have considered the possibility of requiring the
defendant to provide security, in order to ensure compliance with an interim measure
issued by the tribunal. In this case, security would operate like some kind of anticipated
astreinte, whereby the party is asked to pay a penalty for non-compliance upfront, and will
be able to recover it afterwards if compliant: Zhenhua Logistics (Hong Kong) Co. v.
Metamining, Inc., No. C-13–2658 EMC, 2013 WL 3360670, 2 (ND Cal., 3 July 2013).
4
It was later noted that the word ‘or’ was more appropriate than ‘and’: Settlement of
Commercial Disputes: Interim Measures of Protection – Note by the Secretariat, UN
Doc. A/CN.9/WG.II/WP.131 (26 July 2004), 7, para. 20. Eventually, however, the reference
to ‘any other party’ was deleted, thus eliminating the need to choose between the two
words.
5
UN Doc. A/CN.9/547 (n. 3), 18.

414 article 1 7e: p rovis ion of security
The members discussed whether the reference to ‘any other party’ served
any practical purpose, or whether it should rather be regarded as super-
fluous and hence be deleted. Some members noted that it was ‘essential’
to maintain it, in order to address some rare but relevant situations.6 It
was argued, in particular, that the party against whom the measure is
issued may be required to provide security, when he or she applies to
obtain the lifting of that measure.7 Eventually, however, it was pragma-
tically decided that article 17E should only refer to the party requesting
interim relief.
The second paragraph of article 17E relates to ex parte preliminary
orders and, therefore, has no predecessor in the 1985 version of the
Model Law. If the arbitral tribunal grants provisional relief to party A
before having afforded party B the opportunity to be heard, there is a high
possibility that the measure will be subject to modifications (or even
revocation) in the future, once party B is able to present its case. In this
situation, hence, the provision of security is particularly appropriate, in
order to protect the party against whom the measure is issued. For this
reason, the Working Group had initially considered requiring the provi-
sion of security as a necessary condition for the granting of ex parte
measures of protection.8 In later drafts, however, the Working Group
adopted a relatively more flexible approach, whereby the party applying
for an ex parte measure is normally required to provide security, but
exceptions are possible if the tribunal considers it ‘inappropriate or
6
7
Ibid., with specific reference to the arrest of a ship. According to this view, security may be
used only to protect the party against whom the measure is issued, but also to ensure that
the party that had requested the measure is not prejudiced by its lifting. This situation
resembles an order to provide security for payment of the future award: see the commen-
tary to art. 17.
8
UN Doc. A/CN.9/523 (17 November 2002), 11, para. 31: ‘the revised draft should ensure
that the requirement that the party seeking the measure give security be mandatory and
that the requesting party be considered strictly liable for damages caused to the responding
party by an unjustified measure. Such strict liability should be the subject of further
determination by the same tribunal.’ Against this background, the Working Group first
considered a draft whereby the requesting party would be required to ‘provide security in
such form as the arbitral tribunal considers appropriate’: Report of the Working Group on
Arbitration on the Work of Its Thirty-Ninth Session, UN Doc. A/CN.9/545 (8 December
2003), 7–8, draft art. 17(7)(b)(ii). In later drafts, the arbitral tribunal had the possibility to
require not only the requesting party, but also ‘any other party to provide appropriate
security as a condition to granting an interim measure of protection’: UN Doc. A/CN.9/
547 (n. 3), 19, draft art. 17(7)(c).

2 . p ar agr ap h 1 415
unnecessary’.9 This wording was finally retained in the final draft of

article 17E(2).
2. Paragraph 1
The first paragraph of article 17E deals with the provision of security in
connection with an interim measure. In this situation, unlike the one
contemplated in paragraph 2, the party against whom the measure is
directed is informed about the request before the measure is issued.
2.1 ‘May’: Discretion of the Arbitral Tribunal

With the use of the word ‘may’, in paragraph 1, the Model Law stresses
that the arbitral tribunal has full discretion as to whether the issuance of
an interim measure should be subject to the provision of security by the
requesting party.10 By leaving arbitrators free to assess whether security
should be required on a case-by-case basis, the Model Law is consistent
with arbitral case law, which recognises the existence of ‘a wide discretion
in the hands of the Tribunal’.11 This legislative choice, however, did not
prove uncontroversial: during the revision of the Model Law, the
Working Group considered making the provision of security mandatory
in all cases. More specifically, it was argued that the provision of ‘some
form of security’ was necessary to ‘offer adequate protection to the party
against whom such interim measures might be enforced and to reduce
the risk of abuse in the use of interim measures’.12 Against this line of
reasoning, however, it was objected that in practice the party requesting
the measure may sometimes be unable to provide security, especially
when the other party has deprived it of funds.13 Furthermore, it was
observed that, in some cases, it may not be up to the arbitrators, but to
‘the authority competent for the enforcement of the interim measure’, to
decide whether security should be provided.14 On these grounds, the
9
Settlement of Commercial Disputes: Interim Measures of Protection – Note by the
Secretariat, UN Doc. A/Cn.9/WG.II/WP.141 (5 December 2005) 4, draft art. 17 sexies.
10
There is a clear contrast between ‘may’, in para. 1, and ‘shall’, in para. 2: see below,
section 3.1.
11
Sergei Paushok, CJSC Golden East Co. and CJSC Vostokneftegaz Co. v. Government of
Mongolia, Order on Interim Measures, 2 September 2008, para. 70.
12
Doc. A/CN.9/508 (12 April 2002), 16, para. 59.
13
Ibid., para. 60.
14
Ibid.

416 article 1 7e: p rovis ion of security
Working Group eventually decided that ‘while the provision of security

in connection with interim measures was the norm, it should not be
made mandatory’.15
2.2 ‘Require the Party Requesting an Interim Measure’:

Conditionality between Security and Measure
It is within the discretion of the tribunal to decide whether security
should be provided pursuant to paragraph 1; the question arises, how-
ever, as to the consequence of this decision. The word ‘require’, in article
17E(1), offers an important indication in this respect, suggesting that the
tribunal can create a relationship of conditionality between the provision
of security and the issuance of the measure. In other words, the arbitra-
tors have the possibility to decide that the requesting party cannot obtain
the measure until it has provided security. The tribunal, however,
remains free to modify its decision on security, especially in light of
changing factual circumstances, or to require the provision of security
only after the measure has been issued.16
As already mentioned,17 after the 2006 revision of the Model Law, it is
only the party requesting the measure that can be burdened with the
provision of security. This, however, does not mean that the party against
whom the measure is issued may never be ordered to provide any kind of
security: the post-2006 wording of article 17E only entails that the
arbitrators may not order that party to provide security ‘in connection
with the measure’. The provision at hand, however, does not necessarily
preclude the arbitrators from ordering the provision of security for
arbitration and legal costs,18 or even for payment of the future award;19
in this case, security is best understood as a self-standing interim mea-
sure, rather than as an ancillary mechanism ensuring the reversibility of
another measure.
15
Ibid.; see also UN Doc. A/CN.9/547 (n. 3), 25, para. 92.
16
See below (n. 21).
17
18
See, in the context of investor–State arbitration, ICSID Case No. ARB/12/10, RSM
Production Corp. v. Saint Lucia, Decision on Saint Lucia’s Request for Provisional
Measures, 12 December 2013; on the exceptional nature of arbitral decisions ordering
security for costs, see PCA Case No. 2016-20, Dawood Rawat v. Republic of Mauritius,
Order regarding Claimant’s and Respondent’s requests for interim measures, 11 January
2017, para. 144.
19
See the commentary to art. 17.

2.3 ‘Appropriate’: Factors Influencing Quantification

While according to the travaux préparatoires the prevailing opinion in
the Working Group was that the provision of security in connection with
an interim measure would be ‘the norm’,20 article 17E(1) does not
indicate it as the default rule that arbitral tribunals should follow. It is
ultimately up to the arbitrators to decide whether security must be
provided and, if necessary, to quantify it.
As far as the quantification of security is concerned, the arbitrators are
required to perform an appropriateness test, which amounts to weighing
advantages and disadvantages and striking the optimal balance between
these. Normally, both positive and negative consequences are to a certain
extent unavoidable: if security is required, the recoverability of costs and
damages is ensured in favour of the party at the receiving end of the
interim measure, but the requirement may make it significantly more
difficult (or even impossible) for the requesting party to obtain timely
relief. These concerns may become particularly relevant in situations
where the party requesting the interim measure is deprived of funds
held by the other party, and the measure serves the very purpose of
reacting to such deprivation.21 It is therefore particularly important for
a tribunal, when quantifying security, to indicate an amount sufficient to
protect the party against whom the interim measure is directed, but not
so high as to factually prevent the requesting party from obtaining the
necessary relief.22
2.4 ‘In Connection with the Measure’: Scope of Security

When the Model Law was originally drafted, the wording ‘in connection
with the measure’ was included in article 17 for the purpose of high-
lighting that security may cover not only the costs of the measure, but
20
UN Doc. A/CN.9/508 (n. 12), para. 60.
21
This scenario was taken into account by the Working Group, ibid., para. 60.
22
The tribunal can also accommodate these conflicting needs by modulating the provision
of security chronologically: the tribunal, for instance, may issue the measure immediately,
and grant the requesting party a certain time limit within which security must be
provided. This possibility is expressly envisaged by the Working Group: see Report of
the Working Group on Arbitration and Conciliation on the Work of Its Forty-Second
Session, UN Doc. A/CN.9/573 (27 January 2005), 14, para. 61, noting that the lack of
specifications as to when security may be ordered was ‘appropriate as it allowed the
arbitral tribunal flexibility in respect of the question of security, for example in situations
where a party may require and be given more time to arrange security but the need for the
preliminary order was immediate’.

418 articl e 1 7e: p rovision of s ecurity
also the damages arising therefrom. As already mentioned,23 the

Commission considered the wording of the 1976 UNCITRAL
Arbitration Rules, which referred solely to ‘security for costs’, too restric-
tive;24 the general reference to security ‘in connection with the measure’,
hence, was introduced in order to afford the arbitral tribunal the discre-
tional power to extend the scope of security beyond mere costs, in
accordance with the standard of appropriateness.25
It is interesting to note that although the wording of article 17 was
originally devised to expand the scope of security, it later came to be
regarded as restrictive. More specifically, during the preparation of the
2006 revision, the Working Group discussed the need to avoid an inter-
pretation of security under article 17E as a ‘free-standing’ measure, rather
than as a mechanism strictly connected to and ancillary to a certain
interim measure.26 To this end, two different proposals were put forth.
First, the Working Group considered requiring that security be provided
‘at the time the arbitral tribunal grants the interim measure’.27 Second, it
was proposed to specify that security under article 17E could only be
ordered ‘in connection with the measure’.28 The first proposal had the
significant drawback of introducing a strict chronological constraint,
making it impossible for the arbitrators to order that security be provided
at any time other than when the measure is issued.29 The Working
Group, hence, decided to adopt the second solution, transferring to the
new text of article 17E the security rule of the 1985 version of article 17. In
sum, a wording that had initially been conceived as expansive was, during
the revision, retained because of its restrictiveness, signalling the con-
nection between the provision of security and the ‘fate of the interim
measure’.30
23
24
CN.9/263 (19 March 1985), 31, para. 3.
25
Eighteenth Session, UN Doc. A/40/17 (21 August 1985), 32–33, para. 166.
26
UN Doc. A/CN.9/547 (n. 3), 25, para. 94.
27
Ibid.
28
Ibid.
29
Ibid. On the use of a ‘delayed’ provision of security in order to limit the disadvantages for
the requesting party, see also above (n. 22).
30
Ibid., expressly arguing that ‘the term “in connection with” should be interpreted in a
narrow manner’.

3. Paragraph 2
The second paragraph of article 17E deals with the provision of security
in connection with an ex parte preliminary order. This type of measure
has little practical relevance, for at least two reasons. First, arbitrators are
typically reluctant to have any kind of ex parte contact with one of the
disputants, let alone issue a measure without having given all parties an
equal opportunity to present their case.31 Second, the ‘surprise effect’
rationale justifying this type of provisional relief requires that the mea-
sure be not only issued, but also enforced ex parte; therefore, arbitral ex
parte relief is not particularly effective in the absence of mechanisms of
coercive implementation.32 These factors partially explain why the rule in
article 17, concerning ex parte preliminary orders, has only infrequently
been adopted by national legislators, even in Model Law jurisdictions.33
Preliminary orders issued under article 17B of the Model Law without
the prior involvement of the party against whom the measure is directed
are, by their very nature, of short duration. Pursuant to article 17C(4),
orders of this type expire after twenty days from the date on which they
were issued by the arbitral tribunal. As a consequence, orders to provide
security under article 17E(2) also have a limited chronological scope,
typically ranging from the issuance of the measure to the time when the
tribunal decides whether to adopt, modify or revoke the measure under
article 17C(4). At this stage, if the measure is not entirely revoked, the
tribunal will also assess whether the security associated with it should be
maintained, re-quantified or paid back to the requesting party.
3.1 ‘Shall’: Need for Security in Connection with Preliminary Orders

Unlike paragraph 1, pursuant to which arbitrators have a discretionary
power with regard to security, paragraph 2 generally requires the tribunal
to order security, as evinced by the use of the word ‘shall’. The main
31
H. van Houtte, ‘Ten Reasons against a Proposal for Ex Parte Interim Measures of
Protection in Arbitration’ (2004) 20 Arb. Intl 85; Y. Derains, ‘The View against Arbitral
Ex Parte Interim Relief’ (2003) 58 Disp. Res. J. 61; D. Hacking, ‘Ex Parte Interim Relief and
the UNCITRAL Model Law’ (2003) 58 Disp. Res. J. 63; however, for a divergent view, see
also J. E. Castello, ‘Arbitral Ex Parte Interim Relief: The View in Favor’ (2003) 58 Disp.
Res. J. 60.
32
G. B. Born, International Commercial Arbitration, 2nd edn (Kluwer, 2014), p. 2510. See
also the commentary to art. 17C(5).
33
For an example of adoption, see Hong Kong Special Administrative Region Ordinance
No. 17 of 11 November 2010.

420 article 1 7e: p rovision o f security
rationale justifying this difference is that since the respondent is not

allowed to present its case before the issuance of the measure, there is a
higher risk that the latter will be subject to modification or revocation in
the future. Furthermore, security in this context contributes to an
appearance of fairness: for the party against whom the measure is issued,
the disadvantage of an unfavourable preliminary order granted ex parte is
at least partially counterbalanced by the security, which affords a certain
level of protection.
3.2 ‘Security’ and ‘Adequate Security’

Interestingly, paragraph 2 requires that the tribunal order the provision
of ‘security’, with no further specifications: the adjective ‘adequate’,
present in paragraph 1, is not repeated here. A text-based interpretation
of the provision may seek to draw some meaning from this difference
between the two paragraphs of article 17E. It may, for instance, be argued
that since the adjective ‘adequate’ was inserted in paragraph 1 to afford
the tribunal a certain margin of discretion, the arbitrators conversely
enjoy less flexibility when they order security under paragraph 2. The
preparatory works of the Model Law, however, do not support this line of
reasoning: the choice to exclude the word ‘appropriate’ was merely
stylistic. In early drafts, the tribunal was required to order the provision
of ‘appropriate security’;34 subsequently, however, ‘appropriate’ was
deleted, as the Working Group considered that the use of the words
‘appropriate’ and ‘inappropriate’ in the same paragraph may be
confusing.35
3.3 ‘Unless the Arbitral Tribunal Considers It Inappropriate

or Unnecessary to Do So’: Exceptional Cases of Preliminary
Orders without Security
The issuance of an ex parte preliminary order without the provision of
security should be regarded as an exceptional occurrence. The Model
Law, however, does take this possibility into account in case the tribunal
‘considers it inappropriate or unnecessary’ to order the provision of
security. The two grounds on which the arbitrators can dispense with
34
First Session, UN Doc. A/CN.9/569 (4 October 2004), 7, draft art. 17(7)(g).
35
UN Doc. A/CN.9/573 (n. 22), 14, para. 62. As an alternative, it was proposed to replace
‘appropriate’ with ‘adequate’.

the provision of security are not homogeneous in nature. On the one

hand, ordering the provision of security may be regarded as inappropri-
ate when, for instance, ‘a claimant was deprived of assets enabling it to
provide security because of action taken by the respondent’.36 On the
other hand, security may be ‘unnecessary’ in the very rare cases where it is
seamlessly possible to undo the effects of the preliminary order, if need
be, and no damage can possibly be caused to the party against whom the
order was originally issued. The preparatory works, however, do not
contain any practical examples of factors that may make the provision
of security unnecessary.
36
Ibid., para. 63.

Article 17F
Disclosure
(1) The arbitral tribunal may require any party promptly to disclose any
material change in the circumstances on the basis of which the
measure was requested or granted.
(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 opportu-
nity to present its case. Thereafter, paragraph (1) of this article
shall apply.

One of the first references regarding the duty to inform in the context of
interim measures in international arbitration appeared in an October
2000 note prepared for the UN Secretary-General by the UNCITRAL
Working Group on Arbitration.1 The main purpose of this note was to
identify possible topics to be addressed by a uniform regime to be
developed by UNCITRAL in its revisions to the Model Law. Inspired
by the 1996 International Law Association (ILA) Principles on
Provisional and Protective Measures in International Litigation, the
note listed twenty principles that might be included in the discussions
towards the development of a uniform regime. Even though the ILA
Principles ‘were drafted with the international litigation process in
mind’,2 the ILA had ‘recommended these Principles for possible use by
1
See Report of the Working Group on Arbitration on the Work of Its Thirty-Third Session,
UN Doc. A/CN.9/WG.II/WP.111 (12 October 2000).
2
Ibid., para. 8.
422

UNCITRAL’,3 and the Working Group considered them to ‘serve as an

inspiration for any text that the Working Group may wish to prepare’.4
The duty to inform (Principle 15) was mentioned as an obligation
imposed upon an applicant for provisional and protective measures ‘to
promptly inform the arbitral tribunal of orders that have been made at
the applicant’s request’.5 Even though this obligation referred to interim
measures issued by courts, its inclusion in the note gave the Working
Group a reference and a starting point for its future deliberations on the
topic. Anticipating the controversial nature of (ex parte and inter partes)
interim measures and other forms of temporary protection by arbitral
tribunals, the Secretariat ‘requested the States and international organi-
zations participating in the considerations of the Working Group as well
as experts interested in its work to send to the Secretariat relevant
information (e.g. arbitration rules, academic and practice writings, as
well as examples of texts of interim measures of protection ordered)’.6
As the deliberations progressed, some key differences between pre-
liminary orders and interim measures were established, which in turn
prompted the Working Group to consider two separate provisions. At
some point during the discussions, both provisions were included in
draft article 17, but remained separate paragraphs. As a result, the
provision regarding inter partes interim measures became paragraph
(5), and the one referring to ex parte preliminary orders became subpar-
agraph (h) of paragraph (7). This latter provision was drafted as a broad,
comprehensive and mandatory obligation to disclose ‘all circumstances
that the arbitral tribunal was likely to find relevant to its determination,
whether or not related to the application’.7 A proposal was made to
include express language conveying that the obligation to disclose should
not only include circumstances that helped the arbitral tribunal make its
decision to grant the preliminary order, but also circumstances that were
3
Ibid. See also ILA, ‘Second Interim Report on Provisional and Protective Measures in
International Litigation’ in Report of the Sixty-Seventh Conference of the Committee on
International Civil and Commercial Litigation (ILA, 1996), pp. 12–17.
4
See Report of the Working Group on Arbitration on the Work of Its Thirty-Third Session,
UN Doc. A/CN.9/WG.II/WP.111 (12 October 2000), para. 12.
5
Ibid., para. 27. See also UNCITRAL, International Commercial Arbitration – Possible
Future Work: Court-Ordered Interim Measures of Protection in Support of Arbitration,
Scope of Interim Measures that May Be Issued by Arbitral Tribunals, Validity of the
Agreement to Arbitrate, UN Doc. A/CN.9/WG.II/WP/110 (22 September 2000), para. 64.
6
Ibid, para. 32.
7
of Its Forty-Third Session, UN Doc. A/CN.9/589 (12 October 2005), 15, para. 71.

424 article 1 7f: d is closur e
‘adverse to the party’s case’.8 This suggestion ‘was inspired from the rule
in existence in certain jurisdictions that counsel had a special obligation
to inform the court of all matters, including those that spoke against its
position’.9 The purpose of placing an additional burden ‘on the applicant
party to disclose facts that might not help its case’10 was to counter-
balance the fact that ‘the arbitral tribunal did not have the opportunity to
hear from both parties’.11
Notwithstanding the above, some delegates to the Working Group
were opposed to the addition of further text that required the dis-
closure of circumstances contrary to the applicant’s position. The
main reason for this opposition was that ‘under many national laws,
the obligation for a party to present arguments against its position
was unknown and contrary to general principles of procedural law’.12
Subsequent versions of the provision (later designated as ‘Article 17
septies – Disclosure’) dropped any reference to adverse circumstances
and simply stated that the obligation to disclose should include ‘all
circumstances that are likely to be relevant to the arbitral tribunal’s
determination’.13 This became the final text that made it to the 2006
Model Law amendment.
The scope of the obligation to disclose in the context of inter partes
interim measures under paragraph (5) was much narrower. Since this
form of preliminary protection was not meant to be granted ex parte,
the members of the Working Group were less concerned about
having to level the playing field for the party against whom the
measure was directed, or protecting the tribunal from an incomplete
or inaccurate disclosure. In preparation for the thirty-seventh session
of the Working Group, the US government submitted a text of a
proposed revision of future article 17. In the US proposal, the dis-
closure obligation of the requesting party of the interim measure was
limited to ‘any material change in the circumstances on the basis of
which the party sought or the arbitral tribunal granted the interim
8
Ninth Session, UN Doc. A/CN.9/545 (8 December 2003), 26, para. 91.
9
First Session, UN Doc. A/CN.9/569 (4 October 2004), 19, para. 66.
10
Second Session, UN Doc. A/CN.9/573 (27 January 2005), 15, para. 66.
11
Ibid.
12
UN Doc. A/CN.9/569 (n. 9), 20, para. 68.
13
See UNCITRAL, Settlement of Commercial Disputes – Interim Measures of Protection,
UN Doc. A/CN.9/WG.II/WP.141 (5 December 2005), 4.

measure of protection’.14 In principle, the Working Group accepted

this proposal, although at a later discussion an objection was made
regarding the limitation of the disclosure to ‘material changes’. Some
believed that if the disclosure was limited to material changes, it
‘could exclude certain information that might be useful for the arbi-
tral tribunal’.15 Despite this objection, the restrictive view that limited
the disclosure to ‘material changes’ prevailed, and the arbitral tribunal
was given the discretionary power to decide whether to require
prompt disclosure and from whom (as opposed to making it an
obligation of the requesting party, as in the initial proposal by the
US delegation).
Another issue that arose during the Working Group deliberations was
the relationship between the disclosure obligations for ex parte orders
and interim measures, particularly with regard to other disclosure obli-
gations imposed by the Model Law.16 Some argued that the disclosure
obligation proposed for ex parte preliminary orders was duplicative of
the ‘obligation that was already provided for under paragraph (5) and was
included, pursuant to paragraph (7)(b), in the list of provisions that
applied to paragraph (7)’.17 A proposal to eliminate one of the obligations
or to consolidate both into a single provision was rejected. Yet, at a later
meeting, another suggestion was made ‘to add at the end of future
paragraph (2), a text stipulating that “the applying party shall have the
same disclosure obligation with respect to the preliminary order that the
requesting party has with respect to an interim measure”’.18 The
Working Group opted in favour of retaining both provisions and placed
them in the same article, which first became known as article 17 septies,
and later article 17F. The obligation to inform about any material
changes that comprised paragraph (1) was rephrased ‘in a more neutral
way to avoid any inference being drawn that the paragraph excluded the
obligation under article 24(3) of the Model Law’.19
14
Arbitration: Interim Measures of Protection – Proposal by the United States of America,
UN Doc. A/CN.9/WG.II/WP.121 (23 September 2002), 3.
15
UN Doc. A/CN.9/545 (n. 8), 26, para. 91.
16
For instance, the obligation to communicate to the other party ‘all statements, documents
or other information supplied to the tribunal’. See Model Law, art. 24(3).
17
UN Doc. A/CN.9/545 (n. 8), 25, para. 88.
18
UN Doc. A/CN.9/589 (n. 7), para. 74.
19
UNCITRAL, Report of the Working Group on Arbitration on the Work of Its Fortieth
Session, UN Doc. A/CN.9/547 (16 April 2004), 26, paras 97–98. See also UNCITRAL,
Settlement of Commercial Disputes – Interim Measures of Protection, UN Doc. A/CN.9/
WG.II/WP.138 (8 August 2005), 9, para. 22.

426 a rticle 1 7f: d is closur e
In order to clarify the relationship between both paragraphs of article

17F, a text added at the end of paragraph (2) stated as follows: ‘Thereafter,
the applying party shall have the same disclosure obligation with respect
to the preliminary order that a requesting party has with respect to an
interim measure under paragraph (1) of this article.’20 After further
discussions, an agreement was reached to shorten the last section and
replace it with a sentence that read: ‘Thereafter, paragraph (1) of this
article shall apply.’21 As a result, both disclosure obligations seemed to be
integrated in a more coherent manner. The first obligation, listed in
paragraph (2), imposed on the applicant to a preliminary order the
obligation ‘to disclose to the tribunal all circumstances that are likely to
be relevant to the arbitral tribunal’.22 The second obligation, imposed
discretionarily by the tribunal on any party, referred to the disclosure of
‘any material change in the circumstances on the basis of which the
measure was requested or granted’.23 Paragraph (2) explicitly stated
that the obligation to disclose ended when ‘the party against whom the
order has been requested has had an opportunity to present its case’.24
Since the provision only required that the party must have been given an
opportunity to present its case, and not that it actually presented its case,
the cessation of the obligation to disclose existed regardless of whether
the party had presented its case or not.25 On a related note, earlier
versions of the provision used the words ‘“opportunity to be heard”,
but were later replaced by “opportunity to present its case”, in order to
encompass both a hearing of the responding party and a written submis-
sion from that party’.26 This wording was kept in the final version
approved by the Commission, although the Working Group continued
having other discussions – with references to other provisions of article
17 – about different possibilities of expressing the opportunity (or right)
to present the parties’ case.27
20
UNCITRAL, Settlement of Commercial Disputes: Interim Measures, UN Doc. A/CN.9/
605 (25 April 2006), 4.
21
Model Law, art. 17F(2).
22
Ibid.
23
24
25
26
See UNCITRAL, Settlement of Commercial Disputes – Interim Measures of Protection,
UN Doc. A/CN.9/WG.II/WP.131 (26 July 2004), 10, para. 40. See also UN Doc. A/CN.9/
545 (n. 8), para. 80.
27
See e.g. Report of the Working Group on Arbitration on the Work of Its Thirty-Seventh
Session, UN Doc. A/CN.9/523 (11 November 2002), 22, para. 75 (‘One view [regarding

1. ba ckg round a nd trav aux p réparatoires 427
Another issue that came up during the discussions on article 17F was
whether a sanction should be imposed against a party that failed to
disclose. If the answer were affirmative, then the next issue to decide
would be to determine which specific sanction. To this end, it was recalled
that some national legal regimes, such as Singapore’s, imposed adverse
consequences to a party that was ‘later shown to have withheld material
facts from the court when applying for the order ex parte’.28 In more
specific terms, the sanction entailed discharging the order ‘for that reason
alone whatever other merits it might have’,29 and it also meant subjecting
the party to ‘make good his undertaking to pay damages’.30 Furthermore,
the Draft Principles of Transnational Civil Procedure31 also proposed to
hold liable the applicant for provisional relief ‘for full indemnification of a
person against whom the relief is issued’,32 if the court later determined
that the relief should not have been granted. After deliberations on the
subject, the Working Group decided not to include any specific sanction in
article 17F, and left it to the domain of each adopting State to do so through
its national laws. Moreover, another article, labelled 17G, was incorporated
into the Model Law to empower the arbitral tribunal to award ‘damages at
any point during the proceedings’,33 if it later determined that damages
had been caused by the measure or the preliminary order.
Some concerns were also expressed regarding the ‘time when the
disclosure obligation in relation to a preliminary order began and
ended’,34 and the situation ‘where the party against whom the prelimin-
ary order was requested was a non-participating party’.35 As a result, the
Working Group made some changes to the draft provisions, and the final
text, which received approval by the Commission and then became part
of the Model Law. These reflected clearly that in the case of paragraph 1,
the tribunal is the one to determine whether to require disclosure, and
when it does the party has to do so ‘promptly’. Regarding the disclosure
paragraph (4)(c)] was that the words “an opportunity to be heard” should be replaced by a
reference to the “right” of the party to be heard’].
28
UNCITRAL, Settlement of Commercial Disputes – Interim Measures of Protection –
Liability Regime, UN Doc. A/CN.9/WG.II/WP.127 (27 January 2004), 7, para. 23.
29
Ibid.
30
Ibid.
31
See generally ALI/UNIDROIT, Principles of Transnational Civil Procedure (Cambridge
32
Ibid., p. 11.
33
Model Law, art.17G.
34
UN Doc. A/CN.9/589 (n. 7), 16, para. 73.
35

428 a r t i c l e 1 7 f : di s c l o s u r e
obligation of paragraph 2, the approved text clearly says that it shall begin
at the time of the application (‘The party applying for a preliminary
order’), and that it shall continue ‘until the party against whom the
order has been requested has had an opportunity to present its case’.36
The use of the generic expression ‘party against whom the order is
requested’ simply acknowledges that it may be any party to the arbitra-
tion, but not a non-party; more specifically, it may not be somebody who
has not consented to arbitrate or at least to whom the effects of the
agreement may be legally extended.
2. Paragraph 1
It is critical for an arbitral tribunal to have the most current and
accurate information at its disposal regarding all the circumstances
that are likely to be relevant with regard to a request for interim
measures. That is why article 17F gives the arbitral tribunal discretion-
ary powers to ‘require any party’ to ‘disclose any material change in the
circumstances’ that formed the basis for requesting or granting an
interim measure.37 The duty imposed by paragraph 1 is broad, both
in terms of who could be a disclosing party (‘any party’) and what
should be the scope of the disclosure (‘any material change’).
Paragraph 1 also directs the disclosing party to do so ‘promptly’ upon
being required to disclose by the arbitral tribunal.38 For the sake of
clarity and efficiency, it would be desirable if the arbitral tribunal gave
36
37
Certain institutional rules, such as the Commercial Arbitration Rules of the Japan
Commercial Arbitration Association (JCAA), do not leave the duty to disclose to the
discretion of the arbitral tribunal, but instead impose it on the parties. Under these Rules,
‘the party has to tell the tribunal that there is a material change in circumstance. They’ve
put this burden, affirmatively, on the parties.’ A. Connerty, J. Gernandt, J. Kim, L. B.
Kimmelman and W. K. Slate II, ‘Professor Don Wallace’s Opening Remarks and the
Power of Arbitral Tribunals to Offer Interim Relief’ in D. Ziyaeva (ed.), Interim and
Emergency Relief in International Arbitration (Juris, 2015), p. 65. See also Commercial
Arbitration Rules of the JCAA: ‘Rule 68. Disclosure: A Party shall disclose to the arbitral
tribunal any material change in the circumstances on which the application or the arbitral
tribunal’s determination on the Interim Measures is based.’
38
The use of the adverb ‘promptly’ is to convey that the disclosure should occur ‘soon
thereafter’ or ‘as soon as practicable’ after the arbitral tribunal has imposed the duty on
the parties regarding ‘any material change in the circumstances on the basis of which the
measure was requested or granted’ (art. 17F(1)). The meaning of ‘promptly’ according to
some State courts is to do something ‘without delay and with reasonable speed’ or ‘as the
occasion demands’. See Application of Beattie (1962) 4 Storey 506, 180 A.2d 741, 744. See
also United States v. Quillen, 468 F. Supp. 480; see also Missouri, K. & T. Ry. Co. v.

the parties a specific time frame to comply (e.g. five days) with a clear
indication about the starting point. In establishing such a time frame,
the arbitral tribunal should also consider the urgency of the interim
measure and other relevant factors.39
By indicating that the duty to disclose could fall on any party,
paragraph 1 also empowers the arbitral tribunal to obtain information
from several sources and not just from the party that requested the
interim measure. The possibility of requiring disclosure against more
than one party could potentially minimise the risk of a skewed or unfair
interim measure. The wording of paragraph 1 allows the arbitral tribu-
nal to direct its request for disclosure against one party, several parties
or to all the parties (‘The arbitral tribunal may require any party’), and
therefore obtain exhaustive information (especially) in cases where at
least one of the parties is trying to conceal information related to a
material change. Regarding the type of information that the arbitral
tribunal might require the parties to disclose, paragraph 1 specifically
refers to any ‘material changes’ in the circumstances on which the
request for an interim measure was based,40 or which was relied upon
Missouri Pac. Ry. Co., 103 Kan. 1 175, 97, 103 (Mem.) (‘“Promptly” is the adverbial form
of the word “prompt,” which means ready and quick to act as occasion demands’).
39
Some of the factors that might be considered by the arbitral tribunal are whether: the
information was intrinsic (as opposed to extrinsic, market or environment-related infor-
mation); the information concerns personal intentions or opinions; it is related to a latent
issue; or the information might have updated or corrected previously disclosed informa-
tion. The duty to disclose in general has long been a complex issue for both legal scholars
and State courts. For a general discussion about the main issues surrounding the duty to
disclose in the common law, see K. Zeiler and K. D. Krawiec, ‘Common-Law Disclosure
Duties and the Sin of Omission: Testing the Meta-Theories’ (2005) 91 Va L. Rev. 1795
(‘One of the most debated questions under the common law is under what circumstances
an individual has a duty to disclose relevant information unknown to the person with
whom she bargains’); see also M. Eisenberg, ‘Disclosure in Contract Law’ (2003) 91 Cal. L.
Rev. 1645. See also D. C. Langevoort, ‘Half-Truths: Protecting Mistaken Inferences by
Investors and Others’ (1999) 52 Stan. L. Rev. 87. The seminal case in the United States
regarding the duty to disclose of a party was Laidlaw v. Organ, 15 US (2 Wheat.) 178
(1817).
40
The arbitral tribunal will likely instruct the parties to disclose any material changes when
deciding on the request to grant the interim measure, and will also establish any terms it
deems appropriate (see e.g. PCA Case No. 2009–23, Chevron Corp. and Texaco Petroleum
Co. v. Republic of Ecuador, Second Interim Award on Interim Measures (16 February
2012), 4. (‘This Second Interim Award is and shall remain subject to modification at any
time before the Tribunal’s final award in these arbitration proceedings; and, in the
meantime, any of the parties may also apply to the Tribunal for such modification
upon seventy-two hours’ written notice for good cause shown, including any material
change in the legal or factual circumstances prevailing as at the date of the Hearing’
(emphasis added)).

430 article 1 7f: d is clos ur e
by the arbitral tribunal, in case the interim measure has already been
granted.41
The Model Law does not define materiality, but the term is generally
used to signify something substantial or important.42 In the specific
context of interim measures, a material change in circumstances would
refer to a situation that if known by the arbitral tribunal would likely
change its views or its stance regarding the interim measure and there-
fore decide to grant (totally or partially), refuse, modify or terminate the
interim measure. Paragraph 1 does not expressly say who – arbitral
tribunal or disclosing party – should determine the materiality of the
change. Nevertheless, the broad wording ‘any material change in the
circumstances’ may be understood as serving the purpose of enabling
the arbitral tribunal to order the disclosure of whatever the arbitrators
deem is material in this context. In case of doubt as to the scope of the
tribunal’s order, a party should always disclose,43 so as to avoid frus-
trating the purpose of the order to disclose, or at least ask for clarifica-
tions about whether a specific type of information is covered by the
order.
One concern that remains, however, is whether the party that
requested the interim measure would be always forthcoming about dis-
closing any potentially adverse material change that might lead the
arbitral tribunal to reject the application, grant it partially, or modify or
terminate an interim measure against the interest of that party. As
discussed earlier, that concern was voiced during the deliberations of
the Working Group. It might also be that the information is covered by a
legal (or other professional) privilege governed by certain national rules
41
In some jurisdictions, the failure to disclose material changes when a party ‘knows or
should know that the other party relies on such original representation’ may constitute a
fraudulent conduct. See Hush v. Reaugh, 23 F. Supp. 646 (1938). See also Connick v.
Suzuki Motor Co., Ltd, 675 NE2d 584 (1996) (describing the different situations that give
rise to a duty to disclose material facts); see also Kurti v. Fox Valley Radiologists, Ltd, 124
Ill. App. 3d 933, 938 (1984).
42
Black’s Law Dictionary defines ‘material’ as something that is ‘important; more or less
necessary; having influence or effect; going to the merits; having to do with matter, as
distinguished from form. An allegation is said to be material when it forms a substantive
part of the case presented by the pleading. Evidence offered in a cause, or a question
propounded, is material when it is relevant and goes to the substantial matters in dispute,
or has a legitimate and effective influence or bearing on the decision of the case.’
43
The disclosure of important information in case of doubt has been linked to the general
duty to act in good faith. State courts have ‘pointed out with respect to matters involving
good faith and disclosure: when in doubt, disclose’. United States Trustee v. Halishak (In
re. Halishak), 337 BR 620, 630 (Bankr. ND Ohio 2005).

2 . p ar agr ap h 1 431
of professional conduct, or a code of ethics containing particular infor-

mation disclosure standards. In such a case, determining the materiality
of the changes would most certainly be influenced by what the lawyer is
required to disclose as per the ethics rules applicable to him or her.44
Given the lack of international standards applicable to arbitration regard-
ing disclosure requirements, the best course of action would be if the
arbitral tribunal sets specific criteria regarding the materiality of changes
and communicates these to the parties. Even then, a mere indication that
the party has ‘strong duties of disclosure at the time of application and in
relation to changed circumstances’ does not guarantee the effectiveness
of the system.45
Allowing the disclosing party to decide whether or not a change in the
circumstances is material may also lead to a situation where the party has
not disclosed a change in the circumstances, which the tribunal later –
upon learning about it – considers that such change was material and
therefore subject to disclosure under article 17F(1). Since the arbitral
tribunal still retains the power to grant the measure, reject, modify or
terminate it based on the analysis of both the original and changed
circumstances considering the conditions set forth in article 17A, the
main consequence of a party’s failure to disclose would be the tribunal’s
granting, rejecting, modifying or terminating the interim measure.
Furthermore, if the arbitral tribunal later determines that the party’s
failure to disclose has caused damages, it also could – pursuant to article
44
For a general discussion about ethical issues in international arbitration, see C. Rogers,
Ethics in International Arbitration (Oxford University Press, 2014); see also C. Rogers,
‘The Ethics of Advocacy in International Arbitration’ in R. Doak Bishop and E. G. Kehoe
(eds), The Art of Advocacy in International Arbitration (Juris, 2010). For a more recent
discussion that includes references to national laws and international soft law, see P.
Halprin and S. Wah, ‘Ethics in International Arbitration’ (2018) 1 J. Disp. Resol. 87. Some
examples of rules in this regard are: r. 3.3. (Candor to the Tribunal) of the Model Rules of
Professional Conduct by the American Bar Association, which required a lawyer parti-
cipating in an ex parte proceeding to ‘inform the tribunal of all material facts known to the
lawyer that will enable the tribunal to make an informed decision, whether or not the facts
are adverse’. Other regulations include the IBA International Principles on Conduct for
the Legal Profession (2011), the IBA Guidelines on Party Representation in International
Arbitration (2013) and the Code of Conduct for European Lawyers (as amended, 2006).
Arbitral institutions have also attempted to regulate lawyers’ conduct. Examples include:
the Standards of Conduct for Parties and Representatives of the American Arbitration
Association/International Centre for Dispute Resolution; and the Annex on General
Guidelines for the Parties’ Legal Representatives of the 2014 Rules of the London Court
of International Arbitration.
45
J. Waincymer, Procedure and Evidence in International Arbitration (Kluwer, 2012),
p. 633.

432 article 1 7f: d isclosure
17G – award sanctions against the faulty party.46 Arbitral tribunals ‘have
accepted that it might be possible for it to impose penalties (astreintes) on
a non-complying party’,47 especially when ‘such relief was contained in
the Terms of Reference’48 (e.g. in the case of an ICC arbitration).
Lastly, the indication made by the final sentence of paragraph 1 about
the measure having been ‘requested or granted’ suggests that the arbitral
tribunal’s instruction applies both to the disclosure of material changes
related to interim measures that have been requested and not granted yet,
and to interim measures that have been already granted.
3. Paragraph 2
The first element that stands out in paragraph 2 is an explicit reference to
preliminary orders. Given the ex parte nature of this kind of temporary
protection, paragraph 1 predictably restricts the duty to disclose to ‘the
party applying for a preliminary order’, and not on ‘any party’ as para-
graph 1 does for interim measures. It is important to note that, under
paragraph 1, it is assumed that in many cases reliable information will
surface as a result of the exchange of defences and observations between
the applicant and the party against whom the measure is requested,
which is of course not possible ex ante under paragraph 2. This provision
also relieves the arbitral tribunal from having to decide whether to
require disclosure, and simply states that the party ‘shall’ do it, with no
46
E. A. Schwartz, The Practices and Experience of the ICC Court: Conservatory and
Provisional Measures in International Arbitration (ICC Publishing, 1993), p. 59, fn. 46.
‘The arbitrators’ authority to impose penalties in international arbitration is a contro-
versial topic. For an example of a law that expressly empowers arbitrators to impose
penalties for non-compliance with an arbitrator’s direction, see art. 1056 of the
Netherlands Arbitration Act 1986. In considering the problem of the execution of interim
measures ordered by the arbitrators, the UNCITRAL Secretariat noted, in connection
with the preparation of the UNCITRAL Model Law, that an arbitral tribunal is empow-
ered to take a failure to obey an order for interim measures into account in its final
decision, particularly in any assessment of damages.’ See H. M. Holtzmann, J. E. Neuhaus
and E. Kristjansdottir, A Guide to the UNCITRAL Model Law on International
Instead of imposing penalties, the arbitral tribunal could also ‘draw adverse inferences
against a party that refuses, without reasonable excuse, to disclose documents or infor-
mation under its control’; S. Greenberg and F. Lautenschlager, ‘Adverse Inferences in
International Arbitral Practice’ (2011) 22 ICC Ct Bull. 51, citing a 2010 ICC Award, which
itself refers to Marvin Feldman v. Mexico, Case No. ARB(AF)/99/1, award, 16 December
2002, (2003) 42 ILM 625, 662.
47
Schwartz (n. 46), p. 59.
48
Ibid.

qualifications. Thus, the disclosure of all circumstances likely to be

relevant for the arbitral tribunal’s consideration is an essential require-
ment for a preliminary order to be granted or maintained.
Such duty to disclose is also admittedly broader than the one men-
tioned in the preceding paragraph related to interim measures. More
specifically, unlike the limited duty of paragraph 1, which only requires
disclosure of material changes in circumstances, disclosure under para-
graph 2 includes all likely relevant circumstances for the tribunal’s
determination on whether to grant or maintain the preliminary order.
Establishing which circumstances ‘are likely to be relevant to the
arbitral tribunal’s determination’ is left to the disclosing party, and not
to the arbitral tribunal. But if any doubt arises regarding whether or not
to disclose a particular type of information, the party should always
disclose. The party that applied for a preliminary order is obviously
sufficiently familiar with the case and it is perhaps in the best position
to know what circumstances are likely to be relevant for the tribunal to
decide on the preliminary order’s application. However, given that the
applicant is an interested party, there is also a risk that the disclosure to
the arbitral tribunal might be skewed or incomplete. The remedy for this
potential shortcoming is the opportunity that the arbitral tribunal shall
give to the party against whom the order has been requested to present its
case, which is mentioned later in the same paragraph. As a result, if the
tribunal discovers that the circumstances were different from what the
applicant revealed and an interim measure is granted, the tribunal might
obviously deny, terminate or limit the measure according to the newly
revealed circumstances; and also impose sanctions or award damages if
the requirements of article 17G of the Model Law are met.
A final point regarding the duration of the obligation to disclose
imposed on the requesting party is that it originates at the moment of
the application for a preliminary order, and ceases after ‘the party against
whom the order has been requested has had an opportunity to present its
case’.49 The rationale for imposing such a continuous duty is to ensure
that the tribunal has an adequate informational basis, in a situation where
the applicant is effectively the only source of information. In practice, this
can still be very difficult to achieve, which is probably one of the reasons
why ex parte arbitral provisional relief is so rare. Once the party against
whom the order has been requested has had an opportunity to present its
case, the only obligation to disclose would be the one under paragraph 1
49

434 a r t i c l e 17 f : di s c l o s u r e
which, as we explained earlier, would depend on the arbitral tribunal’s

express requirement and would also be limited to material changes in the
circumstances. Given the short duration (i.e. twenty days) of preliminary
orders, whatever temporary protection the tribunal decides to provide
after the expiration would have to be in the form of an inter partes interim
measure, governed by article 17.

Article 17G
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.
The issue of the liability of an arbitrator was previously discussed during
the drafting process of the Model Law. As to whether or not the Model
Law should deal with questions relating to an arbitrator’s liability at all, it
was generally agreed that a model law on international commercial
arbitration would not be able to fulfil such a purpose appropriately.1
Article 17, as adopted in 1985, only provided that ‘[t]he arbitral tribunal
may require any party to provide appropriate security in connection with
such [interim] measure’, and the issue of any liability arising therefrom
was not mentioned in the text.
This discussion was revived in 1999 at the thirty-second session of
UNCITRAL, where the Commission decided to revise the Model Law.
The issue of empowering an arbitral tribunal to make orders for ex parte
interim measures of protection in international arbitration was highly con-
tentious.2 The Working Group ultimately agreed that as a matter of general
policy, the power to order interim measures on an ex parte basis would be
1
Third Session, UN Doc. A/CN.9/216 (23 March 1982), para. 51.
2
UN Doc. A/CN.9/523 (11 November 2002), paras 16–27. See also Y. Herinckx, ‘Liability
for Inappropriate Interim Measures in Commercial Arbitration’ (2014) 2 Cahiers de
l’Arbitrage 243, 245.
435

436 a r t i c l e 17 g : co s t s a n d d a m a g es
suitable for conferral upon arbitral tribunals.3 Although it could be

argued that ex parte interim measures would challenge the fundamental
principles of due process and equality of parties in arbitration, there
were a few situations in which ex parte interim measures were envisaged
as being warranted. The first situation is where an interim measure is
urgently needed and the requesting party is unable to give effective
notice to the other party, even though the requesting party is prepared
to provide such notice.4 The second situation where ex parte interim
measures may be warranted is where the requesting party believes that
withholding notice would serve to ensure the effectiveness of the
interim measure, or ensure that the other party will not frustrate the
protection offered by the interim measure sought.5
While ex parte interim measures ordered by arbitral tribunals remain
controversial, and have not been universally adopted in all jurisdictions,6
it was agreed that provisions on ex parte interim measures should only be
included in article 17 of the Model Law if sufficient safeguards were put in
place, e.g. by requiring the requesting party to provide an appropriate or
sufficient amount of security in connection with the interim measure,7
and by providing that the requesting party should be strictly liable for any
damages caused to the other party in respect of interim measures ulti-
mately found to be unjustified or inappropriate.8 It was further suggested
that an arbitral tribunal’s power to order ex parte interim measures
should be subject to contrary agreement between the parties.9
The words ‘strict liability’ were replaced because the concept was not
universally understood in all jurisdictions.10 The Working Group, how-
ever, declined to replace ‘shall be liable’ with ‘may be liable’, bearing in
mind that ‘the provision should be assessed against the objective to
3
Doc. A/CN.9/508 (12 April 2002), paras 77–94.
4
UN Doc. A/CN.9/523 (n. 2), para. 18.
5
Ibid.
6
See e.g. R. Garnett and L. R. Nottage, ‘The 2010 Amendments to the International
Arbitration Act: A New Dawn for Australia?’ (2011) 7 Asian Intl Arb. J. 1, 29–53, for
criticism of the failure to adopt ex parte preliminary orders in the amendments to the
Australian International Arbitration Act.
7
As reflected in art. 17E of the Model Law; UN Doc. A/CN.9/523 (n. 2), para. 31. See also
Herinckx (n. 2), p. 245.
8
Ibid., Report.
9
Ibid., para. 26.
10
Ibid, para. 66.

impose liability on a requesting party for damages caused by an ex parte

measure where that measure was found to be unjustified’.11
One of the key issues in respect of the previous drafting of article 27
was the question of whether liability should only be imposed on interim
measures ordered on an ex parte basis, or whether liability should also be
imposed on interim measures ordered inter partes, where these have been
found to be unjustified or inappropriate, to the detriment of the other
party.12 The initial conceptualisation of a clause for liability for unjusti-
fied interim measures was in the context of ex parte provisional relief, due
to the perception that in such circumstances there was a greater risk of
rendering an inappropriate award as the other party would not have had
the benefit of being heard.13 Thus, the imposition of liability on the
parties requesting ex parte interim measures that proved unjustified or
inappropriate was considered apt because of the imbalanced nature and
inherent risks to the other party in such applications and orders.14
However, in respect of inter partes measures, it was stated that ‘misre-
presentation or fault in relation to the inter partes regime could be dealt
with by procedural national laws’.15 It was, nevertheless, subsequently
agreed that in both ex parte and inter partes provisional relief, the
measure could still be found to have been unjustified to the disadvantage
of the respondent.16
Earlier, there had even been deliberations in the Working Group on
the suggestion that the mere application for ex parte interim measure
should render the applicant ‘liable for damages caused, irrespective of
whether the measure was found to be justified or unjustified and irre-
spective of whether there was any fault by the requesting party’.17
However, the opinion that prevailed within the Working Group was
that liability for the claimant should only apply where an interim measure
was subsequently established to have been unjustified.18 The Working
Group further suggested that any relevant provisions should only
11
Ibid.
12
Report of the Working Group on Arbitration on the Work of its Thirty-Ninth Session,
UN Doc. A/CN.9/545 (8 December 2003), para. 60; Interim Measures of Protection:
Liability Regime, UN Doc. A/CN.9/WG.II/WP.127 (27 January 2004), para. 2.
13
Herinckx (n. 2), pp. 245–246.
14
UN Doc. A/CN.9/545 (n. 12), para. 60.
15
Ibid.
16
UN Doc. A/CN.9/WG.II/WP.127 (n. 12), para. 2; UN Doc. A/CN.9/545 (n. 12), para. 60.
17
UN Doc. A/CN.9/WG.II/WP.127, ibid., para. 2.
18
Ibid.

438 article 1 7g: cos ts and dama ges
establish the basic principles of a liability regime, and that substantive

issues ought to be deferred to the national laws of the adopting State.19
The UNCITRAL Secretariat was then asked to prepare a note setting out
the details of the imposition of liability in the context of different national
laws on interim measures of protection.20 After reviewing the relevant
legislation from different jurisdictions, the Working Group came to the
conclusion that the strict liability regime should be applied to both ex parte
and inter partes measures, because the national laws reviewed had made no
distinction between ex parte and inter partes measures, and there was thus
no rationale to distinguish between the two measures in the Model Law,
despite the conceptual differences highlighted above.21 An early draft of
article 17G of the Model Law22 only stated that the requesting party should
be liable for any costs and damages caused to ‘the party against whom [the
measure or order] is directed’. This wording, however, would subsequently
be replaced by ‘any party’, because such interim measures of protection
could in fact potentially impact upon any party.23 It was also suggested that
the additional wording ‘from the date the measure has been granted and
for as long as it is in effect’ was unnecessary, since the limits of the liability
are already defined by the condition that the costs and damages had in fact
been caused by the interim measure.24
An application for an ex parte interim measure in and of itself will not
render a requesting party liable for damages caused.25 The prevailing view
within the Working Group was that the requesting party should be made
liable for such damages only where the measure obtained was ultimately
found to have been unjustified.26 The meaning of ‘unjustified’ was left
undefined, and the question was raised as to whether or not the concept of
an ‘unjustified’ measure should be considered per se, or in the context of
the outcome on the merits.27 It was stated that the result of the arbitration
on the merits of the dispute should not be a critical factor in deciding
19
UN Doc. A/CN.9/545 (n. 12), para. 60.
20
See UN Doc. A/CN.9/WG.II/WP.127 (n. 12).
21
22
WG.II/WP.128 (29 January 2004), art. 17(6 bis).
23
Fourth Session, UN Doc. A/CN.9/592 (27 February 2006), para. 33.
24
UN Doc. A/CN.9/547 (n. 21), para. 106.
25
UN Doc. A/CN.9/545 (n. 12), para. 65.
26
Ibid.
27
Ibid.; UN Doc. A/CN.9/WG.II/WP.127 (n. 12), para. 2.

1. t ra v a u x p r épa ra toir es 439
whether or not the interim measure was justified.28 There was a strong
view ‘that the final decision on the merits should not be an essential
element in determining whether the interim measure was justified or
not’.29 The Working Group acknowledged that the conditions that had
been set out in the draft version of article 17G above could potentially be
confusing in this regard, and ‘the requirement that made liability depen-
dent on the final disposition of the claims on the merits might be inap-
propriate’.30 It had been previously proposed that the words ‘the interim
measure should not have been granted’ ought to be replaced by the words
‘the interim measure was unjustified’, but following some discussion, this
proposed wording was not adopted as it would likely have led to arguments
about whether or not the arbitral tribunal had been justified in granting the
interim measure.31 Furthermore, in respect of the word ‘unjustified’, this
proposed form of wording could potentially have run the risk of being
interpreted as making the arbitral tribunal itself liable for granting ‘unjus-
tified’ interim measures.32 For these reasons, this proposed formulation of
article 17G was not taken further. As a consequence, the version of article
17G that was eventually adopted states that liability for costs and damages
accrues to the claimant if it is subsequently established that ‘the measure or
the order should not have been granted’.
1.1 Liability under Previous State Practice

For the purpose of providing helpful information on the liability of
claimants requesting some form of interim relief, the UNCITRAL
Working Group requested some States to provide information on similar
liability laws under their domestic legal systems, in addition to reviewing
materials drafted by other international organisations on the matter.33 The
28
UN Doc. A/CN.9/545 (n. 12), para. 65.
29
UN Doc. A/CN.9/WG.II/WP.127 (n. 12), para. 2; ibid.
30
UN Doc. A/CN.9/547 (n. 21), para. 106.
31
Third Session, UN Doc. A/CN.9/589 (12 October 2005), para. 47. See also Settlement of
Commercial Disputes: Interim Measures of Protection, UN Doc. A/CN.9/WG.II/WP.138
(8 August 2005), para. 29.
32
UN Doc. A/CN.9/589 (n. 31), para. 47.
33
L. B. Kimmelman and S. Marquez, ‘The Impact of the UNCITRAL Arbitration Rules’ in
D. Ziyaeva, I. A. Laird, B. Sabahi and A. M. Whitesell (eds), Interim and Emergency Relief
in International Arbitration (Jurisnet, 2015), p. 45. On the Working Group request for
information from States on nature of liability by applicants for interim measures, see UN
Doc. A/CN.9/WG.II/WP.127 (n. 12), para. 3 and UN Doc. A/CN.9/545 (n. 12), para. 61.

440 a rticle 1 7g: c osts and damages
general outcome of the submission by States indicated that there was

generally an obligation incumbent on the unsuccessful claimant to com-
pensate the respondent either on the basis of prima facie evaluation of
possible risk of harm, or on the basis of substantiated damage caused by the
interim measure. For instance, Austria submitted that there existed liability
for both ex parte and inter partes provisional relief under its domestic
legislation.34 Liability for the claimant arose for ‘all pecuniary damages’
resulting from the protective relief, if discovered to have been unfounded,
or where the benefiting claimant failed to commence ‘legal proceedings
within due time’.35 The claimant was required to compensate all damages
resulting from the interim measure, including lost gains and legal costs.36
Finland’s submission indicated that its domestic legislation per-
mitted provisional relief, with the requirement that in cases where the
measures were later found to have been unjustified, the claimant was to
compensate the respondent for any damage or costs incurred.37 France
explained that under its legal system, the granting of provisional relief
was at the risk of the claimant, with the consequence that the beneficiary
would be liable to compensate the respondent for any damage caused in
case the ruling was subsequently set aside.38 According to Germany’s
submission, where a measure granted under its domestic legislation was
found to have been unjustified, the applicant was required to compen-
sate the respondent for any damage that may have resulted from its
enforcement, or reparation of any security that may have been provided
by the respondent to avoid its enforcement.39 That approach aimed to
ensure that any party requesting interim relief without sufficient cause
was liable to compensate the other party for damages arising as a
consequence.40 The submission by Singapore pointed out that under
its legal system, the applicant was obliged to adhere to a damages order
if it was subsequently found that the measures were unjustifiable in both
ex parte and inter partes applications.41
The Spanish submission pointed out that security was required for
both ex parte and inter partes interim relief under its national law.42 With
34
35
Ibid.
36
Ibid.
37
Ibid., para. 12.
38
Ibid., para. 14.
39
Ibid., para. 15.
40
Ibid., para. 16.
41
42
Ibid., para. 25.

2. liability for costs 441
regard to inter partes applications, where the case against the defendant
was not successful or withdrawn, damages would be made available for
harm suffered if he had made an application to the court for the same.43
In the case of ex parte awards, the other party would have been notified in
order to enable it to lodge objections. In cases where the interim measure
was maintained after the hearing of the objection, the opposing respon-
dent was required to bear the costs of the proceedings, while if the interim
relief was withdrawn, the costs and damages arising were borne by the
applicant.44
Switzerland explained that where the prospective interim relief could
cause damage to the respondent, the applicant could be required to
provide security as a condition for its grant.45 The claimant was required
to compensate the respondent for any damage caused by the award of the
interim measure, unless he could demonstrate that the application was
made in good faith, in which case the tribunal can reduce or remove the
damages altogether.46 The United States submitted that under its federal
and State laws, subject to a few exceptions, the claimant was liable for
damages where interim protective measure was found to have been
wrongfully issued.47 In addition, federal and State law required that the
claimant should provide a security bond, which, if necessary, could
subsequently be utilised to compensate the respondent of the pecuniary
harm and associated costs arising from an interim measure that was
established to have been issued wrongfully.48 In Stephen Blumenthal, it
was affirmed that respondents are entitled to recover damages from the
security bond in respect of an interim injunction subsequently found to
have been wrongly granted.49
2. Liability for Costs

The Working Group also discussed whether the word ‘costs’, rather than
the word ‘expenses’ was to be preferred in relation to the interim pro-
ceedings, and whether or not this provision should contain a reference to
43
Ibid., para. 26.
44
Ibid., para. 27.
45
Ibid., para. 28.
46
Ibid.
47
Ibid., para. 29.
48
Ibid.
49
Stephen Blumenthal and Les Fein v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 910 F.2d
1049 (2nd Cir. 1990), para. 8.

442 article 1 7g : c osts a n d damag es
costs at all.50 It was noted that the purpose for the inclusion of article 17G
was to specifically compensate the respondent party for damages arising
from an ex parte interim measure that was found to be inappropriate or
unjustified.51 A reference to costs could potentially have led to unpre-
dictable outcomes, given the fact that the term ‘costs’ may be interpreted
differently under different laws and circumstances of the adopting jur-
isdictions.52 For instance, ‘costs’ could be narrowly construed, as refer-
ring only to the costs associated with the implementation of the measure,
or alternatively, it could be broadly interpreted as encompassing legal
costs, including attorneys’ fees.53 Ultimately, the Working Group agreed
to retain the reference to ‘costs’, rather than to replace it with the term
‘expenses’, because the term ‘costs’ had been defined under article 38
(definition of costs) of the 1976 UNCITRAL Arbitration Rules, and
should be read consistently with that definition under the Model Law.54
It should be noted that the term ‘costs’ is now also defined under article
40 of the new UNCITRAL Arbitration Rules as adopted in 2013. This
new provision has also incorporated the reasonableness requirement –
for example, the term ‘costs’ now includes ‘reasonable travel and other
expenses incurred by the arbitrators’. It has yet to be determined by the
courts whether or not this new definition applies to article 17G, but if it
does, this will likely serve to further limit the liabilities of the requesting
party where it has been found that the interim measure was inappropriate
or unjustified.55
The Working Group also evaluated the suggestion that the ‘point in
time when compensation for damages could be obtained’ required clar-
ification.56 It was noted that damages could accrue before the issuance of
the final award, and particularly for ex parte measures, it was suggested
that the wording of the Model Law should permit the respondent to claim
compensation immediately after the grant of such provisional relief, if
necessary.57 In that context, article 17G of the Model Law permits the
arbitral tribunal to award costs and damages at any time during
the proceedings, if necessary. Roth has also argued that the decision on
50
UN Doc. A/CN.9/545 (n. 12), para. 63.
51
Ibid.
52
Ibid.
53
Ibid.
54
Ibid.
55
J. Choong and J. R. Weeramantry, The Hong Kong Arbitration Ordinance: Commentary
and Annotations (Sweet & Maxwell, 2011), p. 223.
56
UN Doc. A/CN.9/545 (n. 12), para. 66.
57
Ibid.

3. fault-based liability 443
the award of the damages should be arrived at any time in the course of
the proceedings in order to create opportunity for the affected party to
also challenge such a grant of costs and damages of the tribunal.58
3. Fault-Based Liability
The drafting history of article 17G shows that it was not the intention of
these new provisions of the Model Law to impose liability on the basis of
the outcome of the dispute on the merits which led to the conclusion that
the interim measure was unjustified (i.e. the ‘loser pays’ principle).59
There is a requirement under the Model Law of some form of improper
conduct on the part of the requesting party in order to impose liability on
the claimant, and in the words of one commentator, such liability ‘is not
just a quid pro quo for the risk of causing damages that the applicant took
in seeking an interim measure’.60 This commentator went on to suggest
that the liability regime should be a fault-based one, but not a risk-based
strict liability regime.61
3.1 Substantive Liability Test

Like much of the Model Law, and indeed similar to most rules of
arbitration, article 17G does not attempt to set out a substantive test for
the determination of liability issues. The issue is largely deferred to the
applicable laws of the adopting jurisdictions.
In the context of court-ordered interim measures, typically, domestic
legislation will set out the conditions for which such interim measures
that ought not to have been granted from the outset, will give rise to
liability for the requesting party. Those conditions may be extended to
arbitration cases where the interim measures in question are ordered by
the arbitral tribunal or by the court in support of arbitral proceedings on
the merits, but ought not to have been granted – such conditions may
usefully be applied by an arbitral tribunal as the relevant criteria to
determine whether or not the party requesting the measures ought to
58
M. Roth, ‘UNCITRAL Model Law on International Commercial Arbitration’ in F.-B.
Weigand (ed.), Practitioner’s Handbook on International Commercial Arbitration
(Oxford University Press, 2009), p. 1042. See also UN Doc. A/CN.9/589 (n. 31), para. 48.
59
60
Ibid., p. 248.
61
Ibid.

444 a r t i c l e 1 7 g : c o s t s a nd d a m a g e s
be made liable.62 In this regard, three prominent approaches to the issue

of liability are discussed.
The first approach to the issue of liability is premised on a tort-
based model, and it is the approach adopted by the Model Law.63 An
assessment of the preparatory documents indicates that article 17G
does not establish liability for interim protective measures solely on
the basis that the subsequent decision at the merits stage indicates
that the provisional relief was not justifiable.64 Under this approach,
the focus is on wrongdoing that may have occurred in requesting an
interim measure. The award of such damages by an arbitral tribunal
should be preceded by a request by the harmed respondent that is
substantiated.65
Thus, an application for an interim measure in and of itself will not
render the requesting party liable for damages caused, even if the mea-
sure is later overturned or contradicted by the final decision of the
tribunal on the merits.66 There must be some form of improper conduct
on the part of the requesting party. For example, where the requesting
party does not disclose certain facts that may have gone against its
application when seeking the interim measure, or where the requesting
party dishonestly overstates the harm that is likely to be caused if the
interim measure is not granted,67 then such a requesting party ought to
62
Ibid., p. 277.
63
The Model Law does not expressly require any wrongful or improper conduct on the part
of the requesting party. The Working Group was of the opinion that the issue should be
left to domestic law. However, it was mentioned in the travaux préparatoires that the
prevailing view was that ‘the requesting party should be liable only if the measure was
ultimately found to have been unjustified’. UN Doc. A/CN.9/545 (n. 12), para. 65.
Although the word ‘unjustified’ was not defined and the Working Group was hesitant
in adopting this wording, it could be inferred from the travaux préparatoires that the
Model Law adopted a fault-based liability regime. On the Model Law being tort-based, see
also Herinckx (n. 2), p. 279.
64
65
Roth (n. 58), p. 1042; see Kimmelman and Marquez (n. 33), p. 46.
66
67
For instance, pursuant to art. 17A of the Model Law (conditions for granting interim
measures), the requesting party shall satisfy the arbitral tribunal that, first, the absence of
the interim measure will likely result in harm not adequately reparable by an award of
damages, 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, second, there is
a reasonable possibility that the requesting party will succeed on the merits of the claim. It
should also be noted that the determination of this possibility should not affect the
discretion of the arbitral tribunal in making a subsequent determination in relation to
the merits or other procedural issues.

4 . s e c u r i t y f or c o s t s a n d d a m a g e s 445
be held liable for the wrongful conduct or bad faith that caused harm to
the responding party through the granting of the interim measure.
The second approach is a risk-based, strict liability one. An arbitral
tribunal grants an interim measure based on a prima facie assessment of
the dispute.68 As such, it is possible that the subsequent developments
in the arbitral proceedings or the final decision of the arbitral tribunal on
the merits of the dispute may contradict the initial prima facie analysis,
and thus the interim measure will turn out to be inappropriate. The
consequences arising out of an inappropriate interim measure will have
to be borne by one party. Out of concern for fairness and policy con-
siderations, if it transpires that the interim measure ought not to have
been granted (or, in other words, the interim measure was unjustified in
the first place), the requesting party will have to assume the risk of being
strictly liable for any damages sustained by the responding party, because
the requesting party was the one who sought the interim measure in the
first place. This approach is intended to discourage unjustified applica-
tions, and is implemented in the relevant legal provisions in Germany,
for example, as discussed in detail later in the chapter.
The third approach to liability may be thought of as a combination of
the first two approaches. It begins with the premise that an application for
an interim measure of protection does not on its own give rise to liability
on the part of the requesting party. If the interim measure turns out to be
inappropriate, and should not have been granted, the requesting party
should bear the risk of liability. In England and the United States, if an
interim measure is found to be unjustified or inappropriate, this does not
give rise to tortious liability. Instead, compensation takes the form of
cross-undertakings in damages or bonds for security.69
4. Security for Costs and Damages

Under article 17E of the Model Law, an arbitral tribunal may require a
claimant for interim relief to post security as a prerequisite for its
issuance, and that requirement is more likely to be a condition for the
award of provisional measures in the case of application for ex parte
orders, unless the tribunal finds it unnecessary or inappropriate.70 As the
Working Group explained, the posting of security by the applicant
68
See Herinckx (n. 2), p. 279.
69
For further discussion on the issue of the undertaking in damages, see ibid., pp. 275–276.
70
See P. J. W. Sherwin and D. C. Rennie, ‘Interim Relief under International Arbitration
Rules and Guidelines: A Comparative Analysis’ (2009) 20 Am. Rev. Intl Arb. 317, 336.

446 a r t i c l e 1 7 g : c o s t s a nd d a m a g e s
facilitates the recovery of damages and costs that may arise from its
issuance.71 The posting of security may involve, for instance, the ‘depos-
iting [of] a sum of money with the arbitral tribunal or the provision of a
bond or guarantee’.72
An earlier version of the draft provision on liability had actually stated
that especially with regard to ex parte orders, the claimant be required to
provide security in the form that the tribunal would consider appropriate
as a prerequisite for the issuance of such interim relief.73 During the
thirty-seventh session of the Working Group, held between 7 and 11
October 2002, it was agreed that draft article 17 of the Model Law
concerning provisional relief granted by an arbitral tribunal should,
compulsorily, require that the claimant of ex parte relief provide security
and ‘be considered strictly liable for damages caused to the responding
party by an unjustified measure’.74 Commenting on the draft 2006
amendments, Houtte notes that the requirement for the posting of
security was to ensure compensation was available in case an ex parte
order was later found to have been unjustifiable.75 However, the require-
ment for the provision of security under article 17E of the Model Law as
finally adopted provides the tribunal with discretion not to require the
provision of security even in the application of ex parte orders, particu-
larly where it is deemed to be ‘inappropriate or unnecessary to do so’.76
In its submission to the Working Group, the United States claimed
that federal and State legislation generally require a security bond to be
posted by claimants of interim protective measures.77 In Stephen
Blumenthal, it was explained that security bonds for interim measures
are aimed at safeguarding the recovery of damages that may accrue to the
respondent if it is later found that the applicant was not entitled to the
relief.78 For purposes of comparative information, the US delegate
71
Preparation of Uniform Provisions on Interim Measures of Protection, UN Doc. A/CN.9/
WG.II/WP.119 (30 January 2002), para. 42; Arbitration: Interim Measures of Protection –
Proposal by the United States of America, UN Doc. A/CN.9/WG.II/WP.121 (24
September 2002), para. 2(5).
72
73
WG.II/WP.123 (3 April 2003), para. 3.
74
UN Doc. A/CN.9/WG.II/WP.123 (n. 73), para. 1. See also UN Doc. A/CN.9/523 (n. 2),
para. 31.
75
76
77
78
Stephen Blumenthal (n. 49), para. 25.

4. s e c u r i t y f o r c o s t s a nd d a m a g es 447
proceeded to elucidate on those circumstances in which the posting of a

security bond could not, however, be a prerequisite for the grant of the
interim measures.79 This includes circumstances in which the claimant
lacks the financial resources to post the security bond.80 In the Crowley
case, the First Circuit of the US Court of Appeals was of the view that ‘it
would be unjust to require security’ from indigent claimants.81 The
posting of a security bond may be dispensed with where such a require-
ment would discourage the applicant from seeking the enforcement of
core federal rights or legislation, such as those related to employment
discrimination claims.82 The requirement of posting a security bond may
also be dispensed with where the claimant has substantive financial
resources to pay any amount of damages, where the proceedings con-
stitute matters of significant public interest and the applicant lacks
adequate resources, and in circumstances where the respondent has
absolutely no risk of monetary loss.83
The posting of security as a prerequisite for the award of interim
protective measures is a vital mechanism of ensuring that there is a
high probability of compensation to the respondent if it is later estab-
lished that the provisional relief should not have been granted. In that
context, the provision of an undertaking, such as the posting of a security
bond by the claimant, can be a factor in determining where the balance of
convenience rests between the parties in the application for the grant of
provisional relief. In Safe Kids in Daily Supervision, the New Zealand
High Court stated that in cases where the claimant fails to provide
‘adequate undertaking as to damages’, then it can be assumed that such
an applicant will have greater difficulty in satisfying an arbitral tribunal
or court that the balance of convenience is in favour of granting the
interim relief, given that a harmed respondent who is later vindicated
may have nothing to recover damages and costs from.84 Nevertheless, as
Houtte cautions, in some instances, the harm caused by unjustifiable
interim orders can never be sufficiently recovered through the award of
damages, particularly in the case of ex parte orders, which increase the
risk of injury.85 Therefore, the posting of security may not always
79
80
Ibid.
81
Crowley v. Local No. 82, Furniture & Piano, etc., 679 F.2d 978 (1982).
82
83
Ibid.
84
Safe Kids in Daily Supervision Ltd v. McNeill [2010] NZHC 605, para. 33.
85
Houtte (n. 75), p. 94.

448 article 1 7g : c osts a n d damag es
automatically tip the balance of convenience in the context of the likely

harm to the parties in dispute to that of granting the interim measure. As
the House of Lords stated in the American Cyanamid case, the level ‘to
which the disadvantages to each party would be incapable of being
compensated in damages’ may also remain a significant factor in the
assessment of where the balance of convenience rests, despite the posting
of security by the claimant.86
5. Practical Implementation
A number of jurisdictions have adopted the new article 17G of the Model
Law without notable modification. For example, section 42 of the Hong
Kong Arbitration Ordinance gives effect to the provision by simply
stating that ‘Article 17G of the UNCITRAL Model Law, the text of
which is set out … has effect’.87 Similarly, article 1695 of the Belgian
Judicial Code88 has only slightly altered the original text of article 17G in
implementing it because ex parte measures are unavailable in Belgium.89
In Australia, article 17G of the New South Wales Commercial
Arbitration Act of 2010 is the counterpart of article 17G of the Model
Law, but it should be noted that the reference to applications for pre-
liminary orders is omitted in the Commercial Arbitration Act because
articles 17B and 17C of the Model Law do not have any counterparts in
the Act. In implementing article 17G, many other jurisdictions have
formulated their own sets of rules in respect of the liabilities of requesting
parties for costs and damages for an inappropriately obtained interim
measure.
6. Enforcement
One critical element of interim measures of protection is their enforce-
ment, particularly as regards ex parte measures. The enforcement of
arbitral interim measures is unlike interim measures granted by the
courts, as the authority of the arbitral tribunal is based on the arbitra-
tion agreement between the parties.90 This enforcement aspect of
86
American Cyanamid Co. v. Ethicom Ltd [1975] AC 396.
87
88
Belgian Judicial Code, new version effective from 1 September 2013.
89
90
C. L. Sun and T. Weiyi, ‘Making Arbitration Effective: Expedited Procedures, Emergency
Arbitrators and Interim Relief’ (2013) 6 Contemp. Asia Arb. J. 349, 349–371.

6 . en f o r c e m e n t 449
arbitral interim measures may also impact upon the limits of liability
for costs and damages for an inappropriately obtained or unjustified
interim measure. Generally speaking, in most jurisdictions, courts,
upon application, will enforce the interim measures granted by arbitral
tribunals – Germany is an example of such a jurisdiction, as this is
reflected in article 1041 of the Zivilprozessordnung (ZPO, German
Code of Civil Procedure). Article 1041 of the ZPO addresses the issue
of interim measures of protection granted by arbitral tribunals, and sets
out a mechanism for compulsory enforcement of such interim mea-
sures. Under German arbitration law, an arbitral tribunal has the power
to order interim measures on an ex parte basis. It thus follows that leave
for enforcement can be granted on an ex parte basis as well.91
Given the potential for unfairness in the compulsory enforcement
of interim measures of protection, particularly those obtained and
enforced on an ex parte basis, the fourth paragraph of article 1041 of
the ZPO provides for a statutory duty on the part of the requesting
party to indemnify the party against whom the interim measure is
directed if the measure is subsequently shown to have been unjusti-
fied from the outset. This is consistent with the approach to court-
ordered interim measures in Germany – under article 945 of the
ZPO, a party applying for an interim measure of protection from
the courts will be liable for damages sustained by the responding
party if the measure proves to have been unjustified from the outset.
As such, the same principle has been applied to interim measures
granted by both the courts and those granted by arbitral tribunals.
The German provisions demonstrate a risk-based, strict liability
approach, which does not require any improper or wrongful act on
the part of the requesting party.
Article 1041(4) of the ZPO allows a claim for indemnification to be
brought up during the relevant arbitral proceedings, regardless of the
scope of the arbitration agreement.92 Where an interim measure of
protection has been applied for and granted before the courts, and the
dispute is one that is subject to arbitral proceedings, the arbitral tribunal
91
J. Schäfer, ‘Part II: Commentary on the German Arbitration Law (10th Book of the
German Code of Civil Procedure), Chapter IV: Jurisdiction of Arbitral Tribunal,
§ 1041 – Interim Measures of Protection’ in K. H. Böckstiegel, S. M. Kröll and P.
Nacimiento (eds), Arbitration in Germany: The Model Law in Practice, 2nd edn
(Kluwer, 2015), p. 226.
92
Ibid., p. 235.

450 article 1 7 g: c osts a n d d amag es
shall have jurisdiction over the subsequent liability claim arising out of
the grant of the interim measure.93
To further alleviate the concerns of fairness between the parties as
regards interim measures and attendant liability, article 1041 of the ZPO
is not a mandatory provision – thus, the parties may elect to opt out of
interim measures of protection as part of their arbitral agreement.94
7. Liability for Interim Measures Requested in Good Faith

As discussed above, the Model Law approach to liability hinges upon the
grant of the interim measure being inappropriate or unjustified at the
outset, thus incorporating a notion of improper conduct on the part of
the party who had sought the interim measure. This raises the issue of
whether or not liability ought to be imposed on a requesting party who
had sought the interim measure in good faith, even if that interim
measure is ultimately found to be inappropriate or unjustified.
The Swiss Code of Civil Procedure provides that in respect of domestic
arbitrations, the beneficiary of an interim measure shall be liable for
damages if the measure ultimately turns out to be unjustified. However,
where the arbitral tribunal is satisfied that the requesting party was acting
in good faith when it sought the interim measure, the damages that the
requesting party is liable for may be reduced or, at the discretion of the
arbitral tribunal, the requesting party may be relieved entirely of that
liability. Article 374(4) of the Swiss Code of Civil Procedure provides as
follows:
The petitioner is responsible for damage caused to the other party by
unjustified interim measures. If he can prove that the petition was made in
good faith, the tribunal may reduce or refuse to award damages. Claims
may be raised during arbitral proceedings that are pending.95
This requirement of good faith has been described as an ‘interesting’

addition to the approach to liability for interim measures that are later
found to be inappropriate or unjustified.96 In view of how an arbitral
93
R. H. Kreindler and J. Schmidt, ‘Part II: Commentary on the German Arbitration Law
(10th Book of the German Code of Civil Procedure), Chapter II: Arbitration
Agreement, § 1033 – Arbitration Agreement and Interim Measures by Court’ in
Böckstiegel et al. (n. 91), p. 143.
94
Ibid., p. 227.
95
Civil Procedure Code of Switzerland of 19 December 2008 (Status as of 1 January 2018).
96
Law Jurisdictions, 3rd edn (Sweet & Maxwell, 2010), p. 264.

8. liability of a rbitral t ribunal? 451
tribunal may assess whether or not an interim measure is appropriate or

justified, such as indications of misconduct, if the requesting party has
withheld information or been misleading in its representation of the need
or urgency of the interim measure, it is somewhat difficult to see where
‘good faith’ may play a role, as it appears that the Model Law approach to
liability for interim measures seems to turn on bad faith.97
It should be further noted that the Swiss Private International Law Act,
which applies to international arbitration, has no equivalent or counter-
part provision in respect of good faith and the requesting party’s liability.
It is suggested that in international arbitrations seated in Switzerland,
therefore, applying the Private International Law Act, the requesting
party incurs liability if the measure turns out to have been unjustified,
and the arbitral tribunal will have jurisdiction to hear the claim for
liability.98 Thus, the requesting party may still incur liability for an
inappropriate or unjustified interim measure even if the final arbitral
disposition of the claims on the merits is in favour of the requesting party.
For example, if the party withheld important information or produced
false information when the arbitral tribunal assessed the urgency of the
matter and the harm that the requesting party would likely suffer, the
measure would have been unjustified and liability would follow.99 This
approach demonstrates that the results on the merits should not be the
sole consideration when determining whether or not an interim measure
is justified.
8. Liability of Arbitral Tribunal?

Article 17G, in one commentator’s view, interestingly refers to the
liability of an arbitrator (or lack of liability) in an indirect way – by
providing that the requesting party, but not the arbitral tribunal, should
bear liability as regards costs or damages arising from interim measures
or preliminary orders that are found to be inappropriate or unjustified.100
As discussed above, during the drafting stages of article 17G, care was
taken to avoid making arbitrators, as well as requesting parties, liable for
inappropriate or unjustified interim measures. Obviously, the protection
97
Ibid., p. 263.
98
99
C. Boog, ‘Part II: Commentary on Chapter 12 PILS, Article 183 (Procedure: Provisional
and Conservatory Measures)’ in M. Arroyo (ed.), Arbitration in Switzerland: The
Practitioner’s Guide (Kluwer, 2013), p. 120.
100
Binder (n. 96), p. 263.

452 article 1 7g: cos ts and d ama ges
of arbitrators is of paramount importance, as the prospect of incurring

liability may well affect the impartiality and ability of arbitrators to
perform their duties fully.
Thus, Mexico’s arbitration law, as one commentator suggests, has
adopted an unusual approach in respect of the issue of liability.101 The
Mexican legislation applies to both domestic and international arbitra-
tion.102 Article 1480 of the Mexican Commercial Code, as amended in
2011, provides that: ‘The party requesting an interim measure, as well as
the arbitral tribunal granting it, are liable for any costs and damages
caused by the measure.’103
The inclusion of liability of arbitrators for costs and damages arising
from the granting of interim measures is clearly inconsistent with the
intention of the way in which article 17G was drafted. It remains unclear
whether under the Mexican jurisdiction the liability of an arbitrator can
be excluded with reference to other arbitration rules or terms of refer-
ence.104 Furthermore, it remains to be seen whether or not such provi-
sions, which include liability for arbitrators for interim measures, will
serve to discourage arbitrators from granting interim measures of
protection.
101
102
D. J. Figueres, ‘Enforcement in Latin America of Provisional Measures Ordered by Arbitral
Tribunals. Where We Are? Where We Can Go?’ in U. Celli Junior, M. Basso and A. do
Amaral Júnior (eds), Arbitragem e Comércio Internacional Estudos em Homenagem a Luiz
Olavo Baptista (Quartier Latdo Brasil, 2013), pp. 675, 678, http://djarbitraje.com/pdf/
603Borrador%20Liber%20Amicorum%20LOB%20_final%202%20con%20nota.pdf.
103
Emphasis added. Original text in Spanish states as follows: ‘De toda medida cautelar
queda responsable el que la pide, así como el Tribunal Arbitral que la dicta, por
consiguiente son de su cargo los daños y perjuicios que se causen.’ Figueres, ibid., pp.
675, 683.
104
Herinckx (n. 2), p. 257. In major common law jurisdictions, arbitrators enjoy a status
akin to judges, where traditionally they have been excluded from liability arising from
arbitral proceedings. For example, in Singapore, by virtue of s. 20 of the Arbitration Act
which came into force on 1 March 2002, an arbitrator is not liable for negligence in
respect of anything done or omitted to be done in discharge of his functions as an
arbitrator, nor any mistake of law, fact or procedure made in the arbitral proceedings or
in the making of an arbitral award. However, in other jurisdictions, especially civil law
jurisdictions such as Germany and Austria, arbitrators are treated solely as professionals
and they can be held liable in damages for any wrongful conduct that caused loss to the
parties.

Article 17H
Recognition and Enforcement

ma nuel a. góm ez
(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 17I.
(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.

The effectiveness of arbitration cannot rest solely on the final award, but
also on the availability of mechanisms that can secure the parties’ rights
throughout the process. The most common solution to this potential
shortcoming is found in the different mechanisms for preliminary relief
(e.g. interim measures) that can be issued by the arbitral tribunal1 or the
1
Interim measures may also be ordered by an emergency arbitrator prior to the appoint-
ment of the arbitral tribunal, as allowed by a growing number of institutional arbitration
rules. Some of the leading institutions such as the ICC, the LCIA, the HKIAC, the CIArb.
and the SIAC have embraced the concept of the emergency arbitration. See: ICC
Arbitration Rules, art. 29; LCIA Arbitration Rules, art. 9(B); HKIAC Arbitration Rules,
Sch. 4; CIArb. Arbitration Rules, app. I; and SIAC Rules, Sch. 1. For an expanded
discussion about the main issues surrounding the issuance of interim measures by
emergency arbitrators, see G. Marchisio, The Notion of Award in International
Commercial Arbitration: A Comparative Analysis of French Law, English Law, and the
UNCITRAL Model Law (Kluwer, 2017), pp. 141 et seq. See also L. Ortiz-Alvarez, ‘Toward
453

454 article 1 7h: recognition and e nforcement
competent State courts. When an interim measure is issued by the

latter, its effectiveness will depend both on that court’s coercive author-
ity as stipulated by the relevant laws of that jurisdiction2 and – perhaps
more importantly – on the possibility of an interim measure being
recognised and enforced abroad.3 The recognition and enforcement
of interim measures issued by a court seated in the territory of a State
different from where enforcement is sought has been at the epicentre of
an important debate for several years.4 The crucial question is not
whether State courts have coercive authority to enforce interim mea-
sures, but rather whether those courts can exert jurisdiction over the
matter.
The possibility of the worldwide enforceability of arbitral awards
offered by the New York Convention might seem like an easy solution
for recognising and enforcing interim measures issued in the context of
arbitral proceedings. Nevertheless, there are some important obstacles
such as the applicability of the New York Convention regime only to
awards5 and not to orders,6 the lack of jurisdiction of the court of the seat
over assets held in a foreign country7 and the lack of uniform ‘criteria for
an Effective System of Interim Relief in International Arbitration’ (2017) 11 World Arb. &
Med. Rev. 72.
2
See Ortiz-Alvarez, ibid., p. 108: ‘The enforcement of interim measures requested by the
parties may involve the exercise of public authority. Therefore, the intervention of
domestic courts, having coercive powers, may appear necessary to render the measure
effective.’
3
See V. V. Veeder, ‘The Need for Cross-Border Enforcement of Interim Measures Ordered
by a State Court in Support of the International Arbitral Process’ in A. J. van den Berg
(ed.), New Horizons in International Commercial Arbitration and Beyond (Kluwer, 2005),
pp. 242, 246.
4
K. R. Hickie, ‘The Enforceability of Interim Measures of Protection Granted by Arbitral
Tribunals Outside the Seat of Arbitration: A New Approach’ (2008) 12 Vindobona J. Intl
Com. L. & Arb. 221, 223–224.
5
As per art. 17(2) of the Model Law, interim measures may be issued ‘in the form of an
award or in another form’.
6
See Ortiz-Alvarez (n. 1), p. 109. (‘Only awards are included in the New York Convention
as benefiting from worldwide enforceability. Nevertheless, sound proposals have been
made that interim relief measures shall be enforceable regardless of the form in which they
are rendered’ (emphasis in the original)). See also D. F. Donovan, ‘The Scope and
Enforceability of Provisional Measures in International Commercial Arbitration: A
Survey of Jurisdictions, the Work of UNCITRAL and Proposals for Moving Forward’ in
A. J. van den Berg (ed.), International Commercial Arbitration: Important Contemporary
Questions (Kluwer, 2003), pp. 81–82, 145, 146.
7
Ortiz-Alvarez (n. 1), p. 110. Conversely, some State courts have refused to grant or enforce
interim relief in aid of international arbitration proceedings seated in another country. See
GCZ Ingenieros SAC y Otra v. Latin America Power Perú SAC y Otras, 10 January 2017, rol
C-28.263–2016 (Chile).

enforcement of international arbitration awards’8 among national courts

and even within the courts of a single State. There is also the debate in
certain jurisdictions about whether arbitral tribunals can issue worldwide
orders for preserving evidence or assets (e.g. the so-called Mareva9 and
Anton Piller10 injunctions).11 Additionally, there are important consid-
erations regarding the recognition and enforcement of foreign arbitral
awards – including interim measures issued as such – that stem from
regional legal regimes such as the Brussels I Recast, which affects the
countries of the European Union.12 Article 17H applies to any interim
measure issued by the arbitral tribunal, ‘whether the place of arbitration
is the State where recognition or enforcement is sought, outside that
State, or even not yet determined’.13
As noted during the initial Working Group deliberations regarding the
enforceability of interim orders, there are instances when ‘an interim
order can be at least as or even more important than an award’.14 In a
situation where a recalcitrant party dissipates or hides their assets prior to
8
Ibid. (‘Not all the national courts of all countries – and not even inside each country, and
inside each of its subdivisions – maintain the same criteria for enforcement of interna-
tional arbitration awards’). See also Veeder (n. 3), p. 241.
9
An asset freezing order named after the English case Mareva Compania Naviera SA v. Intl
Bulkcarriers SA [1980] 1 All ER 213.
10
A search order named after the English case Anton Piller KG v. Manufacturing Processes
Ltd and Others [1976] 1 All ER 779.
11
J. Wood, ‘Freezing/Mareva Injunctions and Arbitration, in Reynolds Porter Chamberlain
LLP, International Arbitration’ Bulletin (April 2011) (‘The power of an arbitration
tribunal to make an order for interim measures and in particular an order for a pre-
award attachment, such as a freezing order or Mareva injunction, varies from country to
country and from institution to institution. In Germany, an order can be granted by the
tribunal but actual attachment is reserved for the courts’). But see Farah v. Sauvageau
Holdings Inc., 2011 ONSC 1819 (CanLII) (dismissing an application for enforcement of a
Mareva injunction awarded by a sole arbitrator).
12
EU, Regulation (EU) No. 1215/2012 of the European Parliament and the Council of 12
December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in
Civil and Commercial Matters (Recast), (2012) OJ L351/1 (Brussels I Recast). For a
discussion about the interplay between the Brussels I Recast and arbitration, including
the regime for the recognition and enforcement of arbitral awards, see N. Dowers and Z.
S. Tang, ‘Arbitration in EU Jurisdiction Regulation: Brussels I Recast and a New Proposal’
(2014) 3 Groningen J. Intl L. 125–146. See also T. Hartley, ‘The Brussels I Regulation and
Arbitration’ (2014) 63 ICLQ 843–866; and see F. De Ly, ‘The Interface between
Arbitration and the Brussels Regulation’ (2016) 5 Am. ULR 485–510.
13
See H. M. Holtzmann, J. E. Neuhaus, E. Kristjansdottir and T. W. Walsh, A Guide to the
2006 Amendments to the UNCITRAL Model Law on International Commercial
Arbitration: Legislative History and Commentary (Kluwer, 2015), pp. 181–184.
14
Note by the Secretariat, Possible Future Work in the Area of International Commercial
Arbitration, UN Doc. A/CN.9/460 (6 April 1999), 29, para. 117. See also Veeder (n. 3).

456 article 1 7h: recogniti on and e nforcement
the conclusion of the arbitration, the outcome of the proceedings may

become largely useless, and a final award rendered against them would be
of little or no value to the prevailing party and to the arbitral process in
general.15 Having this possibility in mind, ‘the question of enforceability
of interim measures of protection by an arbitral tribunal’16 became one of
the first topics raised by members of the Commission when setting their
agenda to amend the Model Law. Commission members agreed that this
issue ‘was of utmost practical importance’17 and that the Commission’s
work on this matter ‘would constitute a real contribution to the practice
of international commercial arbitration’.18
Despite some initial disagreements in terms of what would be the best
contribution by the Commission regarding the enforcement regime of
interim measures of protection, a decision was made to channel the efforts
towards a model legislation instead of a convention. Even then, the
deliberative process that led to the drafting of article 17H – similarly to
the other provisions related to interim measures of protection – was not
free of discrepancy. The views ranged from those who were opposed to
allowing arbitral tribunals to issue interim measures in the first place, to
those who deemed their recognition an essential feature of a robust inter-
national arbitration framework. Within such a broad range of views, some
questioned the real necessity of making interim measures enforceable
because ‘parties tend to comply with such measures anyway’.19 Others,
however, justified the need to regulate them based on the ‘many cases
where the party refuses to comply with the interim measure without regard
to the potential adverse consequences, such as responsibility for costs’.20
This was not the first time that the Commission had considered
regulating the enforcement regime of interim measures. During the
deliberations held in the mid-1980s about the substance of the original
version of article 17, a proposal had been made to include a sentence that
allowed the arbitral tribunal to ‘request [a competent court] [the Court
specified in article V] to render executory assistance’.21 However, the
15
S. Menon and E. Chao, ‘Reforming the Model Law Provisions on Interim Measures of
Protection’ (2006) 2 Asian Intl Arb. J. 17–21.
16
Report of UNCITRAL on the Work of Its Thirty-Second Session, UN Doc. A/54/17
(1999), 45, para. 370. See also UN Doc. A/CN.9/460 (n. 14), 28–31, paras 115–127.
17
Ibid., UN Doc. A/54/17 (1999), 45, para. 370.
18
Ibid.
19
UN Doc. A/CN.9/460 (n. 14), 29, para. 118.
20
Ibid.
21
Report of the Secretary-General, Possible Uniform Rules on Certain Issues Concerning
Settlement of Commercial Disputes: Conciliation, Interim Measures of Protection,

1. ba ckgr ound and t r a v a u x p r é paratoires 457
Working Group had decided to eliminate the sentence because ‘it dealt in
an incomplete manner with a question of national procedural law and
court competence and was unlikely to be accepted by many states’.22 The
opportunity of revisiting the topic was embraced by Working Group
members who decided to examine the enforceability issue with sufficient
depth.
In order to assess the status of the national laws regarding the enforce-
ability regime of interim measures, States and international organisations
were invited to provide information to the Working Group.23 The
responses revealed a wide range of approaches that went from total
silence on this point to comprehensive regulation regarding the enforce-
ment of interim measures. Some States that belonged to the latter group
had provisions indicating that ‘when a party does not comply with the
order by the arbitral tribunal, the arbitral tribunal may request assistance
from the court for the enforcement order’.24 In other States, the request
for assistance had to be made by the party, sometimes ‘with permission of
the tribunal and upon notice to the other party’.25
There were also variations regarding how the enforcing court would
treat the interim measure for the purpose of its enforcement. Would the
interim measure be treated as an award and therefore subject to the same
provisions governing recognition and enforcement? And would the
parties’ agreement be necessary for the interim measure to be subjected
to the enforcement regime of awards? Or should the enforcing regime
‘allow the enforcing court a degree of discretion as to how the measure is
to be enforced’?26
Another important issue was whether the enforcement measures were
to take place in the same State of the arbitration or in a foreign country.27
Regarding this latter issue, when the arbitration took place in one State and
the enforcement in another, some difficulties could arise if the enforcing
court were asked to enforce an interim measure not known or uncommon
in that court’s legal system. Furthermore, ‘the arbitration legislation in the
Written Form for Arbitration Agreement, UN Doc. A/CN.9/WG.II/WP.108 (14 January

2000), 20, para. 85. See also Report of the Working Group on International Contract
Practices on the Work of Its Sixth Session, UN Doc. A/CN.9/245 (1983), para. 70.
22
Ibid., UN Doc. A/CN.9/245.
23
Report of the Working Group on Arbitration on the Work of the Thirty-Second Session,
UN Doc. A/CN.9/468 (10 April 2000), 17, para. 84.
24
25
26
27

State of the enforcing court may exclude from the powers of an arbitral
tribunal certain types of interim measures (e.g. attachment of property or
of certain types of property)’.28 Besides national laws, the Working Group
considered the approach taken by other international instruments such as
the Brussels Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters of 1968 and the Lugano
Convention on Jurisdiction and the Enforcement of Judgments in Civil
and Commercial Matters of 1988.29
By the thirty-third session of the Working Group, the participants
had already drafted two variants of a Model Law provision that estab-
lished a regime for the enforcement of interim measures of protec-
tion.30 Variant 1 provided that ‘an interim measure of protection
referred to in article 17, irrespective of the country in which it was
made, shall be enforced, upon application by the interested party’
(emphasis added), unless certain circumstances also listed in the provi-
sion were present. These grounds for refusal included that: (1) the
application for a corresponding measure has already been made to a
court; (2) the interim measure has been set aside or amended; and (3)
the recognition or enforcement would be contrary to the public policy
of the enforcing State.31 This variant was inspired by article 36 of the
Model Law on Arbitration and article V of the New York Convention,
‘but adapted to the specific features of interim measures as opposed to
final awards’.32
Variant 2 was more straightforward and gave a certain degree of
latitude to the enforcing court by stating that ‘the court may, upon
application by the interested party, order enforcement of an interim
measure of protection referred to in article 17, irrespective of the country
in which it was made’.33 The flexibility given to the enforcing court under
variant 2 generated some concerns which in turn led to a proposal that
‘the discretion should be limited to refusing enforcement of the interim
28
Ibid., para. 95.
29
Settlement of Commercial Disputes – Preparation of Uniform Provisions on Interim
Measures of Protection, UN Doc. A/CN.9/WG.II/WP.119 (30 January 2002), 4, para. 6.
30
See Settlement of Commercial Disputes – Possible Uniform Rules on Certain Issues
Concerning Settlement of Commercial Disputes: Written Form for Arbitration
Agreement, Interim Measures of Protection, Conciliation, UN Doc. A/CN.9/WG.II/
WP.110 (22 September 2000), 21–22.
31
Ibid., 21.
32
Report of the Working Group on Arbitration on the Work of Its Thirty-Third Session,
UN Doc. A/CN.9/485 (20 December 2000), 22, para. 80.
33
Ibid., 22.

measure’.34 As a result, the provision would prevent the court from

issuing ‘an enforcement order whose substance deviate[d] from the
interim measure ordered by the arbitral tribunal’,35 or from issuing a
new order. Some opined that the approach adopted by this variant ‘was
likely to assist in those countries where there was resistance to the idea
that interim measures issued by an arbitral tribunal could be enforced’.36
On the other hand, however, this led to the concern that ‘the discretion-
ary powers entailed by variant 2 might result in lack of uniformity of
interpretation and therefore jeopardize harmonization’.37 Soon there-
after, variant 1 became article 17 decies and in the finally approved
version it was labelled as article 17I.
In addition to the aforementioned variants, the Working Group
proposed four more issues to be considered when drafting the future
Model Law provisions. The first one was a duty imposed on the party
requesting enforcement to inform the court of any changes that
implied the modification or termination of the interim measure.
This proposal was inspired by articles 18 and 22(3) of the
UNCITRAL Model Law on Cross-Border Insolvency,38 which was
adopted on 30 May 1997 with the goal of assisting ‘States to equip
their insolvency laws with a modern legal framework to more effec-
tively address cross-border insolvency proceedings concerning debt-
ors experiencing severe financial distress or insolvency’.39 The second
proposal consisted in adding a provision that required the arbitral
tribunal to approve the party’s request of judicial enforcement, so the
court ‘would have additional assurance that the circumstances have
not changed and that the measure is still regarded as necessary’.40
Another proposal was to add a provision that subjected the enforcing
court to the conditions and orders that the arbitral tribunal had
considered appropriate, therefore prohibiting the court ‘to repeat
34
35
Ibid.
36
UN Doc. A/CN.9/485 (n. 32), 22–23, para. 81.
37
Ibid., 23.
38
39
See www.uncitral.org/uncitral/en/uncitral_texts/insolvency/1997Model.html. Article 18
of the Model Law on Cross-Border Insolvency addresses the application for recognition
of foreign proceedings, and art. 22(3) gives courts the power to modify or terminate the
relief granted upon application for recognition of a foreign insolvency proceeding (arts 19
and 21). See UNCITRAL Model Law on Cross-Border Insolvency, UNGA Res. 52/158
(1997).
40
UN Doc. A/CN.9/485 (n. 32), 24, para. 65.

460 a r t i cl e 1 7 h : r eco gn i t i o n and enforc em ent
the decision-making process of the arbitral tribunal’.41 A final pro-

posal submitted to the Working Group was to add a provision that
allowed the enforcing court to adjourn its decision and order the
party to provide appropriate security.42
After additional deliberations, one delegation suggested a simpli-
fied text of a draft provision that considered five key principles.43 The
first principle was that the enforcement regime of interim measures
should be similar to the regime for final awards. The second principle
was that ‘the decision regarding the enforcement of an interim mea-
sure should have no binding effect on the subsequent process in the
arbitration’.44 The third principle was to ensure that the court had an
opportunity to verify the propriety of issuing an ex parte measure.
Another principle considered that the parties should not require
permission from the tribunal ‘before they could seek enforcement of
the interim measure before a court’,45 and the final principle was that
‘in cases where an application for enforcement was made before
several courts, those courts should be free to evaluate the best way
to proceed’.46
As the discussion on this topic progressed, and in order to facilitate its
deliberation, the Working Group considered a newly revised version of
the proposed provision on recognition and enforcement of interim
measures, which became known as ‘draft article 17 bis’.47 A proposal
was made to compile this and other provisions in a new chapter to be
titled ‘Chapter IV – Interim Measures of Protection’.48 Special concern
was expressed regarding ‘the relationship between the enforcement
regime created by article 17 bis and that set out in articles 35 and 36 of
41
42
43
UN Doc. A/CN.9/523 (11 November 2002), 25, para. 80.
44
Ibid.
45
Ibid.
46
Ibid.
47
Settlement of Commercial Disputes – Interim Measures of Protection, UN Doc. A/CN.9/
WG.II/WP.125 (2 October 2003), 2, para. 4. See also Settlement of Commercial Disputes
– Interim Measures of Protection, UN Doc. A/CN.9/WG.II/WP.131 (26 July 2004), 11,
para. 46.
48
Ibid. UN Doc. A/CN.9/WG.II/WP.125, 4, para. 5. The name finally adopted by the
Commission in its thirty-ninth session in 2006 was ‘Title IV A – Interim Measures and
Preliminary Orders’ and which was meant to be divided into five sections, of which only
one (section 4) would be devoted to the recognition and enforcement of interim measures
(arts 17H and 17I).

the Arbitration Model Law’.49 A proposal was made to include language

that clearly stated the autonomy of the recognition and enforcement
regime of interim measures set out in article 17 vis-à-vis articles 35 and
36 of the Model Law; but the Working Group declined to adopt it. In
order to avoid further confusion among the various draft legislative
provisions referring to interim measures and preliminary orders, the
Secretariat prepared a new draft that contained a restructured grouping
of paragraphs. Articles 17 novies and 17 decies resulted from this new
construction, and later on would be renamed articles 17H and 17I,
respectively.50
2. Paragraph 1
The opening sentence of paragraph 1 reaffirms one of the main
advantages of interim measures: their binding nature. Although – as
revealed by article 17C(5) – interim measures are not the only bind-
ing determinations that an arbitral tribunal may issue prior to the
final award; interim measures are the only form of preliminary
protection susceptible of being enforced by a court under the Model
Law. The binding character is inherent in the notion of interim
measures (‘an interim measure … shall be recognized as binding’),51
but their judicial enforceability is not. As we explain below, the
arbitral tribunal might provide that an interim measure is binding,
but not enforceable. In any case, the possibility of being enforced by a
court is a key differentiator between interim measures and prelimin-
ary orders.52
Paragraph 1 does not assign the recognition of the binding effect of
an interim measure to a particular person or organ. The binding effect is
meant to be recognised equally by the parties, the arbitral tribunal and,
more importantly, by any competent court to which enforcement is
requested. Despite the obvious differences that one article (article 17H)
is focused on interim measures – irrespective if issued as awards or not
– and the other article on arbitral awards (article 35), the wording of
49
50
See generally Settlement of Commercial Disputes – Interim Measures of Protection, UN
Doc. A/CN.9/WG.II/WP.141 (5 December 2005).
51
Model Law, art. 17H(1).
52
Model Law, art. 17C(5): ‘A preliminary order shall be binding on the parties but shall not
be subject to enforcement by a court.’

462 a r ti cl e 1 7 h : reco gn i t i o n and e nforc em ent
paragraph 1 is similar to article 35(1).53 The Commission kept it that

way in order to maintain consistency across the different provisions of
the Model Law. Nevertheless, the characterisation of an interim mea-
sure as an award or not has very important consequences and has been
the source of debate.54 One question that arises in this regard is whether
the enforcing court would requalify it as an interim measure and
recognise and enforce it pursuant to article 17H, or if on the contrary
and based on its characterisation as an award, it would rather recognise
it and enforce it pursuant to article 35 of the Model Law.55 The answer
to this question depends on a variety of factors, including, inter alia, the
view that one might have ‘on the proper legal characterization of
interim measures of protection’56 as awards or not. Some courts have
supported the latter position (interim measures are not awards) after
considering that ‘to be an award an arbitral decision must be final and
that, as a consequence, [an] “Interim Arbitration Order and Award” [is]
not an award’.57 Another argument for denying interim measures the
possibility of being regarded as awards considers that ‘if they were
[awards], they would be entitled to recognition and enforcement
under the NYC’,58 therefore making article 17H redundant.
53
See H. M. Holtzmann, J. E. Neuhaus, E. Kristjansdottir and T. W. Walsh, A Guide to the
2006 Amendments to the UNCITRAL Model Law on International Commercial
Arbitration: Legislative History and Commentary (Kluwer, 2005), pp. 181–184.
54
See J. Hill, ‘Is an Interim Measure of Protection Ordered by an Arbitral Tribunal an
Arbitral Award?’ (2018) 35 JOIA 1, 4.
55
Nevertheless, some have pointed out that the recognition mechanism set forth in arts 17H
and 17I ‘derived from articles 35 and 36’. R. Sorieul, ‘The Influence of the New York
Convention on the UNCITRAL Model Law on International Commercial Arbitration’
(2008) 2 Disp. Resol. Intl 38.
56
Hill (n. 54), p. 4 (‘There are three views on the proper legal characterization of interim
measures of protection: (i) such measures are not awards; (ii) such measures are awards;
(iii) such measures can be awards. As will be seen, although significant arguments can be
marshaled to support each of these views, each one also has to face up to powerful
counterarguments’).
57
Ibid., p. 5. Commenting on the oft-mentioned case Resort Condominiums Intl Inc. v. Ray
Bolwell and Another (1993) 118 ALR 655, Supreme Court of Queensland (Australia). In this
case, one of the parties to an arbitration seated in Indiana (United States) asked an
Australian court to enforce an ‘Interim Arbitration order and Award’ under the
International Arbitration Act of 1974. For an in-depth analysis of the Resort
Condominiums v. Bolwell case, see M. Pryles, ‘Interlocutory Orders and Convention
Awards: The Case of Resort Condominiums v. Bolwell’ (1994) 10 Arb. Intl 385, 392–393;
O. Chukwumerije, ‘Enforcement of Foreign Awards in Australia: The Implications of
Resort Condominiums’ (1994) 5 Australian Dispute Resolution J. 237, 245.
58
Hill (n. 54), p. 8.

Other courts have adopted the view that ‘an Interim Final Order –
which was in the nature of an interim injunction – was an interim award
which was capable of being confirmed (or vacated) by the court’.59 In
other words, the position was that a temporary injunction that had an
element of finality was subject to being enforced regardless of whether the
arbitral tribunal had called it or not called it an award.60 Finally, there is
the view that considers that even though ‘an interim measure is not
necessarily an award, such a measure can be an award’;61 that is, interim
measures ‘may be issued either in the form of an award or in another
form’62 and still be subject to an action to be set aside and a request for
enforcement. This position is based on the notion that ‘what constitutes
an award is generally a question of substance than of form’.63 As a result,
‘the enforcement of provisional measures under [article 17H] is not
conditional on form, which is left to article 17(2)’.64
The next proviso of paragraph 1 leaves to the arbitral tribunal the
discretion to decide (‘provide’) whether or not a binding interim measure
is susceptible of being enforced ‘upon application to the competent
court’.65 Given that the arbitral tribunal is the one that issued the interim
measure in the first place, that arbitral tribunal is likely to be in the best
position to determine what effects its own interim measure will hold. The
59
Ibid.
60
See e.g. Publicis Communication v. True North Communications, Inc., 206 F.3d 725 (2nd
Cir. 2000) (finding that an arbitral tribunal’s decision labelled as an ‘order’ instead of
‘award’ was enforceable because it was final); see also Yasuda Fire & Marine Insurance Co.
of Europe v. Continental Casualty Co., 37 F.3d 345 (7th Cir. 1994) (finding that an interim
order of security was final and thus could be immediately challenged); see also Pacific
Reinsurance Management Corp. v. Ohio Reinsurance Corp., 935 F.2d 1019 (9th Cir. 1991)
(finding that an interim final order providing temporary equitable relief was final and
subject to confirmation); see also Island Creek Coal Sales Co. v. City of Gainesville, 729
F.2d 1046 (6th Cir. 1984) (finding that an arbitral interim order that disposed of separate,
discreet and self-contained issues was final and subject to confirmation).
61
Hill (n. 54), p. 7 (emphases in the original).
62
Ibid. (emphases in the original).
63
See Menon and Chao (n. 15), p. 7. (‘The tribunal may, if it chooses, order a temporary
measure in the form of an award but it is not obliged to. This has little significance in
relation to such issues as enforcement and recourse against the measure because what
constitutes an award is generally a question of substance than of form’) (emphasis added).
See also Hill (n. 54), p. 8 (‘The substance-over-form principle is supported by Resort
Condominiums International Inc v. Bolwell … The same approach was adopted by the
Singapore Court of Appeal in PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA’).
64
G. Marchisio, The Notion of Award in International Commercial Arbitration: A
Comparative Analysis of French Law, English Law, and the UNCITRAL Model Law
(Kluwer, 2017), p. 171.
65
Ibid.

464 article 1 7h: recognition and e nfo rcement
parties must always be given the opportunity to present their case (i.e. to
furnish all the necessary facts and circumstances to the tribunal) and,
hence, the arbitral tribunal’s choice whether to confer enforceability
upon the interim measure is not a power to be exercised arbitrarily. The
fact that paragraph 1 states that the enforcement of an interim measure
occurs ‘upon application to the competent court’66 also reaffirms that ‘a
party does not need the permission of the arbitral tribunal to request
recognition or enforcement of an interim measure, and an interim
measure may be recognized and enforced in multiple jurisdictions’.67
The commitment of the Model Law towards the international enforce-
ability of interim measures is reaffirmed by the words ‘irrespective of the
country in which it was issued’.68 This is an obvious reference to the fact
that an interim measure may be issued by an arbitral tribunal situated in
the territory of one State and enforced in the territory of another.
Furthermore, this provision ‘reinforces the flexibility found in the 2006
amendments to the Model Law, which, essentially are geared toward
guaranteeing the maximum degree of enforcement of provisional mea-
sures, indicating that the form of these arbitral decisions will not harm
their effectiveness’.69 Albeit being clearly endorsed by the Model Law, the
possibility of a transnational enforceability of interim measures of pro-
tection issued by an arbitral tribunal is far from being settled in practice,
and national regimes differ greatly in that regard,70 ‘with the interna-
tional case law pointing in different directions’.71
Even though the arbitration laws of many countries are still ‘“outdated”,
“fragmentary”, and/or “too domestic”, making them inappropriate for
66
67
68
See G. B. Born, International Commercial Arbitration, 2nd edn (Kluwer, 2014), pp. 2517–
2519.
69
Marchisio (n. 64), p. 171.
70
Interestingly, the lack of harmonisation among different national laws is precisely what
prompted the UNCITRAL Working Group to embark on an amendment of the 1985
Model Law that clarified the arbitral tribunal’s powers and established ‘uniform solutions
and procedures for arbitral tribunals to issue interim measures of protection’ (Menon and
Chao (n. 15), p. 3). Nevertheless, it seems that the solution reached by the 2006 amend-
ment did not resolve much. On the lack of uniformity across national regimes, see D.
Jones, ‘Australia’ in L. W. Newman and C. Ong (eds), Interim Measures in International
Arbitration (Juris, 2014), pp. 37–38. See also N. Pitkowitz, ‘Austria’ in Newman and Ong,
ibid., p. 65; B. Hanotiau, ‘Belgium’ in Newman and Ong, ibid., p. 84; J. B. Casey and J.
Mills, ‘Canada’ in Newman and Ong, ibid., p. 130; and J. M. Marchan, ‘Ecuador’ in
Newman and Ong, ibid., pp. 225–226.
71
See generally T. Kojovic, ‘Court Enforcement of Arbitral Decisions on Provisional Relief
– How Final Is Provisional?’ (2001) 18 JOIA 511.

arbitration of international commercial disputes’,72 there are States that

have adopted article 17H(1) in its original form, but the lack of case law
prevents us from discerning whether there have been any obstacles in its
application.73 There are also States, such as New Zealand, which despite
having adopted a nearly identical text to article 17H of the Model Law,
maintain legal impediments preventing parties from challenging interim
measures issued by arbitration tribunals seated in New Zealand ‘by means
of applications for setting aside’.74 The specific obstacle in this case stems
from the fact that only decisions on the substance of the dispute are
considered awards, which may exclude interim measures of protection.75
A similar hurdle regarding the enforceability of interim measures that
stems from them not being considered awards was discussed by a
Canadian court in Inforica Inc. v. CGI Information Systems and
Management Consultants Inc.76 After reviewing an order for security for
costs issued by the arbitrator, the court decided that ‘the application judge
did not have jurisdiction to entertain the application to set aside’77 because
said order was not an award within the meaning of section 46(1) of the
Arbitration Act.78 In other countries such as Switzerland, ‘tribunal-ordered
interim measures are not as such enforceable titles and thus are not open to
the rules governing the enforcement of arbitral awards, irrespective of the
form they are granted’.79 At the other end of the spectrum, there are States
such as the People’s Republic of China where the ‘arbitration law does not
provide an operable enforcement mechanism for interim measures, save
that the CPL [Civil Procedural Law of the People’s Republic of China]
provides several methods for the enforcement of interim measures for
72
D. Jimenez-Figueres, ‘Are We Beyond the Model Law – Or Is It Time for a New One?’
(updated from original publication in the Kluwer Arbitration Blog, 24 May 2013), p. 1.
73
See e.g. Ley 27449 de Arbitraje Comercial (Argentina), art. 56; Ley No. 8937 sobre
Arbitraje Comercial Internacional (Costa Rica), art. 17H(1); Código de Comercio
(Mexico), art. 1479; and The Arbitration Act, 2017 (Jamaica), s. 27.
74
Hill (n. 54), p. 19.
75
Ibid. See also Arbitration Act 1996, s. 2 (reprint as at 1 January 2018) (‘Award means a
decision of the arbitral tribunal on the substance of the dispute and includes any interim,
interlocutory or partial award’).
76
Inforica Inc. v. CGI Information Systems and Management Consultants Inc. [2009] ONCA
642 (Canada).
77
Ibid., 2.
78
Ibid. (‘In the circumstances, the only possible sources for the application judge’s jurisdic-
tion were s. 17(8) and s. 46(1) of the Arbitration Act, 1999’).
79
See C. Boog, ‘Interim Measures in International Arbitration’ in M. Arroyo (ed.),
Arbitration in Switzerland: The Practitioner’s Guide, 2nd edn (Kluwer, 2018), p. 2559.
See also Federal Statute on Private International Law (Switzerland), art. 193(2).

466 article 1 7h: recogni tion and e nfo rcement
preserving property which are identical to those in litigation proceed-

ings’.80 Finally, there are jurisdictions such as Hong Kong,81 where article
17H was not adopted, but the domestic arbitration legislation includes
provisions that enable interim measures to be enforced ‘whether inside or
outside Hong Kong, in the same manner as an order of the court that has
the same effect’.82
The final sentence of paragraph 1 serves as a bridge between the
general rule providing for the enforceability of interim measures and
the limited grounds set forth in article 17I. The problem is that not all
Model Law jurisdictions have adopted both articles 17H and 17I (or
neither, for that matter), so the interaction between them is not always
possible. In the case of Hong Kong, for example, the Arbitration
Ordinance adopted article 17H, but not 17I.83 A different situation is
found in Lithuania, where, despite being considered a Model Law coun-
try, its ‘Law on Commercial Arbitration neither has any special provi-
sions regulating the enforcement of interim measures ordered by an
arbitral tribunal, nor indicates the procedural form according to which
interim measures could be taken by an arbitral tribunal’.84
3. Paragraph 2
Paragraph 2 is essentially a disclosure obligation imposed on a party
regarding changes that affect an interim measure. Only ‘the party who is
seeking or has obtained recognition or enforcement of an interim mea-
sure’85 is affected by this provision. This obligation makes sense with
regard to the party seeking to obtain the recognition and/or enforcement
of an interim measure, as they might not have an incentive to disclose a
change in the circumstances – especially if those changes are negative to
their case or position. By contrast, the party against whom the measure is
80
C. Manjiao, ‘Is It Time for Change? A Comparative Study of Chinese Arbitration Law and
the 2006 Revision of UNCITRAL Model Law’ (2009) 5 Asian Intl Arb. J. 155.
81
Arbitration Ordinance ER 1 of 2018 (Hong Kong, SAR), s. 61.
82
S. Ali, ‘Hong Kong Special Administrative Region, China: The Adoption of the
UNCITRAL Model Law on International Commercial Arbitration in Hong Kong’ in G.
F. Bell (ed.), The UNCITRAL Model Law and Asian Arbitration Laws: Implementation
and Comparisons (Cambridge University Press, 2018), p. 19.
83
Arbitration Ordinance, s. 44 (‘Article 17I of the UNCITRAL Model Law does not have
effect’).
84
N. Kaminiskiene, ‘Application of Interim Measures in International Arbitration: The
Lithuanian Approach’ (2010) 119 Jurisprudencija 256.
85

directed obviously has an interest to inform the court and is likely to do so

even in the absence of an obligation – if that is practically possible – by
resisting recognition and enforcement. Regarding the moment when the
obligation arises, paragraph 2 uses the adverb ‘promptly’ instead of referring
to a specific time frame. This way, the Model Law avoids clashing with
national legal regimes that might contain provisions indicating specific times
for fulfilling this type of legal obligation. In any case, ‘promptly’ denotes that
the act of informing the court should occur ‘soon thereafter’ or ‘as soon as
practicable’ after the party has become aware of the termination, suspension
or modification of the interim measure. In this sense, courts have established
that ‘to do something promptly is to do it without delay and with reasonable
speed’,86 ‘as the occasion demands’;87 so in the case of paragraph 2, such
occasion would likely be as soon as the party becomes aware of ‘any
termination, suspension or modification of that interim measure’.88 The
obligation to inform the court also ‘continues for the duration of the
measure’.89 Regarding the content of the information to be furnished to
the court, paragraph 2 expresses in broad terms that it should include ‘any
termination, suspension or modification of that interim measure’.90 All of
these changes may be the consequence of determinations made by the
arbitral tribunal (e.g. based on a change in the circumstances communicated
to the tribunal pursuant to article 17F, upon application of any party, or as a
result of the tribunal’s own initiative, according to article 17D) or any other
reasons (e.g. suspension or termination of the interim measure decreed by
the court of the State where the arbitration takes place).
Imposing the obligation to inform on the party that seeks the judicial
recognition and enforcement of the interim measure is perhaps the most
effective way to ensure that the enforcing court has the most up-to-date
information regarding the circumstances surrounding the interim mea-
sure. After all, the enforcing court has no formal way to communicate
directly or expeditiously with the arbitral tribunal and has no authority
86
See Application of Beattie (1962) 4 Storey 506, 180 A.2d 741, Superior Court of Delaware,
744. See also ‘Promptly’, Black’s Law Dictionary (West Publishing, 1990), p. 1214.
87
United States v. Quillen, 468 F. Supp. 480; see also Missouri, K. & T. Ry. Co. v. Missouri
Pac. Ry. Co., 103 Kan. 1 175 P.97 (Mem.), Supreme Court of Kansas, 97, 103 (‘“Promptly”
is the adverbial form of the word “prompt,” which means ready and quick to act as
occasion demands’).
88
89
H. M. Holtzmann, J. E. Neuhaus, E. Kristjánsdóttir et al. (eds), A Guide to the 2006
Legislative History and Commentary (Kluwer, 2015), p. 183.
90

468 a r ti cl e 1 7 h : reco g n i t i o n and e nforc em ent
over it. Additionally, if it turns out that the arbitral tribunal and the
enforcing courts are in the territories of different States, any commu-
nication between them might be difficult if, for example, the arbitral
proceedings are conducted in a different language from that of the court.
As a result, the parties are the only conduit between the arbitral tribunal
and the enforcing court.
A final point regarding paragraph 2 is that it omits any reference to a
potential adverse consequence or sanction to be borne by the party that
fails to comply with the duty to inform the court. This is clearly an area
that the Model Law left to the province of the law of the State where the
enforcing court sits; so, if any adverse inference is to be drawn or a
sanction is to be imposed as a result of the party’s failure, such inference
or sanction would have to be determined by the court according to its
local rules.91 Additionally, the Model Law has created another safeguard
by allowing the party against whom the interim measure is invoked to
seek the refusal of its recognition or enforcement ‘when the interim
measure has been terminated or suspended’92 as indicated in article 17I.
4. Paragraph 3
The third and final provision of article 17H grants the enforcing court a
certain degree of discretion to decide whether to ‘order the requesting
party to provide appropriate security’.93 The first element that stands out
is that the obligation to post security may be imposed only on the
requesting party. After all, the court must balance the requesting party’s
right to access a swift and effective judicial protection and the other
parties’ right to recover any costs incurred in defending their position
or being compensated for damages caused by the measure.94 The under-
lying rationale for this obligation is the long-standing principle that the
costs should follow the event.
Paragraph 3 uses the words ‘proper’ and ‘appropriate’ as references for
the court regarding an order issued to instruct the party to provide
security (‘if it considers it proper’) and for the court’s determination of
91
Depending on the specific rules prevalent in each country, courts are generally believed to
hold an ‘inherent power to impose sanctions as a means to control litigants’, United States
v. Jones (2012) 505 Fed. Appx 192.
92
Model Law, art. 17I(1)(3).
93
94
Separately, art. 17G establishes a liability regime for the requesting party of an interim
measure or a preliminary order.

4 . p ar agr ap h 3 469
the amount of that security (‘appropriate security’). The decision of what

is proper or appropriate and what is not will obviously depend on the
pertinent rules and standards in the territory of the enforcing court and
goes beyond the scope of the Model Law.95 In some instances, the
decision to order the requesting party to post security is discretionary;96
whereas in others, the law contains a mandatory language that limits
the court’s discretion in this regard.97 Sometimes, the domicile of the
requesting party vis-à-vis the jurisdiction where enforcement of the
interim measure is sought plays a key role in determining the obligation
to post security. As a result, if a litigant/party (i.e. the requesting party, in
our case) is a foreign national or is domiciled in the territory of another
State (a peregrinus or alien claimant),98 the enforcing court may require a
cautio judicatum solvi.99 It is important to note, however, that several
international conventions have significantly narrowed down the applic-
ability of the national legal provisions requiring the foreign litigant to
post security.100 Even though the aforementioned regimes are often
created to regulate litigation in State courts and not arbitration proceed-
ings, their applicability to the latter ‘could be derived from an analogous
95
J. Waincymer, Procedure and Evidence in International Arbitration (Kluwer, 2012),
p. 642.
96
See generally L. W. Newman and C. Ong (eds), Interim Measures in International
Arbitration (Juris, 2014). See also Shipping Co., Ltd v. Ferruzzi Trading USA Inc., 56
F.3d 394 (1995) (reaffirming the broad judicial discretion of the courts in admiralty
actions, ‘to order party to post security for costs, which may include premium for bonds
obtained to release attachment’).
97
But see Stansbury v. Hopkins Hardwoods, Inc., US District Court, WD Kentucky,
Owensboro Div., 24 June 2016 (establishing that, despite the mandatory language of
the rule regarding the posting of security, ‘the district court may dispense with the filing
of a bond when it concludes there is no realistic likelihood of harm to the [non-movant]
from enjoining his or her conduct’). See also Appalachian Regl Healthcare, Inc. v.
Coventry Health & Life Ins. Co., 714 F.3d 424, 431 (6th Cir. 2013).
98
The condition of peregrinus, alien or foreign litigant may be determined based on the
nationality, domicile or residence. See generally E. Tellechea, ‘Procedural Issues Related
to Private International Family and Minority Relationships in the Current Inter-
American and Mercosur Private International Law’ (2011) 44 Boletín Mexicano de
Derecho Comparado 1.
99
See e.g. Code of Civil Procedure (Brazil), art. 835; Code of Civil Procedure of Geneva
(Switzerland), arts 102, 103; Code of Civil Procedure (Austria), art. 15; German Code of
Civil Procedure, ZPO (Germany), s. 110; for a general discussion about the duty of the
claimant to post security in the context of arbitral proceedings, see O. Sandrock, ‘The
Cautio Judicatum Solvi in Arbitration Proceedings’ (1997) 14 JOIA 17–37.
100
Sandrock, ibid., p. 21. Some of those conventions include the Hague Convention on Civil
Procedure (1954), the European Convention on Establishment (1955), the Convention
on the Contract for the Carriage of Goods by Road (1956) and a number of bilateral
treaties of friendship, commerce and navigation. See ibid., p. 20.

470 a r ti cl e 1 7 h : reco g n i t i o n and e nforc em ent
application of the statutory provisions in effect for proceedings

before State courts’.101 In any case, it is likely that the judicial
enforcement action of an interim measure would be deemed to fall
within the realm of litigation in State courts in great part because
courts are the only ones with power to enforce the arbitrators’
decisions,102 therefore making the discussion of the analogous appli-
cation unnecessary.
The enforcing court would be the one applying its own local rules
regarding the posting of security. As a result, the factors to take into
account,103 the criteria for determining the amount to set as security
(e.g. a percentage or a proportion of the amount of the interim
measure or the value or the assets covered by it)104 and the degree
of discretion afforded to that court will be obviously guided by those
local rules. If the application of said local rules limits or restricts the
court’s discretion in deciding whether to order the requesting party
to provide security, that would not be incompatible with the Model
Law – one of its main purposes being to provide guidance and not
to clash with the internal order of a State.
National courts have generally borrowed from the regulation of
interim measures in the context of litigation to decide on matters
related to the recognition and enforcement of interim measures
issued by international arbitral tribunals. After all, the courts
101
Ibid., pp. 21, 22.
102
Pacific Reinsurance Management (n. 60), 1022–1023 (‘Arbitrators have no power to
enforce their decisions. Only courts have that power. Consequently, courts in other
circuits that have been faced with arbitrators’ temporary equitable awards have not
characterized them as non-final awards on the merits which can only be reviewed in
extreme cases. Rather, they have characterized them as confirmable, final awards on an
issue distinct from the controversy on the merits’).
103
The increased presence of parties assisted by third-party funders in international arbi-
tration has also become a factor in the determination of security for costs by arbitral
tribunals, so it is just a matter of time before State courts have to tackle this issue (if they
haven’t done it yet). The issue of third-party funding and security for costs has been
addressed by arbitral tribunals in cases such as ICSID Case No. ARB/12/10, RSM
Production Corp. v. Saint Lucia, Decision on St Lucia’s Request for Security for Costs,
13 August 2014.
104
See e.g. Futura Footwear Ltd v. Salomon SAS (5459/2011) [2012] ZAKZDHC 68 (30
October 2012) (South Africa) (‘It is a general rule of practice that a peregrinus should
provide security for an incola’s costs … The court exercises a discretion in deciding
whether or not to direct that security be furnished. It involves the weighing of the
relevant factors’); see also Exploitatie- en Beleggingsmaatschappij Argonauten 11BV
and Another v. Honig (649/2010) [2011] ZASCA 182.

are – generally105 – the only ones with power to enforce the decisions
of arbitrators.106
As per paragraph 3, the court’s power to decide whether to order the
party to provide security can be exercised only in two situations, namely:
(1) ‘if the arbitral tribunal has not already made a determination with
respect to security’,107 regardless of whether such determination was
positive or negative;108 or (2) when the decision to order the party to
provide security ‘is necessary to protect the rights of third parties’.109 The
first scenario (‘that the arbitral tribunal has not already made a determi-
nation’) is justified by the idea of respecting the authority of the arbitral
tribunal as the primary decision-maker regarding the dispute between
the parties. Moreover, the arbitral tribunal is arguably in a better position
than the enforcing court to appraise all the circumstances surrounding
the interim measure, including the determination of whether or not a
security is appropriate. The authority of the arbitral tribunal to decide
whether the party should provide security is expressly recognised by
article 17E of the Model Law.
The power created by article 17E is also discretionary, which means
that the arbitral tribunal is not obligated to make a determination
regarding security in all cases. The second scenario under which the
enforcing court may decide whether to require the party to provide
105
An exception to the rule that the courts are the only ones able to enforce the decisions of
an arbitral tribunal is found in art. 9 of Ecuador’s Arbitration and Mediation Law
of 1997. The provision expressly grants the arbitrators the power to ‘request the aid of
public, judicial and administrative officers as shall be necessary without having to resort
to any ordinary judge at the place where the property is located or where it is necessary to
adopt those measures’ (emphasis in the original). Similarly, art. 159 of Colombia’s
Decreto 1818 (superseded by Law 1563 of 2012) contained a provision that allowed
arbitrators to ‘order the property registrar directly to register the claim when the case
concerns a dispute regarding chattel’. D. Jimenez-Figueres, ‘Enforcement in Latin
America of Provisional Measures Ordered by Arbitral Tribunals. Where We Are?
Where We Can Go?’ in U. Celli Junior, M. Basso and A. do Amaral Júnior (eds),
Arbitragem e comércio internacional estudos em homenagem a Luiz Olavo Baptista
(Quartier Latdo Brasil, 2013), pp. 675, 684, fn. 17. Another example of a national law
establishing that ‘arbitrators may enforce provisional measures themselves, with or
without support from the force public’ is found in art. 48 of Peru’s General Arbitration
Act, which also allows the parties to seek judicial assistance. Ibid.
106
See Pacific Reinsurance (n. 102). See also Jimenez-Figueres (n. 105), p. 676 (‘As things
stand today, the Dionysius holding the sword can only be the State courts since only they
have imperium’).
107
108
109
Ibid.

appropriate security is when the court considers that ‘such a decision is

necessary to protect the rights of third parties’,110 which might be other-
wise negatively affected by the interim measure. Determining the neces-
sity of ordering the party to provide security to protect the rights of third
parties is also left to the discretion of the court. The protection sought by
the enforcing court could be against a potential harm that the measure
has caused, is currently causing or might produce in the future to the
third party.111 However, since paragraph 3 does not use the word ‘harm’,
but refers more broadly to the ‘rights of third parties’, the determination
with regard to the security is not only triggered by the threat of a harm,
but could also be founded on any aspect of a right that – according to the
enforcing court – warrants protection.112 Finally, a separate but related
issue is whether the third party should be allowed to obtain direct
protection from the enforcing court. It is possible that neither the court
nor the parties to the arbitration are able to anticipate specifically
whether and how an interim measure may affect the rights of a third
party. In such a case, the question is whether that third party ‘who is
aggrieved by any such order of interim measures granted by the arbitral
tribunal’113 can appear before the enforcing court to seek protection. In
this scenario, State courts have responded in the affirmative by granting
‘a third party who is directly or indirectly affected by interim measures
granted by the arbitral tribunal [the] remedy of an appeal’.114
110
Ibid.
111
As explained in the commentary to art. 17A in this book, when listing the conditions for
granting interim measures, art. 17A(1)(a) entertains the possibility that the issuance of
an interim measure of protection may result in harm ‘to the party against whom the
measure is directed’.
112
See C. O. D. Branson, QC, ‘The Enforcement of Interim Measures of Protection
“Awards”’ in A. J. van den Berg (ed.), International Commercial Arbitration:
Important Contemporary Questions (Kluwer, 2002), p. 174.
113
Prabhat Steel Traders Pvt. Ltd v. Excel Metal Processors Pvt. Ltd and Others, Bombay
High Court (31 August 2018) (India), para. 42.
114
Ibid., para. 50 (‘In view of the fact that powers of Court under section 9 to grant interim
measures and powers of the arbitral tribunal under section 17 of the Arbitration Act are
identical in view of the amendment to section 17 with effect from 23rd October 2015, in
my view, even a third party who is directly or indirectly affected by interim measures
granted by the arbitral tribunal will have a remedy of an appeal under section 37 of the
Arbitration Act’).

Article 17I
Grounds for Refusing Recognition

or Enforcement*
(1) Recognition or enforcement of an interim measure may be refused

only:
(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 con-
ferred upon the court unless the court decides to reformu-
late 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.
*
The conditions set forth in article 17I 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 harmonisation sought to be achieved by these model provisions if a State were to
adopt fewer circumstances in which enforcement may be refused.
473

474 article 1 7i: refusing recognition or enforcement
(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.
The discussion of the Working Group centred around two variant
drafts of the provision concerning refusal of recognition or enforce-
ment. The two initial variants of article 17 bis considered the discretion
of the courts in granting interim measures of protection. Initial Variant
1 set out six exceptions to a principle of enforcement upon application
to the courts, and was drafted in terms of ‘the court shall enforce, unless
…’, intended to establish an obligation to enforce if prescribed condi-
tions based on article 36 of the Model Law and article V of the New York
Convention were met.1 A comparison had previously been drawn with
the New York Convention, which also limits the reasons for which
recognition and enforcement can be refused – although the require-
ment to enforce under the Convention does not extend to interim
measures.2
Variant 2 merely empowered the courts to order enforcement, clearly
implying the discretion of the courts in respect of such enforcement, and
was drafted along the lines of ‘the court may enforce …’, expressing a
degree of discretion, on the basis of the idea that the court had a discre-
tionary power whether or not to grant enforcement consistent with the
provisional nature of interim measures. This approach was likely to assist
those member States where there was resistance to enforcing interim
measures issued by an arbitral tribunal, in addition to the fact that it was
difficult to enumerate all appropriate grounds for refusing enforcement.
However, it was generally felt that the discretionary powers under
Variant 2 might result in lack of uniformity of interpretation and there-
fore jeopardise harmonisation. It was also observed that a positive
1
Report of the Working Group on Arbitration on the Work of Its Thirty-Third Session, UN
Doc. A/CN.9/485 (20 December 2000), para. 80.
2
S. M. Ferguson, ‘Interim Measures of Protection in International Commercial Arbitration:
Problems, Proposed Solutions, and Anticipated Results’ (2003) 12 Currents Intl Trade
LJ 55.

obligation for courts to enforce interim measures might enhance their

effectiveness.3 Hence, the form of Variant 1 was retained.
Within Variant 1, the suggested wording ‘enforcement … may be
refused only’ instead of ‘shall be enforced … unless’ (in keeping with
article 36 of the Model Law and article V of the New York Convention)
was rejected due the fact that the word ‘may’ in article V of the New York
Convention had given rise to differing interpretations.4 An alternative
proposal was to formulate the provision as: ‘shall be enforced … except
that the court may at its discretion refuse enforcement if one of the
following circumstances exists …’. Although it drew some opposition
on the ground that the court should be able to rely on other grounds not
listed in the provision for refusal to enforce, or because the existence of a
ground listed in the provision should allow no other result than refusal to
enforce, it was believed that the original proposal was preferable.5
Further issues on the discretion of courts arose during the thirty-
fourth session when considering the use of ‘may, at its discretion’ and
whether refusing enforcement should be viewed as an obligation or a
mere discretion for the court. This issue arose due to the fact that the
wording was modelled on article V of the New York Convention, and the
legal regime under article 17 bis was intended to be more liberal, as legal
regimes in general had developed further since the enactment of the
Convention in 1958.6
The Working Group also considered whether article 36 might give
opportunities for delays, such as when a party raises objections regard-
ing the validity of the arbitration agreement, or alleges that proper
notice was not given regarding the appointment of an arbitrator, or of
the arbitral proceedings, or asserts that the composition of the arbitral
tribunal or the arbitral procedure relied upon was not in accordance
with the arbitral agreement or applicable laws. The possible arguments
and delays in referring a matter to the court were also considered.
However, if properly defined, flexibility and discretion to enforce
would not necessarily lead to delay.7 It was noted that the draft sub-
paragraph (1)(a)(i) (‘application for the same or similar interim mea-
sure has been made to a court in this State, whether or not the court has
taken a decision on the application’) set out a ground whereby the court
3
UN Doc. A/CN.9/485 (n. 1), para. 81.
4
Ibid., para. 85.
5
Ibid.
6
Ibid., para. 81.
7
Ibid., para. 73.

476 a r t i c l e 1 7 i : re f u s i n g re c o g n i t i o n o r e n f o r c e m e nt
should have discretion over the prevention of enforcement of the

interim measure. It was suggested that the ground was the only one
where such discretion was warranted, and the other grounds listed in
the article did not warrant such discretion.
1.1 Role of the Arbitral Tribunal

The Working Group also discussed whether it was for the interested
party or the arbitral tribunal to seek enforcement (since in some
countries, parties may not be eligible to approach the court), and
the view was expressed that the arbitral tribunal should not be put in
a position where it would have to approach a national court for the
enforcement of an interim measure it ordered. Thus, the enforcement
of interim measures should be left to the interested party.8 Moreover,
it was felt that the independence and impartiality of the tribunal may
be compromised if it substituted itself for one of the parties in
seeking enforcement.9 The independence of the tribunal would be
maintained by being concerned with granting leave, but not directing
requests for enforcement. The unsuccessful argument in favour of the
arbitral tribunal directly seeking enforcement had been based on the
view that it would essentially be seeking court assistance rather than
substituting itself for a party.10 In addition, it had unsuccessfully been
argued that the capacity of the arbitral tribunal to directly intervene
for the purpose of the enforcement of the award would greatly
contribute to the efficiency of arbitration, particularly in countries
in which it was extremely difficult for parties to apply for
enforcement by themselves.11
1.2 Form of Interim Measures

Interim measures could cover a variety of measures of protection, termed
differently in various jurisdictions, such as provisional measures, interim
awards, conservatory measures and preliminary injunctive measures,
either for the entire duration of the arbitral proceedings or modified
8
UN Doc. A/CN.9/468 (10 April 2000), para. 75.
9
Ibid., paras 77–78; Report of the Working Group on Arbitration on the Work of Its
Thirty-Fourth Session, UN Doc. A/CN.9/487 (15 June 2001), para. 78.
10
UN Doc. A/CN.9/487 (n. 9), para. 78.
11
Ibid.

1. t ra v a u x p répa ra toir es 477
during the course of the proceedings.12 Prior to the enactment of the

2006 amendments to the Model Law, the enforcement of interim mea-
sures by courts could be potentially difficult given the need to reinterpret
what an arbitral award was in order to stretch it to cover interim
measures.13
Given that the Working Group had not defined the form in which an
interim measure should be made, it was suggested that the term ‘award’
under article 36(1) of the Model Law should be clarified as covering all types
of interim measures, with no implied restriction that the grounds in article
36(1) apply only to interim measures issued in the form of an award.14
1.3 Parties against Whom It Is Invoked

It was proposed at the forty-second session that draft paragraph 2(a)
should be modified to allow both the party against whom the measure
was obtained, as well as interested third parties, to request a court to
refuse to recognise or enforce the measure. The proposals were objected
to on the grounds that draft articles 17 and 17 bis dealt only with parties
to arbitration, and this proposal would add unnecessary complexity into
the provision.15
1.4 Burden of Proof

Following the structure of article 36 of the Model Law, the distinction
between subparagraphs (a) and (b) of article 17I partly concerns the
applicable burden of proof. The grounds listed in subparagraph (a)
must be proven by the party against whom enforcement is sought,
whereas the defences in subparagraph (b) do not require such proof.
The party resisting recognition and enforcement is not required to raise
the various defences, and the court may do so on its own motion.16 It was
12
Possible Future Work in the Area of International Commercial Arbitration, UN Doc. A/
CN.9/460 (6 April 1999), para. 115.
13
R. J. J. Wong, ‘Interim Relief in Aid of International Commercial Arbitration – a Critique
on the International Arbitration Act’ (2012) 24 Singapore Academy of Law Journal
499, 501.
14
WG.II.131 (26 July 2004), para. 46.
15
Second Session, UN Doc. A/CN.09/573 (27 January 2005), para. 72.
16
F. B. Weigand (ed.), Practitioners Handbook on International Commercial Arbitration,
2nd edn (Oxford University Press, 2009).

478 a r t i c l e 1 7 i : re f u s i n g re c o g n i t i o n o r e n f o r c e m e n t
also discussed who should bear the burden of proof in satisfying the
arbitral tribunal that there was a substantial question relating to a ground
for refusal, or that refusal was warranted. It was stated that burden of
proof in article 17I was different from its counterpart in article 36(1)(a) of
the Model Law. It was argued that if the Working Group decided not to
modify paragraph 2(a) to restore consistency with article 36(1)(a), appro-
priate explanations should be provided to avoid confusion or divergent
interpretations as to who should bear the burden of proof. In response, it
was pointed out that the chapeau of paragraph 2(a) reflected a decision
previously made by the Working Group that no provision should be
made regarding the allocation of the burden of proof, which should be
left to applicable domestic law.17 There was concern, however, that
deferring the issue of burden of proof to domestic law of States could
hamper the wider reliance on arbitration by the parties.18 It was also
pointed out that the New York Convention allocated the onus of proof to
the party objecting the enforcement, a model that is conceptualised as
‘pro-enforcement bias’.19 Although there had been suggestions that a
similar approach be adopted under the amended draft enforcement
clause, the Working Group resolved that it may not be possible to
sufficiently justify ‘pro-enforcement bias’ in circumstances in which ‘an
interim measure [was] issued without a full appreciation of all facts of the
dispute, at an early stage of the proceedings’.20
The issue of burden of proof was also specifically discussed in the
context of a respondent objecting to the enforcement of interim measures
on the ground of lack of notice, in which case if the objection was
successful the court could suspend the enforcement until both parties
had been heard.21 In such a case, it was explained that there was no need
to articulate the issue of burden of proof since it was obvious that it was
incumbent upon the respondent to demonstrate that he ‘was not given
proper notice of the appointment of the arbitrator or of the arbitral
tribunal’.22
17
UN Doc. A/CN.9/WG.II.131 (n. 14), para. 48; Report of the Working Group on
Arbitration on the Work of Its Thirty-Eighth Session, UN Doc. A/CN.9/524 (2 June
2003), paras 35–36, 42, 58, 60; UN Doc. A/CN.09/573 (n. 15), para. 73.
18
UN Doc. A/CN.9/524 (n. 17), para. 60.
19
Ibid.; art. V(1) of the New York Convention provides that recognition and enforcement
may ‘only’ be refused if the party opposing implementation provides ‘proof’ of the
existence of the enumerated grounds of refusal.
20
UN Doc. A/CN.9/524 (n. 17), para. 60.
21
Ibid., para. 42.
22
Ibid.

2. cha pea u: r ef us al at t h e req ue st of a p arty 479
The question of the standard of proof required, rather than merely the
issue of the party bearing the burden, was also discussed by the Working
Group.23 It was generally agreed that due to the urgency and the transient
nature of the necessity of the enforcement of interim relief orders, it was
apparent that courts ‘should apply a prima facie standard when examin-
ing the issue of enforcement of such a measure’.24 This would be a
deviation from the more rigorous standard of proof required while
deciding on the enforcement of the final award granted after delibera-
tions at the merits stage.25 Despite the discussion, it was generally agreed
that the matter of the requisite standard of proof in the enforcement of
interim measures awards should be left to the applicable law of the
concerned States.26
2. Chapeau: Refusal at the Request of a Party

The chapeau of paragraph 1, as well as its subparagraph (a), points to
several provisions on the basis of which recognition and enforcement of
interim measures may be refused at the request of a party against whom
such measure is invoked. These conditions are exhaustive as indicated by
the word ‘only’.
2.1 Paragraph 1(a)(i)

This subparagraph specifically refers to article 36(1)(a)(i), (ii), (iii) or (iv) of
the Model as a ground for refusal and recognition. Reference to article 36 is
meant to create a consistent framework between the three situations where
recognition and enforcement may be sought and the grounds thereto,
namely: interim measures, set-aside proceedings at the seat and recogni-
tion and enforcement of final awards abroad. In this chapter, only two
grounds will be analysed and in a cursory manner. The reader is directed to
article 36 for a fuller understanding of these and other grounds, which
apply mutatis mutandis to interim measures in article 17I.
2.1.1 Invalidity of Arbitral Agreement

The first ground on which a party may request that a court not enforce an
interim measure is based on the grounds in article 36(1)(a)(i) to (iv) of
23
See ibid., para. 61.
24
Ibid.
25
Ibid.
26
Ibid.

480 a r t i c l e 1 7 i : ref us i n g r eco g nition or enforc em en t
the Model Law, concerning the validity of an arbitral award. The

Working Group first considered the deletion of a ground of refusal on
the basis that the arbitration agreement was invalid (subparagraph (ii) of
initial Variant 1) due to the fact that at the time of the request for
enforcement the arbitral tribunal was already functioning, and any
issue regarding its own jurisdiction should be left to the tribunal to
decide. However, it was agreed that the substance of the subparagraph
should be retained, given that local courts should not go beyond a prima
facie assessment of the validity of the arbitration agreement, and the
arbitral tribunal would fully examine the issue.27 The view was expressed
that it was crucial that the power of the arbitral tribunal to decide its own
jurisdiction should be preserved and that courts should not pre-empt
determination by the tribunal of its competence in the first instance.
Moreover, if an applicant was allowed to request enforcement without
having to notify the respondent, the respondent ought to be able to
challenge the validity of the arbitration agreement in court.28 The situa-
tion would be similar if the respondent, up to the point of the application
for enforcement, refused arbitration.29 The Working Group agreed to
retain the reference to article 36(1)(a)(i), (ii), (iii) and (iv) of the Model
Law.30
2.1.2 Party Not Given Proper Notice

The risk of uncertainty in relation to the refusal to recognise and enforce
an interim measure on the basis of article 17(1)(a)(i) of the Model Law,
premised on the lack of issuance of proper notice of arbitration to the
respondent to present his case, was also discussed, particularly due to its
likely misconception as primarily objecting to the grant of ex parte
measures.31 The Working Group explained that the draft clause concern-
ing the suspension of enforcement proceedings until the respondents had
been heard by the tribunal, in cases of objections to enforcement on the
basis of lack of proper notice of proceedings or appointment of arbitra-
tors, ‘was not primarily intended to deal with ex parte interim mea-
sures’.32 In that context, the Working Group explained that there were
27
UN Doc. A/CN.9/485 (n. 1), para. 88.
28
Ibid.
29
Ibid.
30
31
UN Doc. A/CN.9/524 (n. 17), para. 44.
32
Ibid.

2. chapeau: refusal at the r equest of a p arty 481
two different circumstances.33 The proper ex parte one was when the
claimant and the tribunal make a conscious decision not to include the
respondent in the proceedings that resulted in the provisional protective
relief being granted.34
On the other hand, there were instances in which there was no
conscious decision to exclude the respondent, but he was, nevertheless,
not provided with a proper opportunity to be heard, and such circum-
stances were the focus of the proposed clause.35 It was observed that the
clause should be retained to protect a respondent who was erroneously
improperly notified of the arbitral proceedings, yet the tribunal con-
tinued to issue an interim measure on the mistaken belief that he was
properly informed.36 In addition, it was pointed out that such a ground
for refusal of recognition and enforcement was also provided under
article V of the New York Convention and, more specifically, article 36
of the Model Law as adopted in 1985.37 In that context, it was explained
that if such a ground was omitted in the amended article 17I, the
exclusion ‘could be interpreted to mean that proper notification of the
appointment of an arbitrator, or of the arbitral tribunal was not as
important in the context of enforcement of interim measures as it was
in the context of enforcement of awards’.38 Given the expeditious
nature of arbitral proceedings concerning the issuance of interim pro-
tective measures, it was explained that there were circumstances where
a court informed of the failure to provide proper notice could decide to
refer the matter back to the arbitral tribunal, or decide to resolve the
issue in the interest of avoiding delays.39
It is apparent that notice of arbitral proceedings is vital in ensuring that
the requirements of due process are achieved, and is a ‘sine qua non of
default proceedings’.40 In that context, notices of various proceedings
should constantly be provided to the respondent.41 In essence, due
process requires that the tribunal inform each party of the evidence and
arguments of the opposing side, with each party also granted an
33
Ibid.
34
Ibid.
35
Ibid.
36
Ibid.
37
Ibid.
38
Ibid.
39
Ibid.
40
J. Butchers and P. Kimbrough, ‘The Arbitral Tribunal’s Role in Default Proceedings’
(2006) 22 Arb. Intl 233, 240.
41
Ibid.

482 a r t i c l e 1 7 i : re f u s i n g re c o g n i t i o n o r e n f o r c e m e n t
opportunity to present its case.42 To facilitate due process in the proceed-

ings, it is advisable that each party makes its submissions and presents its
evidence in writing.43 Further, the means of communication, such as the
serving of notices, should be adequate and reliable.44 In that sense, it has
been stated that the arbitral tribunal should strive to demonstrate the
procedural fairness of the proceedings, in order that justice is not only
achieved, but is also ‘seen to have been done’.45 Where one of the parties
fails to appear, the award should clearly explain the circumstances in
which it failed, including by enumerating the notifications of the pro-
ceedings and the various opportunities that may have been extended to
submit its case.46
Discussion also touched on whether ex parte interim measures should
be allowed, as in some jurisdictions they were not granted without notice.
It was recognised that the element of surprise should be preserved to
ensure the effectiveness of some interim measures47 – for example, to
prevent the destruction of evidence, and to address situations where
urgent action is required.48 It was suggested that the ex parte phase be
combined with a subsequent inter partes phase, providing that the valid-
ity of ex parte interim measures be limited to a fixed time period, upon
expiration of which the responding party should be entitled to present its
case before any decision is made on maintenance or revocation of the
measure.49
One of the proposals in earlier drafts envisaged a provision whereby
the recognition and enforcement of provisional relief would not be
refused merely because the respondent did not receive notice of the
proceedings or was not given an opportunity to present his case if the
tribunal had determined that it was essential to proceed on an ex parte
basis in order to ensure the effectiveness of the measure, and the court
makes a similar determination.50 It seems, however, that such a clause in
support of ex parte interim measures was not included in the relevant
provisions of the revised Model Law on the recognition and enforcement
42
Ibid.
43
Ibid.
44
Ibid.
45
Ibid., p. 241.
46
Ibid.
47
UN Doc. A/CN.9/485 (n. 1), para. 91.
48
Ibid.
49
Ibid.
50
UN Doc. A/CN.9/523 (11 November 2002), para. 79.

2. chapeau: r efus al at the r eques t o f a p arty 483
of provisional relief, especially under articles 17H and 17I. Despite some
efforts in safeguarding the enforcement of ex parte interim measures,
their recognition and enforcement is shrouded with significant elements
of uncertainty. It should be appreciated that there is always the danger
that ex parte decisions risk being unenforceable in some jurisdictions.51
In its final form, article 17I(1)(a)(i) refers to four of the five grounds for
refusing to recognise a final arbitral award under article 36(1)(a). The
principles arising out of the case law on these four grounds will presum-
ably be valid and applicable to cases under this provision in respect of
interim measures. Furthermore, a comparison may be drawn between
the remaining ground under article 36(1)(a)(v) and article 17I(1)(a)(iii)
below.
2.2 Paragraph 1(a)(ii): Non-Compliance with Security Provisions

At the request of a party, the second ground on which recognition of an
arbitral interim measure may be refused under article 17I(1)(a) is where a
decision of the tribunal for the provision of security in connection with
the interim measure has not been complied with.52 Unlike the other
elements in the text of article 17I(1)(a), which may be compared with
the provisions of article 36(1)(a), article 17I(1)(a)(ii) is unique to interim
measures as it concerns orders for security. Strong support was expressed
for the idea that if an order for security made by the arbitral tribunal had
not been complied with, such non-compliance should be a ground for the
court refusing enforcement of the interim measure.
However, proposals were made to delete this ground, as the provision
of security under draft article 17(4) would not in all cases be a condition
precedent for the grant of an interim measure. Moreover, draft article
17Bis(5) already permitted state courts to order the requesting party to
provide appropriate security. It was widely felt that the provision should
be retained, as it constituted an important safeguard for the party against
whom the measure was directed. It was further noted that subparagraph
(iii) remained necessary in light of the fact that draft article 17Bis(5) only
applied if the arbitral tribunal had not made a determination on the
provision of security, whereas subparagraph (iii) dealt with the situation
where an arbitral tribunal had made such a determination, but without
51
52
See art. 17E of the Model Law.

having been complied with. It was pointed out that subparagraph (iii)
only referred to the case of non-compliance with the requirement of
providing appropriate security and did not fully reflect the tribunal’s
discretion not to require any security, or that the security might have
been ordered and its provision deferred. In order to better encompass
those situations, a proposal was made to amend the wording either by
replacing the words: ‘The requirement’ with ‘Any requirement’, or by
replacing the words: ‘The requirement to provide appropriate security’
with: ‘The arbitral tribunal’s order with respect to the provision of
security’. It was suggested that the term ‘order’ should be changed to
‘decision’ to reflect the possibility that security could be dealt with in the
body of an award. The substance of those proposals was ultimately
adopted.53 The use of the words ‘arbitral tribunal’s decision with respect
to the provision of security’ was also helpful in reflecting the fact that the
tribunal has the discretion to do away with the posting of security, or even
if it has been ordered, that it may be deferred.54
2.3 Paragraph 1(a)(iii): Interim Measure Terminated or Suspended

Parallels may be drawn between articles 17I(1)(a)(iii) and 36(1)(a)(v) of
the Model Law concerning non-enforcement of final awards on the
ground that the award is not yet binding, or has otherwise been set
aside or suspended. For the purposes of interim measures, the wording
had to be amended slightly, resulting in a new provision rather than a
simple reference to article 36(1)(a)(v), unlike the situation under article
17I(1)(a)(i). Given the similarity between the two provisions, it may be
argued that the principles under the case law on article 36(1)(a)(v) may
be applicable to article 17I(1)(a)(iii) to the extent relevant.
Article 17I(1)(a)(iii) of the Model Law sets out three authorities
under which an interim measure could have been terminated or sus-
pended55 as a prerequisite for refusing recognition and enforcement,
namely: (a) the arbitral tribunal that has issued the measure; (b) a
competent court of the State in which the arbitration takes place, and;
(c) a competent court of the State under the law of which the interim
measure was granted. The wording ‘where so empowered’ limits the
possibility of court intervention to situations where State courts are
53
UN Doc. A/CN.09/573 (n. 15), paras 75–76.
54
WG.II/WP.138 (8 August 2005), para. 54.
55
Under art. 17D of the Model Law.

2. chapeau: r efus al at the r eques t o f a p arty 485
specifically empowered to revise an interim measure issued by the

The provision does not refer to the modification of an interim mea-
sure. The Working Group discussed whether the word ‘modified’ should
be added after the word ‘suspended’ for the sake of consistency with
article 17D. The proposal was discarded as once an arbitral tribunal had
modified an interim measure, the original measure was terminated
(expressly or implicitly) and could no longer be recognised and enforced.
However, the Working Group clarified that the enforcement regime set
out in article 17I applies in respect of any interim measure, whether or
not modified by the arbitral tribunal.57
This ground was previously contained in subparagraph (iv) of an
earlier draft. A distinction was drawn between subparagraph (iv) and
article 36(1)(a)(v) of the Model Law, with a suggestion that it should be
replaced by a reference to article 36(1)(a)(v).58 However, it was argued
that such a reference would be misleading because the two provisions
serve two distinct purposes and refer to different situations.59 Article 36
(1)(a)(v) concerns a final award that has been set aside or subject to
appeal.60 In contrast, subparagraph (iv) is intended to reflect the ephem-
eral nature of an interim measure, which could be suspended or termi-
nated by the arbitral tribunal itself.61
Whether or not this provision would allow the court to set aside an
interim measure issued by the arbitral tribunal was also discussed. At
its previous session, the Working Group had decided to delete the
general reference to the requirements of draft article 17 of the Model
Law from paragraph 1, with the specific intention of avoiding the
creation of an additional hidden ground for refusing to enforce an
interim measure.62 In this manner, it was hoped that the court would
not be encouraged to undertake a review de novo of whether those
requirements under article 17 were satisfied.63 The general purpose of
article 17 bis was to establish rules for the recognition and enforcement
56
Third Session, UN Doc. A/CN.9/589 (12 October 2005), para. 83.
57
Ibid., para. 85.
58
UN Doc. A/CN.9/547 (n. 30), para. 25.
59
Ibid.
60
Ibid.
61
Ibid.
62
UN Doc. A/CN.9/545 (8 December 2003), paras 101–102.
63
Ibid., para. 99.

486 a r t i c l e 1 7 i : re f u s i n g re c o g n i t i o n o r e n f o r c e m en t
of interim measures, but not to be parallel to article 34 of the Model

Law by setting aside such interim measures.
In the context of that discussion, it was widely felt that the operation of
the provision should be considered both from the perspective of a
country that had enacted the Model Law and a country whose legislation
was not based on the Model Law. In particular, since no direct link
existed between draft articles 17 and 17 bis, no link should be made to
the operation of article 17 bis that would presuppose the existence of a
provision like article 17. Similarly, an effort was made to avoid implying
that court recognition of an interim measure ordered by an arbitral
tribunal would only take place where the interim measure had been
issued by an arbitral tribunal operating under the Model Law.64
There were various discussions concerning the effect of the wording in
a country that had adopted the Model Law and a country that did not
have such a provision. The Working Group considered whether the use
of ‘or by order of a competent court’ with reference to a situation where
an interim measure had been set aside ‘by a competent court’ was
necessary – article 5 of the Model Law provides that ‘in matters governed
by this Law, no court shall intervene except where so provided in this
Law’; as such, Model Law States would not allow courts to review the
compliance of an interim measure with article 17. However, it was widely
recognised that article 17 bis should envisage the situation whereby a
non-adopting jurisdiction issues interim measures while at the same time
its law allows courts to review tribunal-ordered provisional relief.65 It is
thus possible that the courts of an adopting jurisdiction may face diffi-
culties where an interim measure is presented for enforcement after it
had been set aside by a court of a non-adopting jurisdiction. In this case,
the courts of the adopting jurisdiction should also be allowed to refuse
recognition and enforcement.66
Various suggestions were considered on how to address the situation
arising from subparagraph (a)(iv) so that it would not mention the entity
terminating or suspending the interim measure, or to delete subpara-
graph (iv) altogether to avoid dealing expressly with the suspension or
termination of an interim measure by an arbitral tribunal, since no
ground could be invoked for the recognition and enforcement of such
a measure, and there was no need for specific provisions on setting aside
64
Ibid., para. 27.
65
UN Doc. A/CN.9/547 (n. 30), para. 28.
66
Ibid., para. 29.

3 . p a r a g r ap h 1 (b): r ef us al by a cou rt fi nd ing 487
of the interim measure by a competent court, since this would be

governed by applicable rules of domestic procedural law. Another sug-
gestion was that subparagraph (iv) should be amended to read as follows:
‘[t]he interim measure has been terminated or suspended by the arbitral
tribunal or, where so empowered, by a court of the country in which, or
under the law of which, that interim measure was granted’, which found
some acceptance. However, the words ‘or under the law of which, that
interim measure was granted’ might have to be replaced by a phrase
which refers to the country of the seat of the arbitral tribunal.67
3. Paragraph 1(b): Refusal by a Court Finding

Here, the standard is different in comparison from that formulated in
subparagraph 1(a) in that the refusal of recognition and enforcement
may be made with a request by the party against whom it was invoked.
3.1 Paragraph 1(b)(i): Measure Incompatible with a Court’s Powers

Apart from the grounds upon which a party may request the non-
enforcement of an interim measure, the court may also, without such
request, refuse recognition ex officio. Under article 17(1)(b)(i), if the
interim measure is incompatible with the powers conferred upon that
court, enforcement may be denied. In the Tanzania National Roads
Agency case, the Kenyan Court of Appeal refused to uphold an appeal
concerning enforcement of an arbitral award from the High Court on the
ground that the appellate court lacked jurisdiction.68 It pointed out that
sections 36 and 37 of the Arbitration Act recognised only the High Court
as having jurisdiction in relation to the enforcement of international
arbitral awards, without the option of further appeal.69 According to
the Court of Appeal, only a one-step intervention by a competent court
was recognised in the enforcement of arbitral awards, with no explicit
right of appeal, and sections 36 and 37 of the Arbitration Act had granted
that mandate solely to the High Court.70 However, where possible, the
court may decide to reformulate the interim measure to the extent
necessary to adapt it to its own powers and procedures, without
67
Ibid., para. 33.
68
Tanzania Natl Roads Agency v. Kundan Singh Construction Ltd [2014] eKLR, para. 20.
69
Ibid. See Arbitration Act, No. 4 of 1995 of Kenya.
70
Tanzania National Roads Agency (n. 68), para. 22.

488 article 1 7i: refusing recognition or enforcement
modifying its substance. This provision is unique to interim measures,

and has no parallel under article 36.
The issue of the court refusing to enforce interim measures was
deliberated upon by the Working Group on Arbitration that resulted in
the 2006 amendments to the Model Law. This was originally covered
under Variant 1 subparagraph (v), and it was pointed out that subpara-
graph (v) included two grounds that were very different in nature.71 The
first concerned a refusal on the basis that the court or tribunal could not
have ordered the type of measure presented for enforcement. It was
pointed out that it was not necessary to consider what measures domestic
arbitral tribunals could issue, but rather what interim measures would be
enforceable under the law of the enforcing State, since the emphasis was
on enforcement of the measure. It was thus suggested that reference to
the tribunal be deleted.72
It was proposed that the words ‘in this State’ should be deleted, as in
many cases enforcement was sought in a country other than the one
where the interim measure was granted, and no specific relationship was
required among the country where the arbitral tribunal was constituted,
the country whose law was applied and the country where enforcement
was sought.73
Given the differences between the measures available in different legal
systems, it was suggested that it would not be sufficient to state that a
court could not issue a particular measure and thus enforcement of a
similar measure issued in another country should be refused.74 Another
view was that a court should not be expected to enforce a measure that it
could not issue because the machinery for enforcement would not be
available.75 It was suggested that the court should be allowed to reformu-
late the measure along the lines of ‘unless the court can reformulate the
interim measure in accordance with its own powers and procedures’.76
To address these issues, two alternatives were proposed, namely: (1) to
draft the provision in terms of: ‘if the type of interim measure cannot be
enforced within the limits of the powers of the court as set forth in its
procedural rules’; (2) to include the wording: ‘enforcement of an interim
measure might be refused to the extent that such measure is incompatible
71
UN Doc. A/CN.9/485 (n. 1), paras 97–99.
72
Ibid.
73
Ibid., para. 99.
74
Ibid., para. 100.
75
Ibid.
76
Ibid.

3 . p a r a g r a p h 1( b ) : r e f u s a l by a c o u r t fi n d i n g 489
with the procedural power conferred upon the court by its procedural
laws’.77 Since the optimum wording might create uncertainty, it was
widely recognised that as the provision relies on an acceptable and
reasonable principle, it should be retained.78 There was also support for
allowing the courts to reformulate the measure in accordance with their
procedural powers.79 It was requested that the Secretariat revise the
provision in order to provide alternative solutions, clarifying the types
of situations that would fall within its scope.80 Examples of interim
measures that might go beyond the power of a national court included
fines, freezing orders against a party’s property, mandatory injunctions
requiring a party to build something and, in general, orders for which a
court may lack machinery for enforcement.81
In the Parsons case, the US Court of Appeals for the Second Circuit
held on appeal that the lower court had interpreted its jurisdiction
properly by recognising the limitation in its decision-making powers
and, therefore, refusing to award measures that would have required it
to guess or hypothesise ‘the arbitrator’s construction of the parties’
agreement’.82
Although the principle of reformulation of the provisional relief
granted by a tribunal may appear sound, in practice, it may be difficult
to adapt some interim measures, especially in respect of jurisdictions
where such protections do not exist – the necessary legal safeguards and
enforcement mechanisms may not exist, and the concepts of some of
those protections may run contrary to legal or natural law principles
there. For example, national courts in many countries such as Italy,83
China and the Netherlands do not recognise interim measures ordered
by arbitral tribunals, rendering adaptation of interim measures a moot
question.
Many other countries such as Brazil have civil procedure codes that
govern the issue of interim measures of protection. In Brazil, precedent
requires the courts to consider and uphold the provisions of the Code of
Civil Procedure on interim measures over those of other statutes in case
77
Ibid., para. 101.
78
Ibid.
79
Ibid.
80
Ibid.
81
Ibid.
82
Parsons and Whittemore Overseas Co., Inc. v. Société Générale De L’industrie Du Papier
(Rakta), and Bank of America, 508 F.2d 969 (2nd Cir. 1974).
83
Weigand (n. 16), pp. 579–580.

490 article 1 7i: refusing r ecognition or enforcemen t
of inconsistency. According to article 807 of the Code of Civil Procedure,

interim measures can be revoked at any time as they do not constitute a
final award.84 Previously, the Superior Tribunal de Justiça (STJ) (Brazil’s
Superior Court of Justice) declined to enforce interim measures ordered
by bodies that did not fit into the category of a judicial authority, which
meant that the STJ would most likely have refused a request for enforce-
ment if it came from a body without judicial backing, unless the request
came from a court having jurisdiction over the arbitration.85
Similarly, Chilean laws regarding enforcement and recognition of
awards apply only to final awards and not interim measures. Chilean
courts do not recognise or enforce provisional or interim measures by
foreign courts or tribunals. In a Supreme Court case, it was emphasised
that Chile’s legislation provided for the recognition of awards by foreign
tribunals, but did not, however, provide for the enforcement of precau-
tionary measures issued by such tribunals.86 The Chilean International
Commercial Arbitration (ICA) Law has not incorporated the amend-
ments made to the Model Law in 2006 and there is no specific regulation
in this matter. Chilean courts routinely enforce interim measures if they
are in line with the applicable law and not contrary to public policy, but
the adaptation of an interim measure to conform with those laws and
public policy may be a step too far.87
3.2 Paragraph 1(b)(ii): Subject Matter of the Dispute Not Arbitrable

or Measures Conflicting with Public Policy
Under article 17(1)(b), the court may also refuse recognition on the
grounds contained in article 36(1)(b)(i) and (ii) of the Model Law.
Hence, the principles concerning refusal to enforce final awards under
those provisions should be applicable to interim measures as well. The
Working Group considered two variants contained in subparagraph (b)
(ii). Since Variant 1 contained wording that differed slightly from that of
article 36(1)(b)(ii) of the Model Law in a manner that might be difficult to
interpret, there was greater support for Variant 2. For example,
84
E. D. Gonçalves and F. S. Barbosa, ‘Brazil’ in L. W. Newman and C. Ong (eds), Interim
Measures in International Arbitration (Juris, 2014), pp. 89, 106.
85
Ibid.
86
CLOUT Case 1090, Western Technology Services Intl Inc. (Westech) v. Cauchos
Industriales SA (Cainsa), Supreme Court Docket No. 5468–2009, 11 May 2010.
87
F. Jamarne, N. Miranda and S. Haupt, ‘Chile’ in L. W. Newman and C. Ong (eds), Interim
Measure in International Arbitration (JurisNet, 2014), pp. 137, 149–150.

3 . p a r a g r a ph 1 ( b ) : r e f u s a l b y a c o u r t fi nd i ng 491
subparagraph (b)(ii) referred to the ‘public policy recognized by the

court’, whereas article 36(1)(b)(ii) of the Model Law referred to the
‘public policy of this State’. It was decided that reference to the ‘public
policy of that State’ was preferable from ‘public policy recognized by the
court’, as the latter might be understood as conferring excessive powers
on the court.88 The Working Group also considered whether reference
should be made to both subparagraphs (i) and (ii) of article 36(1)(b), or
whether the matters covered under these two provisions, namely arbitr-
ability and public policy, should be separately dealt with.89
A suggestion was made that the reference to subparagraph (i) of article
36(1)(b) of the Model Law should be excluded from paragraph (b)(ii)
(arbitrability). It was suggested that at the time when enforcement of an
interim measure was sought, a court might not be able to fully determine
the subject matter of the dispute. Therefore, allowing a court to make a
decision on arbitrability might not be appropriate at that stage of the
procedure. However, it was said that when the subject matter of the
dispute was established, and when that subject matter was incapable of
arbitration under the law of the enforcing State, it would be inconsistent
for State courts to enforce such an interim measure. It was thus proposed
that instead of removing any reference to subparagraph (i) of article 36(1)
(b) of the Model Law, Variant 2 would be revised, namely, a straightfor-
ward reference to article 36, instead of replicating the content of article 36
with slight changes, in order to avoid ambiguity and confusion.90 Variant
2 was to be revised as follows: ‘there is a substantial question relating to
any grounds for such refusal set forth in Article 36 (1)(b)(i) or (ii)’.91 The
Working Group adopted the text of Variant 2 without modification,
subject to further consideration concerning references to article 36(1)
(a) and (b) after the Working Group had completed its review of article
17 bis.92
3.2.1 Contrary to the Public Policy of the State

By virtue of articles 17I(1)(b)(ii) and 36(1)(b)(ii) of the Model Law,
recognition and enforcement of an interim measure may be refused by
a court on the basis that it would be inconsistent with the public policy of
the State. One of the limitations of the Model Law is that it does not
88
UN Doc. A/CN.9/547 (n. 30), para. 37.
89
Ibid., para. 38.
90
Ibid., para. 19.
91
Ibid., para. 39.
92

define what constitutes public policy, or even enumerate those elements

that may constitute grounds for setting aside an interim arbitral award in
domestic courts.93 The legal standards for evaluating public policy vary
between States.94 The Working Group observed that public policy is a
very ambiguous concept, which may be problematic to define coherently
and consistently across States.95 Public policy has been defined as denot-
ing the subject State’s fundamental concepts of justice and morality.96
According to a commentator, public policy in arbitration processes
‘should reflect the instrumental principles and values’ of procedural
and substantive fairness, such as party autonomy, neutrality of the
arbitrators, finality of the judgment and justice.97 Another commentator
has categorised public policy as encompassing laws and legal principles,
issues of public order and good morality, and matters relating to national
interests and foreign relations.98 It has also been argued that theory and
practice indicates that public policy is premised on legal, economic, social
and moral principles which are so sacrosanct that their maintenance is
supported and protected by all means.99 It has been postulated that the
concept of public policy prevents the application of foreign law in a
manner that is inconsistent with cardinal legal and moral principles of
a society.100 In essence, it reflects the continuing deference to ‘the right of
the State and its courts to exercise ultimate control over the arbitral
process’.101
The UNCITRAL Working Group observed that public policy could be
categorised into three forms: (1) the domestic policy rules established
93
J. Hanson, ‘Setting Aside Public Policy: The Pemex Decision and the Case for Enforcing
International Arbitral Awards Set Aside as Contrary to Public Policy’ (2014) 45
Georgetown J. Intl L. 825, 831–832; A. Sheppard, ‘Interim ILA Report on Public Policy
as a Bar to Enforcement of International Arbitral Awards’ (2003) 19 Arb. Intl 217, 223.
94
M. Scherer, ‘Effects of Foreign Judgments Relating to International Arbitral Awards: Is
the “Judgment Route” the Wrong Road?’ (2013) 4 JIDS 587, 593.
95
UN Doc. A/CN.9/524 (n. 17), para. 38. See also V. Shaleva, ‘The “Public Policy”
Exception to the Recognition and Enforcement of Arbitral Awards in the Theory and
Jurisprudence of the Central and East European States and Russia’ (2003) 19 Arb. Intl
67, 68.
96
A. Berg, ‘Should the Setting Aside of the Arbitral Award Be Abolished?’ (2014) 29 ICSID
Rev. 263, 268.
97
C. S. Gibson, ‘Arbitration, Civilization and Public Policy: Seeking Counterpoise between
Arbitral Autonomy and the Public Policy Defense in View of Foreign Mandatory Public
Law’ (2009) 113 Penn. State L. Rev. 101, 107–108.
98
Sheppard (n. 93), p. 228.
99
Shaleva (n. 95), p. 68.
100
Ibid., pp. 68–69.
101
Sheppard (n. 93), pp. 217–218.

3 . p a r a g r ap h 1 (b): r ef us al by a c ou rt fi nd ing 493
under national legislation for application within the State; (2) policy
rules espoused in domestic legislation, but concerned with interna-
tional relations; and, finally, (3) policy rules conceptualised at the
transnational level, which are at times referred to as international public
policy.102
Perhaps due to the diversity of the way in which various States may
interpret the concept of public policy, the issue of adopting the notion
of international public policy was deliberated upon by the UNCITRAL
Working Group. The Working Group noted that it was problematic to
adopt the notion of international public policy as it was ambiguous and
open to various interpretations.103 In that context, it was argued that
since it was necessary to take into account some transnational aspects of
public policy, the same result could be achieved by encompassing such
transnational aspects within the State rather than relying on the more
ambiguous notion of international public policy.104 Therefore, since the
words ‘public policy of this State’ were likely to create the notion that
what was being denoted was only domestic policy, it was suggested that
it would be advisable to use the phrase ‘public policy recognized by the
court’.105 The Working Group was of the view that such a conceptua-
lisation would include ‘international public policy where it was so
recognized by courts in a particular State’.106 However, the proposal
did not eventually sail through, since the adopted article 36(1)(b)(ii) of
the Model Law utilises the words ‘contrary to the public policy of this
State’. Despite the eventual inclusion of the public policy provision,
concerns had been raised at the Working Group discussion that the
general ground for refusal premised on the concept gave rise to a very
low threshold for the refusal of recognition and enforcement of interim
awards.107
The concept of public policy has been the subject of deliberation in the
case law of both Model Law-based States and non-signatory countries. In
equal measure, it has been incorporated in the domestic legislation of
States. In the Hebei Import case, a Hong Kong court stated that public
policy was a concept that was ‘generally part of the common law’ (the
legal system that is part of the colonial legacy of the special administrative
102
UN Doc. A/CN.9/524 (n. 17), para. 38.
103
Ibid., para. 52.
104
Ibid.
105
Ibid.
106
Ibid.
107
Ibid., para. 38.

494 article 1 7i: refusing r ecogni tion or enforcemen t
region).108 By being part of Hong Kong’s common law, the court noted
that it was problematic to define public policy in the self-administrative
region as inclusive of social and public interest matters originating from
the People’s Republic of China (which has a different legal system), which
implies that such issues were viewed as being both external and non-
legal.109 In the case at hand, the test of whether the enforcement of the
foreign award in question would breach core concepts of justice and
morality in Hong Kong was applied.110 Having established that there was
a violation of the rules of natural justice and apparent bias in the
proceedings, the court concluded that the award fell short of the stan-
dards of fairness under the Hong Kong legal system and, therefore, it
would have been against public policy to enforce such a measure.111
Under section 48(2)(b) of the Arbitration and Conciliation Act of
India, an arbitral award may not be enforced if it would be contrary to
the public policy of the State.112 The Indian Supreme Court in the Shri
Lal Mahal case interpreted the scope of public policy under section 48(2)
(b) of the Act as implying that recognition and enforcement of a foreign
award would be declined only if it was inconsistent with (1) a core policy
of the law of India, (2) Indian interests and (3) justice or morality.113 It is
evident that certainty is being embedded into the concept of public policy
in India, which has for many years remained vague and ambiguous.114
In Switzerland, an award may be refused enforcement on the basis of
the ‘catch-all clause … [of] public policy’.115 Section 103(3) of the English
Arbitration Act recognises that the recognition and enforcement of an
award may be declined on the basis that it is contrary to public policy.116
The Arbitration Act of Kenya under section 37(1)(b)(ii) recognises that
the recognition and enforcement of an award may be declined on the
108
Hebei Import & Export Corp. v. Polytek Engineering Ltd [1999] 2 HKC 205.
109
Ibid.
110
Ibid.
111
Ibid.
112
Arbitration and Conciliation Act (India).
113
Shri Lal Mahal Ltd v. Progetto Grano Spa, Civil Appeal No. 5085 of 2013,
para. 27.
114
See A. Kurlekar and G. Pillai, ‘To Be or Not to Be: The Oscillating Support of Indian
Courts to Arbitration Awards Challenged under the Public Policy Exception’ (2016) 32
Arb. Intl 179, 180.
115
F. Mantilla-Serrano, ‘Towards a Transnational Procedural Public Policy’ (2004) 20 Arb.
Intl 333, 340. See Federal Act on Private International Law of Switzerland, 1987, art. 190
(2)(e).
116
Ireland). See also Mantilla-Serrano (n. 115), p. 341.

3 . p a r a g r ap h 1 (b): r ef us al by a c ou rt fi nd ing 495
basis of its contradiction with Kenya’s public policy.117 In the Tanzania

National Roads Agency case, the Kenyan Court stated that public policy is
‘an indeterminate principle which fluctuates with the circumstances of
the time’.118 It pointed out that an award could be deemed to be incon-
sistent with public policy if it was demonstrated that it was inconsistent
with the laws of Kenya, was contrary to the national interests of Kenya or
was inconsistent with justice and morality.119
A broad conceptualisation of the principle of public policy is likely to
undermine the effectiveness of international commercial arbitration.120
The lack of coherence and ambiguities relating to the construction and
application of the concept of public policy could encourage respondents
to rely on the principle to resist, or on the minimum delay, the enforce-
ment of interim awards.121 It may be, in some circumstances, inconsis-
tent with the necessity of respecting and upholding the finality of foreign
interim awards.122
It has been suggested that one of the solutions to the ambiguities,
incoherence and uncertainty of the application of the concept across
jurisdictions is for the ‘international arbitration community to reach a
broad consensus as to which “exceptional circumstances” would justify a
national court denying enforcement of a foreign arbitral award, and for
the courts to have regard to any such consensus’.123 However, as dis-
cussed, based on the deliberations at the Working Group that it was not
viable to espouse a coherent concept of ‘international public policy’,124
and based on the reality that the principle of public policy is postulated as
a safeguard against the application of foreign law in a manner incon-
sistent with core legal and moral principles of a State,125 it is not easy to
achieve the recommended broad transnational consensus.
Some of the probably more practical approaches would be for the
courts to increasingly and widely embrace the practice of a narrow
construction of the concept of public policy in applications seeking to
117
Arbitration Act, Kenya.
118
Tanzania Natl Roads Agency (n. 68), para. 23.
119
Ibid.
120
R. Martinez, ‘Recognition and Enforcement of International Arbitral Awards under the
United Nations Convention of 1958: The “Refusal” Provisions’ (1990) 24 Intl Law.
487, 508.
121
Sheppard (n. 93), p. 248.
122
Ibid., pp. 217–218.
123
Ibid., p. 248.
124
UN Doc. A/CN.9/524 (n. 17), para. 52.
125
Shaleva (n. 95), pp. 68–69.

496 a r t i c l e 1 7 i : ref us i n g r eco g nition or enforc em en t
halt the enforcement of foreign awards. For instance, the Supreme Court
of India has adopted the view that the public policy exemption to the
enforcement of foreign arbitral awards should be construed narrowly.126
In the Shri Lal Mahal case, the Supreme Court specifically stated that the
concept of the public policy of India ‘must be given narrow meaning’.127
In the Parsons case, it was stated that the concept of public policy
should be construed narrowly.128 In that sense, it was observed that
enforcement of foreign arbitral awards should only be declined where
their enforcement would breach the most cardinal principles of justice
and morality.129 The court explained that the public policy of the United
States should not be liberally interpreted to include the protection of
‘national political interests’ or the ‘vagaries of international politics’.130
The Hong Kong Hebei Import case affirmed the reasoning in the Parsons
case, with the Supreme Court stating that it was apparent from judicial
authorities that the concept of public policy should be construed nar-
rowly.131 In the Anne Mumbi Hinga case, the Kenyan Court of Appeal
stated that refusal of enforcement of an award on the ground of public
policy required ‘extreme caution’.132 The court proceeded to enumerate
the exceptional circumstances permitting the application of the public
policy ground as conditions that encompass some illegality, or situations
that ‘would be injurious to the public good or would be wholly offensive
to the ordinary reasonable and fully informed member of the public on
whose behalf the State’s powers are exercised’.133
Besides a narrow interpretation of the notion of public policy, in order
to encourage the effectiveness of international arbitration in the resolu-
tion of transnational commercial disputes, it is vital that the concept be
associated with the policy of the law, to the exclusion of other factors such
as political, national or public interests. As stated in the classical Egerton
case, public policy should ‘be used only in the sense of the policy of the
law, and in that sense, it forms a just ground of judicial decision’.134
126
M. Ghani, ‘Court Assistance, Interim Measures, and Public Policy: India’s Perspective on
International Commercial Arbitration’ (2012) 2 Arbitration Brief 16, 26–27.
127
Shri Lal Mahal (n. 113), para. 25.
128
Parsons and Whittemore (n. 82).
129
Ibid.
130
Ibid.
131
Hebei Import (n. 108).
132
Anne Mumbi Hinga v. Victoria Njoki Gathara [2009] eKLR.
133
Ibid.
134
Egerton v. Brownlow (1853) 4 HLC 1, 409.

3 . p a r a g r a p h 1 ( b ) : r e f u s a l by a c o u r t fi n d i n g 497
3.3 Broader Grounds for Court to Refuse Enforcement?

It is clear that article 17I of the Model Law is intended to limit the
grounds upon which interim measures may not be enforced, thus limit-
ing the power of courts to nullify tribunal-ordered interim measures.
This not only appears to reduce the potential interference from the courts
in the arbitral process, but also reinforces the concept of party autonomy
by limiting the grounds of non-enforcement to several rather severe
grounds, such as non-arbitrability and public policy.135 In addition, the
relevant clauses enhance certainty and predictability of international
commercial arbitration by facilitating the establishment of uniform pro-
cedures and practices across various States.136
Commenting on the New York Convention, it has been suggested
that the grounds enumerated for the refusal of enforcement, which were
similarly replicated under the Model Law, should be construed nar-
rowly as they comprise exclusions to the general principle that foreign
awards should be recognised and enforced.137 In the context of the
limited number of grounds under article 17I of the Model Law, the
question arises as to whether enacting States may add additional
grounds of refusal. In the case of the New York Convention, which, as
explained, has been replicated by the Model Law, it has been argued that
the grounds enumerated there should be deemed as conclusive (as
opposed to indicative) for refusal of recognition and enforcement in
order to discourage the addition of further grounds by States.138 For
purposes of enhancing predictability and congruence between States in
the enforcement of interim awards, it may similarly be argued that the
grounds enumerated under article 17I of the Model Law should be
viewed as reflecting the maximum number of grounds for refusal of
recognition and enforcement.
As an illustration of the approach taken by some States, international
arbitration in Australia is governed by federal legislation, the
International Arbitration Act (IAA), 1974, and domestic arbitration is
governed by State-based regimes, referred to as uniform Commercial
Arbitration Acts (CAAs). Australia adopted the amended Model Law in
135
Wong (n. 13), p. 501.
136
J. Garvey and T. Heffelfinger, ‘Towards Federalizing US International Commercial
Arbitration Law’ (1991) 25 Intl Law. 209, 209.
137
S. I. Strong, ‘Enforcing Class Arbitration in the International Sphere: Due Process and
Public Policy Concerns’ (2014) 30 U. Penn. J. Intl L. 1, 54.
138
Ibid.

October 2010 and hence the IAA and CAA both allow for the recognition
and enforcement of an interim measure, regardless of the country in
which it was issued. It should be noted, however, that ex parte prelimin-
ary orders were not adopted in the amendments to the IAA, perhaps due
to the view that the enforcement of such orders made by arbitral tribunals
was ‘too radical a step’.139 While section 16(1) of the IAA gives the Model
Law the force of law, section 19 of the IAA states:
Without limiting the generality of Articles 17I(1)(b)(ii), 34(2)(b)(ii) and
36(1)(b)(ii) of the Model Law, it is declared, for the avoidance of any
doubt, that, for the purposes of those Articles, an interim measure or
award is in conflict with, or is contrary to, the public policy of Australia if:
(a) the making of the interim measure or award was induced or

affected by fraud or corruption; or
(b) a breach of the rules of natural justice occurred in connection with
the making of the interim measure or award.
Hence section 19 of the IAA contains clarifications with regard to what is

considered public policy in the context of Australia, potentially broadening
the grounds for refusal of recognition of interim measures to include, for
example, fraud or corruption, and breach of natural justice. Under
Egyptian law, an additional basis for refusal of enforcement of an interim
award has been incorporated, namely that the award violated the parties’
governing law.140 On that basis, it can be argued that general uniformity
and predictability is yet to be achieved in the context of recognition and
enforcement of interim arbitral awards, as some States have added addi-
tional or varying grounds for setting aside provisional relief measures.141
4. Paragraph 2: Review of the Substance of the Interim

Measures
In the course of the drafting of the 2006 amendments to the Model Law,
the extent of the discretion of the courts to review the substance of the
interim measures was also discussed. It was pointed out that the new
regime needed to take into account the special nature of interim mea-
sures, which required flexibility, such as modification, termination or
139
R. Garnett and L. R. Nottage, ‘The 2010 Amendments to the International Arbitration
Act: A New Dawn for Australia?’ (2011) 7 Asian Intl Arb. J. 1, 29–53.
140
Berg (n. 96), p. 268. See Law Concerning Arbitration in Civil and Commercial Matters,
Law No. 27/1994 of Egypt, art. 53(1)(d).
141
Berg (n. 96), p. 268.

4 . pa rag rap h 2: re vie w of t he s ubst an c e 499
adaptation to the enforcement measures of the court, interests of third

parties and modification of the measure after hearing both parties,
particularly where the measure was granted ex parte.142
However, with regard to limiting that discretion, one issue was the
restriction of the court from reviewing the factual conclusions of the
tribunal or the substance of the measure, and limiting it to procedural
aspects of the enforcement of the measure. On account of the lack of
clarity as to whether an issue might be procedural or substantive, it was
thought that discretion should be limited in respect of the regime govern-
ing enforcement of the award.143 Another view was that the scope of
discretion should be narrowly circumscribed to avoid delays, while yet
another view highlighted the difficulties in describing precisely the con-
ditions for enforcement, requiring the legislative provision to be broadly
worded.144
Under article 17I(2) of the Model Law, the court should not review the
conclusions of the arbitral tribunal or the substance of an interim mea-
sure.145 Thus, the court’s jurisdiction is limited to expressly enumerated
grounds under which recognition and enforcement of the interim mea-
sure may be refused, without reviewing the decision by the arbitral
tribunal to grant the interim measure. However, despite the attempt to
restrict the court from reviewing the substance of the interim measure,
the determination of some of the grounds of refusal of recognition and
enforcement may potentially result in the violation of the restraint. For
instance, as has been opined, deliberations on whether public policy of a
State has been violated may result in deliberations concerning the sub-
stance of the arbitral measure.146
142
UN Doc. A/CN.9/468 (n. 8), para. 70.
143
Ibid., para. 71.
144
Ibid.
145
Wong (n. 13), p. 501.
146
B. G. K. V. Kalisz, ‘UNCITRAL Model Law: Composition of the Arbitration Tribunal
Re-considering the Case upon Setting Aside of the Original Arbitration Award’ (2017)
34 JOIA 17, 27.

Article 17J
Court-Ordered Interim Measures

i l i a s b a n t e k a s a n d i k r a m ul l a h
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.

Although the Model Law has, through article 9, settled that the applica-
tion for interim measures is not incompatible with the arbitration agree-
ment, it does not expressly stipulate whether the forum court enjoys the
power to issue interim measures.1 Therefore, it was thought that the mere
adoption by some regimes of article 9 may not be sufficient, in and of
itself, to establish the power of the courts to issue interim measures,2
which in turn gave rise to the need for the formulation of a provision such
as article 17J in the 2006 amendments to the Model Law.
While drafting the Model Law, deliberations over a provision regard-
ing the court’s power to issue interim measures started with an important
question as to whether the procedure to be followed by the court while
deciding on an application for interim relief should be laid down in the
Model Law.3 However, apart from the expression of compatibility, it was
1
Settlement of Commercial Disputes Preparation of Uniform Provisions on Interim
Measures of Protection: Note by the Secretariat, UN Doc. A/CN.9/WG.II/WP.119 (30
January 2002), 75; UNCITRAL, Eighteenth Session, Commentary, UN Doc. A/CN.9/264
(25 March 1985), 1–5.
2
UN Doc. A/CN.9/WG.II/WP.119, ibid., 75.
3
Its Third Session (New York, 16–20 February 1982): Note by the Secretariat: Possible
Features of a Model Law on International Commercial Arbitration: Questions for
Discussion by the Working Group, UN Doc. A/CN.9/WG.II/WP.35 (1 December 1981),
para. 25.
500

also agreed that other elements, such as the type and range of interim
measures, should not be included in the provision as they form an
integral part of the domestic legal regime of Model Law States.4 Hence,
from the very beginning, there was a degree of consensus whereby the
details of the range and scope of interim measures be left to the law of
each State and in accordance with established practice.
The rationale militating against the incorporation of a detailed list of
procedural rules and measures in the 2006 version of the Model Law may
be traced to a proposal put forward by the International Chamber of
Commerce (ICC) during the negotiating rounds. It proposed that there is
a need to harmonise the law on arbitration across the globe and that the
Model Law should ensure the implementation of fundamental principles
of justice, i.e. due process, fairness and equality. This notwithstanding,
there was significant divergence among States as to the precise scope of
available measures and it was felt that instead of formulating detailed
rules for the purpose of precision and certainty by altering the concepts in
vogue in those regimes, this task should be left to each State by freely
adopting a common denominator. The reason for the approach sug-
gested by the ICC was that the solutions rendered by the Model Law,
which are considered foreign by the receiving States, might not ultimately
be accepted and hence be counterproductive.5
The formulation of uniform and detailed rules as to the powers of court
was again considered in the Working Group meetings held for the 2006
amendments. As a matter of fact, it was observed that the various aspects of
interim measures were treated in different ways in the variety of domestic
legal systems by means of different types of classification. In international
arbitration specifically, the parties while applying to the foreign courts for
interim measures are compelled to fulfil conditions with which they are
unfamiliar.6 The other point is that the provisions dealing with the court’s
power to grant interim measures were absent in the legislation of a number
of jurisdictions, which led to the reluctance or unwillingness of certain
courts to grant the interim remedy sought. This unwillingness was the result
of an absence of similar provisions empowering the courts of particular
4
Third Session, UN Doc. A/CN.9/216 (23 March 1982), 69.
5
UNCITRAL, Eighteenth Session, UN Doc. A/CN.9/263/Add.1 (15 April 1985), para. 2.
6
International Commercial Arbitration Possible Future Work: Court-Ordered Interim
Measures of Protection in Support of Arbitration, Scope of Interim Measures that May
Be Issued by Arbitral Tribunals, Validity of the Agreement to Arbitrate Report of the
Secretary-General, UN Doc. A/CN.9/WG.II/WP.111 (12 October 2000), 7.

502 a rticle 1 7j: c ourt-o rdered interim meas ures
States to issue interim measures. Moreover, there was considerable uncer-

tainty as to ‘whether and under what circumstances such court assistance
was available’.7 Hence, the conclusion was that the involvement of courts on
matters pertaining to interim relief in support of arbitration varies from
country to country. For that reason, it has become more difficult to predict
the degree to which a court may be willing to intervene.8 Therefore, initially,
it was proposed that there should be uniform rules as to the situations
wherein a party to arbitration may apply for judicial interim measures.9
However, this option was not universally supported by the Working Group.
Although there was consensus in favour of an article making express
reference to the empowerment of domestic courts to issue interim mea-
sures, which was subsequently reflected in the final version of article 17J,
there was difference of opinion on the standards and criteria to be used by
the courts in issuing interim measures. As a result, two variants on the
powers of local courts were deliberated. One view (first variant) was that
the court should bring into use the procedures and standards laid down in
the forum’s procedural laws. The alternative view (second variant) was that
the court should exercise its power ‘in accordance with the requirements
set out under article 17’.10 However, the general view tilted in favour of the
first variant and towards the application by the court of its own procedural
standards on the basis that this solution ‘would have to provide flexibility
for the court to adapt to the specific features of international arbitration’.11
2. Conditions to be Fulfilled in Order to Secure Interim Measures

from the Court
Like any other remedy, the applicant has to fulfil certain conditions
before the court to secure the relief of interim measures. Jurisdictions
7
UN Doc. A/CN.9/468 (10 April 2000), 87.
8
UN Doc. A/CN.9/WG.II/WP.111 (n. 6), 9.
9
UN Doc. A/CN.9/468 (n. 7), 87.
10
Report of the Working Group on Arbitration on the Work of Its Thirty-Eighth Session,
UN Doc. A/CN.9/524 (2 June 2003), 76, 77. See also UN Doc. A/CN.9/468 (n. 7), 85–87;
Settlement of Commercial Disputes Preparation of Uniform Provisions on Interim
Measures of Protection: Note by the Secretariat, UN Doc. A/CN.9/WG.II/WP.119 (30
January 2002), 19, 67, 77–79; Report of the Working Group on Arbitration and
Conciliation on the Work of Its Forty-Second Session, UN Doc. A/CN.9/573 (27
January 2005).
11
UN Doc. A/CN.9/524 (n. 10), 76–77. See also UN Doc. A/CN.9/468 (n. 7), 85–87; UN
Doc. A/CN.9/WG.II/WP.119 (n. 1), 19, 67, 77–79; UN Doc. A/CN.9/573 (n. 10).

2. cond itions to be fulfilled 503
around the globe do not diverge on these conditions, save for some which
apply them as a three-phased test, whereas others employ them as a two-
phased test by combining the second and third phases into one. The
conditions to be fulfilled to secure the requested interim measures from
the court depend on the kinds of interim measures being sought. In
general terms, a three-stage test is adopted by the courts while determin-
ing the merits of an application for interim relief. First, the merits of the
case will be assessed as a preliminary matter in order to ensure that there
is a prima facie case or a serious question to be decided. Second, the court
must determine whether the refusal to grant the interim relief will result
in irreparable injury to the applicant. Finally, upon a balance of the two,
the court should come to a conclusion as to whether there is merit or a
balance of convenience in granting the interim relief.12
It should be noted, however, that some jurisdictions have converted
the three-stage test into a two-pronged alternative, by accumulating the
second and third prongs under the single heading of ‘balance of conve-
nience’.13 For instance, in order to consider the infliction of irreparable
harm, a Canadian court has held that the issue of irreparable harm, and
hence the adequacy of damages as a remedy for the parties, is very closely
connected to the balance of convenience.14
The variants of these tests have also been applied in different jurisdic-
tions. In Germany, the court will grant interim relief if the applicant
convinces the court that he or she is more likely to secure a judgment on
the merits pertaining to the monetary or non-monetary claims; and that
if the interim relief to maintain the status quo is not granted, the
enforcement of the judgment to realise such claim would become either
difficult or impossible.15 Hence, the plaintiff has only to demonstrate a
12
For Canada, see RJR – MacDonald Inc. v. Canada (Attorney General) [1994] 1 SCR 311;
Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd [1987] 1 SCR 110. For
Ireland, see Osmond Ireland on Farm Business v. McFarland [2010] IEHC 295; Campus
Oil Ltd v. Minister for Industry and Energy (No. 2) [1983] IR 88. For New Zealand, see
Klissers Farmhouse Bakeries Ltd v. Harvest Bakeries Ltd [1985] 2 NZLR 143; Safe Kids in
Daily Supervision Ltd v. McNeill [2012] 1 NZLR 714. For India, see Embassy Property
Developments v. Jumbo World Holdings Ltd (20 June 2013), Madras High Court; House
Productions Pvt. Ltd v. Meediya Plus (2005) 2 MLJ 256; Adhunik Steels Ltd v. Orissa
Manganese and Minerals Pvt. Ltd [2007] AIR SC 2563; Aravind Construction v. Kalinga
Mineral Corp. (2007) 6 SCC 798.
13
RJR MacDonald v. Canada [1994] 1 SCR 311, para. 48; British Columbia (AG) v. Wale
(1986), 9 BCLR (2d) 333, 345, aff’d (1991); Mercer Gold Corp. (Nevada) v. Mercer Gold
Corp. (BC), 2011 BCSC 1664 (CanLII) (Canada).
14
Roxul (West) Inc. v. 445162 BC Ltd, 2001 BCCA 362 (CanLII) (Canada).
15
ZPO, ss 916, 917, 935.

504 a rticle 1 7j: c ourt-o rdered interim meas ur e s
greater likelihood of a judgment in his or her favour to the exclusion of

proof under the two tests. Nevertheless, without disagreeing with the
varied employment of these tests, what follows is an analysis of the three-
staged test.
3. Serious Question to Be Tried or Making a Prima Facie Case

As a first test, the applicant has to prove the existence of a prima facie
case. In this regard, it is worth exploring, which this segment does, how
far the applicant should go to prove a prima facie case to be entitled to
this relief and also how far a court should go into the case before it
decides the issuance of interim measures. Prior to the verdict of the
House of Lords in American Cyanamid Co. v. Ethicon Ltd,16 a plaintiff
in Canada, in order to comply with the first test, was mandated to
demonstrate a ‘strong prima facie case’ as to the merits. However, this
judgment held that the requirement to establish the prima facie case need
not be ‘strong’. In order to make a prima facie case, in the words of Lord
Diplock, the plaintiff only has to satisfy the court that ‘the claim is not
frivolous or vexatious; in other words, that there is a serious question to
be tried’. Since then, Canadian courts have usually gone on to apply the
American Cyanamid standard.
Even so, the American Cyanamid test as to the existence of a prima
facie case may not be suitable (or sufficient) in all situations. For instance,
in respect of Mareva injunctions, the applicant has to prove, inter alia, a
strong prima facie case.17 Similarly, in Innovative Marketing Inc. v.
D’Souza,18 a Canadian court established that a worldwide Mareva injunc-
tion will be granted if the applicant is successful in proving a strong prima
facie case on the merits19 and a real risk of dissipation of assets by the
defendants.20 A New Zealand court has held that the ‘strong arguable
case’ test for freezing orders or for service out of jurisdiction is different
16
[1975] AC 396, 407.
17
Chitel and Others v. Rothbart and Others (1982) CanLII 1956 (ONCA) (Canada). In the
same case, a Mareva injunction was explained as it ‘ties up the assets of the defendant,
specific or general, pending any judgment adverse to the defendant so that they would
then be available for execution in satisfaction of that judgment. It is certainly ordering
security before judgment.’
18
(2007) CanLII 5529 (ONSC) (Canada).
19
Chitel v. Rothbart (n. 17).
20
Federal Bank of the Middle East v. Hadkinson and Others [2000] 2 All ER 395 (UKCA)
(Canada).

3. serious question to be t ried 505
from the test concerning interim injunctions because the adjective

‘strong’ creates a higher threshold.21
Similarly, Lord Diplock’s statement in American Cyanamid that the
absence of frivolousness and vexatiousness in the claim of the plain-
tiff will mean that there is a serious question to be tried has been
largely rejected in Australia, where it was held that ‘the governing
consideration is that the requisite strength of the probability of
ultimate success depends upon the nature of the rights asserted and
the practical consequences likely to flow from the interlocutory
orders sought’.22 For an interlocutory relief to be secured from the
court, there must be an identification of legal or equitable rights in
respect of which a final remedy is sought. If the applicant cannot
make such identification, the foundation of the interim relief will
disappear.23 The extent to which the court will need to consider the
legal merits of the plaintiff’s claim for the final relief, in deciding
whether to impart interim relief, will depend upon the facts of each
case. Hence, there is no hard and fast rule.24
However, whatever the standards by which to evaluate the existence of
a prima facie case, the general view is that the threshold of ‘a serious
question to be tried’ is a low one, determined by a judge through a
preliminary assessment of the merits of the case without making a
prolonged examination thereof.25 In Ireland and Canada, the existence
of a fair bona fide question has not been perceived as a matter requiring
examination of facts or law and should be reserved for trial.26 An Irish
court went further by saying that there is no need for the plaintiff to prove
his likelihood of success on the merits, for he only needs to demonstrate
21
Safe Kids (n. 12).
22
Port Coodgee No. 790 Pty Ltd v. Coastal Development Management Pty Ltd [2014] WASC
400 (Chaney J.) (Australia). See also Beecham Group Ltd v. Bristol Laboratories Pty Ltd
(1968) 118 CLR 618; Australian Broadcasting Co. v. O’Neill (2006) 227 CLR 55, 65–71
(Australia); Public Service Association & Professional Officers’ Association Amalgamated
Union of New South Wales and State of New South Wales, Director General of the
Department of Premier and Cabinet [2013] NSWIR Comm. 4 (Australia). For the
Indian approach, which is similar to that of Australia, see Techmo Car Spa v. The
Madras Aluminium Co. Ltd, 2004 (2) ARBLR 284 (Madras).
23
Samsung Electronics Co. Ltd v. Apple Inc. (2011) 217 FCR 238, 254–262 (Australia); see
also SZTYO v. Minister for Immigration and Border Protection [2015] FCA 30 (Australia).
24
Samsung Electronics, ibid., 256–262; see also Buller v. Murray Grey Beef Cattle Society Ltd
[2014] FCA 1127.
25
RJR MacDonald (n. 13).
26
Osmond Ireland (n. 12). For Ireland, see Kinsella and Others v. Wallace and Others [2013]
IEHC 112. For Canada, see RJR MacDonald (n. 13).

506 a r t i c l e 1 7 j : c o u r t - o r d e r e d i n t er i m me a s u r e s
the existence of a fair bona fide question.27 Hence, the likelihood of

success does not require proof of the existence of a serious question to
be tried. For instance, leave granted by an appellate forum on the merits
indicates the involvement of a serious issue. However, the refusal to grant
such leave in a case which involves the same issues will not be tantamount
to the absence of a serious question. After having satisfied the ingredients
of the first prong of the test, the court should move to consider the second
prong.28
4. Irreparable Harm
After having proved the existence of a prima facie case, at the second
stage, the court will ascertain if the harm to be inflicted on the applicant
by the declination to issue an interim measure will be irreparable. In
other words, the court will only determine if the harm incurred by the
plaintiff with the refusal of the interim measure will not be remedied by
the decision on the merits in his favour,29 since damages would not
constitute an adequate remedy. A Canadian court elaborated on the
term ‘irreparable’ by stipulating that it ‘refers to the nature of the harm
suffered rather than its magnitude’. Harm would be irreparable if it
cannot be quantified in monetary terms or cured because in the event
of a favourable decision the plaintiff will not be able to collect damages
from the defendant. This may be the case, for instance, because the
court’s judgment will put a party out of business,30 or because a party
undergoes market loss of a permanent nature or irrevocable harm to its
business reputation,31 or because the refusal to issue an injunction
against particular conduct will result in the permanent loss of natural
resources.32 However, the impecuniosity of the defendant will not auto-
matically entitle the plaintiff to seek interim relief from the court on the
ground that the plaintiff will not subsequently be able to collect damages
from the defendant.33
27
Crossplan Investments Ltd and Another v. McCann and Others [2013] IEHC 205 (Ireland);
RJR MacDonald (n. 13); Manitoba (Attorney General) (n. 12).
28
Crossplan Investments, ibid.
29
House Productions (n. 12).
30
RL Crain Inc. v. Hendry (1988), 1988 CanLII 5042 (SKQB).
31
American Cyanamid Co. v. Ethicon Ltd [1975] AC 396 (Canada).
32
MacMillan Bloedel Ltd v. Mullin, 1985 CanLII 154 (BCCA).
33
Hubbard v. Pitt [1976] QB 142 (CA) (Canada).

4 . i rr ep a r a b l e h a r m 507
In an Irish case, Osmond Ireland v. McFarland,34 as to the second

ground, it was held that impossibility instead of difficulty of assessment
of loss should be a basis for characterising the granting of damages as an
inadequate remedy.35 In Curust, the plaintiff sought an injunction to
restrain the first defendant from granting the second defendant the
manufacture, sale and distribution rights over particular products,
including rust primer paint, in the territory of Ireland and the United
Kingdom. Such a remedy was sought on the grounds, inter alia, that
under a contract between the plaintiff and the first defendant, such
rights were exclusively conferred on the plaintiff. However, while
entertaining the issue as to whether the damages were an adequate
relief for the plaintiff, it was held that loss incurred by the plaintiff, if
successful on the merits and defeated on the issue of injunctive relief,
would manifestly and exclusively constitute a commercial loss in a very
stable market.
In the case law of Ireland, the second ground recognised in Campus
Oil, i.e. the adequacy of damages to compensate a party for losses
incurred in the time between the application for interim relief and the
final outcome on the merits, was further divided into two elements,
namely whether:
(1) if the plaintiffs were to succeed on the merits, they would be ade-
quately compensated by an award for damages; and
(2) if the defendants were successful on the merits, they could be ade-
quately compensated under the applicants’ undertaking as to
damages for any loss which they would have sustained by reason of
the granting of interlocutory relief.36
Whether damages are an adequate remedy responds to the question of
whether ‘it is just, in all the circumstances, that a plaintiff should be
confined to his remedy in damages’.37 In Australia, the question of
whether the adequacy of damages has to be satisfied as a separate element
before the impartation of interim relief has attracted some controversy.38
The condition that one needs to establish the inadequacy of damages
before the grant of interim relief was held to be a separate requirement in
34
Osmond Ireland (n. 12).
35
The court relied on Curust Financial Services Ltd v. Loewe-Lack-Werk [1994] 1 IR 450
(Ireland), dismissed.
36
Campus Oil (n. 12).
37
Evans Marshall & Co. Ltd v. Bertola SA [1973] 1 WLR 349, 379 (Australia).
38
Johnson v. Cetin [2011] WASC 344.

Castlemaine Tooheys,39 whereas it was not mentioned as such in the

Australian Broadcasting case.40 However, these two extremes were recon-
ciled by terming the question of inadequacy of damages as one of the
issues ordinarily needed to be settled when the court assesses balance of
convenience and justice.41 Australian courts will also ‘make an assess-
ment of the likelihood that the final relief (as granted) will adequately
compensate the plaintiff for the continuing breaches that will have
occurred between the date of the interlocutory hearing and the date
when final relief might be expected to be granted’.42
5. Balance of Inconvenience
At the third stage (which is the final one) to secure interim relief, the
applicant has to prove that the balance of convenience lies in his or her
favour. The balance of inconvenience means: ‘a determination as to
which of the two parties will suffer the greater harm from the granting
or refusal of an interlocutory injunction, pending a decision on the
merits’.43 It is stated that owing to the low threshold of the first prong
of the test and the difficulties involved in the application of the second
prong, this third prong is in most cases determinative of the issuance of
interlocutory injunctions. However, the factors involved in the proper
evaluation of ‘balance of inconvenience’ are many in number and cannot
be listed because these elements necessarily vary in each case.44
In the case law of Ireland, the balance of convenience is linked very
closely and directly to the risk of injustice.45 This has further been
elaborated by the Singapore Court of Appeal.46 Since the balance of
convenience involves balancing the risk of doing an injustice, it is more
weighty as compared to mere convenience.47 The court should conduct a
39
Castlemaine Tooheys Ltd v. State of South Australia (1986) 161 CLR 148.
40
See n. 22.
41
Lime Nominees Pty Ltd v. Adelaide Brighton Cement Ltd [2014] WASC 503, para. 20;
Samsung Electronics (n. 23); see also Buller (n. 24).
42
Samsung Electronics, ibid., para. 66; Patrick Stevedores Operations No. 2 Pty Ltd v.
Maritime Union of Australia (1998) 195 CLR 1, 65–66; Sports Data Pty Ltd v. Prozone
Sports Australia Pty Ltd [2014] FCA 595.
43
44
Ibid.
45
AIB Plc and Others v. Diamond and Others [2011] IEHC 505 (Ireland).
46
Maldives Airport Co. Ltd and Another v. GMR Male Intl Airport Pte Ltd [2013] SGCA 16.
47
Kolback Securities Ltd v. Epoch Mining NL (1987) 8 NSWLR 533, 536 (McLelland J.)
(Australia).

6 . b e y o n d t h e th r e e - p r o n g t es t 509
balancing exercise between the injustice that might be suffered by the

plaintiff if the injunction is refused and the plaintiff subsequently suc-
ceeds on the merits and the injustice that might be suffered by the
defendant if the injunction is granted and the plaintiff later loses on the
merits.48
In Australia, the interrelationship between establishing a prima facie
case and the balance of convenience was elaborated in Castlemaine
Tooheys,49 where it was stated that if the existence of a strong, over-
whelming or powerful prima facie case concerning a serious question is
established, the injunction would be granted even if the balance of
convenience does not strongly lie in favour of the claimant seeking the
injunction. Conversely, on the face of a marginal prima facie case con-
cerning a serious question, the injunction will be granted if the balance of
convenience strongly favours the applicant.50
6. Can the Court Go beyond the Three-Prong Test?

The three-pronged test has created certainty and predictability in the jur-
isprudence developed on the issuance of interim measures. For that reason,
the applicant may predict the chances of his or her success before the court.
However, an ancillary but very important question emerges if the court is or
should be bound by the three-pronged test while deciding such application,
or whether it should have the power to go beyond the three-limbed test to
apply some other test while trying the application of the interim measures.
In New Zealand, article 17J is not incorporated in the Arbitration
Amendment Act 2007 or indeed the Arbitration Act 1996, and hence
the courts derive their power to issue interim measures from section 9 of
the 2007 Act, which is the corresponding provision for article 9 of the
Model Law. Section 9(2) of the 2007 Act states that the ‘High Court or a
District Court has the same powers as an arbitral tribunal to grant an
interim measure under article 17A for the purposes of proceedings before
that court, and that article and article 17B apply accordingly subject to all
necessary modifications’.51
It should be noted that article 17B of the Model Law is incorporated in
the Arbitration Act 1996. It has been held that in deciding the application
48
Films Rover Intl Ltd v. Cannon Film Sales Ltd [1987] 1 WLR 670; Madaffari v. Labenai
Nominees Pty Ltd [2002] WASC 67, 14 (Australia).
49
See n. 39.
50
See also Marsh v. Baxter [2013] WASC 209.
51
See Safe Kids (n. 12) (emphasis added).

510 ar ticle 1 7j: cour t-ord er ed interi m mea sures
of interim measures, given that the tribunal cannot consider the issues
beyond those stated in article 17 of Schedule 1 to the Arbitration Act 1996,
the same restrictions would equally apply to the court. For instance, the
matters set out in article 17B(1) of the Model Law ‘must’ be proved before
the arbitrator for securing the interim measures and this is also true in
respect of the court’s power. In Safe Kids, the Canadian court deliberated the
question of whether the court could consider matters other than those which
the plaintiff ‘must’ prove to be successful in his or her application for interim
measures. Again, by analogising its powers to those of an arbitrator, the
court concluded that it cannot consider the matters other than those which
the plaintiff has to prove. It elaborated that, just like the arbitrator, the court
cannot consider issues such as public interest, the consequences to the
innocent or the overall justice of the case, because the tribunal derives its
powers from the arbitration agreement and hence is not accoutred with any
discretion to consider these two issues. The court did not say that just like
arbitrators, it too cannot consider these issues while imparting interim
measures. However, by the manner it chose to construe its powers and
constraints these are necessarily identical to those of arbitrators, in which
case it may safely be assumed that the court cannot equally consider these.
Nonetheless, the prevalent approach is that the courts are empowered
to go beyond the three-staged test. For instance, Canadian courts have
been assessing the public interest factor while deciding interim relief
applications in the course of civil litigation.52 In fact, it was expressly
stated by a Canadian court that in assessing a balance of inconvenience, a
court must consider, inter alia, if either party will incur an irreparable
loss, the forcefulness of the plaintiff’s case, the public interest and the
appropriateness of maintaining the status quo.53
Similarly, in Australia, while balancing inconveniences and injustice,
courts shall take into consideration the hardships and prejudices likely to
be suffered by a third party or the general public were the injunction to be
granted,54 as well as public interest.55 This is so because the parties’
adherence to their contractual obligation is a public policy concern.56
52
In Mercer Gold (n. 13), the court was declared obligated to take into consideration, inter
alia, the public interest while assessing the balance of inconvenience ground.
53
Mercer Gold, ibid.
54
Samsung Electronics (n. 23), para. 66; Patrick Stevedores (n. 42), 65–66; Sports Data
(n. 42).
55
Castlemaine Tooheys (n. 39), 154–156; Esposito v. The Commonwealth [2013] FCA 546.
56
Amalgamated Pest Control Pty Ltd v. SM & SE Gillece Pty Ltd, Trustee of the Gillece Family
Trust [2016] QDC 134, para. 27.

7. requirements to be fulfilled 511
In India, the Supreme Court, along with the three-pronged test, added
an additional test, namely that the issuance of an interim order must be
‘just and convenient’57 and not against the public interest.58 To go
beyond the three-pronged test was justified by the Indian Supreme
Court in Dorab Cawasji Warden v. Coomi Sorab Warden and Others,59
wherein it was held that the grant of interim relief is an equitable relief,
which rests in the discretion of the court after considering the facts and
circumstances of each case. In this regard, the three-staged test is neither
exhaustive nor complete to be employed for the granting or rejection of
interim orders because there may exist some exceptional circumstances
requiring the application of wholly different tests from the ones described
above.
7. Requirements to Be Fulfilled for a Court to Assume

Jurisdiction
The hierarchy of courts in each jurisdiction is normally different and the
level of court in this hierarchy empowered to issue interim measures is
also different from the court in other jurisdictions. This could be a reason
why the Model Law does not define the competent court with jurisdiction
to entertain the application of interim measures, rather leaving the
matter to domestic law. In Australia, for example, the Supreme Court is
normally competent to hear applications for interim measures.60 In the
Philippines, the power to issue interim measures is vested in regional trial
courts.61 In New Zealand, the court competent to issue interim measures
has not been specified with clarity in the relevant legislation, which states
that: ‘court means a body or organ of the judicial system of a state’.62
However, section 9(2) of Schedule 1 of the Arbitration Act 1996 states
that such a court may be the District or the High Court.63
After identifying the competent court, the next very important issue is
whether such court has jurisdiction to entertain claims for interim
57
Hindustan Petroleum Corp. v. Sri Sriman Narayan and Another (2002) 5 SCC 760.
See also Adhunik Steels Ltd v. Orissa Manganese and Minerals Pvt. Ltd (2007) 7
SCC 125.
58
Prabhjot Singh Mand v. Bhagwant Singh (2009) 9 SCC 435.
59
(1990) 2 SCC 117.
60
Australian International Arbitration Act 1974, s. 18(3).
61
Republic Act No. 9285, 2004, ss 3(k) and 28 (also known as the Alternative Dispute
Resolution Act).
62
Arbitration Act 1996, s. 2(b), Sch. 1.
63
Schedule 1 replicates the provisions of the Model Law in the Arbitration Act 1996.

512 a r tic l e 1 7 j : co u r t- o r d e re d i n t er i m me a s u r es
measures. For the purpose of jurisdiction, Canadian law requires that the
applicant prove the existence of a ‘real and substantial connection’
between the court and the defendant, or the subject matter. In most
jurisdictions, this kind of connection in respect of the interim measures
to be issued and enforced domestically is not that difficult to ascertain
because the factors to be considered are usually clear. In Canada, the
following presumptive connecting factors are exhaustive and as a result
they prima facie entitle a court to assume jurisdiction over a dispute
where:
(1) the defendant is domiciled or resident in the province;
(2) the defendant carries on business in the province;
(3) the tort was committed in the province; and
(4) a contract connected with the dispute was made in the province.64
In Canada, although the situation is not clear, these connections may well
be used by the court in assessing jurisdiction in international disputes.
Similar conditions for the assumption of jurisdiction are laid down in
Norway, where an application for interim measures in relation to per-
sons, asset or property will be made to the court in whose territorial
jurisdiction that person or the property is situated, or is expected to arrive
in the near future.65 The same principles will apply for the interim
measures in relation to foreign arbitration. A similar approach has
been adopted in the Philippines, where the court will assume jurisdiction
if the defendant resides there, the company has its place of business there,
the act sought to be enjoined is to be performed there or the property is
situated there.66
It should be noted, however, that even after the establishment of
jurisdiction on the basis of any of the above presumptive connecting
factors, Canadian courts may yet deny jurisdiction on forum non con-
veniens grounds.67 The relevance of forum non conveniens in deciding the
assumption of jurisdiction is also reflected in other regimes. For instance,
rule 6.28(5)(b) to (d) of the New Zealand High Court Rules states that an
application must establish, inter alia, that ‘New Zealand is the most
appropriate forum for the trial’. The appropriateness of the forum is
64
Club Rosters Ltd v. Van Breda (2012) SCC 17 (Canada).
65
Act of 17 June 2005 No. 90 relating to Mediation and Procedure in Civil Disputes (The
Dispute Act), s. 32–4.
66
AM No. 07–11-08-SC (1 September 2009), Special Rules of Court on Alternative Dispute
Resolution, rule 5.3.
67
Club Rosters v. Van Breda (n. 64).

8. extraterritoriality of c ourt ’s p o w e r 513
assessed on whether New Zealand or foreign courts can or are in a better

position to deliver the most effective relief and that the plaintiff will incur
an unfair loss if a New Zealand court declines to assume jurisdiction.
8. Extraterritoriality of Court’s Power to Issue

Interim Measures
Courts have long been reluctant to use their power to issue interim
measures in support of foreign-seated arbitration largely due to lack
of their territorial jurisdiction over foreign arbitrations. However,
there are many instances in international arbitration when, for the
benefit of arbitration, courts feel compelled to impart this remedy in
relation to foreign arbitration. Such need for arbitration to have
interim measures issued by the court has begun to attract universal
recognition.
For instance, in the course of the UNCITRAL Working Group
meetings, the proposal that the court should be given power to issue
interim measures in support of arbitration even if it was seated in some
other jurisdiction received acceptance on the basis of its practical
significance. For instance, to ‘secure assets, follow a vessel, preserve
evidence, or ask for actions to be taken in a different jurisdiction from
the one where arbitration took place’ has become a key element of the
modern practice of international arbitration. In order to deal with this
proposal, it was suggested that article 17J should be included in the list
of exceptions in article 1(2) of the Model Law. This suggestion was
rejected on the ground that article 1(2) defined the scope of the Model
Law and the Working Group was not assigned with the task of revising
that part of the Model Law. Therefore, the phrase ‘taking place in the
country of the court or in another country’ was added directly into the
text of article 17J.68
As far as judicial practice regarding the court’s power to issue interim
measures in relation to arbitration seated abroad, three approaches are
discernible. First, the courts are empowered to grant interim measures in
relation to foreign arbitration. Second, their powers in this regard have
been subjected to the parties’ agreement or the arbitral tribunal’s prior
approval. Third, the courts do not have power in this regard. With regard
68
Third Session, UN Doc. A/CN.9/589 (12 October 2005), 99, 101; UN Doc. A/CN.9/524 (n.
10), 78.

514 a r tic l e 1 7 j : co u r t- o r d er e d i n te r i m me a s u r es
to the first approach, article 1033 of the German Zivilprozessordnung

(ZPO, German Code of Civil Procedure) empowering the court to issue
interim measures for domestic arbitrations has been extended to foreign
arbitrations or those arbitral proceedings whose seat has not been desig-
nated, in accordance with article 1025 of the ZPO. In Hong Kong,
although article 17J of the Model Law has not been given effect, the
courts are empowered to issue interim measures in foreign arbitration
proceedings.69 Hong Kong courts, in the course of exercising the power
of interim measures, must give regard to the fact that such power is:
(1) ancillary to the arbitral proceedings outside Hong Kong; and
(2) for the purposes of facilitating the process of a court or arbitral
tribunal outside Hong Kong that has primary jurisdiction over the
arbitral proceedings.70
Furthermore, in international arbitration, Hong Kong courts will grant
the interim measures after taking into consideration that:
(1) the arbitral tribunal does not have power to impart all the interim
relief sought by the party in a single application because it would be
more appropriate to seek all the relief from the court than some from
the arbitrator and some from the court;
(2) the relief should have no impact on third parties to the arbitration
over whom the arbitrator does not have any jurisdiction;71
(3) the arbitral tribunal having jurisdiction to impart the interim mea-
sures has not yet been constituted.72
In Hong Kong, notwithstanding the fact that the arbitrators in an
arbitration seated abroad have the power to impart interim measures,
the courts may grant that remedy on the ground that the legislative intent
of the Model Law was to ‘make the same assistance available to interna-
tional arbitration as would be to domestic arbitration’.73
69
Arbitration Ordinance 2011, Hong Kong, ss 45(1), (2), 60(1); see The Owners of the Ship
or Vessel ‘Lady Muriel’ v. Transorient Shipping Ltd [1995] 2 HKC 320.
70
Arbitration Ordinance 2011, Hong Kong, ss 45(7), 60(8). Previously, courts in Hong
Kong held themselves powerless to issue interim measures in respect of foreign arbitra-
tion. See Interbulk (Hong Kong) Ltd v. Safe Rich Industries Ltd, High Court of Hong Kong
(1992) 2 HKLR 185.
71
Leviathan Shipping Co. Ltd v. Sky Sailing Overseas Co. Ltd [1998] HKCFI 549.
72
Hsin Chong Construction (Asia) Ltd v. Henble Ltd, HCCT 23/2005.
73
CLOUT Case 692, Transorient Shipping Ltd v. The Owners of the Ship or Vessel ‘Lady
Muriel’ (1995). For a Phillipinne case, see CLOUT Case 815, Transfield Philippines Inc. v.
Luzon Hydro Corp.

8. extraterritoriality of c ourt ’s p o w e r 515
Egypt follows the second approach. Article 1 of the Egyptian law74

limits its application to domestic arbitration, subject to the parties’
agreement. Hence, the power of courts to grant interim measures in
relation to foreign arbitration exists only if agreed by the parties, other-
wise such power is only in respect of arbitration over which the courts
possess jurisdiction.
Although now almost extinct, there used to exist a third approach of not
allowing courts to issue interim measures in respect of foreign arbitrations.
For instance, the Malaysian High Court did not have this power in relation
to foreign arbitration.75 However, the subsequent Arbitration
(Amendment) Act 2011, by inserting subsection 3 to section 11 of the
Arbitration Act 2005, conferred such powers on the High Court. To restrict
the powers of courts to issue interim measures in domestic arbitrations to
the exclusion of foreign arbitration is obviously an unsustainable idea that is
also apparent from the experience of Singapore and India. In the Swift-
Fortune case,76 the Singaporean High Court interpreted section 12(7) of the
International Arbitration Act 2002 by holding that the court did not have
the power to issue interim measures with regard to foreign-seated arbitra-
tion. Even so, this approach was eradicated by the International Arbitration
(Amendment) Act 2010, which, by adopting article 17J of the Model Law,
replaced section 12(7) with a new section 12A, which conferred power on
courts to grant interim relief in relation to foreign-seated arbitration.
Singaporean courts went even further by stipulating that under section
12A they possess power to issue interim measures in support of domestic
arbitration to preserve assets situated outside Singapore. It was held that
‘this exercise of power to grant interim measures is not unlike the exercise of
the court’s powers and jurisdiction in granting an injunction that covered
assets outside Singapore, provided the court has in personam jurisdiction
over the parties to the local proceedings’.77
In India, the court’s power to issue interim measures was restricted to
domestic arbitrations under section 2(2) of the Arbitration and
Conciliation Act 1996, which concerns those sections with extraterritor-
ial effect, but did not include section 9. To remedy this, the Indian
Supreme Court opined that Indian courts have the power to issue interim
74
Law No. 27/1994 Promulgating the Law Concerning Arbitration in Civil and Commercial
Matters, published in the Official Gazette No. 16 (bis) on 21 April 1994.
75
Aras Jalinan v. Tipco Asphalt Public Co. Ltd and Others [2008] 5 CLJ 654.
76
Swift-Fortune Ltd v. Magnifica Marine [2006] SGCA 42.
77
Five Ocean Corp. v. Cingler Ship Pte Ltd (PT Commodities & Energy Resources, intervener)
[2015] SGHC 311.

relief in support of foreign-seated arbitration.78 Although the principles

laid down in this judgment were arbitration friendly, they were premised
on weak foundations and were subsequently found to be invalid and
incorrect.79 This later judgment expressly held that the Arbitration and
Conciliation Act does not extend the powers of courts to issue interim
measures in foreign-seated arbitrations. Finally, section 2(II) was inserted
in the Arbitration and Conciliation Act 1996 by the Arbitration and
Conciliation (Amendment) Act 2015 No. 3 of 2016, which extended
section 9 to international arbitrations as well.
9. Powers of Court to Grant Interim Measures

before the Commencement of Arbitral Proceedings
The issuance of interim measures before the initiation of arbitral pro-
ceedings is one of those points where arbitration needs courts the most.
Although, in an attempt to autonomise the arbitration of court assis-
tance, arbitral institutions are introducing emergency arbitrators for the
issuance of interim measures, the need for the court at this juncture has
not yet completely been wiped out.
The travaux to the 1985 version of the Model Law manifest that the
availability of interim measures from the court before and during
the arbitration proceedings had received universal agreement during
the deliberation of article 9.80 In fact, domestic courts can normally
impart interim remedies before the constitution of the arbitral tribunal
and hence before the commencement of arbitral proceedings. States
which empower the courts to issue interim measures before the com-
mencement of arbitral proceedings include Egypt,81 Japan,82 Germany,83
the Philippines,84 Turkey85 and Malaysia.86 Hong Kong, on the other
78
Bhatia Intl v. Bulk Trading SA (2002) 4 SCC 105 (Sup. Ct (Ind.)).
79
Harat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc., Civil Appeal No. 7019
of 2005.
80
Third Session, UN Doc. A/CN.9/216 (23 March 1982), 39.
81
Egyptian Law No. 27/1994 Promulgating the Law Concerning Arbitration in Civil and
Commercial Matters, art. 14.
82
Arbitration Law (Law No. 138 of 2003), art. 15.
83
German ZPO, art. 926.
84
Special Rules of Court on ADR (n. 66), rules 5.2, 5.3, 5.15.
85
Turkish International Arbitration Code, Law No. 4686 of 2001, art. 6; Turkish Civil
Procedure Code, art. 414.
86
Arbitration Act 2005, s. 11.

9 . p o w e r s o f co u r t t o g r a n t in t er i m m e a s u r e s 517
hand, allows interim measures before the commencement of arbitration

subject to the following conditions:
(1) the arbitral proceedings are capable of giving rise to an arbitral award
(whether interim or final) that may be enforced in Hong Kong under
this Ordinance or any other Ordinance; and
(2) the interim measure sought belongs to a type or description of
interim measure that may be granted in Hong Kong in relation to
arbitral proceedings by the court.87
Indian courts used to subject the issuance of interim measures before
the commencement of arbitration proceedings to the condition that the
applicant ought to demonstrate manifestly his or her intention to have
recourse to arbitration. In a judgment pronounced before the amend-
ment of the Indian Arbitration and Conciliation Act 1996, the Indian
Supreme Court highlighted the fact that although under section 9 the
application for the interim measure can validly be made before the
commencement of arbitration proceedings, nonetheless ‘the provision
does not give any indication of how much before’. The word ‘before’ was
held by the Indian Supreme Court to mean that the applicant ‘must be
able to satisfy the court that the arbitral proceedings are actually con-
templated or manifestly intended’ and certainly within reasonable time.88
However, a subsection 2 was inserted in section 9 by the Arbitration
and Conciliation (Amendment) Act 2015 No. 3 of 2016, which mandated
that the arbitration proceedings must be commenced within ninety days
after the date of the issuance of interim measures. In order to fulfil the
Indian legal requirement of initiation of arbitration proceedings, it is
important to understand when arbitration proceedings are considered as
having commenced. ‘Commencement of arbitration proceedings’ has
been defined in section 21 of the Arbitration and Conciliation Act
1996, which provides that ‘the arbitral proceedings in respect of a parti-
cular dispute commence on the date on which a request for that dispute
to be referred to arbitration is received by the respondent’.89
The tradition of stipulating specific time limits, in which the arbitra-
tion proceedings must be commenced, can be seen in other jurisdictions.
For instance, in Chile, the applicant must commence arbitration
87
Arbitration Ordinance 2011, Hong Kong, s. 45(5).
88
See Firm Ashok Traders and Another etc. v. Gurumukh Das Saluja and Others (9 January
2004), Supreme Court of India. See also Sundaram Finance Ltd v. NEPC India Ltd, AIR
(1999) SC 565.
89
Natl Building Construction v. Ircon Intl Ltd, 1998 (44) DRJ 399 (Delhi High Court).

proceedings (both domestic and foreign) within a maximum of thirty

days after the issuance of interim measures.90 In Thailand, the interim
measure will lapse if the arbitration is not commenced within thirty days
after the issuance of such order.91 In Turkey, with regard to international
arbitration, the mandatory period of thirty days has been stipulated to
commence the arbitration proceedings, otherwise the interim measures
are considered to have automatically been lifted.92 In respect of domestic
arbitration, the period is two weeks.93
It should be noted that not every legal system specifically addresses the
time period for the initiation of arbitration proceedings and in that
regard, discretion is conferred on the courts to specify such time limit.
If within such period the arbitration proceedings are not initiated by the
interim relief creditor, the relief would stand elapsed.94 Some jurisdic-
tions grant discretion to the court to set out the time within which a party
should launch arbitration proceedings. The Polish Civil Procedure Code
in its article 733 mandates the court to set the time limit for that purpose,
which in any event must not be longer than two weeks.
Whether by statute or judicial discretion, the specification of definite
time limits is rational. While considering the amendment to the Model
Law on the point of interim measures, it was proposed that interim
measures should remain alive for a specific limited time since this is
consistent with the right of the respondent to be heard. The other reason
for prescribing the time period for the validity of the interim measure is
that it might have been issued ex parte and the applicant might be in need
of having it renewed from the court or the tribunal.95 The Indian
Supreme Court has vindicated the stipulation of time limits by claiming
that when a party makes an application seeking interim measures, said
party, in fact, not only implicitly accepts the existence of a final and
binding agreement, but also accepts the creation of a controversy man-
dated to be referred to arbitration proceedings between the parties. All
this establishes that the right of submitting an application for interim
measures before the commencement of arbitration proceedings is
90
Santiago Civil Court, Docket No. C-5243–2005, 26 May 2005 (Chile).
91
Thailand Arbitration Act 2002, s. 16.
92
Turkish International Arbitration Code, art. 30(A).
93
Turkish Civil Procedural Code, art. 397.
94
For instance, see Japanese Civil Provisional Remedies Act, No. 91 of 1989, s. 37(1) and (2),
whereunder the court cannot give two weeks or more time. Similarly, for Germany, see
art. 926 of the German ZPO and for Hong Kong, see ss 45(1) and (2), and 60(1) of the
Arbitration Ordinance 2011.
95
UN Doc. A/CN.9/WG.II/WP.111 (n. 6).

1 0 . p o wer o f co ur t a n d ar b itrator 519
premised on a condition that there must be a manifest intention on the

part of the applicant for the interim measures to be linked to arbitral
proceedings. For this reason, the courts in India were supposed to issue
interim orders on condition that the applicant in a time specified by the
court would take effective steps, such as by issuing a notice of proceed-
ings to the defendant.96
10. Interaction between the Power of Court and Arbitrator

on the Point of Issuance of Interim Measures
Advancement of arbitration is manifest from the empowerment of the
arbitrator to issue interim measures. However, this power of arbitrators
co-exists with that of the court and this gives rise to some questions – for
instance: should the court decline an application for interim measures if
it is made without securing any prior permission from the arbitrator; how
should the court entertain an application for an interim measure if such
application has already been adjudicated by the arbitrator and declined.
The section discusses the interaction or conflict between the powers of
the court and the arbitrator on this point. Beginning with the Model Law,
it does not deal with the possible conflict between the powers of the court
and those of arbitral tribunals.97 In the deliberations of the Working
Group meeting, it was suggested that the courts should not entertain an
application for interim measures if an application for the same relief had
already been declined by the arbitral tribunal. Such proposal could not
gather support because it was felt that the courts should not be prohibited
from taking up the case de novo when so prayed by the applicant.98 In
subsequent meetings of the Working Group, again the obscurity was
highlighted, namely: what would be the outcome if the powers of the
court and the arbitrator to issue interim measures were coextensive or the
power of the court superseded that of the arbitrator? In this respect, it was
suggested that the power of the courts should be limited to circumstances
where either the arbitral tribunal was unable to issue interim measures or
could not (for whatever reason) function in that regard effectively, as
would be the case where interim measures were needed to bind a third
party or the arbitral tribunal is not yet constituted. However, despite this
proposal gathering some support, it was not accepted due to the
96
Sundaram Finance Ltd v. NEPC India Ltd (13 January 1999), Supreme Court of India.
97
UNCITRAL, Eighteenth Session, UN Doc. A/CN.9/263/Add.1 (15 April 1985), para. 2.
See also UN Doc. A/CN.9/263 (19 March 1985).
98
UN Doc. A/CN.9/573 (n. 10), 91.

involvement of far-reaching practical and legal repercussions. It was

decided that the complex issues raised by this proposal might be con-
sidered by the Working Group at a later stage.99
The fact that the Model Law is silent on this point implies that the
powers of the court and the arbitrator to grant interim relief are inde-
pendent of each other. The jurisdictions which have not yet incorporated
article 17J are still relying on an article 9-type provision in their legisla-
tion. It is usually provided in such circumstances that article 9 prevails
over article 17J in the sense that despite the power of the arbitrator to
issue interim measures, any party can also seek that remedy from the
courts.100 This approach has been adopted in Austria, where the right of a
party to apply for judicial interim measures is completely independent of
the right to seek an interim remedy from the arbitrator.101 Equally, in
Chile, a party need not secure the prior permission of the arbitral tribunal
to seek interim measures from the court even after the composition of the
arbitral tribunal.102 Similarly in Germany, article 1033 of the ZPO, which
deals with the court’s power to issue interim measures, does not lay down
any condition for securing permission from the arbitrator prior to an
application to the courts. New Zealand’s law is even more explicit on this
point. Although it allows the court to grant interim relief even if the
applicant has not secured prior permission from the arbitrator, where a
party applies to a court for an interim injunction or other interim order
and an arbitral tribunal has already ruled on any matter relevant to the
application, the court shall treat the ruling or any finding of fact made in
the course of the ruling as conclusive for all purposes of the
application.103
In India, where no prior permission from the arbitrator is required,104
a court can issue interim measures even if the application for interim
measures was made to the arbitral tribunal and is still under considera-
tion by the tribunal.105 In this regard, the sole fact that the arbitrators
have been appointed to their office is not a ground for dismissal of the
application for interim measures from the court.106 This approach was
99
UN Doc. A/CN.9/589 (n. 68), 103.
100
Trade Fortune Inc. v. Amalgamated Mill Supplies Ltd [1994] CanLII 845 (BCSC).
101
Austrian ZPO, s. 585.
102
International Commercial Arbitration Law, No. 19,971, art. 9.
103
New Zealand Arbitration Act 1996, art. 9(3), Sch. 1.
104
Shin Satellite Public Co. v. Jain Studios Ltd (3 October 2008), Delhi High Court.
105
Natl Highways Authority of India v. China Coal Construction Group Corp., 2006 (1)
RAJ 621.
106
Escorts Finance Ltd v. Mohd. Hanif Khan, 2001 (1) RAJ 546.

10. power of court and arbitrator 521
justified in Atul Ltd v. Parakash Industries Ltd,107 wherein the court held
that the empowerment of an arbitrator to issue interim measures by no
means substitutes the power of the courts in this regard. As a result,
where an arbitrator has been vested with the power to issue interim
measures, such power does not oust the jurisdiction of the court and
hence the powers of the court to issue interim measures will remain intact
even during the pendency of arbitration proceedings.
In Uppal v. Cimmco Birla,108 the applicant filed an application for an
interim order before the arbitral tribunal, which was declined. He did not
challenge this order before the courts. The applicant subsequently filed
an application before an Indian court for the same kind of interim
measure without having disclosed the fact that he had already requested
a similar relief from the arbitrator and that this had been declined. The
Indian court found the suppression of this fact to be of a grave nature and
as a result the application for ex parte interim relief would stand quashed.
The Indian court’s reasoning seems to be in line with the travaux of the
Model Law, as it was also proposed therein that an applicant should be
mandated to inform the court of any development in the arbitration
proceedings on the substance of the dispute, as well as any proceeding
concerning interim measures.109
In Hong Kong, in a case concerning an arbitration seated in London, it
was held that in arbitrations seated outside Hong Kong, the courts of that
country should decline to impart the interim measures if the party did
not secure a prior approval from the arbitrator to launch such an
application in the court, unless the court is satisfied that justice requires
it to grant such interim measures in order to protect the plaintiff from a
serious and irreparable harm in the arbitral proceedings.110 This view
was upheld later in domestic arbitration by a Hong Kong court in Hsin
Chong Construction (Asia) Ltd v. Henble Ltd,111 where it was held that a
plaintiff should first seek the assistance of the arbitral tribunal already
seised of the dispute. Where a tribunal has yet to be constituted, the
applicant will have to demonstrate the existence of a serious risk that the
defendant will remove the asset from the court’s jurisdiction to render
the arbitral award ineffective.
107
2003 (2) RAJ 409.
108
Uppal Eng. Co. (P) Ltd v. Cimmco Birla Ltd, 2005 (2) ARBLR 404 (Delhi).
109
UN Doc. A/CN.9/WG.II/WP.111 (n. 6).
110
The Owners of the Ship or Vessel ‘Lady Muriel’ v. Transorient Shipping Ltd [1995] 2
HKC 320.
111
See n. 72.

Article 18
Equal Treatment of Parties

ilias bantekas
The parties shall be treated with equality and each party shall be given a
full opportunity of presenting his case.
From a methodological point of view, this chapter adheres to the distinc-
tion between equality and the right to an opportunity to present one’s
case. Functionally, however, these are not distinct rights. They are part of
the right to fair trial and its equality of arms limb. This suggests that the
parties to civil/arbitral proceedings must be afforded equal opportunities,
including the right to present their case to the best of their abilities.1
Significant reliance is placed in this chapter on the case law of the
European Court of Human Rights (ECtHR). This is done for a variety
of reasons. First, its right to fair trial jurisprudence is the most extensive
among its international counterparts. Second, to a large extent it reflects
customary international law and general principles of law. Third, it is part
of the lex arbitri of over fifty member States of the Council of Europe,
which constitute a bulk of the globe’s arbitration seats, not to mention
that it may also be an integral part of the governing law of the parties’
agreement (for Council of Europe member States). Fourth, the ECtHR
has expressly factored arbitral proceedings into its fair trial guarantees
and hence arbitration is an integral part of this body of law and subject to
sensible exceptions.2 Finally, the ECtHR has consistently spelt out its
margin of appreciation doctrine, whereby the court may reconcile prac-
tical differences in implementing the European Convention on Human
1
Dombo Beheer BV v. Netherlands (1994) 18 EHRR 213, para. 33.
2
See e.g. Klausecker v. Germany [2015] EHRR SE8, paras 69–77; Deweer v. Belgium (1979–
80) 2 EHRR 439, para. 49; Tabbane v. Switzerland (2016) ECHR 109, para. 27; Lithgow and
Others v. UK (1986) 8 EHRR 329, para. 201.
522

1 . trav aux p ré p a r a t o i r e s 523
Rights (ECHR) by allowing member States to deviate from the letter of a

provision.3
The exact place of fundamental procedure rights was not always
circumscribed in the original formulations of the 1985 version of the
Model Law.4 The basis, however, in the first rounds of drafts was article
15(1) of the UNCITRAL Arbitration Rules.5 In October 1982, the two
limbs of procedural fairness were placed in subparagraph (b) of para-
graph 1 of article 19.6 This was retained at the fourth session, which,
however, observed that the right to an opportunity to present one’s case
should not exist ‘at any stage’ of the proceedings, as enunciated in draft
article 19(1)(b), because it would allow parties to prolong proceedings or
make unnecessary submissions.7 It was also suggested that the obligation
to communicate all information supplied to the tribunal to the other
party in draft article 20(2) should perhaps be placed in the equality
provision of article 19(1)(b).8 At its fifth session, the Working Group
set out a draft article 19, which consisted of two paragraphs. The second
paragraph circumscribed the tribunal’s authority to devise procedural
rules in the absence of any such designation by the parties, noting that
this authority is subject to the parties’ equal treatment and their right to
present their case.9 This formulation was accepted verbatim in subse-
quent sessions.10 During the ninth session, very few comments, in com-
parison to other provisions, were put forward on procedural fairness.
Norway suggested that violation of the principle to present one’s case
should give rise to set-aside proceedings against the award. Both Norway
and the International Bar Association further suggested that the adjective
‘full’ as referring to a party’s opportunity of presenting its case should
either be substituted by ‘adequate’ or the words ‘and proper’ should be
3
See G. Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26 OJLS 705.
4
See e.g. Report of the Working Group on International Contract Practices on the Work of
Its Sixth Session, UN Doc. A/CN.9/245 (22 September 1983), where no reference is made.
5
Articles 1–24, UN Doc. A/CN.9/WG.II/WP.37 (1982), 54, fn. 34.
6
Ibid., 55.
7
Report of Working Group II, UN Doc. A/CN.9/232 (1982), para. 104.
8
Ibid., para. 110.
9
Draft Articles I to XXII, UN Doc. A/CN.9/WG.II/WP.40 (14 December 1982), draft
art. XV.
10
Secretariat, UN Doc. A/CN.9/WG.II/WP.48, reprinted in XV (1984) UNCITRAL YB
218, 223.

524 a rt i cl e 18 : eq ual tr eat ment of parties
added after it.11 The absence of comments certainly indicates that pro-
cedural fairness was not high on the agenda and that neither UNCITRAL
nor participating States properly understood the interaction between the
right to fair trial and its application to arbitral proceedings. The final
version of the 1985 Model Law ultimately reserved a distinct provision on
procedural fairness, thus distinguishing this foundational issue from the
remainder of article 19.
When the current version of article 18 was still draft article 19(3), party
equality was conceived as but one dimension of three distinct, yet inter-
related, issues, namely: (1) the parties’ freedom to set out arbitral proce-
dure; and (2) the tribunal’s authority to determine such procedure where
the parties had not, as well as (3) further determine the admissibility,
relevance and materiality of evidence. The official UNCITRAL
Commentary emphasises the importance of draft article 19 by calling it
the ‘Magna Carta of Arbitral Procedure’. It clearly states that it is not
subject to derogation, even by the parties themselves.12 Moreover, it
iterates the fundamental nature of ‘fairness’ as enunciated in paragraph
3 of draft article 19 and makes it clear that it applies to other pertinent
provisions in the Model Law requiring procedural fairness. Although the
official commentary does not offer an exhaustive analysis, it does make
an important point, namely that the right to present one’s case ‘does not
entitle a party to obstruct the proceedings by dilatory tactics and, for
example, present any objections, amendments, or evidence only in the
eve of the award’.13
Ultimately, paragraph 3 was removed and placed in a separate article
(namely, article 18) and the first two paragraphs of draft article 19
remained in their place. This was meant to distinguish two somewhat
diverse issues (i.e. party autonomy to determine rules of procedure from
procedural fairness), while at the same time emphasise the importance of
procedural fairness by underlining that it is not subordinate to the
parties’ freedom to determine procedural rules. As draft paragraph 3 of
article 19, the words ‘in either case’ were attached in the beginning of the
sentence. These are removed from the text of article 18. Article 18
remained unchanged in the revision of the Model Law in 2006.
11
12
CN.9/264 (25 March 1985), 45.
13
Ibid., 46–47.

2 . l i mi t at i o n s t o p ar ty autonom y 525
2. Limitations to Party Autonomy: Fair Trial Guarantees

The parties’ control of arbitral proceedings is not without limits.
Arbitral proceedings are legal proceedings, even if arbitral tribunals
are not always perceived as ‘established by law’14 and as a result the
proceedings are subject to sensible fair trial guarantees. I emphasise
the word sensible, because although article 6(1) of the ECHR requires
that proceedings be public or that (implicitly) national authorities
must promote access to justice, at least in favour of the weaker party,
such obligations are in conflict with the rationale underlying arbitra-
tion. An obvious example concerns the power disparity between the
parties. Although it is sensible to bridge the power gap between the
parties in court proceedings, it is inconceivable that the stronger party
or the State (other than perhaps in consumer arbitration) should
finance the expenses, legal or other, of the weaker party as a means
of legal aid or in order to rectify the parties’ financial disparity in
arbitral proceedings.15 The German Federal Supreme Court has
approached the same issue from a different (i.e. contractual) perspec-
tive, holding that where a party to an agreement containing an arbitra-
tion clause is genuinely unable to finance the costs associated with
arbitration, then the arbitration agreement is incapable of performance
14
See Case 102/81, Nordsee Deutsche Hochseefischerei GmbH v. Reederei Mond
Hochseefischerei Nordstern AG and Others [1982] ECR 1095; Case C-394/11, Belov v.
CHEZ Elektro Balgaria and Others, CJEU judgment (31 January 2013), para. 38; Case C-
125/04, Denuit and Cordenier v. Transorient-Mosaique Voyages et Culture SA [2005] ECR
I-00923, para. 13; Case C-555/13, Merck Canada v. Accord Healthcare Ltd and Others,
CJEU judgment (13 February 2014), para. 17, whereby the CJEU does not generally view
arbitral tribunals as established by law, but this largely concerns the capacity of arbitral
tribunals to request preliminary rulings.
15
Exceptionally, the Portuguese Supreme Court in Wall Street Institute de Portugal – Centro
des Ingles SA WSI – Consultadoria e Marketing and Others v. Centro des Ingles Santa
Barbara LDA, Judgment No. 311/2008 (30 May 2008), held that where a party to arbitral
proceedings had become indigent, it was entitled to legal aid and hence recourse to
litigation, whereby legal aid is available. The court’s rationale was based on the argument
that the interest sacrificed by the rejection of the arbitration clause was purely procedural
as opposed to the substantive interest in the case of the right to a fair trial. The general rule
strongly and universally rejects this approach. See art. 380 of the Swiss CCP, which
excludes the possibility of legal aid from domestic arbitral proceedings. The Swiss
Federal Supreme Court in Case No. 4A_178/2014, judgment (29 July 2014), confirmed
that the same exclusion applies also to international arbitrations; equally, CLOUT Case
501, DLT Holdings Inc. v. Grow Biz Intl [2001] 199 Nfld & Prince Edward Island Reports
135. The court held that the financial bargaining disparity between the parties did not
offend public policy.

526 a rt i cl e 1 8 : eq ual t r eat ment of parties
and the indigent party may seek to resolve the dispute in the courts
and receive legal aid.16
It is therefore imperative to circumscribe the fair trial exceptions
inherent in the party autonomy principle, as this applies to the regulation
of arbitral proceedings on the basis of consent. The agreement to arbi-
trate should be our starting point. Given that the parties’ submission
agreement may by itself affect fairness and equality, article 18 and fair
trial guarantees apply in the context of arbitration from the time of the
preliminary assessment of the validity of the submission agreement.
Hence, if it transpires that the arbitration agreement gives rise to some
form of inequality, the court or tribunal is obliged to declare that part of
the agreement null and void. In a Polish case, the arbitration agreement
mandated that the tribunal be constituted by one super-arbitrator who
was to be appointed by arbitrators nominated by every shareholder of the
company. The claimant argued that, out of seven arbitrators, only one
was appointed by him and as a result his interests were not equally
represented. The Court of Appeals of Bialystok agreed that this part of
the submission agreement was null and void because it violated the
principle of party equality.17
It is now well settled that exclusion clauses in commercial contracts by
which the parties freely dispose of (or waive) their right to litigation
before ordinary courts do not prejudice fair trial guarantees in and by
themselves.18 Free and open consent is paramount because mandatory
arbitration has not always been perceived as being compliant with the
right to fair trial.19
16
CLOUT Case 404, German Bundesgerichtshof, 4 September 2000, III ZR 33/001.
17
CLOUT Case 1467, Iwona G. v. A. Starosta i Wspólnicy spółka jawna w B.
18
In Sumukan Ltd v. Commonwealth Secretariat [2007] EWCA Civ. 243, the English Court
of Appeal held that an agreement in an arbitration clause to exclude an appeal to a court
on a point of law under s. 69 of the Arbitration Act 1996 (the exclusion agreement) did
not breach the right to a fair trial as guaranteed under art. 6 of the ECHR. Equally, as far
back as the early 1960s, in Osmo Suovaniemi and Others v. Finland, App. No. 31737/1996,
Decision (23 February 1999) and X v. Germany, App. No. 1197/1961, Decision (5 March
1962), the ECtHR and the Commission stressed that waivers in favour of exclusive
arbitration are consistent with the right to a fair trial.
19
Bramelid and Malstrom v. Sweden (1983) 5 EHRR 249. Conversely, the Maltese
Constitutional Court has held that mandatory arbitration proceedings under Maltese
law (including the appointment of arbitrators by the chairman of the Malta Arbitration
Centre) did not breach either the Constitution of Malta (art. 39(2)) or the right to fair trial
under art. 6(1) of the ECHR. Untours Insurance Agency Ltd and Emanuel Gauci v. Victor
Micallef and Others, App. No. 81/2011/1, Maltese Constitutional Court judgment (25
January 2013).

2 . l imi t at i o n s t o p ar ty autonom y 527
As regards actual arbitral proceedings, two principles are universally

accepted as being applicable, namely: due process and fair hearing; and
tribunal independence and impartiality.20 Due process is a broad prin-
ciple encompassing many different aspects of proceedings. Its most
salient manifestation for our purposes is party equality, which is guar-
anteed under article 8 of the ECHR. According to this, the tribunal,
even if the parties’ agreement indicates otherwise, must treat all litigants
in the same manner without any distinction or discrimination;21 essen-
tially, what it allows for one party, it should equally allow to the other.
The correct approach is that because of the foundational nature of the
rights enshrined in article 18, these cannot be waived by the parties on
the basis of consent. This is true both in respect of the mandate of the
tribunal (in its treatment of the parties), as well as the right of the parties
to contest the propriety of arbitral proceedings on the ground of unfair
treatment.22 Although the latter has been refuted by a handful of
national courts (on the erroneous assumption that it may be waived),23
it should be remembered that: (1) fundamental human rights rules can
never be the subject of derogation by the parties, the courts or the
executive; (2) article 4 of the Model Law expressly states that the parties
may only waive non-mandatory requirements and not mandatory
requirements, as is the case with due process guarantees; and (3) there
is never any way of really knowing what drove one of the parties to
exclude its due process rights. It could just as well be the result of
coercion, fear, intimidation, etc. and this is exactly why such rights
are not and should not be amenable to waiver. This consideration
notwithstanding, the foundational rules enshrined in article 18 are
not meant to retrospectively shield the parties from poor and deliberate
choices during the arbitral process.24
Fair treatment in the context of arbitration is in no way dependent on,
or related to, the parties’ resources. It concerns simply access to and
20
See I. Bantekas, Introduction to International Arbitration (Cambridge University Press,
2015), pp. 123–126.
21
This is clearly a foundational principle from which no derogation, even by the parties’
consent, is permitted. See CLOUT Case 743, Soh Beng Tee & Co. Pte Ltd v. Fairmount
Development Pte Ltd [2007] 3 SLR(R) 86; Noble China Inc. v. Lei Kat Cheong [1998]
CanLII 14708 (ONSC).
22
See Noble China (ibid.).
23
Methanex Motunui Ltd v. Spellman [2004] 3 NZLR 454.
24
Re. Corporación Transnacional de Inversiones SA de CV and Others v. STET Intl SpA and
Others [1999] CanLII 14819 (ONSC).

528 a r t i cl e 18 : eq ual tr eat ment of parties
availability of the same procedural remedies and entitlements to all

parties.25
If some human rights considerations are binding on arbitral (com-
mercial) tribunals, is it also the case that arbitral proceedings are obliged
to take into consideration the human rights obligations of the seat (and
perhaps the country of enforcement) in the conduct of proceedings?
Although there is some confusion on this matter, the simple answer
must be an affirmative one.26 The seat’s human rights obligations are
part of its lex arbitri and the tribunal would fail in its duty to produce an
enforceable award were it to ignore the human rights obligations of the
seat and the intended country of enforcement. Although one cannot
require arbitrators to be appraised of the expanding jurisprudence of
the ECtHR and that of other human rights courts and tribunals, arbitral
institutions and counsel must ensure, and typically do, that the parties’
procedures are compliant with fundamental fair trial guarantees.27 In
practice, the courts interpret the right to fair and equal treatment in
arbitral proceedings restrictively. The South African Constitutional
Court in Lufuno Mphaphuli & Associates (Pty) Ltd v. Nigel Athol
Andrews Bopanang Construction CC was asked to set aside an award
because of three ‘secret’ meetings with the respondent during the course
of the arbitration and also because not all correspondence between the
respondent and the arbitrator was furnished to the appellant. The appel-
lant relied on article 34 of the Republic of South Africa Constitution,
which provides for a right of a public hearing in respect of disputes. The
court held that arbitral tribunals are not directly covered because hear-
ings are not public and arbitrators are not necessarily independent, at
least in the sense of court judges. The court further relied on article 18 of
the Model Law and section 33 of the English Arbitration Act, which it
25
See Hong Kong Arbitration Ordinance 2011, art. 46.
26
Transado-Transportes Fluviais do Sado v. Portugal, App. No. 35943/02, ECtHR judgment
(16 December 2003); see, equally, Case 102/81 (n. 14), where the CJEU held that the
application of EU law cannot be limited by contractual exceptions or carve-outs; equally,
Société Licensing Projects and Others v. Société Pirelli & C SpA and Others, Paris Appeals
Court judgment (17 November 2011). See also art. 396(2) of the Swiss CCP, which allows
a limited review of domestic arbitral awards where the claimant alleges a violation of the
ECHR.
27
See art. 22(1) of the ICC Rules, which provides that both the parties and the tribunal must
ensure that the proceedings are conducted in a cost-effective and expeditious manner. If
an award is not compliant with the right to fair trial, it will be set aside. See G. Petrochilos,
Procedural Law in International Arbitration (Oxford University Press, 2004), pp.
112–113.

3. eq ual it y 529
found to enshrine a constitutional principle, albeit it held that fairness is a

creature of context. In the particular context of the case, it pointed out
that the arbitrator was a quantity surveyor and the parties’ agreement
adopted an informal methodology for the proceedings. The court further
argued that the ‘secret’ meetings did not prevent the parties from pre-
senting their case fairly and rejected the contention that the correspon-
dence not furnished to the appellant constituted a gross irregularity as
each party had an opportunity to persuade the arbitrator that his pre-
liminary conclusions were wrong.28 Although other national courts may
reach different conclusions regarding the appellant’s irregularity claims,
the judgment is at pains to emphasise the sui generis nature of procedural
equality in arbitration, which may just as well be dispensed by informal
means. This line of reasoning was taken even further by the Court of
Appeal of Katowice, which held that the lack of impartiality of an
arbitrator violates article 18 of the Model Law only if this results in
inequality between the parties.29
3. Equality
The fundamental starting point for assessing ‘equality’ outside the con-
text of article 18 of the Model Law is article 6(1) of the ECHR,30 which
stipulates that ‘in the determination of his civil rights and obligations …
everyone is entitled to a fair … hearing by [a] tribunal …”. Fairness
applies to the entirety of proceedings and not simply oral hearings or
proceedings on the merits.31 Courts and arbitral tribunals must provide
all parties with a fair opportunity to effectively argue their case and make
their claims. Moreover, it also imposes an obligation on courts and
tribunals to treat the parties fairly (i.e. without bias or arbitrariness)
when reaching their judgment or award.
In the course of a sports-related arbitration, the tribunal relied on an
unlawfully obtained video recording that ultimately proved to be deci-
sive. The Swiss Federal Supreme Court held that the admission of
28
CLOUT Case 1691, Lufuno Mphaphuli & Associates (Pty) Ltd v. Nigel Athol Andrews
Bopanang Construction CC [2009] ZACC 6.
29
CLOUT Case 1465, AL v. Spółka Akcyjna v. P, Katowice Court of Appeal, V ACz 1106/12
(16 January 2013).
30
The same principle is also found in other international instruments, such as: International
Covenant on Civil and Political Rights, arts 14, 16; Universal Declaration of Human
Rights, art. 10; African Charter on Human and Peoples’ Rights, arts 3, 7, 26; American
Convention of Human Rights, arts 3, 8–10.
31
Stran Greek Refineries and Stratis Andreadakis v. Greece (1994) 19 EHRR 293, para. 49.

530 a r t i cl e 18 : eq ual tr eat ment of parties
otherwise unlawful evidence did not breach a fundamental principle of

Swiss procedural law. It went on to note that tribunals, just like courts,
possess the authority to undertake a case-specific assessment of whether
or not illegally obtained evidence should be admitted.32
3.1 Equality of Arms

The principle of equality of arms is that which better encapsulates
the concept of ‘equality’ in article 18 as applicable to adversarial
arbitral proceedings. It requires a fair balance in the opportunities
afforded to both (all) parties in adversarial proceedings. The ‘fair-
ness’ required by article 6(1) of the ECHR is concerned with ‘pro-
cedural’ fairness, as opposed to substantive fairness (which relates to
inherent powers of courts and tribunals). The procedural fairness
guaranteed by the right to fair trial in civil and arbitral proceedings
necessitates that in adversarial proceedings the parties are treated
equally and their submissions are accordingly treated, even if one
ultimately prevails over another. The ECtHR does not regard an
isolated procedural unfairness as tainting the entire process,33 albeit
this rule should be applied with caution in arbitration even though it
is sensible.
Equality of arms further necessitates that the parties have access to all
admissible evidence and a fair opportunity to comment on and examine
such evidence, even with regard to its authenticity.34 Article 24(3) of the
Model Law provides that all statements, documents and other informa-
tion 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.35 This places even greater emphasis on
the requirement of well-reasoned awards. Although the tribunal need not
necessarily attach probative value to all evidence brought forth by the
parties, it must allow them to at least submit it if a party deems it to be
32
Joined cases 4A_362/2013 and 4A_448/2013, judgment (28 May 2014).
33
Miroļubovs and Others v. Latvia, App. No. 798/05, ECtHR judgment (15 September
2009), para. 103.
34
Krčmář and Others v. Czech Republic, App. No. 35376/97, ECtHR judgment (2 May
2000), para. 42; Immeubles Groupe Kosser v. France, App. No. 38748/97, ECtHR judgment
(9 March 1999), para. 26.
35
See Attorney-General v. Tozer (No. 3) (2 September 2003), whereby an award was set aside
because a document submitted to the tribunal by one party was excluded from its file to
the other party.

3. e qual it y 531
relevant to proving its case.36 The equality of arms principle mandates

that the parties must be granted a fair opportunity to express their views
on all admissible documents, even those introduced by the tribunal on its
own motion.37 This notwithstanding, there exists no obligation to trans-
mit to the other party documents that are either inadmissible or those
that have not been presented to the tribunal.38 Withholding of evidence
from one party is only permissible under reasons of strict confidentiality
or for reasons relating to public safety or witness protection.39
The ECtHR has emphatically stressed that courts and tribunals are at
liberty, whether by contract or statute, to lay down their rules of evidence40
and decide on matters of admissibility of evidence.41 Courts and tribunals
have the power to determine the probative value of evidence and admin-
ister the burden of proof, provided of course that the pertinent rules are
known to the parties in advance.42 This is consistent with arbitral practice,
whereby rules of procedure and evidence are predicated on the parties’
agreement. In a case decided by the Singapore Court of Appeals, it was held
that an interim award that relied on facts not included in the parties’
pleadings did not violate the parties’ equal treatment because its opponent
company had ample notice of the claim in question and had ample
opportunity to address it. Hence, it did not suffer any prejudice as a result
of the issue not being contained in the pleadings.43
Other than evidence-related issues, the ECtHR has found a breach of
the equality of arms principle where: an action was brought by one party,
without this being communicated to the other;44 of several key witnesses
put forward by the parties only one was heard;45 one party enjoyed a
36
Clinique des Acacias and Others v. France, App. No. 65399/01, ECtHR judgment (13
October 2005), para. 37.
37
Pellegrini v. Italy (2002) 35 EHRR 2, para. 45; KS v. Finland, App. No. 29346/95, ECtHR
judgment (31 May 2001), para. 22; Nideröst-Huber v. Switzerland (1998) 25 EHRR 709,
para. 29;
38
Yvon v. France (2005) 40 EHRR 4, para. 38.
39
Užukauskas v. Lithuania, App. No. 16965/04, ECtHR judgment (6 July 2010), para. 51;
Pocius v. Lithuania, App. No. 35601/04, ECtHR judgment (6 July 2010), paras 52–53.
40
Mantovanelli v. France (1997) 24 EHRR 370, para. 34.
41
Moreira de Azevedo v. Portugal (1991) 13 EHRR 721, paras 83–84; García Ruiz v. Spain
[GC], (1999) 31 EHRR 589, para. 28.
42
Centro Europa 7 Srl and Di Stefano v. Italy (2012) ECHR 974, para. 19.
43
CLOUT Case 1663, PT Prima Intl Development v. Kempinski Hotels SA [2012] SGCA 35.
44
Beer v. Austria, App. No. 30429/96, ECtHR judgment (6 February 2001), para. 19.
45
Dombo Beheer BV v. Netherlands (n. 1), paras 34–35. This may be remedied by providing
a reasoned explanation, showing that the refusal was not arbitrary. See Wierzbicki v.
Poland (2004) 38 EHRR 38, para. 45.

532 a rt i cl e 1 8 : eq ua l tr eat m ent of parties
significant advantage with regard to particular information, which placed

its opponent at an acute disadvantage;46 although the ECtHR has held
that the absence of legal aid in some cases involving significant financial
disparity between the parties may be detrimental to the weaker party in
presenting its case,47 it is generally accepted that in arbitral proceedings
no right to legal aid exists; the judge/arbitrator refused to adjourn a case
even though one of the parties was taken to emergency care and its lawyer
was unable to represent him at the hearing, thus causing irreparable
harm.48
Although we have already explained that procedural fairness encom-
passed under the right to fair trial does not impact on substantive issues,
namely the court’s or tribunal’s dispositive function (e.g. errors of fact or
law), the ECtHR has identified some narrow instances where the tribu-
nal’s dispositive function may come under scrutiny, particularly where
the tribunal’s errors are manifest and infringed rights and freedoms
protected by the Convention.49 Just like national practice, where it is
exceptionally rare for the courts of the seat to set aside awards because of
errors of law or substance, equally the ECtHR has done so sparingly in
exceptional cases of manifest error of judgment, which culminated in the
judgment being regarded as arbitrary or manifestly unreasonable.50 The
ECtHR reached the same conclusion where the judgment constituted a
denial of justice,51 or where the court’s reasoning was regarded as being
‘grossly arbitrary’52 or a ‘denial of justice’.
The ECtHR has emphasised that the courts need not follow precedent,
since this hinders the evolutive and dynamic development of the law53
and restricts the kompetenz-kompetenz power of courts and tribunals.
Exceptionally, divergences in case law (and the litigants’ legitimate
expectations) may constitute a violation of article 6(1) of the ECHR
46
Yvon v. France (n. 38), para. 37.
47
Steel and Morris v. UK (2005) 41 EHRR 22, para. 72. See also Wall Street Institute (n. 15).
48
Vardanyan and Nanushyan v. Armenia, App. No. 8001/07, ECtHR judgment (27 October
2016), paras 88–90.
49
García Ruiz v. Spain (n. 41), para. 28; Perez v. France (2005) 40 EHRR 39, para. 82.
50
Dulaurans v. France (2001) 55 EHRR 45, para. 38; Khamidov v. Russia [2007] ECHR 928,
para. 170.
51
Anđelković v. Serbia, App. No. 1401/08, ECtHR judgment (9 April 2013), para. 24.
52
Bochan v. Ukraine (No. 2), App. No. 22251/08, ECtHR (5 February 2015), paras 63–65;
Barać and Others v. Montenegro [2011] ECHR 2101, paras 32–34.
53
Şahin and Şahin v. Turkey [GC], App. No. 13279/05, ECtHR judgment (20 October 2011),
para. 58; Lupeni Greek Catholic Parish and Others v. Romania [GC], [2016] ECHR 1061,
para. 116.

3. e qual it y 533
where the divergences are ‘profound and long-standing’ and the State in
question possesses sufficient judicial mechanisms to resolve such diver-
gences, but these have not been followed to the detriment of the com-
plainant.54 Clearly, such an exception cannot find application in the field
of international commercial arbitration, given the absence of any sort of
precedent, particularly since the parties dictate the applicable law.55 Even
if the tribunal were to disregard established law, hence effectively erring
in its application of the law, the award would still be valid, unless of
course this was the product of bias against one of the parties.
The courts of the seat have approached article 18 violations through
several lenses. While the rights enshrined in article 18 of the Model Law
are articulated as human rights in human rights treaties, they are equally
prescribed as ‘freedoms’, ‘civil liberties’, ‘natural justice guarantees’ or
‘due process guarantees’ in constitutional or other domestic law. Other
designations may well apply, but they all refer to an individual right in
judicial or arbitral proceedings. In AMZ v. AXX,56 the Singapore High
Court was seised of a set-aside request that concerned, among others, a
violation of article 18 of the Model Law. The plaintiff had argued during
the arbitral proceedings the existence of three serious breaches of con-
tract, but the tribunal only found one, hence rejecting the existence of a
fundamental breach. The plaintiff applied to set aside the award, inter
alia, because the tribunal had breached rules of natural justice under
articles 34(2)(a)(ii) and 18 of the Model Law because he was unable to
present his case and/or the arbitrator was biased against the plaintiff, and
this breach caused actual prejudice. The court held that there are two
rules of natural justice. The first requires that the tribunal be impartial in
appearance and in reality. The second rule of natural justice is audi
alteram partem, and the court outlined several aspects of this rule.
First, tribunals must give parties a chance to be heard on all issues.
Second, tribunals cannot disregard a submission without directing their
judicial mind to it. Third, tribunals do not need to refer every issue that
falls for decision to the parties for submissions. Fourth, a tribunal’s
decision will only be unfair when a reasonable litigant in the position
of the party challenging the award could not have foreseen the possibility
of the tribunal’s actual reasoning in the award. Finally, tribunals can
legitimately arrive at a decision that falls between the parties’ submissions
54
Beian v. Romania (No. 1), App. No. 30658/05, ECtHR judgment (6 December 2007), paras
37, 39; Lupeni Greek Catholic Parish and Others v. Romania (n. 53), paras 116–135.
55
But, see exceptionally, s. 69 of the English AA, which allows appeals on points of law.
56
CLOUT Case 1660, AMZ v. AXX [2015] SGHC 283.

534 a r tic l e 1 8 : e q u a l tr ea tm e n t o f p a r ti e s
provided its finding is supported by evidence and is not a dramatic

departure from the parties’ positions. Applying these principles, the
court held that there had not been a breach of the audi alteram partem
rule as the tribunal had applied its mind to the plaintiff’s arguments. It
found that the tribunal had actually considered some of the plaintiff’s
arguments when it was not necessary for it to do so to come to its
decision. The court also pointed out that it was not the tribunal’s duty
to advise plaintiffs on how to best frame their own arguments. Therefore,
the court rejected the plaintiff’s first submission in its entirety.
4. Full Opportunity to Present One’s Case

4.1 The General Rule
The parties must be able to present their case effectively.57 Fair trial case
law clearly suggests that the parties to civil proceedings have the right to
present the observations they regard as relevant to their case. Although
there is some latitude in arbitral proceedings as to the inherent power of
the tribunal to curtail what it considers irrelevant or frivolous, this right
can only be seen to be effective if the observations of the parties are
actually ‘heard’.58 But just like the authority of arbitral tribunals on this
matter, the ECtHR has construed the right to effectively be heard as
encompassing a duty to conduct the proceedings by means of a proper
examination of the parties’ submissions, including arguments, claims
and counterclaims.59
In most cases where a violation of the right to present one’s case is
alleged, claimants generally argue that insufficient weight was given to
their evidence or that the tribunal prevented them from making leng-
thier submissions on a point they perceived as central to their case. In a
New Zealand case concerning an award for the value of land, the
plaintiff sought to set aside the award for breach of natural justice,
alleging lack of opportunity to be heard as to the approach used by the
arbitrators to assess the value of the land. The New Zealand High Court
relied on article 18 of the Model Law and article 18 of the country’s
Arbitration Act. In order to substantiate ‘surprise’ as a procedural
57
H v. Belgium (1987) 10 EHRR 339, para. 53.
58
Donadze v. Georgia, App. No. 74644/01, ECtHR judgment (7 March 2006), para. 35.
59
Kraska v. Switzerland, App. No. 13942/88, ECtHR judgment (19 April 1993), para. 30;
Van de Hurk v. Netherlands (1994) 18 EHRR 481, para. 59; Perez v. France (GC) (n. 49),
para. 80.

4 . f u l l o p p o r t u n i t y to p r e s e n t o n e’s c ase 535
irregularity giving rise to a breach of natural justice, the plaintiff was

required to show that: (1) a reasonable litigant in the plaintiff’s position
would not have foreseen a reasoning on the part of the arbitral tribunal
of the type laid down in the award; and (2) with adequate notice it might
have been possible to convince the arbitral tribunal to reach a different
result. The court observed that, once a party could show ‘significant
surprise’, it is reasonable to assume that, lacking any evidence to the
contrary, some procedural prejudice had actually occurred.60
The element of surprise may not only come from one’s adversary, but
also by the tribunal. In a case where the tribunal unilaterally fixed a
hearing date and refused requests for adjournment of the hearing, it was
found not to have afforded the party a reasonable opportunity to present
its case.61 The same was true in a Swiss case where the tribunal based its
award on a legislative provision that was ‘manifestly non-applicable’ to
the circumstances of the arbitration and could not therefore have been
anticipated by the parties.62
Equally, in CLOUT Case 457, the Hanseatisches Oberlandesgericht
observed that the right to present one’s case only requires that a tribunal
take into account arguments brought forward by the parties, but does not
limit the right of the tribunal to evaluate the evidence presented. The
tribunal is not forced to consider arguments that were immaterial to the
reasoning behind the award issued by the tribunal.
4.2 Oral Hearings

Just like written pleadings, institutional rules do not contain detailed
regulation of oral hearings. In fact, the parties may just as well dispense
with oral hearings if they are content that a documents-only process
suffices to present their evidence. This possibility (but not its fair trial
dimension) is also contained in article 24(1) of the Model Law, which
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.
60
CLOUT Case 658, Trustees of Rotoaria Forest Trust v. Attorney-General [1999] 2
NZLR 452.
61
Coromandel Land Trust Ltd v. Milkt Investment Ltd, High Court, Hamilton, NZ (28 May
2009).
62
Case 4A_400/2008, ASA (2009) 3 ASA Bull. 495.

536 a r tic l e 1 8 : e q u a l tr ea tm e n t o f p a r ti e s
The Swiss Federal Supreme Court in Re. TA G v. H Co. held that the
right of the parties to be heard does not include a right to be heard orally,
so long as this rule is consistently applied and is not fundamentally
opposed to the wishes of the parties.63 The same court has held, however,
that the right to be heard includes a minimum duty to examine all issues
material to the outcome of the case, as counterbalanced with the freedom
of the tribunal to afford the weight it chooses to the available evidence.64
This necessarily means that the tribunal is under no obligation to address
all arguments raised by the parties, particularly if an argument is objec-
tively irrelevant.65
The parties’ demand for flexibility, cost-efficiency and speed entails
that the hearing process should not conform to the hearing rules of either
civil law or common law jurisdictions. In practice, the duration of oral
proceedings is short and arbitrators have a duty to ensure that the parties’
counsel do not unnecessarily prolong the process, whether by examining
immaterial or already discussed evidence, or simply by taking their time
with witnesses.66 Irrespective of the manner in which the tribunal
chooses to implement this duty, it must not discriminate between the
parties. If the tribunal is able to dispense only a limited number of days to
the oral proceedings, it will naturally devise a case management strategy
to ensure effective and timely completion. It will, in all likelihood, con-
vene a pre-hearing conference with the parties for this purpose where,
after hearing their views, it will make an order as to the sequence of
actions and the procedures to be followed. Some of the issues will have
already been submitted to the tribunal through the parties’ memorials
and this may be true of witness and expert statements (under oath), in
which case the tribunal may decide that there is no compelling reason
why they should be presented again. Exceptionally, where the parties
question the truth or integrity of these statements or the people who
made them, the tribunal shall permit a degree of cross-examination, but
63
Re. TA G v. H Co. (1997) ASA Bull. 316; equally, in CLOUT Case 659, the
Oberlandesgericht Naumburg held that the refusal of a tribunal to hold an oral hearing
does not violate the right to be heard. It further held that the principle of oral hearing
contained in art. 128 of the ZPO did not apply in arbitral proceedings to the same extent
as in court proceedings. Thus, in arbitral proceedings, the right of the parties to be heard
is respected if the parties have at least the possibility to file a statement of defence. In the
case at hand, the tribunal’s determination to conduct a documents-only process was
known to the claimant, who failed to object.
64
Case 4A_669/2012, Swiss Federal Supreme Court judgment (17 April 2012).
65
Case 4A_564/2013, Swiss Federal Supreme Court judgment (14 May 2014).
66
IBA Rules, art. 8(2).

4 . f ul l o p p o r t un i t y to pr es en t one’s c ase 537
will set the boundaries concerning the conduct of counsel in this respect.
Equally, in its case management function, the tribunal will probably also
demand pre-hearing briefs by the parties with a view to summarising and
exposing the oral evidence which the parties seek to rely upon. The
sequence of presentations and the responses or objections by one party
against the claims of the other usually follow the procedures adopted in
adversarial civil litigation proceedings. Article 8(3) of the International
Bar Association (IBA) Rules on the Taking of Evidence provides a
sequence that satisfies fair trial rules.
Given that arbitral proceedings are legal proceedings in the sense that
they culminate in a binding award, the witnesses are under a duty to tell
the truth.67 In most jurisdictions, there is no legal impediment against
sworn testimonies in arbitral proceedings, in which case an untruthful
witness may be sanctioned under the civil and criminal laws of the seat.
Moreover, since it is the tribunal that ultimately needs to be convinced of
the claims and counterclaims, it may request any person to give oral
evidence if material to the outcome of the dispute. In this case, however,
both parties may also question the witness called by the tribunal.68
Apart from fair trial concerns, the lex arbitri in industrialised nations is
generally rather relaxed regarding the permissibility of procedural rules
dictated by the parties. Sometimes, however, the line is unclear. It is
accepted, for example, that, whether explicitly or implicitly, applications
by the parties for expedited or fast-track arbitral procedures are consis-
tent with the right to fair trial. In contrast, where a tribunal proceeds on
the basis of a summary judgment, in which case it chooses not to hear the
parties or assess their evidence by weeding out what it perceives as
superfluous (even as per the parties’ agreement), it fails to discharge its
duty of due process.69
On yet other occasions, arbitral tribunals will endeavour to avoid the
conflation of claims and refuse to hear pertinent evidence put forward by
the parties. The insolvency of one of the parties to arbitration does not
imply the discontinuance of arbitral proceedings under French law. In
the Pirelli case, the French Court of Cassation confirmed the right for the
insolvent party to rely on arbitration.70 Generally, the French courts have
67
68
69
T. T. Landau, ‘Claims for Further Particulars or for Summary Dismissal: Are They an
Acceptable Practice?’ in S. R. Bond, G.-A. Dal, J. Decoker et al., Arbitral Procedure in the
Dawn of the New Millennium (Bruylant, 2005), pp. 47–55.
70
Société Pirelli & C SpA v. Société Licensing Projects and Others, judgment (28 March 2013).

538 a r t i cl e 1 8 : eq ua l tr eat ment of parties
taken the view that the refusal to hear the insolvent party’s counterclaims
by an arbitral tribunal amounts to a violation of the right to access to
justice and equality of the parties, unless the counterclaims can be dis-
sociated from the requests for relief. The Court of Cassation in the Pirelli
case confirmed that the right of access to arbitration is consistent with the
same principles found in article 6 of the ECHR which concern the right of
access to justice and judicial remedies. However, in the Pirelli case, the
Court of Cassation added that in order to rely on this principle in
arbitration proceedings, the counterclaims must be inseparably inter-
linked with the request for relief.

Article 19
Determination of Rules of Procedure

ma nuel a. góm e z a n d i kr a m u l l a h
(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 tri-
bunal includes the power to determine the admissibility, relevance,
materiality and weight of any evidence.

One of the first priorities of the Commission when it decided to draft
a Model Law was to include an express provision that recognised the
parties’ freedom to choose their own rules of procedure. As the
purpose of a Model Law was to contribute to the harmonisation of
international arbitration, it was crucial that it met ‘the concerns
which have repeatedly been expressed … in international commercial
arbitration’.1 One of those concerns was precisely the existence of
provisions that ‘unduly restrict the freedom of the parties to …
conduct the proceedings as deemed appropriate taking into account
the parties’ wishes’.2
A call for action in this regard came from a recommendation by the
Asian-African Legal Consultative Committee (AALCC) regarding the
‘possibility of preparing a protocol to be annexed to the 1958 New
York Convention … that would clarify a number of issues considered
1
Commercial Arbitration, UN Doc. A/CN.9/207 (4 May 1981), 77, para. 9.
2
Ibid.
539

540 a r t i c l e 1 9 : d e t e r m i n a t i o n of ru l e s o f p r o c e d u r e
to be of special importance in the Asian-African region’.3 It is not a

coincidence that the first issue identified by the AALCC was the respect
for the parties’ freedom to choose the arbitration rules for settling their
disputes. The Secretary-General recognised that ensuring party auton-
omy regarding the choice of an adequate procedure was not only impor-
tant to the Asian-African region, but anywhere in the world. As a result, it
was agreed that a protocol to the New York Convention might ‘not be the
most adequate way of dealing with these issues and that, instead, the
possibility should be considered of preparing a new international con-
vention or a uniform law on arbitration’.4 Thus, the idea of a model law
came to life.
The Secretary-General drafted a report explaining the purpose of a
potential model law and the underlying principles based on the pre-
viously mentioned concerns about international arbitration. The
report declared the freedom of the parties as ‘probably the most
important principle on which the model law should be based’,5 and
one whose function is ‘to facilitate the proper functioning of interna-
tional arbitration’.6 The span of this principle covered both the free-
dom that the parties have to submit their disputes to arbitration and
also their freedom ‘to tailor the “rules of the game” to their specific
needs’.7 Interestingly, when describing how the Model Law could deal
with the determination of procedure, the Secretary-General’s report
outlined it as a power to be exercised by the arbitral tribunal, but that
is ‘should also follow any procedural instructions which the parties
may have given specifically or by reference to a set of arbitration
rules’.8 A related power that should be granted to the arbitral tribunal
was ‘to adopt and follow its own rules of evidence, including the right
to determine the admissibility, relevance and weight of any evidence
offered’.9
A note by the Secretariat based on a working paper of the Working
Group on International Contract Practices contained a list of ques-
tions that covered the issues identified in the Secretary-General’s
3
Comments by the Secretariat on the Decision by the Asian-African Legal Consultative
Committee on International Commercial Arbitration Taken at Its Seventeenth Session,
UN Doc. A/CN.9/127/Add.1 (21 April 1977), para. 1.
4
Ibid., 5, para. 15.
5
See (n. 1), 78, para. 17.
6
Ibid.
7
Ibid.
8
9
Ibid., para. 75.

report.10 The specific queries dealing with the issues that formed the
basis of future draft article 19 of the Model Law were questions 4–3
and 4–5. Question 4–3 asked whether the Model Law ‘should …
expressly empower the arbitral tribunal to conduct the proceedings
as it deems appropriate and, if so, what restrictions should be laid
down’.11 Question 4–5 enquired whether ‘the arbitral tribunal
[should] be empowered to adopt its own rules on evidence, subject
to contrary stipulation by the parties’. Members of the Working
Group had a preliminary exchange of views based on the aforemen-
tioned questions and the basis for what became article 19 was laid
down. During the discussions, it was suggested that a provision
empowering the arbitral tribunal ‘to conduct the arbitration as it
considered appropriate, subject to the instructions of the parties’,12
could be modelled after article 15(1) of the UNCITRAL Arbitration
Rules.
Regarding the question of evidentiary powers, which the Working
Group considered to be ‘an inherent and important part of the conduct
of proceedings’,13 the general view was ‘that the model law should
empower the arbitral tribunal to adopt its own rules on evidence subject
to contrary stipulation by the parties’.14 Cognisant of the disparity among
legal systems, the Working Group agreed that the power of the arbitral
tribunal regarding evidence should be broad and ‘that the model law
should not contain any supplementary rule which would restrict the
arbitral tribunal’s power to adopt its own rules of evidence’.15 As a result,
a proposal was made to adopt an approach similar to article 25(6) of the
UNCITRAL Arbitration Rules, which stated that ‘[t]he arbitral tribunal
shall determine the admissibility, relevance, materiality and weight of the
evidence offered’.16
The tentative draft articles prepared for the subsequent Working
Group deliberations included an article numbered as ‘19’ that: (1)
10
See generally Note by the Secretariat, Working Paper Submitted to the Working Group
on International Contract Practices at Its Third Session, UN Doc. A/CN.9/WG.II/WP.35
(1 December 1981).
11
Ibid., 307.
12
Third Session (New York, 16–26 February 1982), UN Doc. A/CN.9/216 (23 March 1982),
14, para. 56.
13
14
Ibid.
15
Ibid., para. 60.
16
1976 UNCITRAL Arbitration Rules, art. 25(6).

542 article 1 9: determination of r ules of procedure
empowered the arbitral tribunal to ‘conduct the arbitration in such

manner as it considers appropriate’;17 (2) subjected the arbitral tribunal’s
choice ‘to the provisions of articles 20 to 24 and any instructions given by
the parties in the arbitration agreement’;18 (3) provided that the parties
should be ‘treated with equality and that at any stage of the proceedings
each party is given a full opportunity of presenting its case’;19 and (4)
affirmed that ‘the power conferred upon the arbitral tribunal under
paragraph (1) includes the power to adopt its own rules on evidence
and to determine the admissibility, relevance, materiality and weight of
the evidence offered’.20
A subsequent revision of the text of the proposed Model Law changed
the focus of draft article 19. Instead of presenting the choice of procedure
as an expression of the power of the arbitral tribunal, it presented it as a
manifestation of the parties’ freedom.21 This resulted in an article entitled
XV.22
During the next Working Group session, a proposal was made to
relocate the sentence regarding the equal treatment of the parties and
the opportunity to present their case, at the end of paragraph 1.23 The
purpose of this proposal was ‘to emphasize the importance of the prin-
ciples of equality and the right to be heard, which should be observed not
only by the arbitral tribunal but also by the parties when laying down any
rules of procedure’.24 Another suggestion was to move this sentence to
paragraph 2.25 Paragraph 2 was the provision that conferred power to the
17
Draft art. 19(1) in Note by the Secretariat: Model Law on International Commercial
Arbitration: Draft Articles 1 to 24 on Scope of Application, Arbitration Agreement,
Arbitrators, and Arbitral Procedure, Working Papers Submitted to the Working Group
on International Contract Practices at Its Fourth Session, UN Doc. A/CN.9/WG.II/
WP.37 (15 July 1982).
18
Draft art. 19(1)(a).
19
Draft art. 19(1)b).
20
Draft art. 19(2).
21
Draft Articles I to XXVI, Working Papers Submitted to the Working Group in
International Contract Practices at Its Fifth Session, UN Doc. A/CN.9/WG.II/WP.40
(14 December 1982), reprinted in (1983) XIV UNCITRAL YB 79, para. 4.
22
Ibid., 82.
23
Seventh Session, UN Doc. A/CN.9/246 (6 March 1984), 15, para. 61.
24
Ibid., para. 62.
25
the Secretariat, UN Doc. A/CN.9/WG.II/WP.48 (1984), reprinted in (1984) XV

arbitral tribunal to conduct the process in the manner it considered most

appropriate, absent an agreement between the parties.26
Notwithstanding the previous proposals, the Working Group decided
to relocate the sentence regarding the principle of equality and the right
of the party to present its case to a separate provision that would form
paragraph 3.27 This way, there should be no doubt about the principle
being upheld regardless of who – parties or tribunal – had chosen the
procedure. The proposed text stated: ‘[i]n either case, the parties shall be
treated with equality and each party shall be given a full opportunity of
presenting his case’.28 Two final suggestions on draft article 19 con-
cerned: (1) replacing the sentence ‘Subject to the provisions of article
XVII’29 with the following text: ‘subject to the [mandatory] provisions of
this Law’;30 and (2) adding the title ‘Determination of rules of procedure’
after the article number.31
Once a composite draft text of the Model Law was prepared, the
Commission – through the Secretary-General – sought comments from
all interested governments and international organisations.32 More than
twenty States and five international organisations submitted both general
and specific comments about different articles of the Model Law, but only
eight States and one international organisation commented specifically
on article 19.33 The only State that opined about article 19 as a whole was
Sweden, which simply proposed that ‘in this article or at some other
suitable place’34 the Model Law should induce ‘the arbitral tribunal to the
prompt conduct of the arbitration’.35
A second group of comments – from the United States and Italy –
addressed the issue of when the parties should agree on the rules of
procedure, despite an earlier indication by the Working Group that ‘the
freedom of the parties to agree on the procedure should be a continuing
26
See ibid.
27
Draft text (n. 25), Annex.
28
Ibid.
29
Ibid.
30
Ibid., para. 60.
31
Ibid.
32
Report of UNCITRAL on the Work of Its Seventeenth Session, UN Doc. A/39/17 (21
August 1984), 23, para. 101.
33
See generally Analytical Compilation of Comments by Governments and International
Arbitration, Report to the Secretary-General, UN Doc. A/CN.9/263 (19 March 1985).
34
Ibid., 32.
35
Ibid.

544 article 19: determination of r ules of procedure
one throughout the arbitral proceedings’.36 Italy proposed that ‘it would
be appropriate to permit the parties to determine the rules of procedure
after the arbitrators have accepted their duties, to the extent the arbitra-
tors agree’.37 The United States, on the other hand, suggested including
in paragraph 1 a statement ‘that the parties may agree on procedure
during as well as before the arbitral proceedings’,38 as a clear answer to
the question about the time within which the parties can agree on the
procedure.
Four states – Italy, Mexico, Poland and Yugoslavia – made specific
suggestions on paragraph 2. Poland stressed the importance of the
arbitral tribunal keeping ‘a proper balance between the interests of the
parties’,39 taking ‘into account the factors which facilitate the proceedings
and enabl[ing] mutual understanding’.40 Mexico suggested adding to
paragraph 2 that the arbitral tribunal should exercise its power ‘in a
prudent and reasonable way’41 and to always give reasons for its deci-
sions. Italy underscored that both under its own laws and the laws of
many other legal systems, ‘the questions pertaining to the admissibility
and relevance of evidence are considered … to be questions of substan-
tive law, and that, as a result, these questions are governed by the rules
applicable to the substance of the dispute determined in accordance with
article 28’.42 Finally, Yugoslavia criticised the scope of paragraph 2,
considering it insufficient, and opined that ‘the arbitral tribunal should
be obliged to respect a wider scope of minimum-standard procedural
rules’43 beyond simply stating that ‘the parties are to be treated with
equality’.44
Regarding paragraph 3, Norway suggested that when referring to the
opportunity to present its case by the parties, the word ‘full’ should be
replaced ‘by another word, for example, “adequate”’,45 so as to be con-
sistent with articles 34(2)(a)(iv) and 36(1)(a)(iv). A suggestion by the
36
UN Doc. A/CN.9/246 (n. 23), para. 63. See also Composite Draft Text of a Model Law on
International Commercial Arbitration: Note by the Secretariat, UN Doc. A/CN.9/WG.II/
WP.45 (1984).
37
UN Doc. A/CN.9/263 (n. 33), 32.
38
Ibid.
39
Ibid.
40
Ibid.
41
Ibid.
42
Ibid.
43
ibid., Add. 1 (15 April 1985), 13.
44
Ibid.
45
Ibid., 33.

International Bar Association also criticised the use of the word ‘full’ for
considering it imprecise and rarely used in this sense. However, instead
of replacing it, the suggestion was to insert ‘after the word “full” in
paragraph (3), the words “and proper”’.46 Finally, Sudan suggested add-
ing the sentence ‘on his own or through a counsel or agent’47 at the end of
paragraph 3.
In preparation for the Commission’s eighteenth session and in order to
assist in reviewing and finalising the text of the Model Law, the
Secretariat prepared a commentary of the draft text. The commentary
contained a ‘summary of why a certain provision has been adopted and
what it is intended to cover’.48 It also had useful ‘explanations and
interpretations of particular words’49 and noted ‘possible ambiguities
and inconsistencies’.50 The commentary referred to article 19 as ‘the
most important provision of the model law’. The recognition of the
parties’ freedom to agree on a procedure, and – failing such agreement
– the conferral of a similar power to the tribunal were seen as important
manifestations of one of the tenets of international arbitration. Such high
level of procedural autonomy given to the parties was meant ‘to suit the
great variety of needs and circumstances of international cases, unim-
peded by local peculiarities and traditional standards which may be
found in the existing domestic law of the place [i.e. seat of arbitration]’.51
Regarding paragraph 1, the commentary underscored that the freedom of
the parties to agree on a procedure allowed them to: (1) prepare ‘their
own individual set of rules’;52 (2) refer ‘to standard rules for institutional
(supervised or administered) arbitration or for pure ad hoc arbitration’;53
or (3) ‘opt for a procedure which is anchored in a particular legal
system’.54 On the other hand, the only limitations affecting the parties’
freedom were the mandatory provisions of the Model Law.
Regarding the procedural discretion of the arbitral tribunal outlined in
paragraph 2, it could only be exercised if ‘the parties have not agreed,
46
Ibid.
47
Ibid., 13.
48
Arbitration, Report of the Secretary-General, UN Doc. A/CN.9/264 (25 March 1985), 4,
para. 5.
49
Ibid.
50
Ibid., para. 6.
51
Ibid., 44.
52
Ibid.
53
Ibid.
54
Ibid., 45.

546 a r t i c l e 19 : d e t e r m i n a t i o n of ru l e s o f p r o c e d u r e
before or during the arbitral proceedings, on the procedure (i.e. at least not
on the particular matter at issue)’.55 Similarly to the case of paragraph 1,
the power of the arbitral tribunal was subject to limitations included in the
provisions of the Model Law ‘which often set forth special features of the
discretionary powers (e.g. articles 23(2), 24(1), (2), 25) and sometimes limit
the discretion to ensure fairness (e.g. articles 19(3), 24(3), (4), 26(2))’.56 The
tribunal’s power extended ‘to determine the admissibility, relevance, mate-
riality and weight of any evidence’.57 The provision should also cover the
power of the arbitral tribunal ‘to adopt its own rules of evidence, although
that is no longer expressed in the text’.58 The procedural discretion allowed
to the arbitral tribunal permitted the arbitrators, in practical terms, to ‘be
able to adopt the procedural features familiar, or at least acceptable, to the
parties (and to them)’59 and to assume ‘suitable features from different
legal systems and relying on techniques proven in international practice,
and, for instance, let parties present their case as they themselves judge
best’.60
Finally, the commentary addressed the proposed paragraph 3, which
adopted ‘basic notions of fairness in requiring that the parties be treated
with equality and each party be given a full opportunity of presenting his
case’.61 At a subsequent discussion, the Commission ‘agreed that the provi-
sion contained in paragraph (3) constituted a fundamental principle which
was applicable to the entire arbitral proceedings and that, therefore, the
provision should form a separate article 18 bis to be placed at the beginning
of Chapter V of the model law’.62 This change was approved and endorsed
by the participants. As a result, the text of former paragraph 3 was elevated to
the category of a stand-alone provision (article 18) regulating the principle of
fairness and the opportunity given to each party to present its case. The rest
of article 19 (i.e. paragraphs 1 and 2) remained intact and maintained the
provision’s focus on the freedom of the parties to agree on a procedure, and
also on the power of the arbitral tribunal to conduct the arbitration in an
adequate manner when the parties failed to agree.63
55
Ibid.
56
Ibid.
57
Ibid.
58
Ibid.
59
Ibid., 46.
60
Ibid.
61
Ibid.
62
Report of the UNCITRAL on the Work of Its Eighteenth Session, UN Doc. A/40/17 (21
August 1985), 34, para. 176.
63
Ibid., 65, para. 331.

2. Paragraph 1
2.1 Arbitration Procedure: Party Autonomy
Paragraph 1 empowers parties to conduct arbitral proceedings through a
procedure of their own choice.64 After the parties have agreed on arbitra-
tion, the arbitration procedure must comply with their chosen rules of
procedure.65 This basic concept is now widely accepted in many legal
systems around the world, irrespective of whether or not the national
arbitration statute is based on the Model Law. For instance, the US
Supreme Court has held that the Federal Arbitration Act (FAA) requires
an arbitration to ‘proceed in a manner provided for in [the parties’]
agreement’. In their agreement, hence, the parties can choose a proce-
dural regime and institutional rules for the conduct of arbitration
proceedings.
2.2 Parties’ Choice of Procedural Regime

While agreeing on the arbitration procedure, parties are not obliged to
incorporate specific rules of arbitration: arbitration clauses must be
enforced, irrespective of whether the parties selected a particular set of
procedural rules.66 When making their choice, the parties are also free to
adopt the civil procedure rules of a certain State;67 this has been con-
firmed in US courts’ judgments holding that the parties can structure
their arbitration procedure as they thought fit, including the incorpora-
tion of California law68 or any other set of civil procedure rules.69
However, by selecting the same civil procedure rules that would be
applied in State court litigation, the parties risk losing one of the key
advantages of arbitration, i.e. the possibility to use tailored procedures
64
Jardine Lloyd Thompson Canada Inc. v. Western Oil Sands Inc. (2006) ABCA 18. See also
UHC Management Co. Inc. v. Computer Sciences Corp., 148 F.3d 992 (9th Cir. 1998);
Baravati v. Josephthal, Lyon & Ross, Inc., 28 F.3d 704 (7th Cir. 1994); Team Scandia, Inc. v.
Greco, 6 F. Supp. 2d 795 (SD Ind. 1998).
65
LaPine Technology Corp. v. Kyocera Corp., 130 F.3d 884 (9th Cir. 1997); Ottley v.
Schwartzberg, 819 F.2d 373, 376 (2nd Cir. 1987).
66
This approach is consistent with art. II of the New York Convention. For an application of
this principle in the United States, see Volt information Sciences, Inc. v. Board of Trustees
of Leland Stanford Junior University, 489 US 468 (1989). See also Security Insurance Co. of
Hartford v. TIG Insurance Co., 360 F.3d 322 (2nd Cir. 2004).
67
Jardine Lloyd Thompson (n. 64).
68
Volt information Sciences (n. 66).
69
Coopers & Lybrand v. Superior Court (1989) 212 Cal. App. 3d 524.

that would not be available in court. For this reason, it is in practice more
frequent for the parties to choose a set of institutional arbitration rules, as
the next section will illustrate.
2.3 Parties’ Choice of Institutional Rules

The freedom of the parties to agree on a procedure to be followed during the
arbitration permits them to adopt institutional rules, create variations of
those rules or any other kind of procedure to resolve the dispute that better
fits their interests because they are ‘as free to specify idiosyncratic terms of
arbitration as they are to specify any other terms in their contract’.70 While
acknowledging such power, Australian courts have referred to article 2(a) of
the Arbitration Act by saying that ‘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’. In light of article 2(a), it has been held that the
parties’ agreement to conduct arbitration under the Institute of Arbitrators
and Mediators of Australia (IAMA) Arbitration Rules had incorporated
these rules properly in their agreement.71 This is consistent with article 2
(e) of the Model Law, according to which the agreement of the parties
includes ‘any arbitration rules referred to in that agreement’.
Autonomy to adopt some procedural legal regime or institutional
rules also encompasses the parties’ power to tailor these to their needs;72
apart from the Model Law, such freedom has been acknowledged by
many other national arbitration statutes, such as the FAA in the United
States.73
Many sets of arbitration rules stipulate that the rules effective at the
time of submission of a request for arbitration govern the arbitration
procedure. An interesting question, therefore, arises in cases where the
parties wish to arbitrate according to an older version of the rules which
was in force at the time when the agreement to arbitrate was entered into,
but has since been amended. In one case, although the request for
arbitration was submitted after the entry into force of the new rules,
because both parties were willing to conduct their arbitration under the
old rules, a Russian court allowed their request by saying that, under
article 19, they were free to choose any procedure for arbitration.74 It is
70
Baravati (n. 64); Perini Corp. v. Great Bay Hotel & Casino, Inc., 129 NJ 479 (1992).
71
Hebei Jikai Industrial Group Co. Ltd v. Vincent Martin and Others [2015] FCA 228.
72
73
Hall Street Associates, LLC v. Mattel, Inc., 128 S. Ct 1396 (2008).
74
CLOUT Case 1449.

reasonable, however, to assume that the arbitral institution may theore-

tically refuse to administer the arbitration under the old rules, if factual
circumstances that occurred after the conclusion of the agreement to
arbitrate but before the filing of the request for arbitration with the
institution would make the conduct of the arbitration under the old
rules impossible or excessively onerous.
2.4 Prohibition of Unilaterality in Choosing and Amending

Arbitral Procedure
While enforcing the provisions of an arbitration agreement concerning
the arbitral procedure, national courts often assess if the procedure was
agreed between the parties with mutuality and impartiality without
making one of them the sole decision-maker of the arbitration proce-
dure.75 The corollary of this principle is that the modification and
amendment of procedural rules already agreed by the parties cannot be
made by a party unilaterally. For instance, where an arbitrator declined
the request of a party to conduct oral proceedings and informed said
party that proceedings would be based on documents, a German court
has stated, inter alia, that ‘the peculiar manner in which the right of
defence is exercised (i.e. in an oral hearing instead of written submis-
sions) cannot be unilaterally decided by a party’.76 In another case, a
Russian court held that the tribunal’s refusal to allow a unilateral attempt
to amend the record of the arbitration procedure did not constitute a
violation of arbitral procedure because the rules of the International
Commercial Arbitration Court stipulated that a party can make amend-
ment and additions to the record with the consent of the arbitrator and
only if the arbitrator considers it justified. In this case, the arbitrator did
not allow the requesting party to amend the record, which meant that it
was deemed unjustified; the arbitrator thus acted in accordance with the
agreed procedure.77
2.5 Arbitral Procedure: Arbitrator’s Discretion

An arbitrator’s power with regard to the determination of arbitral pro-
cedure is one of the fundamental tenets of international arbitral
75
Cheng-Canindin v. Renaissance Hotel Assocs (1996) 50 CA 4th 676.
76
CLOUT Case 659, Germany, Oberlandesgericht Naumburg, 21 February 2002, 10 Sch.
8/01.
77
CLOUT Case 1353.

procedure.78 The parties do not frequently agree on every detail of

arbitral procedure and, even if the clause often refers to a set of arbitra-
tion rules, the latter normally afford the tribunal a significant margin of
discretion in the organisation of the proceedings. Where there is no
agreement from the parties on the arbitration procedure, the arbitrator
can conduct ‘the arbitration in such manner as it considers appropriate’
and, for instance, determine if the proceedings ‘should be oral or in
writing, whether or not to apply the strict rules of evidence, whether
the proceedings should be wholly or partly adversarial or whether and to
what extent they should make their own inquiries’.79 To that end, a
tribunal should preferably choose the rules with which the parties are
familiar. For example, where both parties descend from common law
jurisdictions, the tribunal may rely on affidavits and order pre-hearing
discovery to a greater extent than if the parties were mainly familiar with
the civil law tradition, in which case the mode of proceedings could be
more inquisitorial than adversarial. Thus, the liberal framework of the
Model Law concerning the choice of arbitral procedure enables an
arbitrator ‘to meet the needs of the particular case and to select the
most suitable procedure when organizing the arbitration, conducting
individual hearings or other meetings’.80
2.6 Arbitrator’s Role during Arbitration Proceedings

At the beginning of the arbitration, the tribunal will often arrange a
meeting with the parties to discuss and fix the format and schedule for
the proceedings.81 This, however, is not the only moment when the
arbitrators can make procedural decisions: the tribunal retains its proce-
dural powers throughout the proceedings, concerning, for example, the
manner in which submissions are to be made by the parties and the
relevant time limits.82 A tribunal should decide all procedural issues
which emerge from the dispute and have an impact on the final decision.
In this regard, the presumption is that the power to decide such issues
78
Soh Beng Tee & Co. Pte Ltd v. Fairmount Development Pte Ltd, Court of Appeals [2007] 3
SLR(R) 86.
79
Jivraj v. Hashwani [2011] UKSC 40.
80
81
See Model law, art. 19(2); Belgium, Judicial Code, art. 1693(1); England, Arbitration Act,
ss 33, 34; France, NCCP, art. 1494; Switzerland, PIL, art. 182(2); ICC Rules, art. 15(1);
LCIA, art. 14(2); UNCITRAL Rules, art. 15(1).
82
Jikai (n. 71).

rests with the arbitrator.83 In Hebei Jikai v. Vincent Martin,84 one of the
parties contested that the arbitrator was to determine the breach of duty
through the use of pleadings, witness statements, expert reports, bun-
dles of documents and, if appropriate, by means of an oral hearing and
cross-examination, arguing that the arbitrator failed to make use of any
of these. The court agreed with the parties’ arguments; even so, how-
ever, it held that this did not mean that the arbitral procedure adopted
by the arbitrator was not in accordance with the agreement of the
parties. By agreeing to the application of the IAMA Rules, the parties
also agreed that ‘the arbitrator was empowered to adopt procedures
suitable to the particular case so as to provide a fair, expeditious and
cost-effective process for determination of the dispute’ (rule 14 of the
IAMA Rules).
2.7 Validity of Arbitration Agreement without Provisions

on Arbitral Procedure
An arbitration agreement does not become unenforceable simply
because it does not set out in advance the arbitration procedure.85 The
way in which the arbitration should be conducted can always be estab-
lished by the arbitrators, who are given the ultimate power in this respect
by article 19. Consistently with this general approach, the absence of a
pertinent provision in the parties’ agreement as to how the arbitrator will
award costs was considered by a court as a procedural issue to be decided
by the tribunal, without any impact on the validity of the arbitration
agreement.86 As a result, national courts usually afford a high level of
deference to the procedural decisions made by the arbitrators. For
instance, it was held that the principle audi et alteram partem was not
violated for the mere fact that the tribunal only authorised written
submissions, without permitting any cross-examination; more specifi-
cally, it was held that ‘according to article 19(2) and insofar as the
principle audi alteram partem was concerned, the arbitrator was master
83
Howsam v. Dean Witter Reynolds, Inc., 537 US 79, 84 (2002), quoting John Wiley & Sons,
Inc. v. Livingston, 376 US 543 (1964).
84
Hebei Jikai (n. 71).
85
Estate of Decamacho ex rel. Guthrie v. La Solana Care and Rehab, Inc., 316 P.3d 607 (Ariz.
Ct App. 2014).
86
Passlow v. Butmac Pty Ltd [2012] NSWSC 225; see also Austra Tanks Pty Ltd v. Running
[1982] 2 NSWLR 840, cited in approval in Passlow v. Butmac, ibid.

552 a r t i c l e 1 9 : d et e r m i n a t i o n of r u l e s o f p r o c e d u r e
of his own procedure and could take whatever steps he deemed appro-
priate to ascertain the facts’.87
2.8 Subordination of Article 19 to Mandatory Rules

The opening sentence of paragraph 1, which subordinates the parties’
freedom ‘to the [mandatory] provisions of this Law’, does not use the
term ‘mandatory’, nor indicates to which specific provisions of the
Model Law the parties should be subjected. Furthermore, the Model
Law does not contain either an express classification of the provi-
sions that are mandatory and those that are not; so, the characterisa-
tion depends on the nature of each provision and the specific
language used. Three examples of mandatory provisions concerning
the conduct of proceedings are article 18 regarding equal treatment
of the parties, article 24(2) regarding advance notice and article 24(3)
regarding the communication of the party supplying documents to
the other party.88
2.9 Objectives of Subordination

The Model Law is conscious of the need to guarantee the structural
integrity of arbitral procedure.89 It is for this reason that party autonomy
is subject to the mandatory rules of the Model Law. However, this
subordination is by no means an attempt by the Model Law to diminish
the value of the principle of party autonomy as a tenet of international
arbitration. Rather, by subjecting the parties’ freedom to its mandatory
provisions, the Model Law ensures that the parties comply with ‘any
overriding requirements of the legal regime that governs the arbitra-
tion’90 and its public policy. Note that the principle of subservience to
mandatory rules also applies to arbitrators while conducting arbitral
proceedings.91
87
CLOUT Case 618, Jacob Silverberg, Howard Silverman v. C. Clarke Hooper Plc (6 February
1990).
88
Some consider that these two articles along with art. 27 are ‘the only mandatory provi-
sions concerning the conduct of proceedings’. See A. Broches, ‘Commentary on the
UNCITRAL Model Law’ in J. Paulsson and L. Bosman (eds), ICCA International
Handbook on Commercial Arbitration (Kluwer, 1990), pp. 92–97.
89
Grand Pacific Holdings Ltd v. Pacific China Holdings Ltd (in liq.) (No. 1) [2012] 4
HKLRD 1.
90
UNCITRAL, ‘2012 Digest of Case Law’, Pt One, p. 100.
91
Triulzi Cesare SRL v. Xinyi Group (Glass) Co. Ltd [2015] 1 SLR 114.

2 . p ar agr ap h 1 553
2.10 Regulatory Force of Natural Justice

Subject to agreement of the parties, arbitrators can conduct the arbitration
proceedings in a manner deemed appropriate so long as what they do is
not against some basic principles (as identified by articles 18 and 24 of the
Model Law), which are traditionally regarded as expressing notions of
natural justice.92 More specifically, with regard to case management,
natural justice encompasses ‘a reasonable opportunity to present one’s
case’ and ‘the fair hearing rule’. These must be considered in light of
other competing elements. For instance, article 22(1) of the International
Chamber of Commerce (ICC) Arbitration Rules 2010 obligates an arbi-
trator to ‘make every effort to conduct the arbitration in an expeditious and
cost-effective manner, having regard to the complexity and value of the
dispute’. Furthermore, while making procedural directions, arbitrators
must take into account ‘the practical realities of the arbitral ecosystem
such as promptness and price’,93 as well as the interests of both parties.94
Curial interventions are allowed only where unfair processes are pre-
judicial to the parties, or in cases of breach of natural justice.95 Courts
cannot entertain challenges against factual findings of arbitrators under
the pretentious head of breach of natural justice, for the sole reasons that
alleged errors on point of fact or law have occurred.96 Similarly, minor
breaches of the procedure agreed upon by the parties cannot be consid-
ered as constituting derogation from mandatory rules; a mandatory rule
is to be considered breached only if at least one of the parties has suffered
a significant prejudice.97
2.11 Role of Arbitrator When Mandatory Rules Contradict

with Procedures Chosen by the Parties
Should any contradiction exist between the procedure chosen by the
parties and a mandatory provision of the Model Law, the tribunal should
92
Anwar Siraj v. Ting Kang Chung [2003] 3 SLR(R) 287.
93
TMM Division Maritima SA de CV v. Pacific Richfield Marine Pte Ltd [2013] 4 SLR 972.
94
Sanko Steamship Co. Ltd v. Shipping Corp. of India and Selwyn and Clark [1980] 2 Lloyd’s
Rep. 569.
95
AKN v. ALC [2015] SGCA 18.
96
TCL Air Conditioner (Zhongshan) Co. Ltd v. Castel Electronics Pty Ltd (2014) 311 ALR
387; Sauber Motorsport AG v. Giedo van der Garde BV [2015] VSCA 37.
97
Grand Pacific Holdings (n. 89), citing Corporación Transnacional de Inversiones SA de
CV v. STET Intl SpA and Others, Re. [1999] CanLII 14819 (ONSC) and Triulzi Cesare
(n. 91).

554 a r t i c l e 1 9 : d e t e r m i n a t i o n of r u l e s o f p r o c e d u r e
strive to resolve it. In a case involving a conflict between article 18 of the

Model Law and the parties’ chosen rules, a court found that if the tribunal
detects ‘a potential problem with the opportunity to a party presenting its
case fairly arising from a procedure agreed by the parties’,98 it should
raise it with the parties instead of following the selected procedure
blindly. After hearing submissions from the parties, if the arbitrators
still perceive that ‘the procedure agreed by the parties would result in a
breach of article 18, they should take steps to conduct the arbitration in
such a manner that could redress the problem instead of being con-
strained by an unworkable agreement’.99 Several institutional rules also
expressly provide that in case of a conflict between those rules and a
mandatory provision of the law applicable to the arbitration, the latter
shall prevail.100
2.12 Opting Out of the Model Law

A related issue is whether the selection of a particular set of procedural
rules (e.g. the ICC Arbitration Rules) could imply that the parties had
opted out of the Model Law. The starting point should be Eisenwrek,101 in
which it was held by the Queensland Court of Appeal that the Model Law
and the ICC Rules are irreconcilable in a number of respects and that if
the parties chose a set of rules different from those in the Model Law, they
will be considered to have opted out of the Model Law in accordance with
section 21 of the International Arbitration Act. Eisenwrek has been
followed by the Singapore Supreme Court in John Holland,102 in which
it held that by virtue of section 15 of the International Arbitration Act,
98
CLOUT Case 1252, Brunswick Bowling & Billiards Corp. v. ShangHai ZhongLu Industrial
Co. Ltd (10 February 2009).
99
Ibid.
100
Chartered Institute of Arbitrators (CIArb), Arbitration Rules, 1 December 2015, art. 1(3);
International Centre for Dispute Resolution (ICDR), International Arbitration Rules
Amended and Effective June 1, 2014, art. 1(2); Centro Iberoamericano de Arbitraje
(CIAR), Arbitration Rules, art. 1(3); Madrid Court of Arbitration, Arbitration Rules, art. 2
(3); UNCITRAL Arbitration Rules, art. 1(3).
101
Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt GmbH v. Australian Granites Ltd [2001]
1 Qd R 461.
102
John Holland Pty Ltd aka John Holland Construction & Engineering Pty Ltd v. Toyo
Engineering Corp. (Japan) [2001] 2 SLR 262. The irreconcilability of the Model Law with
procedural rules is also recognised in Singapore in other cases, such as Dermajaya
Properties Sdn Bhd v. Premium Properties Sdn Bhd and Another [2002] 2 SLR 164 and
Co-op Intl Pte Ltd v. Ebel SA [1998] 3 SLR 670.

2 . p ar agr ap h 1 555
parties through their agreement to conduct arbitration under the ICC

Rules had effectively opted out of the Model Law.
Eisenwrek was, however, not followed by another Australian court,
which when prompted to decide on this question concluded that the
Model Law rules can operate alongside the UNCITRAL Rules and hence
the adoption of the latter should not imply opting out of the former.103
Furthermore, Eisenwrek was considered in detail in Cargill,104 which also
refused to follow it. In Cargill, the court agreed with Eisenwrek to the
extent that for the purposes of article 21, the parties, through express as
well as implied agreement, can opt out of the Model Law. For instance,
adoption by the parties of a specific system of law as lex arbitri is an
indirect exclusion of the Model Law, which would have otherwise been
applicable had the choice of lex arbitri not been made. But the court made
it clear that opting out of the Model Law would be effective only if such
implied agreement is discernible from the written agreement of the
parties.
As to exclusion of the Model Law by an agreement favouring institu-
tional rules, the Queensland Court of Appeal held that the parties’ agree-
ment to resolve a dispute with finality in accordance with the ICC Rules
does not entail the resolution of said dispute other than in accordance with
the Model Law. The court considered an arbitration agreement to refer
disputes to arbitration ‘by a single arbitrator appointed at the request of
either party by the President for the time being of the Institution of
Engineers of Australia in accordance with the Commercial Arbitration
Act 1984 (NSW)’.105 It held that by referring to a ‘State act’, the parties
had effectively excluded the Model Law by referring to another lex arbitri
(i.e. the Commercial Arbitration Act 1984). It also approved American
Diagnostica Inc. v. Gradipore Ltd,106 in which it was held that the parties’
choice of ‘State act’ along with the UNCITRAL Arbitration Rules had the
effect of excluding the Model Law. The Cargill court declared this inter-
pretation correct on the basis of the distinction between lex arbitri and
procedural rules, holding that this distinction is also expressly recognised
by the Model Law. Article 19 of the Model Law allows parties to agree on
procedural rules different from those laid down in the Model Law, but this
does not mean that the chosen procedural rules and the Model Law are
mutually exclusive. Therefore, the agreement of the parties to resolve their
103
Wagners Nouvelle Caledonie Sarl v. Vale Inco Nouvelle Caledonie SAS [2010] QCA 219.
104
Cargill Intl SA v. Peabody Australia Mining Ltd [2010] NSWSC 887.
105
Aerospatiale Holdings Australia Pty v. Elspan Intl Ltd (1992) 28 NSWLR 321.
106
American Diagnostica Inc. v. Gradipore Ltd (1988) 44 NSWLR 312.

disputes in accordance with the ICC Rules is not tantamount to an implied

agreement to resolve the dispute other than by reference to the Model Law.
The fact that the parties selected a certain set of arbitration rules to govern
their procedure is consistent with the Model Law itself.107
The same differentiation between the lex arbitri and procedural rules
has been accepted by the Russian courts. When a party challenged an
award on the basis that the Russian International Commercial
Arbitration Court did not apply Russian procedural law despite the
agreement between the parties to that effect, the court stated that any
‘agreement on the law to be applied concerned only the application of
substantive law. The procedure for hearing a dispute in international
commercial arbitration was governed by the regulations, if any, of the
arbitration tribunal itself.’108
3. Paragraph 2
3.1 Arbitrator’s Discretion in Evidentiary Matters
Parties possess the freedom to opt for the procedure provided in a specific
legal regime: if they refer to a certain system of civil procedural law, such
law (including, typically, the rules of evidence included therein) would be
applicable by virtue of their agreement.109 Where there is no party
agreement, arbitrators will have the power to adopt or adapt rules of
evidence as they deem appropriate.110
107
Ibid.
108
CLOUT Case 1351.
109
110
Model Law, art. 19(2). Enmax Energy Corp. v. TransAlta Generation Partnership (2015)
ABQB 185. In this case, Enmax and TransAlta were engaged in arbitration (Current
Arbitration) on indices used for billing calculations under a Power Purchase Agreement
(PPA). They were also engaged in arbitration in the past (Prior Arbitration) on indices
used for billing calculation, which resulted in a unanimous award (Prior Arbitration
Award). The court was to answer whether as a matter of law or as a matter of fairness, the
Prior Arbitration Award, the Discreet Findings in it and past awards on similar points
involving TransAlta are permitted in the Current Arbitration. The court decided that the
power to decide the admissibility and relevance of evidence, its interpretation and the
magnitude of weight this evidence should carry are matters to be decided by the
arbitrator. In Sino Dragon Trading Ltd v. Noble Resources Intl Pte Ltd, Federal Court
of Australia, [2016] FCA 1131, the Federal Court of Australia held that the power rests
with the arbitrator to determine whether the arbitrator should admit an email as
evidence of repudiation of contract. See also Douglas Aircraft Co. of Canada v.
McConnell (1979), [1980] 1 SCR 245.

3.2 Principles Governing Relevance, Admissibility, Materiality

and Weight of Evidence
The most important manifestation of the arbitral tribunal’s power to
conduct the arbitration in a manner it considers appropriate is with
regard to the ‘admissibility, relevance, materiality and weight of any
evidence’.111 As a result, it is important to explore the principles govern-
ing these aspects of the tribunal’s discretion.
3.2.1 Relevance of Evidence

‘Relevance’ is undisputedly the foundation of rules of evidence: a piece of
evidence should only be admitted if it is of probative value.112 In this
context, relevance may be decided on the ground of whether the evidence
being submitted can directly prove a fact in issue or other facts from
which a court can make an inference about one of the facts in issue.
3.2.2 Admissibility of Evidence

However, the statement that ‘all relevant evidence is admissible’ is not
without qualifications.113 While deciding the admissibility of relevant
evidence, regard should be given to ‘the remoteness of the fact being
proven to the evidence in issue, and whether the likely probative value of
the evidence justifies its admission’.114 For instance, in the Cameron
case,115 the court by referring to section 135 of the Evidence Act 2008
concluded that the arbitrator was empowered to exclude evidence that
was otherwise admissible as a matter of law. In this way, the court upheld
the decision of the arbitrator to disallow a party to rely on an expert
report, which it submitted in advance of the hearing, under circum-
stances where Cameron was not to call the expert as witness to give
oral testimony and be subjected to cross-examination.
The other factors to be taken into account by an arbitrator while using
his or her discretion on the admissibility of evidence may involve cir-
cumstances where one of the parties submits into evidence documents
that have been stolen or unlawfully obtained through the hacking of a
computer network,116 as a result of searching through discarded papers
111
112
R. v. Seaboyer [1991] 2 SCR 577.
113
Robertson v. Edmonton (City) Police Service (2004) ABQB 243.
114
Ibid.
115
Cameron Australasia Pty Ltd v. AED Oil Ltd [2015] VSC 163.
116
ICSID Case No. ARB/13/13, Caratube Intl Oil Co. LLP and Devincci Salah Hourani v.
Republic of Kazakhstan. See also ICSID Case No. ARB/07/30, ConocoPhillips Petrozuata

belonging to the other party117 or through illegal surveillance.118 An

arbitral tribunal might admit into evidence documents obtained in
such questionable ways, but it should also consider the impact that
such decision might have with regard to its general duty to respect
attorney–client privilege, the arbitral tribunal’s obligation to ensure a
high level of procedural fairness throughout the proceedings119 and the
equal treatment of the parties.
3.2.3 Materiality and Weight of Evidence

Usually, evidence which is helpful or persuasive on the issue pending
before the arbitrator is considered material. Its persuasiveness is to be
decided by the arbitrator.120 The last power of the arbitral tribunal
mentioned in paragraph 2 refers to the determination of what weight
should be given to the admitted evidence. The weight of a piece of
evidence normally refers to ‘its persuasive effect on the arbitrator’s
mind’121 and ‘includes questions of credibility (reliability) and the eva-
luation of inferences which can be made from the evidence’.122 Some
courts have also introduced the element of substantiality of evidence to
support one’s claim and have defined it as ‘substantial evidence that a
reasonable mind might accept as adequate to support a conclusion’.123
3.3 Ambit of the Arbitrator’s Discretion on Evidentiary Matters

The aforementioned principles on relevance, admissibility, weight and
materiality have been applied frequently. For instance, in Jardin,124 the
BV, and Others v. Bolivarian Republic of Venezuela, Decision on Jurisdiction and the
Merits, 3 September 2013. For an analysis of this issue, see generally J. O. Ireton, ‘The
Admissibility of Evidence in ICSID Arbitration: Considering the Validity of WikiLeaks
Cables as Evidence’ (2015) 30 ICSID Rev. 231–242.
117
See Methanex v. USA, in the matter of an international arbitration under Chapter 11 of
the North American Free Trade Agreement and the UNCITRAL Arbitration Rules, Final
Award of the Tribunal on Jurisdiction and Merits (3 August 2005).
118
ICSID Case No. ARB/06/8, Libananco Holdings Co. Ltd v. Republic of Turkey, Decision
on Preliminary Issues, 23 June 2008.
119
Supreme Oil Co., Inc. v. Abondolo, 568 F. Supp. 2d 401, 408 (SDNY 2008).
120
Wright v. College and Assn of Registered Nurses of Alberta (2012) ABCA 267.
121
See K. Pilkow, ‘Evidence in International Arbitration: Criteria for Admission and
Evaluation’ (2014) 80 Arb. 152.
122
Ibid.
123
Castaneda v. Palm Beach Resort Condominiums, 132 Nev. Adv. Op. 44 (2016). See also
Whitemaine v. Aniskovich, 124 Nev. 302, 308, 183 P.3d 137, 141 (2008).
124

arbitral proceedings were agreed to be governed by the Alberta Rules of

Court. The arbitral tribunal ordered one of the parties, Western, to
produce the cooperation agreement it had concluded with JLT (a non-
party to the arbitration) for the tribunal’s inspection, so that it could
determine if the agreement met ‘the test of relevance and [hence] be
produced before the underwriters’. JLT challenged before the court the
tribunal’s orders for pre-hearing discovery, which was duly rejected. The
court held that: (1) in this case, the parties had not placed any limitations
on the ambit of examinations; and (2) in their arbitration agreement, the
parties had agreed that discovery would be conducted in the manner
allowed by the Alberta Rules of Court.
The first ground relied upon by the court implies that matters not
excluded specifically will fall within the ambit of the arbitrator’s discre-
tion. This inference also finds support from the LG Electronics case, in
which the Supreme Court of Delaware held that the parties are never
required to enlist the issues to be decided by the arbitrators, but rather the
policy of the courts is that the power of arbitrators to adjudicate a dispute
includes the power to decide procedural issues relevant to the dispute.125
In other words, when a party agrees to arbitration, it cannot thereafter
request the resolution of evidentiary issues from the courts. The Supreme
Court held that this conclusion is true, especially in institutional arbitra-
tion (American Arbitration Association (AAA) arbitration in this case),
where the rules empower arbitrators to decide procedural and eviden-
tiary issues. It said further that if the parties do not confer such power on
the arbitrator, such power is implicit in its power to decide the main
dispute.
As regards the second ground, after holding that article 19 of the
Model Law does not confine discovery to the parties themselves, it stated
that, in arbitrations conducted in Alberta, the examination and discovery
in a manner analogous to the Alberta Rules should be allowed and for this
purpose, the arbitrator may, directly or through the parties, seek the
assistance of the court.126
In BQP v. BQQ, the arbitrator decided that contract A superseded
contract B by relying on pre-contractual negotiations between the par-
ties. A challenge against the admissibility of pre-contractual negotiations
was submitted to the Singaporean High Court, which characterised the
admissibility of pre-contractual negotiations as a rule of evidence or
125
LG Electronics, Inc. v. InterDigital Communications, Inc., 114 A.3d 1246 (Del. 2015).
126

560 a r t i c l e 1 9: det er mi n at i o n of ru les of proc ed u re
procedural law.127 It held further that the extrinsic evidence, including

pre-contractual negotiations, is admissible in arbitration to interpret the
contact. In this case, as was held by the court, given that the parties agreed
to arbitration under the Singapore International Arbitration Centre
Rules, they have by implication also agreed on the power of the arbitrator
to decide the admissibility, relevance and weight to be afforded to a
particular piece of evidence. As a result, the arbitrator was entitled to
disregard any rule of evidence in common law on the admissibility of
evidence concerning contractual interpretation and admit evidence
which was deemed inadmissible under national law. It went on to say
that the parts of the Evidence Act dealing with the admissibility, rele-
vance and weight of evidence laid down in relation to litigation do not
apply to arbitration. The court also highlighted that the London Court of
International Arbitration, AAA and Hong Kong International
Arbitration Centre rules also confer the same powers on arbitrators. As
to the ICC Rules, which are silent on this issue, it was held that ICC
tribunals would possess an inherent power on this point.128
3.4 Privileged and Confidential Evidence

An arbitrator additionally enjoys the power to decide if the evidence
being submitted or sought is privileged or confidential. The Court of
Appeal of Alberta refused to consider the order of an arbitrator to
produce a confidential standstill agreement, despite a contention from
a party that production of such agreement would breach its confidenti-
ality agreement with a non-party to arbitration.129 In Enmax,130 the court
was asked to decide if the prior award between the same parties on a
similar issue was confidential and thus admissible. It held that said prior
127
The High Court referred to Sembcorp Marine Ltd v. PPL Holdings Pte Ltd [2013] 4 SLR
193, which has clearly settled this point. See also CLOUT Case 1351, in which the
language of arbitration was Russian, but evidence was submitted in a foreign language
without any translation. The court held that ‘the language of the arbitration proceedings
and the language in which evidence was presented were thus not identical. They came
into different legal categories and were regulated differently. The submission of evidence
by a party in a language other than that of the proceedings did not in itself represent a
violation of the arbitration procedures mutually agreed upon by the parties nor of the
principle of equality as a fundamental principle of Russian law (public order).’
128
[2018] SGHC 55.
129
130
Enmax Energy (n. 110). The Supreme Court relied on Anadarko Canada Corp. v. Gibson
Petroleum Co. (2004) ABCA 154 (Alta CA); Aetna Insurance Co. of Canada v. Mason &
Co. (1998) ABQB 1082 (Alta QB).

4. j udi ci al s cep t i ci s m 561
award was confidential, but the extent to which the confidentiality may be
compromised in favour of disclosure is to be decided by the arbitrator. It
admitted the confidential nature of the award, but also narrated the
circumstances wherein such confidentiality can be compromised. These
circumstances include where the confidential material is relevant and
sufficiently significant for the resolution of issues in dispute and where it
must be produced because in such case, truth prevails over private
commercial interests and the primary objective of the adversarial process
is to find the truth. The court noted that these judgments and principles
laid down therein were in relation to litigation and did not address
arbitration. However, in its conclusion, it seemed to have endorsed the
applicability of these principles to arbitration by emphasising that a
decision to interfere with confidentiality ‘must weigh the relative impor-
tance of the truth and the competing private commercial interests. A
party seeking disclosure of a confidential document must establish it is
relevant to the dispute.’131
4. Judicial Scepticism to Touch Arbitrator Discretion

on Matters of Evidence
It is very clear from the jurisprudence on arbitrators’ discretion on evidence
that courts are hesitant to interfere in order to define admissibility, rele-
vance, etc. of evidence by declaring these matters specific to the jurisdiction
of the arbitrator. This reluctance can be seen during the pendency of the
arbitral proceedings, as well as after arbitrators have issued their award.
4.1 Courts’ Attitude When the Arbitration Is Pending:

Three-Factored Test
In LG Electronics,132 the Supreme Court of Delaware applied the three-
factored McWane133 test to decide if the courts can assume jurisdiction to
decide evidentiary matters where the same was pending before an arbi-
trator, as follows: ‘(1) is there a prior action pending elsewhere? (2) is a
court capable of doing prompt and complete justice; (3) (are the two
cases) involving the same parties and the same issues?’ If these three
grounds are met, then litigation on that matter should be confined to the
131
Enmax Energy (n. 110).
132
LG Electronics (n. 125).
133
McWane Cast Iron Pipe Corp. v. McDowell, 263 A.2d 281 (Del. 1970).

forum where it was first initiated. This is so because ‘these concepts are
impelled by considerations of comity and the necessities of an orderly
and efficient administration of justice’.134
Applying this test to the instant case, the court placed arbitration on a
footing equal to litigation by declaring it to be a first-filed action. In this
respect, it stated that the Delaware courts should be as hesitant to
interfere in a dispute pending before an arbitral tribunal in the same
way as when it is pending before the court. It said further that if the issue
is incidental to a first-filed action, like admissibility of evidence, then
‘considerations of comity and the orderly and efficient administration of
justice are even more compelling’.135 Similarly, by declaring the arbitra-
tor to be capable of offering prompt and complete justice, it hence
declined its jurisdiction to deal with the matter.136
4.2 Courts’ Attitude after Arbitrator’s Decision on Evidentiary

Matters
After an arbitrator decides on an evidentiary matter, the courts will
usually afford deference thereto.
4.2.1 Procedural Fairness Test

An arbitrator is duty bound to maintain procedural fairness while con-
ducting arbitration proceedings. Arbitrators are required ‘to act in good
faith (or stated otherwise to be unbiased), fairly listen to both sides, and
to give a fair opportunity to those who are parties to make representa-
tions, including to correct or to contradict any relevant statement pre-
judicial to their view’.137 Procedural fairness depends on the subject
matter of each case, the context of each case and the rules of procedure
agreed upon by the parties for the conduct of arbitration.138 The British
Columbia Supreme Court has stated that the requirement of procedural
134
Ibid.
135
Ibid.
136
LG Electronics (n. 125).
137
0927613 BC Ltd v. 0941187 BC Ltd (2015) BCCA 457; see also Kane v. Board of Governors
of the University of Columbia [1980] 1 SCR 1105; Lakeside Colony of Hutterian Brethren
v. Hofer [1992] 3 SCR 165.
138
Quaidoo v. Edmonton Police Service (2015) ABCA 381 (Alta CA), para. 31; Zaleschuk
Pubs Ltd v. Barop Construction Ltd (1992) 68 BCLR (2d) 340; Arbutus Software Inc. v.
ACL Services Ltd, 2012 BCSC 1834; Farrar v. Bojan High End Kitchens Inc., 2013 BCSC
1881; Canada (Attorney General) v. Mavi, 2011 SCC 30; Ridge v. Baldwin [1962] 1 All ER
834 (CA).

4. j udi ci al scep t i ci s m 563
fairness may be extended to an arbitrator’s decisions on admission or

consideration of evidence and may be considered to have been denied.139
It is to note that not every decision of arbitrators on evidentiary
matters raises concerns of procedural fairness, but where this require-
ment is not fulfilled by the tribunals, its decision/award will be set
aside.140 The courts can set aside an award if the arbitrator does not
admit the evidence material to the controversy. In this regard, the burden
will be on the requesting party to prove the materiality of evidence that
was not allowed by the arbitrator.141 However, while reviewing the
proceedings, the court should be conscious of the standard of review
being applied by the tribunal and, in this regard, it should not examine
whether the proceedings were correct or reasonable; rather, it should
examine whether the proceedings did meet the standard of procedural
fairness prescribed by law.142
4.2.2Disregard and Oversight of Evidence as Ground

to Challenge Arbitrator’s Decision
English courts have also reviewed arbitral decisions on matters of evi-
dence in the context of challenges against arbitral awards.143 In Sonatrach
v. Statoil Natural Gas,144 it was held that an arbitral award cannot be set
aside on the ground that the arbitrator disregarded or overlooked a piece
of evidence, because this would amount to reviewing the arbitrator’s
finding on primary facts. Similarly, in the New Age Alzarooni case,145 it
was held that an arbitral award cannot be challenged on the basis of the
arbitrator’s particular view concerning evidence and the weight he or she
accorded to it. An assertion that the decision of an arbitral tribunal is
against the evidence would be tantamount to challenging the arbitrator’s
finding on fact. The court further said that to review whether an
139
Arbutus Software, ibid. See also Williston Navigation Inc. v. BCR (2007) 69 BCLR (4th)
187; Amos investment Ltd v. Minou Enterprises Ltd (2008) BCSC 332.
140
Calgary (City) v. Nortel Networks Corp. (2008) ABCA 370 (Alta CA).
141
Fong v. MGM Mirage Intern. Marketing, Inc., 381 P.3d 612, 128 Nev. 896 (2012).
142
Alberta (Securities Commission) v. Workum (2010) ABCA 405 (Alta CA), para. 28; Synergy
Group (2000) Inc. v. Alberta (Securities Commission) (2011) ABCA 194 (Alta CA), para. 25;
Alberta (Office of the Information & Privacy Commissioner) v. Alberta (Adjudicator,
Information & Privacy Commissioner) (2011) ABCA 36 (Alta CA), para. 38.
143
A v. B [2017] EWHC 596 (Comm.); Union Marine Classification Services LLC v.
Government of the Union of Comoros, Bruce Harris [2017] EWHC 2364 (Comm.).
144
Sonatrach v. Statoil Natural Gas LLC [2014] 2 Lloyd’s Rep. 252.
145
New Age Alzarooni 2 Ltd v. Range Energy Natural Resources Inc. [2014] EWHC 4358
(Comm.).

564 a r t i c l e 19 : d e t e r m i n a t i o n of ru l e s o f p r o c e d u r e
arbitrator overlooked or misunderstood a piece of evidence would entail

an exercise of reviewing and evaluation of all the evidence and this would
constitute an unjustified and unauthorised intervention in the functions
of the arbitrator and the arbitration agreement. However, this does not
mean that the arbitrator can overlook or disregard an admitted and
undisputed piece of evidence.
Russian courts also refrain from conducting an analysis of whether the
arbitrator gave due weight to a particular piece of evidence during the
hearing due to the reason that this would amount to an assessment of
factual circumstances, which only the arbitral tribunal is entitled to
conduct.146
146
CLOUT Case 1353.

Article 20
Place of Arbitration
1. The parties are free to agree on the place of arbitration. Failing such
agreement, the place of arbitration shall be determined by the arbitral
tribunal having regard to the circumstances of the case, including the
convenience of the parties.
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 mem-
bers, for hearing witnesses, experts or the parties, or for inspection of
goods, other property or documents.

Article 20 deals with the ‘place’ of arbitration, commonly also referred to
as the ‘seat’. This notion has a fundamental legal relevance in any
arbitration, as it creates a particular juridical link between the arbitral
proceedings and a certain national legal system. The concept at hand,
however, does not necessarily entail the existence of a strong physical/
geographical connection between the arbitration and the territory of the
State where the arbitral proceedings are seated.
The Working Group used as a drafting basis article 16 of the 1976
UNCITRAL Arbitration Rules, which read as follows:
Unless the parties have agreed upon the place where the arbitration is to
be held, such place shall be determined by the arbitral tribunal, having
regard to the circumstances of the arbitration.
The arbitral tribunal may determine the locale of the arbitration within
the country agreed upon by the parties. It may hear witnesses and hold
meetings for consultation among its members at any place it deems
appropriate, having regard to the circumstances of the arbitration.
565

566 a r t i c l e 20 : pl a c e of ar b i tr a t i o n
The arbitral tribunal may meet at any place it deems appropriate for
the inspection of goods, other property or documents. The parties shall be
given sufficient notice to enable them to be present at such inspection.
The award shall be made at the place of arbitration.
The Rules, hence, recognised the primacy of private autonomy in the

selection of the seat of arbitration by providing that the parties would
have the freedom to agree on it, and the tribunal would make such a
determination only in cases where the disputants failed to agree. When
discussing whether the same rule should be included in the Model Law,
some concerns were aired, especially regarding cases where a significant
bargaining imbalance between the parties to the arbitration agreement
exists. India, in particular, argued that freedom of selection of the seat
under article 20 may operate to the disadvantage of weaker parties, and
proposed to insert a default rule whereby the seat would be fixed in the
defendant’s home jurisdiction instead.1 This proposal, however, was not
retained, and the structure of the UNCITRAL Arbitration Rules was
maintained in the Model Law. It was therefore decided already at an
early stage of the negotiations that the parties would be given the power
to select the seat of arbitration, and the tribunal would be empowered to
make such a determination only as ‘a supplementary rule’ in cases where
the parties failed to agree.2
1
Analytical Compilation of Comments by Governments and International Organizations on
the Draft Text of a Model Law on International Commercial Arbitration, UN Doc. A/CN.9/
263 (19 March 1985), 33. In principle, bargaining power imbalance between the parties can
only be relevant if the seat is chosen in the arbitration clause. In this context, the choice of the
seat is only a (marginal) element of the negotiation of a commercial contract, and the weaker
party may factually have no choice but to accept the seat proposed by the counterpart. By
contrast, if the seat must be selected once a dispute has arisen, there are no specific incentives
for the weaker party to accept the seat proposed by the counterpart. In any case, from a
contemporary perspective, concerns such as the ones raised by India often appear overstated,
as they are based on the premise that geographical proximity to the seat of arbitration may
favour the ‘local’ party over counterparts located elsewhere. Over the past three decades, the
neutral contents of most arbitration statutes and the emergence of a pool of internationally
oriented and arbitration-friendly seats have to a certain extent marginalised home bias
concerns regarding the place of arbitration. Interestingly, however, this has not always been
the case: historically, fixing the seat of arbitration in a given State was seen as a significant
advantage for local parties, and special ‘joint arbitration clauses’ were created for the very
purpose of ensuring neutrality in the choice of the seat and of the administering institution,
when the parties were located in different States: for a historical overview, see P. Ortolani,
‘Model Arbitration Clause’ in Max Planck Encyclopedia of International Procedural Law
(Oxford University Press, 2019).
2
Third Session, UN Doc. A/CN.9/216 (23 March 1982), 14, paras 53–54.

According to the UNCITRAL Arbitration Rules, when the arbitrators

are entrusted with the task of determining the seat, they must have
‘regard to the circumstances of the arbitration’.3 The Working Group
decided to modify this wording, to indicate that the interest of the
parties remains paramount even when the determination is made by
the tribunal. To this end, it was proposed to specify that the circum-
stances of the arbitration included ‘the convenience of the parties’.4 In
the Commission, the adoption of this wording was promoted in parti-
cular for the purpose of protecting parties from developing countries
engaging in cross-border transactions with counterparts from devel-
oped economies.5 However, some objections were raised: it was argued
that the reference to the convenience of the parties was unnecessary, as
the parties’ interest already played a central role due to the reference to
the principle of equality and the right to present one’s case in article 19
of the Model Law.6 It was also asserted that a reference to the parties’
interest would be ‘unbalanced’, as the arbitrators may need to take into
account other circumstances, ‘such as the suitability of the applicable
procedural law, the availability of procedures for recognition and
enforcement of awards under the 1958 New York Convention7 or
other multilateral or bilateral treaties or, eventually, whether a State
3
Article 16(1) of the 1976 Rules, corresponding to art. 18(1) of the 2010 Rules.
4
Articles 1 to 20 on Scope of Application, Arbitration Agreement, Arbitrators, and
Arbitral Procedure, UN Doc. A/CN.9/WG.II/WP.37 (4–15 October 1982), art. 18.
5
Summary Record of the Eighteenth Session, UN Doc. A/CN.9/SR,321 (13 June 1985), para.
24: ‘At a recent meeting of the Asian-African Legal Consultative Committee delegates had
pointed out the undesirability of choosing a place which would involve heavy travel costs for
the parties; they had stressed that it should be in or near to where one of the parties resided,
and in the developing country in the case of an arbitration between a party in a developing
country and one in a developed country.’ See also Analytical Compilation of Comments by
Governments and International Organizations on the Draft Text of a Model Law on
International Commercial Arbitration, UN Doc. A/CN.9/263/Add.1 (15 April 1985), art. 20.
6
Eighteenth Session, UN Doc. A/40/17 (3–21 June 1985), 35, para. 179.
7
At first sight, the availability of recognition and enforcement procedures under the New York
Convention does not seem to be directly relevant, as the Convention governs the circulation of
‘foreign’ arbitral awards, and it is therefore not generally applicable to awards made in the same
State where enforcement is sought. There is, however, a subtler reason why the status of the seat
as a party to the New York Convention may be relevant: some State parties to the Convention
have declared, in accordance with art. I(3), that they only apply the Convention to the
recognition and enforcement of awards made in the territory of another contracting State.
The location of the seat and its status as a party to the Convention, thus, may potentially have
consequences on the applicability of the instrument. When it is foreseeable that at least one of
the parties may need to seek recognition and enforcement in a State other than the seat that has

568 article 2 0: place of arbitration
had adopted the model law’.8 Furthermore, it was noted that the
UNCITRAL Rules do not expressly refer to the convenience of the
parties, and that a ‘discrepancy’ between the two instruments was
‘undesirable’.9 Despite these objections, the reference to the conveni-
ence of the parties was eventually retained, given the ‘great importance’
of this factor in international commercial arbitration.10 The
Commission also expressed the understanding that considerations
such as the applicable procedural law and the recognition and enforce-
ment of awards were, in fact, included in the notion of convenience of
the parties, rather than opposed to it.11
Another point of discussion within the Working Group concerned the
possibility to conduct certain activities related to the arbitration in the
territory of a State other than the seat. This approach had been to a large
extent adopted by the UNCITRAL Rules, and was never seriously put
into doubt during the drafting of the Model Law. Initially, however, it was
not clear whether the possibility for the tribunal to meet outside of the
seat would be restricted to certain activities or may potentially extend to
the entire development of the arbitral proceedings. Article 16 of the 1976
UNCITRAL Arbitration Rules made reference to the taking of witness
evidence, consultations among arbitrators and inspections of goods,
property and documents, but did not mention any other activity that
may be necessary during the course of the arbitration.12 The Model Law
drafters had initially adopted the same wording;13 at a later stage, how-
ever, the Working Group noted that ‘the need for meeting at another
place may not only arise with regard to [the activities listed above], but
also, for example, for hearings of experts or normal hearings with the
parties’.14 It was decided that the arbitrators’ freedom to meet elsewhere
should be ample and, to this end, a broad wording was adopted, so that
made such a reciprocity reservation, then the status of the seat as a party to the Convention
may be of paramount practical importance.
8
Ibid. The remark concerning the adoption of the Model Law is not easy to reconcile with
the structure of the Law itself, as the arbitrator’s power to determine the seat under art. 20
only exists if the Model Law is applicable in the first place, since art. 20 is not mentioned in
art. 1(2).
9
Ibid.
10
Ibid.
11
Ibid., para. 180.
12
By contrast, art. 18(2) of the 2010 Rules refers generically to ‘any other purpose, including
hearings’.
13
August–9 September 1983), 163.
14
Ibid., para. 78.

meetings outside of the seat are practically possible in any case irrespec-
tive of their purpose;15 it is therefore clear that the Working Group
conceived the seat as a juridical notion, rather than as a geographical
link.16 The parties, of course, remain free to limit the tribunal’s possibility
to meet outside of the seat.
2. Paragraph 1
Paragraph 1 clarifies that party autonomy plays a central role in the
selection of the seat (or, in the language of the Model Law, ‘place’)17 of
arbitration. Only in the absence of any agreement of the parties, the
tribunal has the task of determining the seat, using as a set of guiding
criteria the circumstances of the case, including the convenience of the
parties.
2.1 Notion of ‘Seat’ in the Model Law

As already mentioned, the seat is a juridical concept, which does not
evince any geographical connection between the arbitration and the
territory of the State: in principle, an arbitration can be seated in a
given jurisdiction even if the arbitrators are never physically present
there.18 Under the Model Law, the notion of the seat is relevant from
15
Report of the Working Group on the Work of Its Seventh Session, UN Doc. A/CN.9/246
(6 March 1984), paras 64–65. The fact that art. 20 does not refer to the making of the
award does not mean that the award must necessarily be physically drafted at the seat of
arbitration, as art. 31(3) clarifies that it is in any case deemed to have been made there.
16
See below, section 2.1. See also the comments of Norway, according to which ‘there need
not be a genuine link between the place of arbitration as determined under paragraph (1)
and any other places where, under paragraph (2), parts of the arbitral proceedings,
including the making of the award, take place’: UN Doc. A/CN.9/263 (n. 1), 33.
Interestingly, the expression used by Norway (‘genuine link’) echoes directly the genuine-
ness test devised by the International Court of Justice in Nottebohm, as far as the
opposability of nationality is concerned. See Liechtenstein v. Guatemala (Nottebohm
case) (second phase) (1955) ICJ Rep. 4.
17
By contrast, the word ‘location’ is sometimes used to refer to the physical space where the
arbitral proceedings take place, rather than the seat: D. D. Caron and L. M. Caplan, The
UNCITRAL Arbitration Rules: A Commentary, 2nd edn (Oxford University Press, 2013),
p. 78.
18
A. J. van den Berg, ‘Organizing an International Arbitration: Practice Pointers’ in L. W.
Newman and R. Hill (eds), The Leading Arbitrators’ Guide to International Arbitration
(Juris, 2004), p. 182; Methanex Corp. v. United States of America, Order on the place of
arbitration, 7 September 2000, 3. For a general overview of the notion of seat in arbitra-
tion, see also M. Storme and F. De Ly, The Place of Arbitration (Mys en Breesch, 1992).

three main points of view: the applicability of the Law itself, the qualifica-
tion of the arbitration as ‘international’ and the nationality of the award.
From the first point of view, the seat of arbitration triggers the applic-
ability of the majority of the Model Law’s provisions: according to article
1(2), the Model Law applies only if the arbitration is seated in a Model
Law jurisdiction, with the only exception of articles 8, 9, 17H, 17I, 17J, 35
and 36.19 The importance of this consequence can hardly be overstated:
the seat determines, among other things, whether the courts of the State
will be able to perform certain functions supporting the arbitration (such
as the appointment or substitution of arbitrators), and whether they will
be competent for annulment actions against the award. Conversely, when
a State court qualifies an arbitration as foreign, it should in principle
always decline jurisdiction over annulment actions, as only the courts at
the seat are competent to set an award aside.20
From the second point of view, the seat can sometimes determine whether
or not an arbitration is international: pursuant to article 1(3)(b)(i) of the
Model Law, an arbitration is international if, inter alia, the seat is situated
outside of the State in which the parties have their places of business.21
19
These exceptions are limited to situations where the State courts at the seat of arbitration
perform certain functions supporting or relating to a foreign-seated arbitration, such as the
enforcement of an agreement to arbitrate, the issuance or recognition and enforcement of
interim measures, and the recognition and enforcement of foreign arbitral awards. See, for
an application of the general principle whereby the juridical seat of arbitration determines
the applicability of the lex arbitri, Balkan Energy Ltd v. Republic of Ghana, No. 17-CV-00584
(APM), 2018 WL 1440187, 6 (DDC, 22 March 2018); Braes of Doune Wind Farm (Scotland)
Ltd v. Alfred McAlpine Business Services Ltd (2008) 1 CLC 487.
20
This general rule of international jurisdiction has been famously misapplied in some
Indian cases. In Bhatia Intl v. Union of India (2002) 4 SCC 105, the Supreme Court of
India held that the provisions of the Indian arbitration statute governing, inter alia, the
annulment of awards are applicable to arbitration seated outside of India as well, unless
the parties exclude their application. The Supreme Court later changed its approach in
Bharat Aluminium Co. v. Kaiser Aluminium Technical Services, Inc. (2012) 9 SCC 552,
excluding the availability of setting-aside procedures if the arbitration is seated abroad.
Nonetheless, the Bhatia reasoning continued to have a certain influence on Indian case
law: in Reliance Industries Ltd and Another v. Union of India, the Delhi High Court was
seised of an action for the annulment of an arbitral award, despite the fact that the
arbitration was seated in London. The court held that it had jurisdiction to set the award
aside, also in view of the fact that the case involved issues of Indian public policy. While
the Supreme Court of India finally overturned the High Court judgment, interpretative
uncertainties still partially remain as to whether the fact itself that the arbitration is seated
outside of India is enough ground to rule out the applicability of the Indian arbitration
statute in the part where it regulates the annulment of awards.
21
However, primary regard should be given to the parties’ place of business, in accordance
with art. 1(3)(a): see also CLOUT Case 786, Cairo Regional Center for International
Commercial Arbitration, Award of 31 October 1995.

From the third point of view, the seat determines the place where the
award is deemed to have been made pursuant to article 31(3), and
therefore gives the award its ‘nationality’ for the purposes of international
recognition and enforcement. If, for instance, the seat of arbitration was
in Germany, the award is deemed to have been made there, and foreign
courts will regard it as a German award when asked to recognise and
enforce it.22
2.2 ‘The Parties Are Free to Agree’: Selection of the Seat

by the Parties
According to paragraph 1 of article 20, party autonomy plays a pre-
eminent role in the selection of the seat: the disputants are free to agree
on the place of arbitration, and only in the absence of such an agreement
can the tribunal determine where the arbitral proceedings will be seated.
The importance of party autonomy in this context gives rise to a number
of questions. First of all, it is necessary to scrutinise the different modes in
which the parties can reach an agreement on the seat of arbitration. A
related, interesting question is whether the parties are at freedom to select
the seat of arbitration not directly, but indirectly, creating a mechanism
whereby the seat will be determined in the future. Subsequently, it is
necessary to consider those cases where the parties’ ability to select the
choice of arbitration may be limited by other sources of law. The follow-
ing subsections analyse these aspects in detail.
2.2.1 Mode of Selection of the Seat by the Parties

In commercial arbitration, the parties can normally determine the seat of
arbitration either before or after a dispute has arisen.23 More specifically,
22
As far as the 1958 New York Convention is concerned, this relevance is evident from
multiple points of view. First and foremost, the seat of arbitration is one of the decisive
factors for the applicability of the instrument: pursuant to art. I(1), the Convention is
applicable to the ‘recognition and enforcement of arbitral awards made in the territory of
a State other than the State where the recognition and enforcement of such awards are
sought’. Second, the location of the seat may be relevant if reciprocity reservations have
been made, as illustrated above (n. 7). Third, some grounds for refusal envisaged in art. V
refer to the law of the seat: see, in particular, art. V(1)(a) with reference to the law
applicable to the agreement to arbitrate, art. V(1)(d) on the law governing the composi-
tion of the tribunal or the arbitral procedure and art. V(1)(e) on the bindingness,
annulment and suspension of the award.
23
In treaty-based investment arbitration, by contrast, the parties do not negotiate the
agreement to arbitrate before the materialisation of the dispute, and therefore can only
agree on the seat of arbitration ex post. In this context, of course, determining the seat of

572 ar tic l e 20: p l ac e of ar bit ra tion
before the beginning of the arbitration the parties can specify the seat already
in the agreement to arbitrate. In some cases, both the agreement to arbitrate
and the selection of the seat can be expressed in an extremely synthetic
fashion, which is nonetheless normally regarded as a valid and binding
agreement in Model Law jurisdictions. By way of example, a German
court upheld the validity of a clause which simply read ‘Arbitration:
Hamburg’.24 A clause composed of merely two words, hence, can have the
double effect of creating an enforceable obligation to arbitrate, and specify-
ing the seat of any arbitral proceedings based on it. In general, brevity is often
key to ensuring the clarity and effectiveness of the seat selection clause: many
model arbitration clauses prepared by leading arbitral institutions suggest
that the parties simply adopt the wording ‘the seat of arbitration shall be …’,
without further unnecessary specifications.25
In general, the parties should indicate not only the State, but also the
city where the proceedings will be seated (e.g. ‘the seat of arbitration shall
be Paris, France’). However, if the parties fail to specify the city, or choose
a city where no local court competent to perform ancillary functions
exists, this does not make the choice of a certain national legal system
invalid. As long as it is clear that the parties have agreed to fix the seat in a
certain State, any uncertainty as to the exact location of the seat and the
internal competences of municipal courts therein can be resolved either
on the basis of the lex arbitri, or in any case by referring to a supplemen-
tary determination by the arbitral tribunal under article 20.
Problems may arise in cases where the language used by the parties
generates some doubts as to whether an agreement on the seat of arbitra-
tion has indeed been reached. In an Indian case, for instance, the arbitra-
tion clause read as follows: ‘[a]ll disputes arising in connection with this
Agreement shall be finally settled by arbitration in Seoul, Korea (or such
other place as the parties may agree in writing), pursuant to the rules of
agreement then in force of the International Chamber of Commerce’.
There is little doubt that the clause at hand validly expresses the parties’
consent to ICC arbitration. The wording between brackets, however,
arbitration may not always be necessary, namely if the host State consented to ICSID
arbitration.
24
CLOUT Case 571, Hanseatisches Oberlandesgericht Hamburg, 24 January 2003, 11 Sch.
06/01.
25
G. B. Born, International Commercial Arbitration, 2nd edn (Kluwer, 2014), p. 2070. See
e.g. Submersible Sys., Inc. v. Tokio Marine Europe Ins. Ltd, No. CV 14-513, 2015 WL
13065641, 1 (WD La, 14 January 2015); British American Insurance (Kenya) Ltd v.
Matelec SAL, 2013 WL 5826183.

gave rise to a disagreement between the parties: one of them argued that
the clause enabled the parties to move the seat of arbitration to a place
other than Seoul, while the other party held that the clause simply
referred to the possibility for the tribunal to meet and carry out proce-
dural activities outside of Seoul.26 The court seised of this matter held
that the bracketed specification did not influence the parties’ choice of
seat (i.e. Seoul). The case is instructive, as it demonstrates how an
unclearly worded clause may give rise to disputes as to the location of
the seat of arbitration, even when a clear consent to arbitration exists.
If the parties have not agreed on the seat before the beginning of the
arbitration, they remain free to do so after the proceedings have com-
menced. Many sets of arbitration rules contain a mechanism for the
elicitation of the parties’ opinions and the encouragement of an agree-
ment on the seat of arbitration. By way of example, pursuant to article 4
(3)(h) of the 2017 ICC Rules, the claimant’s request for arbitration should
contain ‘observations or proposals as to the place of arbitration’, and the
respondent’s answer should also contain such observations and propo-
sals in accordance with article 5(1)(f) of the Rules. Although it is com-
monplace to say that, once a dispute has materialised, the parties
generally fail to reach any type of consensus, agreements on the seat of
arbitration are far from rare in practice.27 In particular, reaching a post-
dispute agreement on the selection of the seat is practically possible when
the parties see certain advantages in a given lex arbitri, and/or they both
regard the courts of a certain State as arbitration friendly and neutral.
The parties’ freedom to choose the seat of arbitration entails a right to
change the seat as well: even if the original agreement to arbitrate
provides that the arbitral proceedings shall be seated in a certain jurisdic-
tion, the disputants retain the right to modify their agreement and move
the seat elsewhere.28 However, a modification of the seat of arbitration
occurring when the tribunal has already been constituted may give rise to
significant problems: in this situation, the arbitrators will have initially
accepted to arbitrate under a certain lex arbitri, and are now faced with
26
Interestingly, both interpretations implicitly acknowledge that the bracketed wording was
ultimately superfluous, as the parties are in any case free to agree and modify the seat of
arbitration even if the clause does not mention this possibility (see e.g. PT Garuda
Indonesia v. Birgen Air (2002) 1 SLR 393), and the tribunal remains free to meet elsewhere
in accordance with art. 20(2) of the Model Law.
27
See, for instance, with reference to the selection of the seat in ICSID Additional Facility
proceedings, F. Nitschke and K. Aït-El-Hadj, ‘Determining the Place of Arbitration in
ICSID Additional Facility Proceedings’ (2015) 30 ICSID Rev. 243, 253.
28
PT Garuda Indonesia v. Birgen Air (n. 26).

574 article 20: place o f arbitration
the applicability of a different arbitration statute. This change may have

undesirable consequences for the members of the tribunal, in terms not
only of practical inconvenience, but also of new and differing onerous
obligations arising from the arbitrator’s mandate. For this reason, when-
ever the parties agree to change the seat after the appointment of an
arbitrator, that arbitrator should be deemed free to resign, if he or she
considers it appropriate.29
2.2.2 Indirect Choice of Seat

The Model Law does not expressly consider the hypothesis of an indirect
agreement on the seat of arbitration, but there is little doubt that the
parties’ freedom of choice encompasses the possibility of devising a
mechanism for the selection of the seat. The parties, for instance, may
include in their pre-dispute agreement to arbitrate a ‘floating’ choice of
seat, providing, for example, that the proceedings will be seated in the
State where the respondent has its place of business. In this scenario, the
parties are not able to predict where the seat will be located because, at the
time the agreement is concluded, no dispute exists, and it is therefore
impossible to foresee which of the parties will be the respondent. There is
little doubt that article 20 allows this type of use of party autonomy;30
nevertheless, the parties should always use their autonomy in a cautious
way, so as to avoid the risk that the seat will ultimately be located in a
jurisdiction whose lex arbitri and courts are effectively unable to support
the arbitration in a satisfactory fashion.
Another way in which the parties may indirectly select the seat of
arbitration is by delegating a third party to make this determination.31
Mechanisms of this kind are not infrequent in arbitral practice: according
to article 18(1) of the 2017 ICC Rules, for instance, in the absence of an
29
Born (n. 25), pp. 2072–2073. For the same reasons, art. 16(1) of the 2014 LCIA Rules
requires that, if the parties select the seat after the formation of the tribunal, they must
obtain the prior written consent of the arbitrators.
30
In fact, locating the seat in the defendant’s home jurisdiction was proposed as a possible
default rule during the drafting of the Model Law, as illustrated above in section 1.
31
In an interesting Indian case, one of the parties attempted to challenge the selection of the
seat made by the third party designated in the agreement, arguing that such a determina-
tion amounted to an arbitral award and was therefore subject to setting-aside proceed-
ings. The Supreme Court of India rejected the challenge, but held that ‘an erroneous
decision on the question of venue, which ultimately affected the procedure that has been
followed in the arbitral proceeding’, may be invoked in the context of an annulment
action against the final award on the merits: Sanshin Chemicals Industry v. Oriental
Carbons and Chemicals Ltd (2001) 1 SCR 1101.

agreement of the parties, the place of arbitration is fixed by the admin-

istering institution. In other words, by agreeing to arbitration under the
ICC Rules, the parties give the institution the power to select the seat on
their behalf. The possibility of this type of delegation is not expressly
mentioned in article 20, but this circumstance should not cast any doubt
on the validity of a third-party determination of the seat, as the situation
at hand falls within the scope of article 2(d) of the Model Law. More
specifically, according to that provision, the disputants have the right to
authorise a third party (including an institution) to make a determina-
tion, whenever a provision of the Model Law leaves them free to deter-
mine a certain issue.32 In addition, the possibility of a third-party
determination of the seat was envisaged during the drafting of the
Model Law: according to the Analytical Commentary prepared by the
UNCITRAL Secretary-General, ‘[t]he parties may either themselves
determine [the] place or … authorize a third party, including an institu-
tion, to make that determination’.33
It may occasionally happen that the parties agree on a mechanism for
the selection of the seat, which cannot operate in practice. For instance,
the disputants may have entrusted the task of selecting the seat upon an
individual who later proved unable or unwilling to perform this function.
These circumstances generally have no consequence on the validity of the
agreement to arbitrate, and the seat (failing any further agreement of the
parties) will be selected by the tribunal, in accordance with the default
rule of article 20(1).
An interesting problem arises in situations where the parties have not
expressly agreed on the seat of arbitration, but the circumstances of the
case may suggest the existence of an implied choice. In a German case, for
instance, it was held that the parties had impliedly agreed to select
Germany as a seat, although the arbitration clause did not contain any
explicit provision to that effect.34 In particular, the German court relied
on the fact that the main contract was governed by German law, the place
of performance was Germany, the language of the contract was German,
its terms were specified by the ‘German Standard Terms for
Construction’ and the German Civil Code, and the price was expressed
in German currency. This line of reasoning fails to fully convince, as it is
32
The only exception to this rule is the selection of the rules applicable to the substance of
the dispute: see the commentary to art. 2.
33
34
CLOUT Case 439, Brandeburgisches Oberlandesgericht, 26 June 2000.

entirely based on substantive aspects of the relationship between the

parties, which do not necessarily have a decisive bearing on the law
governing the procedural aspects of the arbitration.35
In other cases where national courts have sometimes found an implied
choice of seat to exist, the parties had indicated a certain city as the
‘venue’ of the arbitration. The word ‘venue’ is ambiguous and open to
different interpretations. In principle, it could be read either as a syno-
nym of ‘seat’, or as a mere reference to the place where the tribunal
should meet and the arbitral proceedings should physically take place.
For this reason, it is unsurprising that not all national authorities adopt
the same approach in this respect. Some courts have held that the
selection of the ‘venue’ amounts to the identification of the arbitral seat
in the absence of any contrary indication,36 while other authorities have
concluded that the selection of the venue where the tribunal will meet
does not entail an implied choice of seat.37
2.2.3 Limitation of the Parties’ Freedom

Article 20 does not subject the parties’ freedom to select the seat of
arbitration to any specific limitation. In and of itself, however, this
circumstance is not sufficient ground to conclude that party autonomy
is subject to no limitation at all, as other sources of law may potentially
have an influence on the ambit of the parties’ discretion in the selection of
the seat. An important example, in this respect, is article 22(3) of the 1978
United Nations Convention on the Carriage of Goods by Sea (Hamburg
Rules). According to this article, the seat is fixed ‘at the option of the
35
From this point of view, the reasoning is at first sight partially akin to the one underlying
some judgments which extend the effect of choice of law clauses in the main contract to
the agreement to arbitrate: see e.g. Sulamérica Cia Nacional de Seguros SA and Others v.
Enesa Engenharia SA and Others [2012] EWCA Civ. 638; Arsanovia v. Cruz City (2012)
EWHC 3702 (Comm.). However, even leaving aside the doubts as to the compatibility of
the separability doctrine with such an expansive interpretation of choice of law clauses, it
is important to stress a difference between the aforementioned cases and the situation
where a choice of law clause is construed as an implied agreement on the seat of
arbitration. More specifically, while in cases like Sulamérica and Arsanovia, the extension
of the effects of the choice of law clause concerns two agreements between the parties (i.e.
the main contract and the agreement to arbitrate), in the case at hand a connection is
made between the law governing the main contract and the law governing the arbitral
procedure.
36
Enercon GmbH v. Enercon (India) Ltd (2012) EWHC 689 (Comm.), paras 56–59;
Shashoua v. Sharma [2009] EWHC 957 (Comm.), para. 34.
37
Oberlandesgericht München, 3 February 2010, (2010) SchiedsVZ 336. For a similar
problem, with reference to a clause ambiguously stating that ‘the arbitral shall be held
at Singapore’, see Pricol Ltd v. Johnson Controls Enterprise Ltd, 2014 WL 10246915.

claimant’ at the place where the principal place of business of the

defendant is situated, the place where the contract was made, the place
where the port of loading or discharge is located, or any place designated
for that purpose in the agreement to arbitrate. Undeniably, it is not easy
to reconcile the Hamburg Rules with article 20 of the Model Law, as the
former do not give the parties an unlimited power to select the seat and
crucially confer the right of selection upon the claimant, even in cases
where the parties had initially designated a seat in the arbitration
agreement.
As a matter of principle, provisions such as article 22 of the Hamburg
Rules prevail over article 20 of the Model Law, for at least two reasons.
First of all, article 1(1) of the Model Law expressly acknowledges that the
Law applies to international commercial arbitration ‘subject to any
agreement’ between the State enacting the Law and any other State or
States.38 Second, and more generally, the Model Law is best understood
as a piece of domestic legislation, despite its transnational origin; as such,
it generally cannot prevail over sources of public international law.39
2.3 ‘Failing Such Agreement’: Selection of the Seat by the Arbitral

Tribunal
An arbitration cannot take place without a seat.40 With no seat it would
be impossible to define which procedural law governs the arbitral pro-
ceedings, and which courts are competent to perform supporting func-
tions and entertain annulment actions against the award. Furthermore,
the seat gives the award its nationality, hence contributing to determining
whether and to what extent it can be recognised and enforced. For all of
these reasons, article 20 sets forth a default rule, applicable in cases where
the parties have failed to agree on the seat of arbitration. In this situation,
it will be up to the arbitral tribunal to make the determination. It is
important to highlight that the rule at hand operates only as a fall-back
mechanism; if the parties have indicated where the arbitral proceedings
38
The prevalence of the Hamburg Rules over the Model Law was also acknowledged during
the drafting of the latter: Report of the Secretary-General: Possible Features of the Model
Law on International Commercial Arbitration, UN Doc. A/CN.9/207 (14 May 1981),
para. 71.
39
Whether international law may be directly applicable by the national courts of a Model
Law jurisdiction is not a question that can be answered in general terms, as it depends on
whether or not that jurisdiction is a monist system.
40
Dubai Islamic Bank PJSC v. Paymentech Merchant Services Inc. (2001) 1 All ER (Comm.)
514; Angela Raguz v. Rebecca Sullivan (2000) NSWCA 240.

578 ar tic l e 20: p l ac e of ar bit ra tion
should be seated, the tribunal is bound by this indication and has no

power to decide that the seat of arbitration will be located elsewhere.41
2.3.1 Mode of Selection of the Seat by the Tribunal

To understand the meaning of the rule at hand, it is first of all necessary
to consider how tribunals proceed to select the seat in practice. Article 20
(1) gives arbitrators the power to fix the seat in the absence of an
agreement of the parties and indicates the criteria that should guide the
tribunal’s decision in this respect.42 The provision, however, does not
contain specifications as to how the tribunal should reach a decision on
the seat of arbitration and communicate such a decision to the parties.
Given the absence of relevant indications in article 20, tribunals can find
guidance in article 29 of the Model Law, which regulates decision-making
activities in a panel composed of more than one arbitrator. As a general
rule, article 29 requires that any decision of the arbitral tribunal be made
by a majority of its members, unless the parties have agreed otherwise.
However, an exception is made for ‘questions of procedure’, which can be
decided by the presiding arbitrator if so authorised by the parties or by all
of the members of the tribunal. The question arises, hence, whether the
selection of the seat falls within the scope of the notion of ‘questions of
procedure’, and hence whether the decision may be made by the presid-
ing arbitrator alone.
The selection of the seat may apparently seem like a quintessentially
procedural question. After all, it is the seat that determines the lex arbitri
governing the arbitration, which in turn is distinct from the lex causae
regulating the substance of the relationship between the parties. Upon
closer scrutiny, however, the relevance of the seat is not limited to the
arbitral proceedings. As already noted, the determination of the seat has
important consequences concerning the annulment, recognition and
enforcement of the award. For this reason, it would not be correct to
allow the presiding arbitrator to choose the seat without having obtained
the consent of at least the majority of the tribunal. In addition, the
distinction that article 29 draws between ‘questions of procedure’ and
other decisions should be read in light of the differing importance that is
typically attached to these two categories. In order to ensure that an
arbitration runs smoothly, numerous procedural decisions must be
41
Shin Satellite Public Co. Ltd v. Jain Studios Ltd (2006) 2 SCC 628; Delhi High Court,
Jagson Airlines Ltd v. Bannari Amman Exports (P) Ltd (2003) 2 Arb. LR 315.
42
See below, sections 2.3.2 and 2.3.3.

made. Article 29, hence, allows the presiding arbitrator to make these
decisions alone (once authorised to do so), in order to avoid delays
arising out of the need to issue a majority decision every time a practical
procedural question needs to be answered. In a nutshell, the ‘questions of
procedure’ to which article 29 refers are generally perceived as less crucial
and potentially contentious than the ones requiring a majority decision.43
In light of this basic rationale, it would not be correct to allow the
presiding arbitrator to determine the seat autonomously, considering
the crucial importance of the latter in arbitration.44
Cognisant of the importance of the choice concerning the seat, some
sets of arbitration rules elicit a certain involvement of the parties even
when the seat is not selected by them. For instance, pursuant to article
23(1)(f) of the 2017 ICC Rules, the terms of reference should include
an indication of the seat of arbitration, and they should be signed by
the parties according to paragraph 2 of the same article. Pursuant to
article 16(2) of the 2014 LCIA Rules, when the tribunal determines the
seat, it must give the parties a reasonable opportunity to make written
comments.
2.3.2 Circumstances of the Case: Relevant Factors

When the determination of the seat must be made by the tribunal, the
Model Law specifies that the arbitrators must have regard to the ‘circum-
stances of the case’. This broad wording encompasses a wide range of
potential criteria that should guide the tribunal in the identification of the
appropriate seat of arbitration. The preparatory works of the Model
Law45 and the UNCITRAL Notes on Organizing Arbitral Proceedings46
offer useful guidance as to what these criteria may be in practice, as the
subsections below illustrate.
43
P. Sanders, ‘Commentary on UNCITRAL Arbitration Rules’ in P. Sanders (ed.), Yearbook
Commercial Arbitration (ICCA, 1977), vol. II, pp. 172, 194.
44
On occasion of the revision of the UNCITRAL Arbitration Rules, it was proposed to
introduce an explicit requirement that the tribunal’s decision as to the seat of arbitration
be taken by majority: J. Paulsson and G. Petrochilos, ‘Revision of the UNCITRAL
Arbitration Rules’, Report to the UNCITRAL Secretariat, p. 80, www.uncitral.org/pdf/
english/news/arbrules_report.pdf. While the proposal was not finally adopted, it does
demonstrate the existence of a widespread feeling in arbitral practice as to the importance
of the decision concerning the location of the seat of arbitration. See also Caron and
Caplan (n. 17), pp. 91–92.
45
UN Doc. A/40/17 (n. 6), para. 179.
46
UNCITRAL Notes on Organizing Arbitral Proceedings (2016), pp. 11–13, www.uncitral
.org/pdf/english/texts/arbitration/arb-notes/arb-notes-2016-e.pdf.

580 a r t i c l e 20 : p l a c e of ar b i tr a t i o n
2.3.2.1 Suitability of the Lex Arbitri and Local Courts Evaluating the
suitability of the law at the seat of arbitration is a potentially delicate
exercise. On the one hand, the relevance of the lex arbitri may vary,
depending on whether the arbitration is governed by a set of rules
regulating the procedure in detail. In this case, the applicability of
many provisions of the lex arbitri could be ruled out, and the arbitration
may hence be perceived as partially detached and screened from the
peculiarities of the national arbitration statute. On the other hand, how-
ever, the arbitration is unavoidably influenced by the law of the jurisdic-
tion where it is seated, for at least three reasons.
First, not all of the provisions of the law of the seat can be derogated by
agreement. An unsuitable national legislation, hence, may contain man-
datory provisions that make it difficult or even impossible for the tribunal
to provide the parties with the procedure they agreed on.47 In some
situations, the same dispute may even be regarded as arbitrable in some
national legal systems, and not arbitrable in others; it is therefore parti-
cularly important for the tribunal to select a seat whose law does not
prevent the parties from using arbitration altogether.48
Second, the lex arbitri governs not only the arbitration, but also the
ancillary proceedings before national courts (such as, for instance, those
concerning the appointment and substitution of an arbitrator) and, most
importantly, setting-aside actions against the award. The tribunal, hence,
should avoid choosing a seat if the local arbitration statute and courts do
not support the proceedings adequately,49 or if the lex arbitri contains
provisions on whose grounds a future award may be annulled. Needless
to say, this last factor is not always foreseeable, since the tribunal selects
the seat at a moment when it is impossible to predict what the contents of
the award will be, or which grounds of annulment may be invoked by the
unsuccessful party. Nonetheless, knowledge of the national case law
concerning setting-aside actions may help the tribunal avoid potentially
problematic seats. If, for example, the parties have relied on the ‘group of
companies’ doctrine in their initial statements, the tribunal should take
47
Some national legal systems, for instance, still contain mandatory rules preventing the
tribunal from granting interim relief. If the lex arbitri contains such a prohibition, the
arbitration rules empowering the arbitrators to issue interim measures (such as art. 28 of
the 2017 ICC Rules) may be impossible to apply: see the commentary to art. 17 of the
Model Law.
48
Caron and Caplan (n. 17), p. 82.
49
UNCITRAL Notes (n. 46), p. 12 expressly state that the tribunal should consider not only
the ‘law’ and ‘jurisprudence’ of the seat, but also the ‘practices at the place of arbitration’.

into account the circumstance that such doctrine has received different
treatment depending on the jurisdiction.50
Third, the law of the seat may impose qualification requirements for
arbitrators and counsel. This aspect may be particularly problematic in
international cases, where arbitrators and counsel routinely come from
different jurisdictions and therefore normally possess different qualifica-
tions. In arbitration-friendly jurisdictions, no (or minimal) qualifications
are required, thus making it possible for practitioners with different
national backgrounds to take part in the proceedings. Nevertheless, the
tribunal should undoubtedly pay attention to this aspect when choosing
the seat.
2.3.2.2 Existence of Treaties on the Enforcement of Arbitral Awards

Any prognostic evaluation on the enforceability of the future award
hinges on the location of the parties’ assets. As already mentioned, the
circumstance that the State where the seat is located is a party to the New
York Convention may be relevant, in cases where the different States
where recognition is sought have made a reciprocity reservation under
article I(3).51 Apart from the New York Convention, recognition and
enforcement may be governed by other multilateral or bilateral treaties.
In this context, it may once again be relevant whether the State where the
seat is located is a party to the relevant treaty. Nevertheless, it must be
acknowledged that it is not always possible to foresee where the award
will need to be enforced, not only because the tribunal selects the seat at a
moment when it is impossible to predict which of the parties will prevail
on the merits, but also because the location of the parties’ assets may be
subject to change over time.
2.3.2.3 Practical Considerations The UNCITRAL Notes suggest

that, in selecting the seat, the tribunal should have regard to practical
aspects, which may be crucial in order to ensure the efficiency of the
arbitration.52 The Notes refer, in particular, to ‘the convenience of the
location for the parties and the arbitrators, including travel to the
50
See e.g. Dow Chemical France, The Dow Chemical Co. and Others v. ISOVER Saint
Gobain, Interim Award, ICC Case No. 4131, 23 September 1982, in P. Sanders (ed.),
Yearbook Commercial Arbitration (ICCA, 1984), vol. IX, p. 131, confirmed by French
courts; Peterson Farms Inc. v. C&M Farming Ltd [2004] 1 Lloyd’s Rep. 603 (QB).
51
See above (nn. 7, 22).
52
See above (n. 44), para. 30.

582 article 20: place of arbitration
location’, ‘the location of the subject matter in dispute and proximity of

evidence’ and the ‘availability and costs of support services’.
Considerations based on the geographical location of the seat (such as
travel costs, logistics and visa requirements) are clearly relevant if the
parties and the tribunal plan to conduct hearings at the place where the
arbitration is seated. However, pursuant to paragraph 2 of article 20, this
is not necessarily the case, since all of the hearings may potentially be held
at a place other than the seat. The question arises, then, whether ‘geo-
graphical’ factors may be disregarded in cases where it has been agreed
that the hearings will be held outside of the seat. The best view is that,
under such circumstances, the physical location of the seat may be less
crucial, but still remains relevant. Even if the arbitral proceedings take
place outside of the seat, it cannot be excluded that the parties may need
to seise the national courts at the seat of arbitration (e.g. for the purposes
of obtaining the appointment or the removal of an arbitrator, or request-
ing the annulment of the award). If the courts having jurisdiction to
perform these functions are geographically far from the parties, this
could generate significant costs and ultimately hinder the efficiency of
the dispute resolution procedure. Furthermore, the parties need to retain
a local counsel, qualified to assist them in the aforementioned ancillary
and/or setting-aside court proceedings; for this reason, they would face
significant practical complications if the seat was located in a remote
jurisdiction with which they have no familiarity.
The factor of proximity between the seat and the evidence relevant to
the dispute raises some interesting issues. The taking of evidence can
sometimes only be conducted at certain locations, for various reasons.
As far as the examination of witnesses is concerned, the place where the
evidentiary hearings take place may be crucial, because it may not be
possible for all witnesses to reach some locations in the world for merely
logistical and/or legal reasons.53 As for the inspection of sites and
immovable property, needless to say, the taking of evidence must
necessarily take place at the location where the items to be inspected
are situated. In principle, these geographical constraints do not entail
the need to fix the seat of arbitration in the place where the evidence is
located, as paragraph 2 of article 20 explicitly authorises the tribunal to
carry out evidence-taking activities outside of the seat. However, when
53
A witness, for instance, may be unable to obtain a visa to access the State where the
hearings take place. Alternatively, there may be cases where the witness refuses to attend a
hearing located in a jurisdiction where criminal proceedings against him or her are
pending.

selecting the seat, the arbitrators should take it into account that they
may need the support of local courts in the taking of evidence (for
instance, in cases where a witness refuses to appear voluntarily at the
request of one of the parties).54 From this point of view, the location of
the seat may be relevant, as it can contribute to determining whether
national courts have jurisdiction to assist the arbitral tribunal in obtain-
ing the necessary piece of evidence.55
2.3.3 Reference to the Convenience of the Parties

Article 20 specifies that the circumstances of the case relevant for the
purposes of the choice of the seat include ‘the convenience of the parties’.
As illustrated above, this specification was inserted in the Model Law to
mitigate the risk that parties from developing countries would be at a
disadvantage when entering into an agreement to arbitrate with a coun-
terpart from a developed economy that may be geographically closer to
renowned arbitral seats.56 In the current practice of arbitration, however,
the convenience of the parties is best understood not in terms of physical
proximity, but rather in light of the need to strike an adequate balance
among multiple and potentially conflicting needs and interests.
In principle, there is no conflict between the criterion of the conve-
nience of the parties and the other factors encompassed within the notion
of the ‘circumstances of the case’; to the contrary, it is meant to maximise
the convenience of the parties that the tribunal should have regard to the
suitability of the lex arbitri, the prospective enforceability of the award
and the other considerations relevant according to article 20. The
54
Pursuant to art. 27 of the Model Law, the arbitral tribunal or a party with the approval of
the arbitral tribunal may request assistance in the taking of evidence from a competent
court at the seat. In this case, art. 27 specifies that the court ‘may execute the request
within its competence and according to its rules on taking evidence’. In practice, if the
evidence is located outside of the State where the arbitration is seated, the court at the seat
may find that the request for assistance is not ‘within its competence’. See also art. 4(9) of
the IBA Rules on the Taking of Evidence in International Arbitration. As an alternative to
the involvement of national courts, it may in some cases be possible for the tribunal to
draw inferences from a refusal to take part in the hearing.
55
Even in the European Union, where a high degree of mutual trust is required of the
member States, the possibility for a national court to take evidence in the territory of
another member State without the authorisation of the local judicial authorities is limited
to the cases where no forms of coercion are necessary for the evidence to be recorded/
acquired: Case C-332/11, ProRail BV v. Xpedys NV and Others, ECLI:EU:C:2013:87.
Therefore, authorisation and assistance of the national courts of the place where the
evidence is located are all the more likely to be necessary, when the evidence is necessary
for the purposes of arbitral proceedings.
56
See above (n. 5).

584 article 2 0: place o f arbitration
problem is, rather, that the disputing parties may disagree as to whether
certain features make a given jurisdiction a desirable seat for the arbitra-
tion. Such disagreements are particularly likely to exist when the parties
have failed to reach a consensus on the seat and the tribunal is therefore
required to make the determination. By requiring the tribunal to consider
the convenience of the parties, hence, the provision at hand invites the
arbitrators to take these different demands into account, in order to
ensure the equality of treatment of the disputants.57
To be sure, not all factors that should be considered in the determina-
tion of the seat are necessarily controversial. It can hardly be disputed, for
instance, that the arbitral proceedings should be seated in a jurisdiction
whose statute provides an efficient mechanism for the appointment of
arbitrators, where necessary. In other words, some basic criteria aimed at
ensuring the efficiency of the arbitration can hardly be disputed, and no
party has valid grounds to require the arbitration to be dysfunctional or
difficult to conduct. However, in other situations, the parties may put
forth meritorious but conflicting observations concerning the seat. For
instance, in an arbitration between party Alpha and party Beta, fixing the
seat in State X may facilitate the enforcement of the future award against
Alpha but not Beta, while choosing State Y may make it easy to enforce
the award against Beta but not Alpha, depending on the contents of the
international agreements into which the two States have entered. In such
a situation, each of the parties will understandably try to maximise the
perspectives of enforcement in its favour, leaving the tribunal with the
difficult task of finding an adequate solution.
When selecting the seat of the arbitration, an arbitral tribunal can
effectively demonstrate its attention to the convenience of the parties by
adhering to two overarching values: collegiality and neutrality. From the
first point of view, it is important that the arbitrators involve the parties
in the discussion leading to the choice of the seat, affording each of them
an opportunity to put forth observations. As already noted, the involve-
ment of the parties is not only a ‘best practice’ to be followed in any
arbitration, but a necessary procedural step required by many sets of
arbitral rules.58 In a nutshell, it is more difficult for the arbitrators to
57
From this point of view, the reference to the convenience of the parties may be seen as a
specification of the more general principle of equality between the parties underlying the
Model Law: see also the commentary to art. 17.
58
See above, section 2.3.1. For the same reasons, it is also crucial that the decision be taken
by at least a majority of the members, when the tribunal comprises more than one
arbitrator.

argue that they have duly considered the convenience of the parties, if the
latter have not been given the chance to express their views. From the
second point of view, the tribunal should balance potentially conflicting
conveniences of the parties by fixing the seat in a neutral jurisdiction, i.e.
in a national legal system whose features are not perceived as favouring
either of the parties. This overarching criterion of neutrality requires, at
the bare minimum, that the seat should normally be located in a jurisdic-
tion other than the home States of the parties. In the example above, a
solution for the tribunal may be to select not X nor Y, but a third
jurisdiction that places the disputants on an equal footing.
2.3.4 Tribunal’s Failure to Determine the Seat of Arbitration

Problems may arise in cases where both the parties and the tribunal fail to
determine the seat. Unlike other provisions of the Model Law, which give
the competent court at the seat of arbitration the residual power to made
particular determinations,59 article 20 does not give national courts any
power in this respect.60 This, however, does not mean that the arbitration
can remain without a seat, ‘floating’ above national jurisdictions. From
the point of view of national law, an arbitration can either be seated in the
State of the seat or qualify as ‘foreign’.61 The question arises, hence, as to
which authority is entitled to ascertain where the seat of arbitration is
located, in cases where the parties and the tribunal have not made a
determination in this respect.
In order to answer this question, it is necessary to consider those
practical situations where doubts as to the location of the seat may
arise. Whenever the parties and/or the tribunal require the support of a
59
See e.g. arts 11(3)(a), 19(2), 22(1), 23(1), 24(1), 25 and 26.
60
The absence of a rule delegating the power to select the seat to national courts is under-
standable, because this type of ‘double fall-back’ mechanism (tribunal’s determination
failing any agreement of the parties’ and, as a subsidiary solution, court intervention
failing any determination by the tribunal) would generate a circular and ultimately
unworkable system. In other words, if the tasks of supporting the arbitration and making
supplementary determinations are entrusted upon the juge d’appui at the seat, it is
impossible to confer any such function upon the national judge before its territorial
jurisdiction has been determined.
61
Even in those jurisdictions adhering to the view that international arbitration does not
form part of any national legal systems, but belongs to a transnational arbitral legal order,
courts will refer to the location of the seat as a criterion to determine the applicability of
the lex arbitri and hence, among other things, the availability of annulment proceedings
against the award. See, with reference to the French approach to the existence of an
arbitral legal order, E. Gaillard, Aspects philosophiques du droit de l’arbitrage international
(Brill, 2008).

national court to overcome a stalemate in the arbitration, they necessarily

need to identify the seat of arbitration, in order to ensure that the national
court they request assistance from enjoys jurisdiction.62 This basic obser-
vation implies that, a contrario, whenever both the parties and the
tribunal have remained silent on the seat throughout the arbitral pro-
ceedings, it must have been possible for them to conduct the arbitration
without any support coming from the national court at the seat. This in
turn entails that, in the situation at hand, doubts concerning the location
of the seat are raised not within the arbitral proceedings, but before a
national court seised in connection with the arbitration – for instance,
with a request to set the award aside. More specifically, once the appar-
ently ‘seat-less’ arbitration has come to an end, the unsuccessful party
may attempt to have the award annulled before a national court. In this
context, an objection is likely to be raised concerning the jurisdiction of
the court, given that the location of the seat of arbitration was not clear.
Thus, it will be ultimately up to the national court to ascertain where the
arbitration is seated, in order to determine its own jurisdiction over the
annulment action.63
Despite the fact that national courts may sometimes be required to
determine the location of the seat of arbitration, this does not mean that
they have a power of discretionary choice. The power of State courts in
this respect is not comparable to the power article 20 of the Model Law
gives the arbitral tribunal. While the arbitrators can fix the seat of
arbitration, essentially making a selection on behalf of the parties, State
courts can at best ascertain ex post where the seat is located on the basis of
the circumstances of the case and the connection of the arbitral proceed-
ings with a certain national legal system.64 In other words, while accord-
ing to article 20 the tribunal selects the seat, national courts can do no
more than second-guessing where the parties and/or the tribunal deemed
62
This was the case in Charlbury McCouat Intl Ltd v. PG Foils Ltd (2010) 2 CLC 181, where a
party to an arbitration agreement (which did not specify the seat of arbitration) sought the
support of an English court for the constitution of the arbitral tribunal. The court held
that it was appropriate to exercise jurisdiction, since the contractual relationship between
the parties was closely linked with England.
63
C v. D (2007) 2 CLC 930.
64
This approach has been recently adopted in a Dutch case: Dutch Court of Cassation,
Nelux Holdings Intl NV and Lawton Corp. NV, 31 March 2017, ECLI:NL:HR:2017:555,
para. 3.5.4; see also the Advocate General’s conclusions in the same case, ECLI:NL:
PHR:2017:35, paras 2.23–2.27. While the Netherlands have not adopted the Model
Law, the same line of reasoning should also in principle be followed by national courts
in Model Law jurisdictions.

the seat to be located, even if they never made their choice explicit.65 Such
an ascertainment will be relevant for the purposes of determining
whether the seised national court has jurisdiction, but (unlike the deter-
mination made by the arbitrators pursuant to article 20) will not neces-
sarily be relevant in other proceedings. If, for instance, the same award is
challenged before the courts of two different States, the assessment of the
location of the seat made by the courts of one State (for the purposes of
the determination of its own jurisdiction) will not automatically have an
influence on the analysis carried out by the courts of the other State.66
3. Paragraph 2
The second paragraph of article 20 concerns the geographical location
where the tribunal’s meetings and the hearings of the arbitration take
place. The basic purpose of this paragraph is to highlight how this
geographical location does not always coincide with the ‘place of arbitra-
tion’ relevant for the purposes of paragraph 1. In sum, the tribunal is
normally free to meet and conduct hearings wherever it deems appro-
priate, irrespective of where the arbitral proceedings are legally seated.
3.1 ‘Unless Otherwise Agreed by the Parties’: Role of Party Autonomy

Interestingly, the two paragraphs of article 20 depict the relationship
between party autonomy and arbitral powers in slightly different terms.
As illustrated above,67 according to paragraph 1, party autonomy prevails
in the selection of the juridical seat of arbitration, while the tribunal only
has the subsidiary power to make a determination if the parties failed to
reach an agreement. Pursuant to paragraph 2, instead, the tribunal is
generally free to make any determination concerning the physical loca-
tion of meetings and hearings, and the possibility that the parties reach an
agreement to restrict this freedom is presented as an exception to the
general rule.68 Although this discrepancy in wording does not take away
65
For an example of such an attempt to identify the seat, see Dubai Islamic Bank PJSC
(n. 40).
66
In some cases, however, common law courts have afforded comity to foreign courts, in
order to avoid irreconcilable decisions as to the location of the seat of arbitration: see
Enercon (n. 36).
67
68
In practice, the parties are unlikely to agree on a general limitation of the tribunal’s
autonomy to determine the place where meetings and hearings will be held (e.g. provid-
ing in the arbitration agreement that all procedural activities must necessarily take place

the fact that the parties are ultimately able to impose their choice con-
cerning both the juridical seat and the geographical location of the
arbitration, the different wording of the two paragraphs of article 20
are symptomatic of the Model Law’s divergent approaches to the two
notions at hand. On the one hand, the determination of the seat is seen as
a choice of fundamental importance in the arbitration and for this reason
the Model Law expects the parties to reach an agreement in this respect.69
On the other hand, the choice of the locations for hearings and meetings
is mainly regarded as a practical matter that the arbitrators should
normally be able to determine as one aspect of their general power to
govern and organise the proceedings.
Despite the fact that the physical location of meetings and hearings
does not entail the same crucial legal consequences as the juridical seat of
arbitration, choosing where hearings and meetings will materially take
place remains a significant and potentially delicate choice. The tribunal,
hence, should once again adhere to the criterion of collegiality when
making determinations in this respect. Consultation with the parties
should always take place, and the arbitrators should obtain the parties’
consent whenever possible. To this end, it is important that the tribunal
highlight the elements of the case justifying a proposal to hold meetings
and hearings at a given location. Against this background, the disputants
should be given the chance to put forth comments and/or alternative
proposals. In order to facilitate this type of collegial decision, many
arbitral institutions require that the tribunal organise pre-hearing con-
ferences with the parties, in order to discuss and agree on arrangements
for the hearings.70
Even in the absence of any party agreement limiting the tribunal’s
autonomy, the arbitrators’ discretion in the selection of the location of
hearings and meetings is not entirely unconstrained. Namely, by provid-
ing that the tribunal may meet at ‘any place it considers appropriate’,
paragraph 2 indicates appropriateness as a criterion guiding the arbitra-
tors’ choice. The tribunal, hence, is required to justify its choice and
at the location where the arbitration has its juridical seat). More realistically, the parties
may reach an agreement in cases where the tribunal proposes to hold a hearing or a
meeting at a certain location and all of the disputants unanimously reject this proposal. It
is also in order to avoid this type of situation that the arbitrators should strive for a high
degree of collegiality in the selection of the location where meetings and hearings will take
place.
69
Other similarly important choices concern, for example, the composition of the tribunal:
see arts 10 and 11.
70
See e.g. in the 2017 ICC Rules, ‘Appendix IV: Case Management Techniques’.

3 . p ar agr ap h 2 589
indicate why a given location is appropriate. The choice of a manifestly

inappropriate location may, in exceptional circumstances, endanger the
parties’ ability to present their case in accordance with article 18 of the
Model Law, even opening the way for annulment actions,71 or refusals of
recognition and enforcement of the award.72
The UNCITRAL Analytical Commentary on the Model Law indicates
two examples of factors that may in practice influence the tribunal’s
evaluation of appropriateness. First, according to the Commentary, the
tribunal should take into account the ‘convenience of the parties
involved’ and the ‘costs of the arbitration’.73 Hence, the arbitrators
may, for instance, decide to hold a hearing in a place other than the
seat when most of the witnesses to be examined reside there, and it would
be inconvenient for them and for the parties to travel to the seat for the
sole purpose of holding the evidentiary hearing. Second, the tribunal may
use its power to determine the location of hearings and meetings to
‘balance the parties’ own expenses by scheduling some of the meetings
at the place of one party and some of the meetings at the place of the other
party’.74 The criterion of appropriateness, hence, encompasses both
considerations grounded in procedural economy and efficiency, and
the need to guarantee the equality of treatment of the disputing parties.
3.2 Activities That the Tribunal Can Carry Out Outside of the Seat
The drafters of the Model Law worded paragraph 2 in a broad fashion, in
order to encompass all activities (consultations among arbitrators; hear-
ing of witnesses, experts or parties; inspection of goods, other property or
documents) that may be necessary throughout the development of the
arbitral proceedings.75 The tribunal, hence, may meet outside of the seat
of arbitration not only when practical circumstances connected to the
taking of evidence suggest the desirability of doing so, but also for non-
evidentiary hearings or meetings among the arbitrators.76 In brief, article
71
See in particular art. 34(2)(a)(ii) and (2)(b)(ii) of the Model Law.
72
See in particular arts V(1)(b) and V(2)(b) of the New York Convention.
73
UN Doc. A/CN.9/264 (n. 33), 49.
74
Ibid.
75
See above (nn. 14–15).
76
In practice, it is not infrequent for the arbitrators to meet shortly before the commence-
ment or after the conclusion of a hearing, so as to limit logistical inconveniences and
ensure that the members of the tribunal discuss the case at a time when the details of the
case are still fresh in their memory.

590 a r t i c l e 20 : pl a c e of a r b i tr a t i o n
20(2) never prevents the tribunal from conducting any kind of proce-
dural activity in a place other than the territory of the juridical seat of
arbitration; the only limitation in this respect may derive from the
agreement of the parties.
As already illustrated,77 the fact that the making of the award is not
mentioned in article 20(2) does not mean that the arbitrators must be
physically present at the seat when they draft the award, as article 31(3)
specifies that the award must in any event be deemed to have been made
at the seat. In practice, the arbitrators may not meet in person at all
during this phase: discussions on the contents of the decision and draft-
ing may be conducted via email, telephone, file-sharing, videoconferen-
cing or other long-distance communication techniques.
77
See above (n. 15).

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.
1. Background and Introduction

The first question faced by a party wishing to start an arbitration is how to
commence the proceedings in practice.1 Article 21 determines the time of
commencement of the arbitral proceedings.2 Although the time of com-
mencement is not used as a point of reference in any other part of the
Model Law, it can have legal consequences in the relevant jurisdiction,
such as the cessation of any time limitation or expiration periods.3
Virtually all legal systems recognise the negation of rights due to the
passage of time,4 and an arbitral tribunal may be confronted with the
question of determining the appropriate time limitation regime for a
claim arising from an international commercial contract.5
Although limitation or expiration periods are often qualified as substan-
tive (rather than procedural) issues, a clear indication of the commencement
1
J. M. Townsend, ‘The Initiation of Arbitration Proceedings: “My Story Had Been Longer”’
(1998) ICSID Rev. 21, 21.
2
UN Commission on International Trade Law, UNCITRAL Model Law on International
Commercial Arbitration 1985: With Amendments as Adopted in 2006 (United Nations,
2008).
3
Arbitration: Report of the Secretary-General, UN Doc. A/CN.9/264 (25 March 1985),
art. 21, para. 1.
4
I. Schwenzer and S. Manner, ‘The Claim Is “Time-Barred”: The Proper Limitation Regime
for International Sales Contracts in International Commercial Arbitration’ (2007) 23 Arb.
Intl 293, 293–294.
5
Ibid.
591

592 article 2 1: commencement of arbitral p roceedings
of the proceedings was still deemed desirable, thus leading to the enactment
of article 21 of the Model Law.6
Article 21 sets forth a default rule, but also affords the parties a great
margin of autonomy in determining a different moment of commence-
ment of the proceedings.7 Therefore, any problematic interactions
between time limitations or other expiration periods under the relevant
applicable law and the Model Law should be minimised.8
Article 21 was not amended in 2006.9
The legal consequences of the commencement of arbitral proceedings,
such as the interruption of any limitation periods under domestic law,
were pointed out during the drafting stage of the Model Law.10 It was
thus initially proposed that the impact of arbitral proceedings on such
limitation periods should be regulated, in the hope of regularising the
impact of commencing arbitral proceedings under a variety of different
laws.11 This proposal, however, was met with opposition from those who
took the view that to include such regulations under the Model Law
would depart from its role as a legal framework for international com-
mercial arbitral procedure. It was argued that a clearly indicative rule
defining the point in time at which arbitral proceedings were considered
or deemed to have commenced would suffice, which ultimately gave rise
to the enactment of article 21.12 During the drafting process, disagree-
ments over what provisions should be included in article 21 were mainly
concerned with: (1) its effects on prescribed periods under different
jurisdictions; and (2) the issue of arbitrations governed by various arbi-
tral institutions and the deemed time of commencement under the rules
of those institutions potentially conflicting with the pertinent article in
the Model Law.13
6
7
8
The date of commencement is not mentioned in any other article of the Model Law.
9
‘2012 Digest of Case Law’ (n. 7), p. 105.
10
UN Doc. A/CN.9/233 (n. 6), para. 21.
11
Ibid., para. 21.
12
Ibid., para. 22.
13
H. Holtzmann and J. Neuhaus, A Guide to The UNCITRAL Model Law on International
Commercial Arbitration: Legislative History and Commentary (Kluwer, 1989), pp.
610–613.

2. tr ava ux p r é paratoires 593
It had been proposed that the commencement of arbitral proceedings,

just as court proceedings, should have the effect of interrupting or
ceasing any relevant limitation periods under the laws of the jurisdiction
in which the arbitration had commenced.14 It was specifically suggested
that:
(1) A request for the dispute to be referred to arbitration filed with
arbitrators or with a permanent arbitral institution has the same
legal effects as if a request in this matter were filed with a court.
(2) Where the arbitral tribunal rules that it has no jurisdiction or where
the award is set aside, and the party thereon files a new request with a
court within thirty days following the receipt of the ruling rejecting
the jurisdiction or the receipt of the judgment setting aside the
award, neither limitation nor extinction of his claim by lapse of
time may be pleaded against him.15
The promotion of uniformity won the support of some delegates, as this
proposal sought to establish a unified rule on prescription and was in
accordance with the purpose of the Model Law.16 However, some dele-
gates were concerned that the proposed rule would involve changes in
national statutory limitations, which fell outside the scope of the Model
Law.17 This proposal was eventually discarded due to the fact that
UNCITRAL lacked sufficient information on the differences between
national legal systems on this issue, and further study would be required
before a unified rule could be made.18 In that context, it was observed that
limitation matters are regarded in many systems as substantive law
issues.19
Furthermore, it was proposed that the actual point of commencement
of arbitral proceedings, if governed by institutional rules, should coincide
with the receipt of a request by which to refer a dispute to institutional
arbitration.20 This proposal, however, was also discarded due to the
inherent differences between the arbitration rules adopted by various
14
CN.9/263 (19 March 1985), art. 21, para. 2.
15
Ibid.
16
Summary Records of the 321st Meeting, UN Doc. A/CN.9/SR.321, paras 29–67.
17
Ibid.
18
19
Ibid.
20

594 a r t i c l e 21: co mmenc emen t of a rb itral p roc eed ings
institutions, as well as because it was viewed as unnecessary in the sense

that the parties could derogate from article 21 through a contrary agree-
ment that incorporated their agreed arbitral rules.21
As a result, the regulation of the legal implications or consequences of
the commencement of arbitral proceedings was left entirely to the realm
of domestic legislation. The inherent differences, reconcilable or not,
between legal systems, and the need for a uniform legal framework,
instead served to shape article 21 of the Model Law.
It should be noted that article 21 should not be read in isolation. It
must be construed together with other relevant provisions. This is illu-
strated by the concept of ‘receipt’. Article 21 of the Model Law is silent on
the definition of ‘receipt’, and the legal definition of this word may vary
across different jurisdictions. Article 2(e) in the 1985 version of the
Model Law, or article 3(1)(a) in the 2006 version, can, therefore, shed
light on the interpretation of the use of the term ‘receipt’ as this is used in
article 21,22 particularly article 3, whose elaboration is rather exhaustive.
While the word ‘request’ is used in article 21 of the Model Law,
differing nomenclature is often used in respect of the relevant documents
or instruments used to commence arbitral proceedings, depending on
the set of institutional rules governing the arbitral proceedings in ques-
tion.23 For instance, it is referred to as ‘request for arbitration’ under the
International Chambers of Commerce (ICC) Rules, and as a ‘request’
under the International Centre for Settlement of Investment Disputes
(ICSID) Rules.24 Under the American Arbitration Association (AAA)
Rules, the claimant is required to file with the Institution a ‘demand for
arbitration’.25 Under article 3(1) of the UNCITRAL Arbitration Rules,26
a ‘notice of arbitration’, with the requisite content, has to be commu-
nicated to the respondent.27
21
UN Doc. A/40/17 (n. 18), para. 187.
22
UN Doc. A/CN.9/264 (n. 3) art. 21, para. 2.
23
See Townsend (n. 1), p. 22.
24
Ibid. See International Chamber of Commerce, Arbitration Rules/Mediation Rules
(December 2017), art. 4(1); Rules of Procedure for Arbitration Proceedings
(Arbitration Rules) of the International Centre for Settlement of Investment Disputes,
Chapter 1, rule 1(1).
25
AAA, Commercial Arbitration Rules and Mediation Procedures (Rules Amended and
Effective 1 October 2013), rule R-4.
26
UNCITRAL Arbitration Rules (with New Article 1, Paragraph 4, as Adopted in 2013)
(United Nations, 2014).
27
Ibid.

Article 21 of the Model Law was modelled on article 3 of the

UNCITRAL Arbitration Rules.28 The Rules use the words ‘notice of
arbitration’ instead of ‘request for arbitration’, although this change is
intended to be purely cosmetic.29 It should be noted that article 3 of the
UNCITRAL Arbitration Rules is more precise, in the sense that it pro-
vides a list of possible forms of ‘notice(s) of arbitration’. The Arbitration
Rules require that a notice of arbitration should include, inter alia, the
names and contact details of the parties. The absence of such details
under article 21 of the Model Law may be explained by the fact that the
Model Law and the Arbitration Rules serve two different purposes. The
Model Law seeks to provide the legal framework for arbitration in
the adopting jurisdictions.30 Party autonomy is a significant underlying
theme of the Model Law and thus, by imposing minimum requirements
and providing a default position, the Model Law promises the parties a
high degree of autonomy in determining the specific time at which the
arbitral proceedings are deemed to have commenced. In contrast, the
UNCITRAL Arbitration Rules serve as an extension of the arbitration
agreement between the parties and, as a result, procedural matters are
attempted to be addressed in as much detail as reasonably possible.31
In this regard, it is worth noting that rather than ‘notice’, the term
‘request for arbitration’ is adopted by article 4(1) of the ICC Rules of
Arbitration32 and article 1 of the London Court of International
Arbitration (LCIA) Arbitration Rules.33
In the third draft of the Model Law, the wording ‘provided that such a
request [sufficiently] identifies the claim’ was included at the end of
article 21.34 This additional wording was later deleted as the Working
28
Third Session, UN Doc. A/CN.9/216 (23 March 1982), para. 72; Note by the Secretariat:
Model Law on International Commercial Arbitration: Possible Further Features and
Draft Articles of a Model Law, UN Doc. A/CN.9/WG.II/WP.41 (1983), para. 16.
29
Law Jurisdictions, 3rd edn (Sweet & Maxwell, 2010), p. 292.
30
Ibid.
31
Ibid.
32
International Chamber of Commerce (n. 24).
33
LCIA, LCIA Arbitration Rules (October 2014).
34
Model Law on International Commercial Arbitration: Revised Draft Articles A to G on
Adaptation and Supplementation of Contracts, Commencement of Arbitral Proceedings,
Minimum Contents of Statements of Claim and Defence, Language in Arbitral
Proceedings, Court Assistance in Taking Evidence, Termination of Arbitral
Proceedings and Period for Enforcement of Arbitral Award: Note by the Secretariat,
UN Doc. A/CN.9/WG.II/WP.44), (1984) XV UNCITRAL YB 179, 182.

596 a r t i c l e 21 : c o m m en c e m en t of a r b i t r a l p r o c e e d i n g s
Group was of the opinion that it is self-evident that a request for arbitra-
tion must identify the claim.35 A vague request for arbitration would not
constitute a valid request under article 21 and ‘the requirement that a
request for arbitration had to identify the claim should not be cast in the
form of a proviso’.36
The aforementioned disputes during the drafting stage, and concern-
ing any potential amendments to article 21, have subsided since its
enactment. The 1985 version of article 21 remains unchanged.
However, as mentioned above, uniformity in the regulation of the legal
consequences of the commencement of arbitral proceedings remains a
desired objective. The reason for not including a rule to achieve such
uniformity was the absence of sufficient information by which to for-
mulate a rule widely acceptable to the different legal systems. Two
decades have passed since the drafting of article 21, but there has yet to
be any sign of further studies being conducted to harmonise national laws
in this regard.
It has been pointed out that institutional rules may not be exhaustive in
detailing the items or contents to be included in a request.37 The rules
should be viewed as enumerating minimum jurisdictional checklists, in
the sense that the request may be deemed as inadequate if some stated
items are left out, but will not necessarily be appropriate or persuasive
merely due to the inclusion of every enumerated element.38 In that
context, it is advisable for claimants to explain their claims in much
more detail when drafting their requests.39 The drafter of the request
should be aware that this is the first description of the dispute that
arbitrators will interact with, and in that sense, one should strive to
draft it in a manner that makes it persuasive and extremely clear in its
description of the claim.40 As a starting point, the request must include
the details required by the institutional rules under which it is instituted
in a coherent and clear manner.41 Further, the request should strive to
make a compelling narration of other vital facts or circumstances of the
claim, which should be woven into the request in a persuasive manner.42
35
36
Ibid.
37
Townsend (n. 1), p. 22.
38
Ibid.
39
Ibid., p. 24.
40
Ibid.
41
Ibid.
42
Ibid.

3. c o mmen cemen t of ar bi tration 597
In that context, a request should constitute a compelling narration of the

claim and the related facts and circumstances in a manner that persuades
the arbitrators that justice requires action in favour of the claimant.43
The request also presents an opportunity for the claimant to articulate
positions that may grant him or her some procedural advantages, or for
ensuring that he or she does not cede some of them.44 In that sense, the
request presents an opportunity for the claimant to articulate the number
of arbitrators and the selection method, if this had not been provided
for.45 If the agreement had not stated the place of arbitration, then the
venue preferred by the claimant should be stated in the request, with a
justification for the location chosen.46 Furthermore, a request provides
an opportunity for the claimant to articulate some of the protective
measures or special considerations that will be required in the course of
the proceedings.47 For instance, if there is urgency in addressing some
elements of the dispute, or if special measures to safeguard confidentiality
are required, this should be stated in the request.48 In light of the above
preliminary discussion on the contents of article 21 in relation to the
commencement of arbitral proceedings, the next section will focus on the
implementation of the provisions in national jurisdictions.
3. Commencement of Arbitration
Although not explicitly stated, article 21 of the Model Law seeks to deal
with the issue of cessation of limitation periods in domestic law by the
commencement of arbitral proceedings.49 At the drafting stage, it was
agreed that the Model Law should not directly deal with this issue due to
the fact that it could be exceeding its intended scope, and the
Commission lacked sufficient information to formulate a uniform
approach that would be acceptable in different jurisdictions.50
However, such an indication of the effect of commencement of the
Model Law-inspired legislation is nonetheless useful to parties for the
purpose of identifying possible cessation or interruption of limitation
43
Ibid.
44
Ibid., p. 26.
45
Ibid.
46
Ibid.
47
Ibid.
48
Ibid.
49
UN Doc. A/CN.9/264 (n. 3), art. 21, para. 1; UN Doc. A/CN.9/WG.II/WP.41 (n. 28),
para. 13.
50
UN Doc. A/40/17 (n. 18), para. 185.

598 article 21: commenc ement of arbitral p roceedings
periods under the relevant applicable domestic laws.51 Generally, few

differences, if any, arise in the interpretations of this article by the courts.
The concept of commencement of the arbitration is also referenced,
and may be interpreted in the context of articles 21 and 8(2) of the Model
Law. Article 8(2) provides that arbitral proceedings may be commenced
or continued, and even an award granted, while the issue is still pending
before the court.
3.1 Time of Commencement

It is not the norm for parties to state the specific time of initiation of
arbitration and, as such, institutional rules often provide guidelines.52
However, a specific reference to other institutional rules providing for a
particular time or activity aimed at commencing the arbitration proceed-
ings will render redundant the application of article 21.53 In Fuller Austin
Insulation, a Canadian court found that since the parties had stated in the
agreement that arbitral proceedings would be regulated by the ICC Rules,
which explicitly require that proceedings be commenced by one of the
parties making a request to the Secretariat of the Court of Arbitration,
then the lack of such correspondence indicated that the arbitration was
yet to begin.54
Among the jurisdictions that have adopted article 21 of the Model Law,
most have adopted it with minor modification. For example, section 49 of
the Hong Kong Arbitration Ordinance includes an additional require-
ment whereby the request be made in written form.55 Section 49(2) of the
Arbitration Ordinance specifically requires that ‘[a] request referred to in
article 21 of the UNCITRAL Model Law … has to be made by way of a
written communication as referred to in section 10’.56
While most countries allow the parties the freedom to determine the
point in time at which the arbitral proceedings are deemed to commence,
it is notable that some adopting jurisdictions refrained from granting
such freedom to the parties.57
51
52
53
Ibid.
54
Fuller Austin Insulation Inc. v. Wellington Insurance Co. [1995] CanLII 5752 (SKQB).
55
56
Ibid.
57
See e.g. Arbitration Act, No. 11 of 1995 of Sri Lanka.

3 . c o m m e n c e m e n t of ar b i t r a t i o n 599
Croatia is another of these jurisdictions, and article 20 of its Law on

Arbitration provides as follows with regard to the commencement of
arbitral proceedings:
Unless otherwise agreed by the parties, the arbitral proceedings
commence:
(1) if the arbitral proceedings are organized and administered by an
arbitral institution – on the date when such institution receives the
claim;
(2) in any other event (ad hoc arbitration) – on the date on which a
notification of the appointment of an arbitrator or a proposal for
appointing a sole arbitrator, accompanied by an invitation to appoint
the other arbitrator or declare whether he accepts the proposed sole
arbitrator, and the statement of claim that submits the dispute to
arbitration is received by the respondent.58
The Hungarian Arbitration Act distinguishes between ad hoc arbitration
and institutional arbitration.59 In addition to allowing the parties the
freedom to agree upon the date of commencement in section 32 of the
Act, it also sets out different times of commencement for ad hoc arbitra-
tion and institutional arbitration as follows:
(1) Unless otherwise agreed by the parties, the proceedings of an ‘ad hoc’
arbitration tribunal shall open on the day on which the adverse party
… receives the request to refer the dispute to arbitration.
(2) If the parties have stipulated the jurisdiction of a standing arbitration
tribunal, the proceedings shall open on the day when the statement
of claim is received by the arbitration tribunal.
In interpreting article 21 of the Model Law, courts generally require the
parties to adhere to the method of commencement they have agreed upon.
In practice, the form of agreement stipulating a different point in time for
the commencement of arbitration is not important. As noted earlier, the
parties may, for example, derogate from article 21 by referring to any set of
institutional or other rules which provide for a different commencement
time frame.60 Alternatively, although article 21 does not refer to the receipt
of the request by an arbitral tribunal, the parties may also agree to adopt
established arbitral rules, and these may provide that the proceedings are
58
Law on Arbitration, Official Gazette No. 88/2001 of Croatia.
59
Act LXXI of 1994 on Arbitration of Hungary.
60
Fuller Austin Insulation (n. 54).

600 a r t i c l e 21 : c o m m e n c e m e n t of ar b i t r a l pr o c e e d i n g s
considered to have commenced when a request for arbitration is received

by the administering institution. For example, article 4.2 of the Hong Kong
International Arbitration Centre (HKIAC) Administered Arbitration
Rules 2008 states that ‘arbitral proceedings shall be deemed to commence
on the date on which the Notice of Arbitration is received by the HKIAC
Secretariat’.61 Another example may be found in the ICC Rules, where
article 4.2 states that ‘the date on which the Request is received by the
Secretariat shall, for all purposes, be deemed to be the date of the com-
mencement of the arbitral proceedings’.62
In a Canadian case, it was held that if the arbitration clause provides
that any notice of arbitration must be filed with the administering
institution, the applicant must accordingly file the notice in order to
initiate the arbitral proceedings.63 The court distinguished the concept of
‘filing’ from that of ‘servicing’ or ‘delivering’, and held that ‘filing’
requires the party to deposit or place the notice with the institution
overseeing the arbitral proceedings.64 Thus, by making reference to
institutional rules in the arbitration agreement, ‘parties may agree that
the arbitration does not commence until a request for arbitration … is
actually received by the administering institution’, as may be provided
under some arbitration rules.65
Section 21 of the Arbitration and Conciliation Act of India provides
that unless the parties have agreed to the contrary, ‘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’.66 The Supreme Court of India found a notice sent by the
respondent to the claimant as having been inadequate and inappropriate
to be regarded as having commenced arbitral proceedings, since it is the
claimant who should have served the notice.67
Ensuring that the process of commencement adheres with the relevant
legal, regulatory and institutional requirements may be vital to the
success of the claim. As one commentator has aptly observed:
61
Hong Kong International Arbitration Centre, 2008 Administered Arbitration Rules,
www.hkiac.org/arbitration/rules-practice-notes/hkiac-administered-2008.
62
International Chamber of Commerce (n. 24).
63
Bell Canada v. The Plan Group, Court of Appeal for Ontario, Canada, 7 July 2009, [2009]
ONCA 548.
64
Ibid.
65
66
Arbitration and Conciliation Act, No. 26 of 1996 of India.
67
Milkfood Ltd v. M/S GMC Ice Cream (P) Ltd, Supreme Court of India, Civil Appeal No.
9672 of 2003.

3 . c o mmen cemen t of ar bi t ration 601
The commencement of the arbitration is the first formal step that a
claimant must take and in many regards is the most important. The
claimant who serves a defective notice of commencement may find
that the notice has no effect and, if the limitation period has subse-
quently expired, has no remedy. Almost every set of institutional or ad
hoc rules includes a provision regarding the commencement of the
arbitration.68
3.2 A ‘Request’ as a Means of Commencing Arbitration

In relation to the form of a request for arbitration, most Model Law
jurisdictions have made no particular additions or changes to article 21.
As mentioned above, the Sri Lankan Arbitration Act uses the word
‘notice’ instead of ‘request’. Similarly, a number of other jurisdictions
prefer the word ‘notice’ or ‘notification’ to ‘request’. However, it is
suggested here that the choice of nomenclature is an inconsequential
matter, and it is unlikely that article 21 would be interpreted differently if
the adopting jurisdiction substituted the word ‘notice’ for ‘request’, as the
intention behind the notice or request would be the same. As noted in the
travaux préparatoires, so long as the ‘request’ is capable of identifying the
particular dispute and showing clearly that arbitration is sought, the
‘request’ will be valid no matter how it is named.69 Therefore, it can
variously be referred to as an ‘application’, a ‘notice’ or even as a ‘state-
ment of claim’.70
It is notable that section 1044 of the German Code of Civil Procedure,
concerning commencement of arbitral proceedings, goes one step further
and sets out the mandatory requirements in respect of the content for a
request for arbitration.71 It states that:
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. The request shall state the names of the parties, the
subject-matter of the dispute and contain a reference to the arbitration
agreement.72
68
A. Tweeddale, ‘Delay in Commencing an Arbitration’ (2002) 68 Arb. 238, 238–239.
69
70
Ibid.; ‘2012 Digest of Case Law’ (n. 7), p. 106.
71
Code of Civil Procedure of Germany, as Promulgated on 5 December 2005
(Bundesgesetzblatt (BGBl, Federal Law Gazette)), Last Amended by Article 1 of the Act
Dated 10 October 2013 (Federal Law Gazette, p. 3786).
72
Ibid.

602 ar ti cle 21: commenc ement of ar bitra l p roc e edings
These requirements echo some of the mandatory components or con-

tents required of a ‘notice of arbitration’ under article 3 of the
UNCITRAL Arbitration Rules. It is thus not necessary that the document
intended to initiate the arbitral proceedings is labelled a ‘request’.73
Courts in various jurisdictions have taken a similar approach in inter-
preting article 21, requiring the request to be specific as to: (1) the details
of the dispute between the parties; and (2) the intention of the parties, to
refer that dispute to arbitration.
3.3 Details of the Dispute

In order to commence arbitral proceedings, the sender must by the
request for arbitration leave the respondent in no doubt as to what is
alleged/claimed against him or her. This principle may be illustrated by a
case where the sender of a request merely stated in the request that the
recipient’s performance of his contractual obligation was alleged to be
defective, but the sender did not assert whether or not the defects were
found to be on the recipient’s part, nor was it clear that the defects had
resulted in an arbitrable dispute in respect of the liabilities of the recipient
for the same. It was therefore held that there existed no dispute when the
request was served and thus no particular dispute that could be referred
to arbitration by the request sent.74
3.4 Intention to Refer a Dispute to Arbitration

It is widely accepted that in the interpretation of a ‘request’ under article 21
of the Model Law, such request must also clearly evince the sender’s
intention to refer the relevant dispute to arbitration. In the Milkfood
case, the Indian Supreme Court stated that the request sent to the respon-
dent should clearly demonstrate that the claimant intends to submit the
dispute to arbitration.75 The claim should include reasonable details so that
the respondent knows exactly what is claimed against him or her in order
to allow preparation for an appropriate response.76 If the claim is not
sufficiently elaborate, then there may be no basis upon which the respon-
dent would be obliged to prepare a response and appoint an arbitrator.77
73
74
Cruden Construction Ltd v. Commission for the New Towns [1995] 2 Lloyd’s Rep. 387.
75
Milkfood (n. 67).
76
Ibid.
77
Ibid.

3. com menc ement of ar bi tr ati on 603
A mere inquiry concerning the recipient’s attitude towards the arbi-

tration of a matter does not constitute a valid request for arbitration
under article 21 of the Model Law.78 Similarly, an inquiry as to whether
or not the defendant’s solicitor is authorised to be served a request for
arbitration cannot stand as a request itself. However, no great detail or
particular form for the request is required. By way of illustration, a letter
inviting the other party to appoint their own arbitrator would be suffi-
cient to constitute a valid request.79
In the Fustar Chemicals Ltd case, the defendant applied for a stay of
court proceedings for the purpose of initiating arbitral proceedings.80 The
defendant had previously written a letter to the plaintiff and suggested that
they should not resort to arbitration, or the defendant would bring a
counterclaim against the plaintiff as part of the arbitration. In response,
the plaintiff suggested that if the defendant did not submit to arbitration
within five days, the plaintiff would resort to legal proceedings before the
court. The plaintiff’s response was met with no reply. The plaintiff thus
argued before the court that the plaintiff’s letter to the defendant consti-
tuted a valid request for arbitration for the purposes of article 21 of the
Model Law. The Hong Kong court noted that article 21 of the Model Law
served to define the point in time at which the commencement of arbitral
proceedings had interrupted the limitation period for bringing legal pro-
ceedings. If the arbitral proceedings were deemed to have commenced
when the plaintiff requested that the defendant appoint an arbitrator, then
by virtue of article 11(3)(a) of the Model Law the thirty-day period for
appointing an arbitrator had expired. In this case, the plaintiff would be
entitled to request that the appointment of an arbitrator be made by the
court. Such a request was not made by the plaintiff, and the court even-
tually ordered a stay of proceedings and referred the parties to arbitration.
The foregoing case law accords with the legislative intent of the
Working Group, which can be found in the travaux préparatoires –
that the particular dispute must be identified, and the intention that
arbitration is resorted to must be made clear.81 In other words, the
drafters intended that a request be made with some degree of specificity,
particularly as regards arbitrability and the matter in dispute.82 The
78
Fustar Chemicals Ltd v. Sinochem Liaoning Hong Kong Ltd [1996] 2 HKC 407.
79
Frota Oceanica Brasiliera SA and Another v. Steamship Mutual Underwriting Association
(Bermuda) Ltd [1995] 2 Lloyd’s Rep. 254; Milkfood (n. 67).
80
Fustar Chemicals (n. 78).
81
82

604 a r t i c l e 21: co mmen cemen t of arb itral p roc eed ings
‘request’ may thus be referred to as a ‘notice’, an ‘application’ or a

‘statement of claim’83 – the interchangeability of these terms illustrates
the importance of content over the label of the documentation for the
purposes of initiating an arbitration.
However, there is no mention as to the permissibility of requests for
arbitration made orally, nor is such a possibility discussed in the travaux
préparatoires or otherwise examined under the available case law. This is
possibly because the Model Law is drafted in a cross-border commercial
context, in which every pertinent action would be made and commu-
nicated in writing for the sake of certainty. Of course, the underlying
principle of party autonomy, as manifested by the words ‘[u]nless other-
wise agreed by the parties’, allows the parties to choose the form of a
request or the use of other instruments for determining the commence-
ment of arbitration. The default rule that follows does not explicitly
require that a request be made in written form. A ‘writing’ requirement
is provided for under article 7 of the Model Law, but that provision
concerns solely the ‘arbitration agreement’ rather than a request for
arbitration.84
Courts may find it difficult to accept requests for arbitration made
orally, given the potential uncertainty this might lead to, and given that
parties should be informed by competent legal advice in the event of a
commencement of arbitration. However, the legislative intent seems to be
that article 21 of the Model Law was enacted to govern the content and
specificity, but not necessarily the form, of a request for arbitration. It is
therefore arguable that requests made orally may nevertheless be permis-
sible, so long as such requests are supported by sufficient evidence. One
commentator suggests that this problem is not particularly critical because
the party intending to commence arbitral proceedings would have to turn
to the arbitral tribunal or the body responsible for the establishment of the
tribunal in any case, and usually an orally submitted request would be
taken to protocol, thus rendering it at par with a written request.85
3.5 Receipt of Request

According to article 21 of the Model Law, the request for arbitration has
to be ‘received’ by the respondent. Article 3 of the Model Law deals
83
84
Option I of art. 7 states, at 7(2), that ‘[t]he arbitration agreement shall be in writing’.
85
Binder (n. 29), p. 295.

3. com menc ement of ar bi tr ati on 605
exclusively with the issue of ‘receipt of written communications’. As such,

a request has to comply with the requirements set out under article 3 of
the Model Law, and the official point in time at which the other party
receives a request (under article 21) is determined by the requirements
for receipt under article 3 – which means that the request is deemed to
have been received on the day it is delivered. The definition of when a
communication is considered or deemed received may differ from jur-
isdiction to jurisdiction, and may or may not be consistent with the
definition set out in article 3.
In Sky Mount Investment, the defendant, an insurer, informed the
plaintiff through a letter that he intended to apply for a stay of court
proceedings and suggested that their dispute be referred to arbitration.86
The plaintiff agreed. The contractual terms stipulated that any claim
must be referred to arbitration within twelve months. However, after
this time period expired, the plaintiff wrote to the defendant stating its
intention to trigger the arbitration clause. The Hong Kong High Court
rejected the defendant’s argument that the arbitration was time-barred,
because the earlier exchange of letters by the defendant constituted a
request for arbitration, to which the plaintiff had agreed. The court also
rejected the defendant’s argument that the request for arbitration must be
made by the plaintiff to the defendant. A commentator has suggested that
the outcome would have been different if article 21 of the Model Law had
been in place, because it makes it clear that the request for arbitration has
to be received ‘by the respondent’.87 It follows that a respondent’s
application for a stay of court proceedings, which would be in breach
of the arbitration clause, would not have the effect of commencing
arbitral proceedings.88 The Indian Supreme Court endorses such a view
in the Milkfood case, by observing that a notice by the respondent to the
claimant could not be deemed to have commenced arbitration.89
Article 3(1)(a) of the Model Law provides that ‘any written commu-
nication [including a request for arbitration] 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’. In that
context, a Hong Kong court in the Fung Sang Trading case found the
defendants to have been duly served through the sending of letters to
86
Sky Mount Investment Ltd v. East West-Uni Insurance Ltd [1995] 1 HKC 342.
87
88
Ibid.
89
Milkfood (n. 67).

606 a r t i c l e 21 : c o m m e n c e m e n t of ar b i t r a l pr o c ee d i n g s
both respondents’ registered office and their address as specified on the

sales contract.90
3.6 Limitation Period

The Commission declined to address in the Model Law the issue of whether
or not a request for arbitration has the same effect on the running of
limitation periods as court proceedings would.91 In this regard, the adoption
of article 21 by the Republic of Cyprus is worth mentioning. Article 21 on
the commencement of arbitral proceedings of the International
Commercial Arbitration Law of the Republic of Cyprus regulates the effect
on the running of limitation periods by providing as follows:
(1) 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.
(2) Commencement of the arbitral proceedings shall cause suspension
of the period of limitation in accordance with the provisions of the
following subsection.
(3) The limitation period in relation to any claims which are referred to
arbitration in accordance with the provisions of this Law shall be
governed, subject to the provisions of this Law, by the provisions of
subsections (1), (2), (5), (6) and (7) of section 24 of the
Arbitration Law.
(4) The words ‘is absent from the Republic’ in the fifth line of section 8 of
the Limitation of Actions Law shall not apply in the case of claims
which are referred to arbitration in accordance with the provisions of
this Law.
(5) The Limitation of Actions (Suspension) Law shall not apply in
relation to claims which are referred to arbitration in accordance
with the provisions of this Law.92
One commentator has suggested that this is an ideal example of where a
Model Law provision has been integrated into domestic law without
changing the gist of the original provision.93 As the rules and regulations
regarding limitation periods vary between jurisdictions, it would be
90
Fung Sang Trading Ltd v. Kai Sun Sea Products and Food Co. Ltd [1991] 2 HKC 526.
91
UN Doc. A/40/17 (n. 18), para. 185.
92
International Commercial Arbitration Law, No. 101 of 1987 of Cyprus.
93
Binder (n. 29), p. 297.

3. co mmencement of a rbitration 607
difficult, if not impossible, for the Model Law to provide a universally

accepted solution to the issue of the impact of commencing arbitral
proceedings on such limitation periods. The Republic of Cyprus’ legisla-
tion has been described as a ‘brave’ attempt to tackle the issue.94
Significantly, where the parties agree in their contractual undertaking
to submit a dispute to arbitration following application to the courts in
accordance with domestic law, such submission would ab initio be
rendered null where the statutes of limitation had expired in respect of
bringing the claim before the local courts.95 The same is true where the
arbitration clause refers to the local statute of limitations in respect of
general claims, although the prevailing position seems to be that this is a
matter to be resolved by the arbitrator himself and not the courts.96
The commencement of arbitral proceedings is also linked to the
operation of the law on limitation of actions in England. Under section
14(1) of the 1996 English Arbitration Act, it is noted that parties are free
to determine the process of determining the commencement of the
arbitral proceedings ‘for the purposes of the Limitation Acts’, among
other issues.97 Section 13(1) of the English Arbitration Act is explicit that:
‘Limitation Acts apply to arbitral proceedings as they apply to legal
proceedings.’98 The English Arbitration Act also recognises, under sec-
tion 12, that the parties to an arbitration agreement may also establish
their own limitation period by which arbitral proceedings or another
dispute resolution process should have been commenced by the claimant,
and that a failure to abide renders the claim invalid.99 However, by virtue
94
Ibid.
95
In most countries, the statutes of limitations for court action are inapplicable to arbitral
proceedings. In the United States, for example, see Har-Mar Inc. v. Thorsen and Thorsen
Inc., 218 NW 2d 751 (Minnesota, 1974); Son Shipping Co. v. DeFosse and Tanghe, 199 F.2d
687, 688 (2nd Cir. 1952); Carpenter v. Pomerantz, 634 NE 2d 587, 590 (Mass. App., 1994).
The English position will be explored below in other sections.
96
In Wagner Construction Co. v. Pacific Mechanical Corp., 157 P.3d 1029 (Cal. 2007), the
Californian Supreme Court held that the statute of limitations was not the proper basis for
denying a motion to compel arbitration, because the decision in respect of this matter lay
with the arbitrator and not the court. This position is equally adopted in respect of
international arbitration, where it is generally held that the alleged extinction of con-
tractual rights on account of the passage of a statute of limitations does not affect the
arbitration clause. See ICC Award No. 4491 (1984); Finnish Licensor v. Australian
Licensee, 112 JDI 966 (1985). See generally I. Bantekas, ‘Arbitration and Problems
Associated with Statute of Limitations in Kazakhstan and Uzbekistan’ (2010) 2 OGEL.
97
Ireland).
98
Ibid.
99
Ibid.

608 ar tic l e 21 : comme n c eme n t of ar bit ra l p roc ee d in gs
of section 12(3) of the Act, the court may extend the period if the
circumstances causing the failure to institute the claim were beyond
‘the reasonable contemplation of the parties’, or if ‘the conduct of one
party makes it unjust to hold the other party to the strict terms of the
provision in question’.100 In the Anglian Water Services case, the English
High Court stated that section 12(3) of the Act was aimed at establishing
a greater threshold for a claimant seeking time extension for the com-
mencement of arbitration than the requirement under the previous 1950
Act.101 According to the High Court, this was consistent with the percep-
tion ‘that in principle party autonomy should prevail and the jurisdiction
of the court to interfere in the bargain made by the parties should be
limited’.102
The Arbitration and Conciliation Act of India also contains some
elaborate provisions in relation to the application of limitation periods
in the context of arbitration.103 Section 43(1) of the Act recognises the
application of the Limitations Act of 1963 to arbitration claims in the
same manner as proceedings in court.104 It further provides, under
section 43(2), that arbitration shall be deemed to have been commenced
at the date provided for under section 21 of the Act, which bases the
initiation of the proceedings on the reception of a request for reference to
arbitration by the respondent.105 In the Milkfood case, the Indian
Supreme Court was of the view that a notice by the defendant to the
plaintiff, and not the other way round, could not be deemed to have
commenced arbitration and, therefore, could not have stopped the lim-
itation for the claimant, unless the respondent was also a counter-
claimant.106
The time for instituting arbitral claims may be extended if it is demon-
strated in court that undue hardship or similar circumstances render it
impossible for the claimant to institute the proceedings within the stipu-
lated period by virtue of section 43(3) of the Act.107 Finally, section 43(4)
of the Arbitration and Conciliation Act provides that:
100
Ibid.
101
Anglian Water Services Ltd v. Laing O’Rourke Utilities Ltd [2010] EWHC 1529 (TCC),
para. 77.
102
Ibid.
103
Arbitration and Conciliation Act, India (n. 66).
104
Ibid. See Limitation Act, No. 36 of 1963 of India.
105
106
Milkfood (n. 67).
107

4. application f or interim measures 609
Where the court orders that an arbitral award be set aside, the period
between the commencement of the arbitration and the date of the order of
the court shall be excluded in computing the time prescribed by the
Limitation Act … for the commencement of the proceedings (including
arbitration) with respect to the dispute so submitted.108
As an arbitration strategy by the claimant, the issue of limitation period

should not be highlighted in the statement of the case.109 The claimant
should leave it to the respondent to raise the issue of limitation in the
defence, providing the applicant with an opportunity to respond to the
issue in the subsequent reply.110
Reliance on national legislation to determine limitation of actions in
arbitration, without any attempt at harmonisation through the Model
Law, is likely to expose international commercial arbitrators to ‘wholly
uncertain and unpredictable’ practices.111 For instance, in some States,
instituting claims before the expiration of limitation periods may be
mandatory and incurable, while in others, it may be possible to have
the requirement waived.112 Further, in some States, the limitation period
may be open to alteration by the parties through an arbitration clause.113
In addition, limitation periods vary significantly in length across various
States.114 For instance, the period before the limitation for instituting
claims for non-conformity of the supplied goods may vary from six years
in England to just one year in Switzerland.115
4. Application for Interim Measures before Commencement

of Arbitration
Whether or not arbitration proceedings have commenced may be a
determinant as to whether interim measures of protection can be granted
by the courts. Article 9 of the Model Law is clear in that it is compatible
with arbitral agreements for courts to grant interim protective measures
even before the commencement of arbitral proceedings.
In the Indian Sundaram Finance case, the Supreme Court affirmed
that interim protective measures can be issued by a court even before the
108
Ibid.
109
Tweeddale (n. 68), p. 238.
110
Ibid.
111
Schwenzer and Manner (n. 4), p. 295.
112
Ibid., p. 296.
113
Ibid., p. 298.
114
Ibid., p. 297.
115
Ibid., pp. 297–298.

610 article 21: commenc ement of arbitral p roceedings
commencement of arbitral proceedings.116 The court clarified that ‘it

would not be necessary that a notice invoking the arbitration clause must
be issued to the opposite party before an application … [for interim
protective measure] can be filed’.117 The reasoning that endorsed the
grant of protective relief before the commencement of arbitral proceed-
ings was reaffirmed by Indian courts in Kotak Mahintra Prime118 and
Firm Ashok Traders.119 In Sundaram Finance, it was held that for the
protective measure to be granted: (1) a dispute must have arisen that can
be referred to an arbitral tribunal for resolution;120 (2) the applicant must
satisfy the court that he or she intends to commence the resolution of the
dispute through arbitration.121 The claimant is required to demonstrate
that arbitral proceedings ‘are positively going to commence within a
reasonable time’; and122 (3) while granting provisional relief, the court
may also issue conditional orders requiring the applicant to undertake
specific actions as may be necessary to ensure that the claimant takes
effective steps to commence the arbitral proceedings.123
116
Sundaram Finance Ltd v. NEPC India Ltd [1999] 2 SCC 479.
117
Ibid.
118
Kotak Mahintra Prime Ltd v. Balraj Mann, Delhi District Court, Suit No. 04/2013,
para. 3.
119
Firm Ashok Traders and Another v. Gurumukh Das Saluja and Others, Appeal (Civil)
131–132 of 2004.
120
Sundaram Finance (n. 116).
121
Ibid. See similar arguments in: Firm Ashok Traders (n. 119); P. Nair, ‘Surveying a Decade
of the “New” Law of Arbitration in India’ (2007) 23 Arb. Intl 699, 714–715.
122
Firm Ashok Traders (n. 119).
123
Sundaram Finance (n. 116). See also Nair (n. 121), p. 715.

Article 22
Language
ilias bantekas
(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.

Unlike domestic arbitration, in transnational disputes the issue of lan-
guage is complex. Article 22 addresses this delicate matter. During the
deliberations of the Working Group in 1985, the key aspects of the
current version of article 22 were not contested.1 The issue had already
been discussed by an UNCITRAL working group on international con-
tract practices and the Model Law’s language-related principles had been
duly considered.2 There was, however, some concern as to the criteria
1
During the Cold War, a limited practice existed whereby a ‘best efforts’ rule was grounded
in bilateral treaties, such as the 1977 Optional Arbitration Clause for Use in Contracts in
US–USSR Trade, art. 8 of which stipulated that the parties were to use their ‘best efforts’ to
agree on a single language for the proceedings. See Note by the Secretariat, Model Law on
International Commercial Arbitration: Possible Further Features and Draft Articles of a
Model Law, UN Doc. A/CN.9/WG.II/WP.41 (12 January 1983), reprinted in (1983) XIV
UNCITRAL YB 85, para. 25.
2
See Report of the Working Group on International Contract Practices on the Work of Its
Fifth Session, UN Doc. A/CN.9/233 (4 March 1983), paras 27–30; Report of the Working
Group on International Contract Practices on the Work of Its Sixth Session, UN Doc. A/
CN.9/245 (22 September 1983), paras 34–36; Report of the Working Group on
611

612 a rt icl e 22: l an g uage
which the tribunal was expected to apply in order to arrive at a sensible

default language in the absence of express agreement in the parties’
arbitration clause or compromis. Germany had argued that failing express
party agreement the default language determined by the tribunal should
not be based on arbitrary criteria, but be guided by the principle that each
party should be given a full opportunity of presenting its case.3 The
International Chamber of Commerce (ICC) delegation pointed out that
it is a fundamental principle of international arbitration that, failing an
agreement, each party is given a full opportunity of presenting its case in
the language it chooses.4 In the draft commentary of the text of the Model
Law, it was emphasised that the principles of equality and ability to
present one’s case did not entail that the parties have a right to employ
their own languages in the proceedings as a default rule. Rather, the
tribunal should be guided by other relevant factors, such as the language
used in their ordinary business dealings, including their correspondence
or contract.5 It should be pointed out that the preliminary draft of the
1976 UNCITRAL Arbitration Rules equally suggested that in the absence
of an express agreement ‘either the language of the contract or the
language used in the correspondence between the parties’ should always
be the default language.6 Ultimately, this phrasing did not survive in what
is now article 19 of the UNCITRAL Rules (which is almost identical to
article 22 of the Model Law) because it was felt that it lacked flexibility,
although in practice it is prevalent and widespread.7
With regard to paragraph 2 (as well as paragraph 1 mutatis mutandis),
the Asian-African Legal Consultative Committee (AALCC) put forward
the idea of a ‘right to translation’ where the default language is not native
International Contract Practices on the Work of Its Seventh Session, UN Doc. A/CN.9/246
(6 March 1984), paras 68–70.
3
Organizations, UN Doc. A/CN.9/263 (19 March 1985), 34. This is not, however, construed
as giving rise to an obligation by the tribunal to consult the parties. See UNCITRAL,
Fifth Session, UN Doc. A/CN.9/614 (2007), para. 91.
4
Organizations, UN Doc. A/CN.9/263.Add.1 (15 April 1985), 14.
5
CN.9/264 (25 March 1985), 50.
6
Report of UNCITRAL, Summary of the Discussion of the Preliminary Draft, (Geneva, 1–
17 April 1985), UN Doc. A/10017 (1975), para. 111.
7
See P. Viscasillas, ‘Place of Arbitration (Art 16) and Language of Proceedings (Art 17) in
the UNCITRAL Arbitration Rules: Some Proposals for a Revision’ (2006) 13 Croatian Arb.
YB 205, 218.

to any one of the parties, at its own expense.8 It was proposed that the
tribunal ‘may’ order the translation of documentary evidence of one (in
case of multiple) of the languages of the proceedings. Hence, it is not
obliged to order translations in all languages, chiefly in order to save
money and time.9 It should be pointed out that the discretion to order the
translation of documentary evidence in all of the designated languages of
the arbitral procedure (paragraph 2) is different from the general obliga-
tion to provide a translation into all official languages of all awards,
decisions and other documents falling within the scope of paragraph 1
of article 22 of the Model Law.
In the 2006 version of the Model Law, there was no amendment or
variation of the 1985 text, nor was there any suggestion that an amend-
ment was in fact necessary. As a result, the position articulated in article
22 stands as a general principle of law pertinent to arbitral proceedings.
2. Paragraph 1
This provision gives rise to several points of interest. First, it provides for
the pre-eminence of party autonomy. At the same time, it offers a broad
ambit to the concept of ‘arbitral proceedings’. The wording in paragraph
1 is unclear as to whether sensible due process guarantees should super-
sede the parties’ express agreement or the dictates of the lex arbitri. In the
absence of an express agreement, a range of default languages are avail-
able to the tribunal, without, however, a clearly defined methodology;
hence, much has been left to practice and common sense.10
2.1 ‘Language’
Despite this being the key term in article 22, its content is assumed so well
known as to deserve no further analysis. This is not the case. The concept
of language for the purpose of arbitral or other judicial proceedings refers
to a medium of communication whose oral and written components
8
UN Doc. A/CN.9/263.Add.1 (n. 4), 14.
9
Organizations, UN Doc. A/CN.9/263.Add.3 (31 July 1985), 7.
10
See M. Rubino-Sammartano, International Arbitration Law and Practice, 3rd edn (Juris,
2014), pp. 865–867; see generally D. Reichert, ‘Issues of Language and Translation’ in D.
Caron and J. Crook (eds), The Iran–US Claims Tribunal and the Process of International
Claims Resolution (Transnational Publishers, 2000), p. 313; T. Varady, Language and
Translation in International Commercial Arbitration (TMC Asser Press, 2014).

614 a rt icl e 22: l an gua ge
correspond.11 This is not true of all mediums of communication or of

things we call ‘languages’.12 By way of illustration, there are as many sign
languages as there are national languages and in any event sign language
lacks a concrete written component. Moreover, linguists and anthropolo-
gists distinguish between languages and dialects, the latter constituting
variations of the former, although not necessarily employing the same
letter characters. Many African indigenous languages, for example, devel-
oped exclusively through oral tradition and were transcribed in Latin
characters during the nineteenth and twentieth centuries. Moreover,
many languages are under-developed, in the sense that they comprise
basic verbs and nouns, but are unable to describe concepts of everyday
life13 or convey complex legal terms.14 Furthermore, even common lan-
guages such as English and Arabic may vary considerably, or less so, from
region to region15 and from one country to another.16 In Egypt, for
example, there is a linguistic divide between colloquial and classical
Arabic, yet when Islamic law is designated as the parties’ choice of law in
arbitral proceedings, the discrepancy between classical and colloquial
Arabic is given no serious consideration for literary purposes. Here, we
have an official language and its unofficial counterpart. In equal measure,
11
See generally B. Fraser, ‘The Role of Language in Arbitration’ in J. L. Stern and D. B.
Dennis (eds), Decisional Thinking of Arbitrators and Judges (Bureau of National Affairs,
1981), p. 19.
12
‘Legal language’ is an excellent example. See M. Van Hoecke, Law as Communication
(Hart, 2002), who argues that all legal relations are to be understood in terms of dialogue,
conversation and communicative processes, rather than as traditional command-obedi-
ence structures. This is so, argues Van Hoecke, because legal systems are open systems,
thus allowing for this type of interaction between their various participants.
13
In the 1920s, Rivers examined the Melanesian people of the Solomon Islands and high-
lighted their use of the local word mate, which translates as ‘dead’, but also ‘very sick’ and
‘very elderly’. Clearly, this is not in accord with our strict distinction between dead and
alive. Rivers understood this to project a classification, rather than a biological determi-
nation, from the point of view of the Melanesians. The very infirm and the very elderly
were as good as dead because they could no longer partake in the group’s activities. See W.
H. R. Rivers, ‘The Primitive Conception of Death’ (1911–12) 10 Hibbert J. 393, 406.
14
In Saudi Arabia v. ARAMCO (1963) 27 ILR 117, 162–163, it was held that the ‘regime of
mining concessions, and, consequently, also of oil concessions, ha[d] remained embryo-
nic in Moslem law and is not the same in the different schools. The principles of one
school cannot be introduced into another, unless this is done by the act of authority.’ If
Islamic law is viewed as developing alongside classical Arabic language, then the latter
contains no words that are alien to the former.
15
See P. Trudgill, The Dialects of England, 2nd edn (John Wiley and Sons, 2000).
16
See e.g. F. A. Kperogi, Glocal English: The Changing Face and Forms of Nigerian English in
a Global World (Peter Lang, 2015); P. Seargeant, Exploring World Englishes: Language in a
Global Context (Routledge, 2012).

the way in which ruling elites translate concepts found in other languages
into their own might be completely different from the original meaning
ascribed to the concept in the first language.17 In all these cases, problems
may arise as to which language the parties actually chose, which ultimately
gives rise to a power on behalf of the arbitrator to choose those terms and
concepts in the chosen language, or another, that conform to the parties’
intention. Consequently, while the choice of a particular language may be
crucial for the conduct of the arbitral process as such, it may be less
important in respect of key concepts which are alien to, or unknown, in
the language in question.
Overall, parties to arbitral proceedings and their counsel must exercise
caution in their use of languages with which they are not familiar. At the
very least, they must ensure that particular legal terms are given their
ordinary meaning, even if, ultimately, the parties’ chosen language does
not recognise them as such or does not fully correspond to them. Hence,
a distinction between chosen ‘language’ and other ‘terms’ and ‘concepts’
is meaningful and potentially very useful in the initial agreement or
compromis. Moreover, parties should be mindful of translation costs, as
well as potential delays, and perhaps cultural bias associated with a choice
of a language with which they are not familiar.
2.2 Scope of ‘Arbitral Proceedings’

The freedom of parties to choose their preferred language, in accordance
with paragraph 1, applies only in respect of ‘arbitral proceedings’. This
needs to be qualified. Arbitral proceedings under paragraph 1 commence
from the transmission of the statement of claim by the claimant18 and not
from the moment the tribunal has been constituted. The scope of such
proceedings extends to the rendering of the award until it becomes final
(‘any award’). As a result, post-award proceedings, which are not typically
17
In treaties adopted outside the UN framework, problems arise particularly in the Arabic
translation of multilateral treaties because organisations such as OIC translate into Arabic
certain words and concepts which do not strictly correspond to their English or French
counterparts. A prominent commentator has stated that: ‘The concept of legislation, or
Tashri’a, is not accepted by many Muslims. Tashri’a is considered to be alien to Islam: it is
perceived as inconsistent with a Sharia-based legal system, since Sharia is regarded as the
highest law. Only God is the supreme legislator; human beings can only interpret God’s
law, not make their own.’ See R. Aba-Namay, ‘The Recent Constitutional Reforms in
Saudi Arabia’ (1993) 42 ICLQ 309.
18
This also includes the notice to the respondent. See Qingdao Free Trade Zone Genius Intl
Trading Co. v. P & S Intl, Inc., 2009 US Dist. LEXIS 85949, 11–12 (D. Or., 16 September 2009).

616 ar t icl e 22: l an gua ge
arbitral in nature, such as enforcement of foreign awards, are outside the

ambit of article 22 of the Model Law.19 Even so, enforcement rulings
pertinent to the parties’ choice of language are immensely significant
because they may apply mutatis mutandis to ‘arbitral proceedings’ and
hence command some precedential value. For example, it has been widely
accepted that arbitral proceedings may be conducted in a language that one
of the parties does not understand, so long as that party has access to an
adequate translation and the language in question was agreed in advance
by the parties; in such cases, awards shall be recognised and enforced
without any hurdles.20 Article 22 is not concerned with the resolution of
linguistic conflicts between two authentic texts of institutional or other
rules.21 Moreover, although proceedings before the courts of the seat may
be undertaken in the course of arbitral proceedings, language-related party
autonomy does not apply to these. The courts of the seat will ordinarily
enforce the language of the seat as prescribed in the lex arbitri.22 Finally,
paragraph 1 does not concern ‘documentary evidence’ relied upon by the
parties. Such evidence, and the need for translation thereof, is encom-
passed in paragraph 2 of article 22 of the Model Law.
2.3 The Basic Rule: Party Autonomy

A distinction should be made between the choice and imposition (by way
of a decision, order or mandatory law) of a language in domestic and
19
Article IV(1) and (2) of the New York Convention requires duly authenticated transla-
tions of the award and the parties’ agreement. Arbitration-friendly nations are usually less
formalistic and are reluctant to stay enforcement in the absence of certified translations.
See X v. Z, Case No. 5A_754/2011 (2 July 2012), where the Swiss Federal Supreme Court
ruled that a full certified translation of an English-language award is not necessary under
art. IV(2) of the New York Convention.
20
Petrotesting Colombia SA and Southeast Investment Corp. v. Ross Energy SA, Colombian
Supreme Court judgment (27 July 2011); Rosso e Nero GastsättenbetriebsgmbH v.
Almendrera Industrial Catalana SA (ALISCA) (2007) XXXII YB Com. Arb. 597, 600–
601; Austrian OGH (2008) XXXIII YB Com. Arb. 354, 357.
21
R 69 CAS, for example, provides that in the event of linguistic controversy between the
English and French text of CAS, the French version prevails. See CAS 2008/A/1700 and
1710, DRV eV v. FEI & Ahlmann and Ahlmann v. FEI, Award of 30 April 2009, para. 48
(concerning the use of the word ‘courier’ in art. R31(1) of the CAS Rules).
22
Exceptionally, proposals have been made in Sweden to allow its courts to use English in
set-aside proceedings. The rationale is that parties from different legal systems feel more
comfortable to rely on a culturally impartial and equally accessible system of adjudication
and their counsel can subsequently participate directly in judicial proceedings. See I.
Bantekas, T. Cole, F Ferretti et al., ‘Legal Instruments and Practice of Arbitration in the
EU’ (2015) [EU Parliament Study on Arbitration], pp. 177–178.

international arbitral proceedings. In domestic proceedings, many jur-

isdictions impose a mandatory linguistic requirement in favour of the
national language, either in general terms,23 or in respect of particular
transactions, chiefly property-related.24 This limitation to the party
autonomy rule is clearly antithetical to the express dictates of article 22
of the Model Law, which applies in respect of international arbitration.
Article 22 makes it clear that the parties’ agreement as to the language
of proceedings binds the tribunal and national courts (the latter as
regards arbitral proceedings). In fact, the parties may designate more
than one language, even if this is ultimately confusing for the tribunal.
From a practical perspective, the use of multiple languages may be cost-
effective where the available evidence (witnesses and written material) is
spread across several languages and hence translation costs are avoided –
assuming, of course, that the arbitrators are fluent in those languages.25
Sensible combinations have been accepted in practice. In Chevron Corp.
v. Ecuador, it was decided that English and Spanish were both official
languages of the proceedings, with English being the authoritative lan-
guage.26 A choice/decision to employ multiple languages implies equality
among all of them, which means that all decisions, awards and other
actions should be issued in all such languages simultaneously.27 This may
be difficult to reconcile with the tribunal’s mandate under article 17(1) of
the UNCITRAL Rules, whereby it must ‘avoid unnecessary delay and
expense’.28 The parties’ power to choose a language of their choice
indirectly implicates their choice of arbitrators, given that this may be
dictated also by the arbitrators’ linguistic skills. If the choice of language
23
Transitional and Final Provisions of the Bulgarian LICA, art. 3(1); Lithuanian AA, art.
25(1).
24
Pursuant to s. 2(3) of the Hungarian AA as amended in 2012, disputes involving a right in
rem connected to real estate that is located in Hungary, or its lease or tenancy, may only be
referred to an arbitral institution having its seat in Hungary, and only provided that all the
parties to the contract underlying the right in rem or to the lease or tenancy agreement
have their seats or permanent establishments in Hungary. In addition, the language of any
arbitration procedure must be Hungarian.
25
In the case of proceedings with multiple languages, any costs relating to translation and
interpretation between them would form part of the overall costs of the arbitration and as
such be borne in principle by the losing party. See e.g. art. 42(1) of the UNCITRAL
Arbitration Rules and UNCITRAL, Analytical Commentary on the Draft Text of the
Model Law, UN Doc. A/CN.9/264 (25 March 1985), 50.
26
Chevron Corp. v. Ecuador, Partial Award on Merits (20 March 2010), para. 8.1.
27
See exceptions to this rule from the practice of the Iran–US Claims Tribunal, in D. D.
Caron and L. M. Caplan, The UNCITRAL Arbitration Rules: A Commentary, 2nd edn
28
See Caron and Caplan, ibid., p. 379.

618 a rt icl e 22: l an g ua ge
was, thus, not within the realm of party autonomy, the freedom to choose
arbitrators of one’s choice would be obfuscated, which in turn would
negate the very freedom to resort to arbitration.
This linguistic freedom entails that the parties’ choice binds the tribu-
nal even if the chosen language is not native (or known) to any of them,
or if it is wholly or partially unconnected to the case itself. As will be
demonstrated in a subsequent section, the ‘use’, not the ‘choice’, of
language may be subject to due process guarantees.
2.4 Failure to Expressly Designate a Language

While article 22 of the Model Law provides that the tribunal shall decide
the language of the proceedings in the absence of an express choice by the
parties, it does not explain two fundamental points, namely: (1) whether
the parties must expressly designate their preferred language(s) in their
arbitration clause or submission agreement in order to prevent the
tribunal from deciding on a default language; and (2) in case of such
failure, what the grounds (legal or otherwise) relied upon by the tribunal
should be.
As to the first issue, it is certainly useful if the submission agreement or
arbitration clause were to state the parties’ chosen language(s). In case it
does not and assuming there is no dispute over this matter, in practice it
is implicit that the language of the proceedings corresponds to the
language used in the statements of claim and defence,29 or the parties’
prior intra-contractual or business relations. Problems arise where the
statement of defence submitted by the respondent is in a language
different from that of the plaintiff. In such cases, the arbitrator will
have to determine the applicable language on the basis of the rules laid
down in the lex arbitri or the pertinent institutional rules, or by reference
to other case-appropriate criteria and considerations.30 Where the parties
disagree on the language of the proceedings, tribunals will ordinarily
invite oral and written submissions specifically on this matter in the
29
In CAS appeals cases, for example, most appellants will file their statement of appeal in the
language of their preference between the two CAS working languages, i.e. French or
English, and this will usually be assumed to be their choice of language for the conduct of
the arbitration. M. Arroyo (ed.), Arbitration in Switzerland: The Practitioner’s Guide
(Kluwer, 2013), p. 999.
30
Unless, of course, a party is precluded from challenging the language of the proceedings as
a result of conduct-based estoppel, which arises where a party fails to complain of a
language discrepancy at the first possible instance (limine litis).

language of the parties’ choice.31 This is a sensible rule because it avoids

the perils of due process violation claims in later stages of the proceed-
ings.32 However, the UNCITRAL Working Group in 2006 stressed that
the requirement whereby a tribunal is mandated to ‘promptly’ determine
the language(s) of the proceedings under article 19 of the UNCITRAL
Rules does not impose an obligation to actually consult the parties; this is
merely advisable, although it does certainly conform to existing prac-
tice.33 An alternative rule is preferred under article 21(3) of the Croatian
Arbitration Law. This holds that: ‘Until the language of the proceedings
had been determined, a claim, a defense and other deeds can be sub-
mitted in the language of the main contract, of the arbitration agreement
or in the Croatian language.’34 This deference to the main contract or the
arbitration agreement is far more appropriate as compared to the local
language given that in international arbitration one of the parties, at the
very least, may not be a national of the seat.
As to the second issue, this befalls the authority of the arbitrator.
Although paragraph 1 of article 22 of the Model Law seems to confer
absolute authority upon arbitrators, domestic arbitral statutes place some
guidance or restrictions upon the arbitrators’ choice of methods in
reaching their determination. This is true even in respect of Model Law
nations. One may meaningfully discern three types of default rules in
arbitral statutes. The first stipulates that, in the absence of express agree-
ment, the default language of proceedings shall be the language of the
seat. This is the case with article 21(4) of the Croatian Arbitration Law.35
However, it is not always clear whether this default language is mandated
on the tribunal or whether, in the absence of further guidance, this is one
possibility among many in its armoury.36 This is a matter of statutory
31
CAS 2011/A/2325, UCI v. Paulissen & RLVB, Award (23 December 2011), para. 44.
32
Article 19(1) of the UNCITRAL Arbitration Rules states that once it has been constituted,
the tribunal shall ‘promptly’ determine (as a preliminary issue) the applicable language(s).
In fact, language issues are addressed by investment tribunals in their first procedural
orders. See Methanex Corp. v. USA, First Procedural Order (29 June 2000), 3; TWC Inc. v.
Dominican Republic, Procedural Order No. 2, 15 August 2008, 4.
33
of Its Forty-Fifth Session, UN Doc. A/CN.9/614 (2007), para. 91.
34
The same principle regarding the pre-constitution preliminary matter of the proceedings
is enunciated in art. 17(1) of the LCIA Rules.
35
Equally, 1994 Hungarian AA, art. 30(1); art. 28(1) of the Spanish AA speaks of ‘any of the
official languages of the place where the proceedings are carried out’.
36
This provision is, however, problematic in that it stipulates that the Croatian language is
third in priority, provided there is an absence of agreement or an inability by the tribunal
to make a determination! Quite clearly, it is impossible for a constituted tribunal to be

620 art ic l e 22: l an guage
construction, but there must certainly be a presumption that in the

absence of an agreement such a determination falls within the power of
the tribunal, rather than the law of the seat, where it is not considered a
mandatory rule. Such an outcome is consistent with the wording of
article 22(1) of the Model Law, which places no restrictions or guidance
on this matter upon arbitrators.37
The second type of default, which is meant as mere guidance and not as
an imposition of a binding rule, is that arbitrators may determine the
default language in the absence of an agreement on the basis of criteria
that assist the proceedings or which are closer to the parties’ original
intentions. Reference has already been made to prior intra-contractual
relations and correspondence. In this regard, article 816-bis of the Italian
CCP states that: ‘In the absence of [an express agreement] the arbitrators
are free to regulate the course of the proceedings and to determine the
language of the arbitration in the manner they deem most convenient.
They must respect in any case the principle of contradictory proceedings
(principio del contraddittorio) by granting both parties reasonable and
equivalent opportunities to present their case.’ In equal measure, article
570(1) of the Romanian CCP stipulates that the default language should
be that found ‘in the language of the contract in relation to which the
dispute arose, or, if the parties do not agree, in a language of international
usage fixed by the arbitral tribunal’.38 It is clear that the tribunal would
have to apply some kind of methodology in order to arrive at a sensible
conclusion as to which language is more appropriate for the proceedings
at hand. Others not mentioned here are cost factors, delays caused from
translation, expediency of proceedings and others. In ICC case 9875, the
tribunal was disinclined from inferring an appropriate language from the
parties’ contract, correspondence or the language of the seat. The parties
unable to reach determination on any matter within its authority. For even if the Croatian
language were set as the default language automatically or by the local courts, there would
be no tribunal to administer the case.
37
In CLOUT Case 786, Cairo Regional Center for International Commercial Arbitration,
Award No. 1/1994 (31 October 1995), the parties had not designated a language in their
agreement, but their chosen place of arbitration was Cairo. The tribunal determined that
the language of the proceedings should coincide with the official language of the seat,
namely Arabic.
38
English is reportedly the lingua franca of arbitration. It is reported that three-quarters of
all ICC awards rendered in 2012 were in English, despite the fact that only a fraction of the
parties and arbitrators claimed English as their native language. See T. H. Webster and M.
Buhler, Handbook of ICC Arbitration: Commentary, Precedents, Materials, 3rd edn (Sweet
& Maxwell, 2014), p. 284; N. C. Ulmer, ‘Language, Truth and Arbitral Accuracy’ (2011) 28
JOIA 295.

had employed English in their business and contractual relationships, but

had appointed French-speaking counsel and arbitrators and their seat
was in a multilingual city. The tribunal, hence, directed that although
English would be the language of the tribunal’s communication to the
parties, including the language of awards and orders, oral debates would
be conducted in both French and English and that the costs of translation
and interpretation would be included in the costs of the arbitration.39
The final type of default corresponds to the exact wording of article 22
of the Model Law, whereby the arbitrator is provided with no guidance or
other rules and is authorised through his or her inherent or other powers
to resolve the issue in question. Indeed, this paradigm exists in statutory
instruments in both Model Law40 and non-Model Law jurisdictions.41
The rationale is that arbitrators are best suited to determine the appro-
priate language of the proceedings and that even if some guidance is
provided, the circumstances of any given case may be such as to require a
distinct methodology.
2.5 Language Requirements Imposed under Institutional Rules

Institutional rules supplement the pertinent rules of the lex arbitri and in
no way override them. In general, although institutional rules cannot
supersede party autonomy, some regional or industry-specific arbitral
institutions may designate the language of the seat or the preferred
language of the institution as the default language of proceedings, parti-
cularly if the bulk of its business is in that language.42 Hence, if the parties
have not chosen a language in their agreement and have designated a
particular institution to resolve their dispute, its rules are presumed as
being incorporated by reference in the agreement, including its manda-
tory language requirements, in their submission agreement.43 In cases
39
ICC Case 9875 (1999), partial award.
40
Portuguese AL, art. 32(1); Polish CCP, art. 1187(1); Saudi AA, art. 29(1).
41
English AA, s. 34(2)(b).
42
The Beth Din of America (BDA) Rules of Procedure provide that all proceedings are to be
conducted in English, unless the parties otherwise specify. See M. J. Broyde, I. Bedzow and
S. C. Pill, ‘The Pillars of Successful Religious Arbitration Models for American Islamic
Arbitration Based on the Beth Din of America and Muslim Arbitration Tribunal
Experience’ (2014) 30 Harvard J. Racial & Ethnic Justice 33, 50; equally, CIETAC Rules,
art. 81, designating Chinese as the default language.
43
This was accepted in CLOUT Case 1069, decided by the Croatian Supreme Court on 5
March 2008, Gž 6/08–2. The arbitration rules of the Economic and Agricultural Chamber
of the Czech Republic provided that oral hearings should be held, and decisions made, in

622 ar tic l e 22: l an guag e
where the parties have clearly expressed their preferred language in their
submission agreement, but subsequently embraced in their pleadings the
default language of their chosen institutional rules, it is assumed that the
latter language supersedes the former by reason of the party autonomy
rule.44
The rules of global arbitral institutions typically follow the paradigm of
article 22(1) of the Model Law, while also providing some guidance to
arbitrators. Article 20 of the ICC Rules, for example, provides that: ‘in the
absence of an agreement by the parties, the arbitral tribunal shall deter-
mine the language or languages of the arbitration, due regard being given
to all relevant circumstances, including the language of the contract’.45
This is close to the second (guidance) type identified in the previous
section.
Most global arbitral institutions view the language of proceedings as
one of the criteria for the appointment of arbitrators or chairman. This is
the case, for example, with article 30 of the CIETAC Rules.
2.6 Due Process Guarantees

We have already stated that the parties’ freedom to choose the language
of their arbitral proceedings overrides any other rule of the lex arbitri,
even if the chosen language would not ordinarily be ‘appropriate’, cost-
effective, produce delay or other.46 While the choice of language, whether
through express agreement or by incorporation, is not under contention,
the ‘use’ or ‘application’ of a chosen language by a tribunal in the course
Czech (or in Slovak). The respondent claimed that he was prevented from fully presenting
his case because of the mandatory language requirements. The Supreme Court rejected
this argument on the basis of party autonomy and incorporation by reference.
44
Oberlandesgericht München, 22 June 2009, 34 Sch. 26/08. In this case, the parties had
originally chosen English in their submission agreement, but in their pleadings accepted
the use of Spanish, as this was the official language of their institutional rules.
45
But see below the reluctance of an ICC tribunal, in Case 9875 (1999) (n. 39), to embrace
this guidance.
46
In A v. Vertex Standard Co., Ltd, decided by the Court of Appeal of The Hague, Case No.
385138/HA ZA 11–208 (24 July 2013), the parties had resolved to arbitrate a competition-
related dispute in Japan through the use of the Japanese language, although this was not
the language of the European party. The losing party sought to refuse enforcement of the
award in the Netherlands, arguing that arbitration in Japan constitutes a violation of art. 6
of the ECHR because, inter alia, the use of Japanese leads to unnecessary and unreason-
able delay and because the tribunal would never apply EU law. The Hague Appeals Court
rejected this argument.

of arbitral proceedings must not lead to a violation of either party’s right

to a fair trial.47
Party autonomy alone cannot substitute fair trial guarantees and, as
the Paris Court of Appeal has emphasised, arbitral tribunals are not
exempt from applying fair trial guarantees in their proceedings.48 The
Model Law (article 18) has also long subscribed to the fair trial principle
in arbitral proceedings. We shall limit ourselves here to situations perti-
nent to language use in arbitral proceedings that impact on the parties’
due process rights. Article 34(2)(ii) of the Model Law stipulates that an
award may be set aside if a party was unable to present its case or was
given insufficient notice. In Qingdao Free Trade Zone Genius Intl Trading
Co. v. P & S Intl, Inc., an award had been rendered in China which the
losing party challenged in the United States on the ground that insuffi-
cient notice had been provided of the arbitration in a language under-
stood by the defendant. The situation was further exacerbated by the fact
that the notice did not provide the names of the parties, the amount in
dispute or the relevant deadlines for the proceedings. The US District
Court held that due notice guarantees had been violated as a result of the
use of Chinese in the case at hand.49 No doubt, a notice50 made in a
language designated as the parties’ chosen language, even if not under-
stood by the defendant, is still a valid notice because it is assumed that the
parties have recourse to translators51 or counsel fluent with the language
in question.52 Hence, the only plausible situation where a language-
related notice violation can arise is where the parties had not designated
a language in their submission agreement and the claimant intentionally
notified the respondent in a language which he was sure not to under-
stand and which he could not have anticipated. The situation will further
be compounded if the notice was sent to a formal – but not the
47
See Caron and Caplan (n. 27), pp. 376–392, for a compilation of the case law of the Iran–
US Claims Tribunal related to art. 19 of the UNCITRAL Arbitration Rules’ language
choice and procedural guarantees.
48
Société Licensing Projects and Others v. Société Pirreli & C SpA and Others, Paris Appeals
Court judgment (17 November 2011); see also Mousaka v. Golden Seagull Maritime
[2001] 2 Lloyd’s Rep. 657.
49
Qingdao Free Trade Zone Genius (n. 18).
50
On the language of notices, see R. Wolff (ed.), New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards: Commentary (CH Beck, Hart, Nomos,
2012), pp. 295–296.
51
CLOUT Case 559, Oberlandesgericht Celle, 2 October 2001, 8 Sch. 3/01; Precious Stones
Shipping Ltd v. Querqus Alimentaria SA (2007) XXXII YB Com. Arb. 540, 548.
52
Oberlandesgericht München (n. 44).

624 ar tic l e 22: l an guag e
respondent’s working – address (in the knowledge that the respondent

rarely frequents his formal address), or at a time when it was known that
the defendant was away and the time limits for his response were severely
limited.
As regards inability to present one’s case, this will typically arise as a
preliminary issue where one of the parties has challenged the designation
of a default language by the tribunal in the absence of an express agree-
ment by the parties. It is only in the most extreme circumstances that the
tribunal will designate a language that was not at all anticipated by one of
the parties, in which case it will have an adverse effect on its ability to
present its case.53 In any event, it has already been explained that
tribunals usually offer the parties a preliminary hearing in order to give
them an opportunity to present their case. Article 28(1) of the Spanish
AA makes a very important contribution in this regard, by stipulating
that:
The party that alleges ignorance of the language will have the right to be
heard, to answer and to defend in the language that it uses, without this
allegation being able to justify the suspension of the proceeding.
It should be stated that a combination of equality and the right to present

one’s case demands that the party that is not fluent in the language of the
proceedings is entitled to the use of a translator if its counsel is not fluent
in such language.54 The use of a translator is assumed not to offend the
confidentiality of the proceedings, lest that party will be unable to present
its case.
Equality of treatment in accordance with article 18 of the Model Law
constitutes a general principle of law and is a fundamental component of
fair trial proceedings.55 In Ireland No. 3, Kastrup Trae-Aluvinduet A/S
(Denmark) v. Aluwood Concepts Ltd (Ireland), the losing party chal-
lenged a Danish award before the Irish High Court. One of the grounds
centred on the language of the arbitration. Although the use of Danish
had been agreed in advance, the losing party argued that its use ultimately
53
In ICC Case 7862 (1998) 3 Rev. Arb. 601, it was held that in order to respect equal
treatment and procedural simplicity, the default language should take into ‘account the
circumstance that the contract has to be drawn up in the languages of the parties’.
54
Article 570(2) and (3) of the Romanian CCP is one of the few statutes making express
reference to such an entitlement. The right to employ a translator in the proceedings is
supported by the travaux. See UNCITRAL, Analytical Commentary on the Draft Text of
the Model Law, UN Doc. A/CN.9/264 (25 March 1985), 50.
55
See generally D. J. Harris, M. O’Boyle, E. P. Bates and C. M. Buckley, Law of the European
Convention on Human Rights, 3rd edn (Oxford University Press, 2014), pp. 412–418.

3 . p ar agr ap h 2 625
prevented it from presenting its case. The High Court dismissed this
argument, stressing that there had been no violation of due process
because all documents had been duly communicated, Danish was the
language of the arbitration and the Irish defendant could have had the
documents translated.56
3. Paragraph 2
Once the parties have chosen, or the tribunal has determined, a
language or languages, this language shall be used, as declared in
paragraph 1 of article 22 of the Model Law, in respect of ‘any written
statement by a party, any hearing and any award, decision or other
communication by the arbitral tribunal’. Hence, the chosen or default
language of the proceedings does not extend to documentary evi-
dence supplied or submitted by the parties in the course of the
proceedings. In large and complex cases, such evidence may, and
usually is, voluminous. The parties will typically choose a language
for the proceedings, under paragraph 1, which is consistent with the
language of the majority of their documentary evidence, but this is
not always possible. They may, of course, translate such material on
their own initiative, particularly if the arbitrators are unfamiliar with
the language of such material, but they are not obliged to do so. That
the tribunal might apply its discretion (‘may’) in ordering that parti-
cular documentary evidence be translated does not entail that it may
not rely on evidence submitted but not translated on grounds of cost,
delay or other. The Paris Appeals Court has held that a tribunal
would not be exceeding its powers if it were to accept documentary
evidence that was not in the official language of the proceedings if the
material in question had already been used in the parties’ prior
correspondence in that non-official language.57 The same court has
taken the view that where the tribunal accepts translations of
excerpts, as opposed to the entirety of a document (on the ground
that only the excerpts are relevant), this selectivity may be viewed as
depriving the other party of its right to address such evidence.58
56
Ireland No. 3, Kastrup Trae-Aluvinduet A/S (Denmark) v. Aluwood Concepts Ltd (Ireland)
[2009] 169 MCA, judgment (13 November 2009).
57
Société Bombardier Transportation Switzerland v. Société Siemens AG, judgment (25 June
2005).
58
Blow Pack v. Windmöller et Hölscher (2013) 2 Rev. Arb. 538.

626 ar tic l e 22: l an guage
From a practical point of view, the tribunal is obliged to request or

order the translation of documentary evidence relied upon by a party if
the arbitrators are not fluent in the language at hand.59 A different
outcome would culminate in the parties’ unequal treatment and an
inability to present their case. Clearly, claims of violations of due process
rights will tend to be more common in respect of paragraph 2, rather than
paragraph 1, of article 22 of the Model Law.60
In practice, tribunals will rely on existing or ad hoc guidelines in order
to deal with the translation of evidence. The Iran–US Claims Tribunal
adopted such guidelines in 1985, whereby it distinguished between two
types of documents that did not require translation: first, correspondence
and intra-party communication; and, second, technical reports, invoices,
shipping documents and similar paperwork.61 The International Bar
Association (IBA) Rules on the Taking of Evidence in International
Arbitration, and particularly article 3(12)(d) thereof, are not particularly
enlightening as to whether certain documents may be translated in whole
or in part or in respect of the timing and submission of translations.62
The same can be said of the UNCITRAL Notes on Organising Arbitral
Proceedings.63
As to the form of the translation, paragraph 2 does not require that it be
authenticated. While domestic laws generally demand that awards and
submission agreements be certified and authenticated in enforcement
applications,64 such a rule does not apply by analogy to documentary
evidence relied upon by the parties, although, as we have already seen,
some jurisdictions are willing to forego such formalities.65 Authentication
and certification are costly and time consuming, although of course they
59
Unless, of course, the parties agree that no translation is required, as suggested by art. 28
(2) of the Spanish AA.
60
Article 29(2) of the Saudi AA, while following the wording of art. 22(2) of the Model Law
verbatim, adds that ‘in case of multiple languages, the arbitration tribunal may limit the
translation to some of them’.
61
Caron and Kaplan (n. 27), pp. 383, 387.
62
P. Ashford, The IBA Rules on the Taking of Evidence in International Arbitration: A Guide
(Cambridge University Press, 2013), pp. 53–54.
63
Especially para. 19.
64
Finnish AL, s. 43(2); French CCP, art. 1515. Even so, the enforcement court may exempt
the enforcing party from producing a certified translation; see also Bristol Business Corp.
v. Besuno Ltd (2011) 1(B) AAD 934 and Ukrainian Vodka Co. Ltd v. Nemiroff Intl Ltd,
judgment (December 2015), where Cypriot courts rejected the enforcement of a foreign
award that failed to comply with the requirements of art. VI(2) of the New York
Convention.
65
X v. Z, Case No. 5A_754/2011 (2 July 2012), decided by the Swiss Federal Supreme Court.

3 . p ar agr ap h 2 627
serve a very important purpose. It is, therefore, assumed that the parties
will examine in detail any evidence relied upon by their adversaries.
Consequently, any mistakes or distortions will be duly detected. The
party demanding certification and authentication will thus have to bear
the additional costs entailed.

Article 23
Statements of Claim and Defence

s h a h l a a l i an d t o m ka b a u
(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 otherwise 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.
1. Introduction and Background

Article 23 of the Model Law governs the submission of statements of
claim and defence.1 The article provides the parties with equal opportu-
nity of arguing their respective cases2 and, importantly, serves to set out
for the arbitral tribunal the facts and issues that will need to be decided.
The statements of claim and defence referred to in article 23 are usually
less formal than court pleadings.3 The statement of claim is to comple-
ment the request for arbitration that is provided for under article 23.4 The
1
UN Commission on International Trade Law, UNCITRAL Model Law on International
Commercial Arbitration 1985: With Amendments as Adopted in 2006 (United Nations,
2008).
2
See art. 18 of the Model Law, which states that ‘[t]he parties shall be treated with equality
and each party shall be given a full opportunity of presenting his case’.
3
4
628

1. introduction and background 629
statements are normally followed by further rounds of written and oral

defences.5 Other terms that may be used in reference to subsequent
submissions include ‘statements’, ‘briefs’, ‘counter-briefs’, ‘memorials’,
‘counter-memorials’, ‘rebuttals’, ‘répliques’ and ‘dupliques’.6 However,
these terms are simply a matter of linguistic usage.7 In the course of their
submissions, parties make or react to offers and suggestions, present or
make observations on evidence and claims, and refer to and explain
provisions of the law.8 The tribunal is expected to fix the timelines for
the exchange of various defences.9 Article 29 provides that these time
frames may be decided upon by the presiding arbitrator, if authorised by
the parties and members of the tribunal.10
The statements are often exchanged sequentially, but nothing prevents
a simultaneous exchange.11
Article 2(f) of the Model Law makes the provision at hand applicable to
counterclaims too;12 although article 23 does not expressly refer to set-
offs, the principle of set-off does apply,13 especially when there is a clear
nexus in the claims of the parties.14
In PT Prima Intl Development, a Singaporean Court established the
mandatory nature of the statements of claim and defence.15 German16
and Hong Kong courts reached the same conclusion.17
5
Choong and Weeramantry (n. 3), p. 263; UN Commission on International Trade Law,
UNCITRAL Notes on Organizing Arbitral Proceedings (United Nations, 2012), para. 38.
6
Ibid.
7
Ibid.
8
Ibid.
9
P. Sanders, ‘UNCITRAL’s Model Law on International and Commercial Arbitration:
Present Situation and Future’ (2005) 21 Arb. Intl 443, 455.
10
Ibid.
11
See American Independent Oil Co. Inc. (Aminoil) v. Government of the State of Kuwait
[1982] 21 ILM 976.
12
Eighteenth Session, UN Doc. A/40/17 (21 August 1985), para. 201; Report of the Working
Group on International Contract Practices on the Work of Its Seventh Session, UN Doc.
A/CN.9/246 (6 March 1984), para. 73.
13
K. H. Böckstiegel, S. M. Kröll and P. Nacimiento (eds), Arbitration in Germany: The
Model Law in Practice, 2nd edn (Kluwer, 2015), p. 275. See also Sanders (n. 9), p. 477.
14
Sanders (n. 9), p. 477.
15
PT Prima Intl Development v. Kempinski Hotels SA and other appeals [2012] 4 SLR
98, 113.
16
CLOUT Case 375.
17
S Co. v. B Co., Hong Kong Court of First Instance Judgment (24 July 2014), HCCT 12/
2013, HCCT 16/2013.

630 article 23 : s tatements of cla im and defence
Using articles 18 to 20 of the UNCITRAL Arbitration Rules as a blue-
print,18 article 23 of the Model Law was finalised after heated debates on
two matters. The first issue was in relation to whether or not statements
of claim and defence should be mandatory,19 and the second concerned
how far the arbitral tribunal could be empowered to limit a party’s right
to amend its claim or defence during the arbitral proceedings. Since the
words ‘amend’ and ‘supplement’ cover the submission of new claims,20
the requirements of article 23 extend to counterclaims as well. Article 2(f)
of the Model Law recognises the application of article 23 to counterclaims
and defences to counterclaims.
2.1 The Travaux of Paragraph 1

Failure to comply with article 23(1) will, under article 25 of the Model
Law, form a ground for an arbitral tribunal to terminate (in the case of a
claimant’s default) or proceed (in the case of a respondent’s default) with
the arbitral proceedings.21 Based on such implications, it is crucial to
18
Note by the Secretariat: Model Law on International Commercial Arbitration: Possible
Further Features and Draft Articles of a Model Law, UN Doc. A/CN.9/WG.II/WP.41
(1983), para. 21; Model Law on International Commercial Arbitration: Revised Draft
Articles A to G on Adaptation and Supplementation of Contracts, Commencement of
Arbitral Proceedings, Minimum Contents of Statements of Claim and Defence, Language
in Arbitral Proceedings, Court Assistance in Taking Evidence, Termination of Arbitral
Proceedings and Period for Enforcement of Arbitral Award: Note by the Secretariat, UN
Doc. A/CN.9/WG.II/WP.44), (1984) XV UNCITRAL YB 179, 182 (art. C).
19
One may argue that there is sufficient protection of parties’ rights under other provisions
of the Model Law, such as party autonomy in procedural matters (see art. 19(1)), equal
treatment requirement (see art. 18) and through the broad powers conferred on the
arbitral tribunal in conducting proceedings in the absence of parties’ agreement (see art.
19(2)).
20
Commercial Arbitration: Legislative History and Commentary (Kluwer, 1989), p. 649;
Arbitration: Report of the Secretary-General, UN Doc. A/CN.9/264 (25 March 1985), art.
23, paras 7–8.
21
The implication of the applicant defaulting to file his statement of claim, or the respon-
dent neglecting to provide his statement of defence, or any of the parties failing to appear
or produce documentary evidence within a reasonable period, and without sufficient
cause during the proceedings, was discussed in the Indian case of Maharashtra State
Electricity v. Datar Switchgear Ltd, 2003 (2) BomCR 81, para. 37. The court deliberations
in the Maharashtra case were in connection to ss 23 and 25 of the Indian Arbitration and
Conciliation Act, which generally replicate the provisions of arts 23 and 25 of the Model
Law. The court stated that in circumstances where the applicant failed to lodge his

2. t r a v a u x p r é pa ra to ires 631
understand the nature of article 23(1) of the Model Law. With regard to
statements of claim and defence, the Working Group was split into two
divergent views.22 On the one hand, some delegates proposed establish-
ing a mandatory requirement for both the submission of and elements of
the statements. On the other hand, other delegates advocated more
comprehensive but non-mandatory rules to ensure flexibility, having
considered that the parties may not necessarily agree on the arbitral
mechanisms in all circumstances. The first approach offered certainty
as to the act and scope of the submission, so parties and arbitrators could
be well informed of the dispute through the claims and counterclaims in
arbitration. It was criticised, however, for being excessively stringent,
potentially hindering the adoption of institutional arbitral rules.23
Although the Working Group deferred the debate,24 and subsequently
neither resolved nor discussed the question of whether the list of essential
elements should be mandatory, one may discern from the summary record
that article 23(1) of the Model Law should be thought of as a hybrid rule
requiring the mandatory provision of statements of claim and defence, but
allowing for some flexibility as to the presentation of those statements.25
In 1985, many delegates were opposed to a blanket mandatory rule,
since in most circumstances arbitration rules required different compo-
nents that were to be included in the statements of claim and defence.26
The United States suggested clarifying, in the wording of article 23(1),
that these statements should not be mandatory, so that any uncertainty as
to the nature of this paragraph could be eliminated.27 The delegates of
statement of claim, the arbitral tribunal should terminate the proceedings. Further, it
affirmed that in cases where the respondent neglected to provide his statement of defence,
the tribunal should continue the proceedings, but without regarding that failure as
constituting an admission of the applicant’s allegations against the respondent. The
court also clarified that in cases where any of the parties failed ‘to appear at an oral
hearing or to produce documentary evidence’, the arbitral tribunal should, nevertheless,
proceed with the hearing, granting the award on the basis of the evidence before it. See
also Arbitration and Conciliation Act, No. 26 of 1996 of India.
22
UN Doc. A/CN.9/WG.II/WP.41 (n. 18), paras 19–21.
23
CN.9/263 (19 March 1985), art. 23, para. 2. See also art. 15 of the London Court of
International Arbitration Rules (Submission of Written Statements and Documents).
London Court of International Arbitration, LCIA Arbitration Rules (October 2014).
24
25
Ibid., para. 25.
26
Summary Records of the 322nd Meeting, UN Doc. A/CN.9/SR.322, paras 31, 32, 35, 50.
27
UN Doc. A/CN.9/263 (n. 23), art. B.

632 a rt i cl e 23 : s ta te m e n ts o f c l aim an d d ef e n ce
France and Australia, however, insisted that some form of statement

should constitute a minimum essential requirement, as arbitrators must
be appraised of all the facts relied upon and issues raised by the parties in
order to adjudicate the dispute. A statement of the position of each party
would thus best serve such purposes.28
The debate was resolved by a proposal put forth by the then Soviet
Union, striking a balance between the two views by moving the phrase
‘unless the parties have otherwise agreed as to the required elements of
such statement’ towards the end of the first sentence.29 Therefore, the
submission of statements from each party would become mandatory,
subject to a time frame to be agreed by the parties, or otherwise stipulated
by the tribunal,30 but the elements of the statements would be varied by
agreement between the parties and would no longer be required in
written form.31 The use of the phrase ‘shall’, in relation to the statement
of claim and defence in article 23(1), points to the mandatory nature of
such submissions.32 However, the elements constituting the statement of
claim and defence may be agreed upon by the parties, and the clause was
formulated as such in order to grant them the freedom to decide ‘on the
specific rules of procedure in respect of the statements of claim and
defence’ if they so desired.33 The practice of permitting parties to agree
on the contents of the statements and incidental rules of procedure is
consistent with the principle of party autonomy in arbitration. In the M/S
Control Systems case, the Indian High Court pointed out that one of the
principles upon which the country’s Arbitration and Conciliation Act is
based is that of party autonomy on procedural issues.34 The court stated
that where a specific procedure is agreed upon in the arbitration agree-
ment, it then has to be generally resorted to by the parties and courts
would tend to require that it is complied with.35
28
UN Doc. A/CN.9/SR.322 (n. 26), paras 34, 46.
29
Ibid., para. 50.
30
Pursuant to art. 23 of the UNCITRAL Arbitration Rules, the time stipulated by the
arbitral tribunal cannot exceed forty-five days at any instance.
31
After much deliberation, the Commission Report noted that the parties may ‘submit with’
instead of ‘annex to’ (as is used by art. 18 of the UNCITRAL Arbitration Rules) their
statements all supporting documents because the latter wording might be read as requir-
ing a statement of claim or defence to always be in written form. See UN Doc. A/40/17 (n.
12), para. 197.
32
33
Ibid. See also UN Doc. A/40/17 (n. 12), para. 196.
34
M/S Control Systems v. MP Micro and Small Enterprises Facilitation Council and Others,
High Court of Madhya Pradesh, Case No. WP No. 2312/2017, para. 16.
35
Ibid.

The Analytical Commentary, however, noted that the parties might

not be entirely free to decide on when to reveal supporting documents
or evidence in light of the arbitral tribunal’s general discretion under
articles 19(2) and 25(c) of the Model Law regarding the submission of
evidence.36 Under article 19(2), the arbitral tribunal is empowered to
require that parties submit a summary of the documents and other
supporting evidence relied upon in the arbitral proceedings and, pur-
suant to article 25(c), a party to arbitration should produce documents,
exhibits or other evidence within a certain period of time.37
2.2 The Travaux of Paragraph 2

Unlike paragraph 1, it was not disputed in the Working Group that
paragraph 2 should be non-mandatory in relation to the parties’ right
to amend their claims or defences.38 Instead, the crux of the debate was
the extent to which an arbitral tribunal should be empowered to limit a
party’s right to amend its claim or defence during the course of arbitral
proceedings, especially in the absence of the parties’ agreement.
The initial draft of paragraph 2, as modelled on article 20 of the
UNCITRAL Arbitration Rules, was criticised for being too wide and
ambiguous to include ‘prejudice to the other party’39 or ‘any other
circumstances’ within the purview of arbitral tribunals. After delibera-
tions, the Commission opted to expunge reference to ‘prejudice to the
other party or any other circumstances’ from the draft clause.40 Some
delegates also advocated for an unrestricted right of the parties to amend
their statements, since (similar to court proceedings in respect of a civil
dispute) the apportionment of costs may be used to compensate for any
procedural prejudice found to have resulted from allowing the amend-
ment.41 However, this caused immense concern as to the potential abuses
36
37
Ibid.
38
Sixth Session, UN Doc. A/CN.9/245 (22 September 1983), para. 33; UN Doc. A/CN.9/246
(n. 12), para. 175.
39
It was argued that prejudice should not be an explicit factor under art. 23(2), as parties are
already treated with equality and given full opportunity of presenting their respective
cases, pursuant to art. 18 of the Model Law.
40
UN Doc. A/40/17 (n. 12), para. 200.
41
UN Doc. A/CN.9/263 (n. 23), art. 23, para. 4; Summary Records of the 323rd Meeting, UN
Doc. A/CN.9/SR.323, para. 9.

634 a rt i cl e 23 : s ta te m e n ts o f cl a i m an d d e f e n ce
of the right to amend, potential corresponding delays and additional

unnecessary costs.42
The final text of article 23(2) of the Model Law is a compromise
formulation which, therefore, should not be seen as an absolute exhaus-
tive list of factors to be considered in determining the parties’ right to
amend; rather, it merely shifts the emphasis to delay, which may take into
account the level of prejudicial effect the amendment has on the other
party,43 as well as the extent of and reason for the delay in amending or
supplementing the statements of claim or defence.44
Despite not being explicitly stated in article 23(2) of the Model Law,
the Secretariat noted that any amendment must not exceed the scope of
the arbitration agreement,45 which governs the jurisdiction of the arbitral
tribunal. It was argued that such amendments could nevertheless poten-
tially expand the limits of the arbitral agreement if such amendment was
not objected to, either in a timely manner or at all.
Thus, article 23 of the Model Law is made up of a mandatory compo-
nent in respect of statements and defences, and a non-mandatory com-
ponent in respect of the amendment and supplementation of those
documents. Given the extensive discussion at the Working Group
stage, and the importance of setting out the parties’ claims and defences
to those claims of the arbitral process, it is perhaps unsurprising that the
implementation of this article has largely been uncontroversial.
3. Paragraph 1
3.1 Within the Period of Time
Article 23(1) of the Model Law provides that the claimant shall state the
facts supporting his or her claim, and the respondent state his or her
defence ‘[w]ithin the period of time agreed by the parties or determined
by the arbitral tribunal’. Based on such explicit stipulation regarding the
period of time for the filing of the statements of claim and defence, there
is the question of the likely implication of delay in their submission. In
the Vishal Engineering Works case, the Indian Court stated that the
claimant had forfeited his right to submit the statement of claim after
failing to file it within the requisite time frame that included various
42
UN Doc. A/CN.9/SR.323, ibid., paras 8, 10, 11, 17; UN Doc. A/40/17 (n. 12), para. 199.
43
44
45
Ibid., art. 23, para. 5.

extensions of the period.46 The court observed that the arbitrator had
‘dismissed the case by treating the same as default … by holding that the
petitioner failed to file statement of claims in accordance with sub-
section (1) of section 23 of the [Arbitration and Conciliation] Act’,47
which is a replication of article 23(1) of the Model Law. The fact that the
claimant in the Vishal Engineering Works case was found to have for-
feited his right to file the statement of claim after various extensions of
the time frame indicates that the delay should be for an unreasonable
period.48 In 2017, the Swiss Supreme Court ruled that a short period
delay in the filing of the statement of claim does not warrant the invalida-
tion of the arbitral proceedings.49 During the arbitral proceedings, the
sole arbitrator refused the respondent’s request for the termination of the
hearing on the basis that the claimant had submitted his statement of
claim one day after the deadline set for such filing.50 In the Indian case of
ML Lakhanpal, the claimant petitioned the High Court challenging the
arbitrator’s decision of denying him an extension of time to file a state-
ment of claim in the arbitral proceedings.51 The High Court stated that
such an order could be challenged in court on the basis of section 34 of
the Indian Arbitration and Conciliation Act (on procedure and grounds
for setting aside an award, and similar to article 34 of the Model Law), or
section 14(2) of the Act (relating to unresolved controversy regarding the
arbitrator’s incapacity to perform his functions either in law or by fact,
which is similar to article 14(1) of the Model Law).52
3.2 Stating the Claim and Defence

Paragraph 1 stipulates that the parties to arbitration ought to submit
statements setting out the claim that is the subject of the dispute and the
defence to that claim. In practice, courts have clarified: first, the nature of
46
Vishal Engineering Works v. The Chief Engineer, High Court of Judicature at Bombay,
Arbitration Petition No. 106 of 2012, para. 1.
47
Ibid., para. 5. See Arbitration and Conciliation Act (India) (n. 21).
48
See Vishal Engineering Works (n. 46), para. 1.
49
T. Tschanz, ‘Ex Post Short Extension to File Statement of Claim Is No Ground for
Challenge’, International Law Office (25 May 2017), www.lexology.com/library/detail
.aspx?g=096db3a6-ba30-4442-b87b-5dc6d7cdc3c5. See also Swiss Federal Supreme
Court, Judgment 4A_405/2016 (2 March 2017).
50
Tschanz (n. 49). See also Supreme Court (n. 49).
51
ML Lakhanpal v. Darshan Lal and Another, High Court of Delhi, OMP (COMM) 447/
2017, para. 1.
52
Ibid., para. 41. See Arbitration and Conciliation Act (India) (n. 21).

statements of claim and defence; second, what constitutes a statement in

arbitral proceedings; and, third, what may be used to ascertain the scope
of disputes intended to be submitted to arbitration.
Many States have adopted article 23 of the Model Law without mod-
ification.53 Article 23(1) sets out the formal requirements of the state-
ments of claim and defence. The language of article 23(1) suggests that
the submission of the statements is of a mandatory nature (‘the claimant
shall state the facts supporting his claim’ and ‘the defendant shall state his
defence’).54
In line with the wording of the first sentence in paragraph 1, courts
have held that parties to arbitration have a mandatory obligation to file
statements of claim and defence. A German court reinforced this under-
standing since such statements are essential in defining the scope of
disputes.55 In this case, enforcement of the arbitral award was refused
in a dispute between a vendor and a purchaser as to the quality of two
truckloads of timber, due to the claimant’s default in submitting a state-
ment of claim. The courts of Hong Kong have adopted the same view as
to the mandatory nature of the obligation.56 In the Maharashtra State
Electricity case, the Indian Court affirmed that a failure by the claimant to
communicate his statement of claim would lead to the termination of the
proceedings, while the respondent’s failure to file his statement of
defence would result in default proceedings, including the making of
an award.57 In the Indian case of Bharat Heavy Electricals, the claimant
failed to file a statement of claim, resulting in the arbitrator terminating
the proceedings on the ground that the claimant had no interest in
pursuing the arbitration.58 The Indian court, however, explained that
the termination of the proceedings should only be undertaken where the
53
See, for instance: Arbitration and Conciliation Act (India) (n. 21), s. 23; International
Arbitration Act, No. 136 of 1974 of Australia, s. 16, which permits the direct application of
the Model Law. In particular, the Model Law is annexed to the Australian International
Arbitration Act as Sch. 2; International Commercial Arbitration Law, No. 101 of 1987 of
Cyprus, s. 23; Arbitration Ordinance, Chapter 609 of the Laws of Hong Kong, s. 51;
Arbitration Act, No. 4 of 1995 of Kenya, s. 24; Arbitration Act, No. 99 of 1996 of New
Zealand, s. 23, Sch. 1; International Arbitration Act, No. 15 of 2017 of South Africa, art.
23, Sch. 1; International Arbitration Act, Chapter 143A of the Laws of Singapore, art. 23,
first schedule.
54
Emphases added.
55
CLOUT Case 375.
56
S Co. (n. 17).
57
Maharashtra (n. 21), para. 37.
58
Bharat Heavy Electricals Ltd v. M/S Jyothi Turbopower Services Pvt. Ltd and Others, High
Court of Judicature at Madras, delivered on 7 June 2016, para. 2.

failure to file statement of claim was without sufficient cause.59 Therefore,

the court opined that if sufficient cause that had resulted in failure to file
the statement of claim was demonstrated, then the arbitral proceedings
should not be terminated.60 In that sense, a claimant has a right to be
heard by the tribunal after the termination of the proceedings, in order to
demonstrate that the quashing was erroneous, or that the proceedings
should be recalled on the basis of the existence of a sufficient cause that
contributed to his failure to file the statement of claim.61 In that context,
the Indian court explained that termination of arbitral proceedings on
the basis of the claimant failing to file the statement of claim does not
render the mandate of the arbitral tribunal functus officio (an entity
whose mandate has come to an end or expired).62
In particular, there may be the question of whether the arbitral tribunal
decision to terminate proceedings on the basis of the claimant’s failure to
file the statement of claim amounts to a final award, especially in the
context of the requirements for setting aside an award under section
article 34 of the Model Law. The issue was deliberated upon in the Indian
case of M/S Anuptech Equipments.63 In the case, the Indian court
observed that on the basis of section 25 of the Arbitration and
Conciliation Act, which replicates article 25 of the Model Law, an arbitral
tribunal could terminate proceedings where the claimant failed to
demonstrate sufficient cause after failing to communicate his or her
statement of claim.64 The court addressed the question of whether such
a decision was tantamount to an award under section 34 of the Act
(similar to article 34 of the Model Law), warranting a remedy on the
basis of section 34(2) of the Act, which replicates article 34(2) of the
Model Law.65 The court was of the view that the decision to terminate the
proceedings on the basis of the default of a party for non-compliance
with section 23 of the Act (article 23 of the Model Law) under section 25
(article 25 of the Model Law) was more of an order rather than a final
award within the meaning of section 32 of the Act, which replicates
article 32 of the Model Law.66 In that context, the Indian court opined
59
Ibid., para. 25.
60
Ibid.
61
Ibid.
62
Ibid., para. 27.
63
M/S Anuptech Equipments Private v. M/S Ganpati Co-op Housing, AIR 1999 Bom. 219,
para. 11.
64
Ibid. See Arbitration and Conciliation Act (India) (n. 21).
65
Ibid.
66
Ibid.

638 a rt i cl e 23 : s ta te m e n ts o f c l aim an d d e f e n ce
that an order of termination under section 25 of the Arbitration and

Conciliation Act (article 25 of the Model Law) due to failure to file the
statement of claim could not entitle the claimant to benefit from the
setting aside of the award under section 34 of the Act, which replicates
article 34 of the Model Law.67
This judicial reasoning was again affirmed in the Indian case of M/S SK
and Associates.68 In the subsequent case, the court noted that the ‘termi-
nation of proceedings, if [it] does not result in an award, [then it] cannot
give rise to a challenge under [s]ection 34 of the Act’.69 The court
proceeded to observe that the Arbitration and Conciliation Act of India
does not provide an explicit remedy against such an order of termination
of proceedings on default of a party,70 an opinion that is relevant to the
Model Law as the Indian legislation is its replication. Considering the
foregoing observation, there is the question of what remedy is available to
a claimant who defaults in the filing of the statement of claim with
sufficient cause.
First, as has been discussed, an Indian court has opined that a claimant
still has a right to be heard by the arbitral tribunal after the order of
termination of the proceedings for purposes of demonstrating that the
quashing was wrong, or that there was a sufficient cause which had
contributed to his failure to file the statement of claim.71 In particular,
the court in the Bharat Heavy Electricals case explicitly stated that the
termination of proceedings on the ground of the claimant failing to
provide the statement of claim does not render the arbitral tribunal
functus officio.72 Second, as an alternative, the Indian court in M/S SK
and Associates explained that there is a possibility that the claimant could
institute the claim afresh in case it was still within the period of limitation
of time.73 However, besides the limitation of time challenges in the
institution of fresh arbitral proceedings, this alternative avenue may
also face further obstacles arising from the principle of res judicata
(a claim has already been adjudicated upon by a competent tribunal or
67
Ibid.
68
M/S SK and Associates and Another v. Indian Farmers and Fertilizers Cooperative Ltd,
Phoolpur, Allahabad and Another, High Court of Judicature at Allahabad, Civil
Miscellaneous Arbitration Petition No. 73 of 2009, paras 19–20.
69
Ibid., para. 20.
70
Ibid.
71
Bharat (n. 58), para. 25.
72
Ibid., para. 27.
73
M/S SK and Associates (n. 68), para. 20.

court and should, thus, not be pursued afresh in relation to the same
parties) in most jurisdictions.
With regard to the failure of the respondent to file the statement of
defence, the Indian court in the Vipul Agarwal case affirmed that the
tribunal would still proceed with the hearing of the claim, but without
treating the default as an admission of the allegations raised by the
claimant.74 In the National Oil Corp. case, the Kenyan court affirmed
that a respondent who defaults in filing his defence without plausible
reasons should not be permitted to later argue that he was denied the
opportunity to participate or be heard in the arbitral proceedings.75
It should be noted that although the parties may come to a mutual
agreement about the required elements of the statements under para-
graph 1, the wording of the paragraph does not empower the parties to
contract out of making and exchanging such statements. This serves to
reinforce the mandatory nature of paragraph 1.
3.3 Elements of Statements

The elements set out in article 23(1) will only apply if the parties have no
contrary agreement as to the required elements of the statements. These
requirements may vary depending on the agreement between the parties.
As such, if the parties agree to some other arrangement, the statements of
claim and defence do not necessarily have to embody the elements as set
out in article 23(1). Again, it should be noted that the non-mandatory
character encompasses only the context of what constitutes a statement
of claim and defence, but it does not extend to the submission of such a
statement during arbitral proceedings (i.e. it is still mandatory). It was
acknowledged at the drafting stage that it would be unreasonable to
burden the claimant with the requirement of stating all the issues at
that early stage of the proceedings.76 It was specifically pointed out that it
was likely the claimant would become aware of some other issues only
after being informed of the defences on which the respondent intended to
rely.77
74
Vipul Agarwal v. Atul Kanodia and Co., AIR 2003 All 280, para. 23.
75
Natl Oil Corp. of Kenya Ltd v. Prisko Petroleum Network Ltd [2014] eKLR, para. 44.
76
UN Doc. A/CN.9/245 (n. 38), para. 30.
77
Ibid. It has also been explained that:
It is always … difficult at the outset of an arbitration to describe the dispute fully, much
less to state with confidence just what relief is sought. Arbitrations are often commenced

640 article 23: statements of claim and defence
As neither the final text nor legislative history documents further

elaborate what constitutes a ‘statement’, Canadian courts have clarified
that a ‘statement’ in the context of arbitral proceedings is equivalent to
a ‘pleading’ in civil litigation, as was duly held in the Bab Systems
case.78 The claimant in the Bab Systems case delivered to the respon-
dent, on the day after being granted provisional relief by the court, a
written confirmation of its intention to submit the dispute to arbitra-
tion. The court held, inter alia, that a ‘statement’ refers to the first
statement made in the arbitral process, not the litigation proceedings.
If the claimant has not submitted such a statement, its request for
submission to arbitration is timely within the ambit of article 23(1) of
the Model Law.
With regard to the elements of a statement of claim itself, a minimalist
approach is, at times, preferred over a libertarian approach.79 As the
claims in litigation and arbitration may differ, the respondents merely
need to be provided with sufficient information as to the nature and the
amount of claim in order to assess their position. A fully articulated claim
from the outset is not mandatory. However, if the claim is not fully
articulated in the initial statement, it should be completely pleaded in
subsequent hearings and documentary exchanges in order to ensure that
the arbitral tribunal takes into account all the relevant issues, interests
and rights of the claimant. In the Vishal Engineering Works case, the
Indian court observed that although there is no explicit provision on the
length or essential documents that must be filed together with the state-
ment of claim or defence, for the dispute to be adjudicated appropriately,
parties should file their pleadings and supporting materials.80 In that
context, in cases where some essential pleadings or documents are
omitted in the statement of claim, they should be availed to the arbitral
tribunal and opposing party within a reasonable period of the proceed-
ings. Further, in the Iqbal Ali case, the Indian court was of the view that
in some haste, and occasionally in some heat. And parties, and their lawyers, like to keep
their options open.
J. M. Townsend, ‘The Initiation of Arbitration Proceedings: “My Story Had Been
Longer”’ (1998) ICSID Rev. 21, 24.
78
Bab Systems, Inc. v. McLurg, Ontario Court of Justice, General Division, Canada, 21
December 1994. See also ‘2012 Digest of Case Law’ (n. 4), p. 109.
79
J. Waincymer, ‘Promoting Fairness and Efficiency Procedures in International
Commercial Arbitration – Identify Uniform Model Norms’ (2010) 3 Contemp. Asia
Arb. J. 25, 50. See also UN Doc. A/CN.9/233 (n. 24), paras 24–25.
80
Vishal Engineering Works (n. 46), para. 4.

failure to sign the statement of claim rendered it invalid ‘in the eyes of
[the] law’, warranting the termination of the proceedings.81
Despite the minimalist approach to the crafting of a statement of claim
under article 23 of the Model Law, it should demonstrate the intention to
resolve an existing dispute through arbitration. In Quintette Coal, the Court
of Appeal for British Columbia held that a statement should state the issues
in question, enumerate the facts backing the claim and outline the relief
sought.82 Generally, institutional rules enumerate the minimum require-
ments in relation to the materials to be included in the instrument com-
mencing arbitration, such as a request and the accompanying statement of
claim.83 Minimum requirements are enumerated under article 4(3) of the
International Chambers of Commerce (ICC) Rules,84 chapter III, rules 23
to 25 of the International Centre for Settlement of Investment Disputes
(ICSID) Rules,85 rule R-4(e) of the American Arbitration Association
(AAA) Rules86 and article 3(3) of the UNCITRAL Arbitration Rules.87
Since institutional rules operate as a jurisdictional checklist, the
request for arbitration may be deficient if it omits an explicitly enumer-
ated item, but it does not necessarily imply that it will be persuasive and
sufficient simply because of the inclusion of each listed element.88
Claimants are advised to describe in better detail their claims in the
statement that accompanies the request for arbitration.89 It should be
noted that since the request and the statement of the claim are the first
documents that the arbitral tribunal will examine, it is vital that they
create a profound first impression for the claimant.90
81
Iqbal Ali v. Mahindra and Mahindra Financial Services Ltd, Court of Shri Vinod Goel,
Additional District and Sessions Judge, (East) Karkardooma Courts, Delhi, Suit No. 9 of
2010, para. 24.
82
Quintette Coal Ltd v. Nippon Steel Corp., Court of Appeal for British Columbia [1990] BCJ
No. 2241, para. 21. See also ‘2012 Digest of Case Law’ (n. 4), p. 109.
83
84
International Chamber of Commerce, Arbitration Rules/Mediation Rules (December
2017).
85
Rules of Procedure for Arbitration Proceedings (Arbitration Rules) of the International
Centre for Settlement of Investment Disputes.
86
American Arbitration Association, Commercial Arbitration Rules and Mediation
Procedures (Rules amended and effective 1 October 2013).
87
UNCITRAL Arbitration Rules (With New Article 1, Paragraph 4, as Adopted in 2013)
(United Nations, 2014).
88
89
Ibid., p. 24.
90
Ibid.

642 arti cle 23: statements o f cla im and defence
In essence, an ideal request and statement of claim should outline a

precise, coherent and convincing narration of the dispute and the trans-
actions that resulted in its occurrence.91 It should provide a compelling
explanation of the elements of the claim such that the arbitral tribunal is
given the impression that something requires to be done for the claimant
in the interest of justice.92 The request and statement of claim should be
drafted in a way that grants the claimant an advantage over the substan-
tive and procedural issues in law, with care not to unnecessarily disclose
issues that will place him or her at a disadvantage.93 For instance, if the
claim is likely to have been affected by a limitation period, it should not
be raised in the statement of the case, and it should be left to the
respondent to make such allegations in the defence, upon which the
claimant can address the imputations in the reply.94
Parties to arbitration should plead their case in full, and the statement
of claim is an important component of the pleadings. In the Deekay
Contractors case, the Kenyan court emphasised that in arbitration:
[T]he long standing principle of law is that parties should plead their cases
with such all particulars and details required in law in order to make the
other aware of the kind of case the party is faced with, and also to enable
that party to respond or defend the case appropriately. That is not all.
Proper pleading enables the presiding tribunal to effectually and comple-
tely resolve the real issues in dispute. Thence, parties are bound by their
pleadings.95
The provisions of section 24 of the Kenyan Arbitration Act, which were

partly the subject of interpretation by the court in the Deekay Contractors
case, are a replication of article 23 of the Model Law.96 The statement of
claim and pleadings should be as comprehensive as possible so that any
relevant rights or interests of the claimant are protected, otherwise it may
not be possible to protect and enforce them after the arbitral award is
made. In the Singaporean case of PT Prima Intl Development, the court
stated that if an issue is not part of or directly related to the dispute
submitted for arbitration, then it could not be introduced after the
award.97 That reasoning had earlier been affirmed in the PT Asuransi
91
Ibid.
92
Ibid.
93
Ibid., p. 26.
94
A. Tweeddale, ‘Delay in Commencing an Arbitration’ (2002) 68 Arbitration 238, 238.
95
Deekay Contractors Ltd v. Construction and Contracting Ltd [2014] eKLR, para. 21.
96
Arbitration Act (Kenya) (n. 53).
97
PT Prima Intl Development (n. 15), p. 112.

case, where the Singaporean court opined that ‘an arbitral tribunal has no
jurisdiction to decide any issue not referred to it for determination by the
parties’.98 In both the PT Prima Intl Development and PT Asuransi cases,
reference was made to the UK decision in London and North Western,
where Lord Halsbury observed that an arbitral award is granted on the
basis of the submission of the parties and, therefore, a new dispute could
not be permitted to be introduced by one of the parties if it was not within
the scope of the earlier submissions.99
The Singaporean court in the PT Prima Intl Development case affirmed
that article 23 of the Model Law requires that pleadings, which primarily
constitute statements of claim and defence, must compulsorily be filed.100
The court clarified that the compulsory requirement of the filing of such
arbitral submissions is to ‘provide a convenient way for the parties to
define the jurisdiction of the arbitrator by setting out the precise nature
and scope of the disputes in respect of which they seek the arbitrator’s
adjudication’.101 It is due to such realities that, as the Singaporean court
observed, an arbitral tribunal lacks ‘jurisdiction to resolve disputes which
have not been referred to it in the submission to arbitration’.102 The court
proceeded to enumerate the objectives and purposes of pleadings as
including, first, outlining with accuracy and clarity the issues in dispute
that require determination by the tribunal.103 Second, pleadings are part
of the issuance of a fair and proper notice to the respondent so that he or
she can prepare for the case and frame his or her response appropri-
ately.104 Third, pleadings inform the tribunal of the scope and nature of
the dispute between the parties, whose jurisdictional limits cannot sub-
sequently be extended without appropriate amendments.105 Fourth,
pleadings provide a readily available concise summation of the submis-
sions of each party, which constitute a permanent record of the dispute,
the issues raised in the proceedings and the decision reached, and which
98
PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2007] 1 SLR 597, para. 37.
99
London and North Western and Great Western Joint Railway Cos v. JH Billington, Ltd
[1899] AC 79, 81.
100
101
Ibid.
102
Ibid.
103
Ibid., 114.
104
Ibid. On the necessity of the arbitral tribunal to afford an appropriate opportunity to all
parties to make their submissions and arguments on the issues raised in connection to
the dispute, see also Deekay (n. 95), para. 22.
105

644 article 23: statements of clai m and defence
is useful in preventing future litigation in matters that have already been

adjudicated upon between the same parties.106
The principle that arbitral tribunals should not extend beyond the
pleadings of the parties, which include the statements of claim and
defence, has been affirmed in various jurisdictions. For instance, in the
Deekay Contractors case, the Kenyan court affirmed that the tribunal
should restrict its jurisdiction to the ‘issues that have been pleaded or
arise in the course of proceedings or are agreed on by the parties’.107 The
Kenyan court specifically proceeded to opine that:
Even where the tribunal out of own industry finds a point of law which is
most relevant to the case, and on which the decision of the tribunal might
turn on the particular issue; the arbitral tribunal should afford the parties
an opportunity to address it on the point. Therefore, as long as an issue is
not pleaded or addressed by the parties during the trial, the arbitral
tribunal can only determine such issue or dispute in violation of the
law, hence, without jurisdiction. A decision so reached is unlawful, null
and void.108
In the Soh Beng Tee case, the Singaporean court emphasised that arbi-
trators should not ‘surprise the parties with their own ideas’.109 In the UK
Fox case, Lord Denning opined that an arbitrator should not ‘use his
special knowledge … to provide evidence on behalf of the defendants
which they have not chosen to provide for themselves’.110 According to
Lord Denning, if an arbitrator were to introduce issues and evidence not
pleaded by the parties, ‘then he would be discarding the role of an
impartial arbitrator and assuming the role of advocate for the defaulting
side’.111 In the Ng Chin Siau case at the Singaporean High Court, it was
held that it is ‘essential in arbitration proceedings’, as opposed to being
merely ‘important in litigation’, that arbitrators are not entitled to make
decisions on points that have not been addressed by the parties.112 A
Canadian court also confirms this position.113
106
Ibid.
107
Deekay (n. 95), para. 22.
108
Ibid.
109
Soh Beng Tee and Co. Pte Ltd v. Fairmount Development Pte Ltd [2007] 3 SLR(R) 86,
para. 44.
110
Fox and Others v. PG Wellfair Ltd [1981] 2 Lloyd’s Rep. 514.
111
Ibid.
112
Ng Chin Siau and Others v. How Kim Chuan, Singaporean Court of Appeal judgment,
[2007] 4 SLR 809; [2007] SGCA 46, para. 26.
113
Alenco Inc. v. Niska Gas Storage US, Alberta Court of Appeal, Canada, LLC [2009]
AWLD 2128.

In the Consolidated case, the Canadian Court, however, seemed to deviate

from the approach discussed above when it stated that, unlike in domestic
arbitration, it is acceptable under ‘international arbitration that the fact that
arbitrators may have based their decision on allegations or arguments which
were not put forward by the parties does not [necessarily] amount to a
failure to comply with their brief’.114 According to the Canadian court,
arbitrators in international arbitral proceedings can only be deemed to have
stepped out of their jurisdiction by granting a party an award that is more
than what the party sought.115 Further, in the Quintette case, the claimant
sought to set aside an arbitral award relating to a pricing review mechanism
under a long-term supply agreement, on the ground that it exceeded the
arbitrator’s jurisdiction.116 The British Columbia Court of Appeal unan-
imously upheld the arbitral award and decided, inter alia, that there should
be a strong presumption of arbitral tribunals acting within their powers.117
Such an approach has been justified on the basis of the need to recognise and
support the ‘world-wide trend toward restricting judicial control over
international commercial arbitration awards’,118 in light of growing con-
cerns for the respect for capacities of tribunals and predictability of inter-
national commercial dispute resolution.
It can be argued that the Quintette decision indicates that Canadian
courts are prepared to endorse and uphold the independence of the
arbitral process.119 It is submitted that, to encourage adoption of the
Model Law and arbitration, courts should indeed accord a high degree of
deference to tribunals so long as they act within the limits of the powers
given to them under an arbitral agreement. Minimising judicial inter-
vention preserves parties’ mutual intentions and autonomy as set out in
their agreement. It can plausibly be argued that, in most circumstances, it
should be for the arbitral tribunal, not the courts, to decide whether an
issue is beyond the scope of the arbitration agreement.120 Nevertheless, it
114
Consolidated Contractors Group SAL v. Ambatovy Minerals SA (2016) ONSC 7171, para. 62.
115
Ibid.
116
Quintette Coal (n. 82).
117
Ibid.
118
H. Alvarez, D. W. Rivkin and N. Kaplan, Model Law Decisions: Cases Applying the
UNCITRAL Model Law on International Commercial Arbitration (1985–2001) (Kluwer,
2003), p. 218.
119
R. Paterson, ‘Canadian Developments in International Arbitration Law: A Step beyond
Mauro Rubino-Sammartano’s International Arbitration Law’ (1991) 27 Willamette L.
Rev. 573, 583.
120
L. Biukovic, ‘Impact of the Adoption of the Model Law in Canada: Creating a New
Environment for International Arbitration’ (1998) 30 Canadian Business LJ 376, 386.

646 article 23: statements of claim and defence
is more appropriate that where the arbitral tribunal considers that certain
issues have not been addressed, or the parties have not framed their cases
correctly, such concerns be conveyed to the parties, who should then be
allowed to amend their statements accordingly.121
3.4 Agreement of the Parties on Elements

The flexible approach regarding the content of a statement is not applic-
able in all jurisdictions. It is notable, for example, that the approach
under section 1046 (‘Statements of claim and defence’) of the German
Code of Civil Procedure (CCP) does not grant parties the same freedom
as article 23(1) of the Model Law.122 The German CCP only allows parties
or the arbitral tribunal to determine the time limit for submitting state-
ments, but it does not allow the parties to alter the required content, even
by mutual agreement. Section 1046 provides that:
(1) Within the period of time agreed by the parties or determined by the
arbitral tribunal, the claimant shall state his claim and the facts
supporting the claim, and the respondent shall state his defence in
respect of these particulars. The parties may submit with their state-
ments all documents they consider to be relevant or may add a
reference to 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
without sufficient justification.
(3) Subsections 1 and 2 apply mutatis mutandis to counterclaims.123
As regards section 1046(1) of the German CCP, the parties are allowed to
expand, but not to reduce, the required components of a statement of
claim. Under the German Code, these are considered to be the minimum
requirements indispensable for defining the subject matter of the
dispute.124
121
See e.g. Alenco (n. 113); Ng Chin Siau (n. 112), para. 26; ‘2012 Digest of Case Law’ (n. 4),
p. 110.
122
Code of Civil Procedure of Germany, as Promulgated on 5 December 2005
(Bundesgesetzblatt (BGBl, Federal Law Gazette)), Last Amended by Article 1 of the
Act Dated 10 October 2013 (Federal Law Gazette, p. 3786).
123
Ibid.
124
Böckstiegel et al. (n. 13), pp. 275–276.

Similarly, article 30 of the Egyptian Arbitration Law restricts the

parties’ freedom in determining what the required content of statements
of claims and defences may be.125 The requirements for a statement of
claim and a statement of defence are separated into different subsections
under the Arbitration Law. Article 30 of the Arbitration Law provides
that:
1. Within the period of time agreed by the two parties or determined by
the arbitral tribunal, the claimant shall send to the respondent and to
each of the arbitrators a written statement of its case that includes its
name, address, the respondent’s name and address, an explanation of
the facts of the case, the determination of the points at issue in the
dispute, the relief or remedy sought as well as all other elements which
are required to be mentioned in such statement by agreement between
the two parties.
2. Within the period of time agreed by the two parties or determined by
the arbitral tribunal, the respondent shall send to the claimant and to
each of the arbitrators a written statement of defence in reply to the
Statement of the claimant’s case. He may include in such statement
any incidental claims related to the subject matter of the dispute or
may invoke a right arising thereunder in view of raising a plea for
setoff. He may do so even at a later stage of the proceedings, if the
arbitral tribunal deems that the circumstances justify the delay.
3. Both the claimant and the respondent are free to enclose with the
statement of claim or with the statement of defence, as the case may
be, copies of the documents supporting the position of the concerned
party, and may add a reference to all or some of the documents and
evidence it intends to submit. This does not prejudice the right of the
arbitral tribunal, at any stage of the proceedings, to request the sub-
mission of the originals of the documents or materials invoked by
either party to support its case.126
During the drafting stage of the Model Law, concern was expressed that
an overly strict formulation of the non-mandatory character of the
details of the statements of claim and defence would deter parties
from utilising established institutional arbitral rules.127 Such rules
125
Law Concerning Arbitration in Civil and Commercial Matters, Law No. 27/1994 of
Egypt.
126
Ibid.
127
UN Doc. A/CN.9/263 (n. 23), art. 23, para. 2; UN Doc. A/CN.9/SR.322 (n. 26), paras
31, 35.

648 article 23: statements o f cla im and defence
would usually set out more detailed requirements for the contents of
statements of claim and defence than the Model Law. Article 15 of the
London Court of International Arbitration (LCIA) Rules, for example,
provides clear details as to the required content of written statements
and documents.128 The LCIA Rules also set out time limits for sub-
mitting statements of claim and defence, the particulars of the state-
ments, and directions in the event of multiple claimants. It should also
be noted that some Model Law jurisdictions go further and require
that the statements of claim and defence be submitted within a specific
time frame.129 While article 23 clearly makes the exchange of state-
ments and defences mandatory, it leaves much room for implementing
States to decide the elements of such statements, and the extent to
which the parties may or may not determine such elements.
Approaches to statements and defences may thus differ from jurisdic-
tion to jurisdiction.
3.5 Jurisdictional Questions and the Filing of Statement

of Defence
There are circumstances in which the respondent may be interested in
challenging the jurisdiction of the arbitral tribunal upon being served
with the request and statement of claim. While, on one part, the manda-
tory requirement of filing a statement of defence is enshrined in article
23(1) of the Model Law, article 16(2) on the other part requires that the
respondent should raise the petition that the arbitral tribunal should not
proceed with the matter due to the lack of jurisdiction before the sub-
mission of the statement of defence. In the Fiona Trust case, the UK court
affirmed that by virtue of section 31 of the 1996 Arbitration Act (which
has similar requirements to the Model Law) any objection to the jurisdic-
tion by a respondent ‘must be taken before any step is taken to contest the
merits of the matter’.130 In particular, section 31(1) of the Arbitration Act
of the United Kingdom is similar to article 16(2) of the Model Law, which
the UK High Court affirmed as requiring ‘a party who objects that the
tribunal lacks substantive jurisdiction … [to] make that objection not
later than the time when he takes the first step in the arbitral proceedings
128
LCIA (n. 23).
129
Including Greece (art. 23 of Law 2735/1999) and Nicaragua (art. 49 of Law No. 540).
130
Fiona Trust & Holding Corp. and Others v. Privalov and Others [2007] 1 All ER (Comm.)
891, para. 33. See Arbitration Act of 1996 (Chapter 23) (applicable to England, Wales and
Northern Ireland).

3 . p ar agr ap h 1 649
to contest the merits which are in issue’.131 In that context, challenging

the jurisdictional powers of the tribunal on the basis of article 16(2) of the
Model Law by the respondent may, but not always, suspend the require-
ment of filing the statement of the defence under article 23(1), until the
issue is determined.
By virtue of article 16(2) of the Model Law, participation in the
appointment of arbitrators does not preclude the respondent from rais-
ing the plea of the tribunal’s lack of jurisdictional powers. The
Singaporean court in the PT Tugu Pratama Indonesia case acknowledged
that the challenge on jurisdiction, as provided under the Model Law, is
before the tribunal itself.132 In that sense, it is necessary that the respon-
dent’s participation in the appointment of arbitrators who may then
address jurisdiction issues should not prejudice his contention, for
instance, by being construed as implying or inferring his or her accep-
tance of the tribunal’s jurisdictional powers.
Article 16(1) of the Model Law grants the tribunal the competence to
decide on matters relating to its own jurisdictional powers. In circum-
stances where the tribunal holds that it has the authority to proceed with
the arbitration, and the respondent is dissatisfied, article 16(3) of the
Model Law provides that he or she may request a competent court to
decide on the issue, and the ensuing decision cannot be appealed. In the
case of the United Kingdom, the court in the Fiona Trust case also
affirmed that although the arbitral tribunal has competence to decide
on its jurisdiction under section 30 of the 1996 Arbitration Act, section
32 of the Act still permits courts to determine the preliminary issues of
jurisdiction as an appeal.133
By virtue of article 16(3) of the Model Law, the arbitral tribunal may
opt not to rule on the question of its jurisdiction as a preliminary issue,
and decide to address the matter together with its decision on the award
at the merits stage. As was stated by the Hong Kong court in the Fung
Sang Trading case, the decision of the tribunal on its merits is also
neither final nor exclusive, as it is still open to immediate and final
review by a court under article 16(3) of the Model Law, or through an
application in court for the setting aside of the award by virtue of article
34 of the Model Law.134 Where a court has been called upon to decide
131
Vee Networks Ltd v. Econet Wireless Intl Ltd [2004] APPLR 12/14, para. 23. See
Arbitration Act of 1996, ibid.
132
PT Tugu Pratama Indonesia v. Magma Nusantara Ltd [2003] SGHC 204, para. 12.
133
Fiona Trust (n. 130), para. 33. See Arbitration Act of 1996 (n. 130).
134
Fung Sang Trading Ltd v. Kai Sun Sea Products and Food Co. Ltd [1991] 2 HKC 526, 537.

650 article 23 : s tatements of cla im and defence
on the issue of the tribunal’s jurisdictional powers while the arbitral

proceedings are pending, the court should determine the issue with the
promptness deserved.135
The capacity of the arbitral tribunal to decide on its jurisdiction is
referred to as the competence-competence rule. In the Safaricom Ltd
case, the Kenyan court, while evaluating the nature of the tribunal’s
power to rule on its jurisdiction, explained that the principle is known
as competence-competence.136 It implies the arbitral tribunal’s compe-
tence to decide on its competence, and is referred to as ‘kompetenz-
kompetenz’ in German, and as ‘competence de la competence’ in
French.137 In the case of the United Kingdom, the High Court in the
Vee Networks case affirmed that section 30 of the 1996 Arbitration Act
grants an arbitral tribunal the ‘“competence” to rule on its own “substan-
tive jurisdiction”’.138
It is not always that a challenge to the jurisdictional powers of the
arbitral tribunal by the respondent results in the suspension of the
mandatory obligation to file a statement of defence (under article 23(1)
of the Model Law) or the deferment of the proceedings before the
determination of the issue. Article 16(3) of the Model Law is clear that
the arbitral tribunal may rule on the petition ‘either as a preliminary
question or in an award on the merits’. As the Hong Kong Court of
Appeal affirmed in Inc. Owners of Tak Tai Building case, by virtue of
article 16(3) of the Model Law, an arbitral tribunal could rule on the
question of its jurisdictional competence ‘either as a preliminary question
or in an award on the merits’.139
Where the tribunal decides to address the issue of its competence
in the final award in the merits, and the respondent fails to appeal
such a decision in court, he or she is then under a mandatory
obligation to file a statement of defence in accordance with article
23(1) of the Model Law. If the respondent still fails to file his or her
statement of defence in such circumstances, then the arbitral pro-
ceeding will still proceed despite the default by virtue of article 25(b)
of the Model Law.
135
M. Ball, ‘The Essential Judge: The Role of the Courts in a System of National and
International Commercial Arbitration’ (2006) 22 Arb. Intl 73, 86.
136
Safaricom Ltd v. Ocean View Beach Hotel Ltd and Two Others [2010] eKLR.
137
Ibid.
138
Vee Networks (n. 131), para. 22. See Arbitration Act of 1996 (n. 130).
139
Inc. Owners of Tak Tai Building v. Leung Yau Building Ltd, Court of Appeal, Civil Appeal
No. 230 (2004), para. 13.

4. Paragraph 2
4.1 Making Amendments and Supplements
Paragraph 2 seeks to provide flexibility to the parties in respect of their
submitted statements by allowing them to amend or supplement their
claims or defences during the course of arbitral proceedings. Article 23(2)
seeks to regulate such changes to the pleadings. In practice, cases may
evolve during the course of the arbitral proceedings,140 and very often no
formal amendment is made to the initial statements of claim and defence
as the formal rules regulating court pleadings do not apply in arbitra-
tion.141 When an arbitral tribunal decides whether such amendment
should be allowed, it will likely have to balance the inconvenience and
prejudice involved.142
Two potential ambiguities may arise with regard to the interpretation
and application of article 23(2) of the Model Law, namely: what factors
should be considered in relation to delays to making amendments or
applying to make amendments to pleadings; and, more importantly,
whether or not parties have an unqualified right to amend or supplement
their respective claims or defences.
4.2 Delay
Article 23(2) is non-mandatory in nature. The right to amend is available
where there is no contrary agreement between the parties, and the
arbitral tribunal considers it appropriate. The parties may reach an
agreement to adopt established arbitral rules that address the issue of
amendments and supplements. For example, article 22 of the
UNCITRAL Arbitration Rules requires that further conditions should
be met before an amendment may be accepted.143 Article 22 of the
Arbitration Rules provides that:
During the course of the arbitral proceedings, a party may amend or
supplement its claim or defence, including a counterclaim or a claim for
the purpose of a set-off, unless the arbitral tribunal considers it inap-
propriate to allow such amendment or supplement having regard to the
delay in making it or prejudice to other parties or any other circumstances.
However, a claim or defence, including a counterclaim or a claim for the
140
Böckstiegel et al. (n. 13), p. 272; Choong and Weeramantry (n. 3), p. 264.
141
Choong and Weeramantry (n. 3), p. 264.
142
Ibid.
143
UNCITRAL Arbitration Rules (n. 87).

652 a rt i cl e 23 : s ta te m e n ts o f c l aim an d d ef e n ce
purpose of a set-off, may not be amended or supplemented in such a
manner that the amended or supplemented claim or defence falls outside
the jurisdiction of the arbitral tribunal.144
As article 22 demonstrates, under the UNCITRAL Arbitral Rules, in

addition to any delay in making amendments, the arbitral tribunal may
consider the prejudice to the other party and any other circumstances
that may be relevant to any amendments or supplements. One may argue
that since ‘prejudice to the other party’ and ‘any other circumstances’ are
no longer explicit factors under article 23(2) of the Model Law, the
tribunal should only consider the issue of possible delays to the applica-
tion in deciding whether to allow amendments or supplements. Although
in most circumstances delays are avoidable in practice,145 the tribunal
will inevitably, in the interests of fairness, consider the effect of the delay
on the other party in making the application, which usually comes in the
form of prejudice as to the parties’ position in the arbitral proceedings.
The reference in article 23(2) to the issue of delay should not prevent
other factors from being considered in the interests of fairness.146
Bearing in mind the overriding requirement of fairness under the Model
Law, one may seek further guidance as to what constitutes an appropriate
delay in applying for an amendment or supplement under this article. The
wording of article 23(2) provides no guidance in respect of the circum-
stances in which the delay in application may overcome prejudice concerns.
In deciding whether or not an amendment to the statement of claim or
defence should be allowed, the arbitral tribunal will likely take into account
the extent and reason for the delay. The arbitral tribunal should also strike a
balance between the parties’ right to be heard147 and its duty to prevent
dilatory tactics. An example of a legitimate amendment request concerns
difficulties in adducing evidence within a short period of time due to the
complexity of the dispute. A subsequent, unforeseeable event that goes
beyond the control of the party concerned may also justify a delay in
applying to make amendments, e.g. the resignation of counsel due to
unforeseeable reasons. Delays may also be caused by insolvency proceed-
ings of one of the parties, whereby the newly appointed insolvency
144
Ibid.
145
A. I. Okekeifere, ‘The UNCITRAL Model Law and the Problem of Delay in International
Commercial Arbitration’ (1997) 14 JOIA 125, 125–139.
146
L. Heuman and S. Jarvin, Swedish Arbitration Act of 1999, Five Years On: A Critical
Review of Strengths and Weaknesses (Juris, 2006), p. 217; F. P. Davidson, International
Commercial Arbitration: Scotland and the UNCITRAL Model Law (W. Green, 1991).
147
See Model Law, art. 18.

administrator needs time to familiarise him- or herself with the dispute

upon taking control of the case on behalf of the party.148 However, vex-
atious and frivolous amendments or supplements that are clearly aimed at
delaying and obstructing justice may not be permitted. In the M/S Control
Systems case, the Indian High Court affirmed that the ‘[s]peedy conclusion
of arbitration proceedings hardly needs to be emphasised’.149 The court
proceeded to point out that a core principle of arbitration is swift, fair and
inexpensive resolution of disputes and, therefore, excessive delays or
expenses would certainly ‘frustrate the very purpose of arbitration’.150
Clarification as to what constitutes appropriate delays may be made
either through future updates of the Model Law as a whole, or by courts as
the issue arises in future cases. However, as the decision of the arbitral
tribunal turns on the facts of each case, it may be difficult to provide a
definitive answer as to what amounts to an appropriate delay. It is sug-
gested here that a widely applicable definition of an appropriate delay is
unlikely to materialise due to the prevailing preference towards providing
flexibility and autonomy to parties and tribunals. The discretion of the
tribunal is, after all, not unlimited; the parties have the option of seeking a
court order against initial arbitral awards as demonstrated by case law.
Preclusion of subsequent changes may be justified if one party negli-
gently fails to fulfil its obligation to participate in the arbitral proceed-
ings.151 For example, if a party fails to make relevant amendments within
a period of time after the arbitral tribunal requests it to do so, or after the
opposing party has successfully established that the submission of the
other party was not sufficiently substantiated, the arbitral tribunal may
disallow the admission of subsequent amendments.152 In this regard, the
arbitral tribunal should, in the absence of contrary agreement by the
parties, provide clear reasoning in respect of the refusal of applications
for amendments due to an inexcusable delay.
4.3 Right to Supplement

In the second part of paragraph 2, the phrase ‘such amendment’ is
adopted without explicit reference to supplements. The Analytical
148
149
M/S Control Systems (n. 34), para. 14.
150
Ibid., para. 16.
151
152
Ibid.

Commentary merely states, without further explanation, that the drafts-

men intended for ‘amendment’ to include ‘supplement’.153
As noted above, article 23(2) provides the parties with the autonomy to
amend or supplement their respective claims or defences once the arbi-
tral proceedings are underway. Although article 23(2) expressly provides
that amendments and supplements are admissible, the parties are allowed
to deviate from the general rules if they have agreed otherwise, usually by
agreeing to adopt other institutional arbitral rules. For example, article
23(4) of the ICC Rules states that unless authorised by the arbitral
tribunal, amendments are only admissible within the limits set by the
terms of reference.154
Whether or not a delay is reasonable may be considered in the context
of supplementing a statement or defence – a delay may, for example, be
considered less reasonable if the amendment being sought is an extensive
one that goes to the heart of the dispute, which will inevitably raise the
issue of why matters of such import were not brought to the attention of
the tribunal and other parties at earlier junctures. At the same time,
however, an extensive amendment may also be looked at with some
sympathy in terms of delay due to the time needed to prepare such an
amendment.
153
154
Article 23(4) of the ICC Rules reads as follows: ‘After the Terms of Reference have been
signed or approved by the Court, no party shall make new claims which fall outside the
limits of the Terms of Reference unless it has been authorized to do so by the arbitral
tribunal, which shall consider the nature of such new claims, the stage of the arbitration
and other relevant circumstances.’ ICC (n. 84).

Article 24
Hearings and Written Proceedings

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 24 deals with some fundamental aspects of the right to be heard,
relevant for both written and oral proceedings. The final text of article 24
(and of its first paragraph in particular) is the result of a particularly
tortuous and interesting legislative history. The Working Group used as a
drafting basis article 15 of the 1976 UNCITRAL Arbitration Rules.
According to paragraph 2 of that article:1
If either party so requests at any stage of the proceedings, the arbitral
tribunal shall hold hearings for the presentation of evidence by witnesses,
including expert witnesses, or for oral argument. In the absence of such a
request, the arbitral tribunal shall decide whether to hold such hearings or
1
The provision is analogous to art. 17(3) of the 2013 UNCITRAL Rules.
655

656 a r t i c l e 24: h ear i n g s an d w ritten proc eed ings
whether the proceedings shall be conducted on the basis of documents
and other materials.
The first draft of article 24 was a verbatim reproduction of the aforemen-

tioned provision.2 Soon, however, the Working Group realised that
significant adaptations needed to be made. More specifically, the Rules
are only applicable if the parties incorporated them by reference in their
agreement to arbitrate; as such, they are best understood as based on the
disputants’ consent. By contrast, the Model Law generally applies to any
international arbitration seated in a given jurisdiction,3 irrespective of
what the specific contents of the parties’ agreement may be. It is therefore
possible that the parties agree to arbitrate in a Model Law jurisdiction,
but at the same time specify in their agreement that no hearings shall be
held. The question arises, hence, whether the lex arbitri should leave the
parties free to limit or exclude their right to an oral hearing.
In the second draft, the Working Group highlighted the non-manda-
tory nature of the provision: to this end, it was specified that the arbitral
tribunal’s power to decide whether to hold hearings only existed ‘failing
agreement by the parties’.4 The parties, hence, were apparently free to
stipulate that no hearings be held at all, thus agreeing to documents-only
arbitration.5 The article, however, then proceeded to specify that the
tribunal is obliged to hold hearings, ‘if a party so requests’.6
In principle, this wording was open to two different and not perfectly
reconcilable interpretations. On the one hand, it could be argued that a
party had the power to unilaterally request and obtain an oral hearing
only if the parties had not previously agreed that no hearings would be
held. On the other hand, however, the draft article could also be read as
meaning that, by requesting an oral hearing, a party could effectively
trump and supersede a previous agreement not to hold hearings. The
Working Group noted that the provision was ‘ambiguous’,7 and different
views were expressed as to the balance to be stricken between party
2
Articles 1 to 24 on Scope of Application, Arbitration Agreement, Arbitrators, and
Arbitral Procedure, UN Doc. A/CN.9/WG.II/WP.37 (4–15 October 1982), art. 20.
3
With the exceptions numbered in art. 1(2) of the Model Law.
4
Draft Articles I to XXVI, UN Doc. A/CN.9/WG.II/WP.40 (22 February–4 March 1983),
art. XVII.
5
6
Ibid.
7
Report of the Working Group on the Work of Its Seventh Session, UN Doc. A/CN.9/246 (6
March 1984), para. 76.

autonomy and the right to an oral hearing. Some members highlighted

that ‘the right of a party to request a hearing was so fundamental that the
arbitral tribunal should have to comply with it’.8 Other members, con-
versely, argued that ‘full effect should be given to an agreement by the
parties that the arbitral proceedings be conducted without hearings even
if a party later requested the hearing’.9
As a result of this difference in opinions, the Working Group reached a
compromise solution whereby the tribunal was to retain ‘a certain con-
trol’ over the decision whether to hold a hearing, in cases where the
parties had initially excluded oral hearings, but one party subsequently
requested it.10 However, the draft prepared by the Working Group failed
to accurately reflect this understanding. The first two paragraphs of the
draft provision, as amended, read as follows:
Subject to any contrary agreement by the parties, the arbitral tribunal shall
decide whether to hold oral hearings or whether the proceedings shall be
conducted on the basis of documents and other materials.
Notwithstanding the provisions of paragraph (1) of this article, if a
party so requests, the arbitral tribunal may, at an appropriate stage of the
proceedings, hold hearings for the presentation of evidence or for oral
argument.11
The use of the verb ‘may’, in paragraph 2, suggested that the arbitrators
were not obliged to hold an oral hearing: the draft article provided that
whenever a party requested a hearing, the tribunal had a general discre-
tional power to decide whether to uphold this request.
This draft triggered significant criticism, due to an inconsistency with
the agreement that the Working Group had found in its previous discus-
sion of the topic. More specifically, the Working Group had agreed that
the arbitrators would be given discretional powers only in the special case
where a party requested a hearing notwithstanding the fact that the
agreement to arbitrate initially excluded oral hearings. By contrast, the
draft provision extended this discretional power to all situations where a
party requests a hearing, irrespective of whether the disputants had
previously agreed not to hold any oral hearings. The International Bar
Association proposed to reconsider the wording of the provision, obser-
ving that the draft seemed to be inconsistent with the prevailing view of
8
Ibid., para. 78.
9
Ibid., para. 79.
10
Ibid., para. 78.
11
Working Group, UN Doc. A/CN.9/246-Annex (6 March 1984), art. 24.

658 article 24: hearings a nd written proceedings
the Working Group.12 Poland and the United States stressed that the oral
hearing is ‘an important means of ensuring a just result’ and proposed an
alternative wording whereby the tribunal is obliged to hold a hearing
whenever at least one party requests it.13 Germany and Sweden put forth
similar suggestions.14
The Secretary-General shared these concerns and observed in the
analytical commentary to the draft Model Law that the wording proposed
by the Working Group appeared to be ‘the result of a legislative over-
sight’.15 Against this background, the Commission decided to amend the
text in order to overcome the uncertainties described above; however, at
this late stage, no consensus existed yet as to what the appropriate balance
between party autonomy and the right to be heard should be. In the
Commission, three main views were expressed. Under a first view, ‘the
right to oral hearings was of such fundamental importance that the
parties were not bound by their agreement and a party could always
request oral hearings’.16 According to a second view, ‘the agreement of
the parties that no oral hearings would be held was binding on the parties
but not on the arbitral tribunal so that the arbitral tribunal, if requested
by a party, had the discretion to order oral hearings’.17 Finally, a third
view held that an agreement to exclude oral hearings was binding both on
the parties and on the tribunal.18
This last point of view eventually prevailed. The Commission, hence,
decided that a party would not have the right to obtain a hearing upon
request if the disputants had previously agreed to exclude oral hearings.
Conversely, where no such agreement exists, the Commission further
distinguished between two possible situations. If at least one of the parties
requested an oral hearing, then the tribunal would be under an obligation
to hold it. If, by contrast, none of the parties requested a hearing, it would
be up to the tribunal to make a discretional determination in this respect.19
12
CN.9/263 (19 March 1985), 36, para. 4.
13
Ibid., 35–36, para. 1.
14
Ibid., 36, paras 2–3.
15
16
Eighteenth Session, UN Doc. A/40/17 (21 August 1985), 40, para. 205.
17
Ibid.
18
Ibid.
19

Apart from the articulate debate detailed above, the Working Group
also discussed another aspect of article 24, namely the purpose of the
hearings. As noted above, article 15(2) of the 1976 UNCITRAL
Arbitration Rules made reference to ‘the presentation of evidence by
witnesses, including expert witnesses’ and ‘oral argument’. The Model
Law, by contrast, simply refers to the ‘presentation of evidence’ and ‘oral
argument’, without any express reference to witnesses and expert wit-
nesses. The reason for this more synthetic formulation is that, as the
Working Group acknowledged, the understanding of what constitutes
‘presentation of evidence by witnesses’ may not be identical in all
national legal systems.20 By way of example, the testimony of a party is
regarded as witness evidence in some jurisdictions, but not in others.21
Hence, in order to avoid misunderstandings and ensure that the notion
of ‘evidence’ be interpreted in a broad fashion, the Working Group
dispensed with all specifications and references to witnesses and expert
witnesses. The Secretary-General also noted that the wording of the
provision was ‘intentionally adopted in such general form’, so as to
cover ‘all possible types of evidence recognized in various legal
systems’.22
2. Paragraph 1
Paragraph 1 regulates the parties’ right to an oral hearing by distinguish-
ing among three main situations. First, if the parties have agreed to
exclude hearings, the arbitration should in principle be conducted on
the basis of documents and other materials. Second, if the parties have
concluded no such agreement, but none of them has requested a hearing
either, the tribunal is free to decide whether to hold one. Third, if the
parties have not excluded hearings and one of them requests that a
hearing be held, the tribunal is under a general obligation to comply
with such request, in accordance with the criterion of appropriateness.
2.1 The Role of Party Autonomy

As far as the decision to hold oral hearings is concerned, party autonomy
plays a twofold role. First, as already mentioned, the parties may
20
UN Doc. A/CN.9/246 (n. 7), para. 79.
21
Ibid., also with reference to cross-examination.
22
UN Doc. A/CN.9/264 (n. 15), 54, para. 5.

660 a r t i c l e 24 : h ea r i n g s a n d w r i t t en p r o c e e d i n g s
conclude an agreement deciding to exclude oral hearings and have their

dispute adjudicated by the tribunal on the basis of documents and written
submissions only. Second, in the absence of any such agreement, any
party may unilaterally request that a hearing be held. The architecture of
paragraph 1, hence, rests largely on the idea that the preference and
requests of the parties should be the core criterion guiding the arbitral
tribunal. The following subsections analyse the different ways in which
the parties can express their preferences as to whether oral hearings
should be conducted.
2.1.1 The Parties’ Agreement to Exclude Oral Hearings

In practice, it is unlikely for two parties entering into an arbitration
agreement to expressly state that no hearings will be held, for several
reasons. To begin with, it is rare for the parties to draft a detailed
agreement dealing with the specifics of the procedure to be followed in
the arbitration. Most clauses are drafted in a rather synthetic fashion and
are often based on models that typically contain no provision concerning
the hearings. Furthermore, most disputants are in any case unwilling to
accept a restriction of the right to present their case, as the one that would
unavoidably result from the exclusion of oral hearings. In addition, the
agreement is typically concluded before any dispute has arisen: as a
consequence, it is impossible for the parties to foresee what the details
of their future dispute may be, and whether it would be desirable (or
possible at all) to adequately discuss the case without oral hearings.
Notwithstanding the above observations, there is another way in
which the parties may potentially exclude hearings, namely by reference
to a set of arbitration rules containing provisions to this effect.23 If the
parties agree on the application of a certain set of rules, the contents of
those rules are deemed to be incorporated by reference in their agree-
ment, pursuant to article 2(e) of the Model Law. To be sure, the leading
arbitration rules do not typically contain provisions excluding oral hear-
ings, and in fact many of them require that hearings be normally held.24
However, many arbitral institutions follow the trend of differentiating
cases depending on the value in dispute, so as to contain costs and ensure
that relatively simpler arbitrations be conducted efficiently. To this end,
23
Mandataires Judiciaires Associés, in the person of Mrs X and Others v. Intl Co. for
Commercial Exchanges – INCOME (Egypt), French Court of Cassation, 6 May 2009
(2010) XXXV YB Com. Arb. 353, 354, with reference to documents-only arbitration
under the rules of the Refined Sugar Association.
24
See e.g. 2014 LCIA Rules, art. 19.

several sets of rules create a separate, ‘expedited’ procedure;25 in this type

of procedure, it is possible that oral hearings be limited or excluded
altogether. Therefore, by agreeing on the application of a set of expedited
arbitration rules,26 the parties may indirectly waive or limit their right to
an oral hearing.
2.1.2 Request by One of the Parties to Hold Hearings

Apart from the cases where the parties’ agreement excluded this possi-
bility, each of the disputants is free to ask the tribunal to hold oral
hearings. Importantly, no agreement is required in this context: in
order to trigger the arbitrators’ obligation to hold a hearing, it is enough
for one of the parties to make such a request, even if the other party or
parties expressly object to it.
This possibility of unilateral request serves the fundamental purpose of
ensuring that the parties be treated fairly and afforded a full opportunity
to present their case. As a downside, however, the rule at hand may also
be abused by the litigants, so as to slow down or disrupt the arbitral
proceedings. A disputant operating in bad faith, for instance, may
attempt to file numerous subsequent requests, asking the tribunal that a
disproportionate number of hearings be held.27 Were the tribunal
25
See e.g. 2017 ICC Rules, art. 30; 2016 SIAC Rules, art. 5.2; 2017 Rules for Expedited
Arbitrations, art. 33. See also L. Trakman and H. Montgomery, ‘The “Judicialization” of
International Commercial Arbitration: Pitfall or Virtue?’ (2017) 30 Leiden J. Intl L. 405; P.
Morton, ‘Can a World Exist Where Expedited Arbitration Becomes the Default
Procedure?’ (2010) 26 Arb. Intl 103.
26
Such agreement may be concluded in different ways, depending on the contents of the
provision governing the applicability of the expedited rules. In some cases, the latter may
only be applicable if the parties expressly selected them in the agreement to arbitrate: see
e.g. 2018 Vienna Rules, art. 45(1). In other cases, however, the agreement may be implicit:
pursuant to art. 30(2) of the 2017 ICC Rules, for instance, the ICC expedited procedure
provisions apply not only if the parties so agree, but also if the amount in dispute does not
exceed a certain limit set in an Appendix to the Rules (at the time of writing, US
$2,000,000). In this situation, by agreeing on the application of the ICC Rules without
any further specification, the parties also implicitly accept the possibility that the arbitra-
tion will be governed by the expedited rules, if the value in dispute is below the threshold.
Notably, at the time they enter into the agreement, the parties may be factually unable to
predict the amount in dispute and, hence, whether their arbitration (if any) will be
conducted under the ‘normal’ or the ‘expedited’ rules.
27
During the drafting of the Model Law, the Commission discussed whether the notion of
‘appropriate stage’ should be applied as a requirement for the admissibility of the parties’
requests to hold a hearing, so that requests for hearings may be disregarded if the parties
file them at an ‘inappropriate’ moment. In this respect, it was decided that the criterion of
appropriateness concerned not the time at which such a request may be filed, but rather
the moment when the hearing would be held. The parties, hence, are in principle free to

662 article 24: hearing s and w ri tten proceedings
obliged to comply with each and every request, the viability of arbitration
as an efficient mechanism of dispute resolution would easily be jeopar-
dised. In order to counter this risk, hence, the Model Law introduces a
key qualification: the tribunal is obliged to hold a hearing ‘at an appro-
priate stage of the proceedings’. In other words, the parties do not enjoy
an unconstrained right to have as many hearings as they request, at any
stage throughout the arbitration. The arbitrators remain free to deter-
mine the moment when the hearing(s) will be held, in accordance with
the elastic criterion of appropriateness. Let us suppose, for instance, that
a party files a high number of requests for hearings; in this case, the
tribunal is free to decide that only one hearing be held, if this is appro-
priate to ensure the efficiency of the arbitration. Along similar lines, if a
party requests a second hearing after a first hearing has already been held,
the arbitrators are generally free to refuse this second request if they find
it inappropriate, as the parties have already been afforded an adequate
possibility to present the case orally in the first hearing.28
2.1.3 Tribunal’s Failure to Comply with the Request

A delicate problem concerns the consequences of the tribunal’s failure to
comply with a party’s request to hold oral hearings. In principle, this
circumstance may be seen as amounting to a violation of due process and
the right to be heard, and hence lead to the annulment of the award and/
or a refusal of its recognition and enforcement. In an Austrian case, a sole
arbitrator conducted no hearings, despite the fact that one of the parties
had put forth a request to this effect. The party challenged the award,
arguing that the way in which the arbitral proceedings had been led was
contrary to its right to be heard. Both the first instance and the appellate
court held that no violation of the right to be heard had occurred, since
request a hearing at any time throughout the arbitral proceedings; the tribunal, in turn, is
free to decide how many hearings should be held and when, depending on what it deems
appropriate: see UN Doc. A/40/17 (n. 16), 41, para. 209. Importantly, however, the
applicable arbitration rules may set time limits within which the parties must request
hearings, if they wish to. These constraints may result from either an express provision,
specifying, for example, that the parties must request hearings no later than the state-
ments of claim and defence, or a general rule indicating a moment after which no further
submissions and requests to the tribunal are possible (see e.g. art. 27 of the 2017 ICC
Rules, on the closing of the proceedings).
28
The situation may change, however, if after the first hearing new information of which the
parties were previously unaware comes to light. In this case, there may be a well-grounded
reason to allow a new hearing for the purpose of taking oral evidence concerning the new
elements, and a tribunal refusing such a hearing may violate the parties’ right to
adequately present the case.

the parties had been afforded an opportunity to submit their arguments

in writing. Overturning these decisions, the Austrian Supreme Court
held that, under article 24 of the Model Law, an arbitrator is ‘obliged to
hold an oral hearing if so requested by a party and if such possibility [has]
not been excluded by the parties’, as a practical expression of the right to
be heard.29 On these grounds, the court set the award aside.
Despite the apparent clarity of the Model Law in granting the party
the right to an oral hearing, other national authorities have adopted
questionable interpretations of article 24. In a German case,30 for
instance, a party requested an oral hearing, but the sole arbitrator
declared that he would decide the case exclusively on the basis of
documents and set a time limit for written submissions. The party
that had requested the hearing did not make any submission, and the
arbitrator rendered an award against it. At that point, the party tried to
resist the enforcement of the award; notably, this attempt was mainly
based not on an alleged violation of the right to be heard, but on
‘procedural irregularities’ relevant under article 34(2)(a)(iv) of the
Model Law. The court found that the party was estopped from invoking
the existence of procedural irregularities, since it did not immediately
object to the arbitrator’s decision to conduct the arbitration on the basis
of documents only. The court also held that no violation of the right to
be heard had occurred, since the parties had been afforded the possibi-
lity to file written statements of defence. Along similar lines, another
German court held that no violation of due process occurred in an
arbitration where the tribunal denied the defendant’s request to hold an
oral hearing, as the parties had the opportunity to present their argu-
ments in writing.31 As already mentioned, this line of reasoning is not
entirely convincing, since the Model Law expressly obliges the tribunal
29
CLOUT Case 1442, Austrian Supreme Court (30 June 2010). Interestingly, the court drew
a distinction between Austrian law following the implementation of the Model Law and
the previous legal framework, where an arbitral tribunal was not obliged to hold a hearing
for the mere fact that one of the parties had requested it.
30
CLOUT Case 659, Oberlandesgericht Naumburg, 21 February 2002.
31
Oberlandesgericht Frankfurt, 12 October 2009 in (2010) XXXV YB Com. Arb. (n. 23), p.
377. Interestingly, according to the German court, the defendant should have proven that
it could have ‘presented arguments at the oral hearing that could have led the arbitral
tribunal to issuing a different decision’. This judicially construed requirement seems to be
incompatible with the letter of art. 24, which requires the tribunal to hold a hearing if at
least one party requests it. Moreover, it would be in any case impossible for the arbitrators
to apply this criterion in practice, since they are not aware of the nature of the requesting
party’s arguments at the time when the request for a hearing is put forth.

664 article 24: hearings and w ritten p roceedings
to hold oral hearings if at least one of the parties puts forth a request to
this effect.
2.1.4
Requests to Hold Hearings on Substantive
and Procedural Issues
Another interesting question is whether the parties’ right to request a
hearing concerns the substance of the dispute only, or extends to proce-
dural issues that may be relevant in the arbitration as well. The Working
Group discussed the possibility to limit the parties’ right to request a
hearing to substantive questions only,32 but this proposal was not
retained;33 therefore, it must be concluded that the parties are in principle
free to ask for a hearing not only on the merits, but also on jurisdiction,
admissibility or a wide range of potential procedural issues. However,
even if the parties put forth distinct requests to hold hearings on both
procedural and substantive issues, the tribunal maintains a significant
degree of discretion in deciding the mode of oral discussion of those
issues, as an expression of the inherent powers of the arbitrators to direct
the course of the proceedings.
In sum, the tribunal remains free to hold a single hearing where all
issues will be discussed, to order the bifurcation of the proceedings (e.g.
providing that jurisdiction and admissibility will be discussed before the
merits) or to arrange the hearings in any other way that it deems appro-
priate. In this respect, the Commission noted that article 24 does not deal
with, and therefore does not limit, the power of the arbitral tribunal to
decide the length of the hearings or the stage at which they could be
held.34
2.1.5 ‘Appropriateness’ as an Overarching Criterion

By specifying that the tribunal must (upon request) hold hearings ‘at an
appropriate stage of the proceedings’, article 24 draws an important
boundary between the parties’ right to request a hearing, on the one
hand, and the tribunal’s discretion in organising the proceedings, on the
other. In a nutshell, each of the parties can trigger the arbitrators’
obligation to conduct at least one hearing, but this does not entail a
32
Fourth Session, UN Doc. A/CN.9/232 (4–15 October 1982), para. 111; UN Doc. A/CN.9/
WG.II/WP.40 (n. 4), art. XVII(1)(a), with reference to the ‘substance of the dispute’.
33
August–9 September 1983), para. 81.
34
UN Doc. A/40/17 (n. 16), 40, para. 203.

right to unilaterally determine how many hearings should be conducted,

or at what stage of the arbitration.35
The delicate decisions concerning the number and the organisation of
the hearings are governed not by article 24, but by article 19 of the Model
Law. According to that provision, the parties are free to reach an agree-
ment on the procedure to be followed: this freedom encompasses the
possibility for the parties to agree on how many hearings should be
conducted and when. Failing such agreements, however, it is up to the
tribunal to determine the way in which the arbitral proceedings will be
conducted.36 It is no accident that article 19(2), like article 24(1), refers to
appropriateness as the criterion that should guide the tribunal’s determi-
nation in this respect.
2.2 Arbitral Discretion in the Absence of Agreements or Requests

As illustrated above, the Model Law gives precedence to the wishes of the
parties in determining whether oral hearings should be conducted.
However, there are situations where the disputants remain entirely silent
on this matter: no agreement excluding oral hearings has been concluded,
but no party has requested a hearing either. In this case, article 24(1) leaves
the tribunal free to decide ‘whether to hold oral hearings for the presenta-
tion of evidence or for oral argument, or whether the proceedings shall be
conducted on the basis of documents and other materials’.
During the drafting of the Model Law, the decision to afford the
tribunal this type of discretion was not uncontroversial: Germany, in
particular, suggested inserting a rule whereby the tribunal is required to
hold a hearing whenever ‘there is doubt about the attitude of the parties
in respect of holding an oral hearing’.37 This proposal, however, was not
accepted; article 24, hence, does not oblige the tribunal to hold hearings if
none of the parties has made a request in this sense.38
35
For the same reason, a party is also prevented from invoking art. 24 to oblige the tribunal
to reschedule a hearing for its own convenience: Budejovicky Budvar, N.P. (Czech
Republic) v. Czech Beer Importers, Inc. (US) 3:05cv1246 (JBA) (2007) XXXII YB Com.
Arb. 780, 782–783, with reference to Parsons & Whittemore, 508 F.2d, 975, 976.
36
Ibid., expressly qualifying the questions of the number and moment of the hearings as
‘procedural decisions’ falling within the scope of art. 19 of the Model Law.
37
UN Doc. A/CN.9/263 (n. 12), 36, para. 2.
38
Government of the Republic of the Philippines v. Philippine Intl Air Terminals Co. Inc.
[2006] SGHC 206; along similar lines, in PT Asuransi Jasa Indonesia (Persero) v. Dexia
Bank SA [2006] SGCA 41, para. 22, it was held that the parties to an arbitration have ‘no
right to an oral hearing’ if they failed to request one.

666 a r t i c l e 24 : h ea r i n g s a n d w r i t t en p r o c e e d i n g s
Despite the lack of specifications in the provision at hand, the tribu-

nal’s freedom to make this determination is not without constraints.
Crucially, the arbitrators must ensure the equal treatment of the parties
and the respect for the right to present the case, in accordance with article
18 of the Model Law. The arbitrators, hence, should normally hold a
hearing whenever the case cannot be adequately discussed and decided
on the basis of documents only.39 Furthermore, the tribunal should
always strive for a high level of collegiality when making this type of
procedural decision, and the consent of the parties should be elicited
whenever possible. To this end, convening a case management confer-
ence and establishing a procedural timetable may be key tools for the
tribunal to assess the parties’ opinions concerning the opportunity to
hold oral hearings, or at least to rule out the existence of objections as to
the choices that the arbitrators are inclined to make.40
In sum, it is advisable for the tribunal to exercise its discretion under
article 24(1) in a way which is attentive not only to the parties’ right to
present their case, but also to their procedural preferences. If, in the
absence of any express request to hold an oral hearing, the parties have
nonetheless been given the opportunity to comment on the procedural
timetable proposed by the arbitrators (e.g. in the context of a case
management conference), the risk of objections at the setting-aside
and/or recognition and enforcement stages is certainly minimised.
2.3 Choice between Oral Hearings and Documents-Only Arbitration

Needless to say, the decision whether or not to hold a hearing has
fundamental consequences on the way in which the case is examined
and decided by the arbitral tribunal. If no hearing is held, the arbitrators
do not have the possibility to gain insights from witness examinations
and to ask questions. Furthermore, in the absence of oral presentations
by the parties, any doubt as to the exact contours of the disputant’s
defences must necessarily be dispelled through written clarifications.
There is a wide range of potential information and nuances to which
the tribunal may be exposed during a hearing and which may be con-
versely lost if the case is adjudicated on the basis of documents only. For
this reason, while dispensing with oral hearings may result in a significant
39
J. M. Figaredo, ‘Form of Arbitration Proceedings’ in C. Gonzáles-Bueno, L. Lozano and J.
M. Figaredo, The Spanish Arbitration Act: A Commentary (Dykinson, 2016), p. 187.
40
See e.g. 2017 ICC Rules, art. 24.

limitation of costs and increase in speed,41 the choice of documents-only

arbitration should not be made lightly. Undoubtedly, not every arbitrable
dispute can be satisfactorily adjudicated without the exchange of oral
defences and the taking of witness evidence.
While documents-only arbitration is not in principle incompatible
with the parties’ right to present their case, arbitral tribunals should be
cognisant of the need to shape the arbitral procedure in a way which
does not infringe the disputants’ fundamental rights. In Europe,
national authorities have held that arbitrators are bound by the
European Convention on Human Rights;42 international legal obliga-
tions, hence, may in many cases reinforce the duty (already underlying
the arbitrators’ mandate) to shape the arbitral procedure in a way which
does not conflict with due process and the principle of equality between
the parties.43
3. Paragraph 2
Paragraph 2 requires the tribunal to give the parties ‘sufficient advance
notice of any hearing and of any meeting of the arbitral tribunal for the
purposes of inspections of goods, other property or documents’. It is
important to read this provision in connection with article 18 of the
Model Law, which enshrines the tribunal’s general obligation to give the
parties an equal and fair opportunity to present their case. These provi-
sions usually44 prevent the arbitrators from holding a hearing without
41
It should incidentally be noted that costs may also be contained by limiting the hearing to
those parts of the dispute which can be clarified through an oral discussion, while other
aspects of the case may be decided on the basis of documents only. To this end, Norway
proposed to specify in art. 24 that arbitral proceedings may be conducted partly on the
basis of oral hearings and partly on the basis of documents: see UN Doc. A/CN.9/263 (n.
12), 37, para. 6. While the proposal was not retained, there is little doubt that this type of
procedural arrangement is generally possible when the parties do not object to it.
42
Paris Court of Appeal, 17 November 2011, 09/24158. See also Lithgow and Others v.
United Kingdom, App. No. 9006/80; 9262/81; 9263/81; 9265/81; 9266/81; 9313/81; 9405/
81 (ECtHR, 8 July 1986), para. 201, noting how an arbitral tribunal falls within the notion
of ‘tribunal’ of art. 6 of the European Convention on Human Rights, ‘provided always that
it offers the appropriate guarantees’.
43
See also above, section 2.2.
44
After the 2006 amendments, however, the Model Law envisages a limited possibility of ex
parte contacts between the tribunal and one of the disputants, in the context of pre-
liminary orders directing another party not to frustrate the purpose of an interim
measure: see the commentary to arts 17B and 17C.

668 article 2 4: hearing s and w ritten proceedings
giving all of the parties adequate notice and the possibility to be present
and submit observations.45
Article 24 requires that the advance notice be ‘sufficient’, but does not
specify the exact period of time between notice and hearing. If the notice
is not given with sufficient advance, the parties’ right to present their case
may not be effective; in principle, hence, there is little doubt that the
period of time between the notice and the hearing must be long enough
to allow the parties to prepare their defences, submissions and observa-
tions.46 As a practical matter, however, it may be difficult to translate the
general wording of the article into an exact number of days. During the
drafting of the Model Law, Cyprus had proposed to set a precise time
limit in order to avoid uncertainties,47 and the Working Group had
considered specifying that a notice of at least forty days should be
given.48 However, it was noted against this proposal that the Model
Law is applicable to a ‘great variety of cases’,49 differing, inter alia, in
subject matter, value and complexity. It was hence deemed inappropriate
to impose a single time limit: the same number of days may be adequate
to prepare for the hearing in a relatively simple case, but insufficient for
more complex disputes. In a nutshell, the vagueness intrinsic to article 24
is the result of the acknowledgement that ‘one size does not fit all’: the
evaluation of what constitutes a ‘sufficient advance notice’ is unavoidably
case-dependent.
A tribunal’s failure to give the parties advance notice in accordance
with article 24(2) may constitute a ground for the setting aside of the
award or for a denial of its recognition and enforcement under article
V(1)(b) or V(2)(b) of the New York Convention.50 Given its purpose of
protecting the parties’ right to be heard and the fundamental fairness of
the arbitral procedure, the provision at hand should be regarded as
45
In an Indian case, the sole arbitrator did not give the respondent any notice of hearings
and, when the respondent tried to appear at a hearing, informed the party that the hearing
was closed: Impex Corp. and Others v. Elenjikal Aquamarine Exports Ltd, AIR 2008 Ker.
199 (Koshy J.). The resulting award was set aside, as the arbitrator’s conduct obviously
violated due process.
46
CLOUT Case 402, Bayerisches Oberstes Landesgericht (16 March 2000); Atul R. Shah v.
M/S. V. Vrijlal Lalloobhai and Co. (1999) AIR 67 (Bom).
47
UN Doc. A/CN.9/263 (n. 12), 35, para. 3.
48
UN Doc. A/CN.9/245 (n. 33), para. 80.
49
Ibid., para. 82.
50
See e.g. Impex Corp. (n. 45); Methanex Motunui Ltd v. Spellman [2004] 1 NZLR 95; Yukos
Capital SARL (Luxembourg) v. OAO Tomskneft VNK (Russian Federation), Federal
Arbitrazh Court, District of Tomsk, A67-1438/2010, 7 July 2010, (2010) XXXV YB
Com. Arb. 435.

mandatory:51 the parties, hence, cannot enter into an agreement whereby

they waive their right to receive advance notice of hearings, and any
provision in a set of arbitration rules containing such a restriction should
be regarded as void and unenforceable.
In order to fully grasp the relevance of article 24(2), it is important to
read it in connection with article 25(c) of the Model Law. Pursuant to the
latter provision, the arbitral tribunal has the possibility to continue the
proceedings and issue an award if any party fails to appear at a hearing or
produce documentary evidence without showing sufficient cause; article
25(c), thus, ensures that a party cannot paralyse the arbitral proceedings
by simply refusing to appear at the hearings and, more generally, parti-
cipate in the arbitration. By setting forth this regime, the Model Law
relies on the implicit assumption that the party’s choice not to participate
is informed and conscious, rather than the involuntary result of a lack of
information. Article 24(2), in turn, ensures the tenability of such assump-
tion by requiring that the parties receive sufficient advance notice of
hearings.52
An interesting problem concerns the case where a party is in principle
willing to participate in the hearing, but in practice unable to attend on
the specific date mentioned in the notice: in this case, the question arises
whether the party has a right to obtain a deferral of the hearing.53 In
principle, an arbitral tribunal should try to avoid this type of problem by
setting a procedural timetable in the early stages of the arbitration and
encouraging a high degree of collegiality in all decisions concerning the
dates of the hearings.54 Nevertheless, in cases where no consensus can be
found, the tribunal should refrain from conducting the hearing on a
specific date, if a party acting in good faith is able to demonstrate its
impossibility to attend. A Spanish court, for instance, set an award aside
because of the tribunal’s failure to suspend or postpone the scheduled
hearing, in a case where the party was factually unable to attend for
reasons beyond its control.55 As an alternative to rescheduling, the
tribunal may also offer alternative arrangements, such as video-
51
UN Doc. A/CN.9/264 (n. 15), 55, para. 6.
52
Ibid., para. 6.
53
This situation should be distinguished from the case where one of the parties asks for a
deferral not because of an impossibility to attend on a specific date, but simply because of
an alleged need for more time to prepare the case: Al-Haddad Commodities Corp. (US) v.
Toepfer Intl Asia Pte, Ltd (Singapore), (2008) XXXIII YB Com. Arb. 944.
54
55
CLOUT Case 968, A Coruña Provincial High Court (27 June 2006).

670 article 2 4: hearing s and w ritten proceedings
conferencing, through which the party may be able to present its argu-
ments while not physically present at the location of the hearing. A Texan
court refused to deny the recognition of an award made in Hong Kong,
despite one of the parties’ impossibility to attend the hearing, because the
arbitrators had offered videoconferencing and the organisation of a
further hearing as possible alternatives.56 Ultimately, the assessment
conducted by national authorities reviewing the award is necessarily
dependent on the facts of the case and the notion of ‘impossibility to
attend’ varies significantly, depending on, for example, whether the party
is a natural person or a large company.57
Partially similar issues arise when a party declares its inability to attend
the hearing not because of conflicting obligations on a specific date, but
because of a general lack of financial resources. National courts have dealt
with this issue in the context of setting aside or recognition and enforce-
ment proceedings, generally holding that a party cannot invoke its own
financial problems as a violation of due process in the arbitration.58
Finally, a qualification must be made concerning the scope of applica-
tion of article 24(2): the provision does not apply to all possible hearings
and meetings of the arbitral tribunal, but only to those ‘for the purposes
of inspection of goods, other property or documents’. Conversely, when
the tribunal meets for ‘internal’ organisational or decisional purposes not
concerning the taking of evidence or the exchange of oral observations
and defences between the parties, no obligation to give notice exists.59
More specifically, if the tribunal meets for internal deliberations, the
parties have no right to receive advance notice and to attend. In fact, it
is crucial for the practical functioning of any arbitration that the tribunal
56
China National Building Material Investment Co., Ltd (PR China) v. BNK Intl LLC (US) in
(2010) XXXV YB Com. Arb. (n. 23), p. 507; see also Consorcio Rive, SA de C.V. (Mexico) v.
Briggs of Cancun, Inc. (US) v. David Briggs Enterprises, Inc. (US) (2004) XXIX YB Com.
Arb. 1160, highlighting how the party could have participated in the arbitration by means
other than physical presence of its legal representative.
57
See e.g. Jiangsu Changlong Chemicals, Co., Inc. (PR China) v. Burlington Bio-Medical &
Scientific Corp. (US), (2006) XXXI YB Com. Arb. 1316, where the court held that, while
the representative of one of the companies involved in the case was unable to obtain a visa
necessary to attend the hearing, no violation of due process had occurred, because the
party was in any event represented in the proceedings by an agent.
58
See, for Germany, Oberlandesgericht Düsseldorf, 15 December 2009 in (2010) XXXV YB
Com. Arb. (n. 23), p. 386; for Canada, Grow Biz Intl Inc. (US) v. DLT Holdings Inc.
(Canada), Debbie Tanton (Canada), Supreme Court, Province of Prince Edward Island,
(2005) XXX YB Com. Arb. 450.
59
The parties also do not have a right to be notified that ‘no further notice’ will be given
before the making of the award: see Atul R. Shah (n. 46).

be allowed to meet without the parties, for example, to discuss the case
and the organisation of the proceedings and to draft the award(s).
4. Paragraph 3
In order to ensure that the parties’ right to present their case is effective
and not merely formal, the disputants must have access to all of the
documents and information present in the case file. To this end, article
24(3) requires that ‘all statements, documents or other information
supplied to the arbitral tribunal by one party shall be communicated to
the other party’.60 The article then specifies that the same duty of com-
munication also encompasses ‘any expert report or evidentiary docu-
ment on which the arbitral tribunal may rely in making its decision’, even
when these items are not supplied by one of the parties.
This last specification may at first sight come across as surprising: in
principle, the tribunal should decide the case solely on the basis of the
evidence produced by the parties, in order to avoid any appearance of
bias or partiality. In some cases, however, it may be possible for the
arbitrators to appoint their own experts; this is particularly frequent in
civil law jurisdictions, where arbitration is often influenced by the prac-
tice of State court litigation and court-appointed experts are not infre-
quent.61 In this type of situation, article 24(3) requires that the parties
have access to all relevant documents (such as the expert reports pro-
duced by the tribunal-appointed experts, if any). In other words, under
the Model Law, there can never be a ‘surprise’ document or evidentiary
element on which the arbitrators rely but the parties had no knowl-
edge of.
60
As mentioned above (n. 44), a partial and temporary exception to this rule is the case of ex
parte preliminary orders.
61
In the context of the European Parliament study, ‘Legal Instruments and Practice of
Arbitration in the EU’, a survey of arbitration practitioners was conducted in 2015. The
participants were asked to estimate in what proportion of the arbitrations on which they
worked in the previous five years the tribunal itself appointed one or more experts. As far
as domestic arbitration is concerned, 54.61 per cent answered ‘0’, 24.23 per cent answered
‘1–25%’, 8.07 per cent answered ‘26–50%’, 4.81 per cent answered ‘51–75%’ and 8.28 per
cent answered ‘76–100%’. For international arbitration, 52.98 per cent answered ‘0’, 30.11
per cent answered ‘1–25%’, 8.21 per cent answered ‘26–50%’, 4.35 per cent answered ‘51–
75%’ and 4.35 per cent answered ‘76–100%’. The data therefore suggest that, while the
appointment of experts by the tribunal does not occur in the majority of cases, it is not
exceptional either in practice. See T. Cole, I. Bantekas, F. Ferretti et al., ‘Legal Instruments
and Practice of Arbitration in the EU’, Annex III, www.europarl.europa.eu/RegData/
etudes/STUD/2015/509988/IPOL_STU(2015)509988(ANN03)_EN.pdf.

672 a r t i c l e 24 : h e a r i n g s a n d wr i t t e n p r o c e e d i n g s
The parties’ right to have access to all documents is not, of course, an

end in itself, but rather a prerequisite enabling them to make observa-
tions, present contrary evidence and put forth defences relating to those
documents. In this respect, a New Zealand court held that article 24(3) of
the Model law, read in connection with article 18, implicitly enshrines
such a right to present evidence and arguments.62 As already mentioned
above, the tribunal’s failure to comply with article 24 may constitute
ground for the setting aside of the award, or for the refusal of its
recognition and enforcement.63 A Hong Kong court, for instance, set
an award aside because one of the parties had not been able to consider
the contents of some expert reports, which the tribunal had relied upon
to reach its decision.64
An interesting question concerning the scope of article 24(3) arose
during the drafting of the Model Law. The drafters had initially adopted a
broad wording, whereby all documents on which the tribunal could rely
had to be communicated to the parties. The Commission, however,
observed that, during the course of the proceedings, an arbitral tribunal
is likely to prepare or collect its own research materials;65 were the
arbitrators obliged to share such documents with the parties, it would
be practically impossible to conduct private research and deliberations,
or to circulate drafts of the award(s) among arbitrators without the
parties having immediate access to them. In order to facilitate the prac-
tical working of arbitral tribunals, hence, the final wording of article 24(3)
limits the scope of the provision, ensuring that the parties have access to
expert reports and evidentiary documents on which the tribunal may
rely, but not other documents such as notes and drafts produced by the
arbitrators during the deliberations.
In application of these principles, it has been held that the arbitral
tribunal has no duty to share with the parties ‘copies of published works
of general application, or documented matters of which the arbitrator(s)
could properly take judicial notice without evidence’.66 According to this
judicial approach, the arbitrators would be able to rely on documents
reporting facts of general knowledge and, most importantly, the applic-
able law, without necessarily communicating them to the parties. Along
62
Methanex Motunui (n. 50).
63
See e.g. the judgment issued by a Kenyan court in Glencore Grain Ltd v. TSS Grain Millers
Ltd, High Court of Mombasa, (2006) XXXIV YB Com. Arb. 666.
64
Paklito Investment Ltd v. Klockner East Asia Ltd [1993] 2 HKLR 39.
65
UN Doc. A/40/17 (n. 16), 41, para. 211.
66
Methanex Motunui (n. 50), para. 126.

the same lines, during the preparation of the Model Law, the Soviet
Union had even proposed to clarify that ‘laws, judicial precedents and
legal studies’ were not covered by article 24(3).67 The proposal, however,
was not retained, and it is doubtful whether the tribunal is absolutely free
to avoid sharing this type of document with the parties. To resolve this
problem, it is important to consider that the Model Law was purposefully
written in neutral terms, so as to be compatible with different legal
traditions; its articles, hence, should not be interpreted in light of the
specificities of certain national systems, but rather in accordance with the
transnational nature of the instrument. In the case of article 24(3), in
particular, it must be taken into account that different legal systems adopt
divergent approaches as to whether adjudicators are free to retrieve and
apply provisions of law even if the parties did not rely on them (jura novit
curia).68 This holds all the more true in the context of arbitration, where
ex officio initiatives by the tribunal always risk raising concerns of
partiality and the jura novit arbiter principle is far from enjoying uni-
versal acceptance.69 The best view, hence, is that article 24(2) of the
Model Law is silent on this issue and the tribunal should refrain from
relying on sources of law which have not been previously discussed with
(and between) the parties, whenever this risks generating an appearance
of partiality and potentially endangering the validity and/or international
circulation of the future award.
Article 24(3) requires that the statements, documents, reports and
other information be communicated to the parties, but it does not
specify who should execute the communication. This omission is the
result of a conscious choice: the drafters considered that, in the practice
of arbitration, communications may be managed in different ways,
depending on the settings within which the arbitral proceedings take
place.70 By way of example, in ad hoc proceedings, documents may be
transmitted directly from one party to the other, or communicated by
67
UN Doc. A/CN.9/263 (n. 12), 37, para. 10.
68
For a general discussion of the different possible balances between party initiative and ex
officio powers, see M. R. Damaška, The Faces of Justice and State Authority: A
Comparative Approach to the Legal Process (Yale University Press, 1986).
69
For a comparative overview on selected jurisdictions, see G. Cordero-Moss and F. Ferrari
(eds), Iura Novit Curia in International Arbitration (Juris, 2018); J. Jemielniak, ‘Iura Novit
Arbiter Revisited: Towards a Harmonized Approach?’ (2015) 20 Unif. L. Rev. 56.
70
UN Doc. A/CN.9/245 (n. 33), para. 83, noting that the paragraph lays down ‘the
important principle that each party should receive all relevant documents or information
without, however, regulating the mechanics of how precisely and by whom the docu-
ments would have to be communicated to the party’.

674 article 24: heari ng s and w ritten proceedings
the tribunal or a secretary (if any). By contrast, in an administered

arbitration, the institution may mediate and streamline all communica-
tions between the parties and the tribunal. Thanks to the general
wording of article 24(3), all of these practical arrangements are in
principle possible, as long as the equality between the parties and
their right to be heard are not jeopardised.
Finally, it is important to specify that good faith operates as a funda-
mental limit to the parties’ possibility to invoke a violation of article
24(3). A party, in other words, may be estopped from complaining about
an omission in the presentation of evidence on a certain issue, when it has
been given ample opportunity to present its own views on that issue and
failed to do so.71
71
Nanjing Cereals, Oils and Food Stuffs Import & Export Corp. v. Luckmate Commodities
Trading Ltd [1994] HKCFU 140; Société Unichips Finanziaria SpA SA, Unichips Intl BV
and Others v. François Gesnouin, Michèle Gesnouin, Paris Court of Appeal, 12 February
1993 in (2004) XXIX YB Com. Arb. (n. 56), p. 658. In a similar vein, a New Zealand court
refused to set an award aside on the ground that the sole arbitrator had failed to provide a
copy of an expert report to the parties, as the challenging party knew that the expert had
been appointed by the tribunal and never demanded a copy of the report: Alexander
Property Developments v. Clarke, High Court New Plymouth, 10 June 2004, Civ. 2004-
443-89. Partially different problems arise when the party has not been given the oppor-
tunity to reply to a document filed by the other party, but the document does not seem to
have been taken into account by the tribunal in the award. A German court decided that,
in such a case, the award rendered by the tribunal should be recognised and enforced, as
the document had no practical influence on the way in which the case was eventually
decided: Oberlandesgericht Hamm, 28 November 2008 in (2006) XXXIV YB Com. Arb.
(n. 63), p. 536. This line of reasoning is not completely convincing, as the tribunal may
have been influenced by the document even if the text of the award does not directly refer
to it.

Article 25
Default of a Party
ma nuel a. góm ez
Unless otherwise agreed by the parties, if, without showing sufficient

cause,
(a) the claimant fails to communicate his statement of claim in accor-
dance 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 proceedings 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.

Tribunals must ensure the efficiency of the proceedings, even when one
of the parties does not cooperate.1 In practice, if one of the parties
defaults, particular caution is necessary, so as to preserve the enforce-
ability of the future award.2 Most national arbitration statutes contain
provisions facilitating this goal;3 in the Model Law, this function is
fulfilled by article 25.
The consequences of the potential failure by a party to participate in
the arbitral proceedings was among the main topics included in the
questionnaire prepared by the Working Group during the early stages
1
UNCITRAL, ‘2012 Digest of Case Law’, Pt One, p. 114.
2
J. D. M. Lew, L. Mistelis and S. M. Kröll, Comparative International Commercial
Arbitration (Kluwer, 2003), p. 543, paras 21–75.
3
Ibid., p. 544, paras 21–76.
675

676 ar tic l e 25: de f aul t of a pa rt y
of the discussion about the Model Law.4 This important issue was pre-
sented to the delegations in the form of two questions that highlighted the
interplay between the power of the tribunal to move the proceedings
forward and the prerogative of the parties to regulate the arbitral process.
The first question was whether the arbitral tribunal should ‘be empow-
ered to go ahead with the proceedings and make a binding award even
without special authorization by the parties, including reference to arbi-
tration rules which allow the arbitral tribunal to do so’.5 The second
question, which derived from an assumption that a party authorisation
was required, asked whether ‘the model law [should] expressly recognize
it as being effective, subject to any restrictions envisaged under question
4–14’.6
The general sense among the States represented in the Working Group
was that ‘the arbitral tribunal should be empowered to continue the
proceedings even if one of the parties fails to communicate his statement
or to appear at a hearing’.7 Notwithstanding this general view, Working
Group members had divergent ideas about whether there should also be a
provision that ‘set forth the conditions for such continuation’,8 or
whether instead the Model Law should avoid regulating this issue alto-
gether given that some States did not allow ex parte judgments.
Regarding the first proposal, some Working Group members suggested
the inclusion of two – potentially three – conditions to be set forth in a
draft provision, for the proceedings to be continued. The first condition
was that the party should be ‘given due advance notice (possibly also
requiring a statement of the legal consequences of default)’.9 The second
condition was ‘that the party had not shown sufficient cause for his
failure’.10 In order to ascertain this situation, a suggestion was made to
refer to State courts the decision of whether ‘ex parte proceedings by the
4
Work of Its Third Session, UN Doc. A/CN.9/216 (23 March 1982), 18.
5
Ibid.
6
Question 4–14 stated: ‘What conditions must be met, and laid down in the model law, for
the arbitral tribunal to go ahead in case of default?’ Working Paper Submitted to the
Working Group on International Contract Practices at Its Third Session: Note by the
Secretariat: Possible Features of a Model Law on International Commercial Arbitration:
Questions for Discussion by the Working Group, UN Doc. A/CN.9/WG.II/WP.35 (1
December 1981), (1982) XIII UNCITRAL YB 308.
7
UN Doc. A/CN.9/216 (n. 4), para. 71.
8
Ibid.
9
Ibid.
10
Ibid.

arbitral tribunal were permissible’.11 Notwithstanding, some Working

Group members showed concerns ‘over the delay and complications
which might result from such court involvement’.12 In light of this
debate, Working Group delegates agreed to request the Secretariat to
prepare a draft for further consideration, while at the same time also
considering the option of leaving the solution to the procedural laws of
each State, in case no consensus could be found.
By the fourth session of the Working Group, two alternatives of the
proposed rule were presented for discussion, in the form of draft article
24. The first alternative comprised four possible default scenarios. The
first two situations referred to the failure by a party (claimant or respon-
dent, respectively) to communicate to the arbitral tribunal the statement
of claim or defence ‘within the period of time fixed by the arbitral
tribunal’.13 In the case of the claimant’s failure to comply, the effect
would be the issuance by the arbitral tribunal of ‘an order for the
termination of the arbitration proceedings’.14 If, on the other hand, the
defaulting party turned out to be the respondent, the arbitral tribunal’s
order would be instead for the proceedings to continue. The third and
fourth situations referred to the failure to appear at a hearing and to
present documentary evidence, respectively, after having been invited
to do so ‘in writing at least 20 days in advance’.15 In the case of failure to
appear at a hearing, the provision included as a necessary condition that
the party had not shown sufficient cause for its conduct. The main
consequence was that the arbitral tribunal could proceed with the arbi-
tration. A suggestion was made ‘to make clear in paragraph (3) that the
arbitral tribunal should give a party a period of time to show that he had
sufficient cause for his failure to appear at a hearing’.16 In the case of
failure to produce documentary evidence, there was no requirement to
show cause and the consequence was that the arbitral tribunal could
‘make the award on the evidence before it’.17 In both cases, the tribunal
was given the discretion to ‘notify the parties in writing’.18
11
Ibid.
12
Ibid.
13
Third Session, UN Doc. A/CN.9/232 (10 November 1982), 23.
14
Ibid.
15
Ibid., 24.
16
Ibid., 25, para. 131.
17
Ibid., 24.
18
Ibid.

In order to provide the parties with an additional opportunity to

obtain a review of the decision by the arbitral tribunal, a separate provi-
sion – listed as subparagraph 5 – gave the defaulting party the right to
request ‘the Authority specified in article 17’ (i.e. a State court) to
determine whether the conditions laid down in the scenarios listed in
subparagraphs 1 to 4 had been fulfilled. The Working Group showed
general support for the policy underlying subparagraphs 1 to 4 listed
above and its members also understood that ‘these provisions were
subject to the contrary agreement of the parties’.19 Nevertheless, the
Working Group rejected the idea of any judicial supervision of the
arbitral tribunal’s decision by considering it both unnecessary and unde-
sirable. As a result, subparagraph 5 was eliminated from the draft article.
The second alternative was more straightforward and only contem-
plated three hypotheses, namely: (1) the respondent’s failure ‘to commu-
nicate his statement of defence within the period of time fixed by the
arbitral tribunal’;20 (2) the failure of one of the parties to appear at a
hearing despite having been invited to do so ‘at least 20 days in
advance’;21 and (3) the failure of one of the parties to produce documen-
tary evidence, despite having been invited to do so ‘within a specified
period of time of not less than 20 days’.22 The triggering event for the
three provisions was the respective party’s failure to communicate,
appear or produce ‘without showing sufficient cause’.23 This alternative
also included the possibility for the other party to request a court order
authorising or instructing the arbitral tribunal to proceed with the
arbitration. Similarly to what occurred with subparagraph 5 of alternative
A described earlier, the Working Group decided to eliminate this
mechanism of judicial intervention.
The discussion revealed the need to preserve a balance of equality
between the parties. Such balance, however, was difficult to attain
because of the different situation of the parties. On the one hand, the
claimant had ‘every reason to pursue his claim if he believes it is justified,
since otherwise he will have incurred expenses for no substantive pur-
pose’; on the other hand, the situation of the respondent was obviously
different. As a result, in order to level the playing field between the
parties, a proposal was made to treat the respondent’s failure to
19
Ibid., para. 125.
20
Ibid.
21
Ibid.
22
Ibid.
23
Ibid.

1 . b a c k g r o u n d a n d trav aux prép a r a t o i r e s 679
communicate his statement of defence as a denial of the claim. ‘In such a

case, even though the respondent was in default in respect of the arbitral
procedure, the claimant would have to establish the merits of his case
before the arbitral tribunal.’24 One last suggestion was to reconsider the
length of the time limits established by the draft article, as some con-
sidered it to be too short ‘taking into account the distances and possible
delays in communications’.25 A proposal was made to give the arbitral
tribunal some discretion regarding appropriate time limits.
The discussion about the draft article – now labelled ‘article XVIII’ –
was resumed during the following Working Group session. The revised
text continued to include two alternatives; a long version divided into
four provisions (‘alternative A’), and a shorter one with less detail
(‘alternative B’). Similar to the earlier version presented during the fourth
session of the Working Group, alternative A regulated four situations: the
failure of the claimant to present its statement of claim, the failure of the
defendant to present its statement of defence, the failure of any party to
appear at a hearing and the failure of a party to produce documentary
evidence. A common heading was also added with two provisos: that the
parties could expressly agree on a different regime if they wished (‘unless
otherwise agreed by the parties’); and that the defaulting party had not
shown ‘sufficient cause for the failure’. Regarding the event that triggered
a party to be deemed at fault, in the case of the claimant it was the failure
to communicate his statement of claim within ‘the period of time stipu-
lated by the parties or fixed by the arbitral tribunal’. Regarding the
communication of the statement of defence by the respondent and the
production of documentary evidence by any party, alternative B stipu-
lated the same time frame of forty days for the tribunal to consider the
relevant party in default. Finally, regarding the failure to appear at a
hearing, the point of reference set forth by draft article XVIII(d) to
determine whether a party was at fault was the existence of a notification
pursuant to article XVII(2).
The support shown for alternative A by Working Group members was
based on the fact that ‘it provided more detailed rules’,26 that it covered
‘the claimant’s failure to communicate his statement of claim (or to state
his case)’27 and ‘the possible assessment by the arbitral tribunal of the
24
Ibid., 25, para. 129.
25
Ibid., 25, para. 130.
26
27
Ibid., para. 88.

680 art ic l e 25: de f aul t of a p ar ty
respondent’s failure to communicate his statement of defence’.28

Regarding this last point, alternative A treated such failure ‘as a denial
of the claim’.29 At least three diverging views about this issue were voiced
at the session. The first supported the idea of treating the respondent’s
failure to submit a statement of defence as a denial of the claim. A second
position was that ‘it was sufficient and necessary to provide that such
failure shall not be treated as an admission of the claimant’s allegations’.30
The last position was that ‘the arbitral tribunal should be given full
discretion by not providing any rule on the legal assessment of such
failure’.31
Alternative B was admittedly shorter and, according to some, incom-
plete. The text read: ‘Even if, without showing sufficient cause for the
failure, the respondent fails to communicate his statement of defence, or
a party fails to appear at a hearing or to produce documentary evidence,
although an invitation to do so had been sent at least 40 days in advance,
the arbitral tribunal may continue the proceedings and make the award,
unless default proceedings are excluded by agreement of the parties.’32
The fact that this proposal was more succinct persuaded the Working
Group to support it, so the prevailing view regarding the proposed text
for the article was that it should be a general provision ‘along the lines of
alternative B, with one or two points added from alternative A’.33 These
points concerned the addition of a provision regarding the claimant’s
failure to communicate his claim, and the assessment of the respondent’s
failure to communicate his statement of defence. The Working Group
turned its attention to the inclusion of a fixed time period (i.e. forty days
under article XVIII (b) and (d)) and after deliberating decided against it.
The idea was to ‘use a more flexible formula such as “reasonable time” or
“sufficient time” or merely to refer to the “time stipulated by the parties
or fixed by the arbitral tribunal”’.34 In addition, the Working Group
expressed its support for including the possibility ‘that any time-period
could be extended by the arbitral tribunal in appropriate cases’.35
Another decision by the Working Group was to adopt the view that the
28
Ibid., para. 89.
29
Ibid., 19.
30
31
Ibid.
32
Ibid., 20.
33
34
35
Ibid.

provision should not be mandatory. The Secretariat was instructed to

prepare a revised draft article for further discussion.
The next iteration of article 25 that was presented for discussion at the
seventh session of the Working Group combined elements of the differ-
ent alternatives proposed during previous sessions. The heading (‘unless
otherwise agreed by the parties, if, without showing sufficient cause’) was
the same that had been proposed earlier as part of alternative A. The next
two provisions dealt with the failure of claimant and respondent, respec-
tively, to communicate their statement of claim (subparagraph (a)) and
defence (subparagraph (b)). The time period that determined whether
the party had failed to communicate the claim or the defence was the one
set forth in article 23(1), that is, ‘the period of time agreed by the parties
or determined by the arbitral tribunal’.36 The last provision (subpara-
graph (c)) referred to the consequences for failing to comply with
‘a request by the arbitral tribunal, to appear at a hearing, or to produce
documentary evidence’.37 It provided that ‘the arbitral tribunal [may]
[shall] continue the proceedings [and may make the award on the
evidence before it]’.38 After a discussion, the Working Group adopted
the following version of subparagraph (c): ‘(c) if 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’.39
The issue that received most attention from the Working Group was
subparagraph (b), for which three variants were suggested and which
referred to the respondent’s failure to communicate its statement of
defence. The first and most simple variant proposed that the conse-
quence should simply be the continuation of the arbitral proceedings.
The second variant proposed that the tribunal would continue ‘the
proceedings without treating such failure as an admission of the clai-
mant’s allegations’;40 and the last proposed that the failure to commu-
nicate the defence be treated as a denial of the claim, in which case the
tribunal should continue the proceedings. After deliberations, the
Working Group adopted variant B, which was better aligned with a
rule adopted by many national laws that treated the defendant’s failure
36
Seventh Session, UN Doc. A/CN.9/246 (6 March 1984), Annex, art. 23.
37
38
Ibid.
39
40

to communicate its statement of defence ‘as an admission of the clai-

mant’s allegations’.41 A final suggestion was to include more detailed
provisions regarding ‘how to establish the default and in what manner
to conduct the proceedings and make the award’,42 but the Working
Group decided that ‘a model law need not contain detailed procedural
rules in that respect’.43
Similarly to what the Working Group did with the rest of the Model
Law, governments and international organisations were invited by the
Secretariat to provide specific comments on the draft of article 25.
Germany warned about the risk of a possible interpretation of subpara-
graph (b) according to which ‘silence on the part of the respondent would
not result in a disadvantage to him’.44 The German representation
clarified that the value of the provision rested on the fact ‘that the claim
made by the claimant is not recognized as such’,45 and argued that ‘the
arbitral tribunal should be able to come to this or a similar conclusion in
individual cases’.46 Two other countries, Italy and the Soviet Union,
reacted to subparagraph (c). Italy proposed the inclusion of a provision
that imposed sanctions in case of default of a party, for example, ‘that the
failure to appear at a hearing or to produce documentary evidence is an
element which the arbitral tribunal could take into account in deciding
the case’.47 The suggestion by the Soviet Union was to add a sentence
directing the arbitral tribunal to continue the proceedings at the request
of the other party, immediately after the original sentence giving the
tribunal the freedom (‘the tribunal may’) to continue or not continue the
proceedings. As we explain later, this suggestion elicited an interesting
discussion at a later session (325th meeting, 17 June 1985) when other
States had an opportunity to react and provide comments on the draft
provision.48
41
42
43
Ibid.
44
on the Draft Text of a Model Law on International Commercial Arbitration, Report of the
45
Ibid.
46
Ibid.
47
Ibid., 38.
48
See Summary Records for Meetings of the UNCITRAL Model Law on International
Commercial Arbitration, 325th Meeting, UN Docs A/CN.9/246, Annex; A/CN.9/263 and
Add.1–2; A/CN.9/264 (17 June 1985), (1985) XVI UNCITRAL YB 478.

The report of the Secretary-General on the analytical commentary of

the Model Law reaffirmed the non-mandatory nature of article 25.49 It
also highlighted the inclusion of certain procedural safeguards geared,
inter alia, to convince the States called upon to recognise an award ‘that
fundamental requirements of fairness had been met’.50 The procedural
safeguards consisted of ‘requirements that the defaulting party had been
requested or notified sufficiently in advance and that he defaulted with-
out showing sufficient cause therefor’,51 and the Working Group deemed
them particularly important ‘in the cases dealt with in article 25(b) and
(c) where the arbitral tribunal is empowered to continue the arbitral
proceedings and make an award’.52
According to the report, article 25(b) was especially important because it
ensured that the arbitration could not be frustrated by ‘the failure of the
respondent to communicate his statement of defence’.53 The solution
offered by the Model Law in this regard was to direct the tribunal ‘to
continue the proceedings “without treating such failure as an admission of
the claimant’s allegations”’.54 This was seen as a particularly useful solution
‘in view of the fact that under many national laws on civil procedure
default of the defendant in court proceedings is treated as an admission
of the claimant’s allegations’.55 Notwithstanding, the tribunal still retained
its discretion regarding the assessment of the failure and was not forced ‘to
treat it as a full denial of the claim and all supporting facts’.56
Regarding that portion of article 25(c) regarding ‘the failure of a party to
appear at a hearing or to produce documentary evidence’,57 the report
stated that in addition to empowering ‘the arbitral tribunal to continue
the proceedings and make the award on the evidence before it’, article 25(c)
should be read as including ‘the power not to admit or to disregard any
documentary evidence presented by that party after the specified time-limit
for producing such evidence’.58 Furthermore, the arbitral tribunal could
49
Arbitration, Report of the Secretary-General, UN Doc. A/CN.9/264 (25 March 1985), 56,
para. 1.
50
Ibid., para. 2.
51
Ibid.
52
Ibid., para. 3.
53
Ibid., para. 4.
54
Ibid.
55
Ibid.
56
Ibid.
57
Ibid., para. 5.
58
Ibid.

also draw inferences ‘from a party’s failure to produce any evidence as

requested’.59 A final comment of the report addressed some implicit fea-
tures of article 25 regarding a party’s failure to appear or to produce
documentary evidence. Regarding the former, the report observed that:
‘although the provision does not itself say so, “failure to appear at a hearing”
presupposes that the party was given sufficient advance notice (article 24
(3))’.60 In the case of the failure to present documentary evidence, the report
highlighted that the provision ‘presupposes that the party was requested to
do so within a specified period of time which was reasonable in accordance
with the fundamental principles of article 19(3)’.61
The Working Group deliberations during the 325th meeting generated
an interesting discussion regarding several aspects of draft article 25. Some
delegations took issue with the sentence ‘without showing sufficient cause’,
which served as the introduction. Three positions were voiced with regard
to this. The first proposed that the provision be modified or ‘made
clearer’62 as, according to some States, it did not sufficiently indicate
‘whether “sufficient cause” was to be shown to the other party or to the
arbitral tribunal’63 and lacked clarity ‘concerning the discretionary power
of the arbitral tribunal to terminate the proceedings’.64 A second group of
States considered that it would be best to delete the phrase ‘without
sufficient cause’ and perhaps replace it with ‘the insertion of the words
“or otherwise ordered by the arbitral tribunal” before the word “if”’.65 The
last group of countries proposed that the phrase ‘“without showing suffi-
cient cause” should remain in the text’66 because it ‘already gave the arbitral
tribunal sufficient discretionary power’67 and ‘the parties should have an
59
Ibid.
60
Ibid., 57.
61
Ibid.
62
Comment by Mr Mtango (United Republic of Tanzania) at the 325th Meeting, Monday
17 June 1985, (1985) XVI UNCITRAL YB 478, para. 2.
63
Comment by Mr Joko-Smart (Sierra Leone) at the 325th Meeting, Monday 17 June 1985,
(1985) XVI UNCITRAL YB 478, para. 1. It is important to note that the government of
Sierra Leone also raised an issue regarding the time factor and said that ‘permitting cause
to be shown after the time-limit was tantamount to extending the time agreed by the
parties’. Ibid.
64
Comment by Mr Goh (Singapore) at the 325th Meeting, Monday 17 June 1985, (1985)
XVI UNCITRAL YB 479, para. 7.
65
Comment by Mr Griffith (Australia) at the 325th Meeting, Monday 17 June 1985, (1985)
XVI UNCITRAL YB 478, para. 5.
66
Comment by Mr Holtzmann (United States of America) at the 325th Meeting, 17 June
1985, (1985) XVI UNCITRAL YB 479, para. 8.
67
Comment by Mr Roehrich (France) at the 325th Meeting, 17 June 1985, (1985) XVI

opportunity to state reasons for non-compliance with article 23(1)’.68 In

closing the discussion, the Chairman ‘suggested that the Commission’s
report should make it clear that the words “without showing sufficient
cause” implied “to the arbitrators” and that the intention was to give the
arbitrators a degree of discretion and flexibility’.69
Several delegations also made final comments to draft article 25(c) start-
ing the exchange with reactions to the written suggestions made earlier by
the Soviet Union at the request of the Secretariat.70 The Soviet Union
delegate began by clarifying that his government’s proposal had been to
modify the language of the provision so it reads: ‘may, or at the request of
the other party must, continue the proceedings’,71 in order to prevent the
arbitral tribunal from having an unjustified level of (full) discretion in such
cases. Only the Finnish delegation supported the Soviet Union’s proposal,72
while others either conditioned their endorsement to certain modifications
(e.g. the addition of the sentence ‘within reasonable time’73) or simply
opposed it for considering that, if approved, ‘the party requesting the
proceedings might take unfair advantage of the failure of the other party
to submit documentary evidence’.74 Another criticism to the Soviet Union’s
proposal was that it ‘was in contradiction with the proviso “without showing
sufficient cause” at the end of the introductory sentence’.75 That proviso was
important because it ‘gave the tribunal some discretion, whereas under the
Soviet proposal it would have to continue the proceedings if so requested by
one of the parties’.76 Given the opposition to its proposed amendment, the
Soviet delegation decided not to insist and the Commission decided to
retain the existing text of subparagraph (c).77
68
Comment by Mr Hoyos Gutierrez (Cuba) at the 325th Meeting, 17 June 1985, (1985) XVI
69
Comment by the Chairman Mr Loewe (Austria) at the 325th Meeting, 17 June 1985,
(1985) XVI UNCITRAL YB 479, para. 11.
70
See UN Doc. A/CN.9/263 (n. 44), 37.
71
Comment by Mr Lebedev (Soviet Union) at the 325th Meeting, 17 June 1985, (1985) XVI
72
Comment by Mr Moeller (Observer from Finland) at the 325th Meeting, 17 June 1985,
73
Comment by Mr Mtango (United Republic of Tanzania) at the 325th Meeting, 17 June
1985, (1985) XVI UNCITRAL YB 479, para. 24.
74
Comment by Mr Sami (Iraq) at the 325th Meeting, 17 June 1985, (1985) XVI UNCITRAL
YB 479, para. 30.
75
Ibid.
76
Ibid.
77
See Comment by the Chairman Mr Loewe (Austria) at the 325th Meeting, 17 June 1985,

686 ar tic l e 25: de f aul t of a par t y
During the last meeting prior to the final adoption of draft article 25,
the Australian delegate commented that, in his view, the opening phrase
‘without showing sufficient cause’ only applied to subparagraph (a) and
proposed that it be incorporated in that subparagraph.78 The Chairman
responded by declining to reopen the discussion unless the Commission
wished otherwise.79 No additional comments were made and article 25
was adopted without change.80 Finally, article 25 did not undergo any
revision during the discussions that led to the 2006 amendment of the
Model Law.
2. Chapeau
2.1 ‘Unless Otherwise Agreed by the Parties’
The opening sentence in the chapeau of article 25 reaffirms the impor-
tance of the principle of party autonomy in international arbitration. The
general approach of the Model Law is that, barring a mandatory rule or a
public policy concern, the course of the arbitration shall be guided by
what the parties have agreed. The parties are the main stakeholders in the
dispute and usually are in a pre-eminent position to decide what best
suits their interests. The opening sentence of article 25 offers an open
possibility for the parties to decide what consequences – if any – should
be attached to the failure of a party in fulfilling its duties to communicate,
appear or produce documentary evidence within the time limits set forth
by the arbitral tribunal or the procedural rules agreed upon by the parties.
Pursuant to the opening sentence of article 25, the parties could, for
example, create a regime specifically tailor-made to their dispute, which
deviates from the rules set forth in subparagraphs (a), (b) and (c). Such
regime could be moored on the laws of a particular State, or on the rules
of an arbitral institution that regulates the issue differently from the
Model Law. Furthermore, the parties could also create a specific regime
that deviates from all existing rules, if that is something that they deem
convenient given the legal regime applicable to their dispute, their spe-
cific situation and the characteristics of the dispute.
78
Comment by Griffith (Australia) at the 332nd Meeting, 20 June 1985, (1985) XVI
79
Comment by the Chairman Mr Loewe (Austria) at the 332nd Meeting, 20 June 1985,
80
Summary Records for the 332nd Meeting, 20 June 1985, (1985) XVI UNCITRAL YB 507,
para. 79.

2. c ha p ea u 687
2.2 Without Showing Sufficient Cause

The second part of the sentence in the chapeau of article 25 features a
conditional sentence, namely: ‘if, without showing sufficient cause’,
whose main function is to set a precondition for the three subparagraphs
that make up the rest of article 25. Courts have held that these are, in fact,
the most important words contained in the provision.81 Each of the
subparagraphs addresses a specific situation, namely: the failure of the
claimant to communicate his or her statement of claim (subparagraph
(a)); the failure of the respondent to communicate his or her statement of
defence (subparagraph (b)); and the failure of any party – claimant or
respondent – to appear at a hearing or to produce documentary evidence.
For any of the consequences listed in each of the aforementioned sub-
paragraphs to apply, the failure attributable to a party has to have
occurred ‘without showing sufficient cause’.
The meaning of this sentence gives rise to three important questions.
The first question refers to what constitutes sufficient cause. The second
question seeks to determine who (opposing party or arbitral tribunal)
shall determine the failure to show sufficient cause. Finally, the last
question refers to what is the time frame to show sufficient cause.
Regarding the first question, neither article 25 nor institutional rules
and the laws of the enacting States contain a definition of what constitutes
sufficient cause. Nevertheless, since default of a party also arises in the
context of litigation before State courts, arbitral tribunals may seek
guidance from civil procedure when determining what constitutes suffi-
cient cause and how to handle it.
‘Cause’ refers to a reason, origin or foundation; to ‘something that
precedes and brings about an effect or a result’.82 In the context of article
25, it means the reason that might have prevented the party from com-
municating its claim or defence, appearing at a hearing or producing
documentary evidence under the terms and conditions (e.g. within the
time frame) set forth by the relevant rules or by the arbitral tribunal. The
adjective ‘sufficient’ refers to something that is adequate to produce
the outcome.83 The expression ‘without sufficient cause’ is used in other
81
Srei Infrastructure Finance Ltd v. Tuff Drilling Private Ltd, Supreme Court of India,
Civil Appellate Jurisdiction, Civil Appeal No. 15036/2017, judgment (20 September
2017), 19.
82
B. Garner, Black’s Law Dictionary, 7th edn (West, 1999), ‘cause’.
83
Ibid., p. 1433. ‘sufficient: Adequate, enough, as much as may be necessary, equal or fit for
end proposed, and that which may be necessary to accomplish an object’.

legal contexts to mean ‘something more than an absence of a valid defense

to the claim’,84 ‘some objective factor external to the defense [that]
impeded counsel’s efforts to comply with the state’s procedural rules’85
or that prevented ‘counsel from constructing or raising the claim’.86 Under
these standards, ‘attorney error short of ineffective assistance of counsel’87
has been found to ‘not constitute cause for a procedural default’.88
Regarding the second question (i.e. who gets to decide whether the
defaulting party has not shown sufficient cause), the tribunal should be
the proper organ to do so, except if the parties or the procedural rules
chosen by the parties provide otherwise. As illustrated above, during the
Working Group sessions that led to the approval of article 25, a proposal
was made to assign the decision regarding the showing of sufficient cause
to a State court, but the suggestion was rejected.89 Allowing a court to
decide this issue would likely produce unnecessary delays in the handling
of the proceedings, and would also be inefficient because the arbitral
tribunal – and not the court – is the adjudicative body in possession of all
the relevant information to make the best decision for the parties.
Furthermore, giving this power to an external organ such as a State
court would also be problematic in cases where the parties want to
keep the arbitral proceedings confidential.
Finally, regarding the time frame for showing cause, when deciding a
case that presented an identical question, the Supreme Court of India – a
Model Law jurisdiction – affirmed that:
… the question of showing sufficient cause will arise only when the
claimant is asked to show cause as to why he failed to submit his claim
within the time as envisaged under section 23(1) or the claimant, on his
own, before the order is passed under section 25(a) to terminate the
proceedings comes before the arbitral tribunal showing sufficient cause
for not being able to submit his claim within the time.90
Based on this reasoning, a party that believes itself to be affected by an

external objective reason (i.e. sufficient cause) that prevents it from
communicating its claim or defence to the arbitral tribunal, appearing
84
See e.g. Collie v. Fergusson (1930) 281 US 52. See also Larkins v. Hudson Waterways Corp.
(1981) 640 F.2d 997.
85
See e.g. Murray v. Carrier (1986) 106 US 2639.
86
Ibid.
87
Ibid.
88
Ibid.
89
See UN Doc. A/CN.9/216 (n. 4), 18.
90
Srei Infrastructure Finance (n. 81), 21.

3 . subparagraph (a) 689
at a hearing or producing tribunal-ordered documentary evidence does

not have to wait until after the expiration of the time set forth to show
said sufficient cause.
If the time limit to communicate the claim or defence, to appear at a
hearing or produce documentary evidence has expired, then the arbitral
tribunal may order the defaulting party to show cause before deciding
whether or not to terminate the proceedings. ‘It is easy to comprehend
that in the event the claimant shows a sufficient cause, the arbitral
tribunal can accept the statement of claim even after the expiry of the
time … or grant further time to the claimant to file a claim.’91 Even
though the tribunal has discretion to determine the best method to order
the party to show cause, the language of article 25 suggests that ‘it is a
duty of the arbitral tribunal to inform the claimant that he has failed to
communicate his claim on the date fixed for that and requires him to
show cause as to why the tribunal proceedings should not be
terminated’.92
3. Subparagraph (a)
Subparagraph (a) addresses the failure of the claimant to communicate
his or her statement of claim. It is important to clarify from the outset
that this provision does not extend to the claimant’s potential failure to
submit or communicate the initial request for arbitration that marks the
commencement of the arbitration.93 If the claimant failed to submit the
request, the arbitral procedure would not start in the first place.94
Subparagraph (a) also does not apply to the claimant’s failure to pay
the advance for the costs required by the arbitral tribunal under certain
institutional arbitration rules.95
When subparagraph (a) indicates that the communication of the claim
has to be done ‘in accordance with article 23(1)’,96 it means to say that
such communication shall occur: (1) ‘within the period of time agreed by
the parties or determined by the arbitral tribunal’;97 (2) by stating ‘the
91
Ibid.
92
Ibid., 21.
93
See art. 21 of the Model Law, concerning the commencement of arbitral proceedings.
94
This is the same solution that can be inferred from applying different international
arbitration rules. See e.g. UNCITRAL Arbitration Rules, art. 3.
95
See e.g. UNCITRAL Arbitration Rules, art. 41(4).
96
Model Law, art. 25(a).
97

690 art ic l e 2 5: de f aul t of a p ar ty
facts supporting his claim, the points at issue and the relief or remedy
sought’;98 and (3) accompanying ‘all documents they consider to be
relevant’ or adding ‘a reference to the documents or other evidence
they will submit’.99 As a result, the communication of the statement of
claim not only has to be done in a timely fashion, but also in the manner
prescribed by the procedural rules accepted by the parties,100 or as
required by the arbitral tribunal. Regarding the latter, the arbitral tribu-
nal may, given the specific characteristics of the case, require that the
claim is presented in a particular form, accompanying certain specific
records, and also require documents to be translated or submitted in a
certain way. One example of this type of requirement by an arbitral
tribunal may occur where some important original documents are in a
language other than the language of the arbitration. The arbitral tribunal
might require the parties to submit those originals along with the claim,
under the condition that if the party failed to comply it would be declared
in default.101
Subparagraph (a) sanctions the failure of the party to communicate
its claim with a declaration whereby the arbitral tribunal terminates the
proceedings (‘the arbitral tribunal shall terminate the proceedings’),102
which is by no means automatic.103 The tribunal’s declaration to termi-
nate the proceedings will ordinarily be issued after the time contem-
plated in article 23(1) has expired, the claimant has failed to
communicate his statement and the arbitral tribunal has given the
claimant an opportunity to show cause. Courts have held that the
claimant’s failure triggers a duty for the arbitral tribunal to issue an
98
Ibid.
99
Ibid.
100
See e.g. UNCITRAL Arbitration Rules, art. 20.
101
See e.g. Konsortium Oeconomicus v. Czech Republic, Decision for termination of the
proceedings, In the matter of an arbitration before a tribunal constituted in accordance
with the agreement between the Czech and Slovak Federal Republics and the Swiss
Confederation on the promotion and reciprocal protection of investments, signed on 5
October 1990, entered into force on 7 August 1991. Case NN 452/FM, 5 December 2011.
In this case, the arbitral tribunal told the claimant ‘that the statement of claim would not
be deemed submitted if Claimant failed to provide the Czech originals of both the First
and Second Powers of Attorney’. Since the claimant failed to do so, the tribunal declared
the proceedings terminated.
102
103
Awasthi Construction Co. v. Govt of NCT of Delhi and Another, 2013 (1) Arb. LR 70
(Delhi) (DB), paras 17, 18 (India). ‘We may in this regard also notice that the legislature
in s 25 [equivalent to article 25 of the model law], has not provided for termination of
proceedings automatically on default by a party but has vested the discretion on the
arbitral tribunal to, on sufficient cause being shown to condone such default.’

4. subparagraph (b) 691
order asking the claimant ‘to show cause as to why he failed to submit his
claim within the time’104 established or in accordance with article 23(1);
only after that opportunity has been given, the arbitral tribunal may –
if sufficient cause has not been shown – terminate the proceedings. If, on
the contrary, sufficient cause is shown, ‘the statement of claim can be
permitted to be filed’105 even if the tribunal had already declared the
proceedings terminated.106
4. Subparagraph (b)
The first sentence of subparagraph (b) is nearly identical to the beginning
of subparagraph (a), except for the words ‘respondent’ and ‘defence’.
Both paragraphs equally refer to the failure of a party ‘to communicate
his statement … in accordance with article 23(1)’,107 thus revealing the
equal treatment of both claimant and respondent.108 However, the dis-
tinguishing feature of subparagraph (b) is found in the second sentence,
which sets forth the consequence of the respondent’s failure to commu-
nicate his or her statement of defence. Unlike the case of the defaulting
claimant, which warrants the termination of the proceedings, the respon-
dent’s failure to communicate his or her defence triggers the continua-
tion of the proceedings by the tribunal. As observed in a commentary to
article 30(1)(b) of the UNCITRAL Arbitration Rules, which is very
similar to the provision at hand, the reasons why respondents do not
participate in the arbitral proceedings ‘can range from the respondent’s
financial inability to defend itself or to pay any award that may be
rendered against it, the conviction that the tribunal does not possess
jurisdiction, to the bringing of a parallel claim in court’.109 Nonetheless,
and regardless of the reason for such conduct, it is paramount ‘that the
104
Srei Infrastructure Finance (n. 81), 19.
105
Ibid., 22.
106
Ibid. See also M/S Senbo Engineering Ltd v. State of Bihar and Others, AIR 2004 Patna 33
(India); see also Awasthi Construction (n. 103), paras 17, 18; see also ATV Projects India
Ltd v. Indian Oil Corp. Ltd and Another, 200 (2013) DLT 553 (DB) (India); see also
Bharat Heavy Electricals Ltd v. Jypthi Turbopower Services Pvt. Ltd and Others, 2017 (1)
Arb. LR 289 (Madras) (India).
107
Model Law, art. 25(a), (b).
108
In the case of art. 23(1), it says that the ‘respondent shall state his defence in respect of
these particulars [i.e. the facts, the points at issue, and the remedies sought], unless the
parties have otherwise agreed as to the required elements of such statements’.
109
P. Binder, Analytical Commentary to the UNCITRAL Arbitration Rules (Sweet &
Maxwell, 2013), p. 290, para. 30–017.

arbitral process is not interrupted by the respondent’s non-participation’.110

Several institutional rules adopt a similar approach,111 although not all
institutional rules require the arbitral tribunal to continue the proceedings.
Even in those cases where the arbitral tribunal is given the power to
exercise discretion whether or not to continue the arbitration, ‘fairness to
the claimant would dictate that the proceedings continue. Moreover,
arbitration is consensual and if the parties have agreed to resolve con-
tractual disputes by arbitration, the very purpose of their agreement
should not be defeated by a recalcitrant respondent.’112 The duty of the
arbitral tribunal to continue with the proceedings (‘the arbitral tribunal
shall continue the proceedings’)113 entails providing the non-participat-
ing respondent ‘with adequate advance notice of any hearings’114 and
also keeping them informed of all communications sent between the
tribunal and the claimant. The principle of equal treatment of the parties
and their right to be given a full opportunity to present their case – set
forth in article 18 of the Model Law – cannot be waived and has to be
respected under all circumstances.
The last sentence of subparagraph (b) (‘without treating such failure in
itself as an admission of the claimant’s allegations’)115 expresses the idea
that the respondent’s failure to participate should not entail ‘a procedural
disadvantage from its non-participation’.116 The continuation of the
110
Ibid.
111
See e.g. Arbitration Rules of the Chartered Institute of Arbitrators, art. 30(b) (‘If the
respondent has failed to communicate its response to the notice of arbitration or its
statement of defence, the arbitral tribunal shall order the proceedings to continue’);
Camera di Milano, Arbitration Rules, art. 10(4) (‘Where Respondent does not file a
statement of defence, the arbitration shall proceed without it’); Hong Kong International
Arbitration Centre, 2018 Administered Arbitration Rules, art. 26.2 (‘If, within the time
limit set by the arbitral tribunal, the Respondent has failed to communicate its written
statement without showing sufficient cause for such failure, the arbitral tribunal may
proceed with the arbitration’); LCIA Arbitration Rules, art. 2.3 (‘Failure to send a
Response shall not preclude the Respondent from denying any claim or from advancing
a counterclaim in the arbitration’); ICDR Arbitration Rules (‘If a party fails to submit an
Answer in accordance with article 3, the arbitral tribunal may proceed with the arbitra-
tion’); Madrid Court of Arbitration, Arbitration Rules, art. 6(7) (‘La falta de presentación
de la respuesta a la solicitud de arbitraje dentro del plazo conferido no suspenderá el
procedimiento ni el nombramiento de los árbitros’).
112
J. Butchers and P. Kimbrough, ‘The Arbitral Tribunal’s Role in Default Proceedings’
(2006) 22 Arb. Intl 236.
113
Model Law, art. 25(b).
114
Binder (n. 109), p. 290, para. 30–022.
115
Model Law, art. 25(b).
116
Binder (n. 109), p. 290, para. 30–017.

5 . s ubp ara gra ph ( c) 693
proceedings by the arbitral tribunal should not signify ‘that there is an

automatic award in favor of the claimant where the respondent fails to
present its case’.117 The claimant’s duty to substantiate its claim is not
waived as a result of its adversary’s default.118 Furthermore, the arbitral
tribunal could request the claimant ‘to submit an extensive memorial and
answers to a number of questions’ in order to establish whether the claim
is well substantiated. An issue that ‘becomes of even greater significance
where the respondent does not’119 participate in the proceedings is
whether the arbitral tribunal ‘is entitled to go further and conduct
independent research or apply its private knowledge or experience’.120
Some institutional arbitration rules such as those of the LCIA,121 and
some arbitral tribunals,122 have expressly supported this possibility.
5. Subparagraph (c)
The final subparagraph of article 25 (subparagraph (c)) applies equally to
claimant and respondent (‘any party’) when they fail ‘to appear at a
hearing or to produce documentary evidence’.123 Failure to appear
obviously refers to a hearing for which the party was duly notified and
in respect of which the party did not show sufficient cause for not
attending. Subparagraph (c) also presupposes that the party has none-
theless submitted its statement of claim or defence, although it has failed
to participate in the hearing. Similar to the provisions set forth in sub-
paragraphs (a) and (b), the arbitral tribunal should request the party to
show cause as to why it failed to appear at the hearing or to produce the
117
Butchers and Kimbrough (n. 112), p. 237.
118
See ICSID Case No. ARB/83/2, Liberian Eastern Timber Corp. (Letco) v. Government of
the Republic of Liberia, Award, 31 March 1986 (‘The failure of the government of Liberia
to take part in the present arbitral proceedings does not entitle the claimant to an award
in its favour as a matter of right. The onus is still upon the claimant to establish the claim
which it has put forward’).
119
Butchers and Kimbrough (n. 112), p. 238.
120
Ibid.
121
LCIA Arbitration Rules, art. 22.1(c) (‘to conduct such enquiries as may appear to the
Arbitral Tribunal to be necessary or expedient, including whether and to what extent the
Arbitral Tribunal should itself take the initiative in identifying the issues and ascertain-
ing the relevant facts and the law(s) or rules applicable to the arbitration, the merits of the
parties’ dispute and the Arbitration Agreement’).
122
See e.g. Klöchner v. Cameroon, cited by Butchers and Kimbrough (n. 112), p. 239 (‘In
Klöchner v. Cameroon, the ad hoc Committee … considered that the arbitral tribunal
was not bound to choose between the arguments put forward by the parties’).
123
Model Law, art. 25(c).

694 art ic l e 25: de f aul t of a p ar t y
documentary evidence within the time period and other conditions set
forth by agreement of the parties, or as set forth by the tribunal or on the
basis of the applicable rules.
If, after having been given an opportunity to show sufficient cause, the
party does not persuade the arbitrators,124 the tribunal ‘may continue the
proceedings and make the award on the evidence before it’. The power
given to the arbitral tribunal to make inferences based on the documen-
tary and other evidence produced (or not) by the parties has been
generally acknowledged by leading institutional arbitration rules such
as the AAA Commercial Arbitration Rules,125 the ICC Rules of
Arbitration,126 the ICDR International Arbitration Rules127 and the
ICSID Rules of Procedure for Arbitration Proceedings (2006).128 A
124
CLOUT Case 1248, Corporación Transnacional de Inversiones SA de CV and Others v.
STET Intl SpA and Others, Court of Appeals for Ontario, 136 OAC 113 (15 September
2000) (Canada) (‘if one of the parties is absent without valid excuse the arbitrator shall
proceed with the arbitration and “such proceedings shall be deemed to have been
conducted in the presence of all parties”’).
125
AAA Commercial Arbitration Rules (2013), R-31 Arbitration in the Absence of a Party
or Representative (‘Unless the law provides to the contrary, the Arbitration may proceed
in the absence of any party or representative who, after due notice, fails to be present or
fails to obtain a postponement. An award shall not be made solely on the default of a
party. The arbitrator shall require the party who is present to submit such evidence as the
arbitrator may require for the making of an award’); R-34 Evidence (‘(a) The parties may
offer such evidence as is relevant and material to the dispute and shall produce such
evidence as the arbitrator may deem necessary to an understanding and determination of
the dispute. Conformity to legal rules of evidence shall not be necessary. All evidence
shall be taken in the presence of all of the arbitrators and all of the parties, except where
any of the parties is absent, in default or has waived the right to be present’ (emphases
added)).
126
ICC Rules of Arbitration (2017), art. 6: Effect of the Arbitration Agreement (‘… (3) if any
party against which a claim has been made does not submit an Answer … the arbitration
shall proceed … (8) If any of the parties refuses or fails to take part in the arbitration or
any stage thereof, the arbitration shall proceed notwithstanding such refusal or failure’
(emphases added)).
127
ICDR International Arbitration Rules (2014), art. 26: Default (‘1. If a party fails to submit
an Answer in accordance with Article 3, the arbitral tribunal may proceed with the
arbitration. 2. If a party, duly notified under these Rules, fails to appear at a hearing
without showing sufficient cause for such failure, the tribunal may proceed with the
hearing. 28. ICDR Rules and Mediation Procedures. 3. If a party, duly invited to produce
evidence or take any other steps in the proceedings, fails to do so within the time
established by the tribunal without showing sufficient cause for such failure, the tribunal
may make the award on the evidence before it’).
128
ICSID Rules of Procedure for Arbitration Proceedings (2006) (‘Rule 34 Evidence:
General Principles … (2) The Tribunal may, if it deems it necessary at any stage of the
proceeding: (a) call upon the parties to produce documents, witnesses and experts … (3)
The parties shall cooperate with the Tribunal in the production of the evidence and in the

5 . s ubp ara gra ph ( c) 695
similar approach has been espoused by international arbitration soft law,

such as the IBA Guidelines on Party Representation in International
Arbitration (2013)129 and the IBA Rules on the Taking of Evidence in
International Arbitration (2010),130 as well as by the UNCITRAL Notes
on Organizing Arbitral Proceedings131 and the Practice Notes for
Respondents in ICSID Arbitration.132
Under a typical common law approach, discovery rules require parties
to produce all kinds of evidence, including such that is adverse to their
other measures provided for in paragraph (2). The Tribunal shall take formal note of the
failure of a party to comply with its obligations under this paragraph and of any reasons
given for such failure’ (emphasis added)).
129
‘Remedies for Misconduct’ (26. If the Arbitral Tribunal, after giving the Parties notice
and a reasonable opportunity to be heard, finds that a Party Representative has com-
mitted Misconduct, the Arbitral Tribunal, as appropriate, may … (b) draw appropriate
inferences in assessing the evidence relied upon, or the legal arguments advanced by, the
Party Representative’ (emphasis added)).
‘Comments to Guidelines 26–27 … Their purpose is to preserve or restore the fairness
and integrity of the arbitration. The Arbitral Tribunal should seek to apply the most
proportionate remedy or combination of remedies in light of the nature and gravity of
the Misconduct, the good faith of the Party Representative and the Party whom he or she
represents, the impact of the remedy on the Parties’ rights, and the need to preserve the
integrity, effectiveness and fairness of the arbitration and the enforceability of the award.’
130
‘(5) If a Party fails without satisfactory explanation to produce any Document
requested in a Request to Produce to which it has not objected in due time or fails to
produce any Document ordered to be produced by the Arbitral Tribunal, the Arbitral
Tribunal may infer that such document would be adverse to the interests of that Party.’
‘(6) If a Party fails without satisfactory explanation to make available any other relevant
evidence, including testimony, sought by one Party to which the Party to whom the
request was addressed has not objected in due time or fails to make available any
evidence, including testimony, ordered by the Arbitral Tribunal to be produced, the
Arbitral Tribunal may infer that such evidence would be adverse to the interests of that
Party’ (emphasis added).
131
‘13. Documentary evidence …
(b) Whether the arbitral tribunal intends to require a party to produce documentary
evidence
…
51. The arbitral tribunal may wish to establish time-limits for the production of
documents. The parties might be reminded that, if the requested party duly invited to
produce documentary evidence fails to do so within the established period of time,
without showing sufficient cause for such failure, the arbitral tribunal is free to draw its
conclusions from the failure and may make the award on the evidence before it’ (emphasis
added).
132
‘12. The Written Procedure … Document Disclosure … A refusal to produce a docu-
ment may lead to an application to the tribunal to determine whether the document
should have been produced … Failure to cooperate with a Tribunal’s document produc-
tion order may lead to an adverse inference being drawn against the non-producing Party
and may affect the allocation of costs’ (emphasis added).

696 art ic l e 25: de f aul t of a p ar ty
case. Conversely, in civil law systems, parties are not expected to produce
all adverse evidence133 and each bears the burden of proof required to
support their claims and defences. In the realm of international arbitra-
tion, arbitral tribunals have broad discretion to apply rules of evidence
and are not bound by any specific standard of proof, unless parties agree
otherwise, which is relatively rare.134 Moreover, State courts will usually
not vacate an arbitral award as fundamentally unfair if there is an
adequate evidentiary basis for the arbitral ruling.135
The IBA Rules on the Taking of Evidence in International Arbitration
‘reflect procedures in use in many different legal systems, and they may
be particularly useful when the parties come from different legal cul-
tures’,136 and are intended to balance evidentiary production according
to those predominant approaches. Nevertheless, they do not provide a
specific guidance on ‘how and when’ adverse inferences can be made.137
Parties and arbitrators can adopt the IBA Rules in whole or in part and,
according to its article 9(5), arbitrators can draw adverse inferences
against parties reluctant to comply with orders requiring production of
evidence. Furthermore, awards based on adverse inferences have been
routinely confirmed and have not been set aside by domestic courts as a
presumptive violation of public policy or due process whatsoever.138
Nevertheless, some have argued that, albeit theoretically possible, adverse
inferences still pose a risk to award enforceability in certain jurisdictions
where they could be seen as contrary to due process.139 Others have
opined that this might help explain why most arbitral tribunals seem to
be hesitant to apply them.140
133
W. G. O. Morgan, ‘Discovery in Arbitration’ (1986) 3 JOIA 9, cited by G. Bernini, ‘The
Civil Law Approach to Discovery: A Comparative Overview of the Taking of Evidence in
the Anglo-American and Continental Arbitration Systems’ in L. W. Newman and R. Hill
(eds), The Leading Arbitrators’ Guide to International Arbitration (Juris, 2004).
134
P. O’Neill, Jr, International Commercial Arbitration. Case Studies and Materials
Exploring Where Theory Meets Practice (West, 2012), p. 713.
135
O’Neill, ibid., citing Forsythe Intl SA v. Gibbs Oil Co. of Texas, 915 F.2d 1017 (5th Cir.
1990); Cellular Radio Corp. v. Oki Am., 664 A.2d 357, 363 (DC 1995); Radetsky v. Ferris
Baker Watts, Inc., 2008 WL 4985849 (DC 2008).
136
IBA Rules on the Taking of Evidence in International Arbitration, foreword.
137
S. Greenberg and F. Lautenschlager, ‘Adverse Inferences in International Arbitral
Practice’ (2011) 2 ICC Bull. 22.
138
A. Sevan Bedrosyan, ‘Adverse Inferences in International Arbitration: Toothless or
Terrifying’ (2016) 38 U. Penn. J. Intl L. 241.
139
W. Park, ‘A Fair Fight: Professional Guidelines in International Arbitration’ (2014) 30
Arb. Intl 409.
140
G. Born, International Commercial Arbitration, 2nd edn (Kluwer, 2014), pp. 2391–2392.

Article 26
Expert Appointed by Arbitral Tribunal

michael polkinghorne, karim mariey
and tomas vail
(1) Unless otherwise agreed by the parties, the arbitral tribunal

(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 26 of the Model Law concerns the ability of the arbitral tribunal to
appoint an expert, unless the parties have agreed otherwise.1
The types of experts which are commonly used in arbitrations, accord-
ing to reported Model Law cases, include:
(1) legal experts;2
(2) technical experts;3 and
(3) financial/accounting experts.4
1
While more common in civil law systems, this practice is also possible in English courts:
Civil Procedure Rules, r. 35.7.
2
CLOUT Case 1265, Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anonim Sirketi v. Kyrgyz
Republic (2012); CLOUT Case 1663, PT Prima Intl Development v. Kempinski Hotels SA
and other appeals [2012] SGCA 35.
3
CLOUT Case 1603, Australian Competition and Consumer Commission v. Valve Corp.
(No. 3) (2016); CLOUT Case 1024, Ukrainian LLC (Seller) v. Russian LLC (Buyer) (1999).
4
Playcorp Pty Ltd v. Taiyo Kogyo Ltd (2003) VSC 108.
697

698 article 26: expert appointed b y arbitral t r ibunal
In practice, tribunal-appointed experts are not very common,5 while

party-appointed experts are generally more used.6
Article 26 was significantly influenced and inspired by the correspond-
ing article of the 1976 UNCITRAL Arbitration Rules (article 27) and
indeed the wording of both articles is very similar. The first drafts of
article 26 hewed even more closely to article 27 of the UNCITRAL
Arbitration Rules, with only minor differences between them.7 Article
26 started to take its own form by introducing the principle that the
ability of the tribunal to appoint an expert was subject to the contrary
agreement of the parties.8 This reflected the prevailing view arising from
the Working Group’s early discussions that parties should be able to
preclude the tribunal from calling an expert at any time; this issue was to
be distinguished from the question of whether a party could present the
evidence of an expert witness, and it was agreed that the arbitral tribunal
should hear such expert witnesses as provided for in the UNCITRAL
Arbitration Rules.9
This echoed the discussion arising from the drafting of the
UNCITRAL Arbitration Rules, as Mexico wished to emphasise that
the appointment of a tribunal-appointed expert did not preclude the
possibility of the parties appointing their own experts.10 To clarify this
position, Mexico proposed including the phrase ‘Without prejudice to
the expert proof provided by the parties’ at the beginning of the first
paragraph. While this proposal was ultimately not implemented, India,
Germany and the United States equally supported the uncontroversial
approach that parties could produce expert witnesses.11 Indeed,
although also not implemented, India proposed removing the sentence
in the final paragraph ‘At this hearing either party may present expert
5
N. Choudhury, ‘Tribunal-Appointed Damages Experts: Procedural Improvements Can
Serve as a Better Alternative in Arbitration’, Practical Law (20 April 2018).
6
2012 White & Case/Queen Mary International Arbitration Survey: Current and Preferred
Practices in the Arbitral Process, p. 29.
7
Draft Articles 1 to 24 on Scope of Application, Arbitration Agreement, Arbitrators, and
Arbitral Procedure, UN Doc. A/CN.9/WG.II/WP.37 (15 July 1982), 55.
8
Fourth Session, UN Doc. A/CN.9/232 (10 November 1982), paras 114–115.
9
10
UN Commission on International Trade Law, Ninth Session, Committee of the Whole
(II), Summary Record of the 9th Meeting, UN Doc. A/CN.9/9/C.2/SR.9 (20 April 1976),
paras 60–62.
11

1. b a c k g r o un d a n d t ra v a u x p rép a r a t o i r e s 699
witnesses in order to testify on the points at issue’, as there was no

doubt that a party could produce expert witnesses if it wished.12
The Working Group’s discussions on article 19 (Determination of
rules of procedure) also reflected the view that parties’ freedom should
not be restricted and they could preclude the tribunal from calling an
expert, with the Working Group deleting the following language:
‘Notwithstanding the provision of paragraph (1)(a), the parties may not
preclude the arbitral tribunal from calling an expert if it deems that
necessary for deciding the dispute.’13
The Working Group additionally noted that, in contrast to article 27 of
the UNCITRAL Arbitration Rules, it was not necessary to specify that the
expert’s report be in writing, as the form of the expert’s opinion could be
left to tribunal practice and to the agreement of the parties.14 In the same
vein, the Working Group more broadly considered that procedural
elements should be deleted from article 26 and incorporated in article
24 (which relates to the conduct of hearings and written proceedings)
with only statements of principle remaining, although there were differ-
ent views expressed as to which subparagraphs of article 26 contained
statements of principle.15
By the time the revised draft articles were circulated, only a month
later, article 26 appeared in a drastically different form.16 Whereas the
Working Group had previously discussed incorporating procedural ele-
ments of articles 26 and 24, now a single provision reflected the entirety
of both articles and addressed both tribunal-appointed experts and the
conduct of hearings and written proceedings.
The Working Group subsequently considered whether parties should
be required, before the appointment of the tribunal, to enter into an
agreement to restrict the ability of the tribunal to appoint an expert, so
that any arbitrator would be aware of such restriction before accepting
the mandate.17 The Working Group also decided to delete the following
sentence derived from article 27 of the UNCITRAL Arbitration Rules:
‘Any dispute between a party and such expert as to the relevance of the
12
Ibid., para. 65.
13
UN Doc. A/CN.9/232 (n. 8), paras 101–105.
14
Ibid., para. 116.
15
Ibid., para. 117.
16
Draft Articles I to XXVI, UN Doc. A/CN.9/WG.II/WP.40 (14 December 1982), 82.
17

700 article 2 6: expert appointed b y arbitr al t ribunal
required information or production shall be referred to the arbitral

tribunal for decision.’ It noted that the sentence dealt with a detailed
question not appropriate for inclusion in a law.18
In its next iteration, article 26 was again a stand-alone provision,
decoupled from considerations of hearings and written proceedings,
and in much the same form as it appears today.19 In the Fifth Working
Group (with reference to the suggestion that before appointment of the
first member of the tribunal, parties should be required to agree whether
the tribunal could appoint its own expert), the ‘prevailing view was that
the freedom of the parties to restrict that power of the arbitral tribunal
was paramount and should not be subject to such a time limit’.20
The Working Group also considered whether the arbitral tribunal
(‘The arbitral tribunal may require a party to give the expert’) or the
expert (‘The expert may, within his terms of reference, require a party to
give him’) should be empowered to require the parties to produce docu-
ments. It concluded that it was more appropriate that the arbitral tribunal
itself, and not the expert, should require the parties to produce any
relevant information or materials.21
A further clarification was introduced to the first sentence of the final
paragraph of article 26, noting that a hearing with the tribunal-appointed
expert was not required to take place in every case, but only where a party
requested this or where, without such a request, the arbitral tribunal
considered it necessary.22 In respect of the hearing, Cyprus subsequently
proposed expressly providing for the right of the tribunal to put ques-
tions to the tribunal-appointed expert regardless of any agreement to the
contrary between the parties,23 although this was ultimately not
implemented.
Returning to a key issue of apparent contention, the Working Group
clarified that the parties’ right to exclude the tribunal’s power to appoint
experts was an important expression of private autonomy.24 Further to its
18
Ibid., para. 85.
19
Seventh Session, UN Doc. A/CN.9/246 (6 March 1984), para. 85.
20
Ibid., para. 87.
21
22
Ibid., paras 86, 89.
23
24
Arbitration: Report of the Secretary-General, UN Doc. A/CN.9/264 (25 March 1985), 57.

2. p ara gra ph 1 (a ) 701
earlier discussion, the Working Group also confirmed that article 26

represented a statement of principle without regulating particulars
dealt with in detail by arbitration rules.25
The delegates negotiating the Model Law in 1985 had a similar discus-
sion. The Union of Soviet Socialist Republics suggested that article 26 be
amended to reflect a requirement that the parties must decide whether
the tribunal can appoint an expert before the appointment of the tribunal
so that arbitrators would not accept nominations if they would be
prohibited from appointing an expert (and considered themselves not
sufficiently qualified to resolve certain technical questions). This propo-
sal was supported by the Observer for the International Council for
Commercial Arbitration, but rejected by the majority of delegates, with
the United Republic of Tanzania and Nigeria both expressly citing the
freedom of the parties as reasons for the rejection.26 The Observer for the
Chartered Institute of Arbitrators expressed support for the proposed
article 26, noting that his organisation had followed its language in
drawing up the 1985 rules of the London Court of International
Arbitration. India also proposed replacing the term ‘interrogate’ in article
26(2) with alternative language and ultimately the phrase ‘put questions
to’ was incorporated. Otherwise, article 26 remained in the form pro-
posed by the Working Group.27
2. Paragraph 1(a)
2.1 ‘Unless Otherwise Agreed by the Parties …’
It follows from the words ‘unless otherwise agreed by the parties’ and the
travaux préparatoires discussed above that the tribunal cannot appoint
an expert in circumstances where the parties object to such appointment.
Such an objection to the appointment of a tribunal-appointed expert can
be recorded in the arbitration agreement (although, in the opinion of the
authors, this would be unusual and undesirable) or could be raised
during the proceedings when/if the tribunal proposes to appoint its
own expert. If there is no agreement by the parties, but one party objects
to such appointment, the tribunal must decide, after hearing the parties’
respective positions on the issue, whether it should appoint such an
expert in the circumstances.
25
Ibid., 58.
26
Minutes of 325th Meeting (17 June 1985), paras 39–56.
27
See UN Doc. A/CN.9/264 (n. 24), 57.

702 a r tic l e 26 : e x p e r t a p p o i n t ed b y ar b i t r a l tr i b u n a l
2.2 ‘… The Arbitral Tribunal May Appoint One or More Experts

to Report to It …’
The power of the tribunal to appoint an expert is echoed in various
arbitration laws globally, including section 37 of the English
Arbitration Act, section 25 of the Swedish Arbitration Act and article
1042 of the Netherlands Code of Civil Procedure.
There has been inconsistent judicial dicta in relation to the question of
whether article 26(1)(a) bestows a right or an obligation on the tribunal.
In an application to set aside an ICC award in Germany,28 the court
rejected an argument that the tribunal had a duty to appoint an expert in
Italian patent law in circumstances where the tribunal did not itself
possess the requisite knowledge of that law. The German court in that
case rejected the applicant’s argument that the tribunal’s decision not to
appoint an expert violated the applicant’s right to be heard.
Similarly, in India, the Delhi High Court refused an application to set
aside an award on the grounds that (among other things) the tribunal had
failed to appoint a technical expert in relation to the conduct of perfor-
mance guarantee tests required to be carried out under a construction
contract.29
In contrast, the Swiss Supreme Court recently decided that, in princi-
ple, the parties have a right to a tribunal-appointed expert subject to
certain conditions,30 namely that:
(1) timely request for the appointment of a tribunal-appointed expert
must be made by either party;
(2) if required by the tribunal, the requesting party must advance the
costs of the appointment of such expert;
(3) the evidence of the tribunal-appointed expert must relate to facts
relevant to the rendering of the award; and
(4) the evidence of the tribunal-appointed expert must be necessary and
proper for proving such relevant facts.
If these requirements are satisfied and the tribunal fails to honour a
request to appoint an expert, this, under Swiss law, may amount to a
violation of the parties’ right to be heard, which, in turn, is grounds for
28
CLOUT Case 375, Bayerisches Oberstes Landesgericht, 4 Z Sch. 23/99 (15 December
1999).
29
Natl Thermal Power Corp. Ltd v. Wig Bros Builders and Engineers Ltd, High Court of
Delhi, India [2009] INDLHC 1466, para. 56.
30
Swiss Supreme Court, Decision 4A_277/2017 (28 August 2017).

2. p ar agra ph 1 ( a) 703
the setting aside of an award under article 190(2)(d) of the Swiss Federal
Statute on Private International Law. An earlier decision of the Swiss
Federal Supreme Court stated that ‘even in the absence of a request by a
party, arbitrators who do not have specialised knowledge must mandate
an expert if they need clarification on certain technical problems which
are decisive for the determination of the dispute’.31 This finds further
support in Russia where the courts annulled an arbitral award due to the
tribunal’s failure to appoint an expert in circumstances where there were
technical issues which required clarification.32
While article 26 itself is silent on the issue, the rules of several arbitral
institutions require that the tribunal consult the parties as to the selection
of the tribunal-appointed expert (which suggests that the tribunal has the
final say in these matters). Article 29 of the UNCITRAL Arbitration Rules
2010, for example, states that ‘[a]fter consultation with the parties, the
arbitral tribunal may appoint one or more independent experts’. This is
echoed in article 25(4) of the 2017 ICC Rules, and the ICC Bulletin
entitled ‘Issues for Arbitrators to Consider Regarding Experts’ suggests
that the tribunal will ‘find it helpful to seek the parties’ input on whether
the proposed expert is suitable’.33 In the absence of these or similar
procedural rules, it remains unclear whether the failure of the tribunal
to consult the parties in the selection of the tribunal-appointed expert
would give rise to grounds for the setting aside of the award under article
34(2)(b)(ii) of the Model Law.
This may be of particular relevance where experts in a particular field
tend to fall into one of two theoretical ‘camps’ on the relevant questions
(e.g. in relation to the correct method for valuing a type of damages), such
that the identity of the expert has a distinct impact on the nature of his or
her opinion on the relevant issues and, in turn, on the tribunal’s decision
thereon. If the tribunal unilaterally appoints an expert in those circum-
stances, a convincing argument can be made that, had the parties been
consulted, the choice of the expert may have been different and the
tribunal may therefore have also reached a different conclusion (although
this, to the best of the authors’ knowledge, has not been tested in the
courts in any published decisions).
31
‘Tribunal Federal, 1ere Cour Civile’, 10 ASA Bull. 3, 396.
32
Trust Oil v. NANA SAL Offshore, No. 5-G01-92 and 5-G01-144, www.consultant.ru/cons/
cgi/online.cgi?req=doc;base=ARB;n=30655#07997215157457642 (in Russian).
33
‘Issues for Arbitrators to Consider Regarding Experts’ (2010) 21 ICC Bull., Question 2,
https://library.iccwbo.org/content/dr/COMMISSION_REPORTS/CR_0041.htm?l1
=Commission+Reports.

The Rules on Conduct of the Taking of Evidence in International

Arbitration, colloquially known as the Prague Rules and intended as an
alternative to the IBA Rules on the Taking of Evidence, could see
tribunals being given more power to appoint experts. Article 6 of the
Prague Rules does not allow for party-appointed experts, contemplating
tribunal-appointed experts only:
At the request of a party or on its own initiative and after having heard the
parties, the arbitral tribunal may appoint one or more independent
experts to present a report on disputed matters which require specialised
knowledge.34
While the tribunal should still seek suggestions from the parties as to who
it should appoint as an expert, it ‘shall not be bound by the candidates
proposed by either party’.35
In respect of independence, it is generally accepted that tribunal-
appointed experts should be independent and impartial in the perfor-
mance of their duties.36
However, there is no uniform basis in the Model Law or otherwise for
challenging a tribunal-appointed expert on the grounds of partiality.
This, in itself, does not prevent a party from raising such objection with
the tribunal at the time of the expert’s appointment. If a challenge is made
by a party and rejected by the tribunal, this may give rise to an application
to set aside the award on grounds of violation of due process.
In what circumstances will a tribunal-appointed expert be found to be
lacking impartiality? The IBA Rules on the Taking of Evidence require that
tribunal-appointed experts be independent from the parties, their legal
advisors and the tribunal, but do not elaborate on this requirement.37
Meanwhile, the IBA Guidelines on Conflicts of Interest in International
Arbitration refer, in the Orange List, in relation to experts specifically, to:
(1) the situation where a close personal friendship exists between an
arbitrator and an expert;38 and
(2) the situation where enmity exists between an arbitrator and an
expert.39
34
Rules on Conduct of the Taking of Evidence in International Arbitration, art. 6.1.
35
Ibid., art. 6.2.i.
36
M. McIlwrath and J. Savage, International Arbitration and Mediation: A Practical Guide
(Kluwer, 2009), para. 5-222.
37
IBA Rules on the Taking of Evidence in International Arbitration (2010), art. 6(2).
38
IBA Guidelines on Conflicts of Interest in International Arbitration, para. 3.4.3.
39
Ibid., para. 3.4.4.

2. p ar agra ph 1 ( a) 705
The reported attempts to set aside an award on the grounds of partiality

of the tribunal-appointed expert have been largely unsuccessful, but not
always for reasons that suggest a challenge would ordinarily fail (indeed
quite the contrary; see below). In the Swiss case of Egemetal v. Fuchs,40
the tribunal appointed a technical expert who was, through his employer,
involved in unsuccessful negotiations with representatives of Egemetal
for the sale of steel to a subsidiary of the tribunal-appointed expert’s
employer. Egemetal unsuccessfully challenged the tribunal-appointed
expert before the tribunal and requested the appointment of a new
expert. Egemetal then filed a motion to set aside the award on the
grounds of a violation of the principle of equal treatment of the parties
and procedural public policy. While the tribunal-appointed expert in
Egemetal was found to have violated his duty to abstain from any conduct
which might impair the neutral conduct of the arbitration, the applica-
tion to set aside the award was rejected by the Swiss Federal Supreme
Court. This was largely because Egemetal failed to promptly notify the
tribunal and Fuchs when it became aware of the circumstances affecting
the tribunal-appointed expert’s independence.41 The Swiss Federal
Supreme Court did find, however, that the constitutional procedural
guarantees regarding independence and impartiality of judges and arbi-
trators are also applicable by analogy to tribunal-appointed experts.42
In Germany, a challenge to an award based on the close relationship
between the tribunal chairman and the tribunal-appointed expert was
also unsuccessful.43 The Munich Higher Regional Court found that in
order for justifiable doubts as to a tribunal member’s impartiality to arise,
there must be a relationship between the arbitrator and one of the parties.
The personal relationship between the tribunal-appointed expert and the
chairman of the tribunal in this case (they had collaborated as editors of a
book on the valuation of companies, and were also allegedly fellow board
members of a university organisation) did not amount to a lack of
impartiality vis-à-vis either of the parties to the dispute.44
Along with independence, perhaps the most significant issue in rela-
tion to the appointment of tribunal-appointed experts is the concern that
tribunals may delegate the powers bestowed upon them by the parties in
40
(2000) 18 ASA Bull.
41
C. Brunner, ‘Note – Federal Supreme Court, 28 April 2000’ (2000) 18 ASA Bull. 566, 577.
42
Ibid., p. 574.
43
Oberlandesgericht München (OLGZ), Higher Regional Court of Munich (16 June 2014),
[Sch] 15/13insti München, 34.
44
Ibid., 34, p. 1.

the arbitration agreement to the tribunal-appointed expert. This type of

issue arises also in the context of tribunal secretaries, in relation to which,
for example, The Hon. Mr Justice Popplewell has opined that ‘the safest
way to ensure that the secretary does not become a “fourth arbitrator” is
for the secretary not to be tasked with anything which involves expressing
a view on the substantive merits of an application or issue’.45
While tribunals are generally able to appoint experts to assist them, it is
uncontroversial that a tribunal cannot, and should not, delegate its
adjudicatory function, including to the tribunal-appointed expert.46
The same conclusion was reached by the Iran–US Claims Tribunal47
(echoing an earlier decision of the International Court of Justice48).
However, there are a number of scenarios where such delegation
would appear more problematic. For example, tribunals may appoint
an expert to review certain documents which, due to confidentiality
concerns, are not to be shared with the tribunal or the parties. Or,
under article 3(8) of the IBA Rules on the Taking of Evidence, the
tribunal, instead of reviewing a document itself, may appoint an expert
to review it to determine the propriety of an objection to its disclosure.
One could argue that the latter type of tribunal-appointed expert who
deals with procedural matters and not issues which are in dispute is a
distinct category of expert who is not readily subject to the typical rules
applicable to tribunal-appointed experts. Conversely, this could not be
said of the tribunal-appointed quantum expert who is appointed to
advise the tribunal in a dispute which turns purely on the evaluation of
the amount and value of work carried out (e.g. a ‘measurement dispute’
under a construction contract). In this circumstance, the tribunal would
have to exercise great care in managing the exercise so as not to delegate,
or be seen to be delegating, at least some material part of its decision-
making function to the tribunal-appointed expert in relation to an issue
which is not only in dispute, but may go to the very heart of that dispute.
Interestingly in this regard, a study (conducted by a forensic accoun-
tant) of the 100 ICSID cases since 2005 where damages have been
awarded has shown that, in most, but not all, of the eight cases where a
tribunal-appointed damages expert was appointed (in each instance, in
addition to party-appointed damages experts), ‘the tribunal-appointed
45
P v. Q and Others [2017] EWHC 194 (Comm.).
46
47
Starrett Housing Corp. v. Iran [1987] 16 Iran–US CTR 196.
48
Corfu Channel (United Kingdom v. Albania) [1949] ICJ Rep. 4.

2. p ar agr ap h 1 ( a) 707
expert determined (on behalf of the tribunal) the damages amount

awarded’.49 A closer review of those eight cases, however, puts into
question the extent to which a delegation can be definitively said to
have taken place. It should also be noted that seven of the eight cases
which were identified by this study were against Argentina and three of
those seven cases had the same individual as chairperson of the tribunal.
A number of cases of purported delegation have been tested before the
courts. The case of Luzon Hydro Corp. v. Transfield Philippines Inc.50
decided by the Singaporean High Court is of particular interest in this
regard. In Luzon, the tribunal-appointed expert, Mr Shortland, attended
the hearing, received copies of witness statements, asked questions of the
party-appointed experts and assisted the tribunal by identifying technical
issues in submissions, witness statements and the transcript. Following
the hearing, Mr Shortland responded to ‘technical queries’ raised by the
tribunal and reviewed the draft award to ‘ensure that the terminology
employed by the tribunal was appropriate for technical matters’.51 In
total, Mr Shortland had spent 468 hours working on the dispute after the
hearing. The applicant in Luzon contended that Mr Shortland’s role had
gone beyond a purely administrative one.52
As such, the applicant argued that the tribunal-appointed expert had
carried out tasks which ought properly to have been carried out by the
tribunal and that the award should be set aside on that basis. The
Singaporean High Court disagreed, finding that ‘there was little reason
to believe that [Mr Shortland] had gone beyond the bounds of assisting
the tribunal in sorting out the evidence and understanding technical
terms and identifying which part of the evidence was relevant to the
various issues that were being considered by the tribunal’.53 One can see,
however, that cases with situations like those in Luzon can give rise to
niche issues: it is at least arguable that ‘sorting out the evidence’, to the
extent that it refers to analysis thereof, falls within the bounds of a
tribunal’s adjudicatory functions. Further, should the parties have been
given the opportunity to review Mr Shortland’s responses to the ‘techni-
cal queries’ raised by the tribunal and to comment thereon? While this
argument does not appear to have been made in Luzon, it nevertheless
raises some due process concerns. The court in Luzon, with some
49
Choudhury (n. 5) (emphasis added).
50
[2004] SGHC 204.
51
Luzon Hydro Corp. v. Transfield Philippines Inc. [2004] SGHC 204, para. 9.
52
Ibid., para. 14.
53
Ibid., para. 16.

708 ar ticle 26: expert appointed b y arbitral tr ibunal
justification in the opinion of the authors, showed a reluctance to inter-

fere with the award without ‘strong and unambiguous evidence of irre-
gularity’.54 The court in Luzon also placed some emphasis on the fact that
the parties had been informed by the tribunal of the tasks which Mr
Shortland would be carrying out to assist the tribunal and that no
objection had been made at the time.
Therefore, Luzon should not necessarily be read as authority for an
expansive approach to the duties of a tribunal-appointed expert. Rather,
Luzon is a cautionary tale to tribunals (to ensure that the agreement of
the parties is sought in relation to the appointment and duties of the
tribunal-appointed expert) and to the parties (to ensure that any objec-
tions to the appointment and duties of the tribunal-appointed expert are
raised as soon as possible).
In a case before the Seoul High Court (Trocellen GmbH v. Youngbo
Chemical Co.),55 an action to set aside an award under articles 36(2)(i)(b)
and (d) of the Korean Arbitration Act was brought on the grounds that
(among other things): (1) the technical findings in the award were substan-
tially similar to the conclusions of a report prepared by the tribunal-
appointed expert which was not distributed to the parties; and (2) the
expert exceeded the scope of his or her duties by submitting factual findings
to the tribunal. In rejecting these arguments, the Seoul High Court found
that the tribunal-appointed expert had acted only as an ‘expert advisor’ and
noted that no contemporaneous objection was made by the parties to the
expert’s active participation in the hearing. As to the issue of the tribunal-
appointed expert’s report, the court found that there was no procedural rule
at that time requiring the tribunal to provide the parties with a copy thereof
and that the expert had merely submitted the report to the tribunal and not
participated in their deliberations. Interestingly, the Seoul High Court
found that the tribunal’s decision not to give the parties notice of the
submission of the tribunal-appointed expert’s report did not deprive the
parties of the opportunity to present their case because the parties had been
given the opportunity to submit evidence on technical matters throughout
the six hearings which had been held.
While these cases turned on their respective facts, they are helpful in
identifying two issues. First, that the use of tribunal-appointed experts
presents a number of risks which may give rise to applications to set aside
an award – involving the incurrence of both time and costs. Second, that
54
Ibid., para. 18.
55
Trocellen GmbH v. Youngbo Chemical Co., Ltd (3 April 2012), High Court of Seoul.

2. p ar agr ap h 1( a) 709
without unequivocal evidence of significant and explicit delegation by the

tribunal of its adjudicatory function to the tribunal-appointed expert,
such purported delegation is unlikely to amount to grounds for the
setting aside of an award.
Another relevant issue is confidentiality. There are differing views as to
whether all communications between a tribunal and the tribunal-
appointed expert are confidential. For example, in the Luzon case dis-
cussed above, the High Court of Singapore held that:
The engagement did not provide that parties could have a copy of other
communications between the tribunal and Mr Shortland. These were
confidential in the same way that communications between members of
the tribunal itself would be confidential.56
In contrast, article 6(5) of the IBA Rules on the Taking of Evidence in

International Arbitration (2010) explicitly states that the ‘Parties may
examine any … correspondence between the Arbitral tribunal and the
tribunal-Appointed Expert’.
One could argue that due process and the parties’ right to be heard
dictate that the parties should be provided with all communications
between the tribunal and the tribunal-appointed expert so that, for exam-
ple, the parties can comment on any opinions expressed by the expert to
the tribunal. On the other hand, one can see some credence in the argu-
ment that giving the parties access to such communications could be
tantamount to providing them with access to the tribunal’s deliberations
which are generally confidential.57 This is especially the case in circum-
stances where the parties have agreed that the tribunal-appointed expert
can be involved in the tribunal’s deliberations and can be consulted on
technical issues while, for example, the tribunal is writing its award.
2.3 ‘… On Specific Issues to Be Determined by the Arbitral

Tribunal …’
One method by which such risks and pitfalls can be avoided is the
adoption of detailed ‘Terms of Reference’ for the tribunal-appointed
56
Luzon Hydro Corp. (n. 51), para. 19.
57
See e.g. LCIA Rules 2014, art. 30(2). Interestingly, in the recent English High Court case of
P v. Q and Others [2017] EWHC 148, which related to a request for disclosure from the
members of a tribunal in an LCIA arbitration in support of an application for their
removal, the court, considering art. 30(2) of the LCIA Rules, held that ‘it can only be in the
very rarest of cases, if ever, that arbitrators should be required to give disclosure’.

710 a rt i cl e 26 : e xp er t a p poi n t e d by ar bi t r a l t rib u n a l
expert which are agreed by the tribunal and the parties at the outset.
These ‘Terms of Reference’ should not be confused with the arbitration
Terms of Reference required to be produced in ICC arbitrations by article
23 of the 2017 ICC Rules. However, because article 23(g) of the 2017 ICC
Rules requires that the arbitration Terms of Reference include ‘particu-
lars of the applicable procedural rules’, parties in ICC arbitrations may
wish to consider setting out the procedure for the use of a tribunal-
appointed expert in their arbitration Terms of Reference instead of
having a separate Terms of Reference for the tribunal-appointed expert.
It is worth noting that, in the First Working Group, the text of draft
article 26 included a provision that ‘[a] copy of the expert’s terms of
reference, established by the arbitral tribunal, shall be communicated to
the parties’, but this was deleted by the Second Working Group who felt
that this provision should ‘express only statements of principle and that
the procedural elements should be deleted’.58
In that regard, article 29(1) of the 2010 UNCITRAL Arbitration Rules
requires that ‘a copy of the [tribunal-appointed] expert’s terms of refer-
ence, established by the arbitral tribunal, shall be communicated to the
parties’. These Terms of Reference can, and should, set out: (1) the ‘specific
issues’ to be addressed; (2) the methodology to be adopted by the tribunal-
appointed expert; (3) the timetable for the tribunal-appointed expert’s
deliverables; (4) what contact, if any, the tribunal-appointed expert can
have with the parties; (5) what role, if any, the tribunal-appointed expert
will have at the hearing and in preparation of the award; and (6) the
tribunal-appointed expert’s duties, including his or her duty of indepen-
dence, which is discussed above. Any objections to the tribunal-appointed
expert’s mandate as set out in the Terms of Reference should be raised at
the time of agreement of those Terms, since otherwise, in the absence of
new information, such challenge is unlikely to be accepted by the tribunal
(or a review court). In one ICC arbitration where the ‘mission’ of the
tribunal-appointed expert was challenged by the respondent after having
accepted such mission, the tribunal held that the challenge was untimely
and anticipated that it would make inferences from the respondent’s
behaviour in the final award.59
The requirement in article 26(1) of the Model Law that the tribunal-
appointed expert report to the tribunal on ‘specific issues’ is not, in the
58
59
Final Award in ICC Case No. 6497, (1999) XXIV YB Com. Arb. 77–78.

2. p ar agr ap h 1 ( a) 711
opinion of the authors, a fetter on the discretion of the tribunal. However,

this requirement does provide some guidance as to when the appoint-
ment of a tribunal-appointed expert is likely to be appropriate (in other
words, when such specific issues arise and not just in any case). This then
leads to the question: in what circumstances will there be ‘specific issues’
which necessitate the appointment of an expert by the tribunal? One ICC
tribunal criticised what some commentators have described as the ‘gen-
eral approach’60 to the appointment of tribunal-appointed experts,
underlining how the use of experts should not lead to a de facto replace-
ment of the tribunal.61
Whether ‘specific issues’ have arisen will depend on the facts of each
individual case. The qualifications of the members of the tribunal may
also have some bearing on this. For example, in a shipping dispute where
the parties have appointed one (or more) shipping experts as members of
the tribunal, it may not be necessary (and indeed may be contrary to
principles of procedural economy) for a shipping expert to be appointed
by that tribunal. However, even in circumstances where the tribunal has
some expertise in the relevant area, a ‘specific issue’ requiring the
appointment of a tribunal-appointed expert may still arise. This is
because while an expert arbitrator can, and should, apply his or her
technical skills to address any issues which arise in the arbitration, the
expert arbitrator should not go beyond this by relying on technical
materials not put into evidence by the parties or by conducting his or
her own additional technical investigations or experiments. In those
circumstances, a tribunal-appointed expert should be appointed. This
position finds support in a decision of the High Court of Auckland where
the court reviewed the decision of an expert sole arbitrator.62
One commentator has suggested that ‘the substantiation of an allega-
tion by prima facie proof is generally a pre-requisite to determining that a
legitimate “specific issue” has arisen for which expert guidance is neces-
sary’.63 Yet this may not always be the case. Of course, a frivolous or
wholly unsubstantiated allegation should not form the basis of the
appointment of a tribunal-appointed expert. However, often a tribunal-
60
N. O’Malley, Rules of Evidence in International Arbitration: An Annotated Guide
(Informa, 2012), para. 6.09.
61
Contractor (European Country), Contractor (Middle Eastern Country) v. Owner (Middle
Eastern Country), Final Award, ICC Case No. 4629 [1989], (1993) XVIII YB Com.
Arb. 15.
62
Methanex Motunui Ltd v. Spellman [2004] 1 NZLR 95, paras 156–157.
63
O’Malley (n. 60), para. 6.09.

712 a rticle 26: expert appo inted b y a rbitr al t ribunal
appointed expert will be appointed at the outset of an arbitration, before

the parties’ cases have been set out in full. Further, it may be that, without
the assistance of a tribunal-appointed expert, the tribunal cannot estab-
lish whether an allegation is substantiated.
As a general principle, tribunals should not appoint an expert (either of
its own volition or following a request from a party) for the sole purpose
of filling a hole in one party’s case. This is consistent with the widely
accepted principle that it is incumbent on each party to prove its case in
order to discharge the applicable burden of proof. This is also consistent
with the necessary impartiality of the tribunal, as appointing an expert in
those circumstances would, in all likelihood, have the effect of impro-
perly benefiting one party to the detriment of the other.
Another scenario worth considering – albeit not one which the authors
have encountered in case law and beyond the scope of this chapter – is
where the tribunal appoints an expert on behalf of a party that does not
participate in the proceedings.
An analogous situation was considered by the US–German Mixed
Claims Commission. In that case, one of the issues in dispute related to
the authenticity of a document. Expert evidence was presented by both
parties and each of the party-appointed experts conducted certain experi-
ments, but reached ‘diametrically opposite results’.64 The arbitrator
declined the suggestion that the Commission should ‘make certain
experiments and tests for itself’, instead deciding against the claimant
based on the fact that the arbitrator did not consider that the claimant
had discharged ‘the burden to establish, by a fair preponderance of
evidence, that this document was written and sent at the time claimed’.65
Such an approach has also been echoed by a tribunal in an ICC case66 and
by the Iran–US Claims Tribunal.67
It is common practice in national courts (and, at times, in international
arbitration) for an expert to be appointed to testify on ‘foreign law’ (e.g.
where such foreign law is the governing law of the contract). However, is
‘foreign law’ a ‘specific issue’? Arguably, the specialist knowledge
required in respect of foreign law is not knowledge of the provisions of
that law, but rather the ability to interpret, critically analyse and evaluate
64
Lehigh Valley Railroad Co., Agency of Canadian Car and Foundry Co., Ltd, and Various
Underwriters (United States) v. Germany (Sabotage Cases) (1931) 24 Am. J. Intl L. 142.
65
Ibid.
66
Final award in ICC Case No. 8264 [1999], 10 ICC Bull. 2.
67
Rockwell Intl Systems Inc. v. Government of the Islamic Republic of Iran (The Ministry of
National Defence), Award No. 438-430-1, (1990) XV YB Com. Arb. 239–240.

3 . p ar agr ap h 1 (b ) 713
legal texts, be they in the form of statute, commentary or case law. This is
something that a tribunal composed of one or more lawyers should have
and is, as such, not specialist knowledge vis-à-vis the tribunal and not a
‘specific issue’ within the meaning of article 26. However, to the best of
the authors’ knowledge, this issue has not arisen in any published Model
Law cases and, rightly or wrongly, individuals appointed by the tribunal
to testify as to ‘foreign law’ are likely to be treated as experts in the context
of the Model Law.
3. Paragraph 1(b)
3.1 ‘… May Require a Party to …’
Article 26(1)(b) empowers the tribunal to require either party to provide
the tribunal-appointed expert with relevant information, documents or
property. Article 26 does not, however, address the consequences of a
party’s refusal or failure to comply with an order of the tribunal made
under article 26(1)(b). In the context of the production of documents, the
IBA Rules on Taking of Evidence (which are optional in their applica-
tion) allow the tribunal to draw appropriate inferences (often, adverse in
their nature) from a party’s failure to produce a document ordered to be
produced by the tribunal (see also Chapter 25 in relation to a party’s
failure to produce documents).68 The power of a tribunal to draw appro-
priate inferences is also widely recognised by national courts and com-
mentators.69 Tribunals are more likely to resort to drawing adverse
inferences in light of a failure to comply with an order made under article
26(1)(b) as opposed to imposing costs or other sanctions or seeking
judicial assistance to enforce an order for production of documents or
property.70 Some commentators have suggested that ‘although the expert
operates with the approved authority of the tribunal to order evidence to
be made available or to draw an inference the scope of the authority is
limited so that the ultimate right to determine disagreements over the
expert’s requests is retained by the tribunal’ (emphasis added).71 It is
submitted that allowing the tribunal-appointed expert to draw adverse
68
IBA Rules on the Taking of Evidence in International Arbitration (2010), art. 9(5).
69
See e.g. G. B. Born, International Commercial Arbitration, 2nd edn (Kluwer, 2014), pp.
2388–2394.
70
T. G. Nelson, P. F. Henin and K. Nairn, ‘Evidentiary Inferences: Do Choice of Law and
Seat Make a Difference?’ in N. Kaplan and M. Moser (eds), Jurisdiction, Admissibility and
Choice of Law in International Arbitration (Kluwer, 2018), p. 153.
71
O’Malley (n. 60), para. 6.35.

714 a r t i c l e 26 : e x p er t a p p o i nt e d b y a r b i t r a l t r i b u n a l
inferences veers too close to delegation of the adjudicatory function of

the tribunal. Instead, where a party has failed to provide a tribunal-
appointed expert with requested documents or information, the expert
should request the tribunal’s instructions as to what assumptions, if any,
he or she may make in light of the absence of this information.
3.2 ‘… To Give the Expert …’

What may be more controversial is the question of whether the parties
have a reciprocal right to access the information considered by the
tribunal-appointed expert,72 especially in the light of the parties’ right
to present their case.73
However, arguably, in order that both parties (and, if applicable, the
party-appointed experts) can properly consider and address the evidence
of the tribunal-appointed expert, each party should have access to all of
the information which has been provided to the tribunal-appointed
expert. In contrast, there is generally no requirement for parties to
provide each other with every document which they have provided to
their party-appointed experts, unless those documents are referred to or
relied upon by the expert or the party, and/or are the subject of an
uncontested or ordered document production request.
3.3 ‘… Any Relevant Information or to Produce, or to Provide

Access to, Any Relevant Documents, Goods or Other Property
for His Inspection …’
Does the requirement to provide the tribunal-appointed expert with any
‘relevant information’ extend to allowing the expert to question a party’s
witnesses of fact? One ICC panel appears to have allowed such examina-
tion by a tribunal-appointed expert despite the objections of one of the
parties.74 There may be some value in allowing the tribunal-appointed
expert to question witnesses, but, in order to adhere to due process, such
examination by the tribunal-appointed expert should be in accordance
with a protocol which is agreed by the tribunal and the parties (and which
may be included in the Terms of Reference referred to above).
72
J. Waincymer (ed.), Procedure and Evidence in International Arbitration (Kluwer, 2012),
p. 949.
73
See, inter alia, European Convention on Human Rights, art. 6(1).
74
Waincymer (n. 72), p. 948; and Final Award in ICC Case No. 6497 (1999) XXIV YB Com.
Arb. 77–78.

4 . p ar agr ap h 2 715
It is noteworthy that article 26(1)(b) refers only to the tribunal requir-

ing the production of documents or information required by the tribu-
nal-appointed expert. This would seem to suggest that any requests for
documents or information from the tribunal-appointed expert should
not be made directly to the parties, but rather through the tribunal. In any
event, in order that due process is observed, any communications
between the tribunal-appointed expert and any party should be sent to
all parties and the tribunal, unless agreed otherwise.
4. Paragraph 2
4.1 ‘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 …’
In accordance with article 26(2), the report of the tribunal-appointed
expert can be either written or oral. However, in practice, the tribunal-
appointed expert will often prepare a written report in addition to giving
oral evidence at the hearing.
Like the report of a party-appointed expert, the tribunal-appointed
expert’s report should set out not only the tribunal-appointed expert’s
conclusions in respect of the relevant ‘specific issues’, but also the meth-
odology used, documents considered and assumptions made. This is
important as it allows the parties to interrogate the tribunal-appointed
expert’s report and allows the tribunal to assess the materiality and
weight to be given to his or her evidence.
4.2 ‘… 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 …’
The parties’ right to examine the tribunal-appointed expert is explicitly
referred to in article 26(2). This right is regarded as crucial and has even
been described as a ‘basic’ right by the High Court of Hong Kong in the
case of Paklito v. Klockner.75 The drafters of the IBA Rules on the Taking
of Evidence in International Arbitration adopted the same position.76
75
Paklito Investment Ltd v. Klockner East Asia Ltd [1993] 2 HKLR 39.
76
1999 IBA Working Party and 2010 IBA Rules of Evidence Review Subcommittee:
‘Commentary on the Revised Text of the 2010 IBA Rules on the Taking of Evidence in
International Arbitration’, p. 21.

716 a r t i c l e 26 : e x p er t a p p o i n t e d by a r b i t r a l t r i b u n a l
Article 26(2) explicitly reserves the right of the parties to appoint their
own experts where a tribunal-appointed expert has also been appointed.
How then are the tribunal-appointed expert and party-appointed experts
to interface? How do the roles of the experts differ such that having three
experts, instead of one, is necessary or proportionate?
The role of the tribunal-appointed expert is in many ways similar to
that of a party-appointed expert, namely to assist the tribunal with a
technical issue outside of its own expertise which is germane to the issues
in dispute (i.e. a ‘specific issue’ as discussed above). The Chartered
Institute of Arbitrators takes the view that a ‘situation in which the use
of a tribunal-appointed expert is obviously called for can arise where the
dispute raises technical issues outside the expertise of the tribunal and
where neither party has it in mind to call its own expert evidence’.77
Where the parties do exercise their right to call their own expert evidence,
the International Chamber of Commerce nevertheless identifies an addi-
tional function for the tribunal-appointed expert, namely ‘to advise the
arbitral tribunal regarding and to illustrate and explain issues that are
difficult to understand (although not necessarily disputed) and to prepare
the tribunal to hear evidence from the parties, including any party-
appointed experts’.78 This would seem to suggest that the primary expert
evidence should be given by the party-appointed experts, with the tribu-
nal-appointed expert taking the role of ‘advisor’ to the tribunal and
opining on issues which the party-appointed experts are unable to
agree.79
However, the use of the phrase ‘the parties have the opportunity to …
present expert witnesses in order to testify on the points at issue’ (empha-
sis added) in article 26(2) could be argued to envisage the opposite of this.
This phrase could be said to suggest that the primary expert evidence
should be given by the tribunal-appointed expert and that the role of the
party-appointed expert should be limited to giving evidence on points of
disagreement with the tribunal-appointed expert, namely, ‘points at
issue’.
77
Chartered Institute of Arbitrator’s ‘Practice Guideline 10: Guidelines on the Use of
Tribunal Appointed Experts, Legal Advisers and Assessors’, para. 3.2.3.
78
‘Issues for Arbitrators to Consider Regarding Experts’ (2010) 21 ICC Bull. (n. 33),
Question 3(a).
79
SD Myers v. Government of Canada, UNCITRAL, Procedural Order No. 17 (26 February
2001), para. 13; see also Richard Harza and Others v. Islamic Republic of Iran, [1983] Case
No. 97, Chamber Two, Interlocutory Award No. 14-97-2, 4–5.

The authors do, however, consider that the evidence presented by

party-appointed experts should remain the focus of a hearing, but under-
stand that article 26(2) allows the tribunal-appointed expert to be ques-
tioned at such a hearing and tested using the party-appointed expert’s
evidence.
In the further opinion of the authors, the interface between the tribu-
nal-appointed and party-appointed experts should depend on the cir-
cumstances of the case, including the technical issues therein. However, it
is important that this interface be clearly defined at the outset to avoid the
wasting of time and costs: (1) during the proceedings (due to duplication
of work); and (2) after the final award (due to any application to set aside
the award). This interface may be another issue which is covered in the
above-referenced Terms of Reference. The interface between the tribunal
and the tribunal-appointed expert should also be addressed in the Terms
of Reference.
A related issue is the growing trend in the use of expert ‘hot tubbing’ in
recent years. Expert ‘hot tubbing’, also known as witness conferencing, is
a process by which all experts in the same discipline are questioned
together by the tribunal or by counsel on a particular issue. In the 2012
White & Case/Queen Mary International Arbitration Survey, it was
recorded that 60 per cent of those surveyed had experienced expert ‘hot
tubbing’, although the number of cases where it was used was relatively
small, with 49 per cent of those surveyed having experienced expert ‘hot
tubbing’ in only one to five cases.80 While generally seen in cases where
there are (just) the party-appointed experts involved, one can see some
advantages in requiring the party-appointed experts and the tribunal-
appointed experts to engage in somewhat of a dialogue in the interests of
narrowing the issues in dispute.
80
White & Case/Queen Mary International Arbitration Survey: Current and Preferred
Practices in the Arbitral Process (2012), p. 27.

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.

Article 27 concerns the assistance of courts in evidentiary matters.
Obtaining the support of national courts in the taking of evidence can
be important, although this cooperation must certainly not curtail the
efficiency of arbitration.1
The jurisdiction of the arbitral tribunal originates in the arbitral
agreement between the parties. As a result, arbitral tribunals often lack
the power to compel discovery through calling or compelling attendance
of witnesses, requiring the production of documents, or ordering inspec-
tion of goods or premises. Some national laws expressly allow the arbitral
tribunal to seek court assistance in the taking of evidence.2 Consistently
with this approach, article 27 of the Model Law allows courts to render
assistance in these cases. In this regard, similar to a number of Model Law
provisions, article 27 deals with the interaction between arbitration and
court procedures, and the intervention of the courts in the arbitral
process.3
At the initial drafting stage, it was generally agreed that court assis-
tance in enforcing procedural decisions of the arbitral tribunal would be
beneficial to the proper and efficient functioning of international
1
CLOUT Case 68, Delphi Petroleum Inc. v. Derin Shipping and Training Ltd, unrep.
2
UNCITRAL, Note by the Secretariat: Possible Further Features and Draft Articles of a
Model Law, UN Doc. A/CN.9/WG.II/WP.41 (12 January 1983), para. 27.
3
718

commercial arbitration.4 However, there were divergent views as to

whether the Model Law should deal with this issue at all.5 While it was
pointed out that it was possible to include such a provision in a general
form, or in a detailed manner,6 there were also arguments against such a
provision arising out of concern for the difficulties of integrating the
arbitral process with existing court procedures, cross-border court assis-
tance and the possibilities of abuse. The fact that the procedures of court
assistance formed an integral part of the procedural law of the adopting
jurisdictions had to be taken seriously into account.7 Moreover, it was
thought that the Model Law might not be able to provide such assistance
when the arbitral tribunal sought court assistance in a country other than
the one in which the arbitration took place.8 In such circumstances, court
assistance by foreign courts would normally be governed by international
instruments, such as bilateral and multilateral treaties on recognition of
foreign judgments, and not merely be based upon the application of the
Model Law.9 It was suggested that court assistance should not be made
automatic as it might create the possibility of abuse and, as a result,
require a certain degree of supervision.10 For these reasons, it was
suggested that the issue of court assistance in enforcing procedural
decisions should not be dealt with in the Model Law.
The Working Group suggested several ways to overcome the aforemen-
tioned difficulties.11 To minimise the impact on existing national rules and
procedure, it was proposed that the Model Law should only contain basic
provisions in relation to the request for court assistance, the method of
taking evidence and the conditions for refusing the requested assistance.12
It was also suggested that relevant domestic rules of procedure would apply
when the arbitral tribunal sought court assistance in taking evidence.13 A
simpler formulation was favoured in subsequent drafts.14
4
Ibid.
5
Ibid.
6
Ibid.
7
Ibid., para. 61(a).
8
Ibid., para. 61(b).
9
Ibid.
10
Ibid., para. 61(c).
11
12
Ibid.
13
Ibid.
14
UNCITRAL, Working Papers Submitted to the Working Group at Its Seventh Session,
Composite Draft Text of a Model Law on International Commercial Arbitration, UN
Doc. A/CN.9/WG.II/WP.48 (6–17 February 1984), art. 27, fourth draft.

720 a r t i c l e 27 : c o u r t as s i s t a n c e i n t a k i n g e v i d e n c e
As regards the second difficulty, where court assistance is required in a

country other than the State where the arbitration is seated, it was
suggested that the Model Law might require that a court treat such
requests in the same way as a similar request from foreign courts.15 As
such, a State would be obliged to execute such requests if relevant cross-
border enforcement instruments were binding.16 In this regard, no
detailed procedural rules were necessary because the existing rules for
assistance to foreign courts could be applied.17
One concern that was raised was the possibility of courts becoming too
interventionist in taking evidence going against the private nature of
arbitration, and creating the possibility of undesirable court intrusion in
arbitral proceedings.18 However, it was generally agreed that the provision
of court assistance would facilitate international commercial arbitration
and therefore it was important that it be regulated in the Model Law.19
A more ambitious formulation suggested that the Model Law provide
for an obligation that the enacting State should, regardless of the degree
of assistance provided to foreign courts, execute requests from foreign
arbitral tribunals.20 Enacting States would not accept this proposal read-
ily because they might not be prepared to provide assistance to courts of
all other States.21 It was pointed out that States might be less reluctant if
the obligation were subject to reciprocity, but it was noted that this would
likely lead to substantial difficulties in practice.22 The Working Group
recognised that international court assistance ‘could not be established
unilaterally through a model law since the principle of reciprocity and
bilaterally or multilaterally accepted procedural rules were essential con-
ditions for the functioning of such a system’.23
Rather than a detailed provision outlining all situations under which a
request for assistance might be refused,24 the final draft included
15
16
Ibid.
17
Ibid.
18
19
Ibid.
20
21
Ibid.
22
Ibid.
23
Work of Its Sixth Session, UN Doc. A/CN.9/245 (29 August–9 September 1983), para. 43.
24

permissive language encouraging support for such requests ‘according to

[a country’s] rules on taking evidence’.
To discourage abusive or dilatory tactics on the part of parties to
arbitration, the Secretariat proposed that only the arbitral tribunal be
allowed to request court assistance.25 It was also proposed that the court
should be allowed to refuse to give such assistance.26 The final wording
was considered to be a compromise allowing both the arbitral tribunal
and parties to make a request, where parties must obtain prior approval
from the arbitral tribunal before making such a request to the courts.27
Article 27 does not attempt to interfere with, or override, domestic
civil procedure rules in taking or obtaining evidence.28 Domestic proce-
dural rules hence also play an important role in determining whether
judicial assistance will be granted for the purposes of taking evidence in
arbitral proceedings.29
It should be noted that before the Commission considered article 27,
the Hague Conference on Private International Law examined whether
the scope of the Convention on the Taking of Evidence Abroad in Civil or
Commercial Matters should be extended to arbitral proceedings.30 A
special commission confirmed the feasibility of such an extension, but
doubted its utility.31
Article 27 was not amended in 2006, and thus case law and other
interpretative material on article 27 remains relevant.
In terms of its territorial scope, the original drafters in 1985 used the
language ‘in arbitral proceedings held in this state or under this Law’,
suggesting an extended territorial scope of application, but later a balance
was struck such that article 27 remains local in its application. In view of
the strengthened international dimension of enforcement of interim
measures under the 2006 amendments to the Model Law, it remains to
be seen whether or not the approach to article 27 in 1985 needs to be
revisited – particularly in light of the potential overlap between article 27
and interim measures concerning evidence preservation.32
25
26
Ibid., para. 33.
27
Work of Its Seventh Session, UN Doc. A/CN.9/246 (6 March 1984), para. 98.
28
Ibid., para. 94.
29
30
UN Doc. A/CN.9/SR.325, para. 57.
31
Ibid.
32
See e.g. art. 17(2)(d).

722 a r t i c le 27 : co ur t as s i s t a n c e in t a k i n g ev i d en c e
Article 27 encourages parties to provide evidence as required. While

originally it was suggested that article 27 explicitly stipulate that if any
party refuses to comply with an evidentiary order, such non-cooperation
be interpreted in favour of the other party,33 such an explicit inference
was not included in the final text.
Moreover, in the face of non-cooperation, although the arbitral tribu-
nal is empowered to continue the proceedings as stated by the provision,
it also contains an implication that the tribunal is equally empowered not
to continue, or discontinue the proceedings, until evidence is provided,
or the party appears.34 This aspect of article 27 may be drawn from article
25(c), which states that:
… if, without showing sufficient cause … 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.
2. Request for Assistance from Court – Approval

of the Tribunal
In order for a request for judicial assistance in taking evidence to be valid,
the application must be made by the arbitral tribunal per se or by a party
with the approval of the arbitral tribunal, as article 27 explicitly provides.
Where a party does not have such approval, it may be an abuse of the
court’s power to provide such judicial assistance.
Such an abuse is illustrated by a 2007 case in which the High Court of
Delhi, India, prevented a party from seeking judicial assistance without
the approval of the arbitral tribunal. The petitioner in the case filed an
application for summoning two witnesses, one of which had already been
dismissed by the arbitrator as the application was found to be without
merit. The petitioner then filed under section 27 of the Arbitration &
Conciliation Act 1996 for the same witness to be summoned. The court
dismissed the application, holding that ‘the petitioner had not obtained
the approval of the arbitral tribunal before moving the court seeking its
assistance for taking evidence’.35
33
34
Ibid., para. 3.
35
SH Satinder Narayan Singh v. Indian Labour Cooperative Society Ltd and Others, 2008 (1)
ARBLR 355 Delhi.

3 . ex er cis e of t he c ourt ’s di s c r e t i o n 723
One issue this case raises is whether or not the power of the arbitral
tribunal to approve such requests may be sufficiently scrutinised by the
courts. Given the critical nature evidence plays in the resolution of
disputes, this is a significant matter. However, it must be borne in mind
that arbitral tribunals are bound by article 18 to ensure the parties are
given equal treatment in the presentation of their cases. Although under
article 27 parties cannot bypass the arbitral tribunal and seek evidential
assistance from the courts directly, parties may still apply to set aside an
arbitral award within three months by virtue of article 34 if there is any
procedural unfairness or if there are other reasonable grounds to object.
Similarly, in a Singaporean case,36 a party to arbitral proceedings applied
for a subpoena before the arbitral tribunal, but was refused. Later the party
made the same application to the Singapore High Court. The High Court
refused the application and confirmed that the arbitral tribunal was well
within its discretion to determine the relevance and materiality of the
witness being subpoenaed. The High Court treated the application as an
abuse of process, as it appeared to be an attempt to circumvent the arbitral
tribunal. It was recognised by the High Court that the arbitral tribunal
possesses the power to determine procedural and substantive issues, accord-
ing to article 19, including the admissibility, relevance, materiality and
weight of any evidence, and that the courts would not intervene in a matter
merely because they might have resolved the issue in question differently.37
3. Exercise of the Court’s Discretion and Scope of Assistance

After a party obtains approval from an arbitral tribunal to seek judicial
assistance in respect of an evidentiary matter, the party then pursues the
appropriate court procedure (whether by application or otherwise) to
seek the court’s assistance.
Article 27 states that parties may seek judicial assistance from the
competent court with the approval of the arbitral tribunal. As article 27
does not impose any requirement on the courts to grant such assistance,
the court is not obliged to assist. Rather, the granting of assistance is an
independent exercise by which the court examines the reasonableness of
the request in accordance with the laws of the relevant jurisdiction and
the practices of the court.38 Generally speaking, a court should grant
36
ALC v. ALF [2010] SGHC 231.
37
Soh Beng Tee & Co. Pte Ltd v. Fairmount Development Pte Ltd [2007] 3 SGCA 28.
38
Jardine Lloyd Thompson Canada Inc. v. SJO Catlin [2006] ABCA 18 (CanLII).

724 article 27: court assi stance in taking evi dence
evidentiary orders by considering various factors, including policy rea-

sons for supporting the arbitration process, and the preservation of party
autonomy to ensure procedural fairness.39
3.1 Specificity
As illustrated by English case law, the specificity of documents requested
by a party will be one of the factors considered by a court in determining
whether to provide assistance on evidentiary matters.40 In an English
case, the seller of a business was engaged in arbitral proceedings over false
and fraudulent misrepresentations overstating the value of his business,
and sought to obtain a witness statement from a third-party auditor. The
High Court dismissed the application because it was too widely framed –
the party needed to ask for specified documents instead of a wide
category of documents,41 reflecting the general principles of discovery
in the United Kingdom.
3.2 Timeliness
Apart from specificity, the Federal Court of Canada, among others, also
considered the timeliness and relevance of evidence sought by a party
pertinent in granting evidential assistance. The plaintiff was dissatisfied
with the amount of the demurrage costs set out by the arbitral tribunal and
applied for an interim order to secure the evidence of a witness. The court
held that the amount of demurrage had been set out by the arbitral tribunal
already. It was thus too late for the plaintiff to seek judicial assistance in
respect of evidence at such a late stage. Furthermore, the information that
was to be provided by the witness was not demonstrably relevant to the
other issues raised by the plaintiff in the application. The court dismissed
the application because the plaintiff had not sought evidence from wit-
nesses that ‘may have information on an issue in the action’.42
4. Pre- and At-Trial Evidence

According to the wording of article 27, court assistance must be con-
cerned with the ‘taking of evidence’. One critical issue is whether filing
39
ALC v. ALF (n. 36).
40
BNP Paribas and Others v. Deloitte & Touche LLP [2003] EWHC 2874.
41
Ibid.
42

4 . p re - an d at - tr ial e vide n ce 725
the request to the court for an evidentiary order against a person for
documents and other testimony during the pre-trial phase falls within the
scope of article 27. In other words, whether discovery or disclosure of
materials, which may not be used as evidence at trial, constitute evidence
for the purposes of article 27. This distinction is often also referred to as
‘pre-trial’ and ‘at-trial’ evidence.
In 2003, the Commercial Court in England confirmed, under similar
statutory provisions, that article 27 dealt with ‘the taking of evidence’, but
stated that ‘there was nothing in the Model Law which suggests that the
court should assist with the process of disclosure’.43 The court distin-
guished the ‘taking of evidence’ from the ‘process of disclosure’ as two
distinct concepts, whereby seeking evidentiary orders during the pre-trial
phase was treated as a form of disclosure, and hence did not fall within
the ambit of article 27.
Conversely, the Alberta Court of Appeal in Canada interpreted the
meaning of ‘evidence’ in a different way. ‘Evidence’ was interpreted as
relevant material gathered by way of discovery, both at trial and pre-trial
discovery applications. It pointed out that in light of its objects and
purposes, article 27 was meant to assist the tribunal in its search for the
truth, and no distinction should be made between ‘pre-trial’ and ‘at the
trial’.44 If the court is entitled to have pre-trial discovery per se, there is no
reason why the arbitral tribunal would have any less of a desire or need
for the truth to reach a fair and proper result than a court of law. More
importantly, if the draftsmen of article 27 wished to distinguish between
the two, the provision would have included the wording ‘at the hearing’
with a view to confining its applicability. The final draft did not contain
such wording or limitations. As the Alberta Court noted, article 27
‘speaks of assistance in taking evidence’ and it would be improper ‘to
add, by implication or otherwise, the words “at the hearing”’ and ‘[i]f the
drafters of Article 27 had intended that assistance would only be given for
taking evidence at the hearing, they could have expressly said so’.45
In Hong Kong, the High Court did not seek to define evidence as pre-
trial or at-trial, and preferred a different approach. In the relevant case,
the plaintiff appealed against an order setting aside its subpoena for the
production of certain documents before the arbitral tribunal. The court
dismissed the application on the ground that it contravened the local
43
BNP Paribas (n. 40), para. 13.
44
45
Ibid.

726 ar tic l e 27: cour t assis ta n ce in taking evi d enc e
system of civil procedure, and the application was made far too early.46 In
other words, the court did not dismiss the application directly because
pre-trial discovery was not allowed, but on the basis of its local con-
straints and its determination that the pre-trial period should not be
extended so far ahead of the hearing. It follows that a court may choose to
avoid such issues by granting exceptions, and by treating ‘pre-trial’ and
‘at-trial’ evidence in a uniform manner. The validity of applications may
thus turn to factors of substance rather than the nature of ‘pre-trial’ or ‘at-
trial’ evidence.
5. Witnesses
Article 27 may also be employed in order to compel the attendance of
witnesses.47 In those cases, the procedural requirements of the law of the
seat should be taken into account. For example, if the law of the seat does
not allow arbitral tribunals to administer oaths to witnesses and experts,
tribunals should refer the discharge of those acts to the competent
national court.48
6. Abuses of Process
Further to the aforementioned considerations, a court may also refuse an
application for evidentiary assistance in order to prevent possible dilatory
tactics.49 For instance, in the Delphi case, the court determined that the
plaintiff may have been abusing the evidence-taking procedure in order
to delay payment of the demurrage, and the courts should generally try to
avoid such gamesmanship.
It has been suggested that the courts need not examine an application
for evidential assistance that has been approved by an arbitral tribunal,
and merely act to assist the tribunal in carrying out an order that the
tribunal itself could not enforce.50 This may arguably be the case if ‘the
Court had before it a carefully reasoned decision of a tribunal composed
of experienced and knowledgeable counsel who have determined that
46
Vibroflotation AG v. Express Builders Co. Ltd [1994] HKCFI 205.
47
See generally I. Bantekas, An Introduction to International Arbitration (Cambridge
University Press, 2015), pp. 148–149.
48
See e.g. s. 26 of the Swedish Arbitration Act, which does not allow tribunals to administer
oaths and truth affirmations to witnesses and experts.
49
50
Ibid.

8. assis tance fro m non-s tate c ourts? 727
such discovery evidence is necessary for purposes of the arbitration

proceedings and in accordance with discovery practice’ of the seat of
the arbitration.51
Ultimately, courts have discretion as to whether or not to accept an
application for judicial assistance. Such decisions should be based upon
established principles and reasonable grounds, such as specificity, rele-
vance and timeliness, as well as policy reasons relating to the support of
the arbitral process by courts informed by the principle that ‘limiting the
scope of examinations for discovery in arbitration proceedings cannot be
justified on the basis that arbitration is not a parallel to the court
system’.52
7. Types of Assistance
Article 27 of the Model Law does not provide a comprehensive list
detailing the types of assistance that may be obtained from a court. One
addition that may be made in adopting article 27 is the inclusion of such a
list.
8. Assistance from Non-State Courts?

Applications for judicial assistance become more complex where evi-
dence from outside the seat of the arbitral proceedings is sought. During
the drafting of article 27, such an international dimension was not
contemplated53 and was considered to be in contradiction with other
principles laid down in article 1(2), namely that: ‘the provision of this law,
except articles 8, 9, 17H, 17I, 17J, 35 and 36, apply only if the place of
arbitration is in the territory of this State’. It is interesting to note, for
example, that interim measures of protection granted under articles 9,
17H, 17I and 17J may have an international dimension under article 1(2),
whereas assistance in respect of taking evidence may not, particularly as
interim measures include the definition in article 17: ‘[orders to] [t]ake
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
… [or] preserve evidence that may be relevant and material to the
resolution of the dispute’.54 Given article 27’s minimalist approach,
51
52
Ibid.
53
UN Doc. A/CN.9/216 (n. 2), para. 61(b).
54
UNCITRAL Model Law on International Commercial Arbitration 2006, art. 17(2)(b), (d).

728 a r t i c le 27 : co ur t as s i s t a n c e in t a k i n g ev i d en c e
setting out only a broad principle that the arbitral tribunal (or the party
with the approval of the tribunal) can request court assistance and
domestic rules should apply, there is much room for adopting countries
to make alterations at the implementation stage. For example, the
Hungarian Arbitration Act allows only the arbitral tribunal to make
such a request and it also demonstrates how interim measures of protec-
tion granted under articles 9 and 27 can be incorporated into a single
provision.55
In the course of drafting article 27, the Commission held the view that
it was ‘excessive to oblige a state to grant the benefit of assistance in the
event of arbitral proceedings taking place outside its territory’.56 This
view was based on the notion that the Model Law informs domestic
legislation and therefore cross-border assistance should be regulated by
other international laws.57
In relation to the calling of witnesses, a party may obtain a writ of
subpoena ad testificandum or a writ of subpoena duces tecum to compel a
non-party to give evidence or produce documents to the arbitral tribunal,
but the court’s power is limited to persons within the territory of the
Islands of Bermuda. However, by virtue of section 35(5)(a), the courts of
Bermuda may issue a letter of request to a foreign court for the examina-
tion of a witness out of the jurisdiction.
Canada’s interpretation of article 27 has evolved from a strict reading
suggesting that article 27 did not grant power to the arbitral tribunal to
seek court assistance from another jurisdiction (i.e. outside of the State or
jurisdiction the arbitration was being held)58 to a more liberal approach59
suggesting that the matter of cross-border assistance should be decided
by the courts vested with such powers of compulsion and, if the applica-
tion is sound, such assistance should be provided.
In fact, the case law of Model Law jurisdictions exhibits a tendency to
construe article 27 more liberally, thus allowing requests from foreign
arbitral tribunals.60 It is nevertheless not certain how each particular
55
Act LXXI of 1994 on Arbitration, s. 37.
56
57
Commercial Arbitration, UN Doc. A/CN.9/264 (25 March 1985), art. 27, para. 4.
58
Re. Corporación Transnacional de Inversiones SA de CV and Others v. STET Intl SpA and
Others [1999] CanLII 14819 (ONSC).
59
R. v. Zingre [1981] 2 SCR 392; US District Court v. Royal American Shows [1982] 1 SCR
414; Republic of France v. De Havilland Aircraft of Canada Ltd and Byron-Exarcos (1991)
3 OR (3d) 705.
60
See UNCITRAL, ‘2012 Digest of Case Law’, p. 119.

8. assistance from non-state c ourts? 729
Model Law jurisdiction will approach this issue, considering that it

largely rests on the applicable rules of statutory interpretation.61
Looking at non-Model Law jurisdictions, it is relevant to note that the
Swiss Federal Private International Law Act (PILA) limits the scope of
requests for the taking of evidence to the court of the seat of the
arbitration.62
On the other hand, section 44(1) of the English Arbitration Act 1996
provides that the competent court has ‘for the purposes of and in relation
to arbitral proceedings’ the ‘same power’ of making evidentiary orders.
This provision should be read together with section 43 of the Arbitration
Act, which allows a ‘party to arbitral proceedings’ to ‘use the same court
procedures’ that ‘are available in relation to legal proceedings to secure
the attendance before the tribunal of a witness in order to give oral
testimony or to produce documents or other material evidence’.
It is interesting to note that both sections 43 and 44 may have extra-
territorial scope,63 although courts may refuse to exert this power where
inappropriate.64
It follows that unlike article 27 of the Model Law, section 44 of the
English Arbitration Act is in principle not territorially limited, but
English courts may refuse to exercise powers in support of arbitral
proceedings seated outside England and Wales, if this makes it ‘inap-
propriate to do so’. And vice versa, in English-seated arbitrations, section
44 allows urgent requests for the preservation of evidence even where the
evidence sought to be preserved is outside the seat of the arbitral pro-
ceedings ‘if for practical reasons the application can only sensibly be
made there, provided that the proceedings are not a disguised attempt to
outflank the arbitration agreement’.65
Documentary disclosure in the hands of third parties may also lead
to the involvement of foreign courts, and in particular may lead
61
Ibid.
62
See PILA, art. 184(2). H. Frey, X. Favre-Bulle and M. Aebi, ‘Arbitration Procedures and
Practice in Switzerland: Overview’ (2016), https://uk.practicallaw.thomsonreuters.com/5–
502-1047?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&
bhcp=1.
63
Arbitration Act, s. 2(3).
64
Ibid.
65
In re. Chevron Corp., No. M-19-111, 2010 US Dist. LEXIS 47034, at 15 (SDNY, 10 May
2010); U&M Mining Zambia Ltd v. Konkola Copper Mines Plc [2013] EWHC 260
(Comm.), para. 63. In that case, the English High Court held that it was not inappropriate
to seek interim relief in Zambia’s courts relating to matters at a Zambian mine in respect
of a London-seated arbitration.

730 ar tic l e 27: co ur t ass ista nce in t aking ev idenc e
foreign courts to receive evidentiary requests from foreign-seated

tribunals. Section 1782 USC amply demonstrates this. Section 1782
is a US federal statute that enables litigants in foreign proceedings to
seek discovery from third parties that are either based or do sub-
stantial business in the United States. It has lately become an impor-
tant tool that is increasingly used in arbitral proceedings seated
outside the United States. Typically, this involves ex parte applica-
tions to US federal district courts. An application made pursuant to
section 1782 must satisfy three requirements:
(1) the person from whom the discovery is sought resides or is found in
the district of the district court to which the application is made, (2) the
discovery is for use in a foreign proceeding before a foreign tribunal, and
(3) the application is made by a foreign or international tribunal or ‘any
interested person’.66
The jurisprudence on the applicability of section 1782 to foreign arbi-

tral proceedings is still evolving, but the Supreme Court’s decision in
Intel67 changed the federal courts’ prior rulings to the effect that section
1782 could not be used in aid of arbitration. This is an important
development, because where potential evidence is available in the
United States, section 1782 can be a powerful tool to obtain US-style
discovery that goes far beyond what is typically permitted under the
Model Law, international arbitration rules and soft law instruments,
such as the IBA Rules on the Taking of Evidence. For example, in In Re.
Ex Parte Application of Kleimar NV, the District Court for the Southern
District of New York held that the London Maritime Arbitration
Association arbitrations seated in London qualified as proceedings
before a ‘foreign tribunal’.68
In the face of an increasingly liberal approach of courts in some
jurisdictions to apply article 27 to foreign-seated arbitrations, the impor-
tance of provisions such as section 1782 in international arbitration, as
well as the international dimension in the enforcement of interim mea-
sures under the amendments to the Model Law in 2006 and the inclusion
of measures for the preservation of evidence and prevention of harm to
the arbitral process, it remains to be seen whether or not the approach
under article 1(2) may need to be revisited to include article 27. Among
66
Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 80 (2nd Cir. 2012).
67
Intel Corp. v. Advanced Micro Devices, Inc., 542 US 241 (2004).
68
In Re. Ex Parte Application of Kleimar NV, No. 16-MC-355, 2016 WL 6906712 (SDNY, 16
November 2016).

8. assistance from non-state courts? 731
others, it may be somewhat contradictory that parties may apply under

the new provisions of article 17 for interim measures to preserve evi-
dence, which would be enforced by the courts even outside the seat of the
arbitration, but may not if a similar application was made for assistance
in respect of taking evidence under article 27.

Article 28
Rules Applicable to Substance of Dispute

ilias bantekas
(1) The arbitral tribunal shall decide the dispute in accordance with such
rules of law as are chosen by the parties as applicable to the substance
of the dispute. Any designation of the law or legal system of a given
State shall be construed, unless otherwise expressed, as directly
referring to the substantive law of that State and not to its conflict
of laws rules.
(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 28 (with the limited exception of paragraph 4) enshrines the
primacy of party autonomy in the choice of the law applicable to the
merits,1 similarly to article 35(1) of the UNCITRAL Arbitration Rules.2
Party autonomy and a good degree of flexibility are the cornerstones of
the article.3
1
O. Lando, ‘The Law Applicable to the Merits of the Dispute’ (1986) 2 Arb. Intl 104, 107.
2
Report of the UN Secretary-General on the Revised Draft Set of Arbitration Rules, UN
Doc. A/CN.9/112/Add.1 (1975).
3
Hence, it is only the tribunal’s failure to observe the parties’ choice of law under para. 1 of
art. 28 that justifies set-aside proceedings and annulment of the award. See CLOUT Case
375, Bayerisches Oberstes Landesgericht, 4 Z Sch. 23/99 (15 December 1999); CLOUT
Case 569, Hanseatisches Oberlandesgericht Hamburg, 8 June 2001, 11 Sch. 1/01.
732

It should be pointed out from the outset that given the similarities
and notable differences between article 28 of the Model Law and its
equivalent (article 35) of the UNCITRAL Arbitration Rules, it is
instructive that relevant parts of the travaux of the latter be studied
in order to enlighten our understanding of article 28. In order to
avoid confusion, we have referred to the travaux of the Arbitration
Rules in discreet sections of this chapter, rather than this travaux
section.
From the outset, the key issue in the discussions on article 28 was
the struggle between a more traditionalist camp that accepted only
‘laws’ and ‘legal systems’ as acceptable choices of law and another more
progressive camp which recognised that it was not appropriate in
international commercial arbitration to limit the freedom of the par-
ties to choose the law of a given State.4 This latter group supported
explicit reference to the term ‘rules of law’, particularly since article 28
included paragraph 3, which permitted the parties to choose lex mer-
catoria and equitable determinations. While recognising that the term
‘rules of law’ was novel at the time, it was stated in support that it
‘would provide the necessary flexibility to allow parties in international
commercial transactions to subject their relationship to those rules of
law which they regarded as the most suitable ones for their specific
case’.5 The Federal Republic of Germany and the United States, in
particular, noted that ‘businessmen often want a decision not accord-
ing to the letter of the law, but a decision based on practical economic
factors. The term “rules of law” must be interpreted in a broad sense so
as to allow deviating from the provisions of law in accordance with the
declared or presumed will of the parties.’6 The Argentine representa-
tive was even more explicit that the parties’ chosen law need not
amount solely to one or more domestic laws, by pointing out that
such law may include: ‘in hierarchical order, the rules set forth in the
contract, the trade usages and the rules of an international convention
such as the [CISG]’.7
4
Report of UNCITRAL on the Work of Its Eighteenth Session, UN Doc. A/40/17 (1985),
para. 232.
5
Ibid. See also Report of the Working Group on the Work of Its Sixth Session, UN Doc. A/
CN.9/245 (1983), para. 94.
6
CN.9/263/Add.3 (31 July 1985), (1985) XVI UNCITRAL YB 73.
7
Ibid.

734 ar tic l e 28: subs tanc e of d isp ut e rules
The opposite camp, dominated chiefly by the Soviet Union, remarked

that the term rules of law was ‘novel’8 and ‘ambiguous’, and would cause
significant practical difficulties. Its adherents pointed out that it ‘was not
appropriate for a model law designed for universal application to intro-
duce a concept which was not known in, and unlikely to be accepted by,
many States’.9 The traditionalist camp initially won the early discussion
in the eighteenth session, despite the fact that the original text considered
by UNCITRAL was identical to its current version, albeit it was also
‘agreed to state in the report that states when enacting the model law were
free to give the term “law” a wider interpretation’.10 At the end of the
session, however, preference was once again given to the original wider
formulation that included the term ‘rules of law’.11
As regards the default position, there were two divergent views. One
posited that the tribunal ought to determine the applicable law by
reference to conflict of laws rules, while the other insisted that the
tribunal should possess the power to apply the most appropriate law.
The application of conflict of laws rules was held to offer certainty and
predictability to the parties. Conflict of laws rules were viewed as provid-
ing guidance to the tribunal. It was noted that, although a court, under
the Model Law and most national laws, ‘could not review the decision of
the arbitral tribunal on the conflict of laws rules and consequently on the
applicable substantive law, a desirable effect of the rule contained in
paragraph 2 was that the arbitral tribunal would be expected to give
reasons for its decision on the choice of the conflict of laws rule [cho-
sen]’.12 Opponents of the other view held that, in fact, without further
guidance conflict of laws rules were far less predictable than the standard
practice where tribunals possess authority to discover the most appro-
priate law.13 It was also pointed out that the freedom of the arbitral
8
In truth, in 1985, it was only accepted in a limited number of instruments, namely: ICSID
Convention, art. 42, French CCP, art. 1496 and Djibouti’s Arbitration Law, art. 12. See
Analytical Commentary on Draft Text, UN Doc. A/CN.9/264 (25 March 1985), (1985)
XVI UNCITRAL YB 132.
9
UN Doc. A/40/17 (n. 4), para. 233; see also UN Doc. A/CN.9/263 (31 July 1985), (1985)
XVI UNCITRAL YB 74.
10
UN Doc. A/40/17 (n. 4), para. 234.
11
Ibid., para. 239. Some representatives called for an even wider interpretation or an even
broader formula to include, for example, general legal principles or case law developed in
arbitration awards, but that this, in the view of the Working Group, was too far-reaching to
be acceptable to many States, at least for the time being. See UN Doc. A/CN.9/245 (n. 5),
para. 94.
12
UN Doc. A/40/17 (n. 4), para. 236.
13
UN Doc. A/CN.9/263 (n. 9).

tribunal under paragraph 2 should not be narrower than the one

accorded to the parties under paragraph 1.14 Norway proposed two
variants, the second of which was most strongly highlighted. It held that:
Failing any designation by the parties, the arbitral tribunal shall apply the
law of the jurisdiction with which the dispute is most [closely related]
[properly connected]. If the dispute is not most [closely related to]
[properly connected with] any particular jurisdiction, the tribunal shall
apply the law determined by the rules of conflict of laws in the jurisdiction
where the arbitration takes place …15
Italy dismissed the application of conflict of laws rules altogether.16 Some

delegations were far more vocal. The Egyptian delegation exclaimed that
the current version of paragraph 2 ‘is a relic of a misguided sense of
distrust of the institution of arbitration, a distrust which is outdated and
which practical experience has already discredited’.17
As a result of these discussions during the eighteenth session, it was
even debated whether, in fact, there was no need for a provision on
applicable substantive law. This was based on the fact that the Model
Law did not provide for court review of an award on the ground of wrong
application of article 28, hence practically serving as a guideline for the
arbitral tribunal. However, there was wide support for ultimately retain-
ing article 28 because its ‘absence would give rise to uncertainty’.18
Paragraph 4 was originally resisted and dismissed.19 Paragraph 4
(‘terms of the contract’ and ‘trade usages’) was adopted by reference to
(and modelled on) then article 33(3) of the UNCITRAL Arbitration
Rules.20 This was due to the insistence of the United States, which
emphasised the importance of this provision in the Arbitration Rules,
further stressing that: ‘in recommending these Rules, the member States
of the United Nations approved the important policy of recognizing the
applicability of contract terms and trade usages when deciding particular
disputes’.21 Yugoslavia also expressed itself in favour of paragraph 4.22
14
UN Doc. A/40/17 (n. 4), para. 237.
15
UN Doc. A/CN.9/263 (n. 9).
16
Ibid., 74; equally, the view of the ICC, noting, moreover, that the use of conflict rules by
the tribunal is inconsistent with arbitral practice. See UN Doc. A/CN.9/263/Add.1 (1985),
(1985) XVI UNCITRAL YB 91.
17
18
UN Doc. A/40/17 (n. 4), para. 238.
19
UN Doc. A/CN.9/245 (n. 5), paras 98–99.
20
UN Doc. A/40/17 (n. 4), para. 241.
21
UN Doc. A/CN.9/263 (n. 9).
22
UN Doc. A/CN.9/263/Add.1 (n. 16).

736 a r t i c l e 28 : s u b s t a n c e of d i s p u t e r u l e s
The 1985 UNCITRAL commentary to article 28(4) makes a rather con-

fusing statement. It states that paragraph 4 ‘does not expressly call upon
the arbitral tribunal to decide in accordance with the terms of the
contract and to take into account the trade usages applicable to
the transaction’, without this entailing disregard for the relevance of
the contract or trade usages. It goes on to say that this position is:
… clear from the various reasons advanced during the discussion of the
Working Group against retaining such a provision. As regards the refer-
ence to the terms of the contract, it was stated, for example, that such
reference did not belong in an article dealing with the law applicable to the
substance of the dispute and was not needed in a law on arbitration,
though appropriate in arbitration rules, or that such reference could be
misleading where the terms of the contract were in conflict with manda-
tory provisions of law or did not express the true intent of the parties. As
regards the reference to trade usages, the concerns related primarily to the
fact that their legal effect and qualification were not uniform in all legal
systems.23
The explanation offered by the commentary is not convincing in the

contemporary commercial world. The commentary conflates the role of
paragraph 4, which offers two distinct tools of interpretation, as distinct
from the outcome of paragraph 4, which may ultimately override sub-
stantive rules of law chosen by the parties. Paragraph 4 is merely an
interpretative aid, but the commentary is probably correct that its inclu-
sion in a model law, rather than arbitration rules, is confusing for end
users.
Finally, during the eighteenth session, UNCITRAL recalled a sugges-
tion made in the context of then article 2(c) that the freedom of the
parties to authorise a third person to determine a certain issue did not
extend to the determination of the rules of law applicable to the substance
of the dispute (see above, paragraph 40). It was agreed to make clear that
article 2(c) did not apply to article 28.
2. Paragraph 1
Paragraph 1 refers to the law governing the substance of the dispute, as
opposed to the procedural law of the arbitral process. The latter may also
freely be designated by the parties (e.g. by reference to institutional rules)
and is supplemented – or superseded in exceptional circumstances
23
UN Doc. A/CN.9/264 (n. 8).

through mandatory rules – by the lex arbitri.24 Paragraph 1 refers to three

types of substantive laws, namely ‘laws’, ‘legal systems’ and ‘rules of law’,
although the broad nature of the latter necessarily subsumes the first two.
These ‘rules of law’ are essentially the governing law of the parties’
agreement. The significance of the governing law is manifold. The agree-
ment’s governing law allows the arbitrator to determine the parties’
capacity, the existence of a breach, the possibility of renunciation, revo-
cation, the recognition of particular trade usages and many others. The
governing law of the contract may envisage more than one domestic law,
particularly where it requires specific performance in several nations or
where the parties consider that a combination of laws is more favourable
to their undertaking, assuming that the laws in question permit such
combinations. Hence, the concept of the governing law of the contract
may in fact include a variety of different laws from several nations or
principles of a transnational character.
Although paragraph 1 is addressed to the tribunal, at the same time it
sets out the fundamental principle that the parties are free to choose any
law or ‘rules’ to govern the substance of their dispute. This is an impor-
tant observation because the parties will most likely have agreed on their
governing law prior to their dispute in the framework of their main
agreement. If domestic laws prevented parties from designating the
substantive law or ‘rules’ of their choice, the applicable law in transna-
tional contracts would be determined solely by the pertinent rules of
private international law, which in turn would render arbitration redun-
dant. Unlike international arbitration, in domestic arbitration the posi-
tion is markedly different. There, many domestic arbitral statutes impose
their domestic law upon the parties’ substantive relationship with a view
to preventing the parties from bypassing mandatory rules under domes-
tic law through the use of arbitral proceedings.25 In any event, domestic
arbitration laws usually have no objection to the parties applying inter-
national trade usages.26
24
Mandatory rules of the lex arbitri thus constitute a limitation to the party autonomy rule
in art. 28 of the Model Law.
25
Most legal systems preclude the designation of a foreign governing law in a contract
between two or more of their nationals when the subject matter of the contract is of a
domestic character. Until the adoption of art. 38(1)(a) of the 2012 Saudi AA, which allows
parties to employ any governing law, the governing law applicable to disputes between
Saudi parties was always Islamic law, in accordance with Diwan Almazalim (Saudi
supervisory authority), Decision No. 143/T/4 (1992); see Spanish AA, art. 34(2) (by
implication); Slovak AA, art. 31(2); Swedish AA, s. 48(1) (by implication).
26
See e.g. Saudi AA, art. 38.

2.1 ‘Law’ and ‘Legal System’

Paragraph 1 recognises (at least) three types of substantive/governing
laws available to the parties, namely: (1) ‘rules of law’; (2) ‘law’; and
(3) ‘legal system’. As will be demonstrated, all three of these are
distinct, although the broader notion of ‘rules of law’ subsumes the
other two. ‘Law’ refers to one or more explicit pieces of legislation,
such as the Ukrainian Civil Code or the English Arbitration Act, but it
may also encompass public international law.27 The concept of a ‘legal
system’ is, of course, much broader and encompasses the entirety of
the laws of one or more nations, save for conflict of laws rules, which
are expressly excluded in paragraph 1. The broader notion of ‘rules of
law’ will be analysed in more detail below in this section, as well in our
analysis of the term ‘trade usages’ in paragraph 4 of article 28 of the
Model Law.
Paragraph 1 is silent as to whether in applying a ‘law’ or ‘legal system’
the tribunal should construe these as they evolve in context, namely
through the evolving case law and writings of jurists or in the absence of
such aids and tools. Unless the parties have explicitly constrained the
authority of the arbitrator to consider such tools and sources, it is
wholly unreasonable to expect that the arbitrator will not rely on
these to derive the precise and up-to-date meaning of a particular
‘law’. If this were not so, the tribunal may be led to unjust results. By
way of illustration, a contract drafted in 2000 qualifies law X of
Germany as the governing law. By the time the dispute goes to arbitra-
tion in 2005, law X has been terminated and replaced by law Y. If the
tribunal were to simply apply law X, this will not only conflict with the
terms of the contract, but risks being set aside or refused enforcement
on public policy grounds. This proposition is sustained by practice,28
unless of course the dispute concerns a stabilisation clause entered into
between a State and an investor. Such contextual and evolutionary
interpretation applies mutatis mutandis to rules of law that are of a
non-binding nature. For example, an international sales usage agreed to
in a contract in 1995 should be adapted to the technological evolution of
the usage in 2015.
27
D. Caron and L. M. Caplan, The UNCITRAL Arbitration Rules: A Commentary, 2nd edn
28
G. Delaume, Law and Practice of Transnational Contracts (Oceana Publications, 1988),
p. 30; J. Lew, Applicable Law in International Commercial Arbitration (Oceana
Publications, 1978), p. 136.

2.2 Rules of Law

Unlike the limitations posed by conflict of laws rules on the meaning of the
concept of ‘law’ (in the sense of the governing law) which is limited in
article 1(1) of Rome I29 to the law of a particular legal system, such as the
legal system of France, the situation is markedly different in respect of
arbitral proceedings. Under Rome I, ‘African customary law’, the
UNIDROIT Principles of International Commercial Contracts or
‘Islamic law’ are not considered legal systems as such, the justification
being that they are indeterminate and vague and hence give rise to
uncertainty.30 It is thought that trying to determine what Islamic law is
in a particular case, as opposed to Saudi law, which despite its Sharia
foundation is considered predictable, would give rise to several confusing
and conflicting versions and interpretations.31 These perceptions on the
meaning of ‘law’ and ‘legal systems’ may be problematic in litigation,32 but
not for arbitration because it is not only assumed that the parties are well
aware of the implications of their choice of law (and their ability to choose
the law of their choice), but also because the appointment of arbitrators is
based on their particular knowledge of the parties’ chosen law.
Unlike litigation, article 28(1) of the Model Law allows parties in
international arbitration to freely designate any ‘rules of law’ as their
governing law, irrespective of whether these are classified as a law or legal
system under Rome I (or other conflict of laws rules).33 As a result of such
29
The 1980 Rome Convention on the Law applicable to Contractual Obligations was
consolidated several times and transformed into Regulation (EC) No. 593/2008 of the
European Parliament and of the Council of June 17, 2008 on the law applicable to
contractual obligations [Rome I], OJ L177.
30
Beximco Pharmaceuticals v. Shamil Bank of Bahrain EC [2004] 1 WLR 1784; Musawi v.
RE Intl (UK) Ltd [2008] Lloyd’s Rep. 326.
31
This is because in strict legal terms there is no single or unified Islamic law. The four key
(there are also others, including the controversial ijtihad) sources of Sunni Islamic law on
the basis of their hierarchy are as follows: (1) Qur’an; (2) the sunnah (representing the
sayings and actions of the Prophet); (3) qiyas (human reasoning by analogy, but only if
adopted by a large enough majority of Muslim scholars); and (4) ijma, which represents
the actual consensus of the Muslim scholarly community. The four major schools of
Sunni Islam, with the exception of the text of the Qur’an which is undisputable, cannot
always agree on the veracity of all the other sources and in any event ascribe varying
interpretations to these and disputed sources. All of this justifies the argument as to the
non-existence of a single, coherent, verifiable Islamic law for the strict purposes of private
international law.
32
And, of course, these limitations are imposed by conflict of laws rules as already explained.
33
The term ‘rules of law’ in art. 1511 of the French CCP is broader than national law and
includes trade usages and practices. See the judgment of the French Supreme Cassation

740 a r t i c l e 28 : s u b s t a n c e of d i s p u te r u l es
liberal instruments and arbitral statutes, it is not uncommon for parties

in international arbitral proceedings to designate as their governing law
the lex mercatoria, equitable principles (ex aequo et bono), Islamic law,34
public international law and others, such as EU law,35 which are not
ordinarily considered laws or legal systems.36 A ‘rule of law’ for the
purposes of paragraph 1 of article 28 of the Model Law is thus any
instrument, oral tradition or written statement mutually accepted by
the parties, whether binding (or in force) or not and which allows an
arbitrator to determine the merits of a dispute and on the basis of which
to vindicate one of the parties.37 Hence, in theory, a poem may serve as a
‘rule of law’, provided that it satisfies public policy and arbitrability
requirements and assuming that it contains sufficiently precise ‘rules’ to
resolve the dispute in question. Although ‘rules of law’ need not be
expressly designated, the use of the word ‘designated’ clearly implies
that the choice of law must be unambiguous.38 But it is not advisable
that arbitrators should turn to conflict of laws rules when the choice of
law is not abundantly clear. The governing law may be derived from past
practice (in respect of the same contract), or by consistent reference to a
particular law or legal system or other rules in the contract. Equally, the
arbitrator may summon the parties and they in turn may make an oral
declaration as to their mutually agreed choice of substantive law. In any
event, the tribunal may derive the parties’ intentions by reference to the
‘terms of the contract’, as instructed by paragraph 4 of article 28 of the
Model Law. Reference to conflict of laws rules should only be made in
exceptional circumstances when all other means have failed.
Court in Compania Valencia de Cementos Portland SA v. Primary Coal Inc., French Court
of Cassation judgment (22 October 1991), (1993) 18 YB Com. Arb. 137.
34
Musawi v. RE Intl (UK) Ltd and Others [2007] EWHC 2981.
35
There are several examples of cases where the parties designated EU law as their govern-
ing law, such as ICC Award No. 7319 (1992) and ICC Award No. 10047 (1999).
36
In the Matter of the Arbitration between Raisler Corp. and New York City Housing
Authority and Others and A. Rosen & Son and Others, 32 NY2d 274, 283 (1973), the
NYC Court of Appeals famously held that: ‘an arbitrator may decide the issues as equity
and justice require, unbound by the rigors of law’. This case may be stretching things a bit
too far given that the parties had not authorised the arbitrator to act as amiable compo-
siteur or decide the case ex aequo et bono.
37
The term ‘Rules of law’ in the Model Law and the UNCITRAL Arbitration Rules are
consistent. Settlement of Commercial Disputes: Revision of the UNCITRAL Arbitration
Rules, Note by the Secretariat, UN Doc. A/CN.9/WG.II/WP.143/Add.1 (2006), para. 30.
At para. 42, it was noted that the broader term ‘rules of law’ allows the parties to ‘designate
as applicable to the case rules of more than one legal system, including rules of law that
have been elaborated on the international level’.
38

Despite these considerations in the Model Law and the UNCITRAL

Arbitration Rules, such a liberal understanding of ‘rules of law’ was not
always acceptable in past practice, despite the clear choice made by the
parties in their agreement.39 In the Sheikh of Abu Dhabi arbitration, the
sole arbitrator, Lord Asquith, although finding that national law was
applicable (i.e. Abu-Dhabi law as grounded in Qu’ranic law),40 famously
noted that:
No such law can reasonably be said to exist … [The Sheikh administers] a
purely discretionary justice with the assistance of the Koran; and it would
be fanciful to suggest that in this very primitive region there is any settled
body of legal principles applicable to the construction of modern com-
mercial instruments.41
Such an outcome would nowadays be untenable, not only because the

parties’ choice of law is sacrosanct, but also because the arbitrators are
bound to decide the merits of a dispute based on the legal tools afforded
to them by the parties. If the arbitrators dismiss the parties’ choice of law,
the award will almost certainly be defective and in addition they may
incur some degree of liability for violating their mandate (acta ultra vires)
– save if they justify their decision on the overriding considerations of
article 28(4) of the Model Law.
2.3 Lex Mercatoria

The term ‘rules of law’ in article 28(1) of the Model Law is broad enough
to encompass non-binding accords and trade usages of a transnational
character, otherwise known as lex mercatoria. Lex mercatoria does not
constitute formal law, although industrialised States are not averse to
codifying particular manifestations or in any event see no reason why key
stakeholders cannot validly rely on it by reason of contract or public
policy. Transnational trade usages may be viewed as a form of self-
regulation and typically involve rules established by the industry directly
on the basis of pertinent expertise and best practices, as is the case with
39
In Saudi Arabia v. ARAMCO (1963) 27 ILR 117, 169, it was claimed by the arbitrator that
Islamic law could not secure the interests of private parties.
40
Petroleum Development (Trucial Coasts) Ltd v. Sheikh of Abu Dhabi (1951) 18 ILR 144,
per Lord Asquith at 149; equally, Ruler of Qatar v. Intl Marine Oil Co. Ltd (1953) 20 ILR
534, per Bucknill J. at 545, who stated that: ‘I have no reason to suppose that Islamic law is
not administered [in Qatar] strictly, but I am satisfied that the law does not contain any
principles which would be sufficient to interpret this particular contract.’
41
Petroleum Development, ibid.

742 a r t i c l e 2 8 : s u b s t a n c e of d i s p u t e r u l e s
construction and oil and gas technical specifications, or may otherwise

entail the use of standard agreements, clauses or legal instruments as is
the case with insurance contracts (e.g. Bermuda form).42 The ultimate
validation of lex mercatoria rests on the fact that not all legal orders are
created by the nation State and accordingly that private orders of regula-
tion can create law.43 The employment of transnational trade usages is
extensive among parties in the same industry and in their majority they
have been codified either by the industry itself,44 or have otherwise been
approved as private or public custom by the courts or domestic laws.45
Moreover, trade usages may be incorporated by reference into the parties’
main contract as their governing law in the event of a dispute that is
resolved through arbitration.
That trade usages should constitute an acceptable governing law has been
the matter of intense debate before UNCITRAL, in respect of both the
Model Law and its Arbitration Rules. Lex mercatoria was in the past
considered as being of questionable value and its application was overruled
despite the parties’ express choice.46 In equal manner, the travaux to the
1976 UNCITRAL Arbitration Rules provide no explicit indication that
the notion of ‘rules of law’ was even meant to encompass lex mercatoria.47
The same is true of other multilateral instruments of the time, such as the
1985 Hague Convention on the Law Applicable to International Sale of
Goods, article 15 of which reads that ‘law’ means ‘the law in force in a state
other than its choice of law rules’. Such a limitation on the lex mercatoria has
now been amply remedied by the expansive understanding of ‘rules of law’
42
See, among others, C. Stoecker, ‘The Lex Mercatoria: To What Extent Does It Exist?’
(1990) 7 JOIA 101; O. Toth, The Lex Mercatoria in Theory and Practice (Oxford
University Press, 2017); T. E. Carbonneau, Lex Mercatoria and Arbitration: A
Discussion of the New Law Merchant (Kluwer, 1998).
43
G. Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’ in G. Teubner (ed.),
Global Law without a State (Dartmouth, 1997), p. 15.
44
See e.g. the construction industry’s FIDIC rules, which are distinguished threefold as
follows: construction contracts per se (red book); plant and design-build (yellow book);
and EPC turnkey contracts (silver book).
45
Section 346 of the German Commercial Code states that ‘due consideration shall be given
to prevailing commercial custom and usages concerning the meaning and effect of acts
and omissions among merchants’. Equally, although in a different context, s. 18(1) of the
1999 Tanzanian Village Land Act recognises customary rights of occupancy. See also I.
Bantekas, ‘The Private Dimension of the International Customary Nature of Commercial
Arbitration’ (2008) 25 JOIA 449.
46
Société Norsolor v. Société Pabalk Ticaret Circeti award (1984) YB Com. Arb. 109 was
annulled by the Austrian Appeals Court, although later upheld by the country’s Supreme
Court, (1982) 110 Clunet 645.
47
UN Doc. A/40/17 (n. 4), para. 232.

in article 28(1) of the Model Law and the injunction in paragraph 4 of the
same provision, which instructs arbitrators to ‘take [it] into account’ when
forming their award. Although it is beyond the scope of this chapter to
examine the policy reasons for the change of attitude since the late 1980s, it is
safe to attribute it to key domestic judgments,48 lobbying from pertinent
industries and law firms representing them and vast academic writings that
have supported the formalisation of transnational trade usages.49 In fact,
article 2A(1) of the Model Law requires that in the interpretation of the
Model Law regard is to be had to its ‘international character’, and the need to
ensure ‘uniformity’ and ‘good faith’. Lex mercatoria rests on all three of these
principles and is an integral part of international trade and commerce.50
Although contrary to party autonomy, the injunction in paragraph 4 of
article 28 of the Model Law has been construed by some national courts
as an obligation on arbitral tribunals. The Swiss Federal Supreme Court
refused to set aside an award in a case where the tribunal supplemented
the parties’ choice of law with practice arising from the UN Convention
on Contracts for the International Sale of Goods and the 2004
UNIDROIT Principles of International Commercial Contracts. It argued
that reference to such transnational rules was reasonable in long-stand-
ing international commercial relationships.51 In equal measure, article
1511(2) of the French CCP states that tribunals ‘shall take into account
trade usages’. The French Court of Cassation has held that an award
decided on the basis of ‘rules of international commerce determined by
practice recognised in national case law’ was compatible with ‘rules of
law’ under article 1511 of the CCP.52
2.4 Concurrent Laws and Dépeçage

The governing law may encompass a combination of different laws, legal
systems and rules of law, each of them dealing with discreet parts of the
contract (dépeçage),53 but occasionally the parties may subject the whole
48
See e.g. Deutsche Schachtbau – und Tiefbohrgesellschaft MbH (DST) v. Ras Al Khaimah
Natl Oil Co. (Rakoil) (1987) 3 WLR 1023.
49
See O. Lando, ‘The Lex Mercatoria in International Commercial Arbitration’ (1985) 34
ICLQ 747; D. Rivkin, ‘Enforceability of Arbitral Awards Based on Lex Mercatoria’ (1993)
9 Arb. Intl 67.
50
See analysis on art. 2A(1) in this commentary.
51
Swiss Federal Supreme Court judgment (16 December 2009), Case No. 4A_240/2009.
52
Compania Valencia de Cementos Portland (n. 33).
53
See UN Doc. A/40/17 (n. 4), para. 234, where it was held that the practice of dépeçage was
recognised by most legal systems and was an integral component of party autonomy.

744 a r t i c l e 28 : s u b s t a n c e o f d i s p u te r u l e s
or part of their main contract to several laws concurrently. This has been
particularly prevalent, although generally ill advised, in contracts
between States and private entities with a view to satisfying the host
State’s demand for respect of its domestic law while at the same time
counterbalancing the risk of abuse by the host with the parallel applica-
tion of a more objective law, such as international law.54 However,
because concurrent law clauses do not provide arbitrators with a clear
picture of the parties’ choice of law, the ultimate outcome may lead to
unnecessary surprises. Consider, for example, the following clause that
was inserted in three distinct contracts in the Libyan Oil Nationalisation
cases:
This concession shall be governed by and interpreted in accordance with
principles of law of Libya common to the principles of international law
and, in the absence of such common principles, then by and in accordance
with the general principles of law, including such of those principles as
may have been applied by international tribunals.
There are several uncertainties associated with this clause. First, is it

Libyan law that should be consistent with international law or the latter
with Libyan law and is this distinction even necessary? If Libyan law is
incompatible with fundamental notions of international law, is it not
defective under international law anyway? Second, had the parties really
expected that Libyan law might be wholly or partially inconsistent with
international law? Third, how much evidence of the incompatibility
between Libyan and international law must an arbitrator accept (in
order to avoid accusations of bias) before turning to the default position
in the choice of law clause (i.e. general principles of law)? It is no
wonder that each of the three sole arbitrators appointed in the three
nationalisation cases reached a different interpretation of the clause. In
the BP arbitration, the default option was preferred,55 whereas in
Texaco, it made sense to apply public international law without the
need for any compatibility test with Libyan law.56 Finally, in Liamco, it
was decided that although the governing law was that of Libya, it was in
conflict with international law and as a result its exclusion was justified
by the tribunal.57
54
Nowadays there are sound contractual techniques for extinguishing risks of this nature,
such as freezing (of laws) or stabilisation (of laws and their effects) clauses.
55
British Petroleum Co. Ltd (Libya) v. Libya (1982) 17 ILM 14.
56
Texas Overseas Petroleum Co. and California Asiatic Oil Co. (Texaco) v. Libya (1982) 62
ILR 140.
57
Liamco v. Libya (1982) 62 ILR 140, 143.

3. Paragraph 2
Paragraph 2 sets out the default rule to paragraph 1 of article 28. Hence, if
the parties have not explicitly set out a ‘law’, ‘legal system’ or other ‘rules
of law’, the tribunal shall determine the governing law on the basis of
those conflict of laws rules it deems appropriate. The tribunal cannot thus
determine this preliminary issue (i.e. the governing law) simply by
reference to the law it considers more appropriate to the facts of the
dispute (e.g. the law of the seat). In accordance with paragraph 2, it is
obliged to derive the governing law by reference to the most appropriate
conflict of laws rules of its choice. This outcome is different from article
35(1) of the 2010 UNCITRAL Arbitration Rules, according to which the
default position entails that the tribunal ‘shall apply the law which it
determines to be appropriate’.58 Needless to say that in the revision of the
UNCITRAL Arbitration Rules there were some calls for a variant
whereby the default position would be private international law as is
the case with the Model Law.59 There was far broader support, however,
for a variant that would expand the tribunal’s authority, allowing it to
determine the choice of law on the basis of more ‘objective criteria’.60
Alas, paragraph 2 of article 28 of the Model Law gives rise to far more
uncertainty than its counterpart in the UNCITRAL Arbitration Rules, not
only because conflict of laws rules may run counter to the terms of the
contract, but also because unlike a court which must refer to its national
conflict rules, arbitral tribunals are under no such (reasonable) constraints.
Moreover, it adds an extra layer of expense given that the arbitrators may
not have any expertise in private international law, thus requiring addi-
tional hearings or input from experts. This uncertainly is alleviated some-
what only where Model Law-based lex arbitri obliges arbitrators to employ
the seat’s conflict of laws rules. As already explained in the travaux section,
paragraph 2 gave rise to vociferous debates, with many UNCITRAL
delegates claiming even back in 1985 that it was outdated.
58
Not surprisingly, the UNCITRAL Working Group working towards the 2010 revised
UNCITRAL Arbitration Rules dismissed calls for a sentence clarifying that reference to
the substantive laws of a State does not encompass its conflict of laws rules. Report of the
Work of the Session, UN Doc. A/CN.9/684 (2009), para. 92. It should be noted, however,
that under art. 33(1) of the 1976 Rules the position was the same as is currently framed in
art. 28(2) of the Model Law.
59
Report of the Working Group on Its Forty-Seventh Session, UN Doc. A/CN.9/641 (2007),
para. 110.
60
Report of the Working Group on Its Forty-Third Session, UN Doc. A/CN.9/684 (2009), para.
95; see also ibid., UN Doc. A/CN.9/641 (2007), where it was proposed that in the absence of
agreement, the tribunal ‘shall apply the rules of law which it determines to be appropriate’.

746 a r t i c l e 28 : s u b s t a n c e o f d i s p u te r u l es
3.1 Ordinary Operation of Conflict of Laws Rules

When a dispute arises between the parties to a contract with no express
governing law, the court to which the dispute has been submitted must
decide on the basis of which substantive law the facts will be determined.
The judge may encounter a situation where several laws are potentially
applicable, such as the parties’ (distinct) personal laws, the law of the
country where specific performance is to be undertaken, the law of the
parties’ respective seats, the law of the parties’ agents and many others. In
such cases, the phenomenon of conflict of (substantive) laws arises. The
judge has to solve this web of conflicts, but what is the legal platform from
which to make his or her determination? Each country has its own set of
conflict of laws rules and a global attempt has been underway for more
than a century to harmonise such rules so as to avoid inconsistencies and
situations of injustice. The most extensive harmonisation has taken place
in Europe, with pertinent treaties in the fields of contract,61 enforcement
of judgments,62 matrimonial disputes63 and others. For the purposes of
this section, the revised Rome I Convention 1980 is the starting point for
our discussion, being the instrument that harmonises conflict of laws in
respect of contracts in all EU member States.
When a national court receives a suit in which the contract has no
express governing law, it will employ its national conflict rules in order to
discover the tacit (or implied) governing law. The starting point is there-
fore the national conflict rules of the country where the suit was sub-
mitted, which is known as lex forum. The conflict rules of the forum
(which as explained is in harmony with Rome I) will set out particular
criteria which link the contract in question to a system of law. These
criteria are known as ‘connecting factors’. By way of illustration, article 4
(1) of Rome I stipulates that in the absence of a choice of law clause, the
law governing the contract shall be determined as follows:
(a) a contract for the sale of goods shall be governed by the law of the
country where the seller has his habitual residence;
(b) a contract for the provision of services shall be governed by the law
of the country where the service provider has his habitual residence;
61
Rome I. See C. M. V. Clarkson and J. Hill, The Conflict of Laws, 4th edn (Oxford
62
Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recogni-
tion and enforcement of judgments in civil and commercial matters [2001] OJ L12.
63
Council Regulation (EC) 2201/2003 of 27 November 2003 [2003] OJ L338/1, concerning
jurisdiction and the recognition and enforcement of judgments in matrimonial matters
and matters of parental responsibility, repealing Regulation 1347/2000 [Brussels II].

3 . p ar agr ap h 2 747
(c) a contract relating to a right in rem in immovable property or to a
tenancy of immovable property shall be governed by the law of the
country where the property is situated;
(d) notwithstanding point (c), a tenancy of immovable property con-
cluded for temporary private use for a period of no more than six
consecutive months shall be governed by the law of the country where
the landlord has his habitual residence, provided that the tenant is a
natural person and has his habitual residence in the same country;
(e) a franchise contract shall be governed by the law of the country
where the franchisee has his habitual residence;
(f) a distribution contract shall be governed by the law of the country
where the distributor has his habitual residence.
But even so, the situations of a contract may not be so clear as to allow for
precise determinations. In such cases, paragraphs 2 to 4 of article 4 of
Rome I provide that:
2. Where the contract is not covered by paragraph 1 or where the
elements of the contract would be covered by more than one of points
(a) to (h) of paragraph 1, the contract shall be governed by the law of
the country where the party required to effect the characteristic
performance of the contract has his habitual residence.
3. Where it is clear from all the circumstances of the case that the contract
is manifestly more closely connected with a country other than that
indicated in paragraphs 1 or 2, the law of that other country shall apply.
4. Where the law applicable cannot be determined pursuant to para-
graphs 1 or 2, the contract shall be governed by the law of the country
with which it is most closely connected.
The following section will examine in what manner an arbitral tribunal

seised of a dispute that fails to designate a substantive law can apply conflict
of laws rules in furtherance of paragraph 2 of article 28 of the Model Law.
3.2 The Operation of Conflict of Laws Rules in Arbitral

Proceedings
So far, we have examined the application of conflict rules to contracts that
the parties submit to the courts in case of dispute.64 Besides the specific
circumstances of article 28(2) of the Model Law, private international law
64
Although it is inconsequential to our discussion of arbitral proceedings, the reader should
at all times distinguish between the forum (namely the place where the dispute is to be
resolved) and the applicable law (the law governing the agreement). As we shall see in
several cases below, both national courts and arbitral tribunals sometimes artificially
assume – where the parties have not designated a choice of law – that the applicable law
should be the same as the choice of forum, as is the case with s. 48(1) of the Swedish AA.

748 articl e 2 8: s ubstanc e of dispute r ules
is also relevant in the context of enforcement of international awards.65

Arbitral tribunals do not have a lex fori and as far as national procedural
law is concerned they are only bound by the mandatory provisions of the
law of their seat (the lex arbitri).66 Although the lex arbitri – typically
reflected in most part in the local arbitration statute or its equivalent –
will regulate how the tribunal is to arrive at the governing law in situa-
tions where the parties have failed to designate one, the relevant provi-
sions in the lex arbitri will not ordinarily be of a mandatory nature.67 In
any event, given that the Model Law does not subject awards to court
review on the ground of a wrongful application of article 28, any refer-
ence to conflict of laws ‘serves as little more than a guidance for the
arbitral tribunal’.68 The tribunal may just as well employ its own criteria
(or common sense) in deciphering the law, rules, legal system or combi-
nations thereof that are closest to the parties’ shared intention. This
determination may ultimately turn out to be different from the conclu-
sion otherwise reached by reference to the conflict rules of the seat of the
arbitration. In many cases, the tribunal’s power to determine the govern-
ing law of the parties’ contract will stem from the institutional rules to
which the parties have subjected their dispute, which almost never refer
to conflict of laws rules.69
Paragraph 2 of article 28, despite using seemingly mandatory language
(‘shall’), does not assimilate the seat of the arbitration with any particular
lex fori for the purpose of ascertaining the appropriate conflict rules (i.e.
that choice of forum necessarily also entails a choice of law). The tribunal
65
Conflict rules are relevant to New York Convention (1958), art. V(1)(a) determinations
regarding the governing law of the parties’ capacity to enter into an arbitration agree-
ment. According to this provision, the parties do not possess autonomy to choose the ‘law
applicable to them’, as for natural persons this corresponds to the law of their nationality
or domicile, whereas in respect of legal persons this is typically the place of their seat or
incorporation. In such cases, the applicable law is determined by the country of enforce-
ment’s choice of law rules. See R. Wolff, New York Convention Commentary (Beck-Hart,
2012), pp. 273–274.
66
Article 1(2)(e) of Rome I expressly excludes arbitration agreements from its scope.
However, an arbitration agreement encompasses a severable arbitration clause (from
the main contract), as well as a post-dispute submission agreement. The body of the main
contract remains subject to conflict rules, but, as will be explained, the tribunal is not
bound by national conflict rules. They are but an option, among many, in its armoury.
67
By way of illustration, s. 46(3) of the English AA is a non-mandatory provision. This is
evident from a combination of s. 4(1) and Sch. 1 of the English AA.
68
UN Doc. A/40/17 (n. 4), para. 238.
69
See e.g. art. 21(1) of the ICC Rules, which provides that in the absence of an express choice
of substantive law ‘the arbitral tribunal shall apply the rules of law which it determines to
be appropriate’.

3 . pa ragr ap h 2 749
may, therefore, apply any national or transnational conflict of laws rules

in the absence of an express designation by the parties and its starting
point is by no means the conflict rules of the seat.70 The ultimate power of
the tribunal in this respect lies in its competence-competence power.71
Notwithstanding the aforementioned considerations, there are three
types of legislative approaches through which the law of the seat allows
tribunals to resolve choice of law questions. The first, as exemplified in
article 28(2) of the Model Law and section 46(3) of the English
Arbitration Act, admonishes tribunals to apply conflict of law rules, but
not necessarily those of the lex arbitri. The tribunal is free to make use of
those conflict rules ‘which it considers applicable’ (voie indirect).72 Under
the second approach, the tribunal need not have recourse to conflict rules
at all, but instead apply the substantive law it deems ‘more appropriate’ to
the dispute at hand or the parties’ intention (voie directe). This is the case,
for example, with section 603 of the Austrian CCP and article 1511 of the
French CCP. As we have already explained, this approach is consistent
with the competence-competence power of arbitral tribunals and is
usually also founded in institutional rules. The third approach is a
variation of the voie directe and is reflected in article 4(4) of Rome I,
whereby the tribunal is required to apply the substantive law of the
country with ‘which it is more closely connected’. This so-called limited
voie directe finds expression in section 1051(2) of the German ZPO and
article 187 of the Swiss Private International Law Act.73 In practice, the
outcome of voie directe and limited voie directe may be the same, parti-
cularly if the tribunal decides that the governing law should be that of the
seat of the arbitration.74
In a case heard by the Russian International Commercial Arbitration
Court, the parties had not set out a governing law for their contract. The
Arbitration Court noted that, under article 28(2) of the Russian
Federation on International Commercial Arbitration Act (consistent
70
Lando (n. 1), p. 110.
71
Report of the UN Secretary-General on the Revised Set of Arbitration Rules, UN Doc. A/
CN.9/112/Add.1 (12 December 1975), (1976) VII UNCITRAL YB 179.
72
See also 1994 Czech AA, art. 37(2); Luxembourg NCCP, art. 1240.
73
See also Saudi AA, art. 38(1)(b); Polish 2011 Private International Law Act, art. 39(2).
Here, the law of the seat takes priority, followed by the ‘law applicable to the legal
relationship’; similarly, Greek Supreme Cassation Court judgment 1219/2014 (Civil
Division A1).
74
This is certainly a common law assumption that finds expression in English judicial
practice. See particularly Egon Oldendorff v. Liberia Corp. [1995] 2 Lloyd’s Rep. 64 and
Parouth [1982] 2 Lloyd’s Rep. 351; Clarkson and Hill (n. 61), pp. 211–212.

with article 28(2) of the Model Law), if there is no indication by the

parties as to the applicable law, the arbitral tribunal would determine the
applicable law in accordance with the conflict of laws rules that it
considered applicable in each case. Given that the claimant and respon-
dent were registered as legal entities and conducted their business activ-
ities in the countries of the Commonwealth of Independent States (CIS),
the court considered applicable the conflict of laws rule provided for in
article 11(e) of the 1992 CIS Agreement on Settling Disputes Relating to
Business Activities. According to article 11(e), unless otherwise agreed by
the parties, the rights and obligations of the parties to business transac-
tions are governed by the law of the place where the transaction was
conducted. This was held to be the place where the parties concluded
their contract.75
4. Paragraph 3
The concepts of ex aequo et bono and amiable compositeur are grounded
on equitable considerations and despite being synonymous for practical
purposes in several jurisdictions, they have been found to share diverse
‘connotations in the various legal systems’.76 What is abundantly clear
from the text of paragraph 3 is that the application of equity as a form of
substantive law can only be derived from the express will of the parties
which must be explicit in their arbitration clause, post-dispute agree-
ment, orally before the arbitrators or in the form of meetings during the
hearings.77 Although it is now well settled that the express authorisation
of the parties suffices for ex aequo et bono arbitral determinations under
article 28(3) of the Model Law and hence their compatibility with the lex
arbitri (assuming it is a Model Law State78) is taken for granted, the
75
CLOUT Case 1446, Judgment No. 236/2010 (11 July 2011).
76
Report of UNCITRAL on the Work of Its Ninth Session, UN Doc. A/31/17 (1976),
para. 172.
77
See SARL Benvenuti et Bonfant v. Congo, ICSID Award (8 August 1980), para. 122.
78
Equity-based procedures are permitted in all Model Law nations, e.g. 1994 Hungarian
Arbitration Law Act, art. 49(3); Italian CCP, art. 822; the 2010 Irish AA makes no
mention of ex aequo et bono, but they are implicitly allowed because in accordance
with s. 6 of the Act, the Model Law has the force of law in Ireland and under s. 8(1)
and (2) when applying the Act and the Model Law, Irish courts should base their
interpretation on the travaux préparatoires of the Model Law; Romanian CCP, arts 601
(2) and 1119(2); Polish CCP, art. 1194(1). The same provision also states that tribunals
may be authorised to decide cases on the basis of ‘general principles’; German ZPO, art.
1051(3); Spanish AA, art. 34(2).

4 . p ar agr ap h 3 751
position is not necessarily the same with regard to the law of a seat that
has not adopted the Model Law.79
The parties and the arbitral tribunal are best advised to ensure that
equitable considerations are valid under the lex arbitri and the
intended countries of enforcement. In the event of incompatibility,
the tribunal may choose a substantive law or rules of law that capture
the essence of the equitable principle under consideration. This
approach ensures that the award will not offend party autonomy
because, as has been advanced some time ago, an equitable considera-
tion does not mean that arbitrators are precluded from applying
formal law; rather, it is a command to ‘remove the imperative and
obligatory character of such law’.80 Finally, it should be emphasised
that the power of a tribunal to decide on an equitable basis is subject
to the requirements of paragraph 4 of article 28 of the Model Law,81
which will be discussed later.
4.1 Ex Aequo et Bono

As already explained, the parties must subject their agreement to ‘rules of
law’, not necessarily a (domestic) law or a legal system. Article 28(3) of the
Model Law stipulates that the parties may authorise82 a tribunal to decide a
case ex aequo et bono, which is synonymous with equity and conscience. In
simple terms, the parties authorise the tribunal to dispense with all legal
rules and decide the case solely on equitable grounds, essentially justice,
fairness and good conscience.83 In the seminal Minhal case, the Paris Court
of Appeal held that where the tribunal is asked to decide on the basis of
equitable considerations, it is presumed that the parties have waived the
effects and benefits of legal rules, as well as the right to expect a strict
79
Non-Model Law industrialised nations typically allow equity-based considerations. See
e.g. Swiss Private International Law Act, art. 187(2); French CCP, art. 1512; the Swedish
Arbitration Act makes no reference, but it is suggested by commentators that equity-
based considerations are tacitly permitted.
80
B. Poznanski, ‘The Nature and Extent of an Arbitrator’s Powers in International
Commercial Arbitration’ (1987) 4 JOIA 71, 79.
81
Food Services of America Inc. (Amerifresh) v. Pan Pacific Specialties Ltd [1997] 32 BCLR
(3d) 225.
82
Exceptionally, equity is the default position in certain arbitral institutions, unless the
parties expressly agree otherwise, as is the case with s. 2 of the Arbitration Rules of the
tribunal of the Rosario (Argentina) Stock Exchange.
83
See Liberty Reinsurance Canada v. QBE Insurance and Reinsurance (Europe) Ltd [2002]
CanLII 6636 (ONSC), which held as much in respect of an arbitration clause requiring the
agreement to be interpreted as an ‘honourable agreement’.

752 ar tic l e 28: subs ta nc e of d is put e rules
application of the law.84 Exceptionally, where the tribunal has been

requested to decide the dispute on the basis of both equitable and formal
rules, French courts have advanced the view that the tribunal must first
identify the chosen law and then compare it to the equitable solution,
ultimately deciding the outcome (if a conflict between the law and equity
exists) in accordance with its own sense of fairness.85
The parties may be driven in favour of equity by the fact that the
relevant law is vague or indeterminate or because the dispute in question
is simply a matter of fact; has enough cement been used? Did X actually
deliver the goods? The Athens Appeals Court has held that where the
parties request the tribunal to simply decide whether there has been
consideration under the contract, it is assumed that its decision will be
grounded on equity.86 Equity is only available through party consent and
cannot therefore be imposed as default law by the tribunal,87 albeit some
notable exceptions are laid out at the end of this section. Requests for
adjudication on the basis of equitable principles have been prominent in
maritime determination disputes before the International Court of
Justice (ICJ), as well as in ad hoc arbitrations on the same issue.88
Expert determination is equally based on equitable (as well as technical)
considerations, but the outcome is not an arbitral award.
As already demonstrated, the vast majority of domestic laws recognise
equitable determinations by arbitrators as final awards, otherwise there
would be little point in making such requests in the first place.
Nonetheless, several sensible limitations are imposed. French courts
have clarified that when deciding on the basis of equity tribunals are
bound to observe the parties’ due process rights and international public
policy more generally.89 Moreover, although the tribunal may have to
84
CN v. Minhal, Paris Court of Appeals judgment (28 November 1996); Société Centrale
Fotovista v. Vanoverbeke and Others (2004) Rev. Arb. 907.
85
Halbout and Matenec HG v. Hanin [2001] Rev. Arb. 135.
86
Athens Appeals Court, judgment 4966/1975.
87
CME Czech Republic BV v. Czech Republic, Final Award under UNCITRAL Rules (14
March 2003), para. 403. Party consent is also a consistent feature in institutional rules,
such as art. 21(3) of the ICC Rules.
88
North Sea Continental Shelf Cases (FRG v. Netherlands, FRG v. Denmark) [1969] ICJ Rep.
3, 5; Guinea/Guinea Bissau maritime boundary arbitration (1986) 25 ILM 251, where it
was held that delimitations must ultimately be measured against the goal of producing
equitable solutions. See also art. 83(1) of the UNCLOS to the same effect, although
unnecessarily confusing.
89
CN v. Minhal (n. 84); the Swiss Federal Supreme Court has ruled that when deciding a
case ex aequo et bono the arbitrators are only limited by public policy rules. See Bettydo SA
v. Torriani, BGE 107.

moderate the effects of the parties’ contractual arrangements, it may

not go as far as creating a new set of relationships that were not
originally intended by the parties.90 Furthermore, if the tribunal
were to render an award that includes no evident considerations of
equity and instead involves a strict application of the contract on the
basis of formal law, this may lead to setting the award aside.91 In
line with the limitations identified above, article 39(5) of the
Portuguese Arbitration Law provides that awards rendered on the
basis of equity may not be appealed to the courts (assuming the
parties had agreed that appeals are possible). Finally, some Model
Law jurisdictions take the view that equitable determinations must
always consider applicable trade usages, in accordance with article 28
(4) of the Model Law.92
Although it is well settled that equitable considerations must
always meet the consent of the parties, in some cases this has artifi-
cially been achieved without their consent. The Portuguese Civil
Code provides in article 564(2) that the courts may refer the quanti-
fication of damages to a subsequent procedure if the factual determi-
nation does not warrant such quantification. This provision applies to
domestic and international arbitration, provided that Portuguese law
is the governing law of the contract. In such a case, according to
article 47(2) of the Portuguese Arbitration Law (PAL), the award
creditor may request the arbitral tribunal to issue an additional
award (PAL, art. 45(5)) within thirty days of receipt of the notice of
the award. The arbitral tribunal, after giving the other party the
opportunity to state its views and after evidence has been taken,
shall issue a supplementary decision on the basis of ex aequo et
bono within the limits of the facts that have been proven by that
stage. In equal manner, where the parties’ governing law is the
UNIDROIT Principles of International Commercial Contracts, article
7.4.3 states that: ‘where the amount of damages cannot be established
with a sufficient degree of certainty, the assessment is at the
90
Société Taurus Films v. Les Films du Jundi [2000] Rev. Arb. 280; exceptionally, however, in
Mamidoil-Jetoil Greek Petroleum Co. SA v. Okta Crude Oil Refinery AD (2001) 2 Lloyd’s
Rep. 76, it was held by the English Court of Appeal that arbitrators may be empowered to
supplement the parties’ agreement, or otherwise replace the will of the parties if asked to
decide ex aequo et bono.
91
Leizer v. Bachelier, Paris Court of Appeals judgment (3 July 2007), [2007] Rev. Arb. 821.
92
Amerifresh (n. 81).

discretion of the court’. The tribunal may thus feel compelled to

decide on equitable principles, even if the parties disagree.
4.2 Amiable Composition

Although the concept of amiable composition is generally fused with
equity, the two are not synonymous and in fact express different
qualities. The former is derived from French theory whereby it has
traditionally been viewed as a procedure in which arbitrators decide
on the basis of legal principles, but ‘are entitled to alter the effects of the
application of specific legal norms (e.g. limitation, damages)’, with
equity being one among other considerations in this process.93 Hence,
equitable determination is narrower than the concept of amiable com-
position94 and in fact it concerns a process that is far less concerned with
the applicable substantive law than it is with the authority of the
tribunal and the nature of decision-making and the award. Rubino-
Sammartano, several decades ago, described it as a procedure lacking an
adversary character where the arbitrator is authorised to settle or
resolve the dispute.95 Whatever the merits of such an argument, to
the degree that the parties desire an enforceable award, a tribunal
authorised to act as amiable compositeur must balance between an
equitable determination that does not offend public policy, or otherwise
apply law that conforms to equity with a view to ensuring a healthy
award.96
With these considerations in mind, where the tribunal is seemingly
requested to decide a dispute as amiable compositeur, but its decision
does not have the attributes of an award, and the same is true of the
procedure, such a decision does not fall within paragraph 3 of article 28 of
the Model Law. By way of illustration, commentators note the tradition
in Denmark whereby arbitrators ask the parties whether instead of a final
award they would rather have a simplified ruling, often confined to legal
reasoning and conclusion (tilkendegivelse). This is not, however, an
93
A. Belohlavek, ‘Application of Law in Arbitration: Ex Aequo et Bono and Amiable
Compositeur’ (2013) Czech & Central Eur. Ybk Arb. 25, 32.
94
See Calaresu v. Pintus (1961) 18 Rep. Foro. 161, cited in M. Rubino-Sammartano,
‘Amiable Compositeur (Joint Mandate to Settle) and Ex Bono et Aequo (Discretional
Authority to Mitigate Strict Law): Apparent Synonyms Revisited’ (1992) 9 JOIA 5, where
it was held that amiable compositeur is granted the authority to settle, an authority which
arbitrators acting under equity do not possess.
95
Rubino-Sammartano, ibid.
96
Halbout and Matenec HG v. Hanin (n. 85).

award and the benefits include less drafting for arbitrators and hence a
reduction in fees, which may serve as an attraction for some parties.97
Obviously, such a document provides no res judicata and no guarantee of
compliance and it is not surprising that it has been criticised by the
Danish Supreme Court.98
5. Paragraph 4
Paragraph 4 refers to the ‘terms of the contract’ in the sense that they
override the express choice of law by the parties, while at the same time
applicable ‘trade usages’ must be relied upon by the tribunal in all cases.
The provision is unclear as to the hierarchical relationship between the
two principles, as well as the particular relationship between lex merca-
toria and trade usages. Given that article 28 refers to rules governing the
substance of the dispute, any reference to sources (law, rules of law, legal
system) or interpretative tools (terms of contract) must necessarily allude
to the tribunal’s decision on substance and not to any procedural or
jurisdictional matters.99
5.1 The ‘Terms of the Contract’ Supersede Choice of Law

Paragraph 4 obliges the tribunal ‘in all cases’ to override party autonomy
in favour of the ‘terms of the contract’, as well as to ‘take into account any
[applicable] usage of trade’. In practice, there are few instances where the
tribunal requires a law to decipher the meaning of a term in a contract.100
Typically, the terms of the contract (which may further refer to annexed
documents or other detailed standard terms of reference) suffice to
determine the merits of a dispute without resort to extraneous legal
97
O. Spiermann, ‘National Report for Denmark (2009)’ in J. Paulsson (ed.), International
Handbook on Commercial Arbitration (Kluwer, 2004, Supp. No. 57, 2009), p. 21.
98
H. J. Nielsen, Oscar Nordland and Henning Remmen v. Copenhagen Admiral Hotel I/S,
Danish Supreme Court judgment (17 March 1994).
99
Liberty Reinsurance Canada (n. 83).
100
Article 35(3) of the UNCITRAL Arbitration Rules obliges the tribunal to resort to the
terms of the contract, only if the dispute is based on a contract. No such distinction is
made in art. 28(4) of the Model Law. Going a step further, during the course of the 2010
revision of the Arbitration Rules, it was suggested that the term ‘contract’ be sub-
stituted by the broader notion of ‘agreement’. This was, however, rejected because
agreements other than contracts are not enforceable in all States. Report of the
Working Group II on the Work of Its Fifty-First Session, UN Doc. A/CN.9/684
(2009), para. 99.

interpretations. Hence, reference to the ‘terms of the contract’ should be

viewed as a means of contract construction, similar to the injunction in
article 31(1) of the Vienna Convention on the Law of Treaties, according
to which a treaty should be interpreted in agreement with the ordinary
meaning of its words. It would be unjust for a tribunal to ascribe a legal
meaning to a contractual term that is quite different from its ordinary
meaning. In this manner, a legal interpretation, even if mandated by the
parties, would lead to a denial of justice. As a result, paragraph 4 obliges
arbitrators to decide disputes by reference to the ordinary meaning of the
words and terms in the parties’ contract, not only in the first instance, but
over and above the governing law of the contract or other equitable
considerations. In a Canadian case, the arbitrator had been requested
to decide the dispute as amiable compositeur, and specifically on the basis
of good faith. The Montreal Court of Appeal held that as a result of article
28(4) the arbitrator should endeavour to reconcile the terms of the
contract with good faith, and thus while it is acceptable to mitigate the
strict enforcement of rights in the contract, it is by no means permitted to
apply good faith in order to rewrite the contract or ignore its terms.101
5.2 ‘Applicable Trade Usages’

Reference to applicable ‘trade usages’ is confusing in that the concept of
‘rules of law’ is sufficiently broad to encompass trade usages, especially if
the term itself is viewed as synonymous to lex mercatoria. Neither the
travaux to the Model Law or the Arbitration Rules provide any guidance
as to the meaning of trade usages.102 Does the term refer to an industry-
wide usage and should it be countrywide, regional or global in character?
Commentators have suggested that its particular meaning is best derived
by reference to article 1.9 of the UNIDROIT Principles of International
Contracts, which provides that:
1. The parties are bound by any usage to which they have agreed and by
any practice which they have established between themselves.
2. The parties are bound by a usage that is widely known to and regularly
observed in international trade by parties in the particular trade
concerned, except where the application of such usage would be
unreasonable.
101
Coderre v. Coderre [2008] QCCA 888 (CanLII).
102
See generally F. Gélinas, Trade Usages and Implied Terms in the Age of Arbitration
(Oxford University Press, 2016).

UNCITRAL’s ‘2012 Digest of Case Law’ takes the view that: ‘the term
trade usages has been held to include norms contained in published
instruments representing best practices and accepted norms of industry
or trade’.103 Based on the above considerations, the notion of a trade
usage in article 28(4) of the Model Law is thus synonymous with the
meaning ascribed to lex mercatoria, with one exception: namely, that the
term ‘trade usage’ may encompass a trade practice established solely
between the contracting (commercial) actors under consideration, pro-
vided, of course, that the dispute is international or transnational in
nature. As a result, to the degree that a ‘rule of law’ in paragraph 1 of
article 28 of the Model Law is tantamount to a trade usage (lex merca-
toria) under paragraph 4, it is not only a valid substantive law, but must
moreover be taken into account by the tribunal.104
Just like the situation with article 35(3) of the UNCITRAL Arbitration
Rules, paragraph 4 of article 28 of the Model Law sets out a hierarchy
between the terms of the contract and trade usages, in that the latter
cannot be relied upon to justify a deviation from the clear terms of the
contract.105
103
104
See Swiss Federal Supreme Court judgment (16 December 2009), Case No. 4A_240/
2009, discussed above.
105

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 the presiding arbitrator, if so authorized by the parties or all members of
the arbitral tribunal.

Article 29 regulates decision-making within the tribunal. The general rule
of majority decision-making is contrasted against the exception of ‘ques-
tions of procedure’, which may be decided by the president if so authorised.
Among the list of issues that were included in the report drafted by the
Secretary-General ‘setting forth the contents, purposes and possible
contents of a model law’,1 one particular question (5–3) focused on ‘the
decision-making process in arbitration proceedings with more than one
arbitrator’.2 It was asked whether the Model Law should, for example,
‘require that an award be made by a majority of the arbitrators, provided
that all arbitrators had an opportunity to take part in the deliberations
leading to that award?’3 The initial recommendation of the report was
that, given ‘the legal status of an award in terms of its recognition and
enforceability, a mandatory rule may seem preferable’.4 A related issue
1
Its Third Session (New York, 16–26 February 1982): Note by the Secretariat: Possible
Features of a Model Law on International Commercial Arbitration: Questions for
Discussion by the Working Group, UN Doc. A/CN.9/WG.II/WP.35 (1 December 1981),
(1982) XIII UNCITRAL YB 308, para. 2.
2
Commercial Arbitration, UN Doc. A/CN.9/207 (1981), (1981) XII UNCITRAL YB 88,
para. 85.
3
4
UN Doc. A/CN.9/207 (n. 2), 88, para. 85.
758

1. ba ckgr ound and t r a v a u x p r é paratoires 759
considered by the Secretary-General’s report was the possibility of recog-

nising ‘an agreement by the parties to the effect that the chairman shall
have a casting vote’,5 in case a majority could not be obtained.
During its third session, the Working Group decided that ‘a provision
should be included that, in proceedings with an uneven number of
arbitrators, an award shall be made by a majority of arbitrators, provided
that all the arbitrators had taken part in the deliberations leading to that
award’.6 Furthermore, the Working Group recognised that even though
the provisions ‘on the decision-making process would be related to the
number of arbitrators forming the arbitral tribunal’,7 it was best if the
Model Law did ‘not contain any mandatory provision specifying
the number of arbitrators’.8 The reason for this was that ‘there were
proceedings conducted by an even number of arbitrators and that the
practice of appointing an arbitral tribunal consisting of one arbitrator
appointed by each party, with an umpire to decide if the two arbitrators
failed to agree, was well established in the commercial parties of some
countries’.9 The Working Group determined that ‘the model law should
not exclude these practices’,10 so the draft provision prepared for future
discussion at the following (fourth) session was written in a sufficiently
broad manner that did not clash with national practices.
The draft provision – numbered article 26 – used for discussion during
the fourth Working Group session comprised two paragraphs. Paragraph
1 contained express language indicating that the decisions of an arbitral
tribunal with ‘three or another uneven number of arbitrators’11 should
‘be made by [all or] a majority of the arbitrators’,12 as long as all
arbitrators had ‘taken part in the deliberations leading to the award [or
decision]’.13 Paragraph 2, on the other hand, empowered the president of
the arbitral tribunal to make procedural decisions when a majority could
not be reached or when the tribunal so authorised.14 The decision of the
5
Ibid.
6
Report of the Working Group on International Commercial Contract Practices on the
7
Ibid., para. 77.
8
Ibid.
9
Ibid.
10
Ibid.
11
Report of the Working Group on International Commercial Contract Practices on the
Work of Its Fourth Session, UN Doc. A/CN.9/232 (10 November 1982), 26.
12
Ibid.
13
Ibid.
14
Ibid.

760 arti cle 29: decisio n-mak ing by p anel
president was ‘subject to revision, if any, by the arbitral tribunal’.15 The

Working Group reached agreement on three general points regarding the
draft article. First, ‘that this article was not mandatory on the parties and
that the article should so state’;16 second, ‘that the actual participation of
all the arbitrators in the deliberations should not be a condition for the
validity of the award’;17 and, third, ‘that the provisions of paragraph (2)
should be retained’.18
Nevertheless, some Working Group members had concerns over
the possibility that the draft article would expressly mention ‘that all
the arbitrators had had the opportunity to take part in the delibera-
tions’. They opined, ‘if expressly mentioned in the model law [the
condition] could give rise to a wrong impression that an arbitrator
had a right to refuse to take part in the deliberations’.19 As a result,
the majority view concluded that the Model Law should omit any
reference to this. The text of paragraph 2 also generated some dis-
cussion as some delegates were of the opinion that ‘once the presiding
arbitrator decided a procedural question on his own, the other arbi-
trators should not have the possibility to change his decision’.20
Nevertheless, the majority favoured the position ‘that the arbitral
tribunal should retain the possibility of controlling all the decisions
made by the presiding arbitrator’.21
The revised draft articles submitted for the consideration of the
Working Group during its sixth session renumbered the articles and
the one referring to decision-making became ‘article XX’.22 The article
retained the same structure as its predecessor. However, the wording of
paragraph 1 was simplified as follows: ‘In arbitration proceedings with
more than one arbitrator, any award or other decision of the arbitral
tribunal shall be made, unless otherwise agreed by the parties, by a
majority of all its members.’23 Despite a suggestion that paragraph 1
should also include a provision giving ‘the presiding arbitrator the
decisive vote if there was no majority for a decision envisaged in that
15
Ibid.
16
Ibid., para. 137.
17
Ibid., para. 138.
18
Ibid., para. 139.
19
Ibid., para. 138.
20
Ibid., para. 140.
21
Ibid.
22
Sixth Session, UN Doc. A/CN.9/245 (22 September 1983), 23.
23
Ibid., para. 102.

paragraph’,24 the majority decided to maintain the original wording.

Regarding paragraph 2, the Working Group ‘adopted the principle that
questions of procedure, for the sake of expediency and efficiency, may be
left to a presiding arbitrator’,25 as long as the parties had provided
authorisation. The Working Group also decided, ‘once this authorization
had been given, an individual decision should not be subject to revision
by the arbitral tribunal’.26
The draft submitted for subsequent discussion during the seventh
session of the Working Group renumbered the article as ‘article 29’.
Upon further deliberation, the Working Group decided to consolidate
the two paragraphs into one as it considered that the article ‘should only
deal with the majority principle in the making of decisions in arbitral
proceedings’,27 and that it should not ‘try to define the term “award”’.28
The Working Group also debated whether or not the last sentence of the
article, which empowered the presiding arbitrator to decide procedural
issues, should be retained. It decided to retain it, considering that it may
‘make an arbitration more expedient and efficient’.29 In light of these
changes, the adopted draft article read:
majority of all its members. However, the parties or the arbitral tribunal
may authorize the presiding arbitrator to decide questions of procedure.30
As with other articles, the Commission solicited comments from

governments and international organisations on the draft of the
Model Law. Eight states and three international organisations sub-
mitted comments, which were later included in a report prepared by
the Secretary-General and submitted to the Working Group for con-
sideration. The comments by governments and international organisa-
tions referred to three specific issues: (1) title of the article; (2) the
presiding arbitrator; and (3) the solution for when a majority cannot be
reached. Regarding the first comment, a proposal by the Asian-African
Legal Consultative Committee was to give draft article 29 the title
24
Ibid., para. 103.
25
Ibid., para. 104.
26
Ibid.
27
Seventh Session, UN Doc. A/CN.9/246 (6 March 1984), 25, para. 107.
28
Ibid.
29
Ibid., para. 108.
30
Ibid., 24, para. 106.

762 a rticle 29: decis ion-ma king b y p anel
‘Decision-making’.31 The second group of comments focused on the

presiding arbitrator. Canada observed ‘that this article refers for the first
time to a “presiding arbitrator”, which raises the question of how the
presiding arbitrator was appointed’.32 Norway commented ‘that the
word “presiding” is unclear’33 and recommended ‘either to explain
this word in the model law or, perhaps better, to delete it’.34 Finally,
Qatar referred the Working Group to paragraph 3 of the compilation of
comments on article 11 and proposed to include in that article ‘a
definition of the presiding arbitrator’,35 which Canada also suggested.
The final set of comments referred to the problems surrounding the
possibility of the arbitral tribunal not being able to reach majority at the
deliberation process. In this sense, ‘Finland, Sweden and (with regard to
awards) the IBA express[ed] the view that in the case where a majority of
the members of the tribunal cannot be obtained, the presiding arbitrator
should decide as if he were a sole arbitrator’.36 Sweden further justified its
position stating that if the only option for reaching an outcome is to
attain a majority, ‘the presiding arbitrator may be tempted to agree on a
juridically dubious solution in order to attain the necessary majority’.37
Whereas it was ‘believed that most practicing lawyers would prefer to see
the proposed solution’,38 the International Bar Association (IBA) feared
that ‘any change in the text regarding the method of decision-making
would involve a change of policy which has already been settled’,39 and
this would also diverge from the pertinent provisions of the UNCITRAL
Arbitration Rules.40 Regarding the position of the arbitral community on
this issue, the International Chamber of Commerce (ICC) noted that
‘under certain arbitration rules the chairman of an arbitral tribunal can
decide alone where no majority can be obtained’.41 It also proposed an
31
Report of the Secretary-General, Analytical Compilation of Comments by Governments
and International Organizations on the Draft Text of a Model Law on International
Commercial Arbitration, UN Doc. A/CN.9/263/Add.1 (15 April 1985), 17, para. 4.
32
Ibid., para. 1.
33
Report of the Secretary-General, Analytical Compilation of Comments by Governments
and International Organizations on the Draft Text of a Model Law on International
Commercial Arbitration, UN Doc. A/CN.9/263 (19 March 1985), 44, para. 4.
34
Ibid.
35
Ibid., para. 5.
36
Ibid., 43, para. 1.
37
Ibid.
38
Ibid.
39
Ibid.
40
Ibid.
41
UN Doc. A/CN.9/263/Add.1 (n. 31), 17, para. 3.

amendment to article 31(1) regarding the requirement of ‘the signatures

of a majority of the arbitrators in arbitral proceedings with more than one
arbitrator’.42 Yugoslavia’s comment included a proposal to amend the
draft article ‘so as to make clear that it refers to the role of the presiding
arbitrator as regards the procedure’.43 The reason presented was that the
then current ‘formulation of the second sentence of article 29 might
imply that the presiding arbitrator is empowered to make the decision
on the merits of the case’.44
On the issue of participation by the arbitrators in the deliberations, Italy
proposed that decisions should be allowed to be made by correspondence
or that, at least, the present arbitrators were allowed to ‘proceed with the
deliberations’45 when one of the arbitrators failed ‘to come to the agreed
place [of the deliberations] without just cause’.46 Finally, the Republic of
Korea suggested a redraft of the second sentence of article 29 so as to read
that: ‘Except as otherwise stipulated in an arbitration agreement, in case
the ayes and nays are equal, where there are several arbitrators, the
arbitration agreement in question shall forfeit its effect.’47
In preparation for the final deliberations on the draft of article 29, the
Secretary-General circulated a report containing an analytical commen-
tary on the proposed text of the Model Law. The submitted text was as
follows:
majority of all its members. However, the parties or the arbitral tribunal
may authorize a presiding arbitrator to decide questions of procedure.48
The commentary included in the report stressed three important princi-

ples. First, that article 29 is non-mandatory, therefore allowing the parties
to ‘lay down different requirements. For example, they may authorize a
presiding arbitrator, if no majority can be reached, to cast the decisive
vote, or to decide as if he were a sole arbitrator.’49
42
Ibid.
43
Ibid., para. 2.
44
Ibid.
45
Ibid., 43, para. 3.
46
Ibid.
47
Ibid., para. 2.
48
Report of the Secretary-General, Analytical Commentary on Draft Text of a Model Law
on International Commercial Arbitration, UN Doc. A/CN.9/264 (25 March 1985), 64,
art. 29.
49
Ibid., para. 3.

764 a rticle 29: decisi on-mak ing b y p anel
Another possibility regarding quantum decisions would be for the parties

to ‘provide a formula according to which the decisive amount would be
calculated on the basis of the different votes of the arbitrators’.50 Second, that
article 29 adopts the majority principle, which ‘is more conducive to reaching
the necessary decisions and the final settlement of the dispute’,51 while
ensuring that all arbitrators ‘at least have the opportunity to’52 take part in
the deliberations. Finally, article 29 creates ‘a possible exception for questions
of procedure, which, for the sake of expediency and efficiency, the parties or
the arbitral tribunal may authorize a presiding arbitrator to decide’.53
With the draft in hand, a meeting was called to order on 17 June 1985
so the Working Group members could hold a final deliberation prior to
approving the text of article 29. Representatives from at least ten States
(including one acting as observer) and one international organisation
made comments and suggestions on the draft provision. The discussion
began with a comment from the Australian delegate regarding the pos-
sibility of the arbitrators taking decisions ‘by telephone, telex or similar
means of communication’.54 A more critical comment referred to
whether the parties or the tribunal would be ‘empowered to authorize
the presiding arbitrator to settle procedural questions’.55 Given that, at
least in common law countries, ‘the distinction between procedural and
substantive matters was not always clear’,56 the Australian delegate sug-
gested that the text of article 29 be amended to reflect that only the parties
were empowered to grant such authorisation. Therefore, Australia pro-
posed that the words ‘of the arbitral tribunal’ be deleted, ‘but if that did
not prove acceptable, it would prefer to retain the text as it stood’.57
The representative of Austria considered that ‘it was already implied in
the first sentence of article 29 that the arbitral tribunal was empowered to
authorize one of its members to take decisions’.58 A related issue was the
50
Ibid.
51
Ibid., para. 2.
52
Ibid.
53
Ibid., para. 1.
54
Comment by Mr Griffith (Australia), Summary Records for Meetings on the UNCITRAL
Model Law on International Commercial Arbitration, 327th Meeting, 17 June 1985,
55
Ibid., para. 41.
56
Ibid.
57
Ibid.
58
Comment by Mr Melis (Austria), Summary Records for Meetings on the UNCITRAL
Model Law on International Commercial Arbitration, 327th Meeting, 17 June 1985,

2 . m o r e th a n o ne a rb i tr a t o r 765
possible refusal of the presiding arbitrator to take decisions alone despite

so having been authorised. The Austrian delegate proposed, as a solution,
that the authorisation should emanate from ‘a unanimous decision of the
arbitral tribunal’.59 The representatives of the United States, France and
the United Kingdom opined that article 29 should be retained as drafted,
inter alia, because an amendment would make the Model Law ‘incon-
sistent with the UNCITRAL Arbitration Rules and thus create a serious
risk of conflict where the parties had agreed to use those rules’.60
On a different issue, the Indian representative expressed concern for
the lack of definition regarding the role and function of the presiding
arbitrator, and the delegate of the United States, along with the obser-
ver for Finland, raised the point of whether the presiding arbitrator
authorised to act alone should be treated as if he were a sole arbitrator.
At the end of the session, the Chairman concluded by affirming that:
‘the Commission agreed to approve article 29 as drafted, subject to the
proposed amendments’.61 The final text was adopted by the
Commission on 21 June 1985.
2. More than One Arbitrator

The opening sentence of article 29 limits its scope of application to cases
where the decision-making has been entrusted to a panel or collective
body (‘more than one arbitrator’) instead of a sole arbitrator. Many
international arbitration rules contain provisions indicating ‘three’ as
the default number of arbitrators.62 The basic policy choice of the
Model Law, however, is to leave the parties free to determine how
59
Ibid.
60
Comment by Mr Holtzmann (United States of America), Summary Records for Meetings
on the UNCITRAL Model Law on International Commercial Arbitration, 327th Meeting,
17 June 1985, (1985) XVI UNCITRAL YB 489, para. 53.
61
Comment by Mr Loewe (Chairman from Austria), Summary Records for Meetings on the
UNCITRAL Model Law on International Commercial Arbitration, 327th Meeting, 17
June 1985, (1985) XVI UNCITRAL YB 489, para. 59.
62
See e.g. Chinese International Economic and Trade Arbitration Centre, Arbitration
Rules, arts 34 and 49; Cairo Regional Center for International Commercial Arbitration,
art. 31(1); Australian Centre for International Commercial Arbitration, Arbitration
Rules, art. 37; Centro de Arbitraje de Mexico, art. 32.1. Although it is technically possible,
under the rules that simply state that the arbitral tribunal shall comprise an odd number
of arbitrators (e.g. Code of Civil Procedure of the Former Yugoslavia, art. 472/2); that the
parties appoint five, seven or more arbitrators ‘to appoint more than three arbitrators is
extremely rare’. A. Uzelac, ‘Number or Arbitrators and Decisions of Arbitral Tribunals’
(2007) 23 J. LCIA 573, 575.

766 ar t i cl e 29: deci s i o n-mak ing by p anel
many arbitrators should compose the tribunal. As can be inferred from

the travaux préparatoires, the Model Law did not impose a specific
number of arbitrators so as to avoid clashing with the laws of the
adopting States and therefore facilitate the integration into national
legal systems. Another important reason was to give the parties the
possibility of deciding how many arbitrators they think suffice for their
particular needs on the basis of the characteristics of their dispute.
Whereas three arbitrators is the most common arrangement of arbitral
tribunals, it is neither the only possible configuration nor necessarily the
best for all types of disputes.
Some national laws ‘mitigate’ party autonomy by specifying that, while
the parties can agree on an even number of arbitrators, the parties or the
arbitrators are at the same time allowed to appoint another arbitrator or
an umpire to prevent any potential deadlock in the decision-making
process.63 In yet other legal systems, the parties are prevented from
agreeing on an arbitral tribunal being formed by an even number of
members.64 Nonetheless, courts from some of those jurisdictions have
also held that ‘the validity of an arbitration agreement does not depend
on the number of arbitrators specified therein’,65 and therefore ‘an
arbitration agreement specifying an even number of arbitrators cannot
be a ground to render the arbitration agreement invalid’.66 A related issue
pertains to the situation where the arbitration agreement refers to a plural
number of arbitrators, without specifying how many are needed to form
the tribunal; and also, the default provision of the applicable law or of the
parties’ chosen rules call for a sole arbitrator.67 In such case, if the parties
fail to agree on a specific number of arbitrators, a possible solution may
consist in applying the default provision of the selected rules or, sub-
sidiarily, of the lex arbitri.68
63
See e.g. Arbitration Ordinance, Amended ER 2 of 2014, art. 30 (Hong Kong); Arbitration
Act of 1996, s. 15(2) (England); see also commentary on art. 10 in this volume.
64
See e.g. The Arbitration and Conciliation Act, 1996, Chapter III, Composition of the
Tribunal, s. 10(1) (India).
65
MMTC Ltd v. Sterlite Industries (India) Ltd (1997) AIHC 605, decided by the Supreme
Court of India.
66
Ibid.
67
See e.g. English Arbitration Act, 1996, s. 15(3); see also International Arbitration Act
(Cap. 143A), s. 9 (Singapore). Some institutional rules have taken a similar approach. See
e.g. International Chamber of Commerce, Arbitration Rules, art. 12(2).
68
See Itochu Corp. v. Johann MK Blumenthal GmbH & Co. Kg and Another [2012] EWCA
Civ. 996.

3 . a n y de c i s i o n , b y a ma j o r i t y 767
3. Any Decision, by a Majority

When an arbitrator has been chosen and has accepted her mandate, she is
expected to participate in the proceedings and contribute to the making
of the decisions relevant to them. Hence, if the tribunal is composed of
more than one member, all of them should contribute to the arbitration,
and every decision made during the proceedings is deemed to emanate
from all of the arbitrators, unless a dissent has been expressed. One of the
reasons why the parties choose a panel instead of a sole arbitrator, after
all, is to benefit from their collective wisdom. Notwithstanding, the active
participation of all members of the arbitral tribunal in the deliberations
does not guarantee that the chosen arbitrators will agree on everything,
or that their decisions will always be unanimous.
Whereas attaining unanimity might be highly desired and perhaps
common in some areas of international arbitration,69 it is not realistic in
every case. Furthermore, striving for a unanimous decision might not even
be practical; unanimity might require a significant time and effort to attain,
which translates into lengthier proceedings that prevent parties from
obtaining a timely resolution of their dispute. These and other reasons
support the idea of adopting a majority rule.70 A similar approach is taken
by some of the leading sets of arbitration rules, such as the International
Chamber of Commerce’s (ICC) Rules of Arbitration,71 the American
Arbitration Association’s (AAA) Commercial Arbitration Rules,72 the
International Centre for Dispute Resolution (ICDR) International
69
There are different views as to how frequent dissents are in investor–State arbitration. See
e.g. A. Strezhnev, ‘You Only Dissent Once: Re-appointment and Legal Practices in
Investment Arbitration, Research Note’, 8 November 2015, Harvard University,
Department of Government (explaining the high frequency (80 per cent) of unanimous
opinions in international investment arbitration, despite the highly contentious nature of
the disputes). But see A. J. van den Berg, ‘Dissenting Opinions by Party-Appointed
Arbitrators in Investment Arbitration’ in M. Arsanjani, J. Cogan, R. Sloane and S.
Wiessner (eds), Looking to the Future: Essays on International Law in Honor of W.
Michael Reisman (Brill, 2010).
70
It is important to note, however, that some States, such as Austria, go even further than to
simply say that the arbitrators must decide by majority and establish how that majority
should be calculated. See ZPO as amended in 2013, s. 604 (Austria). Other laws, such as
Peru’s, give effect to the failure of an arbitrator to vote by considering that the non-voting
arbitrator voted with the majority. See Legislative Decree No. 1071 of 2008, art. 52(2)
(Peru).
71
ICC Rules of Arbitration (2017), art. 32(1) (‘Making of the Award: (1) when the arbitral
tribunal is composed of more than one arbitrator, an award is made by a majority
decision’).
72
AAA Commercial Arbitration Rules (2013), rule 44.

Arbitration Rules,73 the Arbitration Rules of the London Court of

International Arbitration (LCIA)74 and the UNCITRAL Arbitration
Rules.75 A number of national arbitration laws also adopt the majority
rule,76 although some require unanimity for consent awards (i.e. an award
recording a settlement agreement),77 or an obligation to document the
reasons in case the ‘minority’ arbitrator has refused to sign the award.78
The refusal of an arbitrator to participate in the proceedings or sign
the award79 is usually regulated by national laws and institutional
arbitration rules, typically situated in the provisions governing the
replacement of arbitrators. Such replacement might be problematic if
it occurs late in the proceedings. To address this problem, some institu-
tional rules empower the remaining arbitrators (who are, after all, the
majority of the tribunal) to decide whether to continue the arbitration
and ‘to make any decision, ruling or award’80 after having taken into
account ‘the state of the arbitration, the reason, if any, expressed by the
third arbitrator for such nonparticipation, and such other matters as
they consider appropriate in the circumstances of the case’.81 The
continuation of proceedings through what is known as a truncated
tribunal is studied in more detail in the analysis of article 10 of the
Model Law in this volume.
A final comment regarding this provision is that the majority rule
approach contained in the first part of article 29 resolves most but not all
problems regarding the decision-making process of arbitral tribunals.
One issue left unsettled is the case where the arbitrators fail to reach any
kind of majority. This might happen, for instance, if three arbitrators
have three incompatible and mutually exclusive views on matters of
quantum.82 The Model Law does not address this situation, but some
73
ICDR International Arbitration Rules (2014), art. 29.
74
LCIA Arbitration Rules (2014), arts 26.5. and 26.6.
75
UNCITRAL Arbitration Rules (2013), art. 33.
76
See e.g. Australia, Austria, Belgium, Canada, Chile, Costa Rica, Hong Kong, Egypt,
Germany, India, Japan, Mexico, New Zealand, Nicaragua, Peru, Russian Federation,
Singapore, Spain, Turkey, United Kingdom and France.
77
Royal Decree No. M/46, 12 Rajab 1403, art. 16 (25 April 1983) (Kingdom of Saudi
Arabia).
78
Ley de Arbitraje Comercial, art. 29 (1998) (Venezuela).
79
This is a related issue, regulated by arts 14 and 15 of the Model Law.
80
Arbitration Rules of the American Arbitration Association (2014), art. 15(3).
81
Ibid.
82
Ibid.

4. unless otherwise agreed by the p arties 769
institutional rules resolve this problem by granting the presiding arbi-

trator the power to cast the deciding vote.83
4. Unless Otherwise Agreed by the Parties

The principle of party autonomy is present in article 29 through a
provision that allows the parties to modify the default majority rule and
adopt instead a mechanism that best serves their interests. To this end,
the parties could, for example, ‘provide a formula according to which the
decisive amount [of damages] would be calculated on the basis of the
different votes of the arbitrators’.84 The mandatory provisions ‘of the law
applicable to the arbitration from which the parties cannot derogate’85
constitute the main limit to the parties’ freedom to decide how the
decisions of the arbitral tribunal should be made. There are national
laws that, for example, require an odd number of arbitrators.86 If such a
provision is applicable, the parties’ agreement for an even number of
arbitrators would be overridden and ‘the mandatory law would prevail
leading to one of two possible outcomes: either to a change in the number
initially selected, or to the invalidation of the whole agreement’.87 In
order to offer a solution geared to ‘save’ the arbitral proceedings from
such irregularity, some national laws contain a provision that instructs
the two (or even number of) selected arbitrators to appoint an additional
one as chairman, presiding arbitrator or umpire,88 so as to bring the
tribunal to conform with the mandatory provision. Other States opt
instead for granting the power to appoint the third or presiding arbitrator
to the judicial authority.89 The parties could also submit themselves to
institutional rules that, in turn, ‘exclude any choice of parties in the
selection of the number of arbitrators (as, e.g. under some domain-
name dispute resolution mechanisms, a sole arbitrator is provided for)’.90
Another possible agreement by the parties regarding decision-making
by the arbitral tribunal – obviously, with the exception of a mandatory
provision to the contrary – would be if the parties allowed the arbitral
83
See e.g. ICC Rules of Arbitration (2017), art. 32; LCIA Arbitration Rules, art. 26.5; WIPO
Arbitration Rules, art. 63.
84
UN Doc. A/CN.9/264 (n. 48), 64, para. 3.
85
Uzelac (n. 62).
86
See commentary on art. 10 of the Model Law in this volume.
87
Uzelac (n. 62), p. 576.
88
Ibid.
89
See e.g. Italian Code of Civil Procedure, art. 809.
90
See Uzelac (n. 62), pp. 577, 576.

tribunal ‘to have either a unanimous decision or no decision at all’.91 By

concluding such an agreement, the parties implicitly accept the risk of a
deadlock, with the tribunal being unable to issue an award until unani-
mity has been reached.
Finally, as one can gather from the last sentence of article 29 (‘if so
authorized by the parties’), the recognition of the principle of party
autonomy is not limited to the agreement on the number of arbitrators
and the majority principle for decision-making purposes. The aforemen-
tioned last sentence also gives the parties freedom to authorise the
presiding arbitrator to decide questions of procedure. Despite the use
of different words to convey the power of the parties to decide (i.e.
‘agreed by the parties’ in the first sentence, and ‘authorized by the parties’
in the last sentence), both provisions of article 29 have the same effect and
pursue the same objective: to recognise the consensual nature of inter-
national commercial arbitration and give the utmost deference to the
parties regarding the course of the proceedings. One small difference,
however, may be pointed out between the two. The second provision
(‘authorized by the parties’) involves an express authorisation to a spe-
cific recipient, the presiding arbitrator; the first provision (‘agreed by the
parties’), instead, does not target anyone explicitly, although some could
argue that it is directed towards the arbitral tribunal.
5. Questions of Procedure May Be Decided by the Presiding

Arbitrator
The authorisation by the parties to the presiding arbitrator is not an
unlimited or generic conferral of power, but instead a very specific form
of authority limited to questions of procedure. Even though the Model
Law does not define what are questions of procedure, ‘these include the
determination of oral hearings, the setting of time limits, the decision
about the procedural language(s) and the appointment of experts’.92 On
the other hand, ‘decisions regarding competence-competence of the
arbitral tribunal … the order of interim measures … and the determina-
tion of the place of arbitration … do not belong to the questions of
procedure’.93 What defines one or the other varies across national legal
systems and – as mentioned during the travaux – ‘the distinction
91
Uzelac (n. 62), p. 577.
92
F.-B. Weigand (ed.), Practitioner’s Handbook on International Commercial Arbitration,
2nd edn (Oxford University Press, 2010), p. 1085.
93
Ibid.

5 . q u e s t i o n s of p r o c e d u r e 771
between procedural and substantive matters [is] not always clear’.94 In

any case, the aim of article 29 in authorising the presiding arbitrator to
rule alone on questions of procedure is to promote efficiency. Moreover,
‘as procedural issues generally do not have an imminent effect on the
outcome of the case, the transfer of powers to the presiding arbitrator
seems quite natural’.95 Article 29 does not specify which form – award or
order – the decisions on questions of procedure should adopt.
Notwithstanding, the notion of award is generally associated with deci-
sions dealing with the merits of the dispute; accordingly, in the practice of
international arbitration, questions of procedure are typically resolved
through procedural orders.96
Another interesting issue is that article 29 ‘neither defines the term
“presiding arbitrator” nor the manner of his appointment’.97 The general
notion, however, is that, in a three-member arbitral tribunal, each party
appoints an arbitrator; the third arbitrator is appointed by the two parties
jointly, by the two arbitrators or by an appointing authority. Ordinarily,
this third arbitrator will take the role of president or chairperson of the
tribunal.98 In any case, one should look at the applicable arbitration rules
or relevant national laws regarding who the presiding arbitration should
be. Finally, the authorisation issued to the presiding arbitrator has to
either emanate from the parties or from ‘all members of the arbitral
tribunal’, which essentially means that every arbitrator – and not just
the majority of them – would need to give consent to grant such power.
In practice, it is frequent for the presiding arbitrator to be empowered to
make procedural orders, especially to regulate the high number of
detailed issues that typically arise during the course of an arbitration.
94
Ibid.
95
Uzelac (n. 62), p. 584.
96
On the other hand, there have been cases where the arbitrators ‘have dealt with the merits
of the parties’ presentations and have put an end to the disputed issue by deciding, in a
definitive manner, that part of the dispute in their reasoned decision’, although they have
called their decision a ‘procedural order’. See Société Braspetro Oil Services (Brasoil) v.
GMRA (1999) Rev. Arb. 834, 836 et. seq., French Court of Appeal of Paris.
97
Weigand (n. 92), p. 1085.
98
The same holds true for investment arbitration. See C. Giorgetti, ‘The Arbitral Tribunal:
Selection and Replacement of Arbitrators’ in C. Giorgetti (ed.), Litigating International
Investment Disputes: A Practitioner’s Guide (Brill, 2014), p. 143.

Article 30
Settlement
m i c h a e l po l k i n g h o r n e a n d p o o r v i s a t i j a*
(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
provisions 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.
1. Introduction
Article 30 of the Model Law addresses how to proceed when the parties in
dispute arrive at a settlement during arbitration proceedings. It also per-
forms the significant function of conferring the same status as that of an
award on the merits of the dispute, where there is an award on agreed
terms. It thereby fulfils an important practical purpose, as it encourages
cooperation, particularly, where parties sharing a long-standing commer-
cial or contractual relationship are looking to preserve that relationship.1
Another advantage of the provision is that it helps to determine the
end of the proceedings and, hence, provides clarity in matters such as
continuation and running of limitation periods or the possibility of
commencing separate proceedings.2
*
The authors would like to acknowledge the research assistance of Yutty Ramen, Associate,
White & Case LLP, Paris, for collating the case law relied upon in the chapter and for
translating some of the decisions and authorities from the French language.
1
M. Roth, ‘UNCITRAL Model Law on International Commercial Arbitration’ in F. B.
Weigand (ed.), Practitioner’s Handbook on International Commercial Arbitration
(Oxford University Press, 2009), para. 14.475.
2
M. J. Moser and C. Bao, ‘11 Awards, Decisions, and Orders of the Arbitral Tribunal
(Articles 32–40)’ in M. J. Moser and C. Bao (eds), A Guide to the HKIAC Arbitration Rules
(Oxford University Press, 2017), paras 11.67–11.68.
772

1. introduction 773
An oft-quoted adage is that consent is the cornerstone of international

arbitration.3 Article 30 of the Model Law embodies that same spirit,
inasmuch as it acknowledges that parties have the autonomy to settle
their dispute at any point in time during the arbitration proceedings and
the self-evident fact that the commencement of arbitration does not take
away such autonomy. In fact, it goes a step further and gives the parties
the choice to record their agreement in the form of an arbitral award –
offering the same sanctity and status that are conferred on any other kind
of arbitral award.
When parties are successful in reaching an agreement while arbitration
proceedings are pending, they thus have the choice of embodying their
agreement into a contract or in the form of an arbitral award.4 When
parties choose to enshrine their agreement in the form of an arbitral
award, such an award is known as a ‘consent award’.5 While this choice
has few substantive repercussions in jurisdictions where settlement
agreements themselves have a res judicata effect (e.g. in France),6 it can
have a significant impact in others.
Statistics concerning the prevalence of consent awards are not readily
available. A 2008 study estimated that about 7 per cent of cases are
settled with an award by consent.7 This result may be considered
‘intriguing’8 in terms of its scarcity, considering that a much larger
percentage of disputes than that actually end in settlements.9 While
more recent overall statistics are not available, the ICC Dispute
Resolution statistics for 2016 provide similar figures. A total of 479
awards were approved by the ICC Court during 2016 and they included
3
A. M. Steingruber, ‘The Mutable and Evolving Concept of “Consent” in International
Arbitration – Comparing Rules, Laws, Treaties and Types of Arbitration for a Better
Understanding of the Concept of “Consent”’ (2012) 2 Oxford U. Comp. L. Forum, https://
ouclf.iuscomp.org/the-mutable-and-evolving-concept-of-consent-in-international-arbi
tration-comparing-rules-laws-treaties-and-types-of-arbitration-for-a-better-understand
ing-of-the-concept-of/.
4
E. Gaillard, ‘The Arbitral Award’ in E. Gaillard and J. Savage (eds), Fouchard Gaillard
Goldman on International Commercial Arbitration (Kluwer, 1999), pp. 735, 744–775.
5
Ibid., para. 1364.
6
French Civil Code, art. 2052(1).
7
Queen Mary University of London and PricewaterhouseCoopers, ‘Executive Summary’ in
‘International Arbitration: Corporate Attitude and Practices’ (2008), www.pwc.co.uk/
assets/pdf/pwc-international-arbitration-2008.pdf.
8
L. Mistelis, ‘The Settlement-Enforcement Dynamic in International Arbitration’ (2009)
19 Am. Rev. Intl Arb. 377, 387.
9
According to the QMUL/PwC survey (n. 7), 25 per cent of cases are settled before an
arbitral award is rendered.

774 a r tic l e 30 : s et t l eme n t
thirty-four – or some 7.1 per cent – awards by consent.10 And going

back just a few years, in 2013, an author indicated that, while almost half
of all ICC arbitrations are withdrawn before a final award is rendered,
less than 10 per cent of all awards approved by the ICC Court were
awards by consent.11
There may be several reasons for this apparent reticence.
Anecdotal evidence suggests that arbitrators are not always comfor-
table rendering consent awards. Additionally, in the authors’ experi-
ence, parties are often loathe to spend more money on a settlement
should they feel their agreement is clear enough (more on this
below).12
Parties, on the other hand, may (and in the authors’ experience often
do) choose the route of a consent award, in order to take advantage of
the benefits conferred on an arbitral award, that is, the recognition and
enforcement of an award across several jurisdictions (whereas a ‘mere’
settlement agreement would require an action on that agreement
should one party not comply).13 Some authors also note that the pre-
sence of the arbitral tribunal may help to avoid enforceability issues at a
later stage, since arbitrators may offer helpful review and suggestions on
the form and content of the consent award.14 This is especially true
where parties have an oral agreement or where they have agreed in
general terms, but have not thought through the implications of such an
agreement.15 However, caution must be exercised by the tribunal to not
overstep, especially when the parties have not yet finalised their settle-
ment terms.16
Others state that a consent award may offer advantages to representa-
tives by making a settlement more palatable to their constituents (such as
10
2016 ICC Dispute Resolution Statistics.
11
F. Lenggenhager, ‘Chapter 4, Part II: Commentary on the ICC Rules, Article 32 [Award by
consent]’ in M. Arroyo (ed.), Arbitration in Switzerland: The Practitioner’s Guide
(Kluwer, 2013). The author states that consent awards composed the following percen-
tages of the total number of ICC awards from 2004: 12.23 per cent (2013); 9.09 per cent
(2012); 11.81 per cent (2011); 14.43 per cent (2010); 14.71 per cent (2009); 14.17 per cent
(2008); 13.45 per cent (2007); 17.88 per cent (2006); 15.86 per cent (2005); 14.09 per cent
(2004).
12
Mistelis (n. 8), p. 387.
13
Gaillard (n. 4), para. 1364.
14
M. F. Gusy and J. M. Hosking, A Guide to the ICDR International Arbitration Rules
(Oxford University Press, 2011), para. 29.04.
15
D. D. Caron and L. M. Caplan, The UNCITRAL Arbitration Rules: A Commentary
(Oxford University Press, 2013), pp. 780, 783.
16
Gusy and Hosking (n. 14), para. 29.04.

1. introduction 775
higher management, political authorities or the public)17 and help States

or State agencies combat allegations of political motivation, by providing
a definite ‘result’ of arbitral proceedings, as well as an implicit stamp of
approval by the arbitrators to the settlement arrived at by the parties.18 A
plausible drawback of rendering a settlement as a consent award is, of
course, the greater likelihood of the settlement becoming public, as
compared to a mere agreement.19
Although rare, sometimes parties may prefer a mere settlement agreement
to a consent award, in cases where they foresee no practical need to enforce a
settlement – for example, where it contains only declaratory statements,
where the award is self-executing, where the security of the award is not
considered important by the parties,20 where the increase in administrative
costs appurtenant to an award is not deemed by them to be worth the value
addition,21 and, occasionally, for reasons of preserving confidentiality.22
Where the parties enter into a settlement agreement, it is obviously
advisable to inform the arbitral tribunal of their decision as soon as
practically possible. This has implications beyond merely extending
courtesy to the tribunal as parties could or would then stop incurring
fees and expenses and it may lead to a refund of the advance payments
made, particularly, where the settlement has been entered into at an early
stage of the proceedings.23
While most legal regimes and institutional rules explicitly grant the
tribunal the authority to issue consent awards (as exemplified in article 30
of the Model Law), there is no consensus on whether this is only a power
granted to the tribunal or, rather, an obligation that the tribunal has towards
the parties.24 The rules often provide that the tribunal may render such an
17
UNCTAD, Dispute Settlement: International Commercial Arbitration – 5.6 Making the
Award and Termination of Proceedings, UN Doc. UNCTAD/EDM/Misc.232/Add.41
(2005), para. 2.4.
18
International Arbitration (Oxford University Press, 2015), p. 501.
19
UN Doc. UNCTAD/EDM/Misc.232/Add.41 (n. 17), 11.
20
J. Paulsson and G. Petrochilos, ‘UNCITRAL Arbitration Rules, Section IV, Article 36
[Settlement or Other Grounds for Termination]’ in UNCITRAL Arbitration (Kluwer,
2017), pp. 323, 325–336.
21
Lenggenhager (n. 11), para. 7, pp. 852–853.
22
G. Marchisio, ‘Chapter 6: Consent Awards’ in The Notion of Award in International
Commercial Arbitration: A Comparative Analysis of French Law, English Law and the
UNCITRAL Model Law (Kluwer, 2017), pp. 109, 112.
23
Redfern and Hunter (n. 18), para. 9.38.
24
P. Peters and C. Koller, ‘The Award and the Courts – the Notion of Arbitral Award: An
Attempt to Overcome a Babylonian Confusion’ (2010) Austrian YB Intl Arb. J. 137. See

award and there may be instances where the tribunal may refuse to render a
consent award. However, national laws sometimes cast a mandatory obliga-
tion upon the arbitral tribunal to accept the terms of the parties’ settlement.25
The contours of this debate shall be examined in the following sections.
On a perusal of the travaux préparatoires, it appears that article 30 of the
Model Law was not extensively debated.26 This has been attributed partly to
the detailed discussions that had already taken place in the process of
finalising the 1976 UNCITRAL Arbitration Rules, which also envisaged a
provision in article 34 dealing with an award on agreed terms.27 There was
also a proposal to consider settlement agreements enforceable by themselves,
although this was eventually dropped, in light of the realisation that national
legislators would likely adopt a variety of solutions, thus undercutting any
intended attempt at harmonisation.28 This suggestion was thus abandoned
in favour of the provision finalised as article 30(2) of the Model Law, since it
was generally expected that national courts would nevertheless permit
enforcement of consent awards under the New York Convention.29
At the very outset, it was considered whether a consent award should
be treated on a par with any other ‘normal’ award.30 Initially, the issues
concerning settlement and termination of the arbitral proceedings had
been grouped together for consideration, although these were later con-
sidered separately.31 Nor do the travaux préparatoires discuss how the
settlement should be arrived at by the parties, thus allowing for some
measure of flexibility.32
There were two major issues that piqued debate in the process of
finalising this provision:33
also D. Davydenko and Y. Kryvoi, ‘Enforcement of Settlement Agreements Reached in

Arbitration and Mediation’, Kluwer Arbitration Blog (25 November 2015), http://arbi
trationblog.kluwerarbitration.com/2015/11/25/enforcement-of-settlement-agreements-
reached-in-arbitration-and-mediation/.
25
Peters and Koller, ibid., p. 163.
26
27
Ibid.
28
Ibid., p. 114.
29
Ibid.
30
Commercial Arbitration: Legislative History and Commentary (Kluwer, 1989), pp. 822, 825.
31
Ibid., p. 822.
32
33

2. trav aux p réparatoires 777
(1) whether one or both parties should request the consent award; and
(2) whether the arbitral tribunal should be vested with discretion to
accept or reject the award.
2.1 Who Should Request the Consent Award?

The first draft of article 30 included two alternatives, one requiring a
request from both of the parties (along the lines of article 34(1) of
the UNCITRAL Rules on International Arbitration, 1976) and the
other permitting only one of the parties to request a consent award.34
Arguments were put forth for both alternatives. Those suggesting
that the request of one of the parties sufficed, pointed towards the
fact that only the party that is to receive payment would be interested
in ensuring that the parties’ agreement was converted into a consent
award enforceable under the New York Convention.35 Those arguing
for both parties to request for such an award relied upon the poten-
tial danger of injustice, since a settlement may be ambiguous and
subject to conditions that might not be readily apparent to an arbitral
tribunal.36
It was suggested by Canada that only one party be required to request
the consent award.37 Canada, therefore, suggested that the words
‘requested by the parties’ should be replaced by ‘requested by one of
the parties’. The Italian delegate, on the other hand, was in favour of
retaining the original language, noting that if the Canadian proposal were
adopted, it could cause confusion as to whether a further agreement was
then required to transform the settlement into an award.38 The Chairman
34
Article 33 (which became art. 30 of the final text) provided that: ‘Alternative A: (1) If, during
the arbitration proceedings, the parties agree on a settlement of the dispute, the arbitral
tribunal shall either issue an order for the termination of the arbitration proceedings or, if
requested by both parties and accepted by the tribunal, record the settlement in the form of an
arbitral award on agreed terms.
Alternative B: (1) If, during the arbitration proceedings, the parties agree on a settle-
ment of the dispute, the arbitral tribunal shall, if requested by [both parties] [a party,
unless the arbitration agreement requires a request by both parties], record the settlement
in the form of an arbitral award on agreed terms, unless the arbitral tribunal has [good
and substantial] [compelling] reasons, in particular grounds of international public
policy, not to follow that request.’ See Holtzmann and Neuhaus (n. 30), pp. 826–827.
35
36
Ibid., p. 823.
37
UNCITRAL, Summary Records of the 328th Meeting, [1985] 5 YB Intl L. Comm’n 175,
UN Doc. A/CN.9/246, Annex; A/CN.9/263 and Add.I-2, A/CN.9/264 (1985).
38
Ibid., para. 19.

778 ar tic l e 30 : sett lement
decided to retain the provision as it was.39 However, it was first referred

to the drafting committee to discuss two changes suggested by the Indian
representative.40
Ultimately, a half-way solution was adopted – the present article 30
retains language requiring a request by both parties, but the Commission
agreed that the actual request could come from one, as long as both
parties intended it to be that way.41
2.2 Should the Arbitral Tribunal Be Vested with Discretion to Refuse

the Consent Award?
It was considered whether the tribunal should have any discretion to
refuse to record a settlement in the form of a consent award and, if so,
how the exercise of such discretion was to be circumscribed. The termi-
nology of the UNCITRAL Rules on International Arbitration, 1976 was
ultimately adopted even though an alternative (providing the criteria for
the exercise of the tribunal’s discretion, i.e. for ‘good and substantial
reasons’, ‘compelling reasons’, ‘in particular grounds of international
public policy’) was available.42
Australia proposed that the arbitral tribunal not have the discretion to
refuse the making of an award on agreed terms.43 Accordingly, it proposed
the deletion of the words ‘and not objected to by the arbitral tribunal’.
France,44 Mexico,45 Iraq46 and Cuba47 supported the Australian proposal.
The delegates from the United States,48 Canada49 and Finland50 opposed
the Australian proposal and argued for the retention of the tribunal’s
discretion. The Hungarian delegate argued for a distinction to be made
between the arbitral tribunal’s duty to terminate the proceedings when
39
Ibid., para. 20.
40
The Indian representative had suggested that art. 30(1) be reworded to read ‘record the
settlement and the award on the agreed terms’ (UN Doc. A/CN.9/246 (n. 37), para. 1) and
if his proposal was accepted, then art. 30(2) be amended to remove the redundancy in art.
30(2) and remove the words ‘and shall state that it is an award’. Ibid., paras 22–23.
41
Holtzmann and Neuhaus (n. 30), pp. 833, 835.
42
Ibid., p. 823.
43
UN Doc. A/CN.9/246 (n. 37), para. 4.
44
Ibid., para. 11.
45
Ibid., para. 12.
46
Ibid., para. 8.
47
Ibid., para. 10.
48
Ibid., paras 6, 13–14.
49
Ibid., para. 9.
50
Ibid., para. 7.

2. trav aux prép a r a t o i r e s 779
parties reached a settlement, on the one hand, and the duty to sign a consent
award on the other.51 While the duty to terminate the proceedings was
uncontroversial, Hungary argued for the arbitral tribunal to be free to
disagree with a settlement under certain conditions.52 Germany agreed
with the Hungarian delegate.53
Given the opposition, Australia withdrew its proposal and the
Chairman of the Working Group noted that the question of making an
award should be left to the discretion of the arbitral tribunal.54
There were differences of opinion as to whether some criteria
should have been included to limit such discretion. During the
discussions for the finalisation of the text, the Working Group
noted that the discretion may be exercised in a negative fashion in
cases where public order was implicated, there was suspected fraud,
unfair settlement terms, violation of antitrust laws, furtherance of a
conspiracy or where the award would be contrary to the mandatory
applicable law provisions.55
While no criteria were ultimately introduced into the actual text of
the provision, certain countries have included such criteria in their
implementing legislation. For example, Belgium’s statute expressly
refers to public policy.56 Similar to Belgium, Germany limits the dis-
cretion available to an arbitral tribunal to refuse to record the parties’
settlement as a consent award under article 30 of the Model Law.
German legislators considered this discretion to be ‘too extensive and
too vague’.57 Under German law, the tribunal only enjoys this discre-
tion in case the settlement would contravene public policy.58 Since the
discussions in the travaux préparatoires of the Model Law also revolved
around public policy considerations, commentators observe that, in
51
Ibid., para. 15.
52
Ibid.
53
Ibid., para. 16.
54
Ibid., para. 18.
55
56
M. Piers, ‘Commentary of Part VI of the Belgian Judicial Code, Chapter VI: Article 1712’
in N. Bassiri and M. Draye (eds), Arbitration in Belgium (Kluwer, 2016), pp. 415, 417–418.
This is understood as the ‘public policy that is found in the applicable procedural and
substantive laws’.
57
F. von Schlabrendorff and A. Sessler, ‘Part II: Commentary on the German Arbitration
Law (10th Book of the German Code of Civil Procedure), Chapter VI: Making of the
Award and Termination of the Proceedings, § 1053 – Settlement’ in K.-H. Bockstiegel, S.
Kroll and P. Nacimiento (eds), Arbitration in Germany: The Model Law in Practice
(Kluwer, 2015), pp. 325, 326.
58
Ibid., p. 326.

780 a r t i c l e 3 0: s et t l eme n t
practical terms, this deviation from the Model Law is not of much
significance.59
3. Paragraph 1
3.1 During Arbitral Proceedings
Under the express terminology utilised in article 30 of the Model Law,
parties should arrive at the settlement in the course of the arbitration
proceedings (i.e. once arbitration has been commenced). If the parties
have arrived at a settlement prior to the initiation of the arbitral proceed-
ings, there is, of course, no longer a dispute to be referred to arbitration.60
But when does an arbitration commence?
For determining when arbitration proceedings commence, a useful
point of reference may be found in article 21 of the Model Law, which
provides that:
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.61
Under the ICC Rules, certain authors note that a consent award may be
rendered before the terms of reference have been signed, and the ICC
Court has permitted foregoing the terms of reference if the parties settle
the dispute and waive the requirement for the same.62 There is also a
precedent under the Cairo Regional Center for International
Commercial Arbitration Rules, where the tribunal agreed to reopen
hearings (after they had been closed) for the purpose of recording the
terms of a settlement agreement.63
Giacomo Marchisio argues, however, that the presupposition of the
existence of a ‘dispute’ entails that an award on agreed terms cannot be
issued before the tribunal has received the documents pertaining to the
dispute.64 The tribunal cannot perform its ‘supervisory task’ without
being aware of the facts of the case and the claims of the parties.65
59
Ibid.
60
Nathani Steels Ltd v. Associated Construction (1995) 3 SCC 324 (India).
61
Holtzmann and Neuhaus (n. 30), art. XXI.
62
Lenggenhager (n. 11), para. 2.
63
CLOUT Case 779, MAL 30(1) Egypt – Ad hoc arbitration hosted by the Cairo Regional
Center for International Commercial Arbitration, No. 497/2006 (17 February 2006).
64
65
Ibid.

It is not clear from the provision as to the precise point in time upon
which the parties may settle to be able to enjoy (and employ) the benefit
of this provision, apart from the guidance that it must be ‘during arbitral
proceedings’.
3.2 Settle the Dispute

The scope of the settlement should ideally not exceed the purview of the
arbitration agreement, nor extend beyond the matters referred to arbi-
tration. Where a settlement extends only to a part of the disputes existing
between the parties, it may be treated without controversy, as akin to a
partial award – with the tribunal retaining jurisdiction over the disputes
that still remain pending.66
While typically a settlement would be construed as one that falls
within the ambit of the arbitration agreement, certain tribunals may be
willing to interpret a settlement extending beyond it, as an implied
amendment of the arbitration agreement.67 In a 2014 award (Latvian v.
Russian Co., ICAC68), the parties had agreed to a settlement and
requested the arbitral tribunal to dispense with a hearing and directly
render a consent award. The tribunal found that the settlement con-
cerned the dispute submitted to the Russian International Commercial
Arbitration Court (ICAC), but also extended to several other matters,
not submitted to arbitration. Accordingly, the tribunal considered it
best to render a consent award only containing the terms of the settle-
ment between the parties that fell within the purview of the arbitration
agreement. The respondent later failed to uphold the terms of the
consent award and the claimant sought enforcement before a commer-
cial court in Saint Petersburg. The respondent challenged enforcement
on the basis that the tribunal violated its rights by its failure to include
all of the terms of the settlement in the consent award. The court agreed
with the respondent and held that it was deprived of the opportunity to
present its position on the terms of the settlement and to negotiate
66
T. Wiwen-Nilsson, ‘Conciliation: Enforcement of Settlement Agreements’ in Modern
Law for Global Commerce: Proceedings of the United Nations Commission on
International Trade Law Held on the Occasion of the Fortieth Session of the Commission
(United Nations, 2011), pp. 407, 412.
67
Caron and Caplan (n. 15), p. 784. See also von Schlabrendorff and Sessler (n. 57), p. 331.
68
Rendered in June 2014 under the Rules of the ICAC at the Russian Chamber of
Commerce and Industry, according to the summary provided by Davydenko and
Kryvoi (n. 24).

782 ar tic l e 30 : sett lement
amendments with the claimant. On appeal, a higher court upheld this

decision.69 This case highlights, yet again, the significance of party
autonomy and indicates that a consent award should be lawful, but
must also be fully reflective of the will of the parties.70
In case of doubt, it is advisable that the parties expressly agree to
extend the ambit of the tribunal’s jurisdiction, although the tribunal
is not bound to accept this.71 The notion of implied amendment of an
arbitration agreement in this scenario is not uncontroversial. Some
scholars consider it doubtful, however, whether the requirement of
the New York Convention for an arbitration agreement to be in
writing (article II(2))72 is fulfilled in such cases.73 The application of
the ‘blue pencil’ doctrine (i.e. severability) in order to partially
enforce consent awards (to the extent that they were covered by the
subject matter of the arbitration and the arbitration agreement) is
also doubtful. This is because settlement agreements are often nego-
tiated as ‘package deals’ and it may prove challenging to attempt to
cleanly sever the obligations therein from one another.74 A settlement
may also cover a part (and not all) of the claims before the arbitral
tribunal and, in this case, the tribunal will likely issue a partial award
by consent – leaving the other outstanding claims to be decided
through a final award.75
Similarly, for it to be recorded as a valid consent award, the effect of a
settlement cannot extend to third-party non-signatories unless they
accede to the arbitration agreement.76 Where, for example, a settlement
is reached between the claimant and only one of many respondents, the
arbitration continues qua the others with a limited scope, and in such a
case, the parties could defer the entry into effect of the consent award
against that respondent, until the tribunal has rendered its final decision
on the claims against the others.77
69
Davydenko and Kryvoi (n. 24).
70
Ibid.
71
J. Waincymer, ‘Part III: The Award, Chapter 16: The Award’ in Procedure and Evidence in
International Arbitration (Kluwer, 2012), pp. 1263, 1282, para. 16.3.7.
72
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York,
10 June 1958, 330 UNTS No. 4739.
73
Wiwen-Nilsson (n. 66), p. 413.
74
Ibid.
75
76
77

3.3 Shall Terminate the Proceedings

Interesting questions arise out of the decision by the parties to settle their
dispute and the arbitral tribunal’s mandate coming to an end. In practice,
it is not until the parties have demonstrated a clear intention to terminate
the arbitral proceedings – either by way of requesting a termination order
or seeking a consent award from the tribunal – that a tribunal will
consider itself functus officio.
In an English case, Martin Dawes v. Treasure & Son Ltd,78 the court
decided when the arbitrator becomes functus officio or ceases to have
jurisdiction where the parties to an arbitration settle their disputes.
Treasure and Son Ltd was engaged as a contractor by Martin Dawes to
carry out works at his country estate. A number of disputes arose between
the parties, one of which led to arbitration. During the arbitration, there
was a site visit to the country estate where the alleged defects were
brought to the arbitrator’s attention by Dawes. Soon after, Treasure
sought to settle on a ‘without prejudice save as to costs’ basis and,
eventually, the parties entered into a binding settlement. Neither the
parties nor the tribunal drew up any order or award reflecting the
settlement terms, but the arbitrator continued subsequently to issue a
costs award. In the meantime, Dawes served another notice of arbitra-
tion. The arbitrator issued a ruling that he was not functus officio, which
was challenged by Dawes in court. Subsequently, the arbitrator issued a
ruling that the settlement extended to all the defects raised in arbitration,
which was also challenged by Dawes before the court. One of the issues
before the court was whether the arbitrator became functus officio (save
for the allocation of costs) following the settlement between the parties.
The court noted that there was not much by way of authority to guide its
decision, but concluded that:
The following conclusions can be drawn from the law and practice relat-
ing to arbitrations in relation to the point at which an arbitrator may
become functus officio:
(a) Primarily, as arbitration is, usually, a consensual process, one must

look to the contract between the parties pursuant to which the
arbitrator has been appointed to determine what the parties have
agreed, expressly or by implication, about when an arbitrator’s jur-
isdiction becomes exhausted.
78
Martin Dawes v. Treasure & Son Ltd [2010] EWHC 3218 (TCC).

784 a r t i c l e 30 : s et t l eme n t
(b) The settlement of a dispute after it has been referred to arbitration but
before any final award does not generally, and certainly does not
necessarily, bring to an end to the jurisdiction (sic). Section 51 [of the
English Arbitration Act, 1996] suggests that even if the dispute is
settled there remains a jurisdiction to terminate the substantive
proceedings and to resolve issues of costs or indeed any other matters
remaining in dispute at that time. That jurisdiction is not expressed
to be statutorily limited.79
On the facts, the court dismissed both of Dawes’ challenges and held that
the arbitrator had not been rendered functus officio following the settle-
ment since the parties never sought termination of the arbitral proceed-
ings, and that he was correct to hold that the settlement encompassed all
of the defects.
The decision in Dawes has been extolled for upholding the principle of
party autonomy.80 It also points to the practical significance of recording
a settlement into a consent award or a request to terminate the proceed-
ings once the parties have managed to resolve their dispute in the course
of the arbitration.81
The issue of whether or not a settlement has been validly entered into
is to be determined by the arbitral tribunal, according to the decision of
a Singaporean court in Doshion Ltd v. Sembawang Engineers and
Constructors Pte Ltd.82 In this construction dispute between an Indian
and a Singaporean corporation, a settlement was alleged to have been
entered into by the parties four days before the commencement of
arbitration hearings. Doshion sought to injunct the hearing on the
basis of the alleged settlement, while Sembawang contested the fact
that any settlement had been entered into. The court held that the
dispute over the existence of the settlement agreement arose out of
the relationship between the parties, was subject to their arbitration
agreement, and hence, fell within the jurisdiction of the arbitral
tribunal.
As with the decision in Dawes, the key takeaway from Doshion is again
that parties wishing to put an end to a tribunal’s jurisdiction as a result of
a settlement must demonstrate that there is an agreement to bring the
79
Ibid., para. 29.
80
M. Ahmed, ‘When an Arbitrator Becomes Functus Officio and the Impact of This on
Settlement of an Arbitration’ (2011) 77 Arbitration J. 369, 373.
81
Ibid., p. 374.
82
[2011] SGHC 46.

tribunal’s jurisdiction to an end – either as part of the settlement itself or

by way of a separate agreement.83
3.4 If Requested by the Parties

While the language is ambiguous, it was clearly intended by the drafters
of the Model Law that there must be consensus between the parties to
record their agreement in the form of an arbitral award.84 Requiring a
request by both the parties, such as under article 34(1) of the 1976
UNCITRAL Arbitration Rules, was considered an attempt to minimise
the risk of the parties being treated unfairly should there be any ambi-
guity in the settlement, or if the settlement were subject to conditions that
may not be evident to the arbitral tribunal.85
As the discussion in the travaux préparatoires clarifies, it is sufficient
for the request to emanate from only one of the parties, as long as such
consensus exists between all of the parties. Practitioners, however,
recommend that the parties make a joint request, since the tribunal
obviously needs to satisfy itself that all parties are in agreement so as to
be able to record their settlement in the form of a consent award.86
3.5 Not Objected to by the Arbitral Tribunal

Article 30(1) of the Model Law, as an embodiment of party autonomy, is
also no stranger to the long-standing controversy on the limits to such
party autonomy. As discussed above, the Commission debated whether
such limits to party autonomy should exist expressly or not. Before
delving further into this issue, it is important to draw a distinction
between the parties’ right to terminate arbitral proceedings (which they
enjoy complete freedom to do) from their right to have their settlement
recorded as a consent award (limited by tribunal discretion).87 The
concerns expressed here are limited to the latter situation.
The text of the provision does not go far in assisting one to draw a line
in the sand between what may be permissible to be recorded as a consent
83
D. Chan, ‘Reaching a Settlement before the Arbitration Hearing’, Transnational Notes
Blog (8 March 2011), https://blogs.law.nyu.edu/transnational/2011/03/reaching-a-settle
ment-before-the-arbitration-hearing/.
84
Roth (n. 1), para. 14.476.
85
Ibid.
86
Ibid.
87
Ibid.

award and what may not be permissible. Instead, article 30 of the Model
Law leaves that determination to each arbitral tribunal. Thus, the
tribunal before which the parties put forth the request for a consent
award enjoys the discretion to refuse to do so. In this regard, it appears
that certain jurisdictions like Egypt offer a contrast, where the tribunal
appears to have little more than rubber-stamping authority, i.e., it is
assumed that where parties make such a request, the tribunal is obliged
to grant it.88
This is not to say that in Model Law jurisdictions in general, tribunals
enjoy a carte blanche authority to refuse to give effect to the parties’
collective will. Indeed, it is generally recognised that this discretion must
be exercised with due care, and only in exceptional circumstances.89 In
fact, some scholars opine that a tribunal may expose itself to civil liability
if it ‘unduly refuse[s]’ to confirm the settlement of the parties.90 As
described above, examples where such discretion may be exercised
include where parties express a desire to have an unlawful settlement
recorded in the form of an arbitral award, etc.91 These grounds are
explored in further detail in the sections that follow.
Certain Model Law jurisdictions have also gone on to circumscribe the
extent of this discretion, for the purposes of clarity. For instance, German
and Belgian legislation provide that the arbitral tribunal may refuse to
issue a consent award only where the contents of the settlement defy
public policy.92 Hungary, for its part, provides that such discretion exists
where the settlement would be in contravention of the law.93 Often, even
when such a restriction is not found in the text of the legislation (for
instance, under Bulgarian law), it is nevertheless understood that a
tribunal may refuse to record the settlement, if it is found to be in
contravention of mandatory provisions of law.94
Some authors advocate a ‘light standard of review’ while describing the
extent of scrutiny that a tribunal must undertake when presented with
88
Ibid., para. 14.477, citing ‘Egypt: Art 40 of the Law Concerning Arbitration in Civil and
Commercial Matters’ and M. I. M. Aboul-Enein, ‘Reflections on the New Egyptian Law
on Arbitration’ (1995) 11 Arb. Intl 82.
89
Roth (n. 1), para. 14.477.
90
J.-M. Tchakoua, ‘Le Statut De La Sentence Arbitrale D’Accord Parties: Les Limites D’Un
Deguisement Bien Utile’ [The Status of the Arbitral Award by Consent: The Limits of a
Useful Ruse] (2002) 7 Intl Bus. LJ 775, 779.
91
Roth (n. 1), para. 14.477.
92
Ibid.; Piers (n. 56), pp. 415–420.
93
Roth (n. 1), para. 14.477.
94
Ibid.

the terms of a settlement.95 They argue (with some force) that it is not for
the tribunal to inquire into the reasons for the parties’ settlement and the
focus should instead be on the validity of the terms of the settlement
under the applicable legal framework.96
Others, however, while acknowledging the difficulty of devising a
standard of scrutiny for issuance of consent awards, advocate for the
same standard as that of domestic courts scrutinising the enforceability of
foreign arbitral awards under the New York Convention.97 This would
entail refraining from an in-depth inquiry into the merits of the cases, but
allow – it is believed – for some leeway where the arbitral tribunal
suspects that public policy has been impugned.98
Within the exercise of its discretion, a tribunal may make recommen-
dations as to the structure and form of the consent award.99 However, it is
not considered within the purview of the discretion to evaluate the
settlement, to inquire into the settlement’s ‘reasonableness’ before it
can be recorded as an award.100
As a set of ‘best practices’, it is advised that arbitrators finding them-
selves in the position of approving a party’s settlement in the form of a
consent award should first satisfy themselves about the existence of a
genuine dispute between the parties.101 They should then inquire into the
nature of the dispute and the terms of the settlement agreement.102
Arbitral tribunals may be supplemented in the performance of this
function by arbitral institutions where the arbitration is an institutional
one and the rules chosen by the parties provide for a scrutiny mechanism,
as under the ICC Rules.103
On the question of the grounds on which a tribunal may refuse to
record the settlement of the parties, several examples have been prof-
fered. These range from a settlement agreement that violates foreign
exchange controls, to an agreement where arbitrators suspect fraud, to
95
Caron and Caplan (n. 15), 785.
96
Ibid.
97
D. Di Pietro, ‘Party Autonomy and Public Policy Awards by Consent’ in F. Ferrari (ed.),
Limits to Party Autonomy in International Commercial Arbitration (Juris, 2016), pp.
383, 390.
98
Ibid., pp. 390–391.
99
100
Iran and United States, Case A/1 (Issue II), Decision (14 May 1982), reprinted in 1 Iran–
US CTR 144 (1981–1982).
101
Di Pietro (n. 97), p. 389.
102
Ibid.
103
Ibid., p. 390.

where the agreement is in furtherance of an illegal act (such as the

manufacture of an illegal drug or smuggling contraband).104
In Société Viva Chemical (Europe) NV v. APTD,105 the Paris Court of
Appeal found a consent award issued by a sole arbitrator in London to be
unenforceable, due to the fact that it was rendered under suspicious
circumstances. The respondent in the arbitration proceedings appeared
to have been under financial distress at the time the consent award was
made and the court found that the consent award was part of a fraudulent
scheme to reduce the assets of the respondent before an imminent
declaration of bankruptcy. The consent award was made the same day
that APTD declared bankruptcy. The other creditors of the respondent
sought to have the consent award annulled on the basis that it violated
international public policy and the principle of treating all creditors
equally. The court found these grounds legitimate and granted the
annulment of the consent award.
Arbitrators should also be cautious of consent awards that may affect
third-party interests.106 An example of this may be found in the facts of
Kiyue Co. Ltd v. Aquagen Intl Pte Ltd,107 where a controlling shareholder
initiated arbitral proceedings against the subsidiary and ordered it not to
contest the proceedings.
In Beijing Sinozonto Mining Investment Co. Ltd v. Goldenray
Consortium (Singapore) Pte Ltd,108 a China International Economic
and Trade Arbitration Commission (CIETAC) consent award was chal-
lenged on the grounds that enforcing it would be contrary to Singapore’s
public policy. It was alleged that the award was procured with the
complicity of the tribunal and, hence, was tainted with fraud and corrup-
tion. While the court did not find sufficient evidence to support these
allegations, it enunciated the notion of public policy in the following
terms:
… the forum state’s most basic notions of morality and justice would be
violated if an arbitral award procured through fraud was enforced there;
and ‘fraud’ in this context encompasses a showing of bad faith during the
arbitration proceedings, such as bribery, undisclosed bias of the arbitra-
tor, or wilful destruction or withholding of evidence.
104
105
Cour d’appel [CA] [Regional Court of Appeal] Paris, Civ., 9 April 2009, 07/17769.
106
107
High Court, Singapore, [2003] 3 SLR 130.
108
[2013] SGHC 248.

As one author notes in the context of ICC arbitrations, there is no bar

theoretically for antitrust issues to be resolved by way of a consent award,
although there are no known public precedents of such an award.109 This
statement needs to be qualified inasmuch as this is only true for consent
awards that do not entail any violation of the antitrust law regime that
may be applicable, for instance, at the place of arbitration. In such a
scenario, were a tribunal to give its seal of approval by memorialising the
parties’ agreement in a consent award, it could risk being complicit in
antitrust law infringement, such as in the enforcement of a cartel.110 As
also exemplified in article 30, the tribunal faced with a situation like this is
entitled to refuse to record the parties’ agreement tainted with illegality
and is not obliged to render a consent award.111
Certain institutional rules (such as the ICC Rules) provide an addi-
tional safeguard in the form of the scrutiny of a draft award that may
prevent a consent award falling foul of (for example) antitrust laws from
materialising. Through the scrutiny mechanism, the ICC Court may be
able to bring concerns to the attention of the tribunal, even where they
have been inadvertently overlooked by the tribunal and/or the parties to
the consent award.112 It is also apposite to note here that, akin to a
tribunal facilitating the breach of law or principle by means of a consent
award, the ICC (or the responsible individuals in the ICC Court) also
risks complicity in such a breach, as they may be found responsible for
‘consciously and willfully’ assisting in such a breach.113
While arbitrators must be particularly careful and exercise their dis-
cretion to refuse to record a settlement in a consent award where they
suspect that the arbitration proceedings were a sham, it is up to the
tribunal to decide how much they want to explain their conclusions in
their award.114
Sometimes, the applicable law may go so far as to impose an obligation
upon the arbitral tribunal to disclose information to the relevant autho-
rities. Commentators point to section 328 of the English Proceeds of
109
G. Blanke, ‘Antitrust Arbitration under the ICC Rules’ in G. Blanke and P. Landolt (eds),
EU and US Antitrust Arbitration: A Handbook for Practitioners (Kluwer, 2011), pp. 1763,
1882.
110
Ibid., p. 1882.
111
Ibid.
112
Ibid.
113
Ibid., p. 1883.
114
J. D. M. Lew, ‘The Arbitrator and Confidentiality’ in Y. Derains and L. Lévy (eds), Is
Arbitration Only as Good as the Arbitrator? Status, Powers and Role of the Arbitrator
(ICC, 2011), pp. 105, 122.

790 a r t i c l e 3 0: s e t tl e m e n t
Crime Act (2002) and the authorities arising therefrom,115 as an

example.116
3.6 Form of Arbitral Award

The form requirements for rendering a consent award have been strictly
construed by courts.117 Accordingly, the mere proof of the terms of the
settlement is not enough and the formal requirements under article 30(2)
of the Model Law (or more accurately, the national provisions in pari
materia with it) must be complied with.118
Consent awards usually take one of two forms – the award making
the necessary orders (including costs) and attaching the settlement
agreement, and the second being an award that terminates the proceed-
ings and merely awards costs.119 Consent awards have rarely been
published.120
The requirement of providing reasons is usually dispensed with in
national laws and institutional rules envisaging a consent award.121 A
2012 decision from Spain,122 for example, affirms that a consent award
does not have to indicate the reasons in order to be upheld. However,
certain national laws, like that of Belgium, still mandate that reasons
must be provided and even a consent award should contain the same.123
However, this difference from the Model Law has a limited practical
impact as the tribunal’s reason to render a consent award is viewed as
reflecting the agreement of the parties empowering it to do so.124
115
Lew, ibid., referencing Bowman v. Fels [2005] EWCA Civ. 226.
116
Lew, ibid., pp. 121–122.
117
118
Ibid., p. 125, citing Oberlandesgericht Frankfurt, 28 June 1999, 3 Sch. 1/99;
Oberlandesgericht Frankfurt, 14 March 2003, 20 Sch. 1/02, where the formal require-
ments applicable to an award on agreed terms were not fulfilled as the settlement did not
have the form of an arbitral award.
119
See e.g. ICC Final Award No. 16426/2011 and No. 12656/2006, as cited in Marchisio (n.
22), n. 595 (2017).
120
Gaillard (n. 4), para. 1365.
121
G. Born, International Arbitration: Law and Practice (Kluwer, 2015), p. 283, para. 25. See
Model Law, art. 30(1); English Arbitration Act, 1996, s. 51(2); UNCITRAL Rules, art. 36
(1); 2014 LCIA Rules, art. 26(9); Waincymer (n. 71), p. 1282, § 16.3.7.
122
Viza Automoción SAU v. Inser Robótica, SA (Superior Court of Justice of Galicia; 2 May
2012) as cited in B. M. Cremades and D. J. A. Cairns, ‘Spain’ in J. Paulsson (ed.),
International Handbook on Commercial Arbitration (Kluwer, 2017), Suppl. 93, February.
123
Piers (n. 56), p. 418, para. 19.
124
Ibid., para. 19.

Understandably, there is no identifiable requirement for reasons other

than a reference to the fact that the parties have entered into a settle-
ment.125 A question does arise, though, as to the requirement of includ-
ing the settlement agreement in its entirety in the consent award or
whether the tribunal should refer only to key extracts.126 In the latter
case, it is likely advisable that a consent award incorporate the settlement
agreement by reference, include statements to the effect that the tribunal
has accepted and recorded the settlement, and also set out the operative
parts of the settlement.127
Certain national laws, like Germany’s, have proven controversial with
regard to whether the settlement by the parties necessarily requires con-
cessions from both parties.128 This requirement is not found under article
30 of the Model Law,129 but exists under substantive German law, and
there is a decision from the Higher Regional Court (Oberlandesgericht) of
Munich in support of the view that a settlement so requires.130 In light of
this, it is advisable (particularly should the parties wish to enforce the
award in Germany) that a consent award contain concessions from both
parties, even if they are minor in nature.131
4. Paragraph 2
The word ‘shall’ in article 30(2) of the Model Law means that a consent
award ‘must’ mandatorily comply with the provisions of article 31 of the
Model Law.132 Moreover, the consent award must clearly state that it is
an award, under the terms of the provision.133
125
126
Ibid., p. 412.
127
128
Von Schlabrendorff and Sessler (n. 57), p. 327.
129
Holtzmann and Neuhaus (n. 30), pp. 822–823.
130
Von Schlabrendorff and Sessler (n. 57), pp. 327–328, citing OLG München, 26 July 2005,
GmbHR 2005.
131
Ibid.
132
Roth (n. 1), para. 14.475.
133
See also von Schlabrendorff and Sessler (n. 57), p. 330; R. Wolff, ‘The Arbitral Award’ in
R. Kreindler et al. (eds), Commercial Arbitration in Germany (Oxford University Press,
2016), pp. 279, 291. Note, however, that in BayObLG (4 July 2004), 4 Z Sch. 9/04,
SchiedsVZ 2004 (Austria), the Bayerische Oberste Landesgericht (Bavarian Highest
Regional Court) adopted a creative pro-arbitration approach when faced with the issue
of the enforceability of a settlement agreement entered into during the arbitral proceed-
ings, before an arbitral tribunal, but not recorded as a consent award. The agreement
between the parties was recorded in the minutes of the arbitral proceedings and not as an
‘award’, as required under the New York Convention. The court, nonetheless, upheld the

4.1 Same Status and Effect as Any Other Award

The New York Convention does not explicitly refer to consent awards;
however, the question of whether consent awards should be able to enjoy
the same benefits under its recognition and enforcement regime as other
arbitration awards, is often raised.134 The travaux préparatoires of the
New York Convention do not provide any guidance on this issue.135
Scholars have taken differing positions as to how this dilemma is to be
resolved. While Gaillard and colleagues have taken the view that in
determining whether the New York Convention is applicable to consent
awards, one must interpret the provisions of the New York Convention
itself (autonomous approach),136 van den Berg opines that a consent
award must be considered as one within the ambit of the New York
Convention if the jurisdiction where the award is rendered considers it to
be such.137 Whether a consent award is categorised as an ‘award’ under
the law of the place where enforcement is sought may also need to be
evaluated.138
This ties in to the larger issue of what is meant by an ‘award’. If an
‘award’ is defined as a decision of the arbitral tribunal through which it
resolves all or part of a dispute, then it appears difficult to categorise
consent awards in the same bracket.139 A solution is, however, offered by
the Model Law by expressly providing in paragraph 2 of article 30 that a
consent award has the ‘same status and effect as any other award on the
merits of the case’. As Gaillard has noted, in Model Law jurisdictions, ‘the
issue will be resolved by simply applying the ordinary legal rules govern-
ing the recognition and enforcement of awards’.140 In fact, he even goes
on to argue that it is possible that the Model Law has an even larger
settlement agreement as if it were a consent award, deriving its validity from a bilateral
agreement between Germany and Austria, since it could not rely upon the New York
Convention (as summarised in C. W. Konrad and F. T. Schwarz, ‘Article 28 Settlement
and Consent Award’ in The Vienna Rules: A Commentary on International Arbitration in
Austria (Kluwer, 2009), pp. 677, 681, n. 12.)
134
Gaillard (n. 4), para. 1366, pp. 744–775.
135
C. Kang, ‘Oriental Experience of Combining Arbitration with Conciliation: New
Development of CIETAC and Chinese Judicial Practice’ (2017) 40 Fordham Intl LJ
919, 940.
136
Gaillard (n. 4), pp. 744–775.
137
A. J. van den Berg, The New York Convention of 1958 (TMC Asser Institute, 1981), pp.
11, 50.
138
G. Lörcher, ‘Enforceability of Agreed Awards in Foreign Jurisdictions’ (2001) 17 Arb.
Intl 275, 278.
139
Gaillard (n. 4), pp. 744–775.
140
Ibid. (internal quotations omitted).

impact, as the language of article 30(2) points towards ‘the existence of a

consensus which is liable to support a similar interpretation of other
international instruments’.141
While the academic consensus appears to weigh favourably towards
considering consent awards as enforceable under the New York
Convention, it may still be useful to evaluate the counterarguments.
It is sometimes argued that the rendering of a consent award entails no
adjudicative function, as is otherwise the case for other arbitral awards,
since the tribunal is merely approving or disapproving the terms of the
settlement arrived at by the parties.142 A related argument that is
sometimes made is that a consent award should not be considered
the same as other awards, since the arbitrators do not end up resolving
any dispute between the parties, whereas this was what they undertook
to do.143
This is often seen as an unnecessarily narrow view of arbitral and
judicial functions.144 The tribunal’s role must, it is said, be viewed as
one of overseeing the process of dispute resolution and ensuring
legality throughout the process – it being immaterial whether the
parties settle their own dispute, or if the tribunal renders an award
through its own reasoning and deliberative process.145 Besides, this
function is already discharged when the tribunal has to evaluate the
terms of the settlement to decide whether to embody it in the form of
a consent award.146
It is also argued that once the parties have arrived at a settlement
themselves, the tribunal automatically should become functus officio
since there is no longer any dispute left between the parties.147 As the
discussion above with regard to the decisions in the Dawes and Doshion
cases tends to demonstrate, this is not practically true and the termina-
tion of the arbitration proceedings requires some action by the parties –
either by asking for the culmination of the arbitration through a termina-
tion order or by a consent award.
141
Ibid.
142
Di Pietro (n. 97), § III, pp. 387–389.
143
J. L. Delvolvé, J. Rouche and G. Pointon, ‘Part III, Chapter 7: Making an Arbitral Award:
Its Characteristics and Legal Effect’ in French Arbitration Law and Practice: A Dynamic
Civil Law Approach to International Arbitration, 2nd edn (Kluwer, 2009), pp. 161, 163.
144
Di Pietro (n. 97), p. 388.
145
Ibid.; Marchisio (n. 22), p. 138.
146
Di Pietro (n. 97), p. 388.
147
Ibid., p. 387.

We have discussed above the potential misuse of the mechanism of

consent awards to enforce illegal agreements or to evade the mandatory
provisions of applicable law.148 While many of these concerns are likely
adequately addressed by the tribunal’s discretion to refuse to embody the
parties’ settlement in the form of a consent award, the terms of a consent
award may also be open to ex officio scrutiny wherever enforcement is
sought, pursuant to article V(2) of the New York Convention.149 The
debate around this issue has been aptly summarised by one scholar in the
following terms:
Considering whether consent awards should be treated as awards mixes a
conceptual question with a question of practical utility. From the con-
ceptual perspective, one could be disinclined to see them as awards, not
being a reasoned decision by an adjudicator selecting between conflicting
evidence and arguments. The practical perspective would wish to see the
resolution as having res judicata effect and, in most circumstances, having
the support of enforcement mechanisms.150
As noted above, the provision was inspired by article 34(1) of the

1976 UNCITRAL Arbitration Rules, which was in turn inspired by
other arbitration rules, notably, article 43 of the 1968 ICSID Rules.151
But one may need to keep in mind that any settlement reached under
the aegis of the ICSID Rules would likely enjoy the legitimacy con-
ferred upon it by virtue of the provisions of the ICSID Convention.152
Such legitimacy is missing from the Model Law due to the flexibility
afforded to different States to enact its provisions in the form of
national laws and its nature as a soft law instrument. Hence, the
significance of looking to the New York Convention as the source of
the legitimacy is intensified. There is significant authority for the
proposition that a consent award is enforceable under the New
York Convention.153
While there have been precedents for the enforcement of consent
awards under other international instruments (such as the Algiers
148
Ibid., p. 388.
149
Ibid.
150
Waincymer (n. 71), p. 1282.
151
Marchisio (n. 22), p. 113–114.
152
Ibid., p. 114.
153
E. A. Schwartz and Y. Derains, Guide to the ICC Rules of Arbitration, 2nd edn (Kluwer,
2005), pp. 303, 316; van den Berg (n. 137), pp. 49–50; Gaillard (n. 4), para. 1366, pp. 744–
775; Redfern and Hunter (n. 18), para. 9.35; D. St John Sutton, ‘The Award’ in Russell on
Arbitration, 24th edn (Sweet & Maxwell, 2007), pp. 290, 300, para. 6-023, are less
unequivocal, but agree nonetheless.

Accord154), there were no known court decisions under the New York
Convention for quite some time.155 In 2016, the UNCITRAL Guide to
the New York Convention156 stirred up what could be called a hornets’
nest, by stating that:
The Convention is silent on the question of its applicability to decisions
that record the terms of a settlement between parties. During the
Conference, the issue of the application of the Convention to such deci-
sions was raised, but not decided upon. Reported case law does not
address this issue.157
This controversy has since been the subject of case law emerging from
certain jurisdictions. In Transocean Offshore Gulf of Guinea VII Ltd v.
Erin Energy Corp.158 and Albtelecom SHA v. Unifi Communications
Inc.,159 US courts affirmed that consent awards are indeed at par with
other arbitral awards for the purposes of the New York Convention. In
Albtelecom SHA v. Unifi Communications Inc., the dispute had arisen out
of a contract for the provisions of international telecom services, with
Albtelecom alleging that UNIFI had not been paid for services rendered.
The arbitration proceedings were concluded with the sole arbitrator
rendering a consent award. Albtelecom alleged that UNIFI had failed to
make certain payments under the terms of the consent award and issued
a notice for UNIFI’s failure to pay. Albtelecom filed a petition seeking
confirmation of a consent award rendered by an arbitrator pursuant to an
ICC arbitration against UNIFI, along with damages for UNIFI’s breach of
the award. UNIFI opposed the petition, arguing that the New York
Convention did not apply to a consent award and that the award pro-
vided that all disputes arising under it (except for disputes relating to
UNIFI’s payments) must be resolved by arbitration in Switzerland.
UNIFI argued that the damages claim initiated by Albtelecom implicated
several provisions of the award, other than UNIFI’s obligations to make
154
The US Supreme Court recognised an award on agreed terms rendered by the Iran–US
Claims Tribunal in United States v. Sperry Corp., 493 US 52 (1989); see Lörcher (n. 138),
p. 278.
155
Lörcher (n. 138), p. 278.
156
UNCITRAL, ‘Analysis Article I (1)’ in ‘UNCITRAL Secretariat Guide on the Convention
on the Recognition and Enforcement of Foreign Arbitral Awards’, UN Sales No. E.16.V.7
(1958).16, pp. 16–17, para. 36.
157
Ibid. (citations omitted).
158
Transocean Offshore Gulf of Guinea VII Ltd v. Erin Energy Corp., 2018 US Dist. LEXIS
39494 (SD Tex., 12 March 2018).
159
Albtelecom SHA v. Unifi Commns, Inc., 2017 US Dist. LEXIS 82154 (SDNY, 30 May
2017).

796 a r t i c l e 3 0: s et t l eme n t
payments, and accordingly it had initiated a request for arbitration with

the ICC to address these. The court decided to confirm the consent
award, noting that it was properly entered. UNIFI argued that the
award must not be confirmed since the parties resolved their disputes
outside of arbitration. The court rejected this argument.160 However, for
factual reasons, the court denied Albtelecom’s petition to the extent that
it sought judgment and a damages award based on a breach of the
consent award by UNIFI.
In Transocean Offshore Gulf of Guinea VII Ltd v. Erin Energy Corp.,161
the parties had entered into a contract for drilling equipment, personnel
and services off the Nigerian coast. Disputes arose between the parties
that were subsequently referred to the London Court of International
Arbitration (LCIA) arbitration. Before the hearing, the parties agreed to a
consent award. The tribunal issued two awards – one partial award by
consent and another partial award on costs. Erin Energy failed to pay the
amounts it owed to Transocean under the consent award. Consequently,
Transocean filed for enforcement of the awards under the New York
Convention (codified in the Federal Arbitration Act in the United States)
before the US District Court in Houston, Texas. Erin Energy objected to
the petition and moved for its dismissal on the ground that a consent
award is not an ‘award’ under the New York Convention, relying in part
upon the 2016 UNCITRAL Secretariat Guide on the New York
Convention.162 The US District Court for the Southern District of
Texas rejected both these arguments, relying upon Albtelecom SHA v.
Unifi Communications Inc.163 The court in Transocean found the
Albtelecom analysis ‘thorough and persuasive’ and reached the same
result. Accordingly, it dismissed Erin Energy’s motion to dismiss and
confirmed the consent award.
Equally, in Société Dansk Eternit Fabrik 1994 v. Société Copernit & C
SpA,164 a French Court of Appeal analysed the scope of a settlement
160
Ibid., 13.
161
See n. 158.
162
UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards, UN Sales No. E.16.V.7 (1958), 16, para. 36 (citations
omitted). It stated that: ‘The Convention is silent on the question of its applicability to
decisions that record the terms of a settlement between parties. During the Conference,
the issue of the application of the Convention to such decisions was raised, but not
decided upon. Reported case law does not address this issue.’
163
Albtelecom (n. 159).
164
Cour d’appel [CA] [Court of Appeal] d’Angers, 16 September 2008, 07/01636.

4 . p ar agra ph 2 797
agreement recorded in an ICC award and later enforced the same pur-
suant to an ordinance of the tribunal de grande instance of Paris. The
court did not hesitate in defining the ICC award as an enforceable award
by consent and analysed the content of the award in determining the
extent of the obligations of the parties.
Certain common features of settlements may be at odds with the
requirement of finality that is inherent in an arbitral award. Settlements
often come into force on the occurrence of certain events or the fulfil-
ment of certain conditions and are sometimes revocable in case the
events are not fulfilled or the preconditions are not complied with.165
They often also contain a dispute resolution clause, which is ill-fitting (to
say the least) with the notion of finality, since it opens up the possibility of
subjecting the settlement to a procedure other than the challenge proce-
dure available for other awards.166 An illustration of a consent award
containing a dispute resolution provision was found in the German case
of EnBW Energie Baden-Wuertemberg AG v. Thermoselect SA.167 Here,
the consent award contained a new arbitration clause referring future
disputes of the same nature as the one resolved by the consent award and,
moreover, to the same arbitral tribunal. The German court held that the
parties had to resort to arbitration and could not initiate court proceed-
ings for disputes that fell within the ambit of the arbitration clause.168
Consent awards may often contain declaratory statements that cannot
be enforced in the same manner as an award. However, it has been argued
that the possible res judicata effect of embodying the declaratory state-
ments into a consent award is sufficient reason for them to be included
within the consent award.169
It has been questioned whether parties should be permitted to assert all
of the permissible grounds for challenging an arbitral award in cases
where a consent award has been rendered; the premise here being that the
consent award may in fact be construed as a waiver of the right to
challenge.170 Marchisio argues that most of the grounds available under
the English Arbitration Act 1996 (along the lines of article 34 of the
Model Law and article V of the New York Convention) would be ‘ipso
165
Wiwen-Nilsson (n. 66), pp. 413–414.
166
Ibid., p. 414.
167
EnBW Energie Baden-Wuertemberg AG v. Thermoselect SA, Higher Regional Court
Karlsruhe (Oberlandesgericht or OLG Karlsruhe), 5 June 2007, 8 U 80/06 (Ger.).
168
Ibid.
169
170
Ibid., p. 414.

facto’ excluded in the case of a settlement reached between the parties.171

This, of course, does not extend to matters that are considered unwai-
vable, i.e. where the subject matter was non-arbitrable and where there is
evidence of violations of public policy/public order.172
In a case decided by the Federal Supreme Court of Germany, the issue
under consideration concerned the grounds upon which the enforce-
ment of a consent award may be refused.173 The dispute arose out of a
contract for the sale of shares by the applicant to the respondent. The
arbitration proceedings resulted in a settlement recorded in the form of
an arbitral award on agreed terms pursuant to section 1053(1) of the
ZPO (corresponding to article 30 of the Model Law), pursuant to which
the applicant was required to transfer all of its remaining shares to the
respondent at a price determined on the basis of a balance sheet audit.
The applicant transferred the shares and the respondent paid two-
thirds of the agreed price. When the remaining one-third was not
paid, the applicant sought enforcement of the award before the compe-
tent Higher Regional Court. The respondent resisted enforcement on
the ground that the balance sheets presented by the applicant had been
falsified. On appeal, the Federal Supreme Court found that the respon-
dent had not properly invoked the ground under section 1059(2)(1)(b)
of the ZPO (corresponding to article 36(1)(a)(iv) of the Model Law).174
It also held that the enforcement of the award could not be resisted on
the basis of a violation of the ordre public since, under German law, such
a violation would be assumed if there was a criminal act, justifying a re-
opening of a case that had already resulted in a conviction. Here,
although the respondent had alleged a criminal act (falsification of
balance sheets), this had not resulted in a conviction. However, the
Federal Supreme Court’s reasoning was the result of an analogy from
the provisions of section 1059 of the ZPO whereby an award may also be
171
172
173
CLOUT Case 407, German Bundesgerichtshof, III ZB 55/99 (2 November 2000).
174
Article 36(1)(a)(iv) of the Model Law provides:
‘(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 enforce-
ment is sought proof that:
…
(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 …’

set aside if it was based on a wilful and intentional violation of public

policy pursuant to section 826 of the ZPO. According to the submis-
sions by the respondent, this was indeed the case under the particular
circumstances. Accordingly, the Federal Supreme Court remanded the
case to the Higher Regional Court for further trial in order to ascertain
the relevant facts.
Marchisio also argues that since consent is the foundation of these
awards, they may also be susceptible to challenge on the grounds
available to set aside a contract, as is the case under English law.175 In
cases where the issue of vitiated consent is sought to be re-agitated by
relying upon the arbitration clause in the original contract (as happened
in an Indian case some years ago), the courts may rule that the settle-
ment agreement itself must first be set aside in ‘proper proceedings’.176
Courts have, thus, held that the vitiation of consent to a settlement
agreement should be the subject matter of separate proceedings and not
be treated as the subject matter of the arbitration.177 Along similar lines
is a decision from the German courts that distinguishes between the
terms of the underlying settlement agreement and the consent award
rendered pursuant thereto, holding that the fact that the settlement
agreement is null and void would not automatically vitiate the award.178
The validity of the consent award, like other arbitral awards, should be
assessed in proceedings under article 34 or 36 of the Model Law.179
However, as pointed out by some scholars, the vitiation of a consent
award itself as a result of fraud may often be considered under legal
regimes as contrary to public policy and, hence, unenforceable on that
basis.180
The settlement agreement arguably prevails over any procedural irre-
gularities affecting the proceedings or the tribunal.181 However, proce-
dural irregularities committed before the issuance of the consent award,
and after the parties have reached a settlement, could still be relevant, as it
cannot be said that the arbitrators can forego their due process obliga-
tions. Support for this proposition can be found in the English case of
175
176
Nathani Steels (n. 60).
177
Polytron & Fragrance Industries Ltd v. Natl Insurance Co. Ltd, unrep. judgment (2009),
No. 144/2008 (India).
178
German Bundesgerichtshof, 2 November 2000, III ZB 55/99.
179
Ibid.
180
Tchakoua (n. 90), p. 790.
181

Gujarat NRE Coke Ltd v. Coeclerici Asia (PTE) Ltd.182 In this case,
Gujarat NRE was contracted to supply metallurgical coke to Coeclerici,
on Coeclerici’s prepayment of US $10,000,000. In case of Gujarat NRE’s
failure to supply the coke, it was obligated to repay the prepayment. This
repayment was guaranteed by a guarantor. Gujarat Coke failed to supply
the coke within the contractual delivery period and only repaid a part of
the prepayment. Coeclerici initiated arbitration proceedings claiming the
outstanding balance. The parties arrived at a settlement prior to the
hearings containing the following provision:
In the event that NRE … fail[s] to pay any of the Settlement Payments in
accordance with this Payment Agreement, Coeclerici shall be entitled to
resume the suspended arbitration proceedings … In that event, NRE …
expressly and irrevocably agree[s] that Coeclerici will be entitled to an
immediate consent award, without the need for any pleadings or hearings,
for the following:
(a) the Settlement Payments [set out at Clause 2 and amounting to US

$8,500,000] less any sums paid after the date of this Payment
Agreement;
(b) all reasonable costs and expenses incurred after the date of default,
including but not limited to legal costs, the costs of the Tribunal,
arbitration costs and any legal or other costs …183
Gujarat NRE breached the settlement agreement, prompting Coeclerici

to apply to the arbitral tribunal to issue an arbitral award under the terms
set out in the settlement. Under protest by Gujarat NRE (that it had not
been given adequate time to properly make its submissions), the tribunal
issued the award in terms of the settlement. Gujarat NRE sought to set
aside the award under section 68(2)(a) of the English Arbitration Act,
1996 (serious irregularity), alleging that the tribunal had only given it
twenty-four hours to express its views as to whether the tribunal could
issue a consent award. While the application to set aside the award was
ultimately dismissed by the court, the case underscores the possibility
that the tribunal remains bound to comply with due process and not
182
N. Fletcher, ‘Gujarat NRE Coke Limited (“NRE”), Shri Arun Kumar Jagatramka v.
Coeclerici Asia (PTE) Limited, High Court of England and Wales, Queen’s Bench
Division, Commercial Court, 10 July 2013’ in A Contribution by the ITA Board of
Reporters (Kluwer, 2013).
183
Gujarat NRE Coke Ltd and Shri Arun Kumar Jagatramka v. Coeclerici Asia (Pte) Ltd
[2013] EWHC 1987 (Comm.), para. 4.

commit procedural irregularities, even where it is rendering a consent

award.
Since it is like any other award, it may, theoretically, be amended and/
or subjected to interpretation by the tribunal. There is authority under
Belgium’s national legislation that a consent award may be corrected or
interpreted; an additional consent award may be requested; parties may
ask for it to be set aside; or they may seek to recognise and enforce it and
(rarely) challenge it at the place of enforcement.184
Some authors have questioned the extent of the applicability of these
provisions to a consent award in practice, without offering any solutions
to the same.185 It also logically follows that like other awards, consent
awards are not a substitute for other requirements under national laws
(e.g. registration of property required for a valid transfer of property, etc).
4.2 Interface between Arbitration and Other Forms of Alternative

Dispute Resolution)
4.2.1 Arbitration as a Means of Inducing Settlement
Arbitration is often used as a tactical means of pressurising the other
party into a settlement.186 It may be used to demonstrate to the adverse
party that the claimant considers the dispute serious enough to pursue its
legal remedies.187
4.2.2 Can a Settlement Reached during Mediation

Proceedings Be Transformed into a Consent Award?
It is a matter of some debate whether a settlement arrived at during the
course of mediation proceedings may be rendered enforceable by way of
recording it in the form of a consent award.188 This seems to be prima
facie problematic since the enforceability granted by the New York
Convention would not per se be available to such an award. Article I of
the New York Convention restricts its applicability to the ‘recognition
and enforcement of arbitral awards’ (i.e. awards made by arbitrators or
permanent arbitral bodies).189 Since a mediator serves the role of a
184
Piers (n. 56), p. 418.
185
186
Y. Kryvoi and D. Davydenko, ‘Consent Awards in International Arbitration: From
Settlement to Enforcement’ (2015) 40 Brook. J. Intl L. 827, 834.
187
Ibid., p. 834.
188
Von Schlabrendorff and Sessler (n. 57), pp. 330–331.
189
Kryvoi and Davydenko (n. 186), p. 834.

neutral third party and does not adjudicate on the merits of the case and
cannot render a decision binding on the parties, such an award would
seem to be unenforceable under the New York Convention.190
Some scholars seek to overcome this problem by suggesting that this
result can be achieved by appointing the mediator as an arbitrator once
the settlement is arrived at between the parties.191 However, this appears
to be a problematic solution, for several reasons. First, it appears incom-
patible with the wording of several national laws, and notably article 30 of
the Model Law, which contemplates a consent award only ‘during’
arbitration proceedings.192 Second, the award may nonetheless be
found to be unenforceable under the New York Convention, as it casts
an obligation upon national courts under article II(1) to recognise agree-
ments in writing only ‘under which the parties undertake to submit to
arbitration all or any differences which have arisen or which may arise
between them’.193 Arbitration cannot take place, it has been said, where
there is no dispute between the parties.194 An agreement between parties
in reference to a matter that they have already settled through mediation
to arbitration would appear to fall squarely within this prohibition.
Practically, as well, the same neutral serving as both mediator and later
on, as arbitrator, may raise serious ethical and confidentiality con-
cerns.195 Such a process (commonly known as ‘med-arb’) has not man-
aged to find the stamp of approval of leading institutions.196 While this
seems somewhat formalistic in a case where an award by consent has
been rendered, the issues that may arise where the award is contested
remain a concern.
While there are foreseeable practical advantages to adopting the
approach of transforming mediated settlements into consent awards,
the language of article 30 of the Model Law does not appear to permit
such a transformation, and a consent award rendered in such a way runs
190
Ibid.
191
Von Schlabrendorff and Sessler (n. 57), pp. 330–331, relying upon certain German
authorities in this regard.
192
Ibid., pp. 330–331.
193
A. J. van den Berg, ‘New York Convention of 1958 Annotated List of Topics’ (2013), pp.
14–20 (emphasis added), www.newyorkconvention.org/11165/web/files/document/1/5/
15975.pdf.
194
Ibid., pp. 21, 24, para. 219.
195
K. M. Blankley, ‘Keeping a Secret from Yourself? Confidentiality When the Same Neutral
Serves Both as Mediator and as Arbitrator in the Same Case’ (2011) 63 Baylor L. Rev. 317,
332–337.
196
Ibid., p. 333.

a significant risk of being unenforceable under the New York

Convention.197
4.2.3 Outcome of Conciliation/Mediation Proceedings to Be

Treated at Par as a Consent Award
In certain jurisdictions, the outcomes of conciliation/mediation proceed-
ings have been given the same status as that of a consent award. For
example, the authors of this chapter are given to understand that in the
People’s Republic of China both conciliation statements and consent
awards are considered final and binding and enjoy the same status as
arbitral awards rendered on the merits of the dispute.198 Another
approach is that followed by India, where a settlement agreement reached
in the course of a conciliation/mediation proceeding can be accorded the
form of an arbitral award.199
4.2.4
Gazing into the Crystal Ball: Convention on the
Enforcement of Mediation Settlements?
Given the doubts that many scholars express on the enforceability of
awards arrived at after mediation where arbitration proceedings have
begun only to render the consent award and to provide an impetus
towards mediated settlements, UNCITRAL has been working towards
achieving international consensus on a convention for making mediated
settlements enforceable. In February 2018, the UNCITRAL Working
Group II completed drafting a convention (the UN Convention on
International Settlement Agreements Resulting from Mediation – ‘UN
Mediation Convention’) and a model law governing the enforcement of
settlement agreements arrived at through international conciliation or
mediation.200 By August 2018 UNCITRAL had finalised the text of this
‘New York-style Convention’ treaty, dubbed the ‘Singapore Convention
197
See Kryvoi and Davydenko (n. 186), p. 834.
198
Kang (n. 138), pp. 919, 932. See also WunschARB, Jiang v. Nanyang Construction,
Supreme People’s Court in Chinese Court Decision Summaries on Arbitration (2005),
1, 1–5; WunschARB, South China Leasing v. Xieya Industrial and Others (2010), ibid.
199
India, The Arbitration and Conciliation Act, 1996, ss 73–74, and Bermuda (as cited in
Wiwen-Nilsson (n. 66), p. 411, fn. 445). India has additionally enacted recent legislation
introducing mandatory mediation prior to filing of commercial suits, which provides the
status and effect of an arbitral award to settlements arrived at under this procedure. See
Commercial Courts Act, 2015, s. 12A(5).
200
C. Hioureas and S. Tewarie, ‘A New Legal Framework for the Enforcement of Settlement
Agreements Reached through International Mediation: UNCITRAL Concludes
Negotiations on Convention and Draft Model Law’, EJIL: Talk! (26 March 2018).

on Mediation’,201 which was planned to be opened for signature on 1 August

2019202 and to come into force six months after three States ratified it.203 The
text of this treaty and the complementary model law, the UNCITRAL Model
Law on International Commercial Mediation and International Settlement
Agreements Resulting from Mediation, 2018 (amending the UNCITRAL
Model Law on International Commercial Conciliation, 2002), was made
available in the public domain in mid-2018.204 The final text of the
Singapore Convention on Mediation was adopted on 20 December 2018.
On 7 August 2019, the Singapore Convention on Mediation was signed by
forty-six countries. It expressly excludes settlement agreements recorded
and enforceable as an arbitral award (article 3(b)). It will enter into force six
months after deposit of the third instrument of ratification, acceptance,
approval or accession (article 14(1)).
201
L. Yong, ‘UNCITRAL Approves Draft to Enforce Mediated Settlements’, GarNews (29
June 2018).
202
Convention on International Settlement Agreements Resulting from Mediation, art. 11.
203
Ibid., art. 14.
204
UNCITRAL, Report of the United Nations Commission on International Trade Law,
Fifty-First Session (25 June–13 July 2018), UN Doc. A/73/17 (2018).

Article 31
Form and Contents of Award

ilias bantekas
(1) The award shall be made in writing and shall be signed by the
arbitrator or arbitrators. In arbitral proceedings with more than
one arbitrator, the signatures of the majority of all members of the
arbitral tribunal shall suffice, provided that the reason for any
omitted signature is stated.
(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 deter-
mined 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 31 is typically associated with the formalities of arbitral awards.
Given that this is the first time in the Model Law that significant – as
opposed to mere passing – reference is made to the award,1 it is necessary
to examine the legal nature of awards.
The travaux to the 1986 version of the Model Law does not
demonstrate significant differences from the current version, save
for the fact that paragraph 4 (on delivery of the award to the parties)
was not included in the first draft.2 This was added a little later and is
1
The second is art. 32(1) of the Model Law, which refers to ‘final’ awards. The remainder of
the Model Law focuses exclusively on awards.
2
Articles 25 to 36 on Award, UN Doc. A/CN.9/WG.II/WP.38 (31 August 1982), draft art.
27; see also Discussions and Conclusions of the Working Group, UN Doc. A/CN.9/216 (23
March 1982), paras 78–80.
805

806 a r t i c l e 3 1 : f o r m a n d c o n t en t s of aw a r d
identical to its current wording.3 The UNCITRAL Arbitration Rules

that preceded the adoption of the Model Law provided a significant
source of practice and expertise, given the similarity between the
pertinent parts of the two provisions in these instruments. Equally,
similar provisions in institutional rules were cited with approval
between 1983 and 1986, as was the case with the then version of
the ICC Rules which assumed that where an award was silent as to
the date and place issued, this coincided with the place of the
arbitration and the date the award was signed.4
One of the few issues that provoked some contention concerned the
presumption in respect of the place of arbitration and its link with the
place where the award was made (the so-called juridical seat). Some
opined that this principle/presumption should have been embodied in
the Model Law, followed by a provision whereby the award should state
the place it was made. The current version of paragraph 3 of article 31
finally prevailed. It was emphasised that the ‘making of the award was a
legal act which in practice was not necessarily one factual act but, for
example, done in deliberations at various places by telephone conversa-
tions or correspondence’.5 It was emphasised that the aforementioned
principle/presumption was irrebuttable.6
It should be noted that although article 31 does not even mention the
doctrine of res judicata, the Czech delegate suggested adding a sentence
to article 31 whereby ‘an award meeting all requisites in accordance with
this Article has the force of res judicata and shall be enforceable in
courts’.7 The res judicata nature of awards is an underlying principle of
international arbitration and constitutes beyond doubt a rule of custom-
ary international law.
At the seventh session, the text of article 31 was adopted under its
current version.8 Article 31 was not amended in the 2006 revision of the
3
Draft Articles I to XXII, UN Doc. A/CN.9/WG.II/WP.40 (14 December 1982), draft art.
XXII(4); officially adopted in Report of the Working Group on the Work of Its Sixth
Session, UN Doc. A/CN.9/245 (1983), para. 116.
4
UN Doc. A/CN.9/216 (n. 2), para. 79.
5
UN Doc. A/CN.9/245 (1983) (n. 3), para. 114.
6
Analytical Commentary on Draft Text, UN Doc. A/CN.9/264 (25 March 1985), 67.
7
Analytical Compilation of Comments by Governments and International Organisations
8

Model Law and despite minor differences with the pertinent paragraphs
of article 34 of the UNCITRAL Arbitration Rules, the two are consistent
and should produce uniform results.
2. Paragraph 1
Paragraph 1 is concerned with some of the formalities associated with
arbitral awards, particularly the requirement that it be in writing and
signed by the arbitrator(s). It also explores the default rule where one
arbitrator fails, or chooses not to sign the award. In this connection,
the obligation to offer reasons for the dispositive part of the award is
juxtaposed with the possibility of dissenting opinions and whether
these are deemed integral to the award. Given that the very nature of
the award is fundamental before one can proceed to examine its
formalities, we proceed to do so here in the absence of any clues in
article 31. The same is true as regards the binding nature and finality
of awards, as well as the legal consequences of such finality, known as
res judicata.
2.1 ‘Award’
The Model Law and the New York Convention offer no definition of this
crucial term, nor any criteria for distinguishing between orders, decisions
and awards.9 This is not necessarily an omission because there does exist
some inconsistency in transnational arbitral practice and in any event it
was perhaps felt that a strict definition would have impaired the compe-
tence of courts and tribunals to declare that a decision or order amounted
to an award when it satisfied the particular nature and effect of awards.10
The same issue had been discussed extensively as regards article 34(1) of
the UNCITRAL Arbitration Rules. Whereas the 1976 Rules specifically
enumerated potential types of awards, such as ‘interim’, ‘interlocutory’ or
Secretariat, UN Doc. A/CN.9/WG.II/WP.48, reprinted in XV (1984) UNCITRAL YB

218, 225; but especially, Report of the Working Group on the Work of Its Seventh
Session, UN Doc. A/CN.9/246 (6 March 1984), para. 111, where it was adopted
without comments.
9
Article 32(1) of the Model Law refers, however, to ‘final awards’ as one option for
terminating arbitral proceedings; the other being a termination order.
10
See H. Holtzmann and J. Neuhaus, A Guide to the UNCITRAL Model Law on
1989), p. 154, who discuss a definition of ‘award’ offered by the UNCITRAL
Commission, but which was never adopted.

808 article 3 1: fo rm and contents o f award
‘partial’,11 the Working Group which subsequently revised the Rules

considered that labels were confusing because they possess different
meanings and outcomes across jurisdictions.12 Consequently, one cannot
discern a uniform practice between Model Law States as opposed to their
non-Model Law counterparts.
Arbitral awards possess two particular qualities for the purposes of this
analysis: (1) their dispositive dimension (i.e. that a dispute is definitively
resolved); and (2) their formal validity in the parties’ relations. The two
qualities of the award render it binding between the parties, that is, the
award becomes final, or binding, between the parties in respect of the issues
decided and there is no further recourse to appeal,13 save for applicable set-
aside (and other exceptional) proceedings under the law of the seat.
Moreover, the award produces res judicata, that is, it constitutes a form of
estoppel against future claims between the same parties under the same
cause of action.
The crucial question is: what ultimately distinguishes an award from other
orders or pronouncements (e.g. injunctions) of arbitral tribunals? Given that
only awards dispose of the parties’ dispute and are enforceable under the
terms of article I(2) of the New York Convention, anything less than an
award will lack these two qualities.14 The most sensible approach is by means
of a ‘nature and effects’ test, on the basis of which an arbitral determination is
an award if it definitively resolves one or more substantive issues of the
parties’ dispute,15 as opposed to the resolution of procedural matters arising
11
Even so, such enumeration was not perceived in the 1976 travaux as a restriction on the
power of arbitrators and the terms could be used interchangeably. Article 32(1) of the
1976 Rules was thus formulated ‘to give the arbitrators as much freedom as possible in
order to ensure maximum efficiency’ in their deliberations. Summary Record of the Tenth
Meeting of the Committee as a Whole (II), UN Doc. A/CN.9/9/C.2/SR.10 (1976), 7–8.
12
Report of the Working Group on Arbitration and Conciliation on the Work of its Forty-Fifth
Session, UN Doc. A/CN.9/614 (5 October 2006), 23; Report of the Working Group on
Arbitration and Conciliation on the Work of Its Forty-Seventh Session, UN Doc. A/CN.9/
641 (25 September 2007), 16; Report of Working Group II (Arbitration and Conciliation) on
the Work of Its Fifty-First Session, UN Doc. A/CN.9/684 (10 November 2009), 16.
13
See UNCITRAL Rules, art. 32(2) and ICC Rules, art. 34(6).
14
It was exactly for this reason that art. 34(1) of the UNCITRAL Arbitration Rules, which
was modelled after art. 26(7) of the LCIA Rules, only adopted the first sentence of the
latter, which states that ‘[the various types of] awards shall have the same status and effect
as any other award made by the arbitral tribunal’. The Working Group considered that
while the attributes of finality and binding character may be read with some degree of
uniformity, there may be differences across jurisdictions in respect of the legal conse-
quences of said attributes. UN Doc. A/CN.9/684 (2009) (n. 12), 16.
15
In a German case decided by the Stuttgart Oberlandesgericht, a decision had been issued
by the tribunal in the form of an expert opinion. It was held that because the intent of the

from the arbitral process.16 Although this test is useful in order to promote
uniformity of the Model Law as dictated in article 2A, the matter is ultimately
left open and divergence exists even among Model Law States.
Under German law, for example, the form of ‘award’ is reserved for
final awards on the merits, decisions on costs (which may be rendered
through a separate award)17 or additional awards.18 Exceptionally, some
jurisdictions allow tribunals to decide whether their determination in
respect of jurisdictional challenges constitutes a decision or an award.
Under article 18(8) of the Portuguese Arbitration Law (PAL), for exam-
ple, the tribunal possesses discretion to decide jurisdictional claims in the
form of an order or an award.19 This is a significant power, the effect of
which is that if the decision is issued as an award, it is final, whereas if it is
issued as a mere order, it is subject to a challenge before the local courts.20
This power under the PAL extends also to the tribunal’s authority to issue
interim measures.21 This is contrary to the position in most States, as is
the case with France, whereby decisions on mere interlocutory issues,
such as those relating to the tribunal’s finding of jurisdiction and gen-
erally all those that do not terminate the procedure, are not afforded the
status of awards.22 Even so, under French law, arbitral decisions on
provisional measures that settle all or part of the parties’ dispute may
be considered final, partial or interim awards.23 Several courts in other
nations have equally dismissed labels and have gone on to enforce orders
granted by tribunals, particularly if the order in question constituted a
final disposition, partially or wholly, of the issues at hand.24
tribunal was to produce a final, binding and enforceable outcome, the decision should not
be treated as an expert opinion, but as an award. CLOUT Case 664 (2002).
16
An order for admissibility of evidence, for example, was held by the Supreme Court of
British Columbia not to satisfy the criteria for an award. Slocan Forest Products Ltd v.
Skeena Cellulose Inc. [2001] BCSC 1156 (CanLII).
17
ZPO, s. 1057.
18
ZPO, s. 1058.
19
The same stance has been justified by Canadian courts on the basis that a decision to
decline arbitral jurisdiction affects the substantive rights of the parties, therefore justify-
ing its characterisation as an interim award. Inforica v. CGI Information Systems and
Management Consultants [2009] ONCA 642 (CanLII).
20
PAL, art. 18(9).
21
PAL, art. 20(2).
22
Société Crédirente v. Compagnie Générale de Garantie, Paris Court of Appeals judgment
(29 November 2007), [2009] Rev. Arb. 741.
23
2004), [2005] Rev. Arb. 982.
24
Publicis Communication v. True North Communications Inc., 3 F.3d 725 (2nd Cir. 2000);
but see opposite view in Resort Condominiums Intl Inc. v. Ray Bolwell and Another (1993),

810 article 31: form and c ontents of award
We have yet to tackle the question of whether, in situations where

a tribunal is allowed to decide an issue in the form of an award or
an order, this determination is objective or subjective. In practice,
States typically opt for an objective test that is now reflected in the
leading case of Brasoil.25 There, Brasoil was contracted by a Libyan
State entity to drill wells in the Libyan desert. Following disagree-
ment over the quality of the works, the parties commenced arbitral
proceedings in France. A partial award on liability was initially
issued by the tribunal against Brasoil, but when at the damages
phase the authority submitted documents which Brasoil claimed
had been fraudulently withheld, Brasoil requested the tribunal to
review its partial award in light of these circumstances. The tribunal
denied the request on the ground that it was an order, not an award,
but this did not stop Brasoil from initiating set-aside proceedings
against the ‘order’ before French courts. The Paris Appeals Court
upheld Brasoil’s request on the ground that the qualification of a
decision as an award or order does not depend on the tribunal’s
classification. In the case at hand, the order (partial award) in fact
settled one of the parties’ chief disputes, namely Brasoil’s liability in
respect of the quality of the works undertaken.
2.2 Res Judicata

Another quality of arbitral awards which the Model Law omits reference
to is res judicata.26 The principle of res judicata provides that a fact or
right (entitlement) already determined by a competent court or tribunal
cannot subsequently become the subject of litigation or arbitration
118 ALR 644; Environmental Export Intl of Canada v. Success Intl Inc. (1995) 19 BLR
(2nd); Inforica Inc. v. CGI Information Systems and Management Consultants Inc. [2009]
ONCA 642 (CanLII).
25
Braspetro Oil [Brasoil] Services Co. v. The Management & Implementation Authority of the
Great Man-Made River Project (Libya), Paris Appeals Court judgment (1 July 1999),
[1999] Rev. Arb. 834.
26
Article 34(2) of the UNCITRAL Arbitration Rules (2010), on the basis of which the
pertinent provision in the Model Law was modelled, added that awards shall be ‘final and
binding on the parties’. Such a stipulation is omitted in art. 31 of the Model Law, but is
implicit by reference to general principles. It was at the urging of the US representative
that the word ‘final’ was included in the text of art. 34(2) of the UNCITRAL Rules.
Summary Record of the 151st Meeting of UNCITRAL, UN Doc. A/CN.9/SR.166 (1975),
190. The terms ‘final and binding’ were later approved by the Working Group for the 2010
revisions and given a threefold meaning, one of which corresponds to res judicata. See
UN Doc. A/CN/9/641 (n. 12), 17.

between the same parties. Res judicata assumes the existence of an award
between the same parties (encompassing both privity and mutuality), the
same subject matter and the same claim of relief; the so-called triple
identity test. This test is grounded in article 1351 of the French Civil
Code, but is by no means exclusive to France as it applies universally,
albeit under distinct legal categorisations. In the common law, the prin-
ciple of res judicata is a form of estoppel, which in turn is a rule of
evidence.27 More specifically, it constitutes both a cause of action estop-
pel as well as issue estoppel.28 As a cause of action estoppel, its emphasis
is procedural, namely the action for arbitral resolution, which is naturally
precluded. Issue estoppel, on the other hand, concerns the issue or right
that has already been the subject of an award, and which may not be
arbitrated anew.29 It is generally agreed that issue estoppel is not
restricted to the dispositive part of the award, but extends also to its
reasoning, as well as any available counterclaims.30 However, subsidiary
or collateral matters, as well as orders on procedural issues, are not
covered by issue estoppel. Cause of action estoppel, on the other hand,
prevents a party asserting or denying a particular cause of action that has
already been entertained by a tribunal between the same parties. All
claims arising from a single event and relying on the same evidence
qualify as constituting the same cause of action. A third category is also
recognised, namely abuse of process, whereby a party is precluded in
subsequent litigation/arbitration from raising a claim or an issue which
could have been brought in earlier proceedings had the party exercised
due diligence.31 Civil law jurisdictions differ in their approach as com-
pared to their common law counterparts. They take the view that res
judicata gives rise to a cause of action estoppel that is limited to the
dispositive part of the award.
So far, we have restricted our analysis to an examination of the effects
of res judicata to existing disputes. Although, as we have already
27
Carl-Zeiss Stiftung v. Rayner & Keeler Ltd (No. 2) [1966] 2 All ER 536, 564, per Lord Guest.
28
In US law, one speaks of claim preclusion and issue preclusion (or collateral estoppel),
which is roughly equivalent to the two forms of estoppel under English law.
29
See ILA, ‘Final Report on Res Judicata and Arbitration’ (Toronto, 2006), Part II, paras 4, 5.
30
Ibid., Pt I, paras 52–53; in Apotex Holdings Inc. and Apotex Inc. v. USA (Apotex III), ICSID
Award, 25 August 2014, para. 7.42, it was held that under the res judicata doctrine
‘operative part[s] as a dispositive can and should be read with the relevant motifs or
reasons for that operative part’ (emphasis added). In the case at hand, the ICSID tribunal
referred to the determination of an activity as an investment by means of a prior award
under the UNCITRAL Rules.
31
Henderson v. Henderson (1844) 6 QB 288; see ILA Final Report, Pt I, para. 2.11.

812 article 31: form and c ontents of a wa rd
emphasised, arbitral awards do not create precedent in respect of future

disputes, there are circumstances whereby an issue of fact or the legal
consequences of a fact that is already the subject of an award may have
some degree of precedential value. In Associated Electric and Gas
Insurance Services Ltd v. European Reinsurance Co. of Zurich, the parties
to reinsurance arbitration had concluded a confidentiality agreement
that prevented them from disclosing material to third parties. An arbitral
award was issued, but one of the parties commenced subsequent arbitral
proceedings under the same reinsurance contract as the first arbitration.
The question was whether the issues determined in the first award could
be taken as res judicata in the course of the subsequent arbitral proceed-
ings, despite the existence of the confidentiality agreement. The Privy
Council, acting as a final appellate court, accepted that a tribunal was able
to rely on an issue finally determined by an arbitral award, this being ‘a
species of the enforcement of the rights given by the [prior] award’,
adding further that this did not constitute a breach of the parties’ con-
fidentiality agreement.32 This is a significant development, which has not,
however, been universally tested. Undoubtedly, some arbitrators may be
apprehensive, fearing set-aside or enforcement challenges on due process
grounds, particularly claims alleging that the tribunal failed to equally
hear the parties on the issue that was determined by a prior award.
Needless to say, some degree of uniformity, perhaps through a treaty
mechanism, needs to be established at global or regional level with a view
to sustaining the res judicata effect of issues already determined by
lawfully constituted tribunals. This is required by legal certainty, despite
the fact that res judicata is a general principle of law and need not be
proven by the parties.
2.3 ‘Award in Writing’

It is not self-evident that all arbitral processes be in writing, since article 7
of the Model Law recognises that some jurisdictions may allow the parties
to enter into oral submission agreements. For the purpose of the award,
however, other considerations prevail. Awards must be in writing, other-
wise it is uncertain whether their formal criteria have been satisfied, such
as signatures, reasoning, etc. By extension, the absence of a written award
renders any challenges impossible and enforceability under the New
32
Associated Electric and Gas Insurance Services Ltd v. European Reinsurance Co. of Zurich
[2003] 1 WLR 1041.

York Convention becomes perilous. If the award satisfies the formal

criteria under article 31 of the Model Law, then the ‘writing’ requirement
may be satisfied by a plethora of formats. For example, awards may be
written in ink or pencil, as well as be typed or printed. They may appear
as computer documents, circulated by email, without having been
printed, although in practice enforcement courts will demand, as pre-
scribed in article IV(1)(a) of the New York Convention, a printed copy of
the award.
2.4 ‘Signed by the Arbitrator(s)’

Paragraph 1 of article 31 requires (‘shall’) that arbitral awards must be
signed by the arbitrators that wrote/issued them.33 Several observa-
tions are pertinent here. The provision acknowledges that a signature
is personal and hence the right (and corresponding) obligation to
append a signature belongs to the arbitrators that heard the case and
issued the award(s), unless the tribunal was truncated in which case
the same rule applies mutatis mutandis, as will be explained below.
This observation also entails that unless physically incapable the
arbitrators in question must sign in person and not through repre-
sentatives or proxy.34 Although signatures are typically appended at
the very end of the award, in some jurisdictions it may be common
practice to append signatures at the end of each page. Given that the
aim of the signature is to ensure and verify that the text of the award
is that which was written by the arbitrator, the place of the signature
on the document is not important, provided that the intention of the
arbitrator (as confirmed by pertinent practice) was to issue and verify
a final award.
The prevalence of electronic forms of contracts and signatures, as well
as technological advancements that allow persons to sign from remote
locations, entails that the Model Law should be construed consistently
with all other UNCITRAL texts, customary international law and
accepted lex mercatoria. This is the case, for example, with the 1996
UNCITRAL Model Law on Electronic Commerce and the 2005 UN
Convention on the Use of Electronic Communications in International
33
Article 603(1)(g) of the Romanian CCP requires also the signature of the secretary of the
tribunal.
34
Even if proxy signatures in respect of arbitral awards are permitted in some jurisdictions,
the parties should not expect that this peculiarity will always be accepted universally,
especially in relation to enforcement proceedings.

Contracts.35 Electronic signatures must be distinguished from digital

signatures. An electronic signature is anything in electronic form that
may serve as indisputable evidence that the signing entity intended its
signature as producing legal effect. An electronic signature is generated
by a computer or a computer-like device, a particular form of which is a
digital signature.36 It is now accepted by the majority of nations that an
agreement recorded by electronic means of communication is valid.37
2.5 Failure to Sign

Although uncommon, there may well be an abundance of reasons as to
why one or more arbitrators failed to sign the award.38 These may
include:39 sickness or incapacitation; acute disagreement with the dis-
positive or reasoned part of the award, particularly where the availability
of a dissenting opinion is absent; delay tactic in order to favour one of the
parties, perhaps also in the hope that the award will be set aside; indif-
ference or lack of professionalism; or failure of the parties to pay the
arbitrators’ fees,40 although this final reason is also discussed below in
respect of paragraph 4 of article 31 of the Model Law. There could, of
course, exist many other circumstances.
It should be stated that in recent years a number of guarantees have
been put in place in order to avoid situations whereby arbitrators refuse
or fail to sign arbitral awards, or at least to alleviate their impact on
diligent parties. One of these concerns the civil liability under institu-
tional rules of arbitrators that unjustifiably fail or refuse to sign awards in
35
UN GAOR 51st Session, Supp. No. 17, UN Doc. A/51/17 (1996), annex I; UNGA Res. 60/
21 (23 November 2005).
36
A digital signature comprises ‘data appended to, or a cryptographic transformation of, a
data unit that allows a recipient of the data to prove the source and integrity of the data
unit’. See S. Mason, Electronic Signatures in Law, 3rd edn (Cambridge University Press,
2012), p. 189.
37
Chloe Z. Fishing Co. v. Odyssey Re. (London) Ltd, 109 F. Supp. 2d 1236, 1250 (SD Cal.
2000); Great Offshore Ltd v. Iranian Offshore Engineering & Construction Co., Indian
Supreme Court judgment (25 August 2008), [2008] 14 SCC 240; Oonc Lines Ltd v. Sino-
American Trade Advancement Co. Ltd, Hong Kong Court of First Instance judgment (2
February 1994), [1994] HKCFI 193.
38
Unlike the Model Law, under the terms of art. 189(2) of the Swiss PILA, the signature of
the president suffices for the award to be valid.
39
See UN Doc. A/CN.9/SR.166 (n. 26), 188 (comment by the Chairman).
40
Exceptionally, some laws, such as s. 7(1), Sch. 2 and s. 56 of the English AA, stipulate that
the arbitrators may withhold the final award until such time as the parties pay their fees in
full.

cases heard by them, equating such conduct to a breach of contract. This

is a strong disincentive and might well arise also (i.e. irrespective of any
liability from institutional rules) under the law of contract or tort of the
lex arbitri, depending on the legal nature of the arbitrators’ appointment.
A second guarantee is that an arbitrator who maliciously fails or refuses
to sign an award is unlikely to be appointed again or otherwise be
included in the lists of arbitral institutions. Third, as paragraph 1 of
article 31 clearly stipulates, in the event of multi-arbitrator panels, the
award remains valid even if one of the arbitrators fails to sign, provided
that the majority sign the award and reasons are provided as to why the
absentee arbitrator failed or refused to sign.41 The travaux to the
UNCITRAL Arbitration Rules demonstrate strong disagreement over
the idea that the failure of one arbitrator to sign does not impair the
award as a matter of domestic law.42 Here, the texts of article 31(1) of
the Model Law and article 34(4) of the Rules differ. Whereas under the
former the absence of a signature does not impair the award, under the
Rules the matter is left open to the dictates of the law of the seat.43 As a
result, the Rules are silent on this matter,44 as opposed to the Model Law,
which promotes a uniformity in favour of salvaging such awards.
The wording of paragraph 1 of article 31 of the Model Law leaves no
doubt that where the tribunal was composed of a single arbitrator who
refused or failed to sign the award, the final text will not constitute an
award in the absence of the arbitrator’s signature. Equally, where the
parties expressly provided for all arbitrators to sign the award and one
fails to do so, although otherwise salvageable by the remaining members,
41
In respect of an award signed by the two arbitrators of a three-member panel, the Dutch
Supreme Court refused to accept that the dissenting opinion of the absent arbitrator
formed part of the award. In fact, it found the award to be invalid on the ground that all
three signatures were mandated under the law at the time. Bursa Büyüksehir Belediyesi v.
Güris Insaat VE Mühendislik AS, Case No. CO7/166HR judgment (5 December 2008).
Such a result is inconsistent with art. 31(1) of the Model Law.
42
Report of the Secretary-General on the Preliminary Draft Set of Arbitration Rules, UN
Doc. A/CN.9/97 (1974); UN Doc. A/CN.9/SR.166 (n. 26), 190 (Belgian delegate) and 189
(German delegate). See also Committee of the Whole (II), Summary Record of the
Eleventh Meeting, UN Doc. A/CN.9/9/C.2/SR.11 (21 April 1976), 5, as per the Austrian
delegate.
43
Report of the Secretary-General, Revised Draft Set of Arbitration Rules for Optional Use
in Ad Hoc Arbitration relating to International Trade (Addendum), UN Doc. A/CN.9/
112/Add.1 (12 December 1975), commentary on art. 27(3), reprinted in (1976) VII
44
Report of UNCITRAL on the Work of Its Ninth Session, UN Doc. A/31/17 (1976),
para. 165.

the award is invalid.45 A truncated tribunal will be meaningless in such

cases because the dispute will have already been heard. The parties will
have to constitute a new panel with all the expenses and wasted time this
entails. Of course, if the parties specifically designated/chose the parti-
cular arbitrator in their submission agreement to the exclusion of any
other, they must enter into a new submission agreement.
Truncated tribunals originally composed of three or more arbitrators
and in respect of which one arbitrator fails to sign the award should in
principle be allowed to issue a valid award, unless this is contrary to the
parties’ agreement, the law of the seat or their chosen institutional rules.
Increasingly, more and more institutional rules cater for truncated pro-
ceedings and unless there is disagreement between the parties there is
little reason why truncated awards should be viewed as suffering from a
defect that renders them unenforceable.46 Even so, the tribunal and the
parties must tread with caution because a string of cases suggests that
where the operation of a truncated tribunal is deemed to be contrary to
the (constitutional) principle of equal treatment, the award may be set
aside.47 The same outcome has been confirmed where a truncated tribu-
nal issued an award without providing the parties with adequate notice in
advance of its intention to render a truncated award.48
A fourth guarantee, although largely theoretical, encompasses an
application to the courts of the seat by which to compel the arbitrator
to sign the award. To the best knowledge of the authors, this has not been
tested in practice, but the claim itself is certainly plausible and concerns
specific performance arising under contract.
It is not clear from the text of paragraph 1 who is responsible, if any, for
drafting the reasons in situations where an arbitrator omits or refuses to
place his or her signature. In practice, this obligation befalls the presiding
arbitrator where the omission relates to another arbitrator on the panel.49
45
4th Civil Chamber of Turkish Supreme Court, judgment 15806/8615 (4 October 1973),
reprinted (in Turkish) in (1975) 177 Journal of Jurisprudence 3760.
46
Himpurna California Energy Ltd v. Indonesia, Final Award (16 October 1999), (2000)
XXV YB Com. Arb. 186, 194, where the tribunal emphasised that it was not only entitled,
but obliged, to continue.
47
ATC-CFCO v. Compagnie Minière de l’Ogooue – Comilog SA, Paris Appeals Court
judgment (1 July 1997), [1998] Rev. Arb. 131; First Inv. Corp. of the Marshall Islands v.
Fujian Mawei Shipbuilding, Ltd, 858 F. Supp. 2d 658 (ED La. 2012).
48
This was found to violate the parties’ submission agreement under art. 34(1)(a) of the
Model Law. See CLOUT Case 662 (2002). In the case at hand, the notice was a mere day.
49
D. D. Caron and L. M. Caplan, The UNCITRAL Arbitration Rules: A Commentary, 2nd edn
(Oxford University Press, 2013), p. 749, who also cite several instances from the Iran–US

In this manner, the formalities of the award will be satisfied and the
award will produce legal effects.
The failure of an arbitrator to sign an award that has been duly
signed by the other arbitrators does not constitute a public policy
consideration because the default rule conclusively rectifies the failure
of the arbitrator. Model Law States should under no circumstances
consider such a failure as a public policy restriction. The Austrian
Oberster Gerichtshof (OGH, Supreme Court) has affirmed that the
failure by one arbitrator to append his signature to the award as well
as the failure of all arbitrators to deliberate in person before render-
ing the award was not offensive to Austrian public policy.50 Although
there is no research as to whether this represents a universal princi-
ple, the clear wording of article 31(1) of the Model Law should
certainly give no space in favour of public policy considerations in
enforcement or set-aside proceedings.
2.6 Dissenting Opinions

The obligation to write reasons in order to explain the rationale for
one’s failure to sign is not tantamount to a dissenting opinion, because a
dissenting opinion assumes that the arbitrator/judge has signed the
award/judgment and is merely explaining his or her objection, dissent
or personal views on the law or merits of the dispute.51 The dissenting
arbitrator will do well to write his or her own reasons, particularly if
they pertain to an irregularity beyond his or her control (e.g. intimida-
tion or bribe offer at the close of proceedings) with a view to explaining
his or her own position and mitigating liability, if any. With a view to
addressing such issues, the travaux to the UNCITRAL Arbitration
Rules, although its 1976 preliminary draft excluded dissenting opi-
nions,52 de-linked dissenting opinions from an arbitrator’s refusal to
sign an award and tacitly allowed dissenting opinions (where permitted
Claims Tribunal whereby Iranian judges supplied their own reasons in lieu of not signing
awards with a view to frustrating the award’s validity.
50
Joint Stock Co. v. Ltd Liability Co., Case No. 3Ob154/10h, OGH judgment (13 April 2011).
51
Article 823(7) of the Italian CCP stipulates that: ‘The signature of a majority of the
arbitrators shall suffice, provided that mention is made that it was deliberated with the
participation of all the arbitrators and that the other arbitrators were either unwilling or
unable to sign.’
52
Report of the Secretary-General on the Preliminary Draft Set of Arbitration Rules for
Optional Use in Ad Hoc Arbitration relating to International Trade, UN Doc. A/CN.9/97
(4 November 1974), reprinted in (1975) VI UNCITRAL YB 163, 177.

by the lex arbitri).53 Such an approach was deemed necessary because a

different outcome would prompt a dissenting arbitrator to refuse sig-
nature as a gesture of his or her personal dissent, which, however, would
have a negative (and perhaps unintentional) bearing on the award.54
The Commentary to the 1986 version of the Model Law did not exclude
the possibility of dissenting opinions, if permitted under national law,
but left this matter to article 19(1) and (2) of the Model Law as a matter
of the conduct of the proceedings.55 The Norwegian delegate, in fact,
suggested adding an explanatory paragraph whereby the award shall
state whether it has been rendered unanimously. If there were dissents,
these would be noted next to the name of the dissenting arbitrator. The
proposed paragraph, which did not ultimately survive, went on to say
that ‘any dissenting arbitrator is entitled to state in the award the
reasons upon which his dissent was based’.56
With few exceptions,57 the majority of arbitral statutes do not address
the issue of dissenting opinions, but counsel writing in professional
publications as national rapporteurs usually assert that they are implicitly
allowed (as long as they do not breach confidentiality), but are uncom-
mon in practice. In B v. A, it was held that dissenting opinions to arbitral
awards do not form part of the award, but may be admitted as evidence in
respect of procedural matters or in order to enlighten the courts in cases
of appeals on a point of law where the governing law is that of England
and Wales.58
53
See J. Castello, ‘UNCITRAL Rules’ in F.-B. Weigand (ed.), Practitioner’s Handbook on
International Commercial Arbitration, 2nd edn (Oxford University Press, 2009), p. 1512;
UN Doc. A/CN.9/9/C.2/SR.11 (n. 42), 5, as per the US delegate. See also R. Mosk and T.
Ginsburg, ‘Dissenting Opinions in International Arbitration’ in M. Tupamäki (ed.), Liber
Amicorum Bengt Broms (Finnish Branch ILA, 1999), p. 271.
54
See UN Doc. A/CN.9/SR.166 (n. 26), 188 (Polish delegate); Report of the Secretary-
General on the Revised Draft Set of Arbitration Rules, UN Doc. A/CN.9/112 (7
November 1975). It is for this purpose that it was unequivocally agreed that all
arbitrators, even those dissenting, should be required to sign the award. See UN Doc.
A/31/17 (n. 44), para. 163.
55
UN Doc. A/CN.9/264 (n. 6), 66. It should be noted, however, that Sudan tabled a
proposal to the extent that para. 1 would expressly exclude dissenting judgments from
the body of the award. Analytical Compilation of Comments by Governments and
International Organizations on the Draft of a Model Law on International Commercial
Arbitration, Report by the Secretary-General, UN Doc. A/CN.9/263/Add.1 (15 April
1985), 18.
56
UN Doc. A/CN.9/263 (n. 7), 44.
57
PRC Arbitration Law, art. 53; dissenting opinions are not uncommon in China.
58
B v. A [2010] EWHC 1626; equally, as per the Swiss Federal Tribunal in D v. A (1992) ASA
Bull. 381, 386.

It is queried whether, in jurisdictions where arbitrators are not

permitted to issue dissenting opinions,59 arbitrators may validly
refuse to sign as a matter of their freedom of expression. It may be
argued, for example, that if they were forced to sign an award con-
taining views and ideas to which they were wholly opposed, failure to
differentiate their position would violate their right to freedom of
expression.60 This query must be answered in the negative because
arbitrators are obliged under contract to hear a dispute and issue an
award, knowing in advance that they might have to sign an award
decided by the majority, even if they are in disagreement with its
disposition of the law and facts.
3. Paragraph 2
Paragraph 2 concerns one of the formalities usually associated with
awards, namely the requirement that they be reasoned. However, as
will be demonstrated, this requirement is not shared universally and
that is why the Model Law allows a great degree of party autonomy
on this matter. Even so, caution must be exercised in circumstances
where the intended country of enforcement requires that the award
be reasoned, lest it is denied recognition and enforcement. It should
not also be forgotten that non-legal factors shape the extent and
nature of an award’s particular reasoning.61 In practice, seasoned
practitioners presume that with the exception of the majority of
investment awards (as well as judgments by international tribunals),
the majority of international commercial awards are frugal or insuffi-
cient in their reasoning.62
59
Few institutional rules expressly refer to dissenting opinions, but in principle there is no
rule forbidding them, except where the deliberations between a panel of arbitrators are
presumed to be confidential. Rule 47(3) of the ICSID Arbitration Rules is one of the few
rules that explicitly caters for dissenting opinions.
60
Article 10(1) of the ECHR protects the freedom of expression, which may encompass
dissenting opinions. In any event, para. 2 of art. 10 of the ECHR places some indicative
restrictions on this freedom, which may well encompass an obligation by arbitrators to
render an award for which they have been contracted even if not permitted to offer a
dissenting opinion.
61
A study examining the reasoning of ICC and ICSID awards identified several factors,
namely: the subject matter of the decision, the degree of publicity of the award, the size of
its expected readership and the cultural milieu(s) to which the arbitrators belong. See M.
Infantino, ‘International Arbitral Awards’ Reasons: Surveying the-State-of-the-Art in
Commercial and Investment International Dispute Settlements’ (2014) 5 JIDS 175.
62
See P. Lalive, ‘On the Reasoning of International Arbitral Awards’ (2010) 1 JIDS 55.

820 a r t i c l e 3 1 : f o r m a nd co n t e nt s o f aw a r d
3.1 Reasoned Awards

Paragraph 2 sets out the basic rule, namely that awards shall be rea-
soned,63 subject to two exceptions: (1) exclusion of reasoning by agree-
ment of the parties; and (2) the award is based on the parties’ agreed
terms (otherwise known as consent award) as stipulated in article 30 of
the Model Law. The two default variables should be approached with
caution because the lex arbitri and the law of the country of enforcement
may demand a reasoned award without necessarily deferring to party
autonomy.64 However, even if they do not, the absence of reasoning may
create problems to the winning party in several ways. By way of illustra-
tion, the losing party may argue that the arbitrators exceeded their
authority or that the award deals with a dispute not contemplated or
falling outside the parties’ agreement. The absence of reasoning in such a
case, even if lawful under the lex arbitri, may give rise to set-aside
proceedings under article 34(2)(iii) of the Model Law, whereby the
winning party has little evidence to refute a violation of article 34. The
opposite is also true, however. The Tunisian Court of Cassation (a Model
Law nation) set aside an award on the ground that its reasoning was
contradictory.65 This line of argumentation has been accepted by several
courts of other Model Law nations66 and in some sense justifies the
requirement for reasoned awards. However, whatever the merits of
such judgments, it is generally wrong to assess contradictory or erro-
neous reasoning as a ground for setting an award aside because if any-
thing poor reasoning is not a legitimate set-aside ground, but a disguised
appeal on the merits or the application of the law. A poorly reasoned
award can only be set aside if the reasoning is in such a state that even the
dispositive part of the award is incomprehensible. But even so, the
63
This is also the case with art. 34(3) of the UNCITRAL Arbitration Rules. When the Rules
were drafted, it was widely recognised that reasoned awards were the norm in civil law
countries. UN Doc. A/CN.9/112/Add.1 (n. 43); UN Doc. A/CN.9/9/C.2/SR.10 (n. 11), 8.
Common law nations, particularly the United Kingdom, objected, arguing that the rule
should be permissive. Ibid., UN Doc. A/CN.9/9/C.2/SR.10 (1976), 8. The UK objection
was overruled in the 1976 version of the Rules. It should be stated that the common law
position has now firmly changed and, as demonstrated below, the rule in art. 31(2) of the
Model Law is now of near-universal application.
64
Swiss PILA, art. 189(2); in Shady Express Ltd v. South Star Freightliner Ltd, judgment (14
March 2008), the High Court of Wellington (New Zealand) held that failure to state
reasons may justify setting the award aside.
65
Case No. 20596/2007; equally, the Italian Cassation Court in SpA Abati Legnam (Italy) v.
Fritz Häupl (1992) XVII YB Com. Arb. 529.
66
CLOUT Case 569, Hanseatisches Oberlandesgericht Hamburg, 8 June 2001, 11 Sch. 1/01.

arbitrators may be asked to correct it67 and this is certainly a much better
outcome than setting it aside.
The parties may have valid concerns for choosing unreasoned awards.
Where they request the tribunal to assess whether a particular action or
contractual duty was actually carried out, this does not usually require
much discussion. In such cases, the award may simply declare whether
and how the action took place without further, or at least significant,
analysis. Equally, even if a reasoned award were otherwise justified, the
parties, driven by cost considerations, may opt for a brief unreasoned
award (assuming the arbitrators’ fees are less). Moreover, the parties may
wish to keep the substance of their dispute confidential and hence request
that the tribunal omit any reasons from the final award.68 The
Commentary to the 1986 version of the Model Law pointed out that
waivers to provide reasons need not only be explicit, but also implicit.
This is possible by reference to institutional rules that waive any kind of
reasoning and the practice in some systems where the tribunal’s reasons
may be provided in a separate document from that of the award.69
Of course, the depth of the tribunal’s reasoning must be consistent
with the dispute at hand. Disputes concerning whether goods have
actually been supplied do not require lengthy analyses; they either
occurred or not, but even so the tribunal must record the evidence for
its ‘yes’ or ‘no’ answer.70 Typical reasoning records the facts and then
relates these to the applicable law in order to reach a sensible conclusion.
Australian courts initially accepted that ‘the scope of an arbitrator’s
obligation to give reasons is logically the same as that of a judge’.71 This
standard seemed far too strict for the Australian High Court, which more
recently held that the requirement for reasons in a given case depends
upon its particular circumstances.72
Exceptionally, the US Supreme Court, in contrast to European arbi-
tration statutes, has held that arbitrators have no obligation to provide
67
In accordance with Model Law, art. 33(1)(b).
68
See T. Bingham, ‘Reasons and Reasons for Reasons: Differences between a Court
Judgment and an Arbitral Award’ (1988) 4 Arb. Intl 141.
69
UN Doc. A/CN.9/264 (n. 6), 67.
70
A sensible compromise solution is art. 823(5) of the Italian CCP, which simply requires ‘a
brief statement of the reasons’. The Italian Supreme Cassation Court has ruled that
awards will be set aside only if no reasons whatsoever are provided or if the reasons
given do not allow one to understand the tribunal’s rationale/ratio descidendi. See
Judgment Nos 11315 (16 May 2007) and 178 (9 January 2008).
71
Oil Basins Ltd v. BHP Billiton Ltd [2007] 18 VR 346 (CA), 366.
72
Westport Insurance Corp. v. Gordian Runoff Ltd [2011] HCA 37.

822 ar tic l e 31 : f orm a n d co nt e n ts of aw ar d
reasons for an award.73 The Swedish Supreme Court has held that,
although awards must be reasoned, an award will only be set aside if it
lacks reasoning in toto (completely).74 With the exception of the United
States, the situation is more or less uniform between Model Law75 and
non-Model Law76 States.
One of the two default rules in paragraph 2 concerns awards on agreed
terms. The word ‘unless’ indicates that awards on agreed terms constitute
an exception to the rule whereby all awards must be reasoned, but it is not
clear if this is because of the character of such awards or as a result of
party autonomy. Paragraph 2 of article 31 in fact refers to article 30,
which specifically refers to such awards. However, article 30(2) does not
tackle the issue itself, but refers back to article 31, stipulating that awards
on agreed terms shall comply with the requirements laid down in article
31. Given that under article 30(1) the tribunal shall simply ‘record the
settlement’ – which implies that the parties may wish it to be unreasoned
– and under article 31(2) consent awards constitute an exception to the
requirement for reasoned awards, consent awards need not be reasoned.
4. Paragraph 3
Paragraph 3 seems to introduce a straightforward formality to arbitral
awards, namely the requirement to include the date issued and the place
where the arbitral proceedings took place. This is hardly straightforward,
however, because the second sentence of paragraph 3 makes the pre-
sumption that the place where proceedings took place is deemed to
coincide with the place where the award was issued. Although this
presumption is rational, it does not always abide with the realities of
arbitration and in any event, it is not clear whether or not this presump-
tion is rebuttable.
73
United Steelworkers of America v. Enterprise Wheel Car Corp., 363 US 593 (1960), 598;
Michael M. Pfeifle v. Chemoil Corp. (2003) Fed. App’x 720, 722; DH Blair & Co. v.
Gottdiener, 462 F.3d 95 (2nd Cir. 2006); Stark v. Sandberg, Phoenix & von Gontard, PC,
381 F.3d 793 (8th Cir. 2004); Wallace v. Buttar, 378 F.3d 182 (2nd Cir. 2004). Although it
is true that the FAA is construed as not requiring reasoned awards, the case is different
where reasoning is required under the parties’ chosen institutional rules.
74
Soyak Intl Construction and Investment Inc. v. Hochtief AG [2009] NJA 128. It went on to
say, however, that providing reasons is a guarantee of due process, which has to be
balanced against the interest in the finality of awards.
75
See e.g. HKAO, s. 67. This is a far cry from older case law, such as Kong Kee Bros
Construction Co. Ltd v. A-G [1986] HKLR 767, 771.
76
English AA, s. 52(4).

4.1 Date of the Award

The date of the award is of crucial importance for a number of reasons.
First, it allows the parties to estimate the time limits under domestic law
for lodging set-aside or other claims against the award, as well as to assess
whether the arbitrators complied with the time limits set upon them by
the pertinent institutional rules, or any extensions agreed thereafter.
Second, the date of the award may be pertinent in respect of any proce-
dural prescriptions (as to claims) under domestic law, although these are
usually dispensed with once the claim is filed. Third, there may be
registration or filing requirements for awards that are time-sensitive.77
Article 8(1)(d) of the Limitation Law of Lagos State (Nigeria) stipulates a
six-year limitation period for foreign awards which commences from the
date the cause of action was accrued,78 as opposed to the date the award
was issued.79 Finally, although there may well be others, the date of the
award determines the applicable substantive and procedural law as
determined in the submission agreement. If the parties’ agreement was
made on 1 January 2015 and stipulated that the tribunal shall apply the
law of contract of Kenya and this law was subsequently amended on 1
January 2016, it is a matter of construction of the agreement whether the
tribunal should apply the law as amended if the award is issued in March
2017. If the agreement may be construed as encompassing all amend-
ments to the relevant law until the award is issued, then the date of the
award is crucial.
The actual date of the award is not a straightforward matter. A panel of
three arbitrators, all of which are domiciled in different continents, may
decide on the text of the award on 1 May, whereas the signatures of all
three on the body of the award, whether scanned or couriered, finally
appear on 15 May. Paragraph 3 of article 31 is silent as to which of these
dates is crucial. The test employed in section 54 of the English Arbitration
77
In respect of recognition and enforcement of foreign awards in the United States, ch. 1 of
the FAA requires that a petition for judicial confirmation must be filed within one year of
the date the arbitral award is made. In respect of New York and Panama Convention
awards, the time limit is three years (chs 2 and 3).
78
This has been modelled verbatim from s. 7 of the English Limitation Act 1980 and its
predecessors.
79
See Murmansk State Steamship Line v. Kano Oil Millers Ltd (1974); All Nigeria Law
Report, 893 and City Engineering Nigeria Ltd v. Federal Housing Authority (1997) 9
NWLR (Pt 520) 224, both decided by the Nigerian Supreme Court; and Tulip Nigeria
Ltd v. Noleggioe Transport Maritime SAS (2011) 4 NWLR (Pt 1237) 254, by the Lagos
Appeals Court; see to the same effect, Natl Ability SA v. Tinna Oils & Chemicals Ltd (The
Amazon Reefer) [2009] EWCA Civ. 1330.

824 a r t i c l e 31 : f o r m a n d co n t e n ts of aw a r d
Act is sensible and finds the appropriate balance between party auton-
omy and the need for predictability.80 It states that:
(1) Unless otherwise agreed by the parties, the tribunal may decide what
is to be taken to be the date on which the award was made.
(2) In the absence of any such decision, the date of the award shall be
taken to be the date on which it is signed by the arbitrator or, where
more than one arbitrator signs the award, by the last of them.
A crucial observation is pertinent at this stage. The tribunal’s power

under subsection 1 to determine the date on which the award was
made is not arbitrary and the parties’ choice of institutional rules
will prevent a negligent tribunal from ascribing an earlier date in
order to avoid contractual or tort liability81 or face a fee reduction.82
Such an arbitrary determination is equally unacceptable under
general principles of law even where the arbitration is ad hoc.
Although failure to append the correct date, or any date, is not
among the grounds, directly or indirectly, for setting an award
aside, in many jurisdictions such a duty on the part of arbitrators
constitutes a mandatory provision. As a result, if the tribunal fails to
observe a time limit set by the parties or by law (mandatory limits),
the award is considered null and the arbitration agreement no longer
effective.83
4.2 The Place of the Award

Paragraph 3 refers to two different places. The first sentence concerns the
‘place of arbitration’,84 whereas the second sentence relates to the place
where the award was made.85 As to the former (i.e. the place of arbitra-
tion), the test for ascertaining it is the same as the test for construing the
80
See D. Altaras, ‘Time Limits for Appealing against or Challenging an Arbitral Award in
England and Wales’ (2008) 74 Arb. 360.
81
Spanish AA, art. 37(2).
82
See art. 30(1) of the ICC Rules, where the general rule is that the time limit for rendering
awards is six months, which commences from the date of the last signature.
83
Luxembourg District Court, Judgment No. 11376 (15 January 2009).
84
See Settlement of Commercial Disputes: Revision of the UNCITRAL Arbitration Rules,
Note by the Secretariat, UN Doc. A/CN.9/WG.II/WP.151 (2008), para. 38, which stated
that the phrase ‘place of arbitration’ is meant to ‘distinguish between the place of
arbitration (meaning the legal seat) and the location where meetings could be held, in
terms similar to those adopted under Art 20 of the [Model Law]’.
85
See F. Mann, ‘Where Is an Award Made?’ (1985) 1 Arb. Intl 107.

parties’ choice of seat, namely article 20(1) of the Model Law. This
stipulates that:
The parties are free to agree on the place of arbitration. Failing such
agreement, the place of arbitration shall be determined by the arbitral
tribunal having regard to the circumstances of the case, including the
convenience of the parties.
Although clearly the choice of seat and the place of the proceedings
should be identical, this is not always the case because the subject matter
of the dispute may have subsequently changed, as indeed the parties’
and arbitrators’ personal circumstances.86 The place of proceedings, as
chosen by the parties or ordered by the tribunal or the courts, refers to
the juridical seat of the tribunal and this is of the utmost importance for
the proceedings and the award. The law of the seat (otherwise known as
lex arbitri or curial law) governs the proceedings through its mandatory
and permissive provisions. The lex arbitri determines the relationship
between the tribunal and the local courts, the permissibility of particu-
lar actions by the tribunal or the parties, as well as the validity of the
award and whether it may be subject to set-aside, appeal or other
challenges.87
Under general principles of laws88 (and arguably customary interna-
tional law), the choice of seat is presumed to coincide with the place
where the award was issued or rendered89 and this presumption is
rebuttable only in very exceptional circumstances.90 This presumption
effectively describes what is known as the juridical, as opposed to the
physical, seat of the tribunal, which is quintessentially a legal, not a
86
See art. 22 of the UNCITRAL Notes on Organising Arbitral Proceedings, for a list of
considerations that should determine the parties’ choice of seat. This provision was relied
upon by the tribunal in Canfor Corp. v. USA, Decision on the Place of Arbitration, Filing
of a Statement of Defence and Bifurcation of the Proceedings (23 January 2004), 3–9.
87
See L. Mistelis, ‘Reality Test: Current State of Affairs in Theory and Practice Relating to
Lex Arbitri’ (2006) 17 Am. Rev. Intl Arb. 172.
88
See e.g. English AA, s. 53, which effectively overturned the much-criticised judgment in
Hiscox v. Outhwaite [1991] 1 WLR 545, which misconstrued the word ‘made’.
89
Equally, UNCITRAL Arbitration Rules, art. 18(1).
90
According to the preparatory works of the 1972 Danish Arbitration Act, if the parties
agree that the place of arbitration is Denmark, but the proceedings have no such
connection with the country, they would not fall within the scope of the Act. O.
Spiermann, ‘National Report for Denmark (2009)’ in J. Paulsson (ed.), International
Handbook on Commercial Arbitration (Kluwer, 2004, Supp. No. 57, 2009), p. 2; equally,
in Alcatel CIT SA v. Titan Corp. (2005) XXX YB Com, Arb. 139, the Svea Appeals Court
held that although the seat was Sweden, there was no other connection with this country
and on the ground of this insufficient connection dismissed an annulment challenge.

geographic, construct.91 Given that the exigencies of the proceedings

and the circumstances of the parties and arbitrators may require them
to attend hearings, provide evidence or inspect evidence, among others,
in more than one jurisdiction, it would make little practical sense to
adopt any test as to the place of the seat and the award other than the
juridical seat.92 Consequently, the tribunal and the parties are not
constrained by their juridical seat to undertake all relevant processes
in a single location.93 This freedom also applies to signing the award.
There is no indication in the text or the travaux of paragraphs 1 and 3 of
article 31 of the Model Law or article 18(1) of the UNCITRAL
Arbitration Rules that arbitrators are required to sign the award at the
place of arbitration.94
Hence, the determination of the parties’ choice of seat (with its corre-
sponding lex arbitri), although physically and perhaps legally distinct
from the place where the award was actually made, is crucial for ascer-
taining the juridical seat of the arbitration because the two are presumed
to coincide. In explaining this irrebuttable presumption, the UNCITRAL
Secretariat noted the need to ‘avoid the risk that an award be declared
invalid if it was signed in a place other than the seat of the arbitration’.95
Consequently, delocalised arbitral proceedings and awards are alien to
the spirit and letter of article 31(3) of the Model Law, whose aim is to
ensure legal certainty and enforcement of awards worldwide. Such
awards are not in any event recognisable or enforceable under the New
York Convention,96 despite a few notable exceptions.97
91
Methanex Corp. v. USA, Order on the Place of Arbitration (7 September 2000), 3(2); draft
art. XXII of the 1986 version of the Model Law contained the word ‘irrebuttably’ in
brackets in order to highlight the presumption. UN Doc. A/CN.9/WG.II/WP.40 (14
December 1982), draft art. XXII(3). Although there was much support for retaining
this word, it was ultimately removed without, however, any intention that the presump-
tion be construed as rebuttable. Report of the Working Group on the Work of Its Sixth
Session, UN Doc. A/CN.9/245 (1983), para. 115.
92
See NNPC v. Lutin Investment Ltd (2006) 2 NWLR (Pt 965) 506.
93
See e.g. Model Law, art. 20(2); Chilean International Commercial Arbitration Act, art. 20
(2); German ZPO, art. 1043(1); Mexican Commerce Code, art. 1436.
94
Summary Record of the Sixth Meeting of the Committee of the Whole (II), UN Doc. A/
CN.9/9/C.2/SR.6 (1976), 8–10.
95
UN Doc. A/CN.9/614 (n. 12), para. 90; Settlement of Commercial Disputes: Revision of
the UNCITRAL Arbitration Rules, Note by the Secretariat, UN Doc. A/CN.9/WG.II/
WP.145/Add.1 (2006), para. 10.
96
See R. Wolff (ed.), New York Convention on the Recognition and Enforcement of Foreign
Arbitral Awards: Commentary (CH Beck, Hart, Nomos, 2012), pp. 59–62.
97
See e.g. SEEE v. Yugoslavia (1974) Rev. Arb. 318, 321; Wolff, ibid., p. 61.

5 . p ar agr ap h 4 827
5. Paragraph 4
Paragraph 4 concerns the delivery of the award to the parties by the
tribunal. There are several issues this provision does not directly address,
such as the manner of delivery, the incumbent and the withholding of the
award for non-payment of fees, as well as whether the Model Law
requires some kind of registration of the award. While registration is
not required or addressed in the Model Law (but exists under several
legal systems), the other issues are contemplated in the travaux and
discussed in detail in institutional rules.
5.1 Delivery of Copies of Award

Paragraph 4 concerns the delivery of the award to the parties in the form
of signed copies. This obligation is also stipulated in article 34(6) of the
UNCITRAL Arbitration Rules98 and is not a mere formality as will be
demonstrated below. There are several reasons why such an undertaking
is necessary. First, it is only upon receipt of the award that the thirty-day
period for requesting corrections, interpretation or an additional award
is triggered in accordance with article 33 of the Model Law.99 Moreover,
receipt of the award triggers the three-month period for set-aside pro-
ceedings under article 34(3) of the Model Law. Second, for those parties
that intentionally or inadvertently defaulted from the proceedings, this
will serve as notification of the successful completion of proceedings and
the ensuing award. Third, it furnishes parties that wish to recognise and
enforce the award under the terms of article IV(1)(a) of the New York
Convention with the required ‘duly authenticated original award or a
duly certified copy thereof’. Fourth, given that the parties are under an
obligation to carry out the award without delay, the formal communica-
tion of the award to them notifies them of their rights and obligations
thereunder.100
Paragraph 4 does not itself specify further formalities for the ‘delivery’
of signed copies of the award. Moreover, it is silent as to which person or
entity is burdened with the obligation of delivering it to the parties. Given
98
There, however, the key term is not ‘delivery’, but ‘communication’, which is somewhat
misleading because it may be confused with mere notification (e.g. telephone notifica-
tion), which, of course, is not the case for the four reasons provided below in this
subsection.
99
Equally, UNCITRAL Arbitration Rules, arts 37–39.
100
Art. 34(2), ibid.

the centrality of notification in the beginning and end of the arbitral

process and the vast range of practices across jurisdictions, article 3(1)(a)
of the Model Law provides sensible guidance, unless the parties have
otherwise agreed, as follows:
… 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.
In fact, although not specifically spelt out as a ground for annulling the
award, it certainly cannot be considered binding until such time as it is
delivered to the parties through an official channel in accordance with the
law of the lex arbitri or the parties’ chosen institutional rules.101 In most
legal systems, the delivery of a notification by a bailiff suffices and if the
parties’ addresses are unknown (particularly that of the defaulting one),
then a notification is made to their last-known address or to the autho-
rities (e.g. the police or the courts). The arbitral process does not termi-
nate with the award, but only after the time limits for any challenges have
elapsed. As a result, the delivery of a copy of the award to the parties lies
within the arbitral process. Consequently, unlawful or negligent delivery
may be challenged, even if it is not considered a ground for setting the
award aside. In a Czech case, the parties had agreed that if documents
could not be delivered to the addressee, they would be returned to the
sender, further deemed to have been delivered to the addressee even if he
had no knowledge of the delivery. When the award was issued, it was
delivered to an address that was not used by the respondent and yet the
plaintiff commenced enforcement proceedings. The Czech Supreme
Court held that a private agreement cannot override the delivery rules
of the lex arbitri (because among other reasons it offends party equality)
101
Under art. 34(3) of the ICC Rules, where the secretariat notifies the parties as to the text
of the award (no means are specified, but it could reasonably be done by email), they may
waive other official methods of delivery. Given that certified copies are available under
art. 34(2) of the ICC Rules and the parties have been duly notified, there does not seem to
be a conflict with the principle of equality of arms or any violation of the delivery rules of
the lex arbitri. Article 26(7) of the LCIA Rules is explicit in that transmission may be
made ‘by any electronic means in addition to paper form’, although in the event of
conflict the paper form prevails.

and that the award does not become final until such rules have been
followed.102
It is clear from the travaux of article 34(6) of the 2010 UNCITRAL
Arbitration Rules (and its predecessor article 32(6) of the 1976 Rules),
which is almost identical to article 31(4) of the Model Law, that the duty
to deliver a copy of the award is incumbent on the presiding arbitrator.103
This duty is more practical in the event of ad hoc arbitrations, whereas in
institutional arbitration this will be undertaken by the secretariat of the
institution.104
Paragraph 4 of article 31 is silent in this connection as to the time limits
for delivering the award once issued. Although some arbitration statutes
specify a time limit for delivery of awards,105 this is not common. Not
surprisingly, institutional rules do not address this point, but their
emphasis is on time limits for the conclusion of the arbitral process as a
whole and the rendering of binding awards (it is assumed that the
secretariat will dispatch awards immediately), as this is what really
matters to the parties.106 The travaux to the 1976 UNCITRAL
Arbitration Rules indicate that while it was thought that a specified
time period for communicating the award would endow the process
with certainty, ultimately this was too rigid and proposed pertinent
phrases such as ‘without delay’.107 In the end, it was decided that no
temporal qualifications would be inserted in the text, but it was clear to all
delegates that ‘both parties will promptly receive copies of the award’.108
Another issue not specifically contemplated in the text of paragraph 4,
but to which we have made some reference in paragraph 1 of article 31 of
the Model Law as a potential reason why an arbitrator may refuse to sign
an award, concerns the withholding of the award for non-payment of the
arbitrators’ fees. This was not disputed in the travaux to the Model
102
Czech Supreme Court Judgment Nos 20 Cdo 1592/2006 (26 April 2007) and 20 Cdo
1528/2005 (26 April 2007).
103
UN Doc. A/CN.9/9/C.2/SR.11 (n. 42), paras 51–54 (comments by the representatives of
Belgium and Nigeria).
104
ICC Rules, art. 34(1); article 26.7 of the LCIA Rules is more specific in that the presiding
arbitrator is obliged to first deliver the award to the LCIA Court, which will then transmit
it to the parties.
105
See S. Kroll, L. Mistelis and J. Lew, Comparative International Commercial Arbitration
(Kluwer, 2003), p. 638.
106
For example, this is six months in art. 30(1) of the ICC Rules, subject to further
extensions.
107
UN Doc. A/CN.9/9/C.2/SR.11 (n. 42), paras 55–67.
108
Report of the Secretary-General on the Revised Draft Set of Arbitration Rules, UN Doc.
A/CN.9/112/Add.1 (1975).

Law109 and in fact constitutes a standard provision in institutional

rules.110 Although it is beyond the scope of this commentary, it may be
queried – albeit with valid arguments on both sides – whether the with-
holding of payment violates the right to fair trial and the proper admin-
istration of justice, particularly in situations where one or more of the
parties has become financially unable to pay the fees.
109
Report of Working Group II, UN Doc. A/CN.9/232 (1982), para. 185.
110
ICC Rules, art. 34(1); LCIA Rules, art. 26(7).

Article 32
Termination of Proceedings
ilias bantekas
(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 legit-
imate 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 proceed-
ings has for any other reason become unnecessary or impossible.
(3) The mandate of the arbitral tribunal terminates with the termination
of the arbitral proceedings, subject to the provisions of articles 33
and 34(4).
The termination of arbitral proceedings is an issue of immense signifi-
cance for the parties because from that moment onwards the tribunal’s
mandate is deemed to have expired and it is only under very exceptional
circumstances that it may be reconstituted.1 Article 32 sets out the two
obvious procedural mechanisms through which the tribunal may termi-
nate proceedings: a final award;2 or a termination order. It is important to
note that whether through an award or order, termination takes place
1
See UNCITRAL, Analytical Commentary on the Draft Text of the Model Law, UN Doc. A/
CN.9/264 (25 March 1985), 68.
2
Theoretically, more than one partial/interim award issued at the same time terminates the
proceedings, although in practice it is the last sequential/chronological award that is
determinative for the purpose of termination.
831

832 article 3 2: termination o f proceedings
only where either of the two is not amenable to further recourse to the
courts under the laws of the seat, as spelt out in paragraph 3 of article 32.
Furthermore, the article touches upon the notion of functus officio.3
Despite the fact that this was not a controversial provision, some
concerns were voiced in the initial stages of the drafting process as to
whether or not a provision concerning termination of proceedings was
really required. However, the majority view prevailed, whereby this was
felt to be important for the parties, including for the calculation of
limitation periods, whether the tribunal could alter the award or issue
an additional award, as well as others.4 When the issue of termination of
arbitral proceedings was mooted in the preparatory stages of the work of
Working Group II, reference was made to article 34 of the UNCITRAL
Arbitration Rules, without much elaboration.5 Draft article 24(a) iterated
the principle now found in article 25(a) of the Model Law, whereby if the
claimant fails to communicate his statement of claim in due time without
showing sufficient cause, the tribunal shall issue a termination order.6 It
was only during the fifth session of Working Group II that the issue was
given significant attention. Two variants were discussed and put to the
table for consideration. The first suggested enumerating all those circum-
stances that would automatically lead the tribunal to terminate proceed-
ings, further noting that such circumstances should be explicitly spelt
out. The second variant suggested limiting the termination of proceed-
ings only to those cases that rendered continuation of proceedings
impossible or unnecessary. All other circumstances would not lead to
termination. It was stated that: ‘If this approach is taken, a special rule on
termination of arbitral proceedings may be regarded as superfluous
because it would cover the cases when termination is a self-evident
consequence.’7 A draft article F was thus framed as follows:
3
See T. H. Webster, ‘Functus Officio and Remand in International Arbitration’ (2009) 27
ASA Bull. 441.
4
Report of the Working Group on International Contract Practices on the Work of Its Sixth
Session, UN Doc. A/CN.9/245 (22 September 1983), paras 47–53.
5
Third Session, UN Doc. A/CN.9/216 (23 March 1982), para. 72; see also Report of the
Working Group on International Contract Practices on the Work of Its Fourth Session,
UN Doc. A/CN.9/232 (10 November 1982).
6
Note by the Secretariat: Model Law on International Commercial Arbitration, Draft
Articles 1–24, UN Doc. A/CN.9/WG.II/WP.37 (15 July 1982), 55.
7
Note by the Secretariat: Model Law on International Commercial Arbitration, Possible
Further Features and Draft Articles of a Model Law, UN Doc. A/CN.9/WG/II/WP.41 (13
January 1983), para. 40.

1 . trav aux p ré p a r a t o i r e s 833
1. [The arbitral proceedings shall be terminated] [The arbitral tribunal

shall issue an order for the termination of the arbitral proceedings] in
the following cases:
(a) When the parties agree that the arbitral proceedings are to be
terminated and;
(b) In all other cases where the continuation of the arbitral proceed-
ings becomes unnecessary or impossible.
2. When the arbitral proceedings are to be terminated without an award
on the merits of the claim, the arbitral tribunal shall inform the parties
of its intention to issue an order for the termination of the proceed-
ings. The arbitral tribunal shall have the power to issue such an order
unless a party raises justifiable grounds for objection.8
This provision is certainly different in many respects from its final
manifestation and paragraph 2 was modelled on article 34(2) of the
UNCITRAL Arbitration Rules.
Egypt had set out its objection as regards the tribunal’s potential
permissive power to terminate proceedings that were otherwise unne-
cessary or impossible. It was emphasised that the tribunal should possess
no discretion in the matter as this was clearly a waste of time and money
and was not in the parties’ interest.9 This is sensible because despite the
fact that the parties possess the right to petition the courts on this matter,
a potentially discretionary power conferred upon the tribunal may have
led to an unnecessary and prolonged tug-of-war.
It was at the sixth session of Working Group II that the provision
began to finally resemble its existing manifestation. Draft article F
stated, for the first time, that proceedings shall be terminated also by a
final award, in addition to an agreement of the parties and through an
order by the tribunal on the grounds already explained in previous
sessions.10 At the seventh session, two alternative variants were put
forward, but these did not differ from each other in any substantial way
8
Ibid., para. 41.
9
Secretary-General, UN Doc. A/CN.9/263/Add.3 (31 July 1985), para. 37.
10
Revised Draft Articles A to G on Adaptation and Supplementation of Contracts,
Commencement of Arbitral Proceedings, Minimum Contents of Statements of Claim
and Defense, Language in Arbitral Proceedings, Court Assistance in Taking Evidence,
Termination of Arbitral Proceedings and Period for Enforcement of Arbitral Award, UN
Doc. A/CN.9/WG.II/WP.44 (1983), 183.

834 article 3 2: termination of proceedings
and are reflective of the final version of article 32. However, two issues
are worth highlighting. First, a bracketed proposal was suggested in the
first and most elaborate variant whereby if the tribunal fails to issue a
termination order despite the existence of the situations set out in
article 32, then the parties are entitled to make a request to the courts.
As we already stated, the Egyptian proposal definitively settled this
matter by curtailing the tribunal’s discretionary powers. Second, both
variants required that prior to the issuance of a termination order, the
tribunal provide appropriate notice to the parties.11 Neither of these
two considerations survived the final draft (despite the latter’s existence
in article 34 of the UNCITRAL Arbitration Rules), although it is
certainly good practice for the tribunal to forewarn the parties about
its intention to terminate proceedings.
At the end of the seventh session, the final version of the article
was adopted.12 The 2006 revision of the Model Law did not affect
article 32.
2. Paragraph 1
Paragraph 1 addresses the question as to which actions of the tribunal
serve to terminate arbitral proceedings. Only two are mentioned,
namely a final award or a termination order issued by the tribunal
as prescribed in paragraph 2 of article 32. Although what constitutes
a final award is covered in several places in the Model Law, it is
instructive to set out some key features here because there is no
general definition therein. The same applies as regards the construc-
tion of the term ‘order’. The termination of arbitral proceedings by
means of an award is the normal avenue that terminates proceedings,
provided, of course, that the award has indeed become final and is
not subject to further challenges under articles 33 and 34 of the
Model Law, or other additional challenges under the law of the
seat. The termination of proceedings other than through an order is
exceptional and is elaborated in paragraph 2 of article 32.
11
Composite Draft Text of a Model Law on International Commercial Arbitration: A Note
by the Secretariat, UN Doc. A/CN9/WG.II/WP.48 (1984), reprinted in (1984) XV
12
See Report of the Working Group on the Work of Its Seventh Session, UN Doc. A/CN.9/
246 (6 March 1984).

2.1 Final Award

Paragraph 1 of article 32 contemplates that arbitral proceedings are
terminated by final awards. A final award is that which disposes of all
the issues submitted to the tribunal by the parties’ submission agreement.
When the tribunal disposes of all the pertinent issues, two particular
implications arise: first, the award is final in respect of these issues; and,
second, any subsequent recognition and enforcement of the award
abroad encompasses these very issues. As a result, if the award does not
go on to resolve all the issues submitted to it (i.e. it is an infra petita
award), the parties may request the tribunal to either revise the award
with a view to addressing the omitted issues or to issue an additional
award in which it determines solely the omitted issues.13 Conversely, if
the tribunal has passed judgment on more issues than were submitted to
it by the parties (ultra petita award), any of the parties may have recourse
to set aside proceedings on the ground that the tribunal exceeded its
authority under the arbitration agreement.14 It is therefore possible that
at the end of the proceedings the tribunal may have issued several awards
on the merits of the dispute, particularly where several interim awards
have been granted. It is of no legal significance whether one of these may
be classified as final (on the ground perhaps that it disposes of the
majority of issues) given that all awards, whether final or otherwise,
produce res judicata15 and are enforceable under the New York
Convention. The tribunal may just as well, assuming it is expedient,
dispose of preliminary (e.g. jurisdictional) and substantive claims in a
single (final) award, but this has no greater legal value than a series of
discreet awards disposing of the same set of issues.
A ‘termination’ award shares all of the general features of awards
outlined in this section. When proceedings are terminated via an
award, rather than an order, it is only a final award that brings about
such an outcome. That is, proceedings are only deemed terminated when
set-aside or other proceedings (under the law of the seat) have been
dispensed with or pertinent time limits have elapsed. The parties may
well have agreed that the award becomes final at a later date (but not
earlier than the mandatory provisions of the lex arbitri), in which case the
13
14
Under art. 34(2)(iii) of the Model Law, ultra petita awards may be set aside as a whole,
unless ‘decisions on matters submitted to arbitration can be separated from those not
submitted’.
15
See English AA, s. 47(3).

836 a rt i cl e 32 : t er mi n at i o n of proc eed ings
award becomes final then. It is only at that point that the mandate of the
tribunal terminates and the tribunal is no longer in existence.
2.2 Interim and Partial Awards

In practice, tribunals routinely grant partial awards, their authority
stemming from the lex arbitri, which is generally permissive,16 as well
as institutional rules,17 subject to any contrary agreement by the parties.
Paragraph 1 of article 32 refers to ‘final awards’. As already explained, an
award is a determination that finally disposes of one or more issues or
claims set forth in their statements by the parties. This means that an
award dealing with one or several, but not all, claims may be considered a
final award for the purposes of article 32, as long as, however, it is the final
in sequence and provided that it resolves the last remaining/outstanding
claims of the parties.
An important observation should be made here. Whereas a partial
award that has become final as regards the claims in question does not
allow for any subsequent procedural challenges, it does not terminate
proceedings nor does it render the tribunal functus officio.18 Clearly, the
finally decided issues constitute res judicata, but this is quite apart from
the issue as to whether the mandate of the tribunal has been terminated.
This is because the tribunal’s mandate is finally discharged when it issues
a final award on all outstanding claims. Mustill and Boyd have gone on to
say that: ‘the most important consequence of the arbitrator becoming
functus officio after making his award is that he has no power to alter the
award without the consent of the parties’.19 This is, no doubt, true,
although the terminology is perhaps imprecise; it makes little sense to
say that the tribunal is functus officio in respect of one claim, but not for
others. The better approach is that when resolving one claim, but not all,
the interim award produces res judicata in respect of that claim, but the
tribunal’s mandate is terminated and may not be reconstituted once it has
delivered a final award that resolves all existing claims.
16
Ibid.
17
UNCITRAL Rules, art. 32(1); LCIA Rules, art. 26(1).
18
This was clearly spelt out in the travaux and in fact there was support for a variant that
would have made this explicit; however, this proposal did not survive, but it was certainly
considered as self-evident. See UN Doc. A/CN.9/245 (n. 4), paras 117–118.
19
M. J. Mustill and S. C. Boyd, Mustill & Boyd: Commercial Arbitration, 2nd edn
(Butterworths, 1989), pp. 404–405; see subsequently Five Oceans Salvage Ltd v.
Wenzhou Timber Co. [2011] EWHC 3282 (Comm.).

2.3 Termination Orders

A crucial question is what ultimately distinguishes a(n) (final) award
from other orders or pronouncements (e.g. injunctions) of arbitral tri-
bunals. Given that only awards dispose of the parties’ dispute and are
enforceable under the terms of article I(2) of the New York Convention,
anything less than an award will lack the two qualities associated with
final awards; namely, their dispositive dimension and legality (or valid-
ity). Neither the New York Convention nor other international instru-
ments, such as the Model Law, provide a definition of ‘awards’, chiefly
(but not exclusively) because a number of States are not hostile to
tribunals cladding in the form of ‘award’ determinations that do not
finally settle the issues set forth by the disputing parties.
Under German law, for example, the form of award is reserved for final
awards on the merits, decisions on costs (which may be rendered through
a separate award)20 or additional awards.21 Exceptionally, some jurisdic-
tions allow tribunals to decide the precise form of their decision regard-
ing challenges to arbitral jurisdiction. Under article 18(8) of the
Portuguese Arbitration Law (PAL), for example, the tribunal possesses
discretion in rendering a decision on jurisdiction in the form of an order
or that of an award. This is a significant power, the effect of which is that
if the decision is issued as an award it is final, whereas if it is issued as a
mere order it is subject to a challenge before the local courts.22 This
power under the PAL extends also to the tribunal’s authority to issue
interim measures.23 This is contrary to the position in most States, as is
the case with France, whereby decisions on mere interlocutory issues,
such as those relating to the tribunal’s finding of jurisdiction and gen-
erally all those that do not terminate the procedure, are not afforded the
status of awards.24 Even so, under French law, arbitral decisions on
provisional measures that settle all or part of the parties’ dispute are
considered as final, partial or interim awards.25 Several courts in other
nations have equally dismissed labels and have gone on to enforce orders
20
ZPO, s. 1057.
21
ZPO, s. 1058.
22
PAL, art. 18(9).
23
PAL, art. 20(2).
24
Société Crédirente v. Compagnie Générale de Garantie, Paris Court of Appeals judgment
(29 November 2007), [2009] Rev. Arb. 741.
25
2004), [2005] Rev. Arb. 982.

838 article 3 2: termination o f proceedings
granted by tribunals, particularly if the order in question constituted a

final disposition of the issues at hand.26
We have yet to tackle the question of whether in situations where a
tribunal is allowed to decide an issue in the form of an award or an order
this determination is objective or subjective. Put simply, is this a matter
for the tribunal to decide unilaterally or is the scope of the decision
(essentially, the range of issues it resolves) that which determines
whether it should be classified as an award (and thus subject to set-
aside and/or enforcement proceedings) rather than a mere order? In
practice, States typically opt for an objective test that is now reflected in
the leading case of Brasoil.27 Brasoil was engaged by the Libyan
Authority (for the management and implementation of the Great
Man-Made River Project) for the drilling of wells in the Libyan desert.
Following disagreement over the quality of the works, the parties
commenced arbitral proceedings in France. A partial award on liability
was initially issued by the tribunal against Brasoil, but when at the
damages phase the Authority submitted documents which Brasoil
claimed had been fraudulently withheld, Brasoil requested the tribunal
to review its partial award in light of these circumstances. The tribunal
denied the request on the ground that it was an order, not an award, but
this did not stop Brasoil from initiating set-aside proceedings against
the ‘order’ before French courts. The Paris Appeals Court upheld
Brasoil’s request on the ground that the qualification of a decision as
an award or order does not depend on the tribunal’s classification. In
the case at hand, the order (partial award) in fact settled one of the
parties’ chief disputes, namely Brasoil’s liability in respect of the quality
of the works undertaken.
These considerations apply to termination orders. It is now firmly
established that they are mere procedure steps and even if just like awards
they terminate proceedings, they are in no way awards.28 An order to
terminate arbitral proceedings is not subject to set-aside proceedings, as
is otherwise the case with an arbitral award to the same effect. This is also
true in respect of termination under article 25(a) of the Model Law. As a
26
Publicis Communication v. True North Communications Inc., 3 F.3d 725 (2nd Cir. 2000);
but see opposite view in Resort Condominiums Intl Inc. v. Ray Bolwell and Another (1993)
118 ALR 644.
27
Braspetro Oil [Brasoil] Services Co. v. The Management & Implementation Authority of the
Great Man-Made River Project (Libya), Paris Appeals Court judgment (1 July 1999),
[1999] Rev. Arb. 834.
28
Tresoro Mining Corp. v. Mercer Gold Corp. (BC), (2018) BCCA 160 (CanLII).

result, they do not produce res judicata and are not enforceable under the
New York Convention. That is precisely why paragraph 2(a) of article 32
allows the respondent to request the tribunal to issue an award, rather
than a termination order, as a matter of legitimate interest in situations
where the claimant withdraws its claim. It is in the interest of the
respondent in such situations to benefit from an award producing res
judicata so as to prevent the claimant from raising the same claims before
another tribunal or the courts.
2.4 Functus Officio

It should be pointed out, if it is not already clear, that an award declining
jurisdiction is not a ‘final award’ in the sense of article 32(1) of the Model
Law and hence it does not serve to terminate arbitral proceedings. In such
cases, the arbitrators may well determine that they have fully discharged
their function, but the parties may seek to force the arbitrators back to
resume the case. Although this eventuality is beyond the scope of article
32, the pertinent requests to the courts of the seat will depend on the
seat’s viewpoint of the relationship between the parties and the arbitra-
tors. If this is perceived as contractual, then the only remedy is damages.
If perceived from the point of view of tort or equity, then a request for
specific performance may arise, in which the courts may order the
remand of the arbitrators.29
Arbitrators have a limited spatial mandate and tribunals are mean-
ingful only in relation to the person of the chosen arbitrators. Hence, just
like it is impossible to recall a retired judge to reconsider an earlier
judgment, it is equally impractical to recall an arbitrator to reconsider
an award following the lapse of pertinent time limits for challenging the
award.30 This notion of functus officio should be distinguished from the
subsequent personal liability of arbitrators in respect of acts or conduct
related to the arbitration, such as refund of excess fees.31 Such liability
continues irrespective of the termination of proceedings.
29
There is strong authority by the French Court of Cassation to disfavour such an approach,
deeming the arbitrator not to be party to a judgment on the validity of an award. Van
Luijk v. Société Commerciale Raoul Duval (1999) Rev. Arb. 253. English courts have taken
a radically different approach. See Compagnie Européenne de Céréales SA v. Tradax Exp.
SA (1986) 2 Lloyd’s Rep. 301 (QB).
30
Glass, Molders v. Excelsior Foundry Co., 56 F.3d 844, 846–847 (7th Cir. 1995).
31
See Decision in Case No. O 4227–06 of the Swedish Supreme Court (3 December 2008).

840 article 32: termination of p roceedings
The most important consequence of functus officio is that arbitrators

may not revisit the merits/substantive claims of the parties,32 subject to
article 33 of the Model Law. Their mandate terminates with the issuance
of a final award or a final termination order. More importantly, their
authority over the parties’ claims comes to an end.33 Upon becoming
functus officio, any subsequent award or decision made by the tribunal
will be set aside by the courts of the seat34 and should under no circum-
stances be enforced (in the unlikely event that it is not annulled at the
seat). If both parties agreed to revisit the award, they would have to do so
through a new submission agreement explaining that the new award is
meant to override all of the issues decided in the previous award. In this
scenario, the old tribunal is not revived, but is constituted anew.35
3. Paragraph 2
Paragraph 2 enumerates three situations whereby the tribunal is obliged
(with limited discretion in subparagraph (b)) to terminate the proceedings.
Some Model Law jurisdictions, as is the case with section 608(2)(1) of the
ZPO, expand on these, adding in the case at hand a fourth situation,
namely where the claimant fails to file his claim. This situation is also
covered in article 25(a) of the Model Law. No doubt, this may well be
encompassed within subparagraph 2(c) of article 32 given its broad ambit.
3.1 Chapeau
The last part of the sentence in paragraph 1 and the chapeau of paragraph 2
clearly suggests that the concept of ‘order’ refers not to all types of orders
32
Office & Prof’l Emps Intl Union, Local No. 471 v. Brownsville Gen. Hosp., 186 F.3d 326, 331
(3rd Cir. 1999).
33
T. Co. Metals, LLC v. Dempsey Pipe & Supply, Inc., 2010 US App. LEXIS 893 (2nd Cir., 14
January 2010); see also Trade & Transp., Inc. v. Natural Petroleum Charterers Inc., 931
F.2d 191, 195 (2nd Cir. 1991).
34
See Oberlandesgericht Stuttgart, 20 December 2001, 1 Sch. 13/01.
35
In EnBW Energie Baden-Wuertemberg AG v. Thermoselect SA, Higher Regional Court
Karlsruhe (Oberlandesgericht or OLG Karlsruhe), 5 June 2007, 8 U. 80/06, the parties reached
a settlement that was recorded in an award. However, the settlement/award contained a
condition that if dispute arose over the same subject matter as that resolved in the award, the
parties would once again have recourse to the same arbitral tribunal that issued the award. The
Karlsruhe court held that this was valid and recourse to the courts was not permitted. No
doubt, for the purposes of art. 32 of the Model Law, the question arises as to whether the
tribunal became functus officio after recording the parties’ settlement in an award. This author
believes that the tribunal indeed became functus officio upon that point in time.

that a tribunal is allowed to make, whether by contract, institutional rules

or law, but only to three particular types of orders. As will be examined in
subsequent subsections, all three of these orders culminate in (and indeed
they are aimed towards) the termination of proceedings, either because
this is the wish of the parties, or simply because it is the logical thing to do
on account of the circumstances of the case. Hence, the concept of an order
in article 32 does not coincide with orders in article 17, but simply refers to
a disposition by the tribunal that does not constitute a final award (since it
does not resolve any claims or substantive issues) and which therefore is
procedural in nature. Such orders serve to terminate arbitral proceedings
and the tribunal effectively becomes functus officio, subject to the consid-
erations in articles 33 and 34 of the Model Law.
The word ‘shall’ indicates that the tribunal is under an obligation to issue
such an order when any of the three prescribed circumstances arise. This
was amply clarified in the travaux, as explained in the pertinent section of
this chapter. Were the tribunal to decide not to issue a termination order, it
would be violating party autonomy and produce financial and other harm
to the parties, incurring liability in the process. Therefore, the absence of
discretion on the part of the tribunal serves to avoid such a likelihood, even
if the parties fail to request a termination order, as would be the case with
subparagraph (c), where the issuance of a termination order requires an
assessment that proceedings are no longer necessary or possible.
What is not spelt out in the chapeau of paragraph 2 is the legal effect of
the order. Given that such orders do not resolve any of the parties’ claims
or counterclaims, they do not produce any res judicata effect. It follows
from this that procedural orders of this nature do not give rise to a
remedy and are unenforceable. Unless otherwise stated in the law gov-
erning the parties’ agreement, any of them may still reassert their con-
tractual or other claims.
3.2 Paragraph 2(a)

3.2.1 Legitimate Interest
The provision does not explain the meaning of ‘legitimate interest’, but it
does qualify it in rather concrete terms, namely that such an interest
arises for the respondent where he or she manages to ‘obtain a final
settlement of the dispute’. Several situations may be identified whereby
the respondent entertains a legitimate interest, namely: (1) where the
claimant does not waive its claims; (2) where the claimant’s case is weak

842 arti cle 32: termination of p roceedings
and, should the respondent succeed in its arguments and counterclaims,

the award would become final and hence the claimant could not pursue
his or her claims in other forums; and (3) where the tribunal foresees that
the claimant’s withdrawal is aimed at forcing the respondent to partici-
pate in other proceedings. Where the respondent has already spent
significant amounts on its defence, there is generally no legitimate inter-
est because the tribunal may simply issue a distinct award on costs, while
at the same time terminating the proceedings as to their merits.
3.2.2 Claimant Withdrawal

Similar to the withdrawal of the claimant’s claim is the situation where
the claimant fails to proceed with its case, as, for example, by failing to file
a statement of claim,36 or appear at hearings and/or repeatedly fail to
respond to requests by the tribunal. In all these situations, the tribunal is
generally justified in terminating proceedings.37
3.2.3 Revocation of Termination Order by the Tribunal

The Model Law does not refer to such an eventuality because once the
termination takes place through a final award the tribunal is deemed to be
functus officio and the same is necessarily true when it issues an order to that
effect. However, several superior courts have indicated that arbitral tribunals
possess an inherent power to recall their termination in exceptional circum-
stances. In Srei Infrastructure Finance Ltd v. Tuff Drilling, the claimant failed
to communicate its statement of claim twice, despite being so requested by
the tribunal, which went on to terminate the proceedings. When the claimant
requested a further extension, the tribunal had ceased to exist. The claimant
appealed all the way to the Indian Supreme Court, which held that when a
tribunal terminates proceedings under section 25(a) of the Arbitration and
Conciliation Act, 1996, it may subsequently recall its order if sufficient cause
is shown by the claimant as to the reasons for defaulting in its timely
submission of its statement of claim. The court held that the cause may be
shown both before and after the termination of arbitral proceedings.38
36
This is expressly stipulated in some institutional rules. See VIAC Rules, art. 7(3); equally,
37
Some courts have gone even further, arguing that the tribunal’s decision to decline
jurisdiction on the ground that the claimant failed to provide its statement of claim
within the specified period was not amenable to judicial scrutiny. See Dansk Moller
Industry AS v. Bentex Minerals Co. Ltd and Others (Cyprus, 2007), 1 CLR 692.
38
Srei Infrastructure Finance Ltd v. Tuff Drilling, Civil Appeal No. 15036/2017, judgment
(20 September 2017); see also Wasthi Construction Co. v. Govt of NCT of Delhi (2013) (1)
Arb. LR 70 (Delhi) (DB).

4. p ar agr ap h 2( b ) 843
4. Paragraph 2(b)
Where the parties both agree that proceedings should be terminated, it is
not within the tribunal’s discretion to continue the proceedings.39
Paragraph 2(b) is rooted in party autonomy and should be distinguished
from the discretion available to the tribunal concerning party settlements
where the tribunal is asked to clad it in the form of an award.40 Under
article 30(1) of the Model Law, the tribunal may decline to issue an award
reflecting the parties’ settlement, deeming this to be the result of fraud,
coercion or other void or voidable action. Thus, the parties’ simple
agreement is distinguished from the claimant’s withdrawal, because in
the latter scenario there does not exist full party autonomy.41
Even so, such an agreement to withdraw does not resolve the issue of
cost allocation. Where the parties have not been able to reach agreement
as to the allocation of costs, this befalls the tribunal, which must neces-
sarily issue an award on costs. It is, of course, sensible for tribunals to
decide the issue of costs, even under the circumstances contemplated in
paragraph 2 of article 32, before issuing a termination order. Any other
result is devoid of the type of commercial justice sought by the parties. If,
for whatever reason, the tribunal fails to determine costs in its termina-
tion (or other) order or award, a rather problematic situation arises. The
issue was discussed during the drafting stages of the Model Law, but it
was felt that cost should not become the focal point in the provision.42 It
may well be that under the law of the seat, an additional award on costs is
39
In fact, it has been held that the parties may agree in their submission agreement that the
proceedings be terminated after a specified period of time, even if the tribunal has not
been able to issue an award until then. See CLOUT Case 667, Oberlandesgericht Köln,
2002; equally, NBCC Ltd v. JG Engineering Pvt. Ltd (2010) 2 SCC 385, decided by the
Indian Supreme Court.
40
See Martin Dawes v. Treasure & Son Ltd [2010] EWHC 3218 (TCC), which suggested that
the arbitrator does not become functus officio once the parties have reached a settlement,
especially if the parties have not expressly sought termination of arbitral proceedings. See
also M. Ahmed, ‘When an Arbitrator Becomes Functus Officio and the Impact of This on
Settlement of an Arbitration’ (2011) 77 Arb. J. 369.
41
Equally, it has been held by the Madrid High Court of Justice (TSJM) that once the parties
have commenced set-aside proceedings against an award, they cannot subsequently waive
or withdraw the appeal, even by mutual consent. See TSJM judgments dated 17
September 2015 [PROV 2015, 242025], 23 October 2015 [JUR 2015, 301853] and 2
November 2016 [AC 2016, 1939]. Available at: http://arbitrationblog.kluwerarbitration
.com/2017/06/06/parties-discretion-terminate-proceedings-annulment-arbitral-award-
recent-developments-court-rulings/.
42
Summary Records for Meetings of the UNCITRAL Model Law on International
Commercial Arbitration, 329th Meeting, (1985) XVI UNCITRAL YB 493, paras 29–32.

844 article 32: termination of p roceedings
indispensable and hence the mandate of the tribunal will not be deemed
to have expired, even if the tribunal so declares. In the alternative, the
parties will have to reach out to the courts for a determination of costs,
but the arbitrators may be held liable for their failure to settle this out-
standing issue if the law of the seat says so. But this is a harsh outcome
and will only (presumably) arise where the tribunal failed to warn the
parties of its impending decision and the parties incurred unreasonable
expenses by subsequently resolving their costs dispute before the courts
or via alternative dispute resolution. For all these reasons, article 40(3) of
the UNCITRAL Arbitration Rules provides that:
When the arbitral tribunal issues an order for the termination of the
arbitral proceedings or makes an award on agreed terms, it shall fix the
costs of arbitration referred to in article 38 and article 39, paragraph 1, in
the text of that order or award.
This is certainly sound practice and that is precisely why, in article 34(2)
of the Rules, the tribunal is obliged to inform the parties of its intention to
terminate proceedings.
5. Paragraph 2(c)
This is a broad (and perhaps even a residual) category, which was clearly
meant to encompass situations that could not have been foreseen during
the drafting of the Model Law. No doubt, what is ‘unnecessary’ or
‘impossible’ may be assessed objectively, but in practice certain jurisdic-
tions demand that the same effect be given to conduct that is remediable
or certainly reversible. By way of illustration, section 1056(3) of the ZPO
requires that the tribunal shall terminate proceedings where the parties
fail to pursue the arbitral proceedings despite being so requested by the
tribunal. This may be interpreted as encompassing situations where the
parties refuse to make an advance on costs, after having been invited to
do so by the tribunal. Failure to advance on costs may just as well
constitute a ground for terminating proceedings on the basis of the
parties’ chosen institutional rules. This is the case, for example, with
rule 34(3) of the British Columbia International Commercial Arbitration
Centre, which stipulates that, when the claimant fails to pay arbitration
fees, the proceedings become ‘unnecessary or impossible’.43
43
Equally, Arbitration Rules of the Danish Institute of Arbitration, art. 27(4).

Arbitral proceedings may be characterised as unnecessary where the

respondent has satisfied the claimant’s claims and hence there is no
longer a need to proceed with their examination in arbitral proceedings.
The same is equally true where the claimant fails to pursue its case, or
withdraws its case altogether, or where the subject matter of the arbitra-
tion becomes moot.44
There does not seem to be a meaningful difference between the two
terms ‘unnecessary’ and ‘impossible’ and courts and tribunals typically
refer to both in termination orders and employ them interchangeably.
6. Paragraph 3
Paragraph 3 effectively elaborates on the notion of ‘final award’ in para-
graph 1 of article 32. As a result, an award does not become final if the
time limits for bringing set-aside proceedings have not lapsed under
article 34, or where a request for corrections, interpretation or the
issuance of an additional award is still possible,45 in accordance with
article 33 of the Model Law. US courts have recognised that valid requests
for correction, issuance of an additional award and clarification of an
ambiguity (interpretation) constitute the three exceptions to functus
officio.46 The reader should consult the commentaries in this volume
on articles 33 and 34 of the Model Law. It suffices to highlight here,
however, the emphasis in paragraph 3 of article 32 (as well as the
reference in paragraph 1) of the seminal effect of articles 33 and 34 on
the mandate of the tribunal. We have stated throughout our commentary
on article 32 that such mandate is terminated not simply by the issuance
of a termination order or final award, but only by reference to articles 33
and 34.
44
See M. F. Gusy, J. M. Hosking and M. Schwarz, A Guide to the ICDR Arbitration Rules
45
See Maruna v. Lopatka [2002] BCSC 1084, where the Supreme Court of British Columbia
held that a request for an additional award concerning prejudgment interest was valid and
that effectively the tribunal had not become functus officio after delivering its final awards
on the merits.
46
Brown v. Witco Corp., 340 F.3d 209, 219 (5th Cir. 2003); Office & Prof’l Emps (n. 32), 331.

Article 33
Correction and Interpretation of Award;

Additional Award
i l i a s b a n t e k a s a n d i k r a m ul l a h
(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 com-
putation, 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 pre-
sented 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 interpreta-
tion of the award or to an additional award.
846

1. ba ckg round a nd trav aux préparatoires 847

Article 33 sets out the conditions warranting a correction or interpreta-
tion of the award, or the making of an additional award. In the beginning
of the drafting process, there was no certainty if there was any need for
the Model Law to deal with the various types of awards. However, later
the negotiators were convinced that the Model Law should deal with this
issue and the Commission affirmed this position by stating that in
‘preparing the model law due account be taken of the 1958 New York
Convention and of the UNCITRAL Arbitration Rules’.1 As to the parti-
cular point concerning the various types of awards, it was desired that if
various types of awards were to be encompassed under the Model Law,
the arbitrator should be entitled to make those awards only on the request
of the parties.2 A fixed standard time period, as followed in national laws,
was considered good practice, despite the difficulty of regulating such
time limits uniformly. However, it was stipulated that if the standard time
is laid down, it should be coupled with mechanisms for possible exten-
sions. It was stressed that it was necessary to give parties a right to seek
correction of errors in awards, or a right to seek interpretation or the
issuance of additional awards, in line with the UNCITRAL Arbitration
Rules’ provision on that subject. At this point in time, although such
provision was considered of limited significance, its inclusion was
favoured with an aim to ‘overcome any problems arising from the fact
that the mandate of the arbitral tribunal is terminated by making the
award’.3
At first, the Working Group kept its deliberations within the confines
of ‘final, interim, interlocutory and partial’ awards and its list of questions
did not include the issue of additional award. In fact, there were divergent
views on its inclusion in the Model Law. Clearly, its inclusion was
opposed by one view, whereas the other one counted the mere enumera-
tion of types of arbitral award as insufficient rather, as per this view, ‘legal
qualifications and consequences of different types, including possible
means of recourse and enforceability’ should be specified.4 Generally,
the participants were agreed that the parties were at liberty to prescribe
1
Fourteenth Session, UN Doc. A/36/17 (19–26 June 1981).
2
Commercial Arbitration, UN Doc. A/CN.9/207 (14 May 1981), para. 82.
3
Ibid., para. 93.
4

848 a r t i c l e 3 3 : c o r r ec t i o n & in t er p r e ta ti o n o f aw a r d
time limits for the arbitrator for the purpose of making an arbitral award
and that the Model Law should refrain from setting such time limits for
parties and dealing with the ramifications for the expiry thereof, owing to
considerable variation in circumstances in international arbitration that
is quite visible from one case to another.5
Later general consensus also developed on the inclusion of a provision
governing the correction and interpretation of award. Such provision was
thought to be modelled on articles 35 and 36 of UNCITRAL Arbitration
Rules. Focusing on the avoidance of possible abuses and delay, confine-
ment of requests for interpretation to specific points was considered very
necessary.6 At the same time, provisions dealing with the correction and
interpretation of the award (article 34) were striving to keep the arbitra-
tor’s mandate intact ‘in cases of awards which do not settle the dispute in
full’.7
Czechoslovakia proposed that the interpretation under article 33
should be confined to the interpretation of reasons upon which the
arbitrator based its award. However, the German Democratic
Republic’s proposal was that the Model Law should not deal with the
possibility of interpretation of award.8 But there developed a general
consensus in favour of affording the arbitral tribunal the right to ‘correct
any errors in computation, any clerical or typographical errors, or any
errors of similar nature as provided in paragraph (1)(a), and that the
parties should not be able to stipulate to the contrary’ by keeping a thirty-
day time period with non-mandatory character.9
Although the party’s right to request interpretation of the award was
not made subject to the parties’ agreement to the contrary, there was no
agreement as to whether the arbitrator’s interpretation in response to the
party’s request should become part of the award.10 On the face of
different types of awards, it was noted that limitation periods for ‘attack-
ing’ an arbitral award in court should be harmonised.11
5
Ibid., para. 74.
6
Ibid., para. 98.
7
8
Analytical Compilation of Monuments by Governments and International Organizations
Secretary-General, UN Doc. A/CN.9/263 (19 March 1985).
9
UN Doc. A/CN.9/232 (n. 7), para. 178.
10
Ibid., para. 179.
11
Ibid., para. 181.

The divergent view prevailed on the question of whether certain

timelines should be prescribed to mandate the arbitrator to dispose
of the requests for interpretation and correction of awards within
those timelines. The view opposing such timelines was supported
with arguments that there could be valid reasons for the arbitrator’s
inability to abide by the timelines and strict timelines may beget
uncertainty about the validity of actions launched in the aftermath of
their expiration and would cause questions regarding sanction for
non-abidance.12
Although the other view did not favour strict timelines, it supported
the prescription of a general formula under which the arbitrator would be
required to act ‘promptly’ and ‘without delay’.13 However, the Working
Group went for compromise by furnishing fixed timelines. To that end,
the arbitrator was to render correction and interpretation within thirty
days of receipt of request and an additional award within sixty days of the
request. Section 33 also conferred power on the arbitrator to extend the
thirty- and sixty-day period if necessary.14 This time period was to
commence after the receipt of the request and it was suggested that,
after the time periods, the words ‘of receipt of the request’ be added in the
text of the provision, but this suggestion did not receive sufficient
acceptance.15
It was also noted that notice of request for correction, interpretation
or additional award should also come from the requesting party to the
other party to afford him or her an opportunity to express his or her
views thereon. In order to calculate the time available for the disposal of
this request, a reasonable time should be given to the party other than
the requesting party. Sweden and the United States proposed mandat-
ing the arbitrator who, upon receipt of a request from a party, should
afford it an opportunity to be heard. Although the Swedish proposal did
not expressly deal with additional awards, the US proposal was with
regard to all three types of applications (i.e. correction, interpretation of
the award and additional award). However, Sweden considered a thirty-
day period too short for arbitral disposal of the matter after giving the
opportunity to be heard to the other party. The United States proposed
that the thirty-day time period should commence after the submission
12
(6 March 1984), paras 119, 120.
13
Ibid., para. 121.
14
Ibid., para. 122.
15
Ibid., para. 123.

850 a r t i c l e 3 3 : c o r r e c t i o n & in t er p r e t a t i o n of aw a r d
of reply from the other party on request for correction, interpretation of

the award or an additional award.16 For this purpose, the Working
Group relied on the wisdom of the arbitrator to give reasonable time
to the other party and for that reason did not prescribe any timeline for
the reply from the other party.17
On the point of an additional award, the Working Group first thought
to include in the provision that the arbitral tribunal would be empowered
to render an additional award only where to render such award there
would be no need for evidence and a hearing. But that idea was aban-
doned because ‘it was unduly restrictive in that it excluded a considerable
number of cases where at least a hearing, if not further evidence, was
necessary before making the additional award’.18
2. Paragraph 1: Chapeau
Once a tribunal has issued a final award and become functus officio, it
cannot generally re-open the case.19 However, this presumption is sub-
ject to exceptions for the purposes of correction, interpretation of the
award and the making of an additional award.20
3. Subparagraph (a): Errors Amenable to Corrections

A party can request the tribunal to correct errors of calculation, phra-
seology or reference. However, this provision cannot be used to correct
16
Analytical Compilation of Monuments by Governments and International Organizations
Secretary-General, UN Doc. A/CN.9/263 (19 March 1985).
17
UN Doc. A/CN.9/246 (n. 12), para. 123.
18
Ibid., para. 125.
19
Tay Eng Chuan v. United Overseas Insurance Ltd [2009] SGHC 193 (Singapore High
Court); Teamsters Local 312 v. Matlack, Inc., 118 F.3d 985, 991 (3rd Cir. 1997); Trade &
Transport, Inc. v. Natural Petroleum Charterers Inc., 931 F.2d 191 (2nd Cir. 1991); Bayne
v. Morris, 68 US (1 Wall.) 97, 99 (1863); Ottley v. Schwartzberg, 819 F.2d 376 (2nd Cir.
1987); Local P-9, United Food & Commercial Workers Intl Union v. George A. Hormel &
Co., 776 F.2d 1393, 1394 (8th Cir. 1985); La Vale Plaza, Inc. v. R. S. Noonan, Inc., 378 F.2d
573; A/S Siljestad v. Hideca Trading, Inc., 541 F. Supp. 58, 61 (SDNY 1981); Todd
Petroleum Mining Co. Ltd v. Shell (Petroleum Mining) Co. Ltd [2014] NZCA 507. See
also Torch Offshore LLC v. Cable Shipping Inc. [2004] 2 All ER 365 (QB), 28; Casata Ltd v.
General Distributors Ltd [2006] 2 NZLR 721, paras 112–117.
20
Colonial Penn Ins. Co. v. Omaha Indem. Co., 943 F.2d 327 (3rd Cir. 1991); La Vale Plaza,
Inc. v. R. S. Noonan, Inc., 378 F.2d 569, 573 (3rd Cir. 1967).

4. s ubparagra ph (b) 851
the mistakes in the arbitral reasoning: correction is no substitute for

setting aside.21
The error must affect ‘the expression of the arbitrator’s thought’;22
this is the case for clerical or computational errors concerning, for
example, the quantity of goods or the amount of a payment.23 By
contrast, ‘an error in the thought process itself’ cannot be cor-
rected.24 Furthermore, if the tribunal makes a mistake in interpreting
and applying the law, the problem cannot be resolved with a
correction.25
The English Court of Appeal drew a distinction between having
‘second thoughts or intentions and correcting an award or judgment to
give true effect to first thoughts or intentions’: it is thus impossible to
correct a wrong assessment of evidence or misconstruction and misap-
preciation of law.26
4. Subparagraph (b): Interpretation of Award

The arbitral tribunal can issue an interpretation concerning some points
in the award, if the parties consent to it.27 There may be situations where
a statement needs to be clarified,28 or it is uncertain whether some
specific issues have been dealt with in the award or reserved for future
determination.
Interpretation can be used whenever the final award does not contain
the minimum information necessary to grasp the tribunal’s line of
21
McLean Homes South East Ltd v. Blackdale Ltd (2001) WL 1560746; Ircon Intl Ltd v.
Budhiraja Mining & Construction Ltd, 2007 (4) Arb. LR 159 (Delhi High Court) (24
September 2007).
22
Sutherland & Co. v. Hannevig Bros Ltd [1921] 1 KB 336, 341.
23
Fuga AG v. Bunge AG [1975] 2 Lloyd’s Rep. 192; Todd Petroleum Mining (n. 19). See also
Torch Offshore (n. 19), 28; Casata (n. 19), paras 112–117.
24
Sutherland & Co. (n. 22); Food Corp. of India v. Marastro Compania Naviera SA of
Panama [1987] 1 WLR 134.
25
CNH Global NV v. PGN Logistics Ltd and Others [2009] 1 CLC 807; see also Gannet
Shipping Ltd v. Eastrade Commodities Inc. [2002] CLC 365.
26
Mutual Shipping Corp. v. Bayshore Shipping Co. Ltd [1985] 1 WLR 625; see also Gannet
Shipping, ibid.; CLOUT Case 207, Singapore International Arbitration Centre (6 February
1998); SIAC Arb. No. 6 of 1996.
27
Tay Eng Chuan (n. 19).
28
Buyuk Camlica Shipping Trading & Industry Co. Inc. v. Progress Bulk Carriers Ltd [2010]
EWHC 422 (Comm.). See also Van der Giessen-de-Noord Shipbuilding Division BV v.
Imtech Marine & Offshore BV [2009] 1 Lloyd’s Rep. 273.

852 a r t i c l e 33 : c o r r e c t i o n & in t e r p r e t a t i o n of aw a r d
reasoning.29 In Bulk Ship Union,30 the English High Court reviewed an

award which did not clarify the provision of law applied by the tribunal,
in order to reach a certain conclusion as to the calculation of interest. The
court observed that the challenging party could have asked the tribunal to
issue an interpretation of the award and, given its failure to do so, it was
prevented from obtaining the setting aside of the award on these grounds.
5. Notice Requirement
Article 33 requires that, when a party applies for a correction, interpreta-
tion or for an additional award, it must give the other party notice, so as
to afford an opportunity to contradict. The Singapore Court of Appeal
highlighted that, in line with article 18, the other party should be given an
equal opportunity to present its case.31
In Anita Mantri,32 the Delhi High Court held that arbitrators are
bound to conduct the additional proceedings in accordance with the
principles of natural justice. Along similar lines, in Petro China,33 two
supplementary awards were denied recognition because they were issued
without affording any opportunity of being heard to one of the parties.34
6. Paragraph 2
Paragraph 2 empowers the tribunal to correct the award also on its own
initiative (motu proprio), within thirty days of the date of the award. This
power is consistent with the tribunal’s obligation to issue an award that is
enforceable and without faults that may lead to a setting aside.
Furthermore, inasmuch as arbitrators may be held liable against the
parties, it is in their interest to correct the award on their own motion,
even if the parties do not detect the mistake.
The problem that may arise (in theory) is whether the discretion of the
tribunal to correct its award may enter into conflict with a right of the
parties not to have the award corrected. In practice, however, a tribunal
29
Groundshire v. VHE Construction [2001] BLR 395.
30
Bulk Ship Union SA v. Clipper Bulk Shipping Ltd [2012] EWHC 2595 (Comm.).
31
CLOUT Case 1468, LW Infrastructure Pte Ltd v. Lim Chin San Contractors Pte Ltd [2012]
SGCA 57.
32
Anita Mantri v. Karvy Stock Broking Ltd and Another, Case No. 198/2007 (High Court of
Delhi) (9 September 2011).
33
Re. Petro China Intl (Hong Kong) Corp. Ltd [2011] HKEC 118.
34
The court referred to Paklito Investment Ltd v. Klockner East Asia Ltd [1993] 2 HKLR 39.

7 . par ag r ap h 3 : addi t i o n al award 853
realising the existence of a mistake will confer with the parties and give
them notice that it intends to correct the award. Usually, the correction of
the award will be in the interest of the prevailing party, in order to avoid a
setting aside or a denial or recognition and enforcement. Hence, the
event of a tribunal wishing to correct the award against the will of all
parties involved is relatively unlikely.
7. Paragraph 3: Additional Award

As already mentioned, the issuance of the final award is traditionally
deemed to render the tribunal functus officio.35 This general rule, how-
ever, has been progressively mitigated in many legal systems, which allow
the tribunal (within certain limits) to make an additional award.36 Under
the Model Law, an additional award is possible (if a party makes a request
within 30 days of the original award) in respect of ‘claims presented in
the arbitral proceedings but omitted from the award’. It is therefore first
of all necessary to determine what article 33 means with the term ‘claim’.
7.1 Notion of ‘Claim’

When assessing whether a claim has been put forth by the parties, excessive
formalism should generally be avoided.37 The notion should therefore be
construed in a broad and non-technical fashion, also in light of the
arbitration’s tendency to be less formally constrained than court litigation.
Additional awards enable the parties to obtain a complete resolution of
their dispute without resorting to court.38 In light of the importance of
this goal, the same ‘substance-over-form’ approach should govern the
technical mechanisms through which any party can request the addi-
tional award.39
7.2 Claim Presented, but Omitted

As already mentioned, in order for the tribunal to make an additional
award, there must be a claim that was ‘presented’, but ‘omitted’, from the
35
Fidelitas Shipping Co. Ltd v. V/O Exportchleb [1966] 1 QB 630, 644.
36
See e.g. New Zealand Arbitration Act 1890, s. 9; s. 8 of the Arbitration Act 1908 then gave
such powers to the arbitrator.
37
Cadogan Maritime Inc. v. Turner Shipping Inc. [2013] EWHC 138 (Comm.).
38
Torch Offshore (n. 19), 28; Casata (n. 19), paras 112–117.
39
Todd Petroleum Mining Co. Ltd v. Shell (Petroleum Mining) Co. Ltd [2015] 2 NZLR 180.

original award.40 Conversely, a claim that was not presented during the
arbitration could not be adjudicated in an additional award. Courts have
held that, in case of disagreement between the parties, it is up to the
requesting party to prove that the claim had indeed been presented.41
An interesting question concerns whether the costs for the arbitration
can be awarded in an additional award. The Supreme Court of New
Zealand42 stated that a tribunal is always expected to rule on the costs of
the procedure, unless the parties agree otherwise. Therefore, if the origi-
nal award does not deal with costs, the issue should be considered as
‘omitted’ and can be dealt with in an additional award.
7.3 Conscious Omission of Claim on the Part of the Tribunal

In some cases, a tribunal will omit a claim not because of a mistake, but
because of a conscious choice not to deal with claims that fall outside of
the jurisdiction of the tribunal, or have been rendered irrelevant by a
decision on other claims. In these cases, an additional award is generally
not possible.43
In a German case, the tribunal declined jurisdiction over the case. The
claimant challenged the award before the German courts and, while the
case was pending before the Supreme Court, the tribunal rendered an
additional award, awarding the respondents the costs of the arbitration.
The respondent applied for enforcement, and the claimant resisted on
the grounds, inter alia, that the arbitrator did not have jurisdiction to
issue an additional award because the setting-aside procedure concerning
the final award was still pending. The Supreme Court held that the
tribunal was not only competent, but was also required to rule on costs,
and ‘a declaration of enforceability of the first award was not required for
the issuance of the decision on costs’.44
7.4 Timelines before Corrected, Interpreted and Additional Award

Correction, interpretation and the making of an additional award are all
subject to strict time limits, irrespective of whether they take place at the
40
Sinclair v. Woods of Winchester Ltd and Another [2005] EWHC 1631 (QB).
41
Pirtek (UK) Ltd v. Deanswood Ltd [2005] EWHC 2301 (Comm.).
42
Casata (n. 19).
43
VALE Australia Ltd v. Steel Authority of India Ltd, Case No. 414/2011 (High Court of
Delhi) (30 March 2012).
44
CLOUT Case 663.

8. para gra ph 4 : arbitral e x tension of time 855
parties’ request or on the initiative of the tribunal. If correction, inter-

pretation or an additional award are requested by a party, the request
must be made within thirty days of receipt of the award. Within the same
time frame, the tribunal can also make corrections motu proprio. If a
party makes the request, the tribunal has thirty days to issue the correc-
tion or interpretation, and sixty days to make an additional award.
7.5 Moment of the Request and Deadline Extension

Courts in Model Law jurisdictions have addressed the issue of the
moment when a request under article 33 should be deemed to have
been made. In Harihar Banerji,45 the Indian Supreme Court held that if
a letter is properly posted, it will be presumed to have reached its
addressee in due time, especially if the sender used a ‘registered post’
service.
In case of expiry of the deadline for this type of request, courts have
exceptionally proved willing to grant an extension.46 The possibility for
an extension, however, largely depends on the circumstances of the case
and the desirability of a clarification.47
8. Paragraph 4: Extension of Time Limit for the Issuance

of Correction, Interpretation or Additional Award
Paragraph 4 mitigates the strictness of the time limit within which the
tribunal is required to issue a correction, interpretation or additional
award at the request of one of the parties. Namely, the tribunal can
‘extend’ the time limit of thirty days set forth in paragraphs 1 and 3.
Importantly, the provision at hand does not apply to the case envisaged
in paragraph 2, where the tribunal corrects the award on its own initia-
tive. This exclusion is certainly understandable, as a possibility to alter
the time limit in the absence of any party request for correction would
practically result in the impossibility to determine whether or not the
45
Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102; see also Budhiraja Mining &
Constructions Ltd v. Ircon Intl Ltd and Another [2012] Ind. LHC 2996 (High Court of
Delhi) (3 May 2012).
46
See, for instance, with reference to the English Arbitration Act, Xstrata Coal Queensland
Pty Ltd and Others v. Benxi Iron & Steel (Group) [2016] EWHC 2022 (Comm.); Gold
Coast Ltd v. Naval Gijon SA [2006] EWHC 1044 (Comm.).
47
SA Builders Ltd v. Municipal Corp. of Delhi, EA No. 270/2002 in Ex. P. No. 99/1998 (High
Court of Delhi) (19 February 2008).

tribunal is functus officio. If one of the parties has filed a request, however,
it is reasonable to afford the tribunal a certain flexibility: although the
activities described in article 33 should ideally be carried out as soon as
possible, it would not be desirable to prevent the arbitrators from cor-
recting a mistake that may endanger the validity or international circula-
tion of the award, in cases where more than thirty days are necessary to
devise an adequate answer to the question posed by the requesting party.
9. Paragraph 5: Applicability of Provisions on Form

and Contents of Award
Finally, article 33 contains a reference to article 31, which in turn sets
forth some minimum requirements of form and content for the arbitral
award. Corrections and interpretations of awards, as well as additional
awards, should thus in principle comply with the same requirements as
the original award. This rule is in principle uncontroversial; however, a
distinction must be drawn between those requirements of article 33 that
are always relevant in this context, and those that may be relevant
depending on the type of additional ruling issued by the tribunal. More
specifically, there is no doubt that corrections, interpretations and addi-
tional awards should be made in writing and signed by (at least the
majority of) the arbitrators.48 It is equally clear that the date and place
of arbitration must be stated,49 and that a signed copy must be delivered
to each party.50
As far as the reasons are concerned,51 conversely, the requirement
changes depending on whether the tribunal issues an additional award, a
correction or an interpretation. In case of an additional award dealing
with a portion of the merits that should have been adjudicated in the
original award, the reasons on which the additional award is based should
be spelt out with the same level of detail as the original award. An
additional award is, after all, a decision on the substance of the dispute,
and there is no reason why it should contain a less encompassing reason-
ing than the original award. In the case of a correction, the reasons may in
some instances be intrinsically evident in the type of amendments made
by the tribunal: the correction of a mere computational typographical
error, for instance, does not require an extensive explanation. As for
48
Art. 31(1).
49
Art. 31(3).
50
Art. 31(4).
51
Art. 31(2).

interpretations of the award, the purpose is to provide clarity as to what

the effects the tribunal intended to attach to the original award; the
requirement to give reasons, hence, is met inasmuch as the tribunal
provides sufficient information as to the precise contours of the outcome
of the dispute and, in particular, the way in which the award should be
complied with.

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
falling within the terms of the submission to arbitration, or
contains decisions on matters beyond the scope of the sub-
mission 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 pro-
cedure was not in accordance with the agreement of the
parties, unless such agreement was in conflict with a provi-
sion of this Law from which the parties cannot derogate, or,
failing such agreement, was not in accordance with this
Law; or
858

1. introduction 859
(b) the court finds that:

(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.
1. Introduction
Article 34 regulates the setting aside of arbitral awards. The pro-arbitra-
tion rationale underlying the Model Law requires that judicial review of
arbitral awards be limited to a small number of well-defined situations.
Consistently with this approach, the drafters used the New York
Convention as a source of inspiration, indicating the situations listed in
article V of the Convention as grounds for setting aside and introducing
only a few adaptations.1 Needless to say, courts in Model Law jurisdic-
tions can only set an award aside if the arbitral proceedings were seated
in the territory of that particular State, as implicitly confirmed by
article 1(2).2 However, the same grounds may also be invoked to resist
the recognition and enforcement of an award, irrespective of the country
in which it was made.3
Article 34 was not modified in the context of the 2006 revision of the
Model Law. This commentary, hence, will refer to both pre- and post-
2006 authorities, with no differentiation unless otherwise specified.
1
The most evident difference between art. V of the New York Convention and art. 34 of the
Model Law is the absence of a provision mirroring the ground for refusal of art. V(1)(e) in
the Model Law; this discrepancy has an obvious justification, as the rule at hand pre-
supposes that the setting aside of the award has already taken place.
2
3

860 article 34: appli cation f or setting a side

One of the most challenging tasks faced by the drafters of the Model Law
was the determination of the grounds for annulment of arbitral awards.
The Secretariat opened the discussion on article 34 by making two
fundamental proposals. First, it was suggested that the grounds for
setting aside should be aligned with those listed in article V of the New
York Convention, so as to enhance the acceptability and facilitate the
adoption of the Model Law.4 Second, the Secretariat argued that only one
procedure for challenges against arbitral awards should be available
under the Model Law, in order to facilitate international practice and
avoid the obstacles that may arise from the co-existence of multiple
procedures with different rules and time limits.5
Both of these suggestions were followed by the Working Group.
During the drafting, however, the Working Group also considered the
possibility of inserting four additional grounds for setting aside, which
are not (or, at least, not expressly) mentioned in the New York
Convention.6 These four grounds addressed the following situations:
(1) the case of infra petita, in which the tribunal fails to make an award in
respect of one or more points of the dispute;
(2) the case of an award containing conflicting decisions;
(3) the case in which, after the making of the award, relevant facts or
evidence come to light;
(4) the case in which one of the parties obtains the award by fraud,
bribery, forgery or other similar acts.
Despite the support from some members of the Working Group, accord-
ing to whom these further grounds for setting aside were ‘important’ and
‘recognized in some legal systems’,7 the Working Group eventually
decided to limit the scope of article 34 to the initial proposal, ensuring
a high degree of consistency with the New York Convention.8 This
decision was predicated both on the need to prioritise predictability
4
Commercial Arbitration, UN Doc. A/CN.9/207 (14 May 1981), 102–111.
5
Ibid.; see in particular para. 108.
6
Articles 34 to 41 on Recognition and Enforcement of Award and Recourse against
Award, UN Doc. A/CN.9/WG.II/WP.42 (25 January 1983), art. 41, n. 27.
7
Report of the Working Group on International Contract Practices on the Work of Its Fifth
Session, UN Doc. A/CN.9/233 (28 March 1983), para. 186.
8
Ibid., para. 187.

2 . b a c k g r o un d a n d t ra v a u x p rép a r a t o i r e s 861
and expeditiousness, and on the observation that some of the proposed

additional grounds would in any case fall within the scope of the public
policy clause.9 This last remark is certainly applicable to the case where
the award was obtained fraudulently, as the Working Group itself
remarked from the outset.10 It is for the same reasons that the Working
Group also rejected proposals to insert general grounds for setting aside,
concerning ‘procedural injustice’11 and ‘manifest injustice’.12
Proposals to extend the list of grounds for setting aside were consid-
ered and discarded not only by the Working Group, but also by the
Commission; this further discussion, however, triggered a useful clarifi-
cation of the notion of public policy, highlighting how this concept
‘covered fundamental principles of law and justice in substantive as
well as procedural aspects’.13 In light of the travaux, hence, there is no
doubt that situations where the award was obtained fraudulently are
covered by article 34(2)(b)(ii) of the Model Law.
Apart from the opportunity to include further grounds for annulment
in article 34, the drafters considered each of the grounds for refusal of the
New York Convention, discussing the opportunity to transpose them to
the different context of setting-aside proceedings and the need for mod-
ifications and adaptations. For the purposes of this commentary, how-
ever, these rather specific discussions are best addressed when
scrutinising the grounds listed in paragraph 2; sections 6 to 11, thus,
will refer to the travaux where appropriate.
Another interesting point that was addressed during the drafting of the
Model Law concerned the opportunity of including a mechanism
whereby the State court seised with a setting-aside application may
‘remit’ the case to the arbitral tribunal, so as to give the arbitrators an
opportunity to amend the award and eliminate the flaws that may lead to
an annulment of the award. Initially, not all members of the Working
Group shared the same view, and it was observed that remission could be
difficult to reconcile with different concepts existing in the legal systems
of the States enacting the Model Law.14 The possibility of remission,
9
Ibid.
10
UN Doc. A/CN.9/WG.II/WP.42 (n. 6), n. 27.
11
Ibid., para. 186: the proposal was expressly based on reliance ‘on the common sense of the
judge’.
12
13
Eighteenth Session, UN Doc. A/40/17 (21 August 1985), 58, para. 297.
14
UN Doc. A/CN.9/233 (n. 7), para. 190.

862 arti cle 34: application f or setting aside
however, was eventually retained: the Working Group highlighted the

advantage of enabling the arbitrators to correct their decision15 as ‘a
useful device for curing procedural defects without having to set aside
the award’.16 The drafters also decided to give the provision an open-
ended character, leaving the court essentially free to decide when the
award should be remitted to the tribunal; the words ‘where appropriate’
clearly indicate that it is up to the court seised with a setting-aside
application to evaluate when it would be desirable to give the tribunal
the opportunity to resume the proceedings instead.17
3. Paragraph 1: Exclusive Nature of the Recourse

The first paragraph of article 34 clarifies that the setting-aside procedure
is the only remedy that unsuccessful parties can use against an arbitral
award under the Model Law. As illustrated above,18 the exclusive nature
of the recourse (‘recourse to a court against an arbitral award19 may be
made only by an application for setting aside’20) is the result of a precise
choice of the drafters, made for the purpose of simplification. In legal
systems where more than one mechanism of recourse against arbitral
awards is available,21 interferences are likely to occur and doubts almost
unavoidably arise as to which procedure should be used in a specific case.
In Model Law jurisdictions, instead, the losing party should in principle
have no doubts as to what procedure should be followed to obtain the
annulment of the award. Interestingly, however, even if the recourse
provided for in article 34 is exclusive in nature, the losing party has in
practice two strategic choices: apart from the recourse under article 34, it
may be possible to resist recognition and enforcement pursuant to article
36. Since article 36 does not make a distinction between ‘domestic’ and
‘foreign’ awards, the same grounds may be invoked before the courts at
15
Ibid., para. 191.
16
(6–17 February 1984), para. 139.
17
Model Law on International Commercial Arbitration: Revised Draft Articles XXV to
XXX on Recognition and Enforcement of Arbitral Award and Recourse against Arbitral
Award: Note by the Secretariat, UN Doc. A/CN.9/WG.II/WP.46 (29 August–9 September
1983), art. XXX, n. 17.
18
See n. 5 and accompanying text.
19
Note, however, that awards on jurisdiction may be subject to the different regime of art.
16(3).
20
Emphasis added.
21
See, for instance, in France, CCP, arts 1489–1503; in Italy, CCP, arts 827–831.

4 . ‘a n ar bi t r al awar d may be s et a sid e ’ 863
the seat of arbitration to obtain the setting aside of the award and/or to
resist recognition and enforcement.22
4. ‘An Arbitral Award May Be Set Aside … Only If’: Obligations,

Discretion and Powers of the Court in Setting Arbitral Awards
Aside, or Refusing to Do So
As already mentioned,23 the Model Law embraces an almost perfect
parallelism between the grounds for setting aside a ‘domestic’ arbitral
award (article 34) and the grounds for refusing recognition and enforce-
ment of a ‘foreign’ award (article 36).24 There is, however, a fundamental
difference between the two situations: while the limits within which
recognition and enforcement of foreign awards may be denied are set
first and foremost by the New York Convention, States remain in prin-
ciple free to determine when a domestic award may be set aside. Thus,
assuming that a State enacting the Model Law is also a party to the New
York Convention, adopting articles 34 and 36 as national legislation
entails a different exertion of national legislative powers. More specifi-
cally, by adopting the latter, the State complies with pre-existing inter-
national obligations; conversely, by enacting article 34, the State makes a
policy choice in a field (the setting aside of domestic arbitral awards)
where national regulatory powers are in principle not constrained by
arbitration-specific25 international obligations, such as the ones arising
out of the New York Convention with regard to foreign awards.26
22
CLOUT Case 571, Hanseatisches Oberlandesgericht Hamburg, 24 January 2003, 11 Sch.
06/01. Needless to say, the same grounds may also be invoked to resist recognition and
enforcement elsewhere (e.g. whenever the New York Convention is applicable).
23
24
K. P. Berger, International Economic Arbitration (Kluwer, 1993), p. 663. In this context,
the word ‘domestic’ designates an award made in the territory of the State adopting the
Model Law, whose courts hence have jurisdiction to hear setting-aside actions; ‘foreign’,
conversely, designates an award made elsewhere.
25
However, constraints on the State’s regulatory discretion may derive from other sources of
international law that, unlike the New York Convention, do not specifically concern
arbitration. By way of example, human rights law may entail certain minimum obligations,
aimed at ensuring the fairness of the setting-aside proceedings. Nevertheless, in practice, the
European Court of Human Rights tends to afford a high degree of deference to party
autonomy, even if the parties agreed to waive the right to request the setting aside of the
award altogether: Tabbane v. Switzerland, App. No. 41069/12 (ECtHR, 1 March 2016).
26
Aloe Vera of Am. Inc. v. Asianic Food (S) Pte Ltd [2006] SGHC 78. However, some
commentators argue that, despite the absence of explicit references to the setting aside of
arbitral awards, the New York Convention imposes some minimal implicit constraints on
the contracting parties’ regulatory autonomy, by requiring that arbitration agreements be

864 article 34: application f or setting aside
Article 34 states that an arbitral award ‘may’ be set aside: national

courts hearing a setting-aside application, hence, do not seem to be under
an obligation to annul the arbitral ruling, even when it appears that one
or more of the grounds set forth in the provision are present. This
language derives, once again, from the Model Law’s primary source of
inspiration, the New York Convention.27 In this context, however, the
margin of appreciation enjoyed by municipal courts when deciding
whether to set an award aside should be understood in partially different
terms, as compared to the discretion conferred by the use of the same
verb (‘may’) in article 36(1) with reference to the recognition and enfor-
cement of foreign awards. More specifically, the possibility for the courts
of the requested State to recognise and enforce a foreign award, despite
the presence of one of the grounds of refusal enshrined in article V of the
New York Convention, serves the main purpose of guaranteeing the
overall fairness of the final outcome, in cases where the existence of
the aforementioned ground(s) is the consequence of idiosyncratic or
discriminatory practices and/or decisions that have taken place at the
seat of arbitration. A typical example is the case on an arbitral award
being set aside at the seat for capricious and/or protectionist reasons,
which do not reflect the prevailing transnational standards:28 in this case,
the courts of any other State remain free to recognise and enforce the
award, despite the fact that it has been formally set aside by the courts of
the State where the arbitral proceedings were seated.29 In the case of
article 34, however, the same reasoning is not entirely transposable, as the
arbitration was obviously seated in the same State where setting-aside
proceedings are now pending: the flexibility afforded by the very ‘may’,
hence, cannot possibly be used to redress or mitigate injustices occurred
abroad. To the contrary, a court’s refusal to set an award aside, despite the
proof of the presence of one of the grounds for annulment enumerated in
article 34, may amount to a denial of justice. Therefore, in practice,
national courts are more likely to justify a refusal to set an award aside
by pointing out that the evidence as to the existence of one of the article
34 grounds is insufficient, rather than by relying on the discretion
enforced and that arbitral awards be normally treated as final: G. B. Born, International
Commercial Arbitration, 2nd edn (Kluwer, 2014), pp. 3168–3173.
27
See also the commentary to arts 35 and 36.
28
See e.g. the landmark case In Re. Chromalloy Aeroservices and the Arab Republic of Egypt,
939 F. Supp. 906 (DC Cir. 1996).
29
For this reason, a refusal of recognition and enforcement would in principle be possible
pursuant to art. V(1)(e) of the New York Convention.

5 . r e l e v a n c e o f pa r t y i m p u l s e 865
afforded by the word ‘may’ while acknowledging that there are, in fact,
reasons that would in principle warrant an annulment.
Article 34 then proceeds to specify that setting aside is possible ‘only’ in
the circumstances enumerated by the provision itself: the grounds indi-
cated in article 34, hence, are a numerus clausus, to the exclusion of all
others. The importance of this characteristic of the Model Law can hardly
be overstated: any national court hearing a setting-aside case under the
Model Law is prevented not only from conducting a de novo revision of the
merits of the case, but also from referring by analogy to the grounds for
appeal available against court judgments. However, despite the unques-
tionable importance of this limitation on the powers of national courts to
set arbitral awards aside, it must also be acknowledged that some of the
grounds envisaged by article 34 (and in particular the reference to public
policy in article 34(2)(b)(ii)30) are worded in a rather broad fashion, so that
a relatively wide range of practical situations may potentially be relevant.
5. Relevance of Party Impulse

The grounds for annulment listed in article 34 are divided in two groups,
under the letters (a) and (b), largely corresponding to paragraphs (1) and
(2) of article V of the New York Convention.31 This division reflects the
difference between the purely procedural relevance of the grounds
grouped under letter (a), on the one hand, and the (at least potentially)32
substantive significance of those listed under letter (b), on the other.
However, there is also another important difference, concerning the role
of party impulse in the setting-aside proceedings. Under letter (a), an
award may only be set aside if ‘the party making the application furnishes
proof’ about one of the grounds set forth in this part of the provision. The
burden of proof, hence, is expressly placed on the applicant, and all powers
of ex officio investigation and assessment by the court are expressly ruled
out. Conversely, pursuant to letter (b), the award may be set aside if ‘the
court finds that’ the subject matter of the dispute is not arbitrable, or the
award is contrary to public policy.
This difference in wording – which the Model Law inherited directly
from the New York Convention – seems to suggest that the grounds for
30
See below, section 11.
31
With the obvious exception of art. V(1)(e), which presupposes that the award has already
been set aside at the seat of arbitration.
32
Public policy, in particular, may be invoked for both substantive and procedural reasons:
see below, section 11.

setting aside listed under letter (b) may be used by the court also ex officio,
irrespective of whether the proof has been furnished by the challenging
party or autonomously retrieved by the court. This specificity of article
34, however, should not be read as entailing that the courts at the seat
have the power to set an award aside even if none of the parties requested
them to do so. To the contrary, setting aside always presupposes a timely
application by an interested party, in accordance with paragraph 3 of
article 34.33 Consistently with the pro-arbitration rationale inspiring the
overall architecture of the Model Law, an award may never be annulled if
none of the parties initiated setting-aside proceedings; once a setting-
aside application has been validly made, however, it is not incompatible
with article 34 for the competent court at the seat to consider issues of
arbitrability and public policy ex officio.34
6. Paragraph (2)(a)(i)
Article 34(2)(a)(i) considers two scenarios in which there is no valid
agreement between the parties. First, the provision addresses the case of
incapacity: if one of the parties was not legally capable of entering into the
agreement to arbitrate, the agreement is not binding and any award
resulting from it may be set aside. Second, the article contemplates
other cases of invalidity and indicates the law according to which the
invalidity should be assessed.
6.1 Incapacity of One of the Parties to the Agreement

The first situation considered in article 34(2)(a)(i) is the case where one
of the parties to the arbitration agreement ‘was under some incapacity’; in
this case, the competent court at the seat of arbitration can set the award
aside. The rationale underlying this rule is that an agreement to arbitrate
should not produce effects if the parties to it lacked the capacity to
conclude it.
33
See below, section 12. Note, however, for a different approach as to the relevance of ex
officio assessments of public policy, German Bundesgerichtshof, 2 November 2000,
(2000) Zeitschrift für Wirtschaftsrecht 2270.
34
Note that, even if the time limit of art. 34(3) elapses without an application for setting
aside having been made, national courts maintain to a certain extent the ability to
consider issues of arbitrability and public policy ex officio in the context of recognition
and enforcement proceedings, pursuant to art. 36(1)(b) of the Model Law and the
corresponding provisions of art. V(2) of the New York Convention.

6. p ar agr ap h ( 2) (a )( i) 867
The provision at hand does not expressly answer two important

questions:
(1) What agreement or contract should the parties possess capacity to
conclude, in order for the award not to be set aside?
(2) At what point in time should the parties possess capacity?
Despite the provision’s lack of explicit chronological specifications, both
of the questions above have a clear answer deriving from the overall
architecture of the Model Law. As for the first problem, the doctrine of
separability (as enshrined in article 16) requires to consider the agree-
ment to arbitrate as separate from the main contract, even when it has the
form of an arbitration clause contained in that contract.35 Therefore, the
award can be set aside pursuant to the first limb of article 34(2)(a)(i) only
if the parties lacked the capacity to conclude the agreement to arbitrate. It
is possible that the applicable law imposes additional capacity require-
ments to conclude the main contract and, in this case, it cannot be
excluded that a party may have capacity to consent to arbitrate, but not
to conclude the main contract to which the arbitration clause refers.
Nevertheless, this would not warrant the annulment of the arbitral
award: as long as the parties have capacity to conclude the arbitration
agreement, this setting-aside ground is not applicable and any objection
concerning the (in)capacity to conclude the main contract will form part
of the merits of the case and be decided by the tribunal, if submitted to it.
As for the second question, there is little doubt that the parties’
capacity (or lack thereof) must be assessed with reference to the moment
in time when the agreement was concluded. For this reason, it has been
held that, as long as the party possessed capacity at the time when the
agreement was concluded, the agreement remains valid, even if that party
subsequently enters into liquidation and loses the ability to conclude
agreements to arbitrate according to the applicable law.36
In any practical scenario, the two questions presented above cannot be
answered without looking into the content of the law governing the
parties’ capacity to conclude the arbitration agreement. However, the
Model Law does not clarify which law determines the parties’ capacity to
conclude an agreement to arbitrate. This omission constitutes a depar-
ture from the New York Convention, which contains a minimum
35
36
SDV Transami Ltd v. Agrimag Ltd and Others, Kampala High Court, Commercial
Division, Uganda, 19 June 2008, HCT-00-CC-AB-0002-2006.

868 a r t i c l e 34 : a p p l i c a t i o n f o r s e t t i n g as i d e
specification at article V(1)(a) (requiring that the parties’ capacity be

assessed in accordance with the ‘law applicable to them’).37 Furthermore,
the drafters’ choice not to include a choice of law rule differentiates the
first limb of article 34(2)(a)(i) from the second one (which refers to the
law selected by the parties or, failing any indication thereon, the law of
the seat, as far as the validity of the agreement to arbitrate is concerned).
On the one hand, this absence of specifications affords arbitral tribunals
and national courts some flexibility in determining under which law the
parties’ capacity to conclude the arbitration agreement should be eval-
uated. On the other hand, however, it also generates uncertainty, as it is
impossible to rule out the risk that the national court reviewing the award
will conduct a conflict of laws analysis different from the one performed
by the tribunal, with potentially inconsistent results.
The most likely approach for national courts is to identify the law
governing the parties’ capacity on the basis of the conflict of laws rules of
the seat. This approach should normally lead to the application of the
parties’ personal law, rather than the law regulating the agreement or the
law of the seat.38 For legal persons, the criterion used to find the parties’
personal law is likely to be the company’s place of incorporation or seat;
for natural persons, the party’s domicile, place of residence or nation-
ality.39 This tendency, in turn, influences the attitude of arbitral tribunals,
which tend to follow the same principles;40 the willingness of many
arbitral tribunals to identify the law governing the parties’ capacity on
the basis of the same criteria underlying the conflict of laws rules of the
37
Nevertheless, some States enacting the Model Law have decided to include a reference to
the law applicable to the parties, thus bringing the text entirely in line with art. V(1)(a) of
the New York Convention. See e.g. German ZPO, s. 1059: S. M. Kroll and P. Kraft, ‘§ 1059
– Application for Setting Aside’ in S. M. Kröll, K.-H. Böckstiegel and P. Nacimiento (eds),
Arbitration in Germany: The Model Law in Practice, 2nd edn (Kluwer, 2015), p. 383. The
Working Group criticised the New York Convention’s reference to the law applicable to
the parties, describing this conflict of laws rule as ‘too simplistic’ and ultimately inade-
quate to resolve a rather complex private international law problem: UN Doc. A/CN.9/
233 (n. 7), para. 141. Against this background, the Commission deleted the reference to
the law ‘applicable to the parties’, noting that this was a vague notion which could
potentially be construed as ‘referring to the law of the nationality, domicile or residence
of the parties’: UN Doc. A/40/17 (n. 13), 55, para. 280.
38
G. Cordero-Moss, ‘Legal Capacity, Arbitration and Private International Law’ in K.
Boele-Woelki, T. Einhorn, D. Girsberger and S. Symeonides (eds), Convergence and
Divergence in Private International Law – Liber Amicorum Kurt Siehr (Eleven, 2010),
p. 619.
39
N. Blackaby, J. M. Hunter, C. Partasides and A. Redfern, Redfern and Hunter on
International Arbitration, 6th edn (Oxford University Press, 2015), pp. 81–82.
40
See e.g. awards in ICC Case Nos 9899, 7373, 6476, 5803 and 4381.

6. p ar agr ap h (2) (a )( i) 869
seat of arbitration may be at least partially explained as an attempt to

minimise the risk of setting aside on grounds of incapacity.
The tendency to look at the conflict of laws rules of the seat, while wide-
spread, is far from universal. Adopting a different approach, some tribunals
and national courts have held that the parties’ capacity should be evaluated in
accordance with international principles, in light of the fact that international
arbitration is to a certain extent independent from national legal systems.41
Such an ‘international’ approach to questions of capacity undoubtedly has
the merit of minimising the risk that a party will be able to escape the effects
of the arbitration agreement by strategically relying on an obscure provision
of its domestic law. However, if the arbitration is seated in a State whose
courts do not share the same arbitration-friendly approach, it cannot be
excluded that the award will be set aside, if the tribunal retained jurisdiction
by relying on international legal standards, despite the fact that one of the
parties was under some incapacity according to its ‘personal’, domestic law.
Some commentators have argued that the parties’ capacity should be
assessed on the basis of a ‘validation’ principle: this would entail that
capacity would be deemed to exist, as long as it exists under any of the
laws of the States affected by the parties’ relationship, or under the law of
the seat.42 Similarly to what has been noted above with reference to the
‘international’ approach, adopting the validation principle would
undoubtedly be arbitration friendly, but it may also expose the award to
the risk of setting aside, depending on the attitude of the courts at the seat.
The issue of capacity of natural persons has limited relevance in the
practice of international arbitration, mainly because the capacity require-
ments imposed by most national laws are so minimal that it is hard
(although not entirely impossible) to envisage a realistic case where a
person engaging in an international commercial transaction would lack
the capacity to agree to arbitrate. By contrast, the problem can be
particularly relevant for legal persons and States. Legal persons may
sometimes argue that the individual who signed the arbitration agree-
ment was not duly authorised to do so, and was thus unable to bind the
legal entity. In many legal systems, however, the possibility to invoke this
type of defence is often limited by doctrines of apparent mandate or
ostensible authority, when representations were made to the contractual
41
Award in ICC Case No. 10663; Société d’études et représentations navales et industrielles
(Soerni) et autres v. Société Air Sea Broker Ltd (ASB), French Court of Cassation, 8 July
2009, (2009) 3 Rev. Arb. 529; Bargues Agro Industrie SA (France) v. Young Pecan Co. (US),
Paris Court of Appeal, (2005) XXX YB Com. Arb. 499.
42
Born (n. 26), p. 631.

counterpart that the individual had the authority to act on behalf of the
legal person.43 As for States, their domestic law may impose conditions
and/or limitations on their ability to consent to arbitration; nevertheless,
arbitral tribunals and national courts have often prevented States and
State-owned entities from invoking their national law to escape the
effects of an agreement to arbitrate.44
6.2 Invalidity of the Agreement

The second limb of article 34(2)(a)(i) concerns the invalidity of the agree-
ment to arbitrate. Unlike the first part of the provision, which omits all
references to conflict of laws rules determining the law applicable to the
parties’ capacity, the second limb specifies that the validity of the agreement
should be assessed in accordance with the law to which the parties have
subjected it or, in the absence of any indication, the law of the seat, where the
setting-aside proceedings are taking place. As already mentioned with
reference to issues of capacity, article 34(2)(a)(i) should be read in light of
the principle of separability: the invalidity of the main contract, hence, does
not automatically extend to the agreement to arbitrate, as repeatedly held by
courts in Model Law jurisdictions in accordance with article 16.45
Setting-aside actions are not the first procedural stage where the validity
of the arbitration agreement is evaluated: already in the arbitration the
tribunal is faced with the task of determining whether the agreement to
arbitrate is valid, in accordance with the doctrine of competence-compe-
tence. The losing party in the arbitration can invoke article 34(2)(a)(i) if the
arbitral tribunal retained jurisdiction, having deemed the agreement to
arbitrate valid; in this case, the attempt to set the award aside is premised
on the argument that the tribunal made a mistake in the assessment of the
clause’s validity. When seised on a setting-aside action based on the alleged
invalidity of the arbitration agreement, courts in Model Law jurisdictions
usually perform a de novo assessment, rather than according deference to
43
S. Brekoulakis, Third Parties in International Commercial Arbitration (Oxford University
Press, 2010), s. 2(b).
44
For a summary of the case law, see Born (n. 26), p. 731.
45
See e.g. case law from Australia (Subway Sys. Australia Pty Ltd v. Ireland (2013) VSC 550;
CLOUT Case 504, DG Jewelry Inc. and Others v. Cyberdiam Canada Ltd and Others
[2002] OJ 1465; CLOUT Case 367, NetSys Tech. Group AB v. Open Text Corp. (1999) 1
BLR 3d 307); India (M/S Magma Leasing & Fin. Ltd and Another v. Potluri Madhavilata
and Another, AIR 2010 SC 488; P. Manohar Reddy & Bros v. Maharashtra Krishna Valley
Dev. Corp. (2009) 2 SCC 494); Kenya (Blue Ltd v. Jaribu Credit Traders Ltd, Nairobi High
Court, Civil Case No. 157/2008).

6 . pa r a g r a p h (2 )( a ) (i ) 871
the analysis undertaken by the tribunal.46 This approach is justifiable, as

arbitral jurisdiction is based on the parties’ consent: were the courts of the
seat of arbitration to simply trust the assessment performed by the arbi-
trators, no effective remedy would be available for a party against whom an
arbitral award has been issued, despite the fact that it never validly agreed to
arbitrate.
Interestingly, the provision at hand is not applicable in the opposite
scenario, where the arbitrators declined jurisdiction despite the fact that a
valid agreement to arbitrate did exist. In this case, the party requesting
arbitration would undoubtedly have an interest in obtaining the annul-
ment of the determination whereby the arbitrators declined jurisdiction,
but article 34(2)(a)(i) cannot be used to this end for two intertwined
reasons. First of all, the decision whereby the tribunal declines jurisdic-
tion for want of a valid arbitration agreement cannot be qualified as an
award stricto sensu, given that the issuance of an award entails the
existence of the parties’ consent to arbitration as a prerequisite.47
Second, the provision at hand expressly and solely refers to the case
where the agreement is not valid,48 conversely excluding the hypothesis
where the agreement is valid (but the tribunal wrongly declared it
invalid) from its scope of application.49 This conclusion is confirmed
46
By contrast, the court seised with the setting-aside application should normally be bound to
follow a prior judgment rendered by a State court at the seat of arbitration, concerning the
validity of the agreement, inasmuch as that prior judgment produces res judicata effects. The
same, however, does not necessarily hold true for judgments concerning the (in)validity of
the agreement rendered by the courts of a State other than the one where the arbitral
proceedings are seated: in the European Union, for instance, Recital 12(2) of the Brussels I
bis Regulation (Regulation 1215/2012) clarifies that ‘a ruling given by a court of a [EU]
Member State as to whether or not an arbitration agreement is null and void, inoperative or
incapable of being performed should not be subject to the rules of recognition and enforce-
ment laid down in [the] Regulation, regardless of whether the court decided on this as a
principal issue or as an incidental question’. This clarification is particularly welcome in the
wake of National Navigation, which raised doubts as to the binding effects of this type of
court judgments on the courts of other EU member States: Natl Navigation Co. v. Endesa
Generacion SA (The Wadi Sudr) [2009] EWCA Civ. 1397.
47
S. Greenberg, ‘Direct Review of Arbitral Jurisdiction under the UNCITRAL Model Law
on International Commercial Arbitration: An Assessment of Article 16(3)’ in F. Bachand
and F. Gélinas (eds), The UNCITRAL Model Law after Twenty-Five Years: Global
Perspectives on International Commercial Arbitration (Juris, 2013), pp. 49, 70, with
reference to P. Sanders, Quo Vadis Arbitration? Sixty Years of Arbitration Practice
(Kluwer, 1999), pp. 186–187.
48
Emphasis added.
49
By contrast, in some non-Model Law jurisdictions, the courts at the seat have the power to
set aside a negative jurisdictional ruling issued by an arbitral tribunal: see e.g. France
(Fondation Albert Abela Family Foundation (AAFF) et autres v. Fondation Joseph Abela

872 a rt i cl e 3 4: a pp l i ca ti o n f o r s et t i n g asi d e
by the legislative history of the Model Law: the possibility to allow a

challenge against a negative jurisdictional decision was considered, but
ultimately discarded.50 Following this line of reasoning, courts applying
the Model Law have repeatedly refused to set aside negative jurisdictional
rulings.51 This state of affairs has triggered criticism, with some com-
mentators arguing that there is no rationale justifying a difference of
treatment between parties pursuing arbitration and parties objecting to
the jurisdiction of the arbitral tribunal.52
7. Paragraph (2)(a)(ii)
Article 34(2)(a)(ii) considers two situations, both of which broadly
relate to the challenging party’s right to be heard and present its case.
First, the provision addresses the case where the challenging party was
not given proper notice of the appointment of an arbitrator or of the
arbitral proceedings. In this scenario, the party was not informed
about some crucial aspects of the arbitration and, in the most extreme
cases, may not have been made aware of the existence of the arbitral
proceedings at all. Second, the article encompasses all other hypoth-
eses in which the party making the application was ‘otherwise unable
to present the case’, despite having been given notice of the proceed-
ings and of the appointment of the arbitrators. The second limb of the
article, hence, is essentially a fall-back provision, covering all viola-
tions of the right to present one’s case that do not relate to a lack of
notice.
7.1 Failure to Give the Party Proper Notice of the Appointment

of an Arbitrator or of the Arbitral Proceedings
An arbitral award may be set aside if the challenging party ‘was not given
proper notice of the appointment of an arbitrator or of the arbitral
proceedings’. While the Model Law does not specify an exact time limit
Family Foundation (JAFF), French Court of Cassation, (2010) 4 Rev. Arb. 813) and
Switzerland (Private International Law Act, art. 190(2)(b)).
50
UN Doc. A/40/17 (n. 13), para. 163, arguing that it would be ‘inappropriate to compel
arbitrators who had made such a ruling to continue the proceedings’.
51
CLOUT Case 742, PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2006] SGCA
41; CLOUT Case 560, German Bundesgerichtshof, 6 June 2002, III ZB 44/01.
52
S. Kröll, ‘Recourse against Negative Decisions on Jurisdiction’ (2004) 20 Arb. Intl 35, with
reference to the Bundesgerichtshof judgment of 6 June 2002 (n. 51).

7. paragraph (2)(a)(ii) 873
within which notice must be given,53 the adjective ‘proper’ indicates that
the information must be furnished in a manner that is not only exhaus-
tive, but also adequate to allow the parties to prepare its case and
participate in the proceedings.54
Notice plays an important role to ensure the fairness of arbitration,
since the Model Law allows the arbitral proceedings to take place even if
one of the parties does not actively participate in them.55 In order for
fundamental rights to be respected, hence, it is crucial that every party
was duly informed about the existence of the proceedings and the
possibility to participate in them.56 At the same time, however, if the
tribunal and/or the participating party (or parties) were required to
inform the defaulting party of every single procedural step, the burden
arising out of this duty of information would likely threaten the practical
viability of arbitration. For this reason, article 34(2)(a)(ii) limits the
possibility of setting aside to two particularly serious situations, where
the party applying to obtain the annulment of the award did not receive
the necessary information on crucial aspects of the procedure. First,
setting aside is possible if the challenging party did not receive ‘proper
notice’ of the appointment of an arbitrator. Given the centrality of private
autonomy in arbitration, the parties are expected to be in control of the
composition of the tribunal, either directly (by appointing arbitrators) or
indirectly (by selecting a mechanism for their appointment); it is under-
standable, hence, that an award may be set aside if one of the parties was
not adequately informed of the appointment of an arbitrator. Second, the
provision addresses the situation where one of the parties was not
informed about the arbitral proceedings at all: in this case, of course,
due process and the party’s right to present its case were manifestly
violated, as not all disputants were put in the condition to participate in
the proceedings.
The first scenario (lack of notice of the appointment of an arbitrator)
does not occur frequently in practice: in most arbitrations, appointments
are immediately communicated to the parties, and arbitral institutions
53
The absence of an express time limit is consistent with the drafters’ aim to develop a
flexible legislative template, whose contents would not clash with time limits set in the
national legislations of the enacting States.
54
Michael D. Castro v. Tri Marine Fish Co., LLC, and Others (WD Wash.), (2018) XLIII YB
Com. Arb., forthcoming.
55
56
CEEG (Shanghai) Solar Science & Technology Co., Ltd v. Lumos LLC, n/k/a Lumos Solar
LLC, US Court of Appeals, Tenth Circuit, (2017) XLII YB Com. Arb. 607.

874 a rt i cl e 34 : ap p l i ca ti o n f o r s e t ti ng as i d e
are careful in ensuring that the disputants be informed of the develop-

ments concerning the constitution of the tribunal. National authorities
often tackle the issue pragmatically, looking at the effectiveness of the
communication more than at its formal details.57 When discussing the
equivalent provision of the New York Convention,58 some commenta-
tors have observed that even if the party does not receive a specific notice
concerning the appointment, no harm would ensue as long as that party
would then find out about the appointment, once the arbitrator begins to
act.59 This line of reasoning is in principle applicable to article 34 of the
Model Law too, especially considering that, if a party is only informed
about the appointment when the arbitrator performs his or her first
activity in the arbitration, the time limit for hypothetical challenges
against that arbitrator would not run in the period between the appoint-
ment and that first activity.60
The second scenario has a stronger practical relevance: in order to
respect due process and the parties’ fundamental rights, all of the dis-
putants must be adequately informed of the existence of the arbitral
proceedings.61 A party should only be allowed to rely on this provision
at the setting-aside stage if the lack of notice effectively resulted in a
57
In an emergency arbitration case against Ukraine, the defendant State tried to resist
recognition and enforcement arguing that the notice of the proceedings had not been
given properly, since the notice had been given to the President’s Administration, rather
than to the competent Ministry. The Ukrainian Supreme Court, however, rejected this
argument: Ministry of Justice of Ukraine v. JKX Oil Plc and Others, Supreme Court, (2016)
XLI YB Com. Arb. 581.
58
Art. V(1)(b).
59
Born (n. 26), p. 3507.
60
See, in particular, the commentary to art. 13(2). The same, however, may not be applic-
able to situations where the party is in default of appearance. Default should in principle
be construed as a free choice of the party, leading to the consequences set forth in art. 25,
as long as the documents instituting the arbitral proceedings have been correctly com-
municated to the party. If, however, that same party did not receive proper notice of the
appointment of one or more arbitrators, it could argue that it suffered a prejudice, as it
was not given the opportunity to fully evaluate whether to remain in default or appear in
the arbitral proceedings. In other words, the party may potentially object that it would
have appeared in the proceedings, were it properly informed about the constitution of the
tribunal. This argument, of course, could only be put forth if the time limit for the
submission of the statement of defence pursuant to art. 23(1) of the Model Law did not
expire in the period of time between the notice of the proceedings and the notice of
appointment of the arbitrator. The problem, hence, cannot be resolved in general terms,
as it depends on the contents of the applicable arbitration rules (if any).
61
Zavod Ekran OAO v. Magneco Metrel UK Ltd, High Court of Justice, Queen’s Bench
Division, Commercial Court, Case No. CL-2016-000720, (2018) XLIII YB Com. Arb.,
forthcoming.

7. paragraph (2)(a)(ii) 875
prejudice to its right to prepare and present the case: this limb of article
34(2)(a)(ii), hence, is primarily relevant when one of the disputants does
not appear during the arbitration and later claims that the default was not
the result of a conscious choice, but the unintended consequence of the
absence of information about the existence of the proceedings.62 By
contrast, a disputant that participated in the arbitral proceedings should
normally be estopped from invoking the provision at hand, irrespective
of how the information about the existence of the arbitration was initially
obtained.
While all national courts generally agree that it is crucial for the parties
to receive proper notice of the arbitral proceedings, not all authorities
adopt the same approach as to what type of notice would qualify as
‘proper’. In some cases, courts have found that, even when a party was
not personally served with the notice of application, other mechanisms of
‘fictitious’ service (such as the publication of the notice on a newspaper)
may be sufficient to meet the requirement of ‘proper notice’ of article 34
(and of the corresponding provision of article V of the New York
Convention).63 As already mentioned above with reference to the notice
of appointment of an arbitrator, courts often tend to be pragmatic in this
respect: an Austrian court, for instance, held that the notice is ‘proper’ as
long as the communication ‘enters the sphere’ of the recipient, irrespec-
tive of whether the person reached by the notice refused to accept
delivery.64 A similar reasoning was followed in an arbitration seated in
Hong Kong, where the parties had specified in the agreement the
addresses at which all notices should be delivered, but one of the parties
later moved without communicating the new address to the other party
or the tribunal; in this case, the tribunal held that notice should be
deemed to be given, despite the fact that the communication was
62
For this reason, attempts to have an award set aside generally fail if the party did submit
any type of defence during the course of the arbitration: CLOUT Case 677, Guangdong
New Technology Import & Export Corp. Jiangmen Branch v. Chiu Shing trading as BC
Property & Trading Co. [1991] 2 HKC 459.
63
China Citic Bank Corp. Ltd v. Shibiao Yan, Supreme Court of British Columbia, 361,
granting deference to the decision of a Chinese Intermediate People’s Court that refused
to set an award aside on grounds of lack of notice, arguing that the publication in a
newspaper sufficed under Chinese law.
64
Oberster Gerichtshof, 3 Ob.208/15g, 17 February 2016 in van den Berg (n. 57), p. 398.
With a similar reasoning, see also CLOUT Case 870, Oberlandesgericht Dresden, 15
March 2006, 11 Sch. 19/05, holding that communications to the last-known business
address are sufficient and that the tribunal does not have an obligation to engage in
further investigations concerning the new address of the recipient.

returned as undeliverable, as long as reasonable efforts were made to

retrieve the new address of the recipient.65 Other authorities, by contrast,
follow a stricter approach, requiring proof that the respondent actually
received notice of the arbitration and the basic information relating to it
(such as the calendar of the proceedings).66 General guidance on the
notion of receipt of written communications under the Model Law can be
found in article 3.67
7.2 Inability to Present the Case

If arbitration is to function as an effective, rule-based mechanism of
private adjudication, it is crucial that all of the parties be able to present
the case. This general requirement entails two basic consequences. First,
all parties must be given an equal opportunity to present the case:68 the
principle at hand, hence, would be violated if the latitude in presenting
written or oral defences varied depending on the disputants; each of the
parties must have the same possibility to illustrate its defences and take a
position on the other parties’ submissions and on the evidence presented
before the tribunal. Second, the opportunity to present the case must be
effective: the principle requires not only that the parties be all treated in
the same way, but also that they be effectively enabled to present their
defences without unnecessary or unreasonable restrictions.69 If a party
was not given the same possibilities as the other disputants or was in any
case not enabled to present its case, the award may be set aside pursuant
to article 34(2)(a)(ii).70 The same, of course, does not hold true if the
65
Award cited in Intel Capital v. Shan Yi, US District Court, Eastern District of Michigan,
Case No. 15-mc-50406 (n. 57), 639.
66
See e.g. Yukos Capital SARL (Luxembourg) v. OAO Tomskneft VNK (Russian Federation),
Federal Arbitrazh Court, District of Tomsk, A67-1438/2010, 7 July 2010, (2010) XXXV YB
Com. Arb. 435; in this case, however, the finding of a lack of notice leading to a refusal of
recognition on the basis of art. V(1)(b) of the New York Convention should be read in the
context of the peculiar facts of the case, and the allegedly fictitious nature of the arbitration.
67
68
69
CLOUT Case 1659, AYH v. AYI and Another [2015] SGHC 300; CLOUT Case 1663, PT
Prima Intl Development v. Kempinski Hotels SA and other appeals [2012] SGCA 35;
Oberlandesgericht München, 5 July 2011, 34 Sch. 9/11; Oberlandesgericht München, 5
October 2009, 34 Sch. 12/09; CLOUT Case 1441, Paklito Investment Ltd v. Klockner East
Asia Ltd [1993] 2 HKLR 39.
70
Note, however, that national courts in Model Law jurisdictions do not interpret these two
corollaries of the principle of due process formalistically, but rather ensuring the sub-
stantial fairness of the procedure. See e.g. Triulzi Cesare SRL v. Xinyi Group (Glass) Co.
Ltd [2014] SGHC 220.

7. p ar agr ap h ( 2) (a )( ii) 877
party voluntarily refuses to participate in the arbitration or to make use of

the defensive opportunities that have been afforded to it, as confirmed by
article 25(b) and (c).71
In order for the right to be heard to be effective, it is not only sufficient
for the parties to be given the material possibility to put forth written and
oral defences: the tribunal must also appear to take those defences into
account and avoid any prejudgment of the case. In light of this, courts in
Model Law jurisdictions often adopt a standard which focuses on the
arbitrators’ attitude towards the disputants’ presentation of the case. In
other words, article 34(2)(a)(i) is not deemed to have been violated if, on
the basis of the conduct of the proceedings and the contents of the award,
it appears that the tribunal reviewed the parties’ arguments with a reason-
able degree of thoroughness.72
When assessing whether a violation of the parties’ procedural rights
has taken place, most national authorities do not engage in a detailed
conflict of laws analysis, in order to determine which law should provide
the general standards of due process and fairness. On the one hand, it is
justifiable for the courts at the seat to refer to their domestic law: it is the
law of the seat, after all, that governs the arbitration, and therefore also
determines the procedural standards applicable to it. It is unsurprising,
therefore, that this approach is followed in Model Law jurisdictions.73 On
the other hand, however, it is also important to consider that arbitration
is not identical to court litigation: a violation of due process, hence,
should not be deemed to have occurred for the mere fact that the
procedural rights of the parties were given effect in a fashion which
diverges from what would ordinarily happen in local court proceedings.
Article 34(2)(a)(ii) should not be interpreted extensively: the provision
allows the competent court to set an award aside only if a significant
71
See e.g. in Canada, CLOUT Case 1248, Corporación Transnacional de Inversiones SA de CV
and Others v. STET Intl SpA and Others, 136 OAC 113 (15 September 2000) (Canada); in
Spain, CLOUT Case 1158, Zaragoza Provincial High Court (5 February 2010); in Croatia,
CLOUT Case 1069, Supreme Court (5 March 2008). Courts in Model Law jurisdictions have
occasionally interpreted this part of art. 34 in a particularly restrictive fashion: in a Hong Kong
case, for instance, one of the parties did not receive notice that an expert would conduct an
inspection on a certain date and, for this reason, was not able to attend the inspection. Despite
this procedural irregularity, however, the Hong Kong court concluded that no violation of the
right to present the case had occurred, as the party failed to object against the report prepared
by the expert, to call other experts or to ask for a re-inspection: CLOUT Case 599, Hebei
Import & Export Corp. v. Polytek Engineering Ltd [1999] 2 HKC 205.
72
CLOUT Case 1649, Consolidated Contractors Group SAL v. Ambatovy Minerals SA (2016)
ONSC 7171.
73
Pang Wai Hak v. Hua Yunjian [2012] 4 HKLRD 113.

878 article 3 4: application f or setting asid e
violation of procedural rights and guarantees has taken place.74

Conversely, setting aside is not allowed for simple errors or debatable
procedural choices that the tribunal may have made during the course of
the proceedings. The possibility to invoke the provision at hand success-
fully is particularly limited if the procedural conduct of the arbitration
has been determined by a choice of the parties themselves: national
courts in Model Law jurisdictions are typically deferent to the agreement
of the disputants, consistently with the primacy of party autonomy in
arbitration.75 In this case, therefore, the annulment of the award is in
principle only possible in the event of manifest unfairness of the agree-
ment on procedure reached by the parties. This situation, however, is
unlikely to arise in practice, since the parties typically conclude proce-
dural agreements by referring to pre-existing sets of arbitration rules,76
which are usually mindful of due process and of the disputants’ proce-
dural rights.77
Along similar lines, some national authorities applying article 34
require the party challenging the award to prove not only that the right
to present the case was not given proper effect, but also that, in the
absence of such a procedural irregularity, the outcome of the case
would likely have been different.78 It is, of course, not possible to demon-
strate that the challenging party would have prevailed if it were given a
broader opportunity to present the case; this judicial approach, however,
does require the demonstration that the conduct of the proceedings had a
discernible impact on the particular way in which the case was adjudi-
cated by the tribunal.79 In practice, this standard of proof serves the
purpose of ensuring that article 34(2)(a)(ii) only be invoked when the
74
Xerox Corp. Ltd v. MPI Techs. Inc. [2008] CanLII 41006.
75
Austrian Supreme Court, 25 June 1992, (1997) XXII YB Com. Arb. 619.
76
See the commentary to art. 2(e).
77
See e.g. 2017 ICC Rules, art. 22(4). For an analysis of the interaction between the Model
Law and the arbitration rules chosen by the parties, see CLOUT Case 1176, Cargill Intl SA
v. Peabody Australia Mining Ltd [2010] NSWSC 887.
78
See, for instance, in Hong Kong, CLOUT Case 1252, Brunswick Bowling & Billiards Corp.
v. ShangHai ZhongLu Industrial Co. Ltd and Another [2011] 1 HKLRD 707 and Grand
Pacific Holdings Ltd v. Pacific China Holdings Ltd (in liq.) (No. 1) [2012] 4 HKLRD 1; in
Singapore, CLOUT Case 1660, AMZ v. AXX [2015] SGHC 283 and Soh Beng Tee & Co. v.
Fairmount Dev. Pte [2007] 3 SLR(R) 86; in New Zealand, CLOUT Case 658, Trustees of
Rotoaira Forest Trust v. Attorney-Gen. [1999] 2 NZLR 452 (Comm.); in Canada, CLOUT
Case 1652, Jacob Securities Inc. v. Typhoon Capital BV [2016] ONSC 604.
79
A bold application of this principle can be found in CLOUT Case 1651, Popack v. Lipszyc
[2016] ONCA 135, where the court at the seat refused to set aside the award despite the
fact that an ex parte meeting had occurred.

8 . p a r a g r a p h ( 2 ) ( a ) ( i i i ) : e x c e s s of ma n d a t e 879
way in which the proceedings were conducted gave rise to noticeable

injustice,80 conversely excluding the situations where the procedural
choices made by the tribunal have no correlation with the way in which
the case was eventually decided.81
8. Paragraph (2)(a)(iii): Excess of Mandate

Article 34(2)(a)(iii) addresses hypotheses that can be classified under the
broad label of ‘excess of mandate’, i.e. cases where the award deals with
matters that were not encompassed within the terms of the agreement to
arbitrate or the parties’ submissions. This type of problem is sometimes
referred to with the Latin expression ultra petita (literally: beyond what
has been requested), signifying the fact that the tribunal exceeded the
limits of the parties’ consent. By specifying that the award can be set aside
on these grounds, the Model Law reinforces the centrality of consent in
arbitration.
The provision at hand is not applicable to the opposite scenario, where
the award contains rulings on less than what had been requested by the
parties (so-called infra petita). During the drafting of the Model Law, the
Working Group considered adding a separate ground for refusal dealing
with the case of the arbitral tribunal that ‘omitted to make an award in
respect of one or more points of the dispute’.82 However, it was finally
decided not to include any ground for annulment that was not already
indicated as a ground for refusal of recognition and enforcement under
the New York Convention, so as to ensure maximum consistency
between the two instruments.83 The choice not to include infra petita
in the grounds for annulment is certainly understandable, as there is no
80
Such injustice would, for example, exist if the tribunal decided the case on the basis of a
doctrine that was not mentioned during the proceedings and on which the parties were
not given the opportunity to express their position: CLOUT Case 1049, Louis Dreyfus SAS
v. Holding Tusculum BV [2008] QJ No. 12906.
81
Furthermore, courts in Model Law jurisdictions consistently hold that possible errors on
point of fact or law are not enough ground to obtain the setting aside of an award under
art. 34(2)(a)(ii): see e.g. CLOUT Case 1014, Bayview Irrigation District #11 v. United
Mexican States [2008] OJ 1858.
82
Articles 37 to 41 on Recognition and Enforcement of Award and Recourse against
Award, UN Doc. A/CN.9/WG.II/WP.42 (25 January 1983), n. 27, with reference to the
1966 Strasbourg Uniform Law on Arbitration. In some non-Model Law jurisdictions, the
arbitration statute enables the competent court at the seat to set the award aside in case of
infra petita: see e.g. Italian code of civil procedure, art. 82(1)(12).
83
UN Doc. A/CN.9/233 (n. 7), para. 187.

strong rationale supporting the setting aside of an award for the mere fact
that the tribunal failed to address all of the issues that were submitted to
it. While the tribunal’s failure to address the entirety of the dispute is
certainly not desirable, the problem at hand cannot be effectively reme-
died by setting aside an award that omits answering some of the parties’
questions. To the contrary, if an infra petita award is allowed to maintain
its legal force, the parties can benefit from a final and binding resolution
of at least a part of their dispute, even if they may not have received an
answer to all of the questions they posed. As for the questions that have
not been addressed by the tribunal, they are, of course, not covered by the
res judicata effect of the award; the parties, hence, remain free to com-
mence separate arbitral proceedings to resolve the rest of their dispute.
8.1 Cases of Excess of Mandate

For the purposes of article 34(2)(a)(iii), the notion of excess of mandate is
potentially applicable to two similar but not identical situations.84 First,
the award may deal with a dispute that does not fall within the scope of
the arbitration agreement: in this case, the basic prerequisite for the
jurisdiction of the tribunal (the parties’ mutual consent to arbitrate) is
missing. Second, it is possible that a certain dispute is in principle covered
by a valid agreement to arbitrate, but none of the parties submitted it to
the tribunal. In this case, the parties have consented to arbitrate, but none
of them has ‘activated’ the agreement by putting forth a specific claim. In
other words, for the arbitrators not to exceed the limits of their mandate,
two requirements must be fulfilled: (1) the dispute must be covered by a
valid agreement to arbitrate; and (2) at least one of the parties must have
formulated a claim, asking the tribunal to resolve that specific dispute.85
84
There are other situations where the tribunal may be argued to have in a broad sense
exceeded its mandate, which are not relevant for the purposes of the provision at hand.
For instance, the fact that the arbitrators applied a body of law other than the one selected
by the parties is not enough ground to set the award aside pursuant to art. 34(2)(a)(iii), as
an error in the identification of the applicable law has no influence on whether the
tribunal ruled on matters which were not covered by the arbitration agreement. The
problem at hand may, instead, be relevant from the point of view of the parties’ right to be
heard (art. 34(2)(a)(ii)) or procedural public policy (art. 34(2)(b)(ii)). For an analysis of
issues, see Landgericht Hamburg, (2000) XXV YB Com. Arb. 641.
85
Parties have occasionally attempted to invoke this provision to attack the interpretation of
the main contract given by the arbitral tribunal, arguing that it constitutes an excess of
mandate: CLOUT Case 1268, Nearctic Nickel Mines Inc. v. Canadian Royalties Inc. [2010]
QCCS 4600; CLOUT Case 1262, Endoceutics Inc. v. Philippon [2013] QCCS 1742.
However, courts in Model Law jurisdictions generally dismiss setting aside applications

8. paragraph ( 2)(a)(iii): excess of mandate 881
The wording of article 34(2)(a)(iii) is somewhat obscure, as it men-

tions the parties’ ‘submission to arbitration’, without any further spe-
cification. Taken at face value, the term ‘submission’ may be understood
as referring exclusively to a ‘submission agreement’, i.e. the infrequent
situation where the parties enter into an agreement to arbitrate after the
dispute has already materialised,86 conversely excluding the more fre-
quent case of a pre-dispute arbitration clause. On closer scrutiny,
however, this restrictive interpretation is not tenable: the term ‘submis-
sion’ is used in the provision at hand for the sole purpose of ensuring
perfect consistency with the English version of article V(1)(c) of the
New York Convention, and the meaning of article 34 should therefore
be ascertained in light of article V of the Convention. The French and
Spanish texts of the Convention87 mention both submission agree-
ments (compromis in the French version, compromiso in the Spanish
version) and arbitration clauses (clause compromissoire in the French
version, cláusula compromisoria in the Spanish version), without mak-
ing any differentiation between the two. It is clear, therefore, that both
the New York Convention and the Model Law treat all cases of ultra
petita alike, irrespective of whether the parties agreed to arbitrate before
or after the dispute arose. Awards exceeding the boundaries of the
arbitration agreement, hence, can be set aside irrespective of whether
the agreement had the form of a pre-dispute clause or a post-dispute
submission agreement.88
that would implicitly entail a review of the award on the merits. In a similar vein, see also
CLOUT Case 587, Compania Maritima Villa Nova SA v. Northern Sales Co. [1992] 1
FC 550.
86
Redfern and Hunter (n. 39), p. 108.
87
Pursuant to art. XVI(1) of the New York Convention, the Chinese, English, French,
Russian and Spanish texts are ‘equally authentic’.
88
The same holds true for awards containing decisions on matters that are covered by the
agreement, but have not been referred to the tribunal by any of the parties: a basic
corollary of the general principle of party autonomy is that the arbitrators can only rule
on a certain issue if at least one of the parties requested them to do so, thus ‘activating’ a
valid arbitration agreement. Nevertheless, national courts often give a liberal interpreta-
tion of this requirement, holding that an excess of power only occurs when the tribunal
rules on matters that were not addressed at all in the parties’ submissions, while no such
excess occurs when the arbitrators simply award a sum of money higher than the one
claimed by a party, without however introducing a new cause of action: see, with reference
to art. V(1)(c) of the New York Convention (but with a reasoning equally applicable to
art. 34(2)(a)(iii) of the Model Law), Quanzhou Sanhong Trading Ltd Liability Co. Ltd v.
ADM Asia-Pacific Trading Pte Ltd, Singapore High Court, (2018) XLIII YB Com. Arb.,
forthcoming; Oberlandesgericht Hamburg, 30 July 1998 in van den Berg, (2000) XXV YB
Com. Arb. 641, 714, 716.

882 article 3 4: application f or setting aside
The first two limbs of article 34(2)(a)(iii) consider respectively the case
of: (1) an award that ‘deals with a dispute not contemplated or not falling
within the terms of the submission to arbitration’; and (2) an award that
‘contains decisions on matters beyond the scope of the submission to
arbitration’. While similar, these two situations are not identical. In the
first scenario, the provision refers to a ‘dispute’; the implicit assumption,
hence, is that the parties have litigated a case before the tribunal, exchan-
ging submissions and defences. For the purposes of article 34, it is crucial
that at least one of the parties objected to the jurisdiction of the tribunal
in its initial statement;89 failing any such objection, an exchange of
statements of claim and defence concerning the merits of the case is to
be construed as an arbitration agreement in writing, pursuant to article 7
(5)90 of the Model Law. In the second scenario, instead, the dispute may
well have fallen within the terms of the parties’ agreement, but the award
rules on ‘matters’ beyond its scope. In other words, the arbitrators made a
mistake not by retaining jurisdiction over the dispute (which was, in
principle, covered by a valid agreement), but by including in the award
issues that did not belong with that dispute and that the parties had not
agreed to arbitrate.91
In some cases, the fact that the award deals with such matters may
come as a surprise to the parties themselves, if the written and oral
defences concerned different topics. If that is the case, article 34(2)(a)
(iii) may be invoked even if none of the parties objected to the jurisdic-
tion of the tribunal during the proceedings, since the parties cannot be
89
Presumably a statement of defence, since objections to the jurisdiction of the tribunal will
in practice be put forth by the respondent.
90
Option 1.
91
The pro-arbitration rationale underlying both the Model Law and the New York
Convention requires that this ground for annulment/refusal, like all other grounds, be
interpreted strictly. Consistently with this overall orientation, the Austrian Supreme
Court held that a tribunal does not rule beyond its jurisdiction if the agreement indicated
a maximum word limit for the award, but the arbitrators rendered a longer award, as long
as the matters that the award deals with fall within the scope of the agreement: Austrian
Supreme Court, 7 June 2017 in van den Berg, (2018) XLIII YB Com. Arb., forthcoming.
On a similar note, expressly stressing the need to interpret art. V(1)(c) of the New York
Convention in an arbitration-friendly fashion, see Open Joint Stock Co. Zarubezhstroy
Technology v. Gibb Africa Ltd, Nairobi High Court, (2017) XLII YB Com. Arb. 421, para.
37: ‘(a) liberal approach should always be given to the construction of arbitration
agreements in relation to disputes covered by such agreements. This is in keeping with
the tradition that courts should encourage arbitration and not fight it.’ In a similar vein,
privileging a broad interpretation of the terms of the clause, see also the Canadian
judgment in CLOUT Case 584, Dunhill Personnel System Inc. v. Dunhill Temps
Edmonton Ltd [1993] 13 Alta LR (2d) 240.

9. p ar ag r ap h 34(2)(a)(iv) 883
expected to raise an objection if the subject matter of the dispute is

covered by a valid arbitration agreement, and the excess of mandate is
the result of the tribunal’s unforeseeable decision to address additional
‘matters’ in the award.
8.2 Severability
The final part of article 34(2)(a)(iii) specifies 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’. The rationale
underlying this section of the provision is the favor arbitrati inspiring the
Model Law: even when an arbitral award is flawed, the tribunal’s ruling
should not be set aside to an extent greater than strictly necessary.92 The
court competent to hear setting-aside applications, hence, should only
intervene inasmuch as the arbitrators have exceeded their mandate,
conversely preserving those parts of the award for which no such excess
has occurred.
In practice, an award may be set aside only in part, when the tribunal
adjudicated different claims, but only some of them were encompassed
within the scope of the arbitration agreement. Let us take the example of a
claimant commencing arbitration in relation to a dispute which is cov-
ered by a valid arbitration clause. The defendant may put forth a counter-
claim that is unrelated to the main claim and not covered by the parties’
agreement; if that is the case, the tribunal should retain jurisdiction over
the main claim, but not over the counterclaim. If the arbitrators mis-
takenly rule on the merits of both the main claim and the counterclaim,
only the part of the award that deals with the latter can be set aside.
Importantly, separating between the two parts of the award is not a mere
possibility, but a legal obligation on the part of the courts at the seat, as
evinced by the use of the word ‘only’. In practice, however, it may some-
times be difficult to draw an exact boundary between different parts of
the same award.
9. Paragraph 34(2)(a)(iv)
In accordance with the principle of party autonomy, control over the
fundamental aspects of the arbitration must ultimately rest with the
92
CLOUT Case 687, JJ Agro Industries (P) Ltd v. Texuna Intl Ltd [1992] 2 HKLR 402.

disputants. Article 34 acknowledges this basic notion by allowing the

competent court at the seat to set an award aside, if the parties’ agreement
was not respected in one of two crucial respects: the composition of the
tribunal and the arbitral procedure. The provision at hand makes only
one exception to this general rule, to account for cases where the parties’
agreement was in conflict with a provision of the Model Law from which
the parties could not derogate. Finally, article 34(2)(a)(iv) considers the
hypothesis where the parties did not reach an agreement concerning the
composition of the tribunal or the arbitral procedure, and hence the fall-
back provisions of the Model Law are applicable. The following sections
will examine these different aspects in detail.
9.1 Composition of the Tribunal Not in Accordance

with the Agreement of the Parties
The parties have the possibility to agree on the mode of constitution of
the tribunal, either expressly or implicitly (by referring to a set of
arbitration rules regulating the composition of the tribunal). To be
sure, the parties are under no obligation to do so: if they simply agree
to arbitrate, without specifying how the tribunal should be composed, the
agreement is valid and the lex arbitri will govern the formation of
the tribunal. If, however, the parties’ agreement contains provisions on
the composition of the tribunal, such an agreement must be respected; in
case of violation, the award may be set aside, pursuant to article 34(2)(a)
(iv) of the Model Law.
Hypotheses of macroscopic violation of the parties’ agreement con-
cerning the composition of the tribunal are relatively infrequent,
although not entirely theoretical. If, for instance, the parties agreed
that the sole arbitrator must be appointed by a certain institution, it is
unlikely for any of the disputants to request a different institution or
individual to make the appointment. Along similar lines, if it was agreed
that a three-member tribunal would be constituted, it is unlikely for a
different number of members to be appointed, unlike the parties unan-
imously deciding to modify their initial agreement. Arbitrators are
cognisant of the crucial importance of the parties’ consent and will,
therefore, normally refuse to sit on a certain case, where it is clear that
the agreement concerning the composition of the tribunal has not been
respected.
Conversely, more interesting and complex problems arise in cases
where the parties’ agreement was formally respected, but its spirit was

9. p ar ag r ap h 34(2)(a)(iv) 885
allegedly departed from. In Yukos,93 for instance, the Russian Federation

requested The Hague District Court to set a group of awards aside,
arguing, inter alia, that the composition of the tribunal was not in
accordance with the parties’ agreement because the tribunal’s secretary
had ‘played a significant substantive role in assessing the evidence, in the
deliberations of the Tribunal and in preparing the Final Awards’. The
case raises the interesting question of whether the agreement concerning
the composition of the tribunal may be deemed to be violated, when a
person external to the tribunal takes part in the deliberations and sub-
stantively contributes to the decision-making, thus potentially becoming
an additional, ‘shadow’ arbitrator. However, the court at the seat of
arbitration quashed the Yukos awards on different grounds, thus leaving
the question unanswered.94
Similar doubts arise in case of violation of the agreement that the
arbitrators issue a unanimous award. A Spanish court, for instance, set
an award aside because the ruling had been rendered by a majority rather
than by the whole tribunal.95 It is doubtful whether, in this type of
situation, the agreement concerning the composition of the tribunal
can be deemed to have been violated. On the one hand, there is little
doubt that the decision-making process did not entirely comply with
what the disputants had agreed; on the other hand, however, the parties’
agreement concerning the mode of deliberation is best understood as an
agreement on procedure, rather than on the composition of the tribunal.
For this reason, attempts at having the award set aside should be based on
the second limb of article 34(2)(a)(iv).96
9.2 Arbitral Procedure Not in Accordance with the Agreement

of the Parties
The parties are free to shape the arbitral procedure in accordance with
their needs and preferences. In practice, it is relatively unlikely, even for
sophisticated commercial actors, to conclude an agreement which delves
93
PCA Case No. AA 227, Yukos Universal Ltd (Isle of Man) v. Russian Federation.
94
Russian Federation v. Veteran Petroleum Ltd, Yukos Universal Ltd and Hulley Enterprises
Ltd, Hague District Court, C/09/477160 HA ZA 15-1, C/09/477162 HA ZA 15-2 and C/
09/481619 HA ZA 15-112, 20 April 2016.
95
Audiencia Provincial of Murcia, 8 October 2009, SAP MU 1645/2009.
96
The fact that the parties can agree to require a unanimous award is implicitly confirmed
by art. 29 of the Model Law, according to which majority awards are possible ‘unless
otherwise agreed by the parties’: see the commentary to art. 19.

into the details of the procedure to be followed in the arbitration. More

realistically, agreements on procedure are usually reached with the
incorporation (by reference) of a set of arbitration rules in the clause.97
In order to assess the relevance of this part of article 34(2)(a)(iv) in a
specific case, then, it is first of all necessary to look at the contents of the
set of arbitration rules that the parties have selected.
Most arbitration rules afford the tribunal a wide margin of discretion
in determining the procedure to be followed in the arbitration. For
instance, according to the ICC Rules, all procedural matters that are
not regulated by the Rules should be handled in accordance with the
parties’ agreement or, failing any relevant indication therein, with ‘any
rules which … the arbitral tribunal may settle on’.98 In practice, therefore,
situations where the procedural conduct of the arbitration is directly at
odds with the agreement of the parties are relatively uncommon. To be
sure, the exertion of the tribunal’s powers to decide how the arbitration
should be conducted must never result in violations of due process and of
the disputants’ right to present their case; this type of problem, however,
would primarily be relevant not in the context of article 34(2)(a)(iv), but
rather for the purposes of article 34(2)(a)(ii) and (2)(b)(ii).99
Some courts in Model Law jurisdictions interpret article 34(2)(a)(iv)
strictly and will only set an award aside if the applicant can demonstrate
not only that the procedure was not in accordance with the agreement,
but that such procedural irregularity affected the outcome of the arbitra-
tion. In a German case, for instance, the party resisting the recognition of
an arbitral award argued that the procedure was not in accordance with
the agreement of the parties because the clause specified that the pre-
ferred language of arbitration was English, but the proceedings were
conducted in Moldovan. The court recognised the award, holding that
‘the defendant did not prove that the use of another language negatively
affected the award’.100 Transposing the same approach to article 34 of the
Model Law, national courts may request the challenging party to prove
that, were a different procedure followed, the outcome of the arbitration
may have been different and more favourable to that party.
97
Pursuant to art. 2(e) of the Model Law, where a provision of the Law refers to an
agreement of the parties, such agreement includes any arbitration rules that the parties
have referred to: see the commentary to art. 2.
98
See, in particular, 2017 ICC Rules, art. 19. Other sets of arbitration rules contain
analogous provisions: see e.g. 2014 LCIA Rules, art. 14.
99
See ss 7 and 11.
100
Oberlandesgericht Cologne, 26 February 2014, (2016) XLI YB Com. Arb. 484–485.

9. para gra ph 3 4(2)(a)(iv) 887
An interesting question arises in cases where the contents of the

arbitration rules in force at the moment when the arbitration is com-
menced are different from the ones that existed when the parties con-
cluded the agreement.101 The problem arose in an Energy Charter Treaty
case, where an SCC emergency arbitrator issued an award against
Ukraine. Ukraine tried to resist the recognition and enforcement of the
award in its home courts, arguing that the procedure was not in accor-
dance with the parties’ agreement,102 as the SCC rules did not provide for
an emergency arbitrator procedure at the time when Ukraine consented
to arbitration. In principle, given the crucial role of consent in arbitra-
tion, this line of reasoning is not without merits, especially in cases where
the selected set of rules have undergone modifications that are substantial
and not merely cosmetic. The requested court, however, adopted a
formalistic approach, granting enforcement of the emergency award on
the grounds that ‘the Award was made in accordance with the Rules that
were valid at the time of the application for the appointment of the
Emergency Arbitrator’.103 A similar conclusion was reached by the
Singapore High Court in a case where the 2010 SIAC Expedited
Procedure Rules were applied in an arbitration, despite the fact that the
parties had entered into the agreement to arbitrate at a time when those
Rules did not exist yet. The unsuccessful party in the arbitration argued
that the application of the Expedited Procedure Rules entailed significant
consequences in terms of the composition of the tribunal and the con-
duct of the proceedings, and applied to have the award set aside on those
grounds. The High Court, however, refused to annul the award, arguing
that the rules in force at the time of commencement of the proceedings
‘overruled the agreement of the parties’.104 According to this approach, it
101
This, of course, presupposes that the parties did not conclude any agreement to apply the
version of the rules that was in force at the time when they entered into the agreement to
arbitrate: see CLOUT Case 1449, International Commercial Arbitration Court, Chamber
of Commerce and Industry of the Russian Federation (28 July 2008).
102
Given the treaty-based nature of the arbitration, the agreement was constituted in this
case by Ukraine’s standing offer to arbitrate, contained in art. 26 of the Energy Charter
Treaty, coupled with the claimant’s acceptance of such offer implicit in the filing of the
request for arbitration.
103
JKX Oil & Gas Plc and Others v. State of Ukraine, Pechersk District Court, Kyiv City,
(2015) XL YB Com. Arb. 492, para. 32. On a similar note, with reference to the
application of different versions of the UNCITRAL Arbitration Rules, see
Oberlandesgericht Frankfurt, 16 January 2014, (2016) XLI YB Com. Arb. 581, 480.
104
CLOUT Case 1535, AQZ v. ARA [2015] SGHC 49. In a similar vein, see also CLOUT
Case 519, Wuzhou Port Foreign Trade Development Corp. v. New Chemic Ltd [2001] 3
HKC 395.

888 a rt i cl e 34 : ap p l i ca ti o n f o r s e t ti ng as i d e
would seem reasonable to conclude that even when important modifica-

tions were made to the rules after the conclusion of the arbitration
agreement and the tribunal applied the rules in force at the time when
the arbitration was commenced, this is not enough ground to set the
award aside. It remains to be seen, however, whether other national
authorities would follow the same approach, especially in circumstances
where the procedure was significantly different from the one that the
parties may have foreseen when they agreed to arbitrate.
It should be noted that, even if the procedural development of the
arbitration did not follow what the parties had agreed to, the possibility to
invoke article 34(2)(a)(iv) may be precluded by an implicit agreement
reached during the course of the arbitration. More specifically, if none of
the parties objected to certain procedural choices made by the tribunal,
they should generally be estopped from doing so at the setting-aside
stage.105 In practice, hence, the only procedural departures from the
parties’ agreement that may be used as grounds to set the award aside
are those that were already objected to during the course of the
arbitration.106
9.3 Conflict between the Agreement of the Parties and Mandatory

Provisions of the Model Law
Article 34 of the Model Law expressly contemplates an exception to the
rule whereby an award may be set aside if the composition of the tribunal
or the arbitral procedure was not in accordance with the agreement of the
105
The Singapore High Court dealt with a case where the tribunal decided the case on the
basis of evidence obtained in a parallel arbitration. The court concluded that these
circumstances did not amount to a procedural irregularity, as the parties had agreed
that the two disputes would be heard by the same tribunal and at the same time:
Galsworthy Ltd v. Glory Wealth Shipping Pte Ltd, High Court, (2011) XXXVI YB Com.
Arb. 329. By refusing to draw a formalistic distinction between the two cases and the
respective files, this decision comports with the reality of international arbitration, where
the practice of holding joint proceedings with the same tribunal constitutes a kind of
informal consolidation in situations where the applicable procedural rules, the lex arbitri
or other features of the applicable regulatory framework prevent the parties and the
tribunal from formally consolidating multiple parallel cases.
106
The same conclusion should normally apply to the case where a party was in default of
appearance and hence did not object to the choice to conduct the proceedings in a
certain way, because it did not participate in those proceedings at all: this was the case,
for instance, in JKX Oil & Gas (n. 103). This conclusion obviously does not apply to the
case where the party defaulted because it was not given proper notice of the proceedings;
in that case, the award may in any case be set aside pursuant to art. 34(2)(a)(ii).

9. p ar agr aph 3 4(2) (a )( iv) 889
parties: this ground cannot be invoked to justify a decision to set an

award aside, if the parties’ agreement ‘was in conflict with a provision of
[the Model Law] from which the parties cannot derogate’. This part of the
provision constitutes a significant point of divergence between article 34
and its primary source of inspiration, article V of the New York
Convention, which does not contain any analogous specification.
During the drafting of the Model Law the Secretariat noted that, if
article V(1)(d) of the New York Convention were to be interpreted in a
rigid way, i.e. granting priority to the parties’ agreement even in case of
conflict with mandatory107 provisions of the law of the seat, this would
result in a ‘dilemma’: the award may not be denied recognition and
enforcement under article V(1)(d), but it may be set aside at the seat of
arbitration, which in turn may trigger a denial of recognition and enfor-
cement abroad pursuant to article V(1)(e).108 This approach, while in
some respects not optimal, could be justifiable in the context of the
international circulation of awards, especially in cases where the courts
of the requested State may consider that the laws of the different State
where the arbitration was seated contain excessive and unreasonable
limitations of the parties’ private autonomy. In other words, there may
be situations where the court before which recognition and enforcement
are sought legitimately chooses to give prevalence to the parties’ agree-
ment, despite its inconsistency with a provision of the lex arbitri that the
lawmakers at the seat of arbitration qualified as mandatory. The same
reasoning, however, is not tenable in the context of setting-aside pro-
ceedings: here, the parties’ agreement is not in conflict with a foreign law,
but with the law of the same State where the annulment proceedings are
pending. In a nutshell, it would not be reasonable for the Model Law to
request national courts to give deference to the agreement of the parties,
when that agreement is in conflict with mandatory provisions of the law
of the State to which those courts belong. This reasoning also explains
why this part of article 34(2)(a)(iv) is not replicated in article 36(1)(a)(iv),
which is instead aligned with the New York Convention.109
Despite the theoretical interest of this part of the provision, its practical
relevance should not be overstated. After all, the Model Law affords a
wide margin of discretion for the parties to shape the composition of the
tribunal and the arbitral procedure in accordance with their needs and
107
In the Model Law, the expression ‘provision of this Law from which the parties cannot
derogate’ is used as a synonym for ‘mandatory’: UN Doc. A/CN.9/246 (n. 16), para. 135.
108
UN Doc. A/CN.9/WG.II/WP.42 (n. 6), art. 37, n. 5.
109
See commentary to art. 36.

890 article 34: appl ication f or setting aside
preferences; for this reason, a conflict such as the one envisaged in this
part of article 34(2)(a)(iv) is relatively unlikely to occur in practice. The
main scenario where such a clash may take place is the one where the
parties agree on a method of composition of the tribunal or a procedure
which does not grant all of them an equal influence or opportunity to be
heard and present their case. In this situation, the agreement may enter
into conflict with article 18 of the Model Law,110 and the arbitrators’
decision not to adhere to the parties’ agreement would not constitute a
ground to set the award aside.111
9.4 Composition of the Tribunal or Arbitral Procedure

Not in Accordance with the Model Law
The possibility to have the award set aside in case of conflict with the lex
arbitri is directly derived from article V(1)(d) of the New York
Convention: failing any relevant agreement of the parties, an award can
be set aside if the composition of the arbitral tribunal or the arbitral
procedure was not in accordance with the Model Law. This part of article
34(2)(a)(iv) is applicable if the parties have not reached any agreement as
to the composition of the tribunal or the procedure; the implicit assump-
tion, hence, is that a determination on these matters has been made by a
person or body other than the parties, such as an arbitral institution, an
appointing authority or the tribunal itself. There are, however, two
reasons why the practical relevance of this limb of the provision should
not be overestimated. First, if a determination is made by an arbitral
institution, the authority to make the decision (concerning, for example,
how many arbitrators should compose the tribunal) usually derives from
the agreement of the parties themselves. In other words, it is often the
disputants themselves who agreed to apply a set of rules which empowers
the institution to make the determination:112 whenever this is the case,
this part of the Model Law is not applicable as the parties’ agreement is
not technically ‘failing’. Second, as already illustrated above,113 the con-
straints placed by the law of the seat on the freedom to determine the
composition of the tribunal or the arbitral procedure are rather minimal.
110
On the mandatory nature of this provision, see the commentary to art. 18.
111
Such a decision would, in fact, probably prevent the award from being set aside pursuant
to art. 34(2)(a)(ii) or 34(2)(b)(ii) of the Model Law.
112
See e.g. art. 5(8) of the 2014 LCIA Rules, allowing the LCIA Court to assess the
appropriateness of appointing a sole arbitrator or a three-member tribunal.
113

10. paragraph 2(b)(i) 891
Therefore, as long as the determinations concerning the composition of

the tribunal and the procedure do not clash with mandatory provisions of
the lex arbitri (which would in any case be relevant under article 34(2)(a)
(ii) and (2)(b)(ii) of the Model Law whenever they concern due process,
equality of arms and the parties’ right to present their case), no ground
for setting the award aside should exist.114
10. Paragraph 2(b)(i): Subject Matter of the Dispute Not Capable

of Settlement by Arbitration under the Law of the Seat
Mirroring article V(2)(a) of the New York Convention, article 34(2)(b)(i)
of the Model Law allows the setting aside of arbitral awards that deal with
non-arbitrable subject matters. The court of the seat of arbitration, there-
fore, is empowered to assess (also on its own motion)115 whether the case
that the arbitrators have decided was capable of settlement by arbitration.
In and of itself, the relevance of arbitrability (or lack thereof) at the
setting-aside stage is unsurprising: the courts of the State where the
arbitration was seated cannot be obliged to consider an award as valid
and binding if the parties did not have the power to submit their dispute
to arbitration in the first place.116 It is equally uncontroversial that, in the
context of setting-aside proceedings, arbitrability must be ascertained on
the basis of the law of the seat: it is entirely logical for the law governing
the proceedings to determine whether arbitration can be used to resolve a
certain case. Conversely, the parties cannot enter into a choice of law
agreement concerning the arbitrability of their case; were the courts at
114
An interesting question arises in the case where the enacting jurisdiction introduced
additional requirements concerning the number of members of the tribunal, which are
not present in the text of the Model Law: for instance, this is the case in Belgium, where
art. 1684 of the judicial code requires that the number of arbitrators be odd (M. Draye,
‘Article 1684’ in N. Bassiri and M. Draye (eds), Arbitration in Belgium (Kluwer, 2016),
p. 115). In principle, the problem should be resolved by appointing an additional
arbitrator (see, in the case of Belgium, para. 2 of art. 1684). If, however, the additional
arbitrator is not appointed, and a tribunal with an even number of members issues an
award, it is not clear whether setting aside is possible for the fact itself that the composi-
tion of the tribunal was in conflict with the lex arbitri. An arbitration-friendly inter-
pretation would at least require proof that this type of error in the composition of the
tribunal had an impact on the parties’ ability to present their case and/or on the outcome
of the dispute.
115
116
If a setting-aside application is not put forth within the time limit of paragraph 3, it is no
longer possible to annul an award dealing with a non-arbitrable subject matter.
Nevertheless, the courts at the seat will still be able to deny recognition and enforcement:
see the commentary to art. 36 and section 12 below.

the seat obliged to recognise the effects of such an agreement, the parties
would effectively be allowed to circumvent the provisions of the lex
arbitri that prohibit the use of arbitration under certain circumstances.
Given the mandatory nature of such provisions, this result would be
manifestly unacceptable.
While the Model Law does recognise the importance of arbitrability as
a limit to party autonomy, it does not introduce a harmonised regime in
this respect; it is therefore up to each enacting State to determine what
categories of disputes cannot be submitted to arbitration. When making
this policy choice, the Working Group first of all considered and dis-
carded the hypothesis to set forth an ‘exhaustive list’ of non-arbitrable
subject matters.117 Were this approach followed, the enacting States
would have been effectively prevented from restricting the scope of
arbitrability beyond a limited number of topics listed by the Model Law
itself. The main reason why the drafters did not introduce an exclusive
and uniform arbitrability regime is that they considered the compilation
of an exhaustive list ‘impracticable’, given the wide variety of policy
considerations that may justify the introduction of limits to arbitrability
in different legal systems.118 As an alternative, the Working Group could
have introduced an ‘open list’, to be integrated and complemented by the
domestic law of each enacting State. This solution, however, was similarly
discarded, as it would not have resulted in a real harmonisation of the law
of arbitrability.119 Ultimately, therefore, the notion of arbitrability to
which article 34(2)(b)(ii) refers is an ‘empty box’, which must be filled
with contents determined by the law of the State where the arbitral
proceedings are seated.
11. Paragraph 2(b)(ii): Award in Conflict with Public Policy

Under the Model Law, an award may be set aside if it is in conflict with
the public policy of the seat of arbitration. Public policy is a notoriously
porous notion and can in principle encompass both substantive and
procedural aspects; in any event, however, it must be interpreted strictly
117
118
Ibid.
119
Ibid., paras 30–31. Despite this lack of harmonisation, however, many legal systems
around the world have recently shown a tendency to converge in expanding the scope of
arbitrability: for an overview, see L. A. Mistelis, S. L. Brekoulakis and J. D. M. Lew (eds),
Arbitrability: International and Comparative Perspectives (Kluwer, 2009).

11. p aragraph 2(b)(ii) 893
and invoked only if exceptional circumstances are present.120 From the

substantive point of view, the concept of public policy should be relied
upon with extreme caution to rule out the risk of révision au fond:121 the
contents of an award should thus only be considered in conflict with
public policy if they are incompatible with some of the most basic and
fundamental principles of the State where the arbitration is seated.122
From the second point of view (‘procedural’ public policy), an award
should only be set aside in case of serious violations of due process and
the parties’ right to be heard.123 In this respect, article 34(2)(b)(ii)
partially overlaps with article 34(2)(a)(ii), which also refers to the inabil-
ity of one of the parties to present its case.124
States may decide to adopt two different understandings of ‘public
policy’: one relevant for awards made in the territory of the State, and a
different one for awards made abroad (mainly applicable in the context of
recognition and enforcement proceedings). The rationale for such a
differentiation could be that the State wishes to exert a tighter control
on ‘domestic’ arbitral awards as opposed to ‘foreign’ awards, which
would conversely enjoy a higher degree of deference. The distinction
between these two faces of public policy is occasionally referred to by
differentiating between ‘internal’ or ‘domestic’ public policy, on the one
hand, and ‘international’ public policy, on the other.125 The Model Law,
however, implicitly prevents the enacting States from drawing such a
difference, as a comparison between articles 34 and 36 of the Law makes
clear. Both provisions126 refer to ‘the public policy of this State’: the fact
itself that the wordings are identical suggests that the same treatment
should be given to domestic and foreign awards.127 Furthermore, article
36 is applicable in the same terms ‘irrespective of the country in which
(the award) was made’;128 domestic awards, hence, may be denied
120
German Bundesgerichtshof, 30 May 2011 (2012) SchiedsVZ 47.
121
CLOUT Case 1155, Mexican Third Civil District Court in the Federal District (22 April
2010).
122
Paloma Co. Ltd v. Capxon Electronic Industrial Co. Ltd [2018] HKCFI 1147.
123
CLOUT Case 965, Valencia Provincial High Court (10 October 2006).
124
125
A. J. van den Berg, ‘Refusals of Enforcement under the New York Convention of 1958:
The Unfortunate Few’ in Arbitration in the Next Decade (ICC Bulletin Special
Supplement, 1999), p. 86. Some jurisdictions require courts to refer in any case to
‘international public policy’, thus highlighting the need for a strict interpretation of
this doctrine: see e.g. French Code of Civil Procedure, art. 1520.
126
Respectively at art. 34(2)(b)(ii) and art. 36(1)(b)(ii).
127
AJU v. AJT [2011] SGCA 41.
128
See art. 36(1) and corresponding commentary.

recognition and enforcement on public policy grounds in the same

circumstances as foreign ones. Given that the same notion of public
policy applies to both categories of awards under article 36, it would be
unreasonable to assume that a different interpretation of ‘public policy’
should be given for the purposes of article 34.129
The wording ‘public policy of this State’ makes it clear that the contours
of the doctrine at hand should be identified by looking at domestic law.
The Model Law, hence, does not impose a harmonised understanding of
public policy; for this reason, an in-depth discussion of the contents of
public policy would fall outside of the scope of this commentary.130 It is
important, however, to stress that the pro-arbitration ethos underlying the
Model Law requires a cautious identification of the limits within which
public policy may be invoked. More specifically, while it is in principle true
that paragraph (2) distinguishes between the grounds for setting aside
under (a) (for which the challenging party must ‘furnish proof’) and
those listed under (b) (for which a finding may be made by the court on
its own motion), this does not mean that courts in Model Law jurisdictions
have the power to conduct extensive ex officio investigations to find
possible profiles of conflict with public policy. The competent court at
the seat may at most ‘find’ a conflict between the award and public policy,
raising the issue on its own motion; it will then be up to the party seeking
the annulment of the award to bring evidence and arguments to support
the application.
The same pro-arbitration rationale excludes, in any case, a de novo
review of the contents of the award and a reassessment of the facts of the
case.131 In other words, even when an award is challenged on grounds of
129
More specifically, it would not be logically possible to adopt a stricter approach in the
context of art. 34, as this would entail the absurd result of an award being set aside at the
seat of arbitration, but at the same time being recognised and enforced in the same
jurisdiction. The only tenable policy option, hence, would be to adopt a more lenient
understanding of ‘public policy’ for the purposes of setting aside. However, since art. 36
prevents any differentiation between domestic and foreign awards, the same compara-
tively strict understanding of public policy would apply to both categories of awards.
This solution would be clearly incompatible with the idea behind the distinction between
‘domestic’ and ‘international’ public policy, according to which the former is usually
stricter than the latter.
130
For a comparative overview with a focus on recognition and enforcement, see A.
Sheppard, ‘Interim ILA Report on Public Policy as a Bar to Enforcement of
International Arbitral Awards’ (2003) 19 Arb. Intl 217.
131
CLOUT Case 1756, TCL Air Conditioner (Zhongshan) Co. Ltd v. Castel Electronics Pty
Ltd [2014] FCAFC 83; CLOUT Case 323, Zimbabwe Electricity Supply Authority v.
Genius Joel Maposa, Zimbabwe Supreme Court 114/99.

1 2. p ara gra ph 3 895
substantive public policy, the courts at the seat should never substitute
the arbitrators’ ruling with their own judicial reasoning. An arbitral
award should in principle never be set aside for the mere reasons that
the court at the seat considers the ruling on the merits wrong or uncon-
vincing. Arbitral awards may hence only be set aside on substantive
public policy grounds in cases where fundamental provisions of the law
of the seat have been clearly ignored or misapplied by the arbitrators.132
12. Paragraph 3: Time Limit for Applications for Setting Aside

The Model Law only allows setting-aside applications within the time
limit of three months: after this period of time has elapsed, an award can
no longer be set aside, but only denied recognition and enforcement at
the seat of arbitration (pursuant to article 36 of the Model Law) or
elsewhere (in accordance with the New York Convention or other applic-
able international or domestic law instruments).133 The imposition of a
relatively short time frame for setting-aside applications is justified by the
need to protect legal certainty: once the award has been rendered, there
cannot be protracted uncertainty as to whether the competent courts at
the seat will set the arbitral ruling aside.134 For this reason, the unsuccess-
ful party in an arbitration is required to take prompt action and initiate
132
AJU v. AJT (n. 127). In the European Union, the case law of the Court of Justice may
occasionally require a more extensive approach to substantive public policy, in cases
where the tribunal has ignored or misapplied provisions of EU competition law: Case C-
126/97, Eco Swiss China Time Ltd v. Benetton Intl NV, ECLI:EU:C:1999:269. Even in that
case, however, the CJEU does not require that such an award be always necessarily set
aside on public policy grounds: the public policy status of EU competition law does not,
for instance, prevent the application of domestic rules of res judicata and issue estoppel,
as expressly acknowledged in the Eco Swiss judgment at paras 43–48.
133
Astro Nusanara Intl BV v. PT Ayunda Prima Mitra [2012] SGHC 636. If, by contrast, an
application to have the award set aside has been put forth and dismissed, the question
arises as to whether the same grounds can be invoked again in the context of art. 36, to
resist recognition and enforcement of the same award. The failure of a previous attempt
to obtain the annulment of the award is likely to be particularly relevant if recognition
and enforcement are sought at the seat of arbitration, since in this case the court
competent to decide on recognition and enforcement may be bound by the previous
judgment refusing to set the award aside, depending on the res judicata, preclusion or
estoppel doctrines applicable in the legal systems where the arbitral proceedings were
seated. By contrast, if recognition and enforcement are sought in a different jurisdiction,
the requested court will usually never be directly bound by the contents of a previous
judgment rendered at the seat and refusing to set the award aside (albeit it may, under
specific circumstances, afford it deference).
134
PT First Media TBK v. Astro Nusantara Intl BV [2013] SGCA 57.

the setting-aside proceedings within three months, if it wants to attempt

to have the award annulled.135
The three months must be calculated from the moment when the
challenging party ‘received the award’; if, therefore, the arbitral ruling
is not immediately communicated to the parties upon its making, the
time limit does not immediately start to run.136 Another consequence of
the provision at hand is that the time limit may not be identical for all
parties involved in the arbitration: if the award has been communicated
to different parties at different moments, the time limit may already
elapse for one of the parties at a moment when another party is still
able to file an application.137
Importantly, the expression ‘received the award’ of article 34(3) should
be interpreted in light of the general obligation of good faith underlying
the Model Law and consistently with the pro-arbitration spirit of the
instrument. For this reason, the provision must not be construed as
allowing the unsuccessful party in the arbitration to ‘escape’ reception
by, for example, refusing to receive communications: as long as the party
has been reached by a communication and put in the condition to access
the award, reception should be deemed to have taken place even if that
party attempts to reject it. The case law in Model Law jurisdictions
concerning the notice of the arbitral proceedings, relevant for the pur-
poses of article 34(2)(a)(ii), is usually relevant in this context as well.138
Finally, paragraph 3 specifies that, if a request has been made under
article 33, the time limit of three months runs from the date on which that
request has been disposed of by the arbitral tribunal. This limb of the
provision accounts for the hypothesis that the arbitral tribunal may
correct the award, issue an interpretation thereof or make an additional
award.139 The provision only refers to a ‘request made under article 33’;
135
CLOUT Case 1537, PT Pukuafu Indah and Others v. Newmont Indonesia Ltd and
Another [2012] SGHC 187.
136
CLOUT Case 451, German Bundesgerichtshof (20 September 2001).
137
A subtler problem is whether the party for whom the time limit has elapsed is able to file a
cross-application, if another party to the arbitration files a timely application to have the
award set aside. The Model Law, however, does not regulate this problem: it is up to the
national procedural law of each enacting State, therefore, to determine to what extent
cross-applications filed after the three-month time period has elapsed should be allowed.
138
139
If, however, the original award is composed of different chapters which deal with
separate aspects of the case, a request for correction of interpretation may potentially
be limited to a specific chapter. If this is the case, national courts may consider that the
time limit starts running at different moments in time, depending on the part of the
award to which the setting-aside application refers. In order to limit this risk, it is

1 3 . pa r a g r a p h 4 897
as such, it does not seem to encompass the hypothesis of a correction

made by the tribunal ex officio, pursuant to paragraph 2 of the same
article. In any case, the possibility of corrections made by the tribunal on
its own motion only exists for thirty days from the date of the award, and
is limited to the rectification of computational, clerical or typographical
errors.140 For this reason, it is in practice unlikely that the existence of a
potential ground for annulment may become apparent to the losing party
only after the correction has been made.
13. Paragraph 4: Suspension of Setting-Aside Proceedings

and Remission of the Award to the Tribunal
The last paragraph of article 34 introduces the possibility for the court at
the seat of arbitration to suspend the setting-aside proceedings and remit
the award to the tribunal, so that the arbitrators can resume the arbitral
proceedings or take other action that will eliminate the grounds for
setting aside. The provision is justified by a strong pro-arbitration ratio-
nale: by giving the arbitrators the possibility to modify the award, the
Model Law aims at minimising the chances that the arbitral ruling will be
set aside. This provision constitutes a limited but important mitigation of
the functus officio principle, whereby the tribunal is usually deemed to
lose its adjudicatory powers as soon as the final award is made.
In order for the award to be remitted to the tribunal, three conditions
must be met: (1) the competent court at the seat of arbitration must have
been seised with a setting-aside application; (2) one of the parties must
request the remission;141 and (3) the court must consider the remission
‘appropriate’. This last requirement affords the court a significant margin
of appreciation; in practice, the court is likely to assess the length,
complexity and overall feasibility of the activities that the arbitrators
would hypothetically need to carry out, in order to remove the alleged
ground for annulment.142 Therefore, remission to the tribunal is not
likely to be considered appropriate whenever the alleged setting-aside
advisable for the challenging party to file an application within three months of the
reception of the award, at least in respect of the chapters that cannot in any event be
supplemented, interpreted or modified by the tribunal in the context of art. 33.
140
141
The prevailing party in the arbitration may have an interest in the remission, if some
grounds for annulment appear to exist, but it is reasonable to expect that they may be
amended by the tribunal if the court at the seat remits the award to the arbitrators.
142
Corporatión Transnacional de Inversiones SA de CV and Others v. STET Intl SpA and Others,
Re. [1999] CanLII 14819 (ONSC), Ontario Supreme Court, 22 September 1999, para. 66.

grounds would require the repetition of a significant portion of the

proceedings. It is for this reason that courts in Model Law jurisdictions
generally refuse to suspend the setting-aside proceedings and remit the
award to the arbitrators, whenever the arbitrators would need to recon-
sider the merits of the case or take further evidence.143
Another element of flexibility introduced by paragraph 4 concerns the
period of time for which the setting-aside proceedings may be suspended:
the court at the seat is left free to determine it without particular
constraints. This suspension period indirectly operates as a time limit
for the arbitral tribunal. In other words, the tribunal has the possibility to
‘resume the arbitral proceedings’ or ‘take … other action’ until the
setting-aside proceedings remain suspended; afterwards, the court at
the seat will rule on the setting-aside application and the tribunal will
definitively be functus officio. While the arbitrators are, of course, not
obliged to take action, the circumstance that the court granted a request
for remission under paragraph 4 constitutes a strong indicator as to the
existence of a flaw that may lead to the setting aside of the award.
By referring expressly to the arbitrators’ ‘opinion’, the final part of the
provision stresses that the tribunal is free to determine which type of
action would be adequate to eliminate the grounds for setting aside. In
practice, however, in the (normally unlikely) event that the court at the
seat decides to remit the award to the tribunal, the contents of the party’s
request for remission and the court’s evaluation of appropriateness
should furnish clear indications as to what problem must be addressed
to avoid the annulment of the award.
143
See e.g. CLOUT Case 12, D. Frampton & Co. Ltd v. Sylvio Thibeault and Naviagation
Harvey & Frères Inc., Federal Court of Canada.

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 duly authenticated original award or a duly certified copy
thereof, and the original arbitration agreement referred to in article 7
or a duly certified copy thereof. If the award or agreement is not made
in an official language of this State, the party shall supply a duly
certified translation thereof into such language.
1. Introduction
Under article 35, courts are under a general obligation to recognise and
enforce arbitral awards. While the language of the article closely mirrors
article IV of the New York Convention, the scope of application is not the
same: while the Model Law applies irrespective of whether the award was
made abroad or in the State where recognition and enforcement are
being sought,1 the New York Convention in principle only covers foreign
awards. Importantly, the Model Law does not differentiate between
domestic and foreign awards in any way, subjecting both categories to
the same regime.
Article 35 proceeds in two paragraphs. The first paragraph enshrines,
in general terms, the obligation to recognise and enforce arbitral awards;
the second paragraph, in turn, sets forth some basic formal requirements
that an application to obtain the recognition and enforcement of an
award must comply with.
1
Hereinafter, for the sake of brevity, these two categories will be referred to respectively as
‘foreign’ and ‘domestic’ awards.
899

900 article 35: recognition a nd enforcement

During the drafting of the Model Law, the wording of article 35 was not
particularly controversial: the provision, after all, is little more than a
literal transposition (with some amendments) of articles III and IV of the
New York Convention. The drafters, however, engaged in an extensive
debate on two fundamental questions concerning not the specific con-
tents of the article, but the very raison d’être of such a provision in the
Model Law. First, the Working Group and the Commission discussed
whether the Model Law should regulate the recognition and enforcement
of both foreign and domestic awards, or whether it would be more
appropriate to regulate only the latter, considering that the former were
already covered by the New York Convention.2 Second, should the
Model Law regulate both situations, the drafters discussed whether the
regime should be the same, or whether differentiations should be made.3
The following subsections offer an overview of the main points that were
addressed during this debate.
2.1 Desirability of Regulating the Recognition and Enforcement

of Foreign Awards
The drafters considered arguments both in favour of and against the
inclusion in the Model Law of a provision regulating the recognition
and enforcement of foreign awards. Those opposing the proposal
noted that the New York Convention envisages the possibility of a
reciprocity reservation, at article I(3).4 In this respect, it was feared
that imposing a general obligation to recognise and enforce, without
the possibility of limiting it to awards made in States that have also
accepted the same obligation,5 would have thwarted the adoption of
the Model Law.6
Against this objection, it was observed that ‘[w]hile foreign awards
are appropriately dealt with in the 1958 New York Convention … the
2
3
Ibid.
4
5
6
See the proposal in Report of the Working Group on the Work of Its Seventh Session, UN
Doc. A/CN.9/246 (6 March 1984), para. 144.

model law would be incomplete if it would not offer an equally liberal

set of rules’.7 The purpose of these rules, it was observed, was not to
override in any way the Convention, but rather to complement it,
establishing ‘a supplementary network of recognition and enforcement
of awards not covered by any multilateral or bilateral treaty’.8
Furthermore, as an additional argument supporting the inclusion of
rules on the recognition and enforcement of foreign awards, the United
States observed that any potential conflict between the Model Law and
the New York Convention could be resolved in an arbitration-friendly
fashion on the basis of the conflict provisions contained in the two
instruments.9 More specifically, it was pointed out that, according to
article 1(1) of the Model Law, the application of the Law is ‘subject to
any agreement in force between [the enacting State] and any other State
or States’. On the other hand, article VII(1) of the New York
Convention contains a ‘more favourable right’ provision, which in
principle allows the Model Law to prevail inasmuch as it sets forth a
more friendly regime for the recognition and enforcement of foreign
awards. Therefore, even in the (remote) hypothesis of a conflict between
the Model Law and the Convention, no prejudice could result for the
party seeking recognition and enforcement of a foreign award. In light
of these arguments, it was decided to include both domestic and foreign
awards in the scope of the Law.
There is an additional argument that may have been considered by the
drafters, but is not expressly mentioned in the preparatory works. Even if
one were to admit that the Model Law does not provide any added value
to the circulation of foreign awards (since the regime overlaps almost
entirely with the one laid down by the New York Convention), it should
be considered that not all States adopt a monist approach towards public
international law. In other words, depending on the theory of the sources
of law adopted by the enacting State, the New York Convention may in
any case need to be transposed into domestic law in order to be applicable
by municipal courts. If that is the case, it is appropriate for a national
arbitration statute to replicate the contents of the Convention, thus
giving it ‘access’ to the domestic legal order.
7
UN Doc. A/CN.9/264 (n. 2), 76, para. 2.
8
Ibid.
9
CN.9/263 (19 March 1985), 52–53.

902 ar ticle 35 : reco gnition and enforc ement
2.2 No Distinction between Domestic and Foreign Awards

Having decided that the Model Law should regulate the recognition and
enforcement of both domestic and foreign awards, the drafters discussed
whether the regime applicable to the two situations should be the same.
Those arguing for two different approaches observed that ‘domestic awards
are often treated by national laws under the same favourable conditions as
local court decisions’;10 subjecting them to a regime modelled after the New
York Convention, hence, would not result in significant gains in terms of
ease of recognition and enforcement. Against this view, however, it was
objected that there would be different added values in abolishing all distinc-
tions between domestic and foreign awards, i.e. the uniform treatment of
awards in all international commercial arbitrations and the reduction of the
relevance of the seat.11 International harmonisation, in sum, would be in
itself an important gain arising out of the adoption of a unified regime.12
The idea of a unified regime was proposed by the Secretariat13 and
initially adopted by the Working Group.14 During the drafting, however,
the Working Group distanced itself from the proposal and decided to
develop two separate systems with different grounds for refusal.15
Eventually, though, the two regimes proved so similar that the
Working Group went back to the initial idea of unifying the treatment
of domestic and foreign awards.16
2.3 Exclusion of Double Exequatur

The drafters discussed whether the award should be registered and depos-
ited before some type of public authority, before being enforced. For foreign
awards, the abolition of the ‘double exequatur’ requirement was a key
10
UN Doc. A/CN.9/264 (n. 2), 76, para. 2.
11
Ibid.
12
Along the same lines, see also the Explanatory Note by the UNCITRAL Secretariat on the
1985 Model Law on International Commercial Arbitration as Amended in 2006, 36, para. 52.
13
Commercial Arbitration, UN Doc. A/CN.9/207 (19–26 June 1981), para. 98.
14
Third Session, UN Doc. A/CN.9/216 (23 March 1982), 25, para. 103.
15
Fourth Session, UN Doc. A/CN.9/232 (4–15 October 1982), 189; Report of the Working
Group on International Contract Practices on the Work of Its Fifth Session, UN Doc. A/
CN.9/233 (22 February–4 March 1983), para. 122.
16
UN Doc. A/CN.9/245 (n. 4), para. 135. See also the comments of India and the United
States in UN Doc. A/CN.9/263 (n. 9), 52–53.

innovation brought about by the New York Convention;17 it was therefore

uncontroversial that the Model Law should not require that the award be
recognised or otherwise ‘registered’ at the seat of arbitration before being
admitted to circulate in the requested State.18 For domestic awards, how-
ever, the desirability of creating a registry of awards was discussed, mainly
for the purpose of ‘ensuring the continued availability of the original award
or an authenticated copy thereof’.19 However, it was quickly decided that no
such system of deposit or registration should be imposed.20
On the basis of this policy decision, a third paragraph was added to
article 35, ruling out the need for registration irrespective of where the
seat of arbitration was located. The paragraph read as follows:
Filing, registration or deposit of an award with a court of the country
where the award was made is not a pre-condition for its recognition or
enforcement in this State.21
The Commission eventually deleted the paragraph, probably because it

deemed it superfluous.22 Nevertheless, it is uncontroversial that registra-
tion and deposit of the award are not preconditions for its recognition
and enforcement.
3. Paragraph 1
3.1 ‘An Arbitral Award’
Recognition and enforcement of a ruling issued by an arbitral tribunal is
in principle possible, inasmuch as that ruling qualifies as ‘an arbitral
award’. By setting forth this apparently straightforward rule, article 35
raises numerous questions concerning the definition of arbitral award
and the legal standard pursuant to which the nature of a decision
rendered by the arbitrators should be evaluated and classified.
3.1.1 Determining the Nature of Arbitral Decisions

The Model Law implicitly excludes the possibility of applying article 35 to
decisions issued by the tribunal that do not qualify as awards, such as for
17
UN Doc. A/CN.9/264 (n. 2), 77.
18
See also section 4 below on the abolition of the double exequatur requirement.
19
UN Doc. A/CN.9/216 (n. 14), para. 102.
20
Ibid., para. 101.
21
Working Group, UN Doc. A/CN.9/246 – Annex (6–17 February 1984), art. 35(3).
22
UN Doc. A/40/17 (n. 5), para. 317.

904 a r t i c l e 35 : r e c o g n i t i o n a n d e n f o r c e m e n t
example procedural orders. While the Model Law does not contain a
definition of ‘arbitral award’,23 the basic criterion distinguishing awards
from other types of arbitral rulings is commonly deemed to concern a
different degree of finality: if the arbitrators decide a matter with an
award, they make definitive use of their decisional power on that issue
and lose the ability to modify their ruling at a later stage.24 Conversely, if
the arbitral decision is not an award but an order, it is subject to amend-
ments during the course of the arbitral proceedings.25 When asked to
determine the nature of an arbitral decision in a specific case, municipal
courts often adopt a ‘substance over form’ approach, occasionally hold-
ing that a certain ruling does not qualify as an award despite the fact that
the tribunal gave it that formal ‘label’.26
Article 35 does not specify the criterion that the court should follow to
determine whether the decision whose recognition is sought is, indeed,
an arbitral award. In this respect, a distinction must necessarily be drawn
between decisions rendered at the seat of arbitration and foreign arbitral
decisions; while both categories are in principle enforceable under article
35, the latter poses some additional problems concerning the applicable
standards. More specifically, there is little doubt that, for domestic
decisions, the formal requirements that an arbitral ruling must comply
with in order to qualify as an award are those set forth in article 31 of the
Model Law.27 By contrast, if the arbitral proceedings were seated abroad,
the question arises as to whether a court may refuse the recognition of a
decision that formally qualifies as an award according to the law of the
seat, but not in the requested State. Some authorities have interpreted
article 35 as implying that the determination of whether a certain deci-
sion is an award should be made on the basis of the law of the requested
State.28 By contrast, other courts have granted recognition to foreign
23
See the commentary to art. 2. The choice not to include a definition of award was justified
through a comparison with the New York Convention, which also does not indicate
whether the tribunal has the power to issue awards on procedural matters, such as its own
jurisdiction (UN Doc. A/40/17 (n. 5), paras 48–49).
24
N. Blackaby, C. Partasides QC, A. Redfern and M. Hunter, Redfern and Hunter on
International Arbitration, 6th edn (Oxford University Press, 2015), pp. 501–502.
25
Ibid., p. 504.
26
Evergreat Construction Co. Pte Ltd v. Presscrete Engineering Pte Ptd [2006] 1 SLR 634.
Recently, the ‘substance over form’ debate has proved relevant to determine the enforce-
ability of interim measures of protection issued by arbitral tribunals: see J. Hill, ‘Is an
Interim Measure of Protection Ordered by an Arbitral Tribunal an Arbitral Award?’
(2018) 9 JIDS 590.
27
Bayerisches Oberstes Ladesgericht, 10 July 2003, 4 Z Sch. 12/03.
28
Oberlandesgericht Düsseldorf, 19 January 2005, I-26 Sch. 5/03.

awards despite the fact that the decisions lacked some article 31 require-
ments, such as the arbitrators’ signatures.29 On the one hand, applying
the formal requirements set forth in the law of the requested State to a
foreign award entails, at least in theory, the risk that recognition and
enforcement may be denied on merely formalistic grounds. On the other
hand, however, the formal requirements set forth in article 31 are so
minimal that, in practice, applying the criteria set forth in the Model Law
is not likely to constitute a significant additional obstacle to the enforce-
ment of most foreign awards.30
3.1.2 Awards on Jurisdiction

Article 35(1) refers to ‘an arbitral award’, without any further specifica-
tions. There is little doubt that the provision applies equally to final
awards dealing with the entirety of the parties’ dispute and to partial
awards concerning only a portion of the merits (e.g. awards on liability,
deferring the decision on quantum to a later stage). A more delicate
question is whether an award can also be recognised under article 35
when it does not touch upon the merits of the dispute, but only concerns
the tribunal’s jurisdiction.31
At first sight, there does not seem to be the need to recognise and
enforce an award which does not affect the parties’ substantive rights in
any way. A party, however, may have an interest to have an award on
jurisdiction recognised not for the purposes of enforcement, but in order
to be able to rely on the arbitral decision in other arbitration or court
proceedings. For instance, the respondent in State court proceedings may
wish to rely on a previous arbitral award stating that the subject matter of
29
Oberlandesgericht München, 22 June 2009, 34 Sch. 26/08.
30
To be sure, this does not mean that none of the requirements set forth in art. 31 may be
relevant in the context of an attempt to resist recognition and enforcement of a foreign
award. However, the lack of one of the basic requirements of art. 31 is likely to be invoked
by the award debtor not as a factor preventing the qualification of the decision as an
‘award’, but rather as an element proving the existence of one of the grounds for refusal
enumerated in art. 36. For instance, the tribunal’s failure to state the reasons upon which
the award is based may be seen as a violation of public policy, relevant according to art. 36
(1)(b)(ii) of the Model Law: see e.g. for an analysis of this type of defence, Fashion Ribbon
Co., Inc. (US) v. Iberband, SL (Spain), Spanish Supreme Court, (2005) XXX YB Com.
Arb. 627.
31
The question concerns the possibility to recognise an arbitral ruling whereby the tribunal
decides on its own jurisdiction; if, by contrast, a jurisdictional award also contains a ruling
on costs, it is relatively uncontroversial that the portion of the award dealing with costs
can be recognised and enforced, as it essentially amounts to a monetary award (see
German Bundesgerichtshof, 18 January 2007, III ZB 35/06).

906 a r t i c l e 35 : r e c o g ni t i o n a n d e nf o r c eme n t
the dispute pending before the State court is covered by a valid agreement
to arbitrate.
It is exactly for this reason that the recognition of awards on jurisdic-
tion is, in practice, problematic. On the one hand, by conferring legal
effects upon an award whereby the tribunal rules on its own jurisdiction,
a State court would bind the parties (and hence, indirectly, itself) to the
arbitrators’ ruling on jurisdiction. On the other hand, however, national
courts should in principle conduct a de novo assessment as to the
existence, validity and scope of the arbitration agreement, in the context
of setting-aside or recognition and enforcement proceedings.32 For this
reason, while arbitral tribunals certainly have the power to issue decisions
concerning their own jurisdiction in application of the general principle
of kompetenz-kompetenz, these decisions are best understood as produ-
cing ‘internal’ rather than ‘external’ effects. In other words, once the
tribunal has ruled on its own jurisdiction in an award, that ruling will
bind the parties and the arbitrators in the further stages of the arbitration,
if any,33 preventing the tribunal from subsequently declining jurisdiction
in the case; this, however, does not preclude State courts from taking a
new look at jurisdiction (e.g. when deciding whether an award should be
set aside or denied recognition) because, in fact, no valid arbitration
agreement exists. From this point of view, recognising an award on
jurisdiction risks compromising a court’s ability to reassess the tribunal’s
jurisdiction ex post, when necessary. For these reasons, national autho-
rities have held that awards on jurisdiction cannot be recognised pur-
suant to article 35, despite the lack of specifications in the provision at
hand.34
In addition, the possibility to recognise an award on jurisdiction is
particularly dubious under the Model Law, given that article 16(3)
describes this type of decision in generic terms as a ‘ruling’ (rather
than as an ‘award’), and subjects it to a judicial review mechanism
other than the standard setting-aside procedure set forth in article
34.35 In light of this, it could be argued that, even if an arbitral
32
G. B. Born, International Commercial Arbitration, 2nd edn (Kluwer, 2014), pp. 3474–
3475.
33
The existence of further procedural stages in the arbitration depends, obviously, on
whether the tribunal retained (at least partially) jurisdiction.
34
Resort Condominiums Intl Inc. v. Ray Bolwell and Another, Supreme Court of
Queensland, (1995) XX YB Com. Arb. 628, with reference to Three Valleys Water
Committee v. Binnie and Partners (1990) 52 BLR 42.
35
The legislative history of art. 2 (and in particular, of the decision to delete the definition of
‘arbitral award’) further demonstrates that the drafters did not intend to confer upon the

tribunal issues a ruling on jurisdiction and formally labels it as an

‘award’, that ruling does not qualify as an award for the purposes of
the Model Law.36
A related but not entirely identical issue arises in cases where an
arbitral tribunal renders a final award dealing with the existence of a
valid arbitration agreement. The problem recently came to the fore in
Gazprom, especially in the context of the CJEU preliminary reference
procedure;37 it is therefore useful to consider the details of that case, in
order to understand under which conditions a final award may have as its
main subject the existence of a valid arbitration clause. In that case, the
parties (Gazprom and the Lithuanian Ministry of Energy) disagreed as to
whether their dispute was covered by a valid arbitration agreement. The
Ministry commenced litigation against Gazprom, before Lithuanian
courts. Gazprom, then, initiated an arbitration, asking the tribunal to
‘order the Ministry of Energy to withdraw the action which it had
brought before the Lithuanian courts’.38 The tribunal issued an award
partially granting Gazprom’s request: the arbitrators held that the
Lithuanian court proceedings breached the agreement to arbitrate and
ordered the Ministry to withdraw some of the claims that had been put
forth before the courts, and reformulate other ones.39 Interestingly, the
arbitration had no subject matter other than the existence of a valid
arbitration agreement covering the main dispute between the parties:
the aforementioned arbitrators’ ruling, hence, was formally qualified as a
‘final award’.40 Gazprom, then, moved to obtain the recognition of the
award in Lithuania; the case, hence, raised the delicate question as to
whether an arbitral award may be recognised when it is impossible to
draw an exact distinction between jurisdiction and merits, since the main
subject matter of the proceedings is itself jurisdictional in nature. In
Gazprom, Lithuanian courts ultimately recognised the award and
declined jurisdiction on the main dispute, as they deemed the case to
tribunal the unconstrained power to qualify any ruling they may issue as an ‘award’: see
the commentary to art. 2.
36
In a similar vein, with reference to the definition of ‘award’ for the purposes of recognition
and enforcement under the New York Convention, see A. Leandro, ‘Towards a New
Interface between Brussels I and Arbitration?’ (2015) 1 JIDS 188, 198; B. Ehle, ‘Article I
[Scope of Application]’ in R. Wolff (ed.), New York Convention on the Recognition and
Enforcement of Foreign Awards – Commentary (Beck, 2012), pp. 26, 48.
37
Case C-536/13, ‘Gazprom’ OAO v. Lietuvos Respublika, ECLI:EU:C:2015:316.
38
Opinion of Advocate General Wathelet, ECLI:EU:C:2014:2414, para. 33.
39
Ibid., para. 37.
40
Ibid.

908 ar ticle 35 : recog n ition a nd enforc ement
be covered by a valid agreement to arbitrate.41 The best view, however, is

that such a court’s decision to decline jurisdiction in favour of an arbitral
tribunal should be based on a de novo assessment of the agreement to
arbitrate: State courts should not consider themselves to be (directly or
indirectly) bound by an arbitral ruling concerning the existence and
validity of the agreement, irrespective of whether that ruling is formally
qualified as a final award.
3.1.3 Awards on Agreed Terms

It is not infrequent for the parties to settle their dispute after the com-
mencement of the arbitration. Accordingly, the tribunal may be asked to
record the parties’ settlement agreement in an award: in this case, the
award (typically referred to as ‘consent award’ or ‘award on agreed
terms’) does not serve the purpose of adjudicating on the dispute,
which has already been settled by the parties themselves, but simply
ensures the enforceability of the agreement. In light of this important
peculiarity, it has been argued that an award on agreed terms is not an
award stricto sensu and cannot hence be recognised and enforced pur-
suant to the New York Convention.42 However, as far as the Model Law is
concerned, awards on agreed terms should undoubtedly be treated like
any other award on the merits, as expressly required by article 30(2).
This, of course, entails that awards on agreed terms can in principle be
recognised according to article 35(1),43 but does not exclude the possi-
bility that a particular consent award be denied recognition if (at least)
one of the grounds for refusal set forth in article 36(1) occurs.44
The situation described above, where the parties reach a settlement
after the commencement of arbitral proceedings, must be distinguished
41
Supreme Court of Lithuania, 23 October 2015, 3K-7-458-701/2015.
42
B. Steele, ‘Enforcing International Commercial Mediation Agreements as Arbitral
Awards under the New York Convention’ (2007) 54 UCLA L. Rev. 1385.
43
CLOUT Case 407, German Bundesgerichtshof, III ZB 55/99 (2 November 2000).
44
By way of example, an award on agreed terms may be denied recognition if the parties’
agreement runs counter to public policy or mandatory norms of the forum. In the
European Union, for instance, agreements restricting competition may be deemed con-
trary to public policy, as pointed out by the CJEU in Case C-126/97, Eco Swiss China Time
Ltd v. Benetton Intl NV, ECLI:EU:C:1999:269. Alternatively, a consent award may be
deemed in contrast with public policy not for its contents, but because it only records a
portion of the parties’ settlement agreement, thus violating the principle of equality
between the parties: see Russian Supreme Court, 7 October 2015, A56-14627/2015.
Similarly to art. 30(2) of the Model Law, many sets of arbitration rules stress that the
tribunal has a discretional power to decide whether or not the parties’ agreement should
be recorded in an award: see e.g. 2017 ICC Rules, art. 33.

3 . p ar agr ap h 1 909
from the different case where the disputants settle their dispute before the
beginning of the arbitration and subsequently constitute an arbitral
tribunal for the sole purpose of recording their agreement in the form
of an award. In this case, significant doubts exist as to whether the
procedure can genuinely be characterised as an arbitration, as the tribu-
nal is not entrusted with the task of adjudicating the case, but is simply
requested to issue an award on the terms that the parties have already
determined from the outset. The practice of appointing arbitrators for
the purpose of enforcing settlement agreements achieved through med-
iation is not uncommon;45 however, the enforceability of the resulting
award under many legal systems (including the Model Law) is far from
undisputed.46 In the future, an international convention specifically
focusing on settlements resulting from mediation may provide a more
adequate vehicle for the enforcement of this type of agreement.47
3.1.4 Awards Confirmed by a Judgment at the Seat

Depending on the contents of national procedural law, the prevailing
party in an arbitration may be able to request that the courts at the seat of
arbitration ‘confirm’ the award by issuing a judgment.48 While such a
mechanism is not envisaged in the Model Law, the fact that it is available
in some non-Model Law jurisdictions generates an interesting question
concerning the recognition of awards pursuant to article 35(1). More
specifically, the question concerns the different mechanisms through
which an award confirmed by a court judgment at the seat may be
45
See, for instance, art. 14 of the 2014 SCC Mediation Rules, according to which ‘[i]n case of
settlement, the parties may, subject to the consent of the Mediator, agree to appoint the
Mediator as an Arbitrator and request him/her to confirm the settlement agreement in an
arbitral award’.
46
Y. Kryvoi and D. Davydenko, ‘Consent Awards in International Arbitration: From
Settlement to Enforcement’ (2015) 40 Brooklyn J. Intl L. 827; E. Sussman, ‘The New
York Convention through a Mediation Prism’ (2009) 15 Dispute Resolution Magazine 10;
E. A. Deason, ‘Procedural Rules for Complimentary Systems of Litigation and Mediation
– Worldwide’ (2005) 80 Notre Dame L. Rev. 553; H. I. Abramson, ‘Mining Mediation
Rules for Representation Opportunities and Obstacles’ (2004) 15 Am. Rev. Intl Arb. 103;
C. Newark and R. Hill, ‘Can a Mediated Settlement Agreement Become an Enforceable
Arbitration Award?’ (2000) 16 Arb. Intl 81; J. T. Peter, ‘Med-Arb in International
Arbitration’ (1997) 8 Am. Rev. Intl Arb. 83.
47
See the international convention that is currently being developed by UNCITRAL:
Settlement of Commercial Disputes – International Commercial Mediation: Preparation
of Instruments on Enforcement of International Commercial Settlement Agreements
Resulting from Mediation – Note by the Secretariat, UN Doc. A/CN.9/WG.II/WP.205
(23 November 2017).
48
See e.g. US Federal Arbitration Act 9 USC, s. 207.

910 a r t i c l e 3 5 : r ec o g n i t i o n an d e n f o r c e m e n t
given effects in another jurisdiction. In theory, two methods are possible:

any interested party may either seek recognition and enforcement of the
award (in accordance with article 35, if the requested State has imple-
mented the Model Law), or request that the judgment confirming the
award be recognised and enforced under the laws applicable to the
circulation of foreign court judgments. Following this approach, some
national systems, including certain jurisdictions that have adopted the
Model Law, allow the interested party to seek recognition and enforce-
ment of either the award or the judgment confirming the award.49 This
approach, however, disregards an important complication: the judgment
confirming the award is ancillary to the arbitral ruling and, in practice, is
more akin to an exequatur than to a ruling on the merits of the case.
Hence, any court enforcing a foreign judgment which confirms the award
ends up factually granting an exequatur to another exequatur, rather than
to the instrument (the award) which resolves the dispute between the
parties. For this reason, other national authorities hold that the interested
party has no choice but to seek recognition and enforcement of the award
pursuant to article 35, while the effects of the judgment confirming the
award are limited to the State where that judgment has been issued.50
3.1.5 Awards Already Recognised by Another Court

An analogous but not entirely overlapping problem concerns the case
where the award has already been recognised in another State. In some
jurisdictions, national authorities tend to grant preclusive effects to a
foreign judgment recognising an arbitral award.51 In other words, once
an award has already been recognised in State A, the courts of State B may
consider the award debtor estopped from resisting recognition there too.
This approach, however, is not consistent with the Model Law, which
does not set forth any specific regime for this situation. The circumstance
49
For a comparative overview, see M. Scherer, ‘Effects of Foreign Judgments Relating to
International Arbitral Awards: Is the “Judgment Route” the Wrong Road?’ (2013) 4 JIDS
587, 600, referring to case law from the United States (see, inter alia, Ocean Warehousing
BV v. Baron Metals and Alloys Inc., 157 F. Supp. 2d 245 (SDNY 2001)), Australia (Brali v.
Hyundai Corp. (Rep. of Korea), Supreme Court of New South Wales, Commercial
Division, (1990) XV YB Com. Arb. 360); India (Harendra H. Mehta, and Others v.
Mukesh H. Mehta, and Others, Supreme Court, 13 May 1999, (2000) XXV YB Com.
Arb. 641) and Israel (Pickholz v. Sohachesky, Israel Supreme Court, CA 10854/07).
50
German Bundesgerichtshof, 2 July 2009, (2009) SchiedsVZ 285; CLOUT Case 30, Robert
E. Schreter v. Gasmac Inc., Ontario Court, General Division (Feldman J.) (13 February
1992), holding that ‘an arbitral award does not merge in a judgment which confirms it’.
51
For an overview of these approaches, see Scherer (n. 49), pp. 591–594.

that the award has been already recognised elsewhere does not, in
principle, affect the fact that the award creditor must file an application
in accordance with article 35 to obtain the recognition and enforcement
of the award.
3.1.6
Uncertainties Concerning the Operative Part
of the Award
State courts have occasionally been faced with the question of whether an
award should be denied recognition and enforcement, when its operative
part lacks specificity to the point that it is difficult to ascertain how the
arbitral decision should be executed in practice. Interestingly, in this
situation, the party resisting recognition and enforcement does not
invoke any of the grounds for refusal set forth in article 36, but rather
puts forth an argument based on the drafting quality of the award. In a
nutshell, according to this approach, the award is ‘too unclear to be
enforceable’. National authorities have resolved this problem by holding
that the award’s lack of specificity does not prevent national courts from
declaring the arbitral decision enforceable under article 35; at worst, the
unclear wording of the award (and especially of its operative part) may
determine the unavailability of specific enforcement measures, but is
never in itself enough ground to declare the award completely
unenforceable.52
3.2 ‘Irrespective of the Country in Which It Was Made’

The specification that an award must be recognised and enforced ‘irre-
spective of the country in which it was made’ expressly confirms the
Model Law’s policy choice of marginalising the relevance of the seat of
arbitration. As already illustrated when considering the drafting history
of article 35, the Model Law subjects both domestic and foreign awards to
the same regime of recognition and enforcement, attaching no conse-
quences to the location where the arbitral decision was made.53 In doing
so, article 35(1) also implicitly excludes any reciprocity reservation:54
52
CLOUT Case 452, Bayerisches Oberstes Landesgerichtm (27 June 1999).
53
Traditionally, such a distinction was made by many arbitration statutes; by adopting the
Model Law, hence, many States have introduced a significant innovation in this respect.
See e.g. C. Verbruggen, ‘Article 1719’ in N. Bassiri and M. Draye (eds), Arbitration in
Belgium (Kluwer, 2016), pp. 497, 498.
54
In this respect, the Model Law differs from the New York Convention, which allows
reciprocity reservations at art. I(3).

912 a r t i c l e 35 : r e c o g n i t i o n an d e n f o r c e m e n t
awards should be enforced irrespective of whether the State where the

arbitration was seated has implemented the Model Law and, more gen-
erally, irrespective of what the applicable lex arbitri is.
Despite the friendly approach adopted in article 35, the courts of the
requested State can in certain circumstances invoke the contents of the
lex arbitri to deny recognition and enforcement of the award. Such a
decision, however, requires a case-by-case assessment of the way in
which the lex arbitri was applied in a specific arbitration, rather than an
evaluation of the quality of the law of the seat in general terms. In other
words, article 35(1) prevents the courts in Model Law jurisdictions from
refusing to recognise and enforce a foreign award on the mere basis of its
nationality; if, however, the application of the lex arbitri in a particular
arbitration has generated one of the problematic situations enumerated
in article 36,55 the Model Law does not preclude a refusal of recognition
and enforcement.
Notably, some jurisdictions adopting the Model Law have partially
deviated from the approach of article 35, adopting two different regimes
for recognition and enforcement depending on whether the award is
domestic or foreign.56 In practice, however, the consequences of this
legislative choice tend to be limited, as the defences against recognition
and enforcement are often largely similar in both situations.57
3.3 ‘Shall’: Obligation to Recognise and Enforce

The use of the word ‘shall’ in article 35 mirrors the language of the New
York Convention, stressing the circumstance that the courts of the
requested State are under a general obligation both to recognise and to
enforce arbitral awards.58 By contrast, refusal of recognition and enfor-
cement is never a duty, as evinced by the use of the word ‘may’ in article
36(1).59 In other words, when requested to recognise and enforce an
55
By way of example, the arbitration statute of the seat may have been applied in a way
which violated due process or curtailed the parties’ right to be heard.
56
See e.g. German ZPO, ss 1060 and 1061.
57
S. M. Kröll, ‘Recognition and Enforcement of Awards, Introduction to §§ 1060, 1061
ZPO’ in K.-H. Böckstiegel, S. M. Kröll and P. Nacimiento (eds), Arbitration in Germany:
The Model Law in Practice, 2nd edn (Kluwer, 2015), pp. 421, 424–425.
58
CLOUT Case 366, Europcar Italia SpA v. Alba Tours Intl Inc., Ontario Court of Justice,
General Division (21 January 1997).
59
For an analysis of this linguistic difference with reference to the New York Convention,
see J. Paulsson, ‘May or Must under the New York Convention: An Exercise in Syntax and
Linguistics’ (1998) 14 Arb. Intl 227.

3 . p ar agr ap h 1 913
award, a court can only violate the Model Law by issuing a refusal when
none of the grounds set forth in article 36 is present; conversely, if the
award is recognised and enforced despite the fact that a refusal would
have been possible under article 36, no violation of the Model Law
occurs, as the court is simply exerting the discretion60 conferred by the
word ‘may’.61
3.4 ‘Recognised as Binding’

While arbitration literature occasionally refers to ‘recognition and enfor-
cement’ as a single procedure ensuring the international circulation of
the award, the two steps are not entirely overlapping and the former can
take place without the latter. In brief, ‘recognition’ is the conferral of legal
effects to the award in a given jurisdiction, while enforcement is the
practical and (to the extent needed) coercive execution of the arbitral
ruling. Enforcement, thus, always presupposes recognition, but recogni-
tion can be granted without any subsequent enforcement taking place.62
60
Courts granting recognition to awards despite the occurrence of one of the grounds
enumerated in art. 36 occasionally refer to this discretion conferred upon them by the
Model Law and the New York Convention: see Europcar Italia (n. 58), observing how the
requested court should use the discretion to balance the parties’ interests.
61
In practice, while all of the grounds of art. 36 can in principle be relied upon to deny
recognition and enforcement, not all of them can be disregarded as easily when occurring.
National courts, for instance, should refrain from granting legal effects to an award if
there is serious evidence that one of the parties was unable to present its case. By contrast,
recognition has been often granted to (or at least abstractly deemed possible in favour of)
awards that have been set aside at the seat of arbitration, despite the possibility of a refusal
under art. 36(1)(a)(v), especially when the reasons for the setting-aside decision do not
reflect the policies enshrined in the New Yok Convention. See e.g. case law in France (PT
Putrabali Adyamulia (Indonesia) v. Rena Holding and Others, Cour de Cassation, (2007)
XXXII YB Com. Arb. 299; Hilmarton v. Omnium de Traitement et de Valorisation (OTV),
Cour de Cassation, (1995) XX YB Com. Arb. 628, 663–665, the United States
(Corporación Mexicana de Mantenimiento Integral, S. de RL de CV v. Pemex-
Exploracion y Produccion, 962 F. Supp. 2d 642 (SDNY 2013), aff’d, 832 F.3d 92 (2nd
Cir. 2016); Baker Marine (Nig.) Ltd v. Chevron (Nig.) Ltd, Chevron Corp., Inc. and Others
v. Danos and Curole Marine Contractors, Inc., US Court of Appeals, (1999) XXIV YB
Com. Arb. 909; Chromalloy Aeroservices Inc. v. Arab Republic of Egypt, 939 F. Supp. 907
(DDC 1996)) and the Netherlands (Yukos Capital SARL (Luxembourg) v. OAO Rosneft
(Russian Federation), Gerechtshof Amsterdam, (2009) XXXIV YB Com. Arb. 703).
62
Recognition without subsequent enforcement may occur for a number of reasons. In
some cases, the prevailing party in the arbitration may seek recognition not to secure the
coercive enforcement of the award, but in order to be able to rely on its effects (typically,
res judicata) in separate but related proceedings taking place in the requested State.
Obviously, when the award is declaratory in nature, recognition is in itself typically
sufficient to ensure that the arbitral ruling produce its effects, as there is no need for

The Model Law conforms to this distinction by requiring that arbitral

awards be ‘recognized as binding and, upon application in writing to the
competent court … enforced subject to the provisions of (article 35) and
of article 36’.
Article 35 clarifies that the main effect of recognition is to render
the award ‘binding’ from the point of view of the requested State.63 The
drafters of the Model Law discussed two main questions concerning the
‘bindingness’ that the award acquires as a result of recognition. The first
issue concerned the subjective scope of this effect: between whom does
the award become binding, once recognised? The second problem
regarded the chronological effects of the award: from which moment in
time should an award be deemed binding pursuant to article 35? The
following two subsections describe the debate conducted by the drafters
on these two points, and the solutions eventually adopted in the
Model Law.
3.4.1 Subjective Scope

Even when recognised as binding, an arbitral award does not normally64
produce erga omnes effects. Cognisant of this, the Secretariat had pro-
posed to expressly specify that, once recognised, the award becomes
binding between the parties to the arbitral proceedings, but not vis-à-
vis third parties;65 however, this proposal was not eventually retained.
The choice not to regulate the problem at hand in the Model Law is
certainly understandable, for two complementary reasons. First of all, the
issue at hand is a particular instantiation of a more general problem
concerning the definition of the exact boundaries of res judicata; for this
coercive implementation of the operative part. In other cases, it is possible that the award
creditor seek both recognition and enforcement, but the court deems that only the former
is possible: see Dallal v. Bank Mellat [1986] QB 441.
63
The notion of ‘bindingness’ relevant for the purposes of art. 35 should not be interpreted
in absolute terms, as it only refers to the legal system of the requested State. That is, the
award may already be binding in another jurisdiction, but this circumstance does not
exclude the need to seek recognition in the requested State in order to ensure that the
award has legal effects there too. For the same reason, if the courts of the requested State
refuse recognition, the bindingness of the award is excluded not in general, but only from
the viewpoint of the requested State, and any interested party remains free to seek
recognition in a different jurisdiction.
64
In certain jurisdictions, there may be some limited exceptions to this rule: see e.g. in the
field of intellectual property, Belgian Patents Act, art. 41(1).
65
Composite Draft Text of a Model Law on International Commercial Arbitration: Some
Comments and Suggestions for Consideration: Note by the Secretariat, UN Doc. A/CN.9/
WG.II/WP.50 (6–17 February 1984), para. 27.

3 . p ar agr ap h 1 915
reason, even if the Model Law does not contain any specific provision in
this respect, questions concerning the subjective scope of the award’s
effects do not remain unanswered. To the contrary, if courts or tribu-
nals66 are asked to determine whether the award binds a certain party,
they can generally refer to the doctrine of res judicata as enshrined in the
law of the requested State. Second, and relatedly, there is no consensus
among different legal systems as to what the exact contours of res judicata
are; in fact, comparative legal analyses demonstrate that national
approaches in this respect can diverge significantly.67 Given this frag-
mentation, it is an appropriate policy choice for the Model Law not to
impose a harmonised solution, leaving the adopting States free to answer
the questions at hand in light of their national approach to res judicata:68
imposing a single solution to all enacting States would have jeopardised
the appeal of the Model Law as a truly transnational and neutral legisla-
tive template.
3.4.2 Chronological Scope

As for the exact point in time from which an award must be recognised as
binding, several proposals were put forth. The Secretariat, while acknowl-
edging that ‘it may be in the interest of a party to be bound by an award
only from the date of the receipt of such award’, suggested to specify ‘the
date of the award’ as a starting point.69 The Secretariat justified this
proposal by referring to the need to ensure legal certainty;70 however, it
is doubtful whether such a solution would have indeed safeguarded
certainty in practice. On the one hand, it is true that by referring to the
66
In principle, the problem of whether an arbitral award binds a certain party may be
relevant both in court proceedings where the award creditor is seeking enforcement
against that party, and in court or arbitration proceedings where the award creditor
wishes to rely on the award against that party.
67
F. Ferrand, ‘Res Judicata from National Law to a Possible European Harmonisation?’ in
J. Adolphsen, J. Goebel, U. Haas et al. (eds), Festschrift für Peter Gottwald (Beck, 2014), p.
143. The Secretariat itself, while proposing to supplement art. 35(1) by adding the words
‘between the parties’ after ‘binding’, acknowledged this situation of fragmentation, by
observing that the amendment ‘would also help to convey the idea of res judicata, without
using that term which is not known in all legal systems’ (UN Doc. A/CN.9/WG.II/WP.50
(n. 65), para. 27).
68
For the same reasons, art. 35 also refrains from specifying the boundaries of the objective
scope of the award’s effects, which should also be assessed in light of the res judicata
doctrine of the requested State. However, the travaux do not contain any specific
discussion concerning the opportunity of harmonisation in this respect.
69
70
Ibid.

date of the award article 35 would have ruled out any doubt as to the
moment in time when the award becomes binding. On the other hand,
though, such a solution also entails the risk that the parties may be bound
by an award whose contents they are not aware of yet, if the arbitral
decision is not communicated to the disputants immediately upon its
making.
According to a proposal put forth by the Soviet Union, article 35
should have differentiated between domestic and foreign awards.71 As
for the former, it was proposed to indicate the date of the award or,
alternatively, the date of the delivery of the award to the parties as a
starting point. By contrast, for the latter, it was argued that the Model
Law should not impose a uniform solution, but rather refer to the law of
the country where the award was made.72
Eventually, the Commission decided to omit all references to the point
in time when the award becomes binding. However, the travaux demon-
strate that the approach suggested by the Soviet Union, based on a
distinction between domestic and foreign awards, was in essence
adopted. More specifically, the Commission held that, for foreign awards,
the problem should be resolved on the basis of the law of the seat of
arbitration, in conformity with the rule laid down in article 36(1)(a)(v).73
For domestic awards, instead, three main options were considered: (1)
the date on which the award is made; (2) the date on which the award is
delivered to the parties; or (3) the date on which the time limit for setting
aside applications expires.74 Eventually, however, no agreement could be
reached on any of the proposals; the Model Law, hence, does not contain
a harmonised answer to the question at hand.
3.5 Enforcement upon Application

Article 35 draws an interesting distinction between recognition and
enforcement. On the one hand, according to this article, an arbitral
award ‘shall be recognized as binding’, without any further specification;
71
UN Doc. A/CN.9/263 (n. 9), 52.
72
To support this proposal, the Soviet Union observed (ibid., para. 2) that art. 36(1)(a)(v)
allows the courts of the requested State to deny recognition and enforcement if the award
‘has not yet become binding on the parties’, but does not specify the moment when the
award starts producing binding effects.
73
UN Doc. A/40/17(n. 5), 61, para. 313; see also above (n. 72). For an application of this
principle, see Oberlandesgericht Frankfurt am Main, 26 Sch. 13/08, (2009) XXXIV YB
Com. Arb. 527, 529–530.
74
The options were discussed in the context of the debate on art. 31: ibid., para. 257.

on the other hand, the Model Law specifies that the award ‘shall be
enforced’, but only ‘upon application in writing to the competent
court’. Taken at face value, thus, article 35 seems to suggest that an
application in writing is only necessary if the interested party wishes to
obtain the enforcement of the award, while recognition happens ex
officio, without the need for any party impulse. From this point of view,
the Model Law departs significantly from article IV of the New York
Convention, which requires an application both for recognition and
enforcement. The Working Group justified this approach by describing
recognition as ‘an abstract legal effect which could obtain automatically
without necessarily being requested by a party’.75
Although the choice to describe recognition as ‘automatic’ contributes
to characterising the Model Law as an arbitration-friendly legislative
template, it is difficult to understand what practical effects this feature
of article 35 may produce in practice. In principle, a party may seek
recognition not only for the purposes of subsequent enforcement, but
also to be able to invoke the award (and, in particular, its res judicata
effects) in other proceedings. However, the second paragraph of article
3576 specifies that an application in writing is necessary not only if a party
is seeking enforcement, but also if it is ‘relying’ on the award.77 In other
words, it does not seem possible to rely on the award without an
application filed in accordance with article 35(2). In light of this, the
‘automatic recognition’ principle enshrined in the first paragraph of
article 35 is little more than an abstract declaration of principle.
3.6 Jurisdiction to Recognise and Enforce

Obviously, in order to obtain the recognition and enforcement of the
award, the prevailing party must file an application with the competent
court in the requested State. This circumstance raises three questions
which are procedural in nature. First of all, the award creditor needs to
identify the court competent to hear recognition and enforcement appli-
cation. Second, it is necessary to delimit the scope of that court’s jurisdic-
tion, determining what it can and cannot do with regard to the award.
Third, depending on the contents of the law of the requested State, it may
75
UN Doc. A/CN.9/246 (n. 6), para. 146.
76
See also below, section 4.
77
In practice, therefore, the regime set forth in art. 35 is not different from the one of non-
Model Law jurisdictions where an award only produces res judicata effect if it can be
recognised: see e.g. Swiss Supreme Court, 26 February 2015, 4A_374/2014.

918 a r tic l e 3 5 : r ec o g n i t i o n an d en f o r ce m e n t
be necessary to prove a jurisdictional nexus between the forum where

recognition and enforcement are sought and the dispute or the parties to
it (and their assets). The following subsections scrutinise these issues in
detail.
3.6.1 Identification of the Court Competent to Hear

Applications
Article 35 simply states that the party seeking enforcement must file an
application with ‘the competent court’; when enacting the Model Law,
then, each State must specify which court(s) have competence in this
respect. In other words, it is up to each State to determine where the
applications for the recognition and enforcement of arbitral awards
should be lodged: in principle, a State may decide to confer this type of
power to multiple courts located in different locations on its territory, or
to concentrate all applications on a single specialised court.
The Model Law does not constrain the enacting States’ freedom to
allocate jurisdiction to recognise and enforce awards; it does not matter,
hence, whether the court seised with an article 35 application would have
had jurisdiction over contractual disputes between the parties in the
absence of an agreement to arbitrate.78 For the same reason, it is also
irrelevant whether the requested court is competent to hear setting-aside
actions.79
3.6.2 Scope of the Court’s Jurisdiction

When a court exerts jurisdiction under article 35, its powers are limited to
the purpose of recognising and enforcing the award. Conversely, the court
has no power to review the contents of the arbitral decision or alter them in
any way, as this would amount to a re-evaluation of the merits of the case.80
In some cases, when the award creditor seeks recognition and enforce-
ment, the requested court is also asked to correct calculation or spelling
mistakes in the award.81 It is doubtful whether the court has the power to
78
CLOUT Case 351, Food Services of America Inc. (Amerifresh) v. Pan Pacific Specialties Ltd
(1997) 32 BCLR (3d) 225.
79
In principle, a court can be competent to hear both setting-aside and recognition and
enforcement applications only if the arbitral proceedings were seated in the State where
recognition and enforcement of the award are sought. However, there is no conditional
link between the two types of competence: see CLOUT Case 1377, Bros for Import, Export
and Supply Co. v. Hano Acorporish, Cairo Court of Appeal (2 July 2008).
80
Apa Insurance Co. Ltd v. Chrysanthus Barnabas Okemo, Nairobi High Court, Kenya, 24
November 2005, Miscellaneous Application 241 of 2005.
81
Oberlandesgericht München, 29 October 2009, 34 Sch. 15/09.

make this type of correction, even when the error is merely formal and
can be rectified without any second-guessing of the merits of the dispute.
On the one hand, allowing this type of correction may be beneficial for
the award creditor, in terms of costs and expeditiousness. On the other
hand, however, the lex arbitri typically lays down a separate mechanism
for the correction of formal mistakes in the award, and a time limit within
which requests for this type of correction must be lodged. Under the
Model Law, for instance, requests for correction or interpretation must
be submitted by the interested party to the tribunal within thirty days of
receipt of the award.82 Therefore, allowing formal amendments at the
recognition and enforcement stage may result in the circumvention of
the law regulating corrections at the seat of arbitration, with some
undesirable consequences in terms of legal certainty. More specifically,
if the courts of any requested State are empowered to correct the award,
the parties can have no certainty as to whether a correction will be
possible, before which authority and under which conditions. Hence,
multiple versions of the same award may be generated, as a result of an
uncoordinated concurrence of parallel correction procedures. In addi-
tion, by allowing corrections after the expiry of the time limit set by the
lex arbitri, the parties can never be certain that the version of the award
they have been communicated is final and immutable, thus undermining
one of the key advantages of arbitration, i.e. finality.
By contrast, there is little doubt that the court before which recognition
and enforcement are sought has the power to adapt or complement the
award, to take into account circumstances that have occurred after the
arbitral tribunal rendered its decision. This is an obvious consequence of
the fact that the arbitrators cannot anticipate the future; as a conse-
quence, it is impossible for the tribunal to calculate the interests that
will mature after the making of the award, or any other amount which
depends on uncertain events (such as the date of payment by the award
debtor) taking place in the future.
3.6.3 Need for a Jurisdictional Nexus

A question which finds no answer in article 35 is whether there must be
any kind of nexus between the dispute (and its parties), on the one hand,
and the State where recognition and enforcement are sought, on the
other hand. In other words, the problem is whether a court may legiti-
mately refuse to recognise and enforce an arbitral award not because any
82

920 ar ticle 35 : reco gnition and enforc ement
of the grounds set forth in article 36 occur, but simply because there is no
discernible connection between the requested State and the case (for
instance, none of the parties is present in the territory of that State, nor
do they own assets there). Admittedly, it is not frequent for the award
creditor to seek recognition and enforcement in a jurisdiction where the
debtor is not present and has no assets; however, since this possibility
cannot be ruled out a priori, it is necessary to determine whether refusing
recognition for lack of a jurisdictional nexus is compatible with the
Model Law.
With a certain degree of simplification, it is possible to distinguish
between two opposite approaches to the problem. On the one hand,
in many jurisdictions (especially in the civil law world) the prevail-
ing view is that no assessment as to the existence of a jurisdictional
nexus should be performed, given the absence of indications in this
sense in the New York Convention and in national legislation.83 On
the other hand, especially but not only84 in the United States,
authorities hold that the due process clause enables national courts
to refuse recognition if no connection with the requested State
exists.85
The main reasoning raised by those who argue that a minimum
jurisdictional nexus should be required is that, in the absence of such
nexus, the award debtor may be forced to raise objections (such as those
enumerated in article V of the New York Convention and article 36 of
the Model Law) in a far-off court with which he or she has no connec-
tion.86 A possible objection to this line of reasoning is that, if the award
debtor has no assets in the requested State, he or she could ignore the
recognition proceedings in that jurisdiction, and only resist recognition
83
See for a comparative overview the International Commercial Disputes Committee
of the Association of the Bar of the City of New York, ‘Lack of Jurisdiction and
Forum Non Conveniens as Defenses to the Enforcement of Foreign Arbitral
Awards’ (2004) 15 Am. Rev. Intl Arb. 407, 413–415, with references to China,
Japan and Switzerland.
84
In Germany, see Kammergericht Berlin, 10 August 2006, 20 Sch. 7/04.
85
First Inv. Corp. of the Marsh Is v. Fujian Mawei Shipbuilding, Ltd, 703 F.3d 742, 749 (5th
Cir. 2012); Frontera Res Azer Corp. v. State Oil Co. of the Azer Republic, 582 F.3d 393, 397–
398 (2nd Cir. 2009); Glencore Grain Rotterdam BV v. Shivnath Rai Harnarain Co., 284
F.3d 1114, 1121 (9th Cir. 2002).
86
L. J. Silberman, ‘Civil Procedure Meets International Arbitration: A Tribute to Hans Smit’
(2012) 23 Am. Rev. Intl Arb. 439, 440; see also, for similar arguments with reference to the
recognition of foreign judgments, L. J. Silberman and A. D. Simowitz, ‘Recognition and
Enforcement of Foreign Judgments and Awards: What Hath Daimler Wrought?’ (2016)
91 NYU L. Rev. 344, 352–359.

in those States where there is a real prospect of enforcement.87 There is,

however, a counter-objection against this argument: as illustrated
above,88 some courts grant preclusive effects to foreign judgments
which recognise foreign awards. While this practice is highly debatable
and inconsistent with the spirit of the Model Law, since it essentially
amounts to deriving effects from an exequatur rather than from the
original award,89 it does play a role in the delicate balancing that must
be stricken when deciding whether a jurisdictional nexus at the enfor-
cement stage should be required. Let us, for instance, consider the case
where the award has been issued in State X, but the award debtor only
owns assets located in State Y. The debtor deems the award to be
contrary to public policy, and plans on resisting recognition and enfor-
cement before the courts of Y. The award creditor, however, may
strategically seek recognition not in Y, but in Z, a remote State with
which the parties have no type of connection. The award debtor may
find it inconvenient to appear before the courts of Z; however, if the
courts of Y are inclined to grant preclusive effects to foreign judgments
recognising arbitral awards, failure to resist recognition in Z may
factually result in the debtor’s loss of the defence against recognition
in Y too.90 For this reason, the requirement of a minimum jurisdictional
nexus, while not entirely consistent with the letter of the New York
Convention and the Model Law, serves the meritorious purpose of
avoiding enforcement strategies which may in some cases significantly
jeopardise the debtor’s ability to put forth valid defences.91 Needless to
say, a more direct way of resolving the problem would be for national
courts to abandon the debatable practice of granting effects to foreign
recognition judgments.
It has been argued that the parties may secure the enforceability of the
award in all of the State parties to the New York Convention by expressly
providing in the agreement to arbitrate that they authorise enforcement
87
In principle, recognition of an award may be sought not only for the purposes of
subsequent enforcement, but also to rely on the res judicata effects of the arbitral ruling
in other proceedings. If, however, those proceedings are pending in the requested State,
this generally entails the existence of some kind of connection (at the very least, a choice-
of-forum or arbitration clause) linking the award debtor to that jurisdiction.
88
See section 3.1.5.
89
See also above, sections 3.1.4 and 3.1.5.
90
Chantiers de l’Atlantique SA v. Gaztransport & Technigaz SAS [2011] EWHC 3383
(Comm.).
91
Along similar lines, see Silberman and Simowitz (n. 86), p. 359, with reference to foreign
judgments.

922 article 3 5: recognition and enforcement
actions in all contracting States, thus consenting to a sort of forum

executionis prorogatum.92 Of course, the downside of this type of agree-
ment is the possibility that the judgment debtor will be required to resist
recognition in a remote jurisdiction.
3.7 Requirements for Recognition and Enforcement

The Model Law specifies that enforcement is ‘subject to the provisions of
(article 35) and article 36’. This language should be understood as stres-
sing that the provisions at hand are exclusive in nature: in other words,
courts cannot subject recognition and enforcement applications to for-
mal requirements other than those set forth in article 35,93 nor can they
deny recognition and enforcement for reasons other than those indicated
in article 36.94 In principle, these requirements and grounds for refusal
must be interpreted and applied in the same way, irrespective of what the
law applicable to the merits of the case may be.95
The award debtor may not invoke the need to protect confidentiality as
a barrier against the recognition and enforcement of the award.96 It may,
however, be possible to seal the recognition and enforcement proceed-
ings or to adopt other measures for the protection of confidential infor-
mation,97 although some national authorities have proved reluctant to do
92
H. Smit, ‘Annulment and Enforcement of International Arbitral Awards: A Practical
Perspective’ (2007) 18 Am. Rev. Intl Arb. 297. Some commentators also argue that such
consent to ‘worldwide’ enforcement is implicit in the parties’ submission to arbitration:
see International Commercial Disputes Committee of the Association of the Bar of the
City of New York (n. 83); J. E. Berger and C. Sun, ‘Personal Jurisdiction and the New York
Convention’ (2012) 28 Intl Litigation, http://apps.americanbar.org/litigation/commit
tees/international/articles/summer2012-0712-personal-jurisdiction-new-york-conven
tion.html. See also, against the imposition of jurisdictional constraints at the recognition
and enforcement stage, R. J. Weintraub, ‘Jurisdiction Problems in Enforcing Foreign
Arbitral Awards’ (2012) 2 Intl Arb News.
93
CLOUT Case 584, Dunhill Personnel System Inc. v. Dunhill Temps Edmonton Ltd [1993] 13
Alta LR (2d) 240.
94
CLOUT Case 740, Aloe Vera of America, Inc. v. Asianic Food (S) Pte Ltd and Another
[2006] 3 SLR 174 (206). This interpretation of the Model Law is consistent with the spirit
of the New York Convention, on which the Law is based.
95
Oberlandesgericht München, 1 September 2009, 34 Sch. 14/09.
96
Intl Coal Pte Ltd v. Kristle Trading Ltd [2008] SGHC 182. A confidentiality agreement
cannot restrict the interested party’s right to rely on it in different proceedings, even when
those proceedings involve third parties: Associated Electric & Gas Insurance Services Ltd v.
European Reinsurance Co. of Zurich, Privy Council, Bermuda [2003] UKPC 11.
97
Decapolis Grp, LLC v. Mangesh Energy, Ltd, No. 3:13-CV-1547-M, 2014 WL 702000 (ND
Tex., 24 February 2014).

so in the absence of special circumstances justifying the need for

confidentiality.98
4. Paragraph 2
The second paragraph of article 35 does not set forth a self-contained
regime governing the procedure leading to the enforcement of the award,
but only specifies some requirements that the applicant must fulfil. It is
up to domestic procedural law to specify the steps that a party requesting
enforcement, or seeking to rely on the award,99 should follow to achieve
this goal.
Article 35(2) was modified in the context of the 2006 amendments to
the Model Law. The main difference is that the pre-2006 version obliged
the applicant to supply both the award and the agreement, while pur-
suant to the current version only the award is necessary. This modifica-
tion is a consequence of the Commission’s decision to allow oral
agreements to arbitrate, in one of the two ‘options’ of article 7.100 The
2006 version of the Model Law, in other words, acknowledges that in
some cases no written arbitration agreement may exist; the award, none-
theless, remains enforceable, provided that the applicant supplies the
original or a copy thereof.
To be sure, even before the 2006 amendments, there could be situa-
tions where the agreement to arbitrate was not recorded in writing, yet
the parties had factually agreed to arbitrate. More specifically, consent
to arbitration may sometimes be found in a submission by appearance:
if an arbitration is commenced in the absence of a valid agreement, but
the respondent fails to deny the existence of any agreement in its
defences, the parties are typically deemed to have consented to arbitrate
their dispute. Hence, the question arose as to how an applicant could
comply with the requirements of the pre-2006 version of article 35(2),
when the parties’ consent to arbitration was implicitly underlying an
exchange of statements of claim and defence rather than being expressly
98
Mead Johnson & Co. v. Lexington Ins. Co., Dkt No. 3:11-cv-43-RLY-WGH (SD Ind.,
September 2011); Gea Group AF v. Ventra Group Co. & Timothy Graham, Ontario
Superior Court of Justice, 9 January 2009, CV-08-7635-00CL; Global Reinsurance Corp. –
US Branch v. Argonaut, 2008 WL 1805459 (SDNY 2008).
99
As already mentioned, despite the seemingly ‘automatic’ nature of recognition pursuant
to art. 35, any interested party must file an application not only to obtain enforcement,
but also to be able to invoke the res judicata effects of the award: see above, section 3.5.
100

924 article 3 5: recognition and enforcement
recorded in a written document. The problem at hand was resolved by

specifying, in article 7(2) of the 1985 version of the Model Law,101 that
‘an agreement is in writing if it is contained … in 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’. The applicant, hence,
could comply with article 35(2) by supplying, together with the award,
the statements of claim and defence. This, of course, continues to hold
true in Model Law jurisdictions which have not adopted the 2006
amendments to article 35.
After the 2006 amendments, the Model Law no longer requires that
the applicant supply the original arbitration agreement or a duly certi-
fied copy thereof.102 Interestingly, this holds true irrespective of which
of the two ‘options’ of article 7 have been adopted by the enacting State:
in an attempt to limit formalism, the Model Law only mandates that the
award be supplied, even when the enacting State has excluded the
possibility of oral arbitration agreements by adopting the ‘option I’
version of article 7. Once again, the applicant may still be required to
supply the agreement, if the enacting State has not implemented the
2006 amendments.103
Another innovation introduced in 2006 is that the original award
must no longer be ‘duly authenticated’ and, if a copy of the award is
101
Corresponding, in the relevant part, to art. 7(5) of the 2006 version of the Model Law.
102
Even if the applicant is not required to supply the agreement, this does not mean that
objections to the recognition and enforcement of the award relating to the validity and
content of the agreement are no longer possible. To the contrary, the party resisting
enforcement can still argue that, for example, the agreement is not valid (art. 36(1)(a)(i)),
or that the dispute with which the award deals is not contemplated by it (art. 36(1)(a)
(iii)). If there is an objection under art. 36 relating to the agreement, the best view is that
the burden of proof is on the objecting party (e.g. to demonstrate that the agreement did
not encompass that dispute, or was not valid at all): Denmark Skibstekniske Konsulenter
A/S I Likvidation (formerly known as Knud E. Hansen A/S) v. Ultrapolis 3000 Investments
Ltd (formerly known as Ultrapolis 3000 Theme Park Investments Ltd) [2010] SGHC 108.
It will be up to the resisting party, hence, to supply the agreement and prove that the
objection is well grounded, while an ex officio assessment of the validity of the agreement
is typically regarded as precluded: Madrid Court of Appeal, 4 March 2005, 86/2005-52/
2005; Valencia Court of Appeal, 11 October 2005, 603/05. Other authorities, by contrast,
draw a distinction between the conclusion of the agreement, which should be proven by
the applicant, and its invalidity, which should be demonstrated (if contested) by the
resisting party: Oberlandesgericht München, 12 October 2009, 34 Sch. 20/08;
Oberlandesgericht München, 19 January 2009, 34 Sch. 4/08.
103
Some municipal courts, however, adopt a liberal approach to the provision at hand,
accepting, e.g. a normal facsimile of the agreement to arbitrate: see Denmark
Skibstekniske Konsulenter, ibid., para. 22.

supplied, the latter must no longer be ‘duly certified’. The original

wording of the Model Law mirrored article IV(1) of the New York
Convention and potentially entailed practical complications for the
applicant, connected, inter alia, with the need to find an authority
able to ‘authenticate’ the award or ‘certify’ a copy thereof. On the one
hand, it is uncontroversial that this formal requirement did not
involve the need to obtain an exequatur at the seat of arbitration
before seeking recognition and enforcement elsewhere, as the aboli-
tion of the ‘double exequatur’ requirement was one of the main
advancements of the New York Convention (on whose wording the
1985 version of article 35 is based), as compared with the 1927
Geneva Convention.104 On the other hand, however, national courts
have held that, in order for an award to be authenticated, the signa-
tures of all members of the tribunal must be confirmed by a notary
public or another public official at the seat.105 Furthermore, while
many arbitral institutions are willing to make certified copies of the
award available to the parties,106 obtaining a copy of the award which
complies with the requirement at hand may be more difficult if the
arbitration was conducted on an ad hoc basis.
Already in 1985, the Model Law drafters had intended to limit the
formalisms of the New York Convention, with reference to the
translation of the award and the agreement. Pursuant to article IV
(2) of the New York Convention, the translation must be ‘certified by
an official or sworn translator or by a diplomatic or consular agent’;
having noted that this detailed provision was ‘somewhat problematic’
in practice,107 in 1985, the Model Law adopted a more generic
wording, requiring certification, but without further specifications.
Subsequently, with the 2006 version, two further steps towards the
limitation of formalism were made. First of all, according to the
current version of article 35(2), if the award is not made in an official
language of the requested State, the applicant is no longer automati-
cally obliged to provide a translation: the translation only becomes
necessary if the court where recognition and enforcement are sought
104
Convention on the Execution of Foreign Arbitral Awards (adopted 26 September 1927,
entered into force 25 July 1929), 92 UNTS 301.
105
Austrian Oberster Gerichtshof, 3 Ob.65/11x.
106
See e.g. art. 35(2) of the 2017 ICC Rules, which entrusts the Secretary-General of the ICC
with this task.
107
UN Doc. A/CN.9/245 (n. 4), para. 136.

926 a rticle 3 5: reco gnitio n and enforc ement
requests it. Second, the translation no longer needs to be ‘duly

certified’ by any public authority.
Some national authorities have held that, even if an application does
not fulfil all the requirements of article 35(2), it is not inadmissible, and
the applicant is allowed to correct formal flaws after the filing.108
108
Oberlandesgericht München, 27 February 2009, 34 Sch. 19/08; CLOUT Case 459,
Madison Co. Ltd v. Victor (Far East) Ltd [2000] HKC 502.

Article 36
Grounds for Refusing Recognition

or Enforcement
m i c ha e l po l k i n g h o r n e , j a c k b i g g s , a n n a c h u w e n
dai and tolu obamuroh*
(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 con-
tains decisions on matters submitted to arbitration may be
recognized and enforced; or
(iv) The composition of the arbitral tribunal or the arbitral pro-
cedure was not in accordance with the agreement of the
* The authors would like to thank Christine Cocheteux (legal intern at the time of her
assistance) who assisted with this chapter.
927

928 article 36: grounds f or refusing recogni tion
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:
(i) The subject-matter of the dispute is not capable of settle-
ment by arbitration under the law of this State; or
(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.

Article 36 of the Model Law concerns the recognition and enforcement of
awards. The grounds for refusal are modelled after the New York
Convention; as such, they are extremely limited and mainly focus on
procedural irregularities.1
As already mentioned, article 36 was closely modelled on articles V
and VI of the Convention.2 The Working Group did not want to deviate
much from the Convention as it ‘worked well in practice’3 and had given
rise to few problems. Many States that had already joined the Convention
went so far as to state that article 36 was unnecessary, as it would simply
create duplication within their domestic legislation.4 However, the
1
In this regard, art. 36(2) makes it clear that where an application to have the award set aside
or suspended has been made to the court referred to in art. 36(1)(a)(v), but a decision has
not yet been made, the court where recognition or enforcement is sought can postpone its
decision and order the party opposing enforcement to provide appropriate security.
2
H. M. Holtzmann and J. Neuhaus, A Guide to the UNCITRAL Model Law on International
Commercial Arbitration: Legislative History and Commentary (Kluwer, 1989), p. 1055; The
Draft Uniform Law Should Take into Account the Provisions of the 1958 Convention and
of the UNCITRAL Arbitration Rules, Report of UNCITRAL on the Work of Its Twelfth
Session, UN Doc. A/34/17 (18–29 June 1979), para. 81.
3
UN Doc. A/34/17 (n. 2), para. 77.
4
Summary Records of the 320th Meeting: Comments by Government and International
Organizations on the draft Test of a Model Law on International Commercial Arbitration

1 . b a c k g r o u n d a n d trav aux prép a r a t o i r e s 929
majority of States favoured retaining the article given that some had not
or could not join the Convention,5 and others felt that in any event
keeping this duplicate article in the Model Law would not cause any
harm, even if it was repetitive.6 The Commission ultimately felt, and
decided, that having a similar article in the Model Law would never-
theless serve to form a more uniform body of law because States adopting
the Model Law would join the many Convention States in a more or less
identical system.7
While some believed that the Convention should only serve as a
starting point and not be followed closely, the prevailing view was that
the Convention should be deviated from only where cogent reasons
existed for such deviation.8 Because articles V and VI of the
Convention form the basis of article 36, the cases regarding the
Convention can be extremely helpful in interpreting article 36 in turn.
In fact, a Canadian court has gone so far as to hold that ‘authorities
relating to Article V of the New York Convention are applicable to the
corresponding provisions in Articles 34 and 36 of the Model Law’, going
on to say that ‘these authorities accept that the general rule of interpreta-
tion of Article V is that the grounds for refusal of enforcement are to be
construed narrowly’.9
The Secretariat stated that in light of this correspondence in language,
article 36 would ‘enhance unification and, thus, facilitate matters in a field
of great practical importance’ because enforcement would be the same
whether sought in the country where the award had been issued or
elsewhere.10 Additionally, it would allow courts to clearly distinguish
international arbitration awards from purely domestic cases, thus help-
ing to remove local standards and particularities from international
arbitration.11 Some States, such as the United States and Finland, and
(12 June 1985). See in particular comments of Egypt, Observer of Finland, Austria and
Cuba.
5
Ibid. See in particular the comments of Observer from Canada, Sierra Leone and
Singapore.
6
Ibid. See in particular the comments from Iraq, Sweden, the United States and France.
7
8
9
Corporación Transnacional de Inversiones SA de CV and Others v. STET Intl SpA and
Others [1999] CanLII 14819 (ONSC), para. 21.
10
Commercial Arbitration, UN Doc. A/CN.9/207 (1981), para. 98.
11
Ibid., para. 98.

930 a r t i cl e 36: g r o un ds f o r r ef using rec ogni tion
several arbitration institutions, such as the ICC, expressed the view that
domestic and foreign awards should be treated differently, as was the case
with the Convention.12 However, the Working Group maintained that
there was no reason for treating them differently; it would simply create
undesirable disparity.13 It is nevertheless important to note that several
States that have adopted the Model Law amended it to apply only to
foreign awards.14
The majority of participants wanted to remove the discretion granted
to national courts by changing the wording of the opening words of
paragraph 1 from ‘may be refused’ to ‘shall be refused’ for the sake of
certainty and predictability.15 However, the Working Group decided to
keep the ‘original’ language and allow courts to exercise their discretion
in determining whether to refuse recognition and enforcement of an
award, even when a ground was established. This was specifically done so
that a court could still choose to enforce the award when there was, for
example, some minimal procedural infraction that did not affect the
integrity of the process. Additionally, retaining the ‘may be refused’
language in the Model Law was viewed as promoting uniformity with
the Convention.
The Working Group did remove the phrase ‘under the law applic-
able to them’ (following ‘under some incapacity’) from the
Convention’s version of article 36(1)(a)(i), dealing, inter alia, with
the invalidity of the arbitration agreement. Its members thought that
this phrase was too misleading because it could refer to any number of
substantive laws, such as the law of nationality, domicile or residence,
to name but a few.16 Additionally, where possible, the Working Group
tried to maintain harmony between articles 36 and 34.17 Despite this
change, UNCITRAL expressed the view that the ‘modification did not
12
Analytical Compilation of Comments by Government and International Organizations
CN.9/263 (19 March 1985), 53.
13
14
See Act 19,971 on International Commercial Arbitration (Chile), International
Arbitration Code (No. 4686) (Turkey), Act 60/2003 of 23 December on Arbitration
(Spain), Republic Act No. 9285 (Philippines).
15
UN Doc. A/CN.9/233 (n. 8), para. 140.
16
Eighteenth Session, UN Doc. A/40/17 (21 June 1985), para. 280; Holtzmann and Neuhaus
(n. 2), p. 1059.
17
The Working Group continuously discussed whether it was more important to harmo-
nise art. 36 with art. 34 or with the Convention.

entail any substantive discrepancy between Article 36 and the

Convention’.18 The Hague Conferences also noted that this entire provi-
sion in the Convention had been criticised as unsatisfactory, since it
subjected the question of the validity of the arbitration agreement to the
law of the country where the award was made, rather than to the law
governing the main contract, which represented the trend in the majority
of relevant national systems.19 Notwithstanding the comments, the
Working Group did not make further changes to this subsection.
Some commentators suggested that article 36(1)(a)(ii) (dealing with
absence of notice and inability to present one’s case) was unnecessary as
the principles included were covered by the public policy ground in
subsection (1)(b)(ii). The prevailing view, however, was that the princi-
ples were of such importance that they should be emphasised (as they are
in the Convention).20
The Working Group considered clarifying article 36(1)(a)(iii) (dealing
with matters beyond the arbitral reference), and stated explicitly that the
authority of the arbitral tribunal had to be measured by two standards:
the arbitration agreement and the often narrower mandate given to the
arbitral tribunal by way of reference, submission or statement of claim.21
However, it decided that the language was clear enough and it did not
change the subsection.
Article 36(1)(a)(iv) (procedures etc. not in compliance with the par-
ties’ agreement) also remained identical to its corresponding section in
the Convention. The Working Group considered a significant change,
requiring that the arbitral proceedings be conducted ‘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’.22 This
specification was added to article 34 with a view to rejecting the inter-
pretation of article V(1)(d) of the Convention that recognition and
enforcement could be upheld on the ground that the arbitrators followed
the agreement of the parties instead of the applicable arbitration law
when the agreement conflicts with the applicable law. However, the
Working Group did not adopt this change to article 36 because it was
18
UN Doc. A/40/17 (n. 16), para. 321.
19
CN.9/263/Add.1 (15 April 1985), 22.
20
UN Doc. A/CN.9/233 (n. 8), para. 146.
21
Ibid., para. 148.
22
Art. 34(2)(a)(iv) (emphasis added).

932 article 3 6: grounds f or refusing reco gnitio n
thought that in order to help create a unified international system and

diminish the importance of the place of arbitration, the need to align the
Model Law and the Convention was more pressing with regard to provi-
sions on recognition and enforcement than provisions on setting aside.23
The Working Group decided not to modify article 36(a)(1)(v) (dealing
with awards not yet valid or invalidated), having discussed at length
whether to provide a definition for the word ‘binding’. No definition
was adopted because there was no consensus on which option should be
adopted (discussed in further detail below). Another suggestion that this
subsection apply only if the award had been set aside or suspended due to
one of the other reasons listed in article 36(1)(a)(i) to (iv) was similarly
rejected because it was considered too ambiguous and difficult to apply.24
For a time, the prevailing view was that the non-arbitrability section of
article 36(1)(b)(i) (subject matter not capable of settlement by arbitra-
tion) should be removed since the rules of non-arbitrability normally
formed part of the public policy of a State, rendering its addition in article
36 unnecessary.25 However, it was eventually retained to maintain har-
mony with article 34.26
The contents of article 36(1)(b)(ii) (public policy) were discussed at
various points in the drafting of both articles 34 and 36. The proposals
included altering the public policy ground to make it clear that it includes
certain serious procedural defaults, such as corruption, bribery and
fraud, and situations where new evidence is discovered.27 However, it
was recognised that these could be addressed if the Commission Report
provided for a broad interpretation of ‘public policy’, which would
include both procedural and substantive issues. The Report therefore
makes clear that ‘the wording “the award is in connection with the public
policy of this State” was not to be interpreted as excluding instances or
events relating to the manner in which an award was arrived at’.28
Additionally, the Working Group wanted to maintain the alignment
between the Model Law and the Convention, as having different grounds
for recognition and enforcement would have placed undue significance
23
24
UN Doc. A/CN.9/233 (n. 8), para. 150.
25
Ibid., para. 155.
26
UN Doc. A/CN.9/245 (n. 13), para. 141.
27
CN/263/Add.2 (21 May 1985), para. 14.
28
UN Doc. A/40/17 (n. 16), para. 297.

on the place of arbitration, and thereby ran against a basic policy of the
Model Law.29
The Secretariat also proposed to alter ‘public policy’ to ‘international
public policy’, due to a trend in Convention cases to distinguish between
‘international public order’ and ‘domestic public order’. However, the
Working Group eventually rejected that proposal on the basis that the
term ‘international public policy’ lacked precision.30
Paragraph 2 of article 36 (adjournment and security) was modelled
closely on article VI of the Convention. The Working Group felt that
double control should be avoided ‘not only for the sake of economy and
efficiency but also in order to prevent conflicting decisions’.31 Options
that would eliminate choice of law were also rejected, as the Working
Group felt that this section was sufficient to avoid conflicting decisions.32
2. Paragraph 1
As mentioned above, article 36 of the Model Law provides almost
identical grounds for refusing recognition and enforcement as article V
of the Convention. The grounds listed under paragraph 1(a) of article 36
can only be invoked by the parties, and should not be relied on by State
courts on their own motion. The grounds under paragraph 1(b) are the ex
officio grounds on which national courts can rely to reject the recognition
and enforcement of an arbitral award. Nevertheless, it is common to see
parties who argue against recognition and enforcement referring also to
the grounds listed in paragraph 1(b).
It is agreed that article 36 provides an exclusive list of grounds that
should be construed narrowly.33 According to UNCITRAL, parties have
relied on these various grounds ‘in an indiscriminate way’.34 This is
particularly true for the grounds concerning the violation of due process
and challenges to the arbitral tribunal’s jurisdiction.35 It is also generally
acknowledged that any merit review of an award is not permissible under
paragraph 1.
29
30
UN Doc. A/CN.9/233 (n. 8), para. 154.
31
UN Doc. A/CN.9/245 (n. 13), para. 156.
32
UN Doc. A/CN.9/264 (n. 29), 79.
33
UNCITRAL, ‘2012 Digest of Case Law’, p. 173, para. 2.
34
Ibid., para. 3.
35
Ibid.

934 article 36: grounds f or refusing recognition
Further, more than one commentator has opined over the years that,
despite the existence of enumerated grounds, a court is not obligated to
refuse recognition or enforcement of an arbitral award.36 In other words,
courts can exercise their discretion to still recognise and enforce the
award; a ‘pro-enforcement’ approach under the Model Law.37
On this issue, the drafters of the Model Law deliberated on the wording
used in paragraph 1. It was stated that the ‘may be refused’ wording of the
draft Model Law, which is modelled on the Convention, ‘was ambiguous
in that it might be construed as giving discretion to the court’.38 The
prevailing view was that courts should not be empowered with such
discretion ‘for the sake of certainty and predictability’. As discussed
above, it was proposed that the wording ‘shall be refused’ could be
adopted to clarify the possible interpretation, although ‘this solution
did not preclude the possibility of providing some flexibility as regards
individual reasons for refusal’.39 Finally, the discretion of national courts
was preserved by retaining ‘may’ in the final version of the Model Law,
minimising the deviation of the Model Law from the Convention.40
Nonetheless, some commentators consider that including ‘may’ is
controversial because of the potential discretion it confers on courts. It
is argued that such discretion can increase the uncertainty and unpre-
dictability in the finality of awards,41 and thus go against one of the
purposes of the Model Law – the standardisation and harmonisation of
the recognition and enforcement of arbitral awards. This concern is not
unfounded. The drafters of the Model Law, representing their own
countries, deliberated and agreed on the wording of the articles in the
Model Law on recognition and enforcement of arbitral awards.42
Therefore, the Model Law represents the minimum procedural standards
agreed upon by the international community. However, any discretion
given to national courts would allow them to make autonomous con-
siderations of the refusal grounds that were intended to reflect the
36
See e.g. K. T. Ungar, ‘The Enforcement of Arbitral Awards under UNCITRAL’s Model
Law on International Commercial Arbitration’ (1987) 25 Colum. J. Transnat’l L. 717, 745.
37
Ibid., 745.
38
UN Doc. A/CN.9/233 (n. 8), para. 140.
39
Ibid., para. 140.
40
Law Jurisdictions (Sweet & Maxwell, 2010), p. 424, para. 8–028.
41
See P. Nacimiento, ‘Article V(1)(a)’ in H. Kronke, P. Nacimiento, D. Otto and N. C. Port
(eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on
the New York Convention (Kluwer, 2010), p. 208.
42
This is also true for the drafters of the Convention.

international understanding of the smallest common denominator.

Given that courts in different jurisdictions are inevitably influenced by
their own national laws, they may approach the same issue differently.43
On the other hand, it is also true that court discretion could lead to
greater recognition and enforcement of arbitral awards because they are
left with some flexibility to consider on a case-by-case basis the grounds
and circumstances, and have the power to enforce an award even if there
are what may be formal(istic) grounds for refusal.
In practice, it is usually expressed in the relevant legislative materials
or court decisions that any court discretion to refuse recognition and
enforcement is excluded.44 However, depending on how a jurisdiction
enacts the Model Law or implements the Convention,45 the residual
discretion is from time to time exercised by a national court.46 This
discretion manifests itself in two ways: first, the discretion of a court to
refuse recognition and enforcement for reasons other than those enum-
erated in article 36(1);47 and, second, the discretion of a court to recog-
nise and enforce an award even when grounds for refusal are met.48
According to reported cases, the second scenario seems to arise more
43
See Nacimiento (n. 41), p. 208.
44
‘2012 Digest of Case Law’ (n. 33), p. 174, para. 4.
45
Ibid.
46
For example, in the case of Rusk Renovations Inc. v. Dunsworth, 2013 NSSC 179, the court
considered that it was given discretion to refuse recognition and enforcement.
47
See e.g. Resort Condominiums Intl Inc. v. Ray Bolwell and Another, (1993) 118 ALR 655.
While in most jurisdictions a court does not have the discretion to refuse enforcement for
a reason outside those listed in art. 36, this case illustrates that exceptions do exist. The
International Arbitration Act 1974 was applicable at the time of this decision. It provides
the same grounds for refusal of recognition and enforcement of foreign award as the
Model Law and the Convention. The judge in the enforcement proceeding ruled: ‘I refuse
to order their enforcement on the ground that to do so would be contrary to the public
policy of Queensland, or in the further alternative in the exercise of my discretion …’. In
2010, Australia amended the International Arbitration Act 1974 to make it clear that no
such discretion exists. See A. Kawharu, ‘Exercising Discretion under Arts 34 and 36 of the
Model Law: A Review of Practice’ in F. Bachand and F. Gélinas (eds), UNCITRAL Model
Law after Twenty-Five Years: Global Perspectives on International Commercial
Arbitration (Juris, 2013), p. 112.
48
See e.g. CLOUT Case 366, Europcar Italia SpA v. Alba Tours Intl Inc., Ontario Court of
Justice, Gen. Div. (Dilks J.), Canada (21 January 1997), [1997] OJ 133, 23 OTC 376. A
summary is available in H. C. Alvarez, N. Kaplan and D. W. Rivkin, Model Law Decisions –
Cases Applying the UNCITRAL Model Law on International Commercial Arbitration (1985–
2001) (Kluwer, 2003), pp. 238–239. See also Robert E. Schreter v. Gasmac Inc., Ontario
Court of Justice, Gen. Div., Canada (13 February 1992), 7 Ontario Rep. (3d) 608. A
comment on the case was done by Tetley in [1993] Lloyd’s Maritime and Commercial
Law Quarterly 238. A summary is available in Alvarez et al., ibid., pp. 244–245.

936 arti cle 36: grounds f or refusing recognition
often. This discretion is seen by some commentators as more acceptable

because ‘courts should exercise a large degree of deference to the arbitral
tribunal in making use of their discretion to refuse recognition and
enforcement of an arbitral award’, and they should also minimise judicial
intervention relating to international commercial arbitral awards.49 In
other words, it helps to further the finality objective of arbitration.50
On the burden of proof, the party resisting the recognition and enfor-
cement of an award bears the burden of proving the grounds listed in
paragraph 1(a).51 As for the grounds listed in paragraph 1(b), it is
considered by some courts that the party challenging the recognition
and enforcement also bears the burden of proving a violation of public
policy.52 However, this is not universally accepted, and some commen-
tators assert that the respondent has no such duty in relation to grounds
under paragraph 1(b).53
Furthermore, it should be kept in mind that a court’s decision to refuse
the recognition and enforcement of an award does not necessarily affect
the decision of a court in another jurisdiction.54 However, if an award is
set aside at the place of arbitration, other courts would likely refuse its
recognition and enforcement (even if exceptions exist).55 The issue of a
court’s discretion to enforce an award which has been set aside is not
addressed in the Model Law. However, an UNCITRAL working group
noted that ‘in practice, the issue was not expected to raise many problems
and that cases cited in connection with that issue should not be regarded
as precedent’.56
49
‘2012 Digest of Case Law’ (n. 33), para. 8.
50
See Kawharu (n. 47), p. 109.
51
See e.g. Depo Traffic v. Vikeda Intl, 2015 ONSC 999.
52
‘2012 Digest of Case Law’ (n. 33), p. 175, para. 10. See e.g. Robert E. Schreter (n. 48). The
case was commented on by Tetley in [1993] Lloyd’s Maritime and Commercial Law
Quarterly 238, summary available in Alvarez et al. (n. 48), pp. 244–245.
53
‘2012 Digest of Case Law’ (n. 33), p. 175, para. 10; see also M. Roth, ‘UNCITRAL Model
Law on International Commercial Arbitration’ in F.-B. Weigand (ed.), Practitioner’s
Handbook on International Commercial Arbitration, 2nd edn (Oxford University Press,
2009), para. 14.569.
54
See e.g. CLOUT Case 571, Hanseatisches Oberlandesgericht Hamburg, 24 January 2003,
11 Sch. 6/01, UN Doc. A/CN.9/SER.C/ABSTRACTS/50, 8.
55
Under the Convention, there has been concern that an award annulled at the place of
arbitration would be recognised and enforced in another jurisdiction due to the discretion
supposedly awarded by the wording ‘may’. This concern was validated in the Hilmarton
and Chromalloy cases, discussed below.
56
UN Doc. A/CN.9/468 (20–31 March 2000), para. 112. For further information on the
policy consideration and debate surrounding this topic, see H. M. Holtzmann, E.

In the same vein, the failure to contest the award at the place of
arbitration does not prohibit a party from objecting to the recognition
and enforcement under article 36 because that right is not deemed to be
waived.57 However, some courts, such as those in Germany, take a
different approach. They may deny the enforcement challenge if a party
fails to avail itself of possible challenges against an award where it is
made.58
2.1 Paragraph 1(a)

2.1.1 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 …
Paragraph 1(a) contains the grounds that can be raised by the party
challenging the recognition and enforcement. This party must
furnish the relevant proof to the ‘competent court’. The competent
court here is designated according to the applicable national
procedure. Article 2 of the Model Law provides the definition of
the ‘court’ as ‘a body or organ of the judicial system of a State’,
which includes a State organ that has the responsibility to recognise
and enforce arbitral awards, no matter what nomenclature is used
for such institution.
Courts generally do not accept a party raising a defence on the merits
for the first time during the stage of recognition and enforcement because
those arguments should have been raised in the arbitration proceedings
rather than at the enforcement stage.59 This generally entails that courts
will usually refuse to entertain a party’s request to reopen the examina-
tion of the substance of the dispute. Exceptions may occur when such
defence only arises after the issuance of the award or for some reason it
Kristjansdottir, J. E. Neuhaus and T. W. Walsh, A Guide to the 2006 Amendments to the

UNCITRAL Model Law on International Commercial Arbitration: Legislative History and
Commentary (Kluwer, 2015), p. 677.
57
See Smart Systems Technology Inc. v. Domotique Secant Inc., Quebec Court of Appeal,
Canada (11 March 2008), [2008] QJ No. 1782.
58
See e.g. Oberlandesgericht Karlsruhe, 3 July 2006, 9 Sch. 1/06; Oberlandesgericht
Karlsruhe, 27 March 2006, 9 Sch. 2/05; Oberlandesgericht Karlsruhe, 14 September
2007, 9 Sch. 2/07; see I. Bantekas, Introduction to International Arbitration (Cambridge
59
See e.g. CLOUT Case 740, Aloe Vera of America, Inc. v. Asianic Food (S) Pte Ltd and
Another, High Court, Singapore (10 May 2006); CLOUT Case 457, Hanseatisches
Oberlandesgericht Hamburg, 14 May 1999, 1 Sch. 2/99.

938 article 3 6: grounds f or refusing reco gnition
could not otherwise have been raised during the arbitration.60 While a
court might admit such defence in the enforcement proceeding,61 this
remains rare.62
2.2 Paragraph 1(a)(i)

2.2.1 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
As the first enumerated defence, this paragraph provides two circum-
stances where a competent court could refuse to recognise and enforce an
arbitral award. The first pertains to the capacity of the parties to the
arbitration agreement, and the second concerns the validity of the arbi-
tration agreement itself.
Similar to article V(1)(a) of the Convention, paragraph 1(a)(i) of the
Model Law extends the tenet of arbitration – parties’ consent (put forth
by article 8 of the Model Law on the arbitration agreement) – to the
recognition and enforcement stage.63 Pursuant to this paragraph, con-
sent to arbitrate is absent when either one of the parties lacks the capacity
to conclude an arbitration agreement; nor is there effective consent if the
arbitration agreement is invalid under the applicable law. It appears that
the invalidity of an arbitration agreement is cited more often than the
incapacity of a party as a defence.64 This is in line with UNCITRAL’s
observation on the application of the corresponding article V(1)(a) of
the Convention. In the context of the Convention, it has been said that
the incapacity defence ‘has been of limited relevance in practice’,65 while
60
61
Ibid.
62
Other courts consider such additional defences inadmissible. See e.g. CLOUT Case 453,
Bayerisches Oberstes Landesgericht, Germany, 4 Z Sch. 2/00 (12 April 2000).
63
UNCITRAL, ‘Guide on the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards’ (United Nations, 2016), p. 134, para. 5.
64
This observation is based on the review of a selection of cases relating to art. 36 of the
Model Law made available by the UNCITRAL CLOUT database or referred to in
UNCITRAL, ‘2012 Digest of Case Law’ (n. 33), as well as some other cases relating to
the application of art. V of the Convention.
65
Other commentators hold the same opinion: e.g. it is stated that this ground is ‘rarely used
in applications to resist enforcement of an arbitral award’. See D. Dushyant, ‘Practical
Perspectives on Recognition and Enforcement in a Modern World: A Review of Most

the invalidity of the arbitration agreement defence ‘is often invoked by

parties opposing recognition and enforcement of an arbitral award’.66
2.2.1.1 Incapacity of a Party to the Arbitration Agreement The

Model Law refers to the incapacity of ‘a party to the arbitration agree-
ment’ (emphasis added). By contrast, the wording under article V(1)(a)
of the Convention is ‘the parties to the agreement’ (emphasis added).
Therefore, courts and commentators have held that under the Model Law
one party’s incapacity is sufficient for refusing recognition and enforce-
ment.67 It is not necessary to prove that both parties are under some
incapacity as the wording of the Convention seems to suggest.
Furthermore, the requirement under the Model Law differs from the
1927 Geneva Convention on the Execution of Foreign Arbitral Award,68
which provides that a court shall deny the recognition and enforcement
of an award if ‘the party against whom it is sought to use the award’, being
under a legal incapacity, was not properly presented.69 This juxtaposition
demonstrates that the party opposing recognition and enforcement
under the Model Law cannot only rely on its own incapacity (the
incapacity of the party against whom the award is sought to enforce) as
a defence, but also on the incapacity of its counterparty.70
However, neither the Model Law nor the Convention defines the
meaning of ‘incapacity’ or ‘capacity’. The basic notion of capacity con-
cerns ‘the legal possibility that a person enters into a binding legal
relationship of his or her own free will/in his or her own name and
Common Grounds for Refusing Enforcement Including “Public Policy”’ (2008) 2 Disp.
Res. Intl 4.
66
UNCITRAL, ‘Guide on the Convention’ (n. 63), p. 134, para. 6.
67
Ibid., p. 135, para. 9.
68
The New York Convention was established as a result of dissatisfaction with the Geneva
Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of
Foreign Arbitral Awards of 1927 and to replace these two earlier conventions. See
‘History 1923–1985, New York Arbitration Convention’, www.newyorkconvention.org/
travaux+preparatoires/history+1923+-+1958.
69
Convention on the Execution of Foreign Arbitral Awards, UNCITRAL, 26 September
1927, art. 2 (emphasis added).
70
This is recognised by national courts’ application of art. V(1)(a) of the Convention, which
provides one of the grounds for refusal as the ‘parties to the agreement … under some
incapacity’. For example, the Italian Court of Cassation confirmed in a case that the
defence could be the incapacity relating to the party seeking enforcement. See
UNCITRAL, ‘Guide on the Convention’ (n. 63), p. 134, para. 8; Société Arabe des
Engrais Phosphates et Azotes – SAEPA and Société Industrielle d’Acide Phosphorique et
d’Engrais – SIAPE v. Gemanco srl, Court of Cassation, Italy, 9 May 1996, (1997) XXII YB
Com. Arb. 737.

940 a r t i c l e 36 : g r o u n d s f o r r e f u s i n g r e c o g n i t i o n
account’.71 Thus, incapacities ‘operate as a general restriction on persons

who are not deemed fit to administer their own rights’.72 Nor does the
Model Law specify the law applicable to determine the parties’ capacity.
The rules governing this issue vary from State to State.73 While the
Convention itself refers to ‘consideration under the law applicable to
[the parties to the arbitration agreement]’, as mentioned above, this
passage was removed from the draft of the Model Law because ‘it was
viewed as containing an incomplete and potentially misleading conflict-
of-laws rule’.74 The concern is valid in that it is indeed not clear whether
this rule under the Convention refers to the law of the parties’ nationality,
domicile or residence. That being said, the question is left (even more)
open in the Model Law.
In most civil law jurisdictions, the capacity of a natural person is
governed by their nationality, while the capacity of a legal entity is
determined by the law of the seat of the entity or its place of incorpora-
tion.75 In common law countries, the law of the domicile generally
governs the capacity of a natural person, and the law of the place of
incorporation usually applies in the case of a legal entity.76 But that is not
the end of the inquiry. One commentator has expressed the view that
reference should be made to the conflict rules of the place of arbitration
for determining the applicable law.77 Yet another has proposed that the
‘validation principle’, instead of national choice of law rules, constitutes a
better approach, i.e. the parties would be deemed to have capacity if it is
true under any of the laws of the States affected by the transaction or the
laws of the arbitral seat.78
71
I. S. Anzorena, ‘The Incapacity Defence under the New York Convention’ in E. Gaillard
and D. Di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitral
Awards: The New York Convention in Practice (Kluwer, 2008), p. 221.
72
Ibid.
73
N. Blackaby, C. Partasides QC, A. Redfern and M. Hunter, Redfern and Hunter on
74
UNCITRAL, Explanatory Note by the UNCITRAL Secretariat on the 1985 Model Law on
International Commercial Arbitration as amended in 2006, para. 54.
75
G. B. Born, International Commercial Arbitration, 2nd edn (Kluwer, 2014), pp. 3489–
3490.
76
Ibid.
77
See M. Roth, ‘UNCITRAL Model Law on International Commercial Arbitration’ in F.-B.
Weigand (ed.), Practitioner’s Handbook on International Commercial Arbitration, 2nd
edn (Oxford University Press, 2009), para. 14.572. See also A. J. van den Berg, The New
York Arbitration Convention of 1958 (Kluwer, 1981), p. 277.
78
Born (n. 75), pp. 629–631, 3488–3490.

The Model Law equally does not specify the relevant time when a
party’s incapacity must exist for the purposes of a defence against the
recognition and enforcement of an award. As discussed briefly above,
under the 1927 Geneva Convention, certain types of incapacity could
constitute a ground for denying recognition and enforcement of an
award. Here, the relevant time for incapacity issues was initially that
during which the arbitration proceedings were taking place. Yet, this
approach was abandoned by the drafters of the Convention and those of
the Model Law.79 Following the Convention, the Model Law uses the past
tense ‘was under some incapacity’ in paragraph 1(a)(i),80 which is said to
indicate that the ‘incapacity should be assessed at the time of the execu-
tion of the arbitration agreement’.81
As explained above, incapacity issues rarely arise in the practice of
international arbitration and national courts and they are equally only
seldom addressed by commentators.82 The following is a brief discussion
of the incapacity defence and the two types of legal ‘persons’, namely,
natural persons and legal entities.
First, commentators agree that the incapacity defence can entail a
situation where an individual entering into an arbitration agreement
is a minor or a disabled person (mental incompetence or physical
incapacity), i.e. who is unable to judge where his or her own interest
lies.83 However, there seems to be no reported case where this
particular defence was raised under either the Model Law or the
Convention.84
79
80
Article V(1)(a) of the Convention: ‘that the parties were … under some incapacity’.
81
Under the Convention, courts in general assess the capacity of a party at the time when
the arbitration agreement is made. This is evidenced by the opinions of the Italian Court
of Cassation and courts in the United States, Russia and Canada. There are only a few
exceptions. See UNCITRAL, ‘Guide on the Convention’ (n. 63), p. 140, paras 24, 25. See
also Anzorena (n. 71), pp. 631–632.
82
Redfern and Hunter (n. 73), para. 2.33; Born (n. 75), p. 3491.
83
See P. Sanders (ed.), ICCA’S Guide to the Interpretation of the 1958 New York Convention:
A Handbook for Judges (International Council for International Arbitration, 2011), p. 84;
Anzorena (n. 71), pp. 621–622.
84
It appears that there is no UNCITRAL reported case concerning this defence before
national courts. This is also true for the reported cases relating to the Convention. See
UNCITRAL, ‘Guide on the Convention’ (n. 63), p. 136, para. 13. A search for the cases in
Canada and Hong Kong (which are jurisdictions having enacted the Model Law and from
where a large number of CLOUT Cases come) shows the same result. It should be pointed
out that following the adoption of the 2006 UN Convention on the Rights of Persons with
Disabilities and particularly art. 12(4) thereof, all disabled persons, whether mentally,
physically or cognitively, enjoy full legal capacity and any intervention is purely of an

942 article 36: ground s f or refusing recognition
A rare case concerning the incapacity of a natural person arose in

Canada. It showed that a court would support the incapacity argu-
ment if one of the parties to a contract was not in an equal
bargaining position with the other party when the contract was
negotiated.85 In this case, however, the court did not find any
evidence of ‘oppression, high pressure tactics or misrepresentation’86
and opined that the respondent was not ‘under any incapacity’ when
she entered into the agreement.87 Thus, the court rejected the
incapacity argument.
Second, the incapacity defence may be raised regarding either public or
private legal entities. It has been observed that a challenge to recognition
and enforcement could be accepted when:88 (1) the legal entity actually
does not exist;89 (2) one party is under some legal restriction;90 or (3)
there is a lack of representative power to act on behalf of the legal entity
assistive nature. See L. Series, ‘Article 12’ in I. Bantekas, M. A. Stein and D. Anastasiou,
The UN Convention on the Rights of Persons with Disabilities: A Commentary (Oxford
85
In Aamco Transmissions Inc. v. Kunz, the court concluded that the contract was not
negotiated, but was signed by a person who was not in an equal bargaining position with
the other party. The court decided not to enforce this award. This case was cited by the
respondent of the DLT Holdings Inc. v. Grow Biz Intl, Inc. case (see below). See Canada
Prince Edward Island Supreme Court – Trial Division, DLT Holdings Inc. v. Grow Biz Intl,
Inc., 23 March 2001, [2001] 199 Nfld & Prince Edward Island Reports 135, para. 34.
Relevant information regarding the Aamco Transmissions Inc. v. Kunz case can be found
in UNCITRAL’s CLOUT database. However, the summary only focuses on the defence
relating to art. 36(1)(a)(iii). See Aamco Transmissions Inc. v. Kunz (1991) 97 Sask. R. 5.
86
The respondent asserted that she had no experience in the field of franchising, nor in
running a business, and consequently the applicant should have made certain that the
respondent had independent legal advice. However, it is clear that the respondent had
legal advice or at least had the opportunity to receive legal advice.
87
Canada Prince Edward Island Supreme Court – Trial Division (MacDonald CJTD), DLT
Holdings v. Grow Biz (n. 85), para. 35.
88
As explained, the incapacity ground is rarely invoked in the reported cases relating to the
Model Law. Yet, the same ground is cited by the party opposing recognition and
enforcement in a number of cases in the context of the Convention. Thus, the observation
made here is based on the cases relating to the Convention.
89
See e.g. Sokofl Star Shipping Co. Inc. v. GPVO Technopromexport, District Court of
Moscow (Civil Department), Russian Federation (11 April 1997), (1998) XXIII YB
Com. Arb. 742. In the arbitration underlying this case, the tribunal entered an award
in favour of a company never registered at the purported seat of incorporation.
90
See e.g. Fougerollem SA v. Ministry of Defence of the Syrian Arab Republic, Administrative
Tribunal of Damascus, Syria (31 March 1988), (1990) XV YB Com. Arb. 515. In this case,
a Syrian court admitted certain legal restrictions under a Syrian public policy provision
and refused to enforce an award against the Syrian government.

(although this is not exactly the same issue as incapacity in the narrow
sense).91
2.2.1.2 Invalidity of the Arbitration Agreement The second limb of

the first enumerated defence under paragraph 1(a) adopts verbatim the
wording of the corresponding section in article V(1)(a) of the Convention.
Neither of these expressly provides the criteria for determining the inva-
lidity of an arbitration agreement, but rather both refer to a set of conflict
of laws rules relating to the applicable law chosen by the parties or the law
of the country where the award is rendered. Under this second limb, courts
may also refer to article 7 of the Model Law to examine the issue of
validity.92 As seen in the reported cases relating to the Model Law, courts
rarely refuse to enforce an arbitral award on this ground.93
Furthermore, courts have separated the issue of validity of the arbitra-
tion agreement from the existence of that agreement. The invalidity of
the arbitration agreement is a ground against recognition and enforce-
ment, while the existence of an arbitration agreement is both the founda-
tion of the arbitration and a precondition ‘for any actions to have an
award declared enforceable’.94 Thus, in the process of recognition and
enforcement of an award, it is the applicant’s responsibility to first prove
the existence of the arbitration agreement, and then it would be for the
defendant to raise the invalidity defence to challenge the recognition and
enforcement, as well as prove that the arbitration agreement is invalid.95
91
Courts have recognised that issues of alleged contractual representative powers fall under
the incapacity defence. However, according to reported cases, they have rarely found a
lack of the representative power in their fact findings. See e.g. Unión de Cooperativas
Agrícolas Epis-Centre v. La Palentina SA, Supreme Court, Spain (17 February 1998),
(2002) XXXVII YB Com. Arb. 533; Dalmine SpA v. M. & M. Sheet Metal Forming
Machinery AG, Court of Cassation, Italy (23 April 1997), (1999) XXIV YB Com. Arb.
709; K. v. F. AG, Oberster Gerichtshof, Austria (23 October 2007), (2008) XXXIII YB
Com. Arb. 354.
92
For example, a Hong Kong court referred to art. 7(1) of the Model Law and found that
there was a binding arbitration agreement, which is contrary to the respondent’s argu-
ment. See CLOUT Case 527, High Court of the Hong Kong Special Administrative
Region, Court of First Instance (Woolley DJ), Chongqing Machinery Import & Export
Co. Ltd v. Yiu Hoi and Others Trading as Tin Lee Ship Builders & Trading Co. (11 October
2001).
93
See e.g. CLOUT Case 559, Oberlandesgericht Celle, 2 October 2001, 8 Sch. 3/01; CLOUT
Case 571, Hanseatisches Oberlandesgericht Hamburg, 24 January 2003, 11 Sch. 6/01. This
is also true regarding art. V(1)(a) of the Convention. See UNCITRAL, ‘Guide on the
Convention’ (n. 63), p. 144, para. 36.
94
‘2012 Digest of Case Law’ (n. 33), paras 15–16.
95
Ibid., 176, paras 15–16.

944 a r t i c l e 36 : g r o un d s f o r r e f u s i n g r e c o g n i t i o n
Before delving into more issues arising from relevant court

practice, it may be useful to first discuss the scope of review of the
courts. Some reported cases suggest that when deciding on the
conclusion or otherwise of the arbitration agreement, courts in
principle do not review the factual finding of the tribunal96 or
attempt to second-guess a tribunal’s decision on its own jurisdic-
tion.97 This demonstrates what may be considered the recurring
theme of national court deference to arbitral tribunals. For example,
the High Court of Singapore held that the court’s examination of
documents in an application for enforcing an award did not require
a judicial investigation of the correctness of the arbitral tribunal’s
finding.98 Similarly, it was considered by a German court that it
‘should not substitute its own evaluation of evidence [on the
existence of a valid arbitration agreement] for that of the tribunal
since that would constitute an impermissible revision au fond’.99
However, there is no unanimity; other courts’ views deviate from
the above as they consider that courts are not bound by the arbitral
tribunal’s factual or legal determination on the tribunal’s
jurisdiction.100
In determining the validity of an arbitration agreement, reported
cases show that a defect in the main agreement would not (and should
not) per se render the arbitration agreement invalid, and this is because
of the principle of separability of the arbitration agreement from the
main contract.101 Similarly, courts tend to reject defences based on a
defective or incomplete arbitration agreement (e.g. lack of specificity of
the administering institution or the arbitral rules) if it can be
established that the parties nevertheless manifested a clear desire to
arbitrate their disputes.102 In a similar vein, the mere existence of a
fork-in-the-road clause would not automatically render the arbitration
agreement invalid.103
96
Ibid., 176, para. 18.
97
Aloe Vera of America, Inc. v. Asianic Food (S) Pte Ltd and Another, High Court,
Singapore (10 May 2006), [2006] 3 SLR 174 (206). This case is summarised as CLOUT
Case 740.
98
Ibid.
99
100
See ‘2012 Digest of Case Law’ (n. 33), p. 176, para. 19.
101
See e.g. CLOUT Case 559, Oberlandesgericht Celle, 2 October 2001, 8 Sch. 3/01.
102
See ‘2012 Digest of Case Law’ (n. 33), p. 176, para. 21. See Oberlandesgericht Celle, ibid.
This case is summarised as CLOUT Case 559.
103
See CLOUT Case 457 (n. 59).

Another issue relating to the validity of an arbitration agreement

concerns non-signatories. Awards are generally not enforceable if they
are rendered against non-signatories who are not parties to the arbitra-
tion agreement.104 But mere assertion is not enough – a respondent’s
denial of being a party to the arbitration agreement on the basis of an
alleged forgery of signature, without furnishing any solid proof, would
likely not be accepted by the court.105 Furthermore, a name change of one
of the parties to the arbitration agreement does not change the status of
that party in relation to the agreement and thus does not vitiate the
agreement.106
On some occasions, national courts have enforced arbitral
awards against parties that were non-signatories to the arbitration
agreements. For example, an arbitral tribunal sitting in New York
decided to pierce the corporate veil and held a non-signatory to be
a party. At the enforcement stage, the Supreme Court of British
Columbia enforced the arbitral award against this non-signatory.107
In another case, in India, the court adopted the doctrine of group
of companies and held an award enforceable against a party that
was not party to the arbitral proceedings.108 Similarly, in cases
relating to the Convention, national courts have held that non-
signatories were bound by arbitration agreements based on contract
law theories (such as agency, estoppel, principles relating to alter-
egos and third-party beneficiaries) and the group of companies
doctrine.109
There are cases where the document signed by the parties does not
itself contain an arbitration agreement, but the matter need not end
there. In an enforcement proceeding in Hong Kong, the respondent
argued that there was no arbitration agreement between the parties.
The court nonetheless found that the arbitration agreement was con-
firmed by the parties ‘by reference to other documents’ (incorporating
104
105
See CLOUT Case 527 (n. 92).
106
See CLOUT Case 811, Supreme Court of Hong Kong, Garment Import and Export Co. v.
Siemssen & Co. (Hong Kong) (2 June 1992).
107
CE Intl Resources LLC v. Yeap Soon Sit, 2013 BCSC 1804. The British Columbia court
considered that the non-signatory’s status as a party was a matter for the arbitrator to
determine. The court opined that ‘it is not the role of this Court on such an application to
consider the merits of a substantive issue that was the arbitrator’s to decide’.
108
Cheran Properties Ltd v. Kasturi and Sons Ltd and Others (Civil Appeal Nos 10025–10026
of 2017), https://indiankanoon.org/doc/86950356/.
109

the arbitration agreement in another document by reference), although

the document signed by the parties did not contain an arbitration
agreement.110
As mentioned above, this second limb under paragraph 1(a)(i)
also establishes a conflict of laws principle. Under this paragraph, a
court reviewing an argument brought under this provision will
decide whether the arbitration agreement was valid under the
governing law of the agreement chosen by the parties (primary
conflict rule). If no indication of the governing law is made, the
court will then consider the national law of the arbitral seat
(subsidiary conflict rule).111
Only a few reported cases discuss in detail the law governing the
arbitration agreement.112 It is suggested by some that the choice of law
clause in the main contract, if it exists, would extend to the arbitration
agreement.113 However, not all commentators accept this approach.114
The diverging opinions relate to the common circumstance where the
main contract includes both a choice of law clause and a separate
arbitration clause.115 Some hold the opinion that this choice of law clause
concerning the main contract should also extend to the arbitration
agreement, while others consider that this is not sufficient to cover
the arbitration agreement.116 It is argued that the different objects of
the main contract and the arbitration clause (respectively concerning the
substance under the contract and the procedure relating to disputes)
preclude the arbitrator from construing the stipulation of governing law
as an indication of the law governing the arbitration.117 Thus, the choice
of law under the primary conflict rule would need to be made explicit in
order to constitute a sufficient indication. It is further opined that even if
an implied choice is permissible, the ‘strongest indication of such choice
must be deemed to be the provision in the arbitration agreement where
the arbitration is to take place’.118
110
See CLOUT Case 677, Supreme Court of Hong Kong, High Court (Barnes J.),
Guangdong New Technology Import & Export Corp. Jiangmen Branch v. Chiu Shing
trading as BC Property & Trading Co. [1991] 2 HKC 459.
111
Ungar (n. 36), p. 746.
112
113
Ibid.
114
See van den Berg (n. 77), pp. 292–294.
115
Ibid.
116
Ibid.
117
Ibid.
118
Ibid.

2.3 Paragraph 1(a)(ii)

2.3.1 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
Paragraph 1(a)(ii) aims at ensuring that parties to an arbitration agreement
have the opportunity to present their case and be heard by the tribunal, i.e.
due process in the arbitration proceedings.119 It requires both procedural
and substantive fairness. This provision addresses, on the one hand, ‘irre-
gularities in giving notice of an arbitration’ and, on the other, ‘the inability of
a party to present its case before the arbitral tribunal’.120 It would be in
violation of natural justice if any such irregularities exist.121 It has thus been
said that the function of the national court at the place of recognition and
enforcement is ‘to decide whether there has been a fair hearing’, albeit with
the proviso that only ‘a significant and material mistake in the course of the
proceedings should be sufficient to lead the court to conclude that there was
a denial of “due process”’.122
Adopting the wording of article V(1)(b) of the Convention, this ground is
frequently raised by parties to resist recognition and enforcement.123 And it
is not unusual that a party raising this defence relies also on the public policy
ground under paragraph 1(b)(ii). There is some overlap between these two
grounds because due process and public policy are closely connected in
many respects,124 notably when the violation of due process is so serious that
it is argued to also amount to a breach of public policy.125 However, and as
stated above, courts are not entitled to examine whether there is a breach of
article 36(1)(a)(ii) of their own accord. They could only do so regarding the
public policy grounds set out under article 36(1)(b)(ii).
2.3.1.1 The Content and Criteria of ‘Proper Notice’ A party prop-

erly served with the required documents and thus on notice of the
119
Ungar (n. 36), p. 745.
120
Ibid., pp. 746–747.
121
Dushyant (n. 65). In Schreter v. Gasmac Inc., the court opined that the ground of natural
justice, codified under art. 36(1)(a)(ii), is comprised of the right to notice and the ability
of the respondent to present its case (although no issues on these two matters were raised
in this case). See Robert E. Schreter (n. 48).
122
Redfern and Hunter (n. 73), para. 11.74.
123
124
125
Ibid., p. 254, para. 42.

948 article 36: gro unds f or refusing recognition
proceedings is obviously well prepared to present its case. The indication

that the notice should be ‘proper’ was intended for ‘the contingency of an
improper representation in the arbitration proceedings’.126 Furthermore,
‘proper’ could also be understood ‘in the sense that the notice of the
appointment of the arbitrator and the arbitral proceedings must be
adequate’, which is ‘largely a question of fact’.127
Under this provision, the content of proper notice concerns the
appointment of the arbitrators and/or the arbitration proceedings them-
selves. This paragraph is silent on what specifically should be included in
a notice, this becoming an issue for the court to decide.128
However, it is clear that the notification of arbitral proceedings should
make all the parties aware of said proceedings.129 In particular, one national
court refused the recognition and enforcement of an award against the
owners of the respondent company when said owners were clearly not
given any notice of the arbitral proceedings by the opposing party or the
arbitral institution, but were joined in the arbitral proceedings (without,
moreover, their prior consent to the arbitration agreement).130 This also
shows that the additional respondents’ mere knowledge of the arbitration
proceedings against their company was considered as insufficient notice.
For a notice to be valid, it is almost a truism that the applicant must
make it very clear as to what claims are being made and the identity of the
respondents. The above court also pointed out that it was informed by
the Model Law and the arbitration agreement about what constitutes
‘proper notice’. For example, article 23(1) of the Model Law requires a
claimant to ‘state the facts supporting [its] claim, the points at issue and
the relief or remedy sought’, whereas article 25(a) requires the arbitrator
to terminate the arbitration proceedings if ‘the claimant fails to commu-
nicate his statement of claim’.131
The Model Law does not require a specific form of notice in this
paragraph. Nevertheless, it provides guidance regarding the transmission
of written communications under article 3.
126
As mentioned above, the drafters of the Convention decided to remove the proviso in the
1927 Geneva Convention that the respondent, being under a legal incapacity, was not
properly represented. The word ‘proper’ is therefore intended to cover this. See van den
Berg (n. 77), p. 303.
127
Ibid.
128
129
Ibid., p. 160, para. 21.
130
Rusk Renovations Inc. v. Dunsworth, Canada: Supreme Court of Nova Scotia Hfx No.
389841 (14 June 2013), [2013] NSJ No. 303.
131
Ibid.

A written notice is deemed to have been received if: (1) it is delivered to

the respondent personally; (2) it is delivered at the respondent’s place of
business, habitual residence or mailing address; or (3) it is sent to the
respondent’s last-known place of business, habitual residence or mailing
address by registered letter or any other means evidencing the attempt to
deliver notice, if neither the respondent nor its addresses listed in (1) and
(2) above is available after a reasonable inquiry is made. According to
article 3, a written notice is deemed to have been received on the day of its
delivery.
Often, absent other factors, it is considered sufficient by a court that
the relevant documents were served at the respondent’s last-known
address.132 A German court concluded that, under the arbitration agree-
ment, it was the parties’ obligation to provide a changed address. Thus, it
was not the arbitral tribunal’s obligation to further investigate the current
address of the parties.133
As mentioned above, article V(1)(b) of the Convention forms the basis
of paragraph 1(a)(ii). During the drafting meetings of the Convention,
the drafters considered including the term ‘notified in … due form’ in the
provision, and also contemplated specifying the form of notice by repla-
cing in ‘due form’ with in ‘writing’.134 However, it was eventually decided
not to do so.135 This same wording is followed by the Model Law. This
suggests that courts may have some degree of discretion on deciding what
constitutes proper notice under the Model Law. Readers are advised to
consult the analysis in article 3 of this commentary in that regard.
2.3.1.2 Proving That a Party Is ‘Unable to Present His Case’ The

second protection under paragraph 1(a)(ii) aims at affording the parties
the opportunity to be heard regarding their claims, defences and evidence
through the presentation of their cases. This ground is said to be circum-
scribed by article 18 of the Model Law, which concerns the parties’ equal
treatment, requiring the parties to be ‘treated with equality and each
party shall be given a full opportunity of presenting his case’.136
132
‘2012 Digest of Case Law’ (n. 33), p. 178, para. 27. See CLOUT Case 870,
Oberlandesgericht Dresden, 15 March 2005, 11 Sch. 19/05.
133
Ibid.
134
135
Ibid.
136
D. Lewis, ‘The Interpretation and Uniformity of the UNCITRAL Model Law on
International Commercial Arbitration: Australia, Hong Kong and Singapore’ (2016)
36 Intl Arb. L. Library 79.

The defence of inability of a party to present their case is only accepted

in ‘very serious cases’.137 It is widely agreed by courts in different
jurisdictions that there is no ground for resisting enforcement if the
lack of proper participation or representation is ‘not due to circum-
stances attributable to the arbitral tribunal or extraneous events beyond
the parties’ control’.138 Furthermore, it should be noted that the function
of the court’s examination in enforcement proceedings is to verify com-
pliance with the minimum requirements, but not to analyse the ‘intrinsic
justice or injustice of the award in such a way that it might constitute a
review of what has been decided’.139
The ambit of this paragraph covers not only the general violations of
the right to present one’s case, but also more specifically issues concern-
ing evidence and witnesses during the arbitral proceedings. Some exam-
ples of defences relating to the violation of due process concerning
evidence are: refusal to take evidence, absence of consideration by the
arbitral tribunal of evidence presented and issues regarding the language
of the proceeding.140 Courts have, as part of their overall discretion, the
power to enforce an award even if a tribunal fails to consider all the
evidence submitted by a party.141
In a Hong Kong case,142 the respondent argued that it had not been
given an opportunity to present its case because the tribunal failed to
consider one of its submissions (based on a written confirmation of the
opposing party’s advisor, which was only made available after the formal
closure of the arbitration proceedings). The court, however, held that the
respondent had been given an opportunity to present its case, as it had
made several written submissions as well as oral representations at the
hearing. The court noted that the respondent attempted to submit the
new evidence only after the proceedings were formally closed.
137
See Ungar (n. 36), p. 747; van den Berg (n. 77), p. 310. See also Paklito v. Klockner, where
the court refused to enforce an arbitral award due to the existence of serious procedural
irregularities (Paklito Investment Ltd v. Klockner East Asia Ltd [1993] 2 HKLR 39).
138
‘2012 Digest of Case Law’ (n. 33), p. 178, para. 25. See e.g. CLOUT Case 599, High Court
of Hong Kong, Court of Final Appeal (Li CJ, Litton, Ching, Bokhary PJ, Sir Anthony
Mason), Hebei Import & Export Corp. v. Polytek Engineering Ltd [1999] 2 HKC 205.
139
See CLOUT Case 1092, Chile Supreme Court, No. 3225–2008, Comverse Inc. v.
American Telecommunication Inc. Chile SA (8 September 2009).
140
141
See e.g. CLOUT Case 371, Hanseatisches Oberlandesgericht Bremen, 30 September
1999, (2) Sch. 4/99.
142
CLOUT Case 812, Supreme Court of Hong Kong, High Court, [1993] 1 HKLR, 173
Qinghuangdao Tongda Enterprises Development Co. and Others v. Million Basic Co. Ltd
(5 January 1993).

2 . p ar agr ap h 1 951
It is well acknowledged by courts that arbitral tribunals are not obligated to

address in the reasoning of the award every detail of the parties’ arguments or
every piece of evidence submitted by the parties.143 This is especially true
when the arguments or evidence are not relevant to the tribunal’s decision.
So, unless an arbitral tribunal fails to consider a crucial argument relevant to
the outcome of the case, the courts are usually deferential to the tribunal’s
decision and assume that it has properly considered the parties’ submissions,
even when it does not address a certain point raised by a party in the award.144
In one case, a national court found that, given its conduct, the respon-
dent was estopped from bringing further evidence that was not submitted
in the previous arbitration and court proceedings relating to the under-
lying dispute.145
As discussed, tribunals are not required to divulge every detail of the
parties’ reasoning in their pleadings. A Canadian judgment demonstrates
this principle. The court found that contrary to the respondent’s assertion,
it in fact enjoyed a full opportunity to present its defence. It held that
although the reasons offered in the award ‘could have been more robust’,
this does not mean that the tribunal failed to understand and consider the
respondent’s position. In the view of the judge: ‘a failure to provide detailed
reasons does not amount to a ground upon which the court could exercise
its discretion to refuse to enforce the arbitral award’.146 Overall, the court
emphasised that article 5 of the Model Law (concerning the extent of court
intervention) expressly limits the scope of judicial intervention, and it
should not go against the policy of the restrictive rule.147
Under the Convention, a court may impose an ‘outcome-determina-
tive’ requirement to find a breach of article V(1)(b).148 Therefore, the
requirement of a party opposing the recognition and enforcement is not
only proof of the violation of due process in the arbitral proceedings, but
also evidence that the award would have been differently decided had the
procedural irregularity not existed.149 The same could also be said about
143
‘2012 Digest of Case Law’ (n. 33), p. 178, para. 29. See e.g. Oberlandesgericht Frankfurt,
27 August 2009, 26 Sch. 3/09.
144
145
See CLOUT Case 1440, Supreme Court of Hong Kong, High Court, 2 HKC 373 [1995],
Jiangxi Provincial Metal and Minerals Import & Export Corp. v. Sulanser Co. Ltd.
146
Depo Traffic, (n. 51) para. 43.
147
Ibid. See also Corporación Transnacional de Inversiones SA de CV and Others v. STET
Intl SpA and Others [1999] CanLII 14819 (ONSC), aff’d [2000] OJ 3408 (CA), leave to
appeal refused, [2000] SCCA No. 581, paras 21, 22.
148
149
Ibid.

952 article 3 6: grounds f or refusing reco gnitio n
recognition and enforcement in the Model Law regimes, as demonstrated

by the discussion herein.150
In an enforcement proceeding in Hong Kong,151 the lower court found
procedural irregularities in the arbitration and agreed that the applicant
was thus unable to present its case.152 However, the judge of the lower
court ultimately granted recognition and enforcement. He believed that a
judge had the discretion to order enforcement under the arbitration law
despite his finding of procedural irregularities (as referred to in article 36
(1)(a)(ii)), because the result of the arbitration would not have been
different even if the opportunity to be heard had been granted. In reach-
ing this conclusion, the judge cited the principles referred to in Professor
van den Berg’s commentary on the Convention153 (following a decision
in Germany), stating that ‘[i]f it is clear that the arbitral decision could
not have been different, had the irregularity in the procedure not
occurred, it would seem to make no sense to refuse enforcement’. The
Court of Appeal upheld the lower court’s finding concerning procedural
irregularities and the principles relied upon when exercising judicial
discretion. However, the Court of Appeal found on the facts that the
result of the arbitration could have been affected if the party was allowed
to further present its case. Consequently, the Court of Appeal refused
enforcement of the award.
The judge in an earlier case in Hong Kong154 considered the same
principle discussed by Professor van den Berg. In this case, he found that a
serious procedural irregularity had occurred and the applicant could not
argue that the result of the arbitration would inevitably have been the
same.155 The enforcement application was accordingly rejected by the court.
Lastly, courts are most likely disinclined to accept the argument of a
violation of the right to be heard due to insufficient funding or the choice
150
See e.g. CLOUT Case 371, Hanseatisches Oberlandesgericht Bremen, 30 September
1999, (2) Sch. 4/99.
151
See Apex Tech Investment Ltd v. Chuang’s Development (China) Ltd, Supreme Court of
Hong Kong, Court of Appeal, [1996] 2 HKLRD 155, also summarised as CLOUT
Case 704.
152
The respondent contended that it ‘ought to have been given notice of the result of the
inquiries made by the arbitral tribunal and then ought to have been given the opportu-
nity to make further submissions and, if necessary, call further evidence’. See ibid.
153
It reads: ‘Thus only if it is beyond any doubt that the decision could have been the same
would a court be allowed to override the serious violation.’ See van den Berg (n. 77),
p. 302.
154
Paklito Investment (n. 137).
155
Ibid.

of a hearing venue different from the place of arbitration.156 For instance,

in a Canadian case (mentioned above),157 the court rejected the respon-
dents’ argument that they were unable to present their case due to their
financial inability to participate in the hearing at the location agreed upon
by the parties. The court reasoned that the place of arbitration was
provided in the contract, and it was not the other party’s responsibility
that the respondents could not attend the hearing. In addition, the respon-
dents in that case had failed to prove their lack of funding anyway. In its
decision, the court also referred to article 25(c) of the Model Law (on
default of a party), which permits an arbitral tribunal to continue the
proceedings and to make the award despite a party’s absence at the hearing.
Similarly, a party’s inability to understand the language of the proceed-
ings is not considered to hinder the presentation of one’s case, especially
when the parties have expressly agreed on the language of the arbitration
or such language is determined under the arbitration rules chosen by the
parties.158
2.4 Paragraph 1(a)(iii)

2.4.1
Excess of Mandate/Partial Recognition
and Enforcement
Article 36(1)(a)(iii) of the Model Law159 allows national courts to refuse
recognition and enforcement of an arbitral award, or part of that award,
where the award contains decisions on matters ‘beyond the scope of the
submission to arbitration’. Article 36(1)(a)(iii), like article V(1)(c) of the
Convention, is primarily based on the principle that arbitrators derive
their authority from the parties’ consent and therefore cannot exercise
more power than the parties’ agreement provides.160
Once the successful party has satisfied the jurisdictional requirements,
the Model Law imposes an obligation on national courts to recognise the
156
157
DLT Holdings v. Grow Biz (n. 85), para. 35.
158
See ‘2012 Digest of Case Law’ (n. 33), p. 179, para. 30. See also UNCITRAL, ‘Guide on the
Convention’ (n. 63), p. 168, paras 46–48.
159
The provision has been adopted in a number of national statutes, including: French CCP,
art. 1520(3); English AA, 1996, § 103(2)(d); Singapore International Arbitration Act,
2012, § 31(2)(d); Hong Kong Arbitration Ordinance, 2013, § 89(2)(d); Indian
Arbitration and Conciliation Act, § 48(c); New Zealand Arbitration Act, § 7, Sch. 1,
art. 36(1)(a)(iii); Japanese Arbitration Law, art. 45(2)(v).
160
CLOUT Case 740, Aloe Vera of America, Inc. v. Asianic Food (S) Pte Ltd and Another
[2006] 3 SLR 174 (206).

award and ‘the burden of establishing the applicability of one of these

exceptions to the presumptive enforceability of an international award is
on the party resisting recognition’.161
The purpose of article 36(1)(a)(iii) is not the determination of the
existence or validity of an arbitration agreement, but rather – in cases
where valid agreements exist – whether the tribunal has decided matters
that fall outside the parties’ consent.162
2.4.2 What Constitutes Submission to Arbitration?

The ‘submission to arbitration’ language of article 36(1)(a)(iii) reflects the
primacy of the parties’ consent to arbitration. That consent is reflected in
the arbitration agreement and defines the parties’ choice to resolve their
dispute by arbitration and the extent or scope of such submission. To
provide for the variety of disputes that may arise under a contract, arbitra-
tion agreements are usually drafted in expansive language.163
Article 36(1)(a)(iii) applies whenever the tribunal issues an award that
goes beyond what the parties formally requested the tribunal to decide in
their arbitration agreement.164 Therefore, an arbitration agreement con-
stitutes a ‘submission to arbitration’ within the meaning of article 36(1)
(a)(iii). In addition, some courts have held that the term ‘submission to
arbitration’ may include an arbitration agreement modified, amended or
supplemented by an arbitral institution’s terms of reference agreed to by
the arbitrators and the disputing parties. For example, in Lesotho
Highlands Development Authority v. Impreglio SpA and Others, the
House of Lords stated that ‘[i]n the present case one is dealing with an
ICC arbitration agreement. In such a case the terms of reference which
under Article 18 of the ICC rules are invariably settled may, of course,
amend or supplement the terms of the arbitration agreement.’165
161
G. Born, International Commercial Arbitration, 3rd edn (Kluwer, 2009), vol. II,
pp. 2702–2705.
162
(2003) XXVIII YB Com. Arb. 656.
163
For example, the UNCITRAL model arbitration clause provides ‘[a]ny dispute, con-
troversy or claim arising out of or relating to this contract, or the breach, termination or
invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL
Arbitration Rules’: UNCITRAL Arbitration Rules 2010, Annex.
164
N. C. Port and S. E. Bowers, ‘Article V(1)(c)’ in H. Kronke, P. Nacimiento, D. Otto and
N. C. Port (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global
Commentary on the New York Convention (Kluwer, 2010), pp. 257–280.
165
Lesotho Highlands Development Authority v. Impreglio SpA and Others [2005] UKHL 43,
para. 21. See also the decision of a German court of appeal in Seller v. Buyer,
Oberlandesgericht Stuttgart, 6 December 2001, 1 Sch. 12/01, (2004) XXIV YB Com.

2.4.3 Scope of Parties’ Consent

Theoretically, arbitral tribunals have wide discretion regarding the
disputes submitted to arbitration, subject to the few restrictions
imposed by statute, in particular, the non-arbitrability of certain
disputes.166
However, the scope of submission to arbitration, or the scope of the
mandate of the arbitral tribunal, is determined by the parties in their
arbitration agreement. Since party consent is the cornerstone of arbitra-
tion, article 36(1)(a)(iii) makes it clear that recognition or enforcement of
an award may be refused if it addresses issues that exceed the scope of the
parties’ agreement to arbitrate or, in other words, which are beyond their
consent. However, the scope of the arbitration agreement must not be
confused with that of the underlying contract. Courts have consistently
distinguished between examining the scope of the arbitration agreement
itself and the scope of the underlying contract, which is exclusively within
the remit of the tribunal.167 Prominent commentators have also drawn
the same distinction.168
Article 36(1)(a)(iii) has been invoked in various situations, ranging
from allegations that a party never consented to the arbitration agree-
ment,169 to allegations that some of the claims are not covered by the
arbitration agreement,170 or that the agreement was no longer in force or
had been terminated.171
However, not all situations where article 36(1)(a)(iii) has been invoked
meet the scope and intendment of the provision. For instance, in Aloe
Arb. 742, which held that the parties had concluded a new arbitration agreement by
signing ICC Terms of Reference.
166
‘2012 Digest of Case Law’ (n. 33), pp. 81, 151.
167
See e.g. Svea Hovrätt (American Pacific Corp. v. Sydsvensk Produktutveckling AB in
Bankruptcy), Stockholm Arbitration Report (2001, No. 1) 94–98, reproduced in (2002)
YB Com. Arb. XXVII 551, 551–553 (Svea Court of Appeal, Sweden); Four Seasons Hotels
& Resorts BV v. Consorcio Barr, SA, 613 F. Supp. 2d 1362 (2009) 1369, reproduced in
(2009) YB Com. Arb. XXXIV 1088, 1094.
168
Born (n. 161), p. 3543.
169
Aloe Vera of America, Inc. v. Asianic Food (S) Pte Ltd and Another [2006] 3 SLR 174
(206), paras 64 et seq.
170
CLOUT Case 584, Dunhill Personnel System Inc. v. Dunhill Temps Edmonton Ltd,
Alberta Queen’s Bench, [1993], 13 Alta LR (2d) 240; CLOUT Case 67, Aamco
Transmissions Inc. v. Kunz (1991) 97 Sask. R. 5; CLOUT Case 371, Hanseatisches
Oberlandesgericht Bremen, 30 September 1999, 2 Sch. 04/99.
171
Oberlandesgericht Stuttgart (n. 165); CLOUT Case 559, Oberlandesgericht Celle, 2
October 2001, 8 Sch. 3/01, confirmed by Bundesgerichtshof, III ZB 06/02 (30 January
2003), www.dis-arb.de/de/47/datenbanken/rspr/bgh-az-iii-zb-0602-datum-2003–01-
30-id197.

956 arti cle 36: grounds f or refusing recognition
Vera of America, Inc. v. Asianic Food (S) Pte Ltd and Another,172 the High
Court of Singapore held that a situation where a tribunal rendered an
award against a party not bound by the arbitration agreement is not
covered by the ground to resist enforcement under paragraph 1(a)(iii).
Such a situation only raises issues of jurisdiction of the arbitral tribunal
itself and not the scope of its mandate.173
Similarly, attempts by some parties to stretch the provisions of article
36(1)(a)(iii) to cover limits imposed by the scope of the underlying
contract, rather than the arbitration agreement, have been largely unsuc-
cessful. An Ontario court in Robert E. Schreter v. Gasmac Inc. found that
the question of whether an arbitral award contained decisions on matters
beyond the scope of the submission to arbitration should be determined
under the law applicable to the arbitration agreement rather than the
underlying contract.174
In general, courts have adopted a broad interpretation of the mandate
of the arbitral tribunal. However, the arbitration clause itself can neces-
sarily be the subject of a good deal of scrutiny. For example, another
Canadian court refused enforcement in coming to the conclusion that the
arbitral award was based both on matters that were covered by the
arbitration clause and matters that were expressly excluded therefrom.
The court nevertheless stated that the case turned solely on the inter-
pretation of the arbitration agreement and the principles of common law
relating to interpreting such an agreement.175
2.4.4 Partial Recognition and Enforcement of an Award

Situations thus do arise where arbitral tribunals go beyond the parties’
submission to arbitration or the awards deal with issues beyond the relief
claimed by the parties – these are generally considered beyond the scope
of the mandate of the arbitral tribunal.176 But even here this need not be
the end of the story. In keeping with the character of arbitration as a
consent-based process, article 36(1)(a)(iii) contemplates situations where
the parties’ consent can be given effect while excising any part of the
award that is ultra vires of the arbitral tribunal’s authority.
172
Aloe Vera (n. 169), paras 64 et seq.
173
174
Robert E. Schreter (n. 48).
175
Aamco Transmissions (n. 170).
176
See Jaral Decoración, SL v. Peñasco Rodilla, SL, Madrid Court of Appeal, Spain (2
February 2007), Case No. 94/2007—7/2005.

Where an award is based on independent grounds and one of the

grounds is beyond the scope of the parties’ submission to arbitration, the
award should as a rule be set aside on that ground only.177 In Jaral
Decoración, SL v. Peñasco Rodilla, SL,178 the Madrid Court of Appeal
partially set aside an award on interest because the arbitral tribunal
awarded interest on the sums in arrears without being asked to do
so.179 Similarly, a US district court partially enforced an award that
covered multiple contracts, after finding that one of the contracts was
not within the scope of the arbitration agreement. The court enforced the
part of the award dealing with the contracts that were covered by that
agreement.180
The limited discussion in the travaux préparatoires on this issue
suggests that excision would be appropriate in cases where the matters
in the award going beyond the scope of the agreement were ‘secondary’ in
nature.181 However, in practice, the provision has been applied more
broadly.182 For instance, some courts have interpreted the partial enfor-
cement mechanism under article V(1)(c) of the Convention (similar to
article 36(1)(a)(iii) of the Model Law) to cover awards that are partially
unenforceable under article V(2)(b) of the Convention for reasons of
public policy – notwithstanding the fact that the Convention does not
explicitly provide for partial enforcement under article V(2)(b).183
2.5 Paragraph 1(a)(iv)

2.5.1 Composition of the Tribunal and Arbitral Procedure
Article 36(1)(a)(iv) shares the same language as that of article V(1)(d) of
the Convention and sets out a defence against the general presumptive
177
CLOUT Case 502, United Mexican States v. Metalclad Corp., British Colombia Supreme
Court, Canada (2 May 2001), reproduced in UNCITRAL, ‘2012 Digest of Case Law’ (n.
33), pp. 96, 154.
178
Jaral Decoración (n. 176).
179
180
Four Seasons Hotels (n. 167).
181
UNCITRAL, Summary Records of the Seventeenth Meeting, UN Doc. E/CONF.26/
SR.17 (12 September 1958), 9; see also A. J. van den Berg, ‘The New York Convention
of 1958: An Overview’ in Gaillard and di Pietro (n. 71), pp. 59–60.
182
M. A. da Silveira and L. Levy, ‘Transgression of the Arbitrators’ Authority: Article V (1)
(c) of the New York Convention’ in Gaillard and di Pietro, ibid., pp. 639, 676.
183
See JJ Agro Industries (P) Ltd (India) v. Texuna Intl Ltd (India), High Court, Hong Kong,
(1993) YB Com. Arb. XVIII 396, 401–402; OGH, Supreme Court, Austria, Case No. 3
0b.221/04b, (2005) XXX YB Com. Arb. 421; see also Nigerian Natl Petroleum Corp. v.
IPCO Ltd [2008] EWCA Civ. 1157.

958 article 3 6: grounds f or refusing reco gnition
policy underlying the Convention, which favours recognition and enfor-

ceability of foreign arbitral awards. It allows national courts to refuse
recognition and enforcement where the constitution of the arbitral tri-
bunal or the arbitral procedure was not in accordance with the agreement
of the parties or, in the absence of such agreement, with the law of the
country where the arbitration took place.
Article 36(1)(a)(iv) thus prioritises the parties’ agreement and auton-
omy regarding the composition of the tribunal and arbitral procedure
over the law of the place of arbitration, which should apply only ‘failing
such agreement’.184 Therefore, the law of the place of arbitration plays a
secondary or subsidiary role when the parties have not reached an
agreement on the relevant procedural issue.185
Regarding arbitral procedure, article 36(1)(a)(iv) does not stipulate
any minimum requirements for the content of the parties’ agreement.
The parties can agree on institutional rules to govern these matters186 or
they can agree on their own rules. But drafters need to be wary; in one
case, regardless of the provision of the Model Law allowing for majority
decisions, an award rendered by a majority of the members of the arbitral
tribunal was set aside where the arbitration clause in a shareholders’
agreement provided for unanimity.187
Such an interpretation puts arbitrators in a tough situation, namely,
deciding between respecting the parties’ agreement, even if it conflicts
with mandatory domestic law, or sticking with the above interpretation,
which may lead to unenforceable awards.
In order to find a solution to the dilemma, during the travaux
préparatoires the Working Group examined a different wording that in
the end was not used for the purposes of article 36(1)(a)(iv), but was
incorporated into the corresponding provision of article 34 on setting
aside of arbitral awards, namely paragraph 2(a)(iv) thereto.
Article 34(2)(a)(iv) requires that the proceedings be conducted ‘in
accordance with the agreement of the parties, unless such agreement
184
E. Gaillard and J. Savage (eds), Fouchard Gaillard Goldman on International Commercial
Arbitration (Kluwer, 1999), p. 454, para. 756.
185
Report of the Secretary-General: Study on the Application and Interpretation of the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, UN Doc.
A/CN.9/168 (1958), in (1979) X UNCITRAL YB 106.
186
Hanseatisches Oberlandesgericht Bremen, 30 September 1999, (2) Sch. 4/99; Mechanised
Construction of Pakistan Ltd v. American Construction Machinery & Equipment Corp.
(ACME), 828 F.2d 117, (1990) XV YB Com. Arb. 539.
187
Murcia Court of Appeal, Spain (8 October 2009), Case No. 448/2009—161/2008, repro-
duced in the ‘2012 Digest of Case Law’ (n. 33), pp. 98, 154.

was in conflict with a provision of this Law from which the parties cannot
derogate’. Neither article V(1)(d) of the Convention nor article 36(1)(a)
(iv) of the Model Law creates a similar caveat. It was added to article 34 in
order to counter an interpretation that had been advanced by a number
of commentators in relation to the Convention arguing, as mentioned
above, that the agreed procedure should prevail when it conflicts with
mandatory rules of the procedural law.188
The distinction between articles 34(2)(a)(iv) and 36(1)(a)(iv) poses an
exception to the general policy of harmony between these two articles.
This conflict in the language was explicitly recognised on at least two
occasions.189 The rationale, however, for this distinction is not clear.
Nonetheless, two reasons are often given:190 first, the goal to unify an
international system for recognition and enforcement of arbitral awards
by staying true to the Convention’s language; second, the interpretation
of article V(1)(d) of the Convention, which applies only to foreign
awards, makes little sense when applied to domestic awards, with
which article 34 is exclusively concerned.191 Subsequently, the altered
language made more sense in article 34 because domestic courts are
presumably bound to apply mandatory domestic procedural law.
In practice, courts have applied article 36(1)(a)(iv) in a restrictive
manner in several scenarios where procedural elements were alleged to
have been violated.192 Before the High Court of Hong Kong,193 a defen-
dant opposed the enforcement of an arbitral award on the ground that
the parties’ agreement was not followed by the tribunal. In particular, the
agreement provided for a CIETAC arbitration seated in Beijing and not
188
P. Fouchard, L’Arbitrage Commercial International (Dalloz, 1965), vol. II, p. 332; P.
Sanders, ‘The New York Convention’ in International Commercial Arbitration
(Martinus Nijhoff, 1960), vol. II, p. 317; P. Schlosser, Das Recht der interantionalen
privaten Schiedsgeritchtsbarkeit (JCB Mohr, 1975), vol. I p. 420; A. J. van den Berg, The
New York Arbitration Convention (Kluwer, 1982), pp. 325–330.
189
UN Doc. A/CN.9/264 (n. 29), art. 34, para. 11; UNCITRAL, Analytical Compilation of
Comments by Governments and International Organizations on the Draft Text of a
Model Law on International Commercial Arbitration, UN Doc. A/CN.9/263 (19 March
1985), art. 36, para. 8.
190
191
UNCITRAL, Draft Articles 37–41 on Recognition and Enforcement of Awards and
Recourse against Awards, UN Doc. A/CN.9/WG.II/WP.42 (25 January 1983), art. 37,
fn. 5.
192
Al Haddad Bros Enterprises Inc. v. M/S ‘Agapi’ and Diakan Love SA, 635 F. Supp. 205;
China Nanhai Oil Joint Service Corp. Shenzen Branch v. Gee Tai Holdings Co. Ltd, High
Court, Supreme Court of Hong Kong, Hong Kong, 13 July 1994, 1992 No. MP 2411.
193
CLOUT Case 76; CLOUT Case 519.

960 a r t i c l e 36: gr o un ds f o r r ef using rec ognition
in Shenzhen as had taken place. The court held that the defendant’s
participation in the proceedings led to a waiver of its right to bring
jurisdictional objections at that stage, thus denying the application. The
court also observed that the agreement was essentially respected because
the arbitration proceedings had been conducted by three CIETAC arbi-
trators under the CIETAC rules.194
Furthermore, the Higher Regional Court of Bremen195 stated that
the arbitral tribunal’s denial of a motion to take evidence could not
constitute a violation of the right to present one’s case and therefore
could not be treated as a ground for refusing enforcement under
article 36(1)(a)(iv). However, it did conclude that it could constitute
a denial of the right to be heard under the same provision if it was
not possible to determine whether the evidence could have caused
the case to be decided differently. That, however, was not the case
here. The court in the end thus concluded that the lack of an oral
hearing did not constitute a violation of the Model Law provision in
and by itself.
The Queen’s Bench in Alberta, Canada,196 offers one example where
the award was set aside. In this case, the applicants alleged that the
appointment of the arbitral tribunal did not follow the arbitration
agreement. The issue at hand concerned the death of one of the party-
appointed arbitrators. The deceased member was replaced by a self-
proclaimed successor of the latter’s legal practice and together with the
other party-appointed arbitrator proceeded to appoint the third arbi-
trator and eventually render an award.
The question at hand was whether the award had been ‘improperly
procured’ under the Canadian Arbitration Act provisions that mirrored
articles 34(2)(a)(iv) and 36(1)(a)(iv) of the Model Law. The court noted
that the two party-appointed arbitrators delegated their adjudicative
powers to the third one in light of being unable to agree on several issues.
The court found, however, that only the parties could have varied the
arbitration agreement, but not the arbitrators themselves without explicit
authority, which had not been given in this case. In light of these findings,
the court held that the first two arbitrators did not comply with the
appointment requirements set out in the arbitration agreement and
rejected the award.
194
Ibid.
195
CLOUT Case 371.
196
CLOUT Case 628.

2.6 Paragraph 1(a)(v)

2.6.1 The Effects of Not-Yet-Binding Arbitral Awards
Article 36(1)(a)(v) allows national courts to refuse the recognition or
enforcement of an award if the party opposing enforcement establishes
that the award (1) has not yet become binding on the parties or (2) has
been set aside or suspended. Article 36(1)(a)(iv) was added to address the
issue of double exequatur,197 which was prevalent under the 1927 Geneva
Convention.
As briefly mentioned above, article 36(1)(a)(v) does not define what
constitutes a binding arbitral award under the Model Law. Although the
definition was considered on a few occasions during the drafting of the
text, it was never resolved. While working on article 35 of the Model Law
on recognition and enforcement, the UNCITRAL Secretariat proposed
that the provision indicate the exact point of time from which an award is
recognised as binding.198 The suggested time was the date of the award;
however, the Working Group concluded that such an express statement
was unnecessary.199
On another occasion, this time at the Commission stage, it was pro-
posed that article 31 of the Model Law, which narrows the form and
contents of an award, should indicate the date from which the award
becomes binding under the Model Law.200 Three dates were the main
focus of the discussion: (1) the date on which the award was made; (2) the
date of the award’s receipt by or notification to the party against whom it
was being invoked; and (3) the date on which the application for setting
aside the award has expired.201 However, it was decided that because it
was not possible to satisfy all the points of view, the Commission would
keep the text as it stood and make no amendments.202 Accordingly, there
is an ambiguity in relation to the starting date of the award’s binding
effect. Therefore, it falls upon State courts to decide what date is the most
197
Double exequatur requires that before a Convention award could be enforced in any
other jurisdiction, it must be shown that it has first been rendered enforceable in the
jurisdiction whose law governs the arbitration.
198
UNCITRAL, Composite Draft Text of a Model Law on International Commercial
Arbitration: Some Comments and Suggestions for Consideration, UN Doc. A/CN.9/
WG.II/WP.50 (1984), para. 28, in (1984) XV UNCITRAL YB 230.
199
Work of Its Seventh Session, UN Doc. A/CN.9/246 (6 March 1984), para. 148; UN Doc.
A/CN.9/264 (n. 29), art. 35, para. 4.
200
Summary Record, UN Doc. A/CN.9/SR.328, para. 52.
201
202
Summary Record, UN Doc. A/CN.9/SR.329, para. 24.

appropriate; very likely taking into account the Commission’s delibera-

tions and the three proposed dates above.203
Regarding enforceability, the Working Group considered two alter-
natives in relation to the provision’s application. The first version
involved non-enforcement when ‘the award has not yet become binding
on the parties’, while the second stipulated that the ‘award is still open to
appeal before a higher instance arbitral tribunal’. The first alternative
presents the exact wording used in article V(1)(e) of the Convention,
which is commonly interpreted as meaning ‘still open to ordinary means
of recourse’.204 The second alternative was rejected in favour of the
Convention’s language.
According to another proposal, an award that had been set aside would
be refused recognition or enforcement only if the setting aside had been
based on a reason for which recognition and enforcement could be
refused under the Model Law.205 This idea was drawn from article IX
of the 1961 European Convention on International Commercial
Arbitration, but was eventually deleted by the Working Group because
the restriction expressed therein was not generally acceptable and too
ambitious, leading to potential difficulties.206
In practice, it has often occurred that a party seeks to enforce an award
that has been set aside at the seat of arbitration, leading courts to find
innovative solutions regarding what constitutes a binding award. While
annulled decisions are dealt with below, there are also problematic cases
where the underlying award is in some form of ‘limbo’.
One decision to refuse enforcement on the ground of article 36(1)(a)
(v) was rendered by the Higher Regional Court of Rostock, dealing with
an award that was set aside in Moscow.207 The underlying arbitration
concerned a contract for the repair of a ship. When payment was denied,
the applicant filed an action before the Arbitral Commission for Shipping
Matters in Moscow, which upheld its jurisdiction even though it was not
named in the arbitration agreement, on the ground that there was no
other arbitral commission for shipping law in Moscow. That award was
subsequently annulled and the annulment decision later affirmed by the
Highest Russian Court in Civil Matters. However, the Vice-President of
the Highest Court of the Russian Federation challenged this decision,
203
204
UN Doc. A/CN.9/WG.II/WP.42 (n. 191), 92, fn. 7.
205
Ibid., art. 38, fn. 17.
206
UN Doc. A/CN.9/233 (n. 8), para. 171.
207
CLOUT Case 372.

demanding a reappraisal of the case. While that motion was still pending,
the applicant moved for a declaration of recognition and enforceability of
the award in Germany before the Higher Regional Court of Rostock. By
applying article 1061(1) of the German Civil Procedure Code, which
mirrors article 36(1)(a)(v) of the Model Law, the court held that it was
immaterial that the highest court of the place of arbitration had chal-
lenged the setting aside of the award because the mere motion for a
reappraisal did not suffice to render the award binding again.
In another case, before the High Court of Hong Kong, a defendant to
an ICC award invoked the provisions of article 36(1)(a)(v) to resist
enforcement.208 The key question to be resolved was whether the set-
ting-aside proceedings for the arbitral award in France permitted an
examination on the merits of the case. If not, it was argued, the recourse
or ‘appeal’ could fall outside the scope of article 36(1)(a)(v) of the Model
Law because no valid setting-aside proceeding had been initiated. The
Hong Kong Court held that the French procedure did not permit an
appeal on the merits and consequently found the award to be binding
(and refused the application of the defendant).
In another case, before the Federal Court of Canada, a plaintiff
applied to register both an interim and a final award under article 35(1)
of the Model Law.209 However, within the thirty-day period provided for
by article 33(1)(a) of the Model Law, the first defendant had requested
the arbitral tribunal to correct a computational error in the award. The
court observed that the arbitral tribunal had not yet made its decision or
issued an additional award within the meaning of article 33(3). Finally,
and in spite of the fact that there was no disagreement between the
parties as to the correction to be made to the award and that the latter
related to a minimal amount, the court found that the award had not
yet become binding on the parties within the meaning of article 36(1)(a)(v)
of the Model Law, since the arbitral tribunal had not made its
determination on the request for correction and was still seised of the
matter.210
With regard to awards that have been suspended at the legal seat, another
Canadian court211 held that the fact that an arbitral award had been
suspended by court order at the seat of arbitration had no bearing on the
208
CLOUT Case 530.
209
CLOUT Case 625.
210
Ibid.
211
CLOUT Case 366 (n. 48), reproduced in the ‘2012 Digest of Case Law’ (n. 33),
pp. 49, 182.

court’s discretion whether to refuse enforcement. Additionally, the court

considered that a suspension of the arbitral award by operation of law, i.e.
lapse of time for applying for enforcement at the place of arbitration, could
not be equated with a court-ordered suspension under paragraph 1(a)(v).212
2.6.2
The Effect of the Setting Aside or Suspension
of an Arbitral Award
Where an arbitral award has been set aside (or ‘annulled’ or ‘vacated’) by
the competent court at the legal seat of the arbitration, the enforcement of
the award in the State would not be possible, as such decisions acquire
preclusive effect in that State. However, the party seeking enforcement
may then try to enforce the award in the court of another State where the
unsuccessful party at the arbitration has assets.213 The question is
whether the courts in the State of enforcement can enforce the award,
disregarding the fact that the award has been set aside at the legal seat.
A German court214 held that an award that has been aside at the seat of
arbitration was no longer binding and the enforcement court therefore
had no power to recognise or enforce such arbitral award. According to
the same decision, this would be the case regardless of the possibility that
the decision setting aside the award could be revised in further proceed-
ings, which were pending at the place of arbitration.215
However, in the context of the New York Convention, some States
recognise and enforce an arbitral award that has been annulled at
the place of arbitration. This was the position of the enforcement
courts in the Hilmarton and Chromalloy cases, where arbitral awards
that were already set aside in their countries of origin were
enforced.216
In Re. Chromalloy Aeroservices and the Arab Republic of Egypt,217 an
award that had been set aside in Egypt was enforced by the US District
212
213
Ibid., pp. 46, 182.
214
CLOUT Case 372, Oberlandesgericht Rostock, 28 October 1999, 1 Sch. 3/99.
215
216
See Binder (n. 40), p. 424, para. 8–029. A number of French court decisions confirmed
that an award annulled at the place of arbitration could still be enforced in France, where
the courts applied the ‘more-favorable-right provision’ of art. VII(1) of the Convention
in enforcing a foreign award. See D. Freyer, ‘The Enforcement of Awards Affected by
Judicial Orders of Annulment at the Place of Arbitration’ in Gaillard and di Pietro (n.
71), pp. 768–769. The same question can also be posed with regard to the relevant
application of the Model Law.
217
939 F. Supp. 906 (DC Cir. 1996).

Court for the District of Columbia. The court relied on article VII and not
article V of the Convention to conclude that it must enforce the vacated
Egyptian award because to decide otherwise would violate the public
policy of the United States, which favours the enforcement of binding
arbitration clauses.
In Société Hilmarton Ltd v. Société Omnium de traitement et de
valorisation (OTV),218 a French company (Omnium de Traitement et
de Valorisation – OTV) entrusted an English company (Hilmarton)
with the task of providing advice and coordination for a bid to obtain
and perform a contract for works in Algeria. Hilmarton relied on the
ICC arbitration agreement in order to obtain payment of the remain-
ing balance of its fees. The award rendered in Geneva on 19 August
1988 dismissed this claim. The award was declared enforceable in
France even though it had been set aside in Switzerland. Hilmarton
challenged the decision of the Cour d’appel de Paris which upheld the
enforcement order. The Cour de Cassation affirmed the decision of
the Cour d’appel de Paris and dismissed the action. Pursuant to article
VII of the Convention, it found that the Cour d’appel de Paris rightly
held that OTV could avail itself of French rules pertaining to the
recognition and enforcement of foreign awards in international arbi-
tration and notably article 1502 of the Code of Civil Procedure, which
does not include the same ground for refusal of recognition and
enforcement of awards as set forth in article V(1)(e) of the
Convention. The Cour de Cassation noted that the Swiss award was
an international award that was not integrated into the legal system of
that State, such that it remained in existence despite being set aside in
Switzerland. It is noteworthy that the French courts’ approach to
enforcing an arbitral award that has been set aside at the seat is
based on French domestic law, which provides for more limited
grounds for the refusal of the enforcement of awards than the New
York Convention.
Similarly, in Robert E. Schreter v. Gasmac Inc., a Canadian court stated
in obiter dicta that it had the discretion to enforce awards set aside at the
arbitral seat.219
In summary, while article 34 of the Model Law grants the relevant
courts of the seat of arbitration the jurisdiction to set aside the arbitral
218
Société Hilmarton Ltd v. Société Omnium de traitement et de valorisation (OTV) (1995)
XX YB Com. Arb. 663.
219
CLOUT Case 30 (n. 48), para. 29.

966 a r t i c l e 36 : g r o u n d s f o r r e f u s i n g r e c o g n i t i o n
award,220 the courts of the place of enforcement in article 36 look to their

laws to determine enforceability or, otherwise, of the relevant awards. In
addition, the permissive language of article 36 means that an award that
has been suspended at the seat of arbitration may conceivably still be
enforced by the courts of the place of enforcement.
2.7 Paragraph 1(b)

2.7.1 If the Court Finds That …
Paragraph 1(b) contains two further grounds for refusing enforcement of
an award: arbitrability and public policy. Both grounds are to be inter-
preted with reference to the laws of the specific enforcement State.
Upholding the Model Law’s pro-enforcement bias, national courts have
rarely applied the exceptions under paragraph 1(b).
2.8 Paragraph 1(b)(i)

2.8.1 The Subject Matter of the Dispute Is Not Capable
of Settlement by Arbitration under the Law of This State
2.8.1.1 Arbitrability The issue of arbitrability can arise either at the
beginning of an arbitration or after an award is issued where a party tries
to resist recognition or enforcement. At both stages, the fundamental
question is whether the type of dispute was capable of being settled by
arbitration.
When discussing the topic of arbitrability, there are two sub-concepts:
subjective and objective arbitrability. Subjective arbitrability is determin-
ing whether the parties agreed to refer a certain type of dispute to
arbitration. Objective arbitrability, on the other hand, requires determin-
ing whether the parties could refer a certain type of dispute to arbitration
under the applicable law. Objective arbitrability takes precedence over
subjective arbitrability. As a result, the parties’ agreement to refer a
dispute to arbitration will be disregarded if the applicable law forbids
that type of dispute from being resolved by arbitration.
Arbitrability under paragraph 1(b)(i) of the Model Law refers to
objective arbitrability. On that basis, the question to be asked is as
follows: was the dispute capable of being settled by arbitration under
220
See CLOUT Case 374, Oberlandesgericht Düsseldorf, 23 March 2000, 6 Sch. 2/99 (also
reproduced under CLOUT Case 408). Cf. PT Garuda Indonesia v. Birgen Air, Court of
Appeal, Singapore, 6 March 2002, (2002) 1 SLR 393.

the law of the forum where enforcement is sought? The sole focus on the
law of the forum of enforcement is reflected in the text of article 36, which
refers to ‘the law of this State’.221 While the issue of arbitrability is
determined on a State-by-State basis, States often exclude disputes that
involve a ‘public interest element’, or put another way, disputes that
involve public rights or the rights of third parties, even if the relevant
legislation does not specify this in express fashion.222
While the section does not detail what types of disputes may be
resolved by arbitration, Singaporean courts have held that disputes
relating to public interests are not arbitrable.223
Similarly, in another case, a Singaporean court referred to a report
published by the Review of Arbitration Act Committee, which outlined
what types of disputes were arbitrable.224 The report also distinguished
disputes that involved a ‘public interest’ element.225
Singapore is not the only Model Law State that has not defined the
scope of public policy in its arbitration legislation. Section 8(7)(a) of
Australia’s International Arbitration Act 1974, for example, has followed
the same approach.
For those Model Law States that do not define the scope of arbitrability
in their arbitration legislation, it will therefore be necessary to look
beyond the legislation and consider how national courts have interpreted
and defined the issue.226
2.9 Paragraph 1(b)(ii)

2.9.1
The Recognition or Enforcement of the Award Would
Be Contrary to the Public Policy of This State
2.9.1.1 Public Policy The public policy exception under article 36 of
the Model Law is often discussed, but in reality, rarely successfully
invoked. As already noted, article 36 of the Model Law is ‘closely mod-
elled’ on the equivalent provision under the Convention.227 Other
221
See e.g. Robert E. Schreter (n. 48).
222
Born (n. 75), p. 3696.
223
Aloe Vera of America, Inc. v. Asianic Food Pte Ltd [2006] SGHC 78, para. 72.
224
Larsen Oil and Gas Pty Ltd v. Petroprod (in official liquidation in the Cayman Islands and
in compulsory liquidation in Singapore) [2011] SGCA 21.
225
Review of Arbitration Act Committee, Review of Arbitration Laws, LRRD No. 3/2001, s.
2.37.17.
226
See generally I. Bantekas, ‘The Foundations of Arbitrability in International Commercial
Arbitration’ (2008) 27 Australian YBIL 193.
227
Holtzmann and Neuhaus (n. 2), p. 1055; see also Born (n. 75), p. 3646.

authors have also noted that the equivalent provisions of the

Convention were ‘substantially reproduced’ in article 36 of the Model
Law.228 Indeed, the concept of public policy under the Model Law and
the Convention are often discussed interchangeably. As already
noted,229 one Canadian court concluded that authorities agree that
grounds for refusal of enforcement of awards pursuant to article V of
the New York Convention must be construed narrowly and that those
authorities are applicable to the corresponding provisions in articles 34
and 36 of the Model Law.
Article 36 of the Model Law does not define the concept of ‘public
policy’. Instead, the Model Law explicitly reserves the interpretation of
public policy to national courts. Further, the inclusion of ‘this State’ in
subparagraph 1(b)(ii) precludes a purely international conception of
public policy. Instead, it is to be determined from the relevant State’s
perspective. Nevertheless, and as noted in Hebei Import & Export Corp. v.
Polytek Engineering Co. Ltd, States often share a similar approach to this
notion,230 and adopt a narrow interpretation.231
Some States have adopted and incorporated the reference to public
policy under article 36 of the Model Law as it is into their arbitration laws.
Singapore has chosen not to define the scope of public policy in its
arbitration legislation, as has Australia. Other States have expressly stated
what is encompassed within their public policy remit.232
That being said, there are from time to time aids to interpretation: for
example, section 7A of Australia’s International Arbitration Act 1974
states that enforcement would be contrary to public policy if ‘the making
of the award was induced or affected by fraud or corruption’ or if ‘a
breach of the rules of natural justice occurred in connection with the
making of the award’. Similarly, article 36(3)(a) of Schedule 1 of the New
Zealand Arbitration Act 1996 specifies that an award contravenes public
policy if the ‘making of the award was induced or affected by fraud or
corruption’.
Despite being left to States to define, national courts have nevertheless
generally interpreted the concept of public policy in a narrow sense. This
has resulted in what one commentator described as a ‘notable
228
S. Greenberg, C. Lee and J. Weeramantry, International Commercial Arbitration: An
Asia-Pacific Perspective (Cambridge University Press, 2011), p. 450.
229
See n. 9.
230
[1999] 2 HKC 205, 41.
231
Traxys Europ SA v. Balaji Coke Industry Pvt Ltd (No. 2) [2012] FCA 276, para. 105.
232
See UAE Civil Code, arts 3, 27.

consistency’ in State court decisions on the issue.233 The high threshold

has been explained in numerous judgments. For example, in one
American case, the court held that the public policy exception should
only apply ‘where enforcement would violate the forum state’s most basic
notions of morality and justice’.234 This emphasis on fundamental prin-
ciples was also adopted by the Court of Appeal in Singapore.235
The above-mentioned case of Traxys Europ SA v. Balaji Coke Industry
Pvt Ltd (No. 2) also referred to fundamental questions of morality.236
Similarly, the ‘2012 Digest of Case Law’ explains that the public policy
exception in article 36:
… should be applied only if the arbitral award fundamentally offended the
most basic and explicit principles of justice and fairness in the enforce-
ment state, or evidences intolerable ignorance or corruption on part of the
In referring to such fundamental principles, some courts have labelled

those principles as ‘international’ public policy. Critically though,
because it is defined on a State-by-State basis, it should not be confused
with transnational public policy (public policy ‘which is common to
many States’238).239 For example, a court in Luxembourg described this
concept as ‘the public policy of the State where the arbitral award is
invoked is thus not the internal public policy of that country, but its
international public policy, which is defined as being all that affects the
essential principles of the administration of justice or the performance of
contractual obligations’.240
The concept of public policy under article 36 of the Model Law can
refer to substantive or procedural grounds, as acknowledged in an
UNCITRAL Commission Report.241
233
P. Mayer and A. Sheppard, ‘Final ILA Report on Public Policy as a Bar to Enforcement of
International Arbitral Awards Arbitration International’ (2003) 19 Arb. Intl 254.
234
Parsons & Whittemore Overseas Co., Inc. v. Société Générale d’Industrie du Papier
RAKTA and Bank of America, 508 F.2d 969 (2nd Cir. 1974).
235
PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA [2007] 1 SLR 597, para. 59.
236
[2012] FCA 276, para. 105.
237
238
Mayer and Sheppard (n. 234), p. 251.
239
E. Gaillard and J. Savage, Fouchard, Gaillard, Goldman on International Commercial
Arbitration (Kluwer, 1999), pp. 996–997.
240
Luxembourg Cour Superieure de Justice, Judgment of 24 November 1993, (1996) XXI
YB Com. Arb. 617, 624.
241
UN Doc. A/40/17 (n. 16), para. 247; see also PT Asuransi Jasa Indonesia (n. 235),
para. 59.

The exceptional nature of the public policy exception is further reflected

by the paucity of occasions where the exception has been upheld. National
courts have consistently interpreted this exception narrowly.
2.9.1.2 Substantive Grounds Unsurprisingly, issues related to cor-

ruption have been found to contravene the fundamental morality of a
State. A fairly common example can be found in a case decided by the
Supreme Court of Thailand which refused to enforce an award on public
policy grounds, finding that the underlying construction contract was
tainted by bribery.242
Similarly, courts have also refused to enforce awards relating to illegal
contracts. There are several relevant examples in relation to public policy
under the Convention. An English court refused to enforce an award
because the underlying contract was procured by corruption.243
Similarly, another English court also refused to enforce an arbitration
stemming from a sales contract that involved the illegal smuggling of
carpets out of Iran. The court held that it was ‘concerned to preserve the
integrity of its process, and to that it is not abused. The parties cannot
override that concern by private agreement.’244
Courts in Austria,245 Kenya246 and Russia247 have also refused to
enforce awards on public policy grounds (under the equivalent provision
of the Convention) because they related to illegal contracts. In each of
those cases, the contracts were deemed to be illegal under the law of the
enforcement State.
Any allegation that there has been a breach of public policy must be
raised at the appropriate time and properly established. For example, the
High Court of Hong Kong dismissed allegations of fraud made by the
respondent in an attempt to resist enforcement of an award.248 The court
242
Supreme Court Thailand, Case No. 7277/2549.
243
Lemenda Trading Co. Ltd v. African Middle East Petroleum [1998] 1 QB 448.
244
Soleimany v. Soleimany [1999] QB 785, 800.
245
Not Indicated v. Not Indicated, Oberster Gerichtshof (Supreme Court of Austria),
Judgment of 11 May 1983. See commentary of the case by P. Sanders, (1985) X YB
Com. Arb. 421.
246
Glencore Grain Ltd v. TSS Grain Millers Ltd, High Court Mombasa, Civil Suit No. 388 of
2000, 5 July 2002. See (2009) XXXIV YB Com. Arb. 666.
247
Yukos Capital SARL (Luxembourg) v. OAO Tomskneft VNK (Russian Federation),
Federal Arbitrazh Court, District of Tomsk, A67-1438/2010, 7 July 2010, (2010)
XXXV YB Com. Arb. 435.
248
Sam Ming City Forestry Economic Co. v. Liu Yuk Lin and Others, High Court of Hong
Kong Special Administrative Region, Court of First Instance (Burrell J.) (6 July 2000),
unrep.

concluded that the allegations were merely a tactical ploy and that such
claims should in any event have been raised during the arbitral
proceedings.
Similarly, in another Hong Kong case, the respondent contested
enforcement by claiming that enforcing the award would violate Hong
Kong’s public policy because there was an oral agreement between the
parties that overrode any award rendered by the arbitral tribunal.249 The
court rejected the respondent’s claim. Specifically, the court noted that
the respondent did not refer to this agreement during the arbitration and
had never put the agreement in writing or raised the alleged breach of
public policy before the court at the place of arbitration. The court
concluded that there was no breach of public policy because the respon-
dent had failed to establish that enforcing the award would violate any
basic principle of justice.
One situation that is not considered to constitute a breach of public
policy is an incorrect interpretation of the relevant law. As a result,
irrespective of whether a tribunal misinterprets the applicable law
(including the law of the enforcement State) or arrives at a different
verdict from the court of the enforcement State, those grounds will be
insufficient for refusing enforcement on the ground of public policy. For
example, an Ontario court upheld an award even though that award
included a 1.5 per cent monthly interest rate, which was above the
interest rate allowed under Canada’s Interest Act.250 Instead, the key
question, as noted by the court, was whether enforcing the award would
be contrary to the fundamental morality of the State.251 The court con-
cluded that although the awarded interest rate was technically illegal, its
illegality did not constitute a breach of that morality.
Similarly, an allegedly unlawful liquidated interest rate awarded fol-
lowing a dispute stemming from a sales contract was not considered to be
a breach of public policy by a Dresden court.252 The court held that the
threshold for establishing a breach of public policy was much higher. The
issue of liquidated damages clauses was also raised before an Ontario
court.253 The arbitration was seated in New York and related to the
249
Shanghai City Foundation Works Corp. v. Sun Link Ltd [2001] 3 HKC 521.
250
Arcata Graphics Buffalo Ltd v. Movie (Magazine) Corp., RE 2351/93, 12 March 1993
(unpublished).
251
CLOUT Case 37.
252
Oberlandesgericht Dresden, 13 January 1999, 11 Sch. 6/98.
253
ACTIV Financial Systems, Inc. v. Orbixa Management Services, Inc. [2011] OJ 5988 (8
December 2011).

interpretation of a liquidated damages clause in a licensing agreement.

The respondent sought to contest the subsequent enforcement in Canada
on the basis that ‘unreasonable’ liquidated damages clauses were illegal
under New York State law and that enforcement of the award would
violate Ontario’s public policy.254 The court noted that New York had a
similar conception of public policy to Ontario and that the award had
already been recognised and enforced in New York. The court therefore
dismissed the request.
Finally, in another Canadian case, the Ontario court dismissed the
respondent’s claim that acceleration of royalty payments following a
breach of contract was contrary to the public policy of Ontario.255
Instead, the court held that there had been no misconduct and that
such payments did not reach the necessary threshold of constituting a
breach of Ontario’s public policy. As a result, there was no need to re-
evaluate the tribunal’s decision.
2.9.1.3 Procedural Grounds The public policy exception is perhaps

more commonly raised in relation to alleged procedural problems (some-
times it must be said as a ‘last ditch’ attempt to derail recognition and
enforcement). No doubt, a procedural defect must be of such quality that
its violation is tantamount to (or in fact is the same as) the breach of a
substantive public policy rule.256 Smart Systems Technology Inc. v.
Domotique Secant Inc.257 was one of the rare instances where a court
refused to enforce an award on procedurally related public policy
grounds. The parties’ contract provided that any dispute would be settled
under the Model Law. A dispute arose between the parties and an award
was rendered in Smart Systems Technology’s favour in arbitral proceed-
ings in New Mexico in the United States. The Court of Appeal of Quebec
refused to enforce the award on the basis that the tribunal’s failure to
provide reasons for an award was a breach of public policy, as it was
contrary to the parties’ agreement.258
254
Ibid., para. 14.
255
Robert E. Schreter (n. 48), para. 29.
256
See Intl Bechtel Co. Ltd v. Department of Civil Aviation of the Government of Dubai,
Dubai Court of Cassation, Case No. 503/2003, judgment (15 May 2004). This same result
was later reaffirmed by the Dubai Cassation Court in Case No. 322/2004, judgment (11
April 2005). There, it refused to enforce a foreign arbitral award rendered in favour of the
claimant on the ground that the arbitrator had failed to swear witnesses in the proceed-
ings in the manner prescribed by UAE law for court hearings.
257
See n. 57.
258
Ibid., para. 17; see also (2008) XXXIII YB Com. Arb. 470.

The issue of providing reasons was also raised before a Hamburg

court.259 However (highlighting the State-by-State approach of interpret-
ing article 36 of the Model Law), the court reached a different result.
Specifically, the respondent contested enforcement by claiming that the
arbitrator had not considered its request for set-off in the final award.
The court disagreed and noted that even if the issue was not directly
addressed in detail, the arbitrator had nevertheless addressed it in some
fashion. In any event, there had been no breach of public policy because
such a breach would require ‘errors that affected the basic principles of
public and economical life’.260
In another German case, the court enforced an award from the
Istanbul Chamber of Commerce relating to a Turkish shareholder dis-
pute.261 It was alleged that the tribunal had breached public policy by
rendering an award without holding an oral hearing. The court followed
the pro-enforcement bias of the Model Law by nevertheless enforcing the
award, holding that it could not conclude whether the presentation of
additional arguments from the parties would have affected the tribunal’s
original decision.
Hebei Import & Export Corp. v. Polytek Engineering Co. Ltd related to
an arbitration regarding an equipment sales contract.262 After the tribu-
nal was formed, the respondent requested that the tribunal appoint
independent experts to examine the equipment manufactured by the
respondent for the claimant. The experts were appointed by the president
of the tribunal and the experts’ inspection was carried out without the
respondent being present or notified. The experts made recommenda-
tions in the claimant’s favour. An award was rendered in the claimant’s
favour and the claimant then sought to enforce the award in Hong Kong.
The respondent successfully argued before the Hong Kong High Court
that it had been denied a chance to present its case and respond to the
experts’ findings, and that the communications between the president of
the tribunal and equipment technicians present at the inspection con-
stituted a breach of natural justice. The court held that these issues
constituted a breach of public policy under section 44(3) of the
Arbitration Ordinance and refused to enforce the award.263 However,
this outcome was overturned on appeal by the Hong Kong Court of Final
259
Hanseatisches Oberlandesgericht Hamburg, 4 November 1998, 6 Sch. 11/98.
260
CLOUT Case 456.
261
Hanseatisches Oberlandesgericht Bremen, 30 September 1999, (2) Sch. 4/99.
262
Civil Appeal No. 116 of 1997.
263
Ibid., 27.

Appeal.264 The court stressed that the public policy exception must be
interpreted more narrowly and the relevant threshold was whether a
decision ‘would violate the most basic notions of morality and justice’.265
The court noted that while the respondent was not present at the experts’
examinations, it was nevertheless provided with a copy of the expert
report and at ‘no stage did the respondent indicate that it wished to
contest any part of the report’, nor did the respondent request a re-
examination by the experts.266 It was also noted that the respondent
did not challenge the president in relation to his communications with
the technicians who were present during the inspection. Instead, it
‘simply proceeded with the arbitration as if nothing untoward had
happened’.267 With those facts in mind, the court concluded that there
had not been any breach of public policy and the award was enforced.
A Canadian case also related to the issue of a party presenting its
case.268 A Chinese company sought to enforce an award from the
Shanghai International Arbitration Commission against a Canadian
company in Canada. The Canadian company sought to resist enforce-
ment on the basis that the tribunal did not address its ‘double recovery
defence’ argument in the final award, and that this constituted a breach of
public policy. However, the Canadian company’s request was dismissed
on the basis that the ‘double recovery defence’ argument was addressed
by the tribunal, even if not directly or in detail.
In another Canadian case, a claimant sought to enforce an award
before a Canadian court.269 The respondent claimed that there had
been a breach of public policy and objected on the basis that it was not
a party to the arbitration agreement and that the arbitral proceedings
were allegedly unfair (as the hearing was scheduled on a day when one of
the respondent’s experts and counsel were unable to attend). The court
refused to address the claimant’s first claim, deeming this to have already
been addressed by the tribunal. In any event, the tribunal held that the
claimant could have raised further objections before a court at the place
of arbitration. The court also dismissed the respondent’s second argu-
ment, concluding that the expert and counsel’s presence at the hearing
264
[1999] 2 HKC 205.
265
Ibid., 209.
266
Ibid., 42.
267
Ibid., 43.
268
Depo Traffic (n. 51) (18 February 2015).
269
CE Intl Resources (n. 107).

was unnecessary. The court therefore concluded that there had been no
breach of public policy.
Another relevant case related to a dispute in Zimbabwe that involved
two arbitrations.270 The first included two parties and an award was
rendered in favour of one of them. However, acknowledging that a
third party had been involved in the underlying dispute (though not a
party to the first arbitration), the two parties from the first arbitration
waived their rights in relation to the first arbitration and referred the
dispute to a second arbitration involving all three parties. After the
second arbitration was decided against the winner of the first arbitration,
the winner of the first arbitration contested the second award, claiming
that the dispute had already been settled courtesy of the first award. That
party further claimed that to uphold the second award would be contrary
to Zimbabwe’s public policy. The Zimbabwean court disagreed and held
that the winner of the first arbitration had waived its rights by agreeing to
submit the dispute to a second arbitration. On that basis, there had been
no breach of public policy.
It is therefore apparent that the public policy exception has been
interpreted narrowly by national courts and very rarely upheld. Efforts
by parties to raise the public policy exception in relation to alleged
procedural problems during the course of arbitrations have been consis-
tently rejected. This approach is consistent with the Model Law’s pro-
enforcement bias.
3. Paragraph 2
Recognising that there could be simultaneous annulment and enforce-
ment proceedings, the Model Law allows national courts to adjourn
decisions on recognition and enforcement. The discretion granted to
national courts allows them to deal with such situations on a case-by-
case basis.
3.1 Adjournment
Article 36(2) of the Model Law allows a court to adjourn its decision on
recognition and enforcement if the award is simultaneously subject to an
application for setting aside. This provision reflects the broad discretion
granted to courts under the Model Law. Courts are not compelled and
270
Dajen (Pvt.) Ltd v. Durco (Pvt.) Ltd, SC 141/98 (7 September 1998).

976 article 36: ground s f or refusing recognition
can choose whether to (1) adjourn a decision on the recognition and

enforcement of an award and (2) whether to order a party to provide
‘appropriate security’. For example, enforcement proceedings were
adjourned in a Canadian case, after the Ontario court held that it
would be in the best interests of both parties if enforcement proceedings
were adjourned (pending the resolution of parallel proceedings to deter-
mine whether to set aside the award by the courts at the place of arbitra-
tion).271 The court required the respondent to provide security.
271
CLOUT Case 366 (n. 48); see also Powerex Corp. v. Alcan Inc., British Columbia Supreme
Court, Canada (10 July 2003), [2003] British Columbia Judgment No. 1674.

INDEX
AAA (American Arbitration advisability, 188, 204–205

Association), 559, 594, 641, agreed terms, awards on, 772, 776, 778,
694, 767 780, 805, 822, 844, 908–909
absolute authority, 619 agreement(s)
abuses, 74, 76, 80, 84–85, 87, 91, 95, 296, absence of, 107, 665
385, 386, 719, 722–723 arbitral, 146, 151, 154–155, 176, 195,
of process, 726–727 198, 450, 475, 479, 609,
acceptance, statements of, 210, 215 634, 645
acquiescence, 46–47 arbitration see arbitration,
actions, scope of term, 144–145 agreements.
ad hoc arbitrations, 28–30, 104, 143, binding, 117, 518, 572
151, 242, 545, 599, 752, 829 confidentiality, 560, 812
ad hoc rules, 192, 601 express, 180, 612–613, 619–620,
additional awards, 753, 809, 827, 832, 622, 624
835, 837, 843, 845–850, implicit, 198, 888
853–855, 856, 896, 963 implied, 555–556
address, last-known, 67–68, 828, 949 in writing, 113, 129–131, 134, 139,
addressees, 50, 53, 60–61, 63, 65–66, 802, 971
68–69, 390, 605, 828, 855 forms of, 131–134
addresses incorporation by conduct or
effective, 64, 67 common usage, 132–134
mailing, 50, 53–54, 61–62, 65–66, 67, initial, 234, 615, 884
605, 828, 949 invalidity, 479–480, 870–872
adequacy of damages, 503, 507 mutual, 320, 639, 646
adequate remedy, 506–507 oral, 48, 131–132, 139, 774, 923,
adequate security, 317, 413, 420 971
adjournment, 535, 933, 975 party, 178, 182, 285, 385, 556, 588
adjudication, private, 118, 138, 223, pre-dispute, 122, 574
227, 876 private, 828, 970
adjudicators, 215–217, 673, 794 settlement, 768, 773–776, 780–782,
adjudicatory powers, 127, 897 784, 787, 790–791, 796,
administrative functions, 105 799–800, 803, 908
administrative secretaries, 213–214 submission, 121, 124, 181–182,
admissibility, 79, 199, 308, 524, 531, 184–186, 526, 618, 621–623,
539–542, 544–546, 557, 626, 812, 816, 835, 881
558–560, 561, 664, 723 to arbitrate, 34–35, 116, 121–122,
of evidence, 530, 557, 560, 562 124–125, 128–131, 341–342,
of pre-contractual negotiations, 559 572, 575–577, 866–868, 870,
adverse inferences, 468, 696, 713 907–908, 921–923
977

978 in de x
agreement(s) (cont.) application
valid, 33, 133–134, 866, 871, 880, 882, scope of, 1–2, 4, 24, 29, 127, 139, 174,
906, 908, 923, 954 326, 670, 765, 871, 899
written, 115, 129, 131–132, 135, territorial, 11–12
139–140, 555 applications
aids, 12, 40–41, 46, 84, 168, enforcement, 626, 917, 922, 952
175–176, 738 ex parte, 376, 396, 730
of interpretation, 39–41, 46, 736 for interim measures, 173, 176, 353,
Alberta, 559–560, 725, 960 357, 372, 408, 500, 510–511,
allocation of costs, 783, 843 518–520, 609
alternative dispute resolution, 6, for setting aside, 83, 305, 312, 465,
120, 801 702, 704–705, 708, 717,
ambiguity, 48, 118, 155, 214, 256, 858–898
307–308, 310, 354, 369, 491, interim injunction, 356, 366
495, 545 applied uniformity, 43–45
amendments, 12–13, 102–103, 173, appointing parties, 216, 270
406–407, 498–501, 515–517, appointment
549, 633–634, 651–654, direct, 201, 234
685–686, 765, 923–924 functions, 109, 111, 278
amiable compositeur, 732, 750, 754, 756 of arbitrators, 54, 56, 97, 99–100,
amiable composition, 754–755 103–107, 110, 184–205,
Analytical Commentary, 53, 163, 283, 289, 649
575, 633, 653, 658, 683, 763 considerations to be taken into
annulment, 291, 310, 313, 578, account, 203–204
580–582, 861–862, 865, 867, decision of court/specified
871, 873, 894, 897–898 authority not subject to
actions, 307, 570, 586, 589 appeal, 202–203
grounds for, 860, 861, 864–865, 879 default procedure in multi-party
anticipatory relief, 339–340 arbitrations, 201
appeal, 53–55, 79–80, 98, 101–102, procedures, 97, 105, 192–194
202–203, 252–255, 305–306, specified authority to make,
308–309, 311–312, 487, 200–201
554–555, 952 of substitute arbitrators, 291
appellate courts, 487, 662 original, 274, 283, 289
appellate review, 203, 306 procedures, 97, 103–105, 187–189,
applicability, 23, 34, 469, 561, 570, 574, 191–192, 194–197, 198–201,
580, 725, 730, 735, 795, 801 202–203
applicable law, 32–33, 475, 479, 734, process, 103, 192, 197,
737, 750, 789, 794, 867, 938, 201
940–943, 966 appropriate delay, 652–653
applicable lex arbitri, 224, 912 appropriate security, 315, 318, 412, 420,
applicable lex fori, 325, 329, 338 435, 453, 460, 468–469, 472,
applicable substantive law, 32, 122, 287, 483–484, 928, 976
734–735, 754 appropriate stage, 535, 655, 657,
applicants, 355–358, 361–362, 378–380, 662, 664
426–427, 432–433, 440–441, appropriateness, 3, 324, 326, 418, 510,
445–447, 502–509, 517–521, 512, 588–589, 662, 665, 898
609–610, 798, 923–926 criterion, 412, 589, 659

in de x 979
hearings, 664 arbitral procedure, 76, 524, 537,
test, 325, 417 547–552, 667, 668, 679, 884,
arbitrability, 5, 22, 126, 157, 200, 885, 888, 889–890, 957–958
303–304, 305, 491, 603, 866, international, 90, 549, 592
891–892, 966, 967 arbitral proceedings, 72–76, 141–143,
objective, 966 303–305, 516–519, 524–528,
scope, 892, 967 589–607, 613–616, 648–652,
subjective, 966 720–724, 831–835, 842–846,
arbitral agreements, 146, 151, 154–155, 872–875
176, 195, 198, 450, 475, 609, autonomy, 158–159
634, 645, 718 commencement, 51–52, 69, 145, 516,
invalidity, 479–480 591–594, 596–599, 600–601,
arbitral awards, 106–107, 113–114, 603, 606–607, 609–610,
772–774, 797–800, 801–805, 810, 812
810–813, 856–860, 862–865, expediency, 98, 102
903–905, 933–939, 958–961, international, 617, 645, 740
963–965 scope, 615–616
definition, 903–911 subsequent, 145, 812
domestic, 863, 893 support of, 165, 170, 443, 729
enforcement, 100, 465, 487, 496, 581 arbitral process, 83–87, 90–92,
foreign, 6, 455, 495–496, 787, 158–159, 168–169, 242–243,
939, 958 250–251, 259, 322–323,
form, 790–791 334–336, 718–719, 727,
interim, 492, 498 828–829
arbitral clauses, 113, 146, 149, 151, arbitral rules, 258, 386, 584, 594, 599,
174 631, 647, 651, 654, 944
arbitral decisions, 302, 305, 308, 310, arbitral seats, 238, 576, 940, 946, 965
312–313, 462–464, 473, 904, arbitral statutes, 41, 45, 59, 183, 619,
905, 911, 916, 918 737, 740, 818
nature, 903–905 arbitral tribunal, foreign, 720,
arbitral disputes, 62, 197, 362, 367 728
arbitral institutions, 77–78, 125, 128, arbitral tribunals, 167–175, 292–303,
143, 150–151, 201–202, 213, 388–412, 417–436, 447–464,
215, 242, 260, 621–622, 890 471–478, 480–487, 537–546,
permanent, 25, 30, 239, 593 640–657, 666–702, 716–728,
rules, 77–78, 260, 687 758–772
arbitral interim measures, 315, 317, competence to rule on jurisdiction,
319, 345, 355, 369, 292–313
448–449, 483 definition and interpretation, 30
arbitral interim relief, 320–322, discretion, 415–416
324–325, 335 liability, 451–452
and EU law, 340–342 power, 301, 314, 348–349, 385, 399
end of prohibition, 320–322 powers, 301, 314, 348–349, 385,
arbitral jurisdiction, 75, 142–143, 397–399, 436, 541, 557, 656
199–200, 293–294, 296–298, arbitration, 10–18, 28–36, 115–121,
301–303, 304, 312, 321–322, 513–519, 545–552, 565–580,
324, 328, 333 581–593, 599–605, 780–784,
arbitral practice, 400, 531, 574, 807 869–878, 885–889, 951–956

980 in de x
arbitration (cont.) foreign, 174–176, 512–516, 730
ad hoc, 28–30, 104, 143, 151, 242, ICC, 149, 183–184, 230, 259, 397,
545, 599, 752, 829 409–410, 501, 572, 710, 767,
agreement to arbitrate, 34–35, 116, 789, 795–796
121–122, 124–125, 128–131, institutional, 149, 242, 559, 593,
341–342, 572, 575–577, 599, 829
866–868, 870, 907–908, interim measures in aid of, 12,
921–923 384, 513
agreements, 12–18, 19–21, 71–74, international see international
110–140, 144–152, 157–162, arbitration.
298–305, 781–782, 866–871, laws, 11–12, 18, 23, 45, 102, 151, 171,
880–883, 938–949, 954–957 207, 382, 394, 464–465, 647
and interim measures by court, multi-party, 201–202,
160–177 248
and substantive claims before parties to, 12, 55, 97, 139–142,
courts, 141–159 144–145, 151, 154, 174, 300,
definition and form, 112–140 348, 635–636, 642
existence, 116–121 place of, 1, 10–11, 174, 565–590,
inoperable and ineffective, 805–806, 824–826, 932–933,
150–153 936–937, 953, 958, 963–964,
international, 175, 374 974–976
null and void, 148–149 procedure see arbitral procedure.
oral, 114, 132, 139–140, proceedings, 11–13, 60, 79, 81, 294,
924 516–518, 521, 727, 772–773,
post-dispute, 116, 121, 780, 788–789, 947–948
122 process, 70, 85, 372, 492, 724
pre-dispute, 121–122 requests for, 548–549, 594–596,
range of disputes, 126–129 600–603, 604–606, 628,
types of instruments containing, 641, 796
122–126 rules, 18, 33–34, 191–193, 195–196,
validity, 113, 117 221–222, 324, 540, 547–550,
without provisions on arbitral 593–595, 735–736, 767–768,
procedure, 551 886–887
clauses, 60, 112, 118, 121–130, seat of, 99, 278, 566, 570–580, 582,
135–139, 145–146, 151–152, 585–586, 863, 889, 897,
300–302, 605, 609–612, 903–904, 963–964, 965–966
618, 956 statutes, 125, 224, 574, 580, 748,
commencement of, 120, 517–518, 829
597, 599, 604, 608–609, 773 national, 223, 330, 547, 548, 580,
commercial see commercial 675, 901
arbitration. submission of disputes to, 80, 118,
consensual nature, 285, 403 120–121, 129, 145–146, 150,
costs, 336, 800, 844 157, 165, 599, 602, 607, 966
definition and interpretation, 28–30 arbitration, clauses
effectiveness, 160, 169, 336, 344, 453 valid, 80, 883, 907
efficiency, 212, 324, 476, arbitrations
718 domestic, 5–6, 24, 450, 497, 514–515,
finality, 99, 101 518, 521, 611, 645, 737

in dex 981
arbitrators, 102–109, 178–197, party-appointed, 180–181, 183,
201–250, 254–290, 319–331, 215–216, 219, 232, 283, 285,
519–521, 549–553, 556–564, 291, 960
661–667, 754–760, 763–771, powers, 519, 559
812–817 presiding, 191–194, 196, 203,
appointment, 54, 56, 97, 99–100, 215–216, 232, 234, 578–579,
103–107, 110, 184–205, 629, 758, 760–765,
289, 649 769–771, 816
considerations to be taken into prospective, 207–209, 210–211,
account, 203–204 214–215, 229, 235
decision of court/specified relationship with a party, 229–230
authority not subject to relationship with counsel
appeal, 202–203 expert or another arbitrator, 231
procedures, 97, 105, 192–194 relationship with the dispute, 230
specified authority to make, replacement, 111, 186, 273, 283,
200–201 289, 768
appojntment role when mandatory rules conflict
default procedure in multi-party with procedures chosen by
arbitrations, 201 parties, 553
biased, 209, 216, 234 sole/single, 30–31, 178–179, 182,
choice, 184, 617 191–193, 195, 198–199, 239,
consequences of failure to disclose, 247–249, 267, 599, 662–663,
232–233 763–767
decisions, 264, 471, 562–563, substitute, 82, 185, 267, 270,
635, 663 274–275, 277, 283–291
default number, 108, 193, 765 termination of mandate by
discretion, 89, 401, 404, 559 agreement of the parties, 271
in evidentiary matters, 556, termination of mandate by request to
558–560 court or other authority, 271
in relation to arbitral procedure, third, 103, 105, 187–188, 197, 259,
549–550 286, 291, 768, 771, 960
in relation to oral hearings, unwilling, 270, 283
665–666 withdrawal, 247, 269–270
dissenting, 817–818 arbitrator’s duty of disclosure, 208–223
emergency, 177, 516, 887 assessment, 362–363, 378–380, 444,
impartial, 188, 205, 644 448, 507, 508, 670, 680, 683,
independence, 204, 215, 218, 223, 841, 865, 870–871
229, 235, 272 assets, 163–165, 172, 174, 334, 337–338,
jurisdiction, 155, 409, 561, 645, 783 341, 344, 454–455, 512–513,
mechanisms for terminating 515, 581, 920–921
mandate, 268–271 preservation, 314, 337–338, 340,
more than three, 183 344, 355
nationality, 204–205 assistance, 88, 94, 165, 172, 514, 521,
number, 178–186 712, 718–720, 722–723, 725,
in event of multiple parties, 727, 731
183–185 court, 100, 108, 197, 200, 237, 369,
odd and even, 180–181 502, 516, 718–720, 724, 728
panels, 25, 30, 122 evidential, 723, 726

982 in de x
assistance (cont.) private, 32–33, 233, 288, 374, 566,
from non-State courts, 727–731 873, 889
judicial, 200–201, 721–722, available evidence, 364, 536,
723–724, 727 617
requests for, 88, 457, 720–722 award of damages, 343, 351, 356, 358,
types, 727 361, 379, 447, 796
assumptions, implicit, 379, 669, award, irrespective of country in which
882, 890 made, 911–912
at-trial evidence, 724–725, 726 awards
attachment, 338, 341, 458 additional, 753, 809, 827, 832, 835,
pre-award, 162–163, 164–165 837, 843, 845–850, 853–855,
Australia, 41, 101, 103, 154, 382, 448, 856, 896, 963
497–498, 505, 507, 509–511, already recognised by another
555, 778–779 court, 910
Austria, 14, 102, 243, 259–260, 296, 316, binding, 537, 676, 829, 962–963
382, 388, 440, 520, 764, 970 confirmed by judgment at seat,
courts, 102, 663, 817, 875 909–910
authorities consent, 768, 773–803, 820, 822, 908
appointing, 97, 104–105, 151, 192, date, 823–824
193, 198, 200–201, 205, 215, definition, 807–810
219, 275, 278 delivery of copies, 827–830
competent, 100, 102, 198–200, domestic, 6, 863, 893, 900, 902–903,
269, 271 916, 959
designated, 98, 101, 102, 109–110 domestic and foreign not
judicial, 161, 329, 409, 490, 496, distinguished, 902
769 enforceable, 528, 754, 797
national, 525, 576, 663, 667, 670, 874, final, 267–268, 306–308, 310–311,
877–878, 888, 906, 910–911, 326–327, 339–340, 460–461,
922, 926 490, 833, 834, 835–836,
non-judicial, 99, 105, 107–109, 839–841, 850–851, 853–854,
110–111 907–908
public, 902, 926 finality, 807, 934
specified, 198, 200–201, 202–204 foreign see foreign awards.
authority, 91–96, 98–99, 102–103, form and contents, 805–830,
106–107, 110, 141–142, 856–857
145–147, 187, 200–204, in writing, 812
252–255, 271–272, 294–295 interim, 308, 407, 463, 476, 492–493,
coercive, 84, 454 495, 497–498, 531, 809, 835,
authorisation, 761, 764–765, 770–771 836–837
express, 298, 750, 770 interpretation, 848, 849–851
special, 399, 676 on agreed terms, 772, 776, 778, 780,
automatic termination, 259, 395 805, 822, 844, 908–909
autonomy, 32, 159, 192, 194–195, 243, on jurisdiction, 155, 295, 311,
289, 349–350, 592, 595, 645, 905–908
653–654, 773 partial, 781–782, 796, 810, 836,
limits, 194–195 838, 905
of arbitral proceedings, 158–159 place, 824–826
party see party autonomy. reasoned, 820–822

in de x 983
signing by arbitrator(s), 813–814 cause, sufficient, 440, 637–638,
truncated, 185, 816 676–679, 684–689, 691,
693–694, 842
bad faith, 75, 80, 151, 199, 234, 445, 451, causes of action, 808, 811, 823
661, 788 centralisation, 94, 99–100, 103
balance of convenience, 349, 353–354, certified copies, 827, 899, 924
355–361, 362, 447–448, 503, chairmen, 62, 181, 185, 685–686, 705,
508–509 707, 759, 762, 765, 769, 771,
balance of inconvenience, 508–509, 510 777–779
balancing tests, 266, 378 challenge, 74–75, 99, 102, 106, 223–235,
bankruptcy, 261, 788 239, 302, 304
beneficiaries, 124–126, 440, 450 applicable standard, 227–228
Bermuda, 101, 199–201, 728, 742 broad understanding of
bias, 209, 217, 230, 231, 246, 494, 529, ‘circumstances’, 226–227
533, 671, 744, 966, 975 continuation of proceedings while
pro-enforcement, 478, 973 review pending, 253–254
biased arbitrators, 209, 216, 234 exhaustiveness of model law,
bilateral treaties, 10, 567, 581, 901 224–225
binding agreement, 117, 518, 572 good faith, 234–235
binding awards, 537, 676, 829, 962–963 grounds for, 189, 206–235
binding effects, 136, 252, 460–461, 961 no appeal, 252
Brazil, 147, 302, 489–490 procedure, 236–254
bribery, 128–129, 788, 860, 932, qualifications, 233–234
970 recurring scenarios, 229–232
British Columbia, 81, 101–102, 168, rejection of list approach, 225–226
562, 641, 645, 844, 945 to procedure, 106
burden of proof, 49, 59, 70, 350, 354, change of circumstances, 49, 401,
477–479, 531, 696, 712, 405–406, 431
865, 936 Chartered Institute of Arbitrators,
business, place of see place of business. 701, 716
Chile, 101–102, 382, 490, 517, 520
California, 163–164, 370, 547 China, 149, 151, 389, 465, 489, 494,
Canada, 165, 168, 259, 504–505, 512, 623, 803
724–725, 762, 777–778, 960, Chinese, 60, 151, 623
963, 972, 974 choice, 32–33, 118–119, 183–185,
Alberta, 559–560, 725, 960 242–243, 547, 555, 571–572,
British Columbia, 81, 101–102, 168, 587–589, 615–619, 666–667,
562, 641, 645, 844, 945 732–734, 773
courts, 309, 312, 503–504, 506, 510, conscious, 226, 673, 854, 875
512, 640, 644–645, 963, 965, express, 618, 742, 755
968, 974 freedom of, 86, 574
Ontario, 9, 65, 79, 101, 956, legislative, 207, 283, 415, 912
971–972, 976 of arbitrators, 184, 617
Quebec, 155, 205, 972 of institutional rules, 548–549,
capacity, 149, 371, 476, 645, 650, 737, 824
866–870, 938–940 of law, 614, 733, 739–746, 748, 868,
case-by-case basis, 81, 91, 110, 296, 380, 891, 933, 946
415, 935, 975 and terms of the contract, 755–756

984 in de x
choice (cont.) clarifications, 28–30, 32, 35, 114, 206,
of seat, 298, 572–573, 574, 576, 210, 319–320, 700, 703, 845,
825–826 855, 861
policy, 208, 316, 320, 374, 765, closest connection, 17, 19–21
863, 892 closest relationship, 1, 19–21, 63
procedural, 547, 878–879, 888 co-arbitrators, 193–194, 196–198,
chronological order, 35 232
CIETAC (China International coercive authority, 84, 454
Economic and Trade collegiality, 584, 588, 666, 669
Arbitration Commission), comity, 562
60, 788, 959–960 commencement
circulation, international, 114, 673, 856, of arbitral proceedings, 51–52, 69,
889, 913 145, 516, 591–610, 908
circumstances of arbitration, 120, 517–518,
change of, 49, 401, 405–406, 431 597–609, 773
exceptional, 275, 303, 306, 311, 399, time of, 591–592, 598–601, 887
401–402, 406, 495–496, 736, commercial arbitration, international,
740, 825, 831 2–4, 5–10, 28, 44–45, 90, 102,
factual, 262, 265, 339, 380, 416, 297–298, 344, 382–383, 490,
549, 564 718–720, 749
particular, 156, 182, 799, 821 commercial contracts, 55, 118–119,
relevant, 209, 214–215, 219, 222–223, 300, 348, 526
227–228, 232–233, 235, 380, commercial relationships, 1, 13,
433, 622 16–17, 174
circumstantial evidence, 80, 131 common domicile, 5, 11
civil law, 76–77, 123, 536 common law, 124, 214, 356, 493–494,
jurisdictions, 124, 128, 148, 214, 671, 560, 695, 811, 956
811, 940 jurisdictions, 181, 356, 362, 536, 550,
civil liability, 318, 786, 814 764, 940
civil litigation, 243, 510, 537, 640 common usage, 132–133
civil procedural law, 465, 556 communications, 49–52, 53, 56–58,
civil procedure, 43, 75–76, 192, 223, 130–131, 134, 391–392,
263, 272, 304, 339, 369, 450, 613–614, 673–674, 679,
683, 687 689–690, 709, 875
claim, statements of, 36, 599, 601, 604, electronic, 58, 69, 112, 130, 134, 813
628–654, 679, 689–691, 842, formal, 21, 827
923–924 long distance, 134, 590
claimants, 66–68, 75–76, 79–81, oral, 381, 387, 391
437–443, 445–448, 596–597, written, 50–52, 54, 56–61, 63, 66, 69,
607–610, 634–642, 645–647, 70, 132, 598, 605, 828, 876
678–679, 688–693, 840–842 compensation, 36, 49, 282, 358, 363,
claims 442, 445–447
conscious omission by tribunal, 854 competence, 26, 96, 99, 154, 168, 179,
definition, 853 239, 293, 299, 316, 480,
jurisdictional, 71, 155, 809 649–650
presented but omitted from original competence-competence, 293,
award, 853 297–300, 770, 870
substantive, 94, 141, 835 powers, 155, 298–299, 749

in de x 985
competent authorities, 100, 102, international, 188, 803
198–200, 269, 271 consent, 115, 117–118, 148–149,
competent courts, 101–102, 238–239, 526–527, 753, 771–773,
453–454, 463–464, 484, 796–797, 799, 870–871, 923,
486–487, 511, 866, 894–895, 938, 953–955
897–899, 917, 937–938 awards, 768, 773–803, 820, 822, 908
complexity, 108, 119, 264, 266, 330, 477, centrality, 323, 879
553, 652, 668, 897 party, 117, 328, 752, 955
compliance, 166, 317, 486, 755, 931, 950 scope, 955–956
composition, amiable, 754–755 conservatory measures, 325, 334, 476
compromis, 130, 612, 615, 881 consistency, 27, 169, 190, 200, 256,
compromise, 121, 237, 241, 381, 386, 402–403, 462, 478, 485, 860,
388, 721, 849 879, 881
solutions, 3, 114, 318, 388, 657 constitutional writs of protection, 94,
computation, 404, 846, 848 252–254
computational errors, 851, 963 construction
conceptualisation, 371, 493, 495 contracts, 405, 702, 706
concessions, 2, 744, 791 disputes, 120, 153, 784
concurrent laws, 743–744 consultations, 565, 568, 588–589,
conditions 704
for granting interim measures, consumers, 8–9, 22, 525
343–372 content, proper, 52, 59–60
general, 130, 138, 320 contract law, 76, 123–124, 131, 281,
precedent, 148, 299, 375, 483 284, 815, 823
conduct, 75–78, 132–133, 191–193, domestic, 280–281, 284–285
264, 355–356, 539, 541–543, contract, creature of, 236, 279
548–550, 552–554, 663–664, contracting out
691–693, 704–705 of Art 6, 110–111
improper, 443–444, 450 of Art 9, 176–177
procedural, 878, 886 contracting parties see parties.
conduct-based estoppel, 133, 135, 139 contracts, 15–17, 19–20, 63–64,
conferences, pre-hearing, 536, 588 112–115, 117–126, 127–131,
confidential evidence, 560–561 135–137, 279–281, 300–301,
confidentiality, 244, 331, 531, 561, 597, 735–741, 745–748, 755–757
624, 706, 709, 775, 802, 818, commercial, 55, 118–119, 300,
922–923 348, 526
agreements, 560, 812 construction, 405, 702, 706
conflict of laws rules, 33, 732, 734–735, main, 115, 301, 575, 619, 742–744,
738–740, 745–746, 747–750, 867, 870, 931, 944, 946
868–870, 940, 943 sales, 60, 606, 970, 971–973
operation in arbitral proceedings, service, 279, 284
747–750 contractual obligations, 54, 127, 510,
ordinary operation, 746–747 602, 969
conflicts of interest, 211, 221, 230, 704 contractual relationships, 91, 127,
connections, closest, 17, 19–21 279–280, 285, 621, 772
conscious choice, 226, 673, 854, 875 control, 86, 88, 98, 525, 652, 669, 817,
consensus, 34, 495, 501, 502, 573, 584, 873, 883, 950
658, 669, 677, 775, 785, 793 judicial, 85, 87–88, 188, 266, 295, 645

986 in de x
convenience, 349, 353–354, 355–357, court-ordered interim measures, 5, 100,
361–362, 447–448, 503, 160, 163, 170–173, 175–177,
508–509, 512, 565, 567–569, 344–345, 354, 360, 408–409,
581–585, 589 443, 449, 500–521
balance of, 349, 353–354, 355–361, courts
362, 447–448, 503, 508–509 appellate, 487, 662
of the parties, 567, 583 competent, 101–102, 238–239,
copies, 69, 136, 708–710, 805, 828–829, 453–454, 463–464, 484,
923–925, 974 486–487, 511, 866, 894–895,
certified, 827, 899, 897–899, 917, 937–938
924 definition and interpretation, 25,
of awards, 827–830 31
correspondence, 528–529, 598, 612, discretion, 469–470, 723, 936,
620, 626, 709, 763, 806, 929 964
corruption, 301, 498, 788, 932, 968–970 district, 99, 101, 185, 509, 730, 885
costs, 91–93, 296–297, 318, 336, domestic, 45, 115, 118, 147, 171, 173,
412–413, 417–418, 439–442, 328, 367, 492, 502, 511, 516
445–446, 447–449, 800, enforcing, 81, 457–460, 462,
843–844, 854 467–472, 964
allocation, 783, 843 English, 59, 147, 368, 563, 729, 970
and damages, 417, 435, 438, 441, 443, foreign, 147, 490, 501, 513, 571,
448, 452 719–720, 728–730
decisions on, 809, 837, France, 75, 78, 83, 133, 136, 152, 183,
854 201, 223, 537, 743, 752
legal, 336, 416, 440, 442, Germany, 150, 153, 228–229, 233,
800 262–263, 266, 303, 305,
liability for, 441–443 309–311, 572, 797, 799
security for, 163, 336–337, 410, Hong Kong, 133, 174–175, 262, 308,
418, 465 493, 514, 521, 603, 605, 629,
translation, 615–617, 621 636, 649–650
counsel, 62, 220–221, 226, 230, ICC, 111, 198, 202, 773–774, 780, 789
231–232, 536–537, 545, 581, India, 11–12, 176, 515–517, 518, 521,
615, 624, 688, 974 602, 605, 608, 610, 632, 634,
counterclaims, 25, 35–37, 159, 174, 534, 636–640
537–538, 603, 629–631, 646, intervention, 84–95, 100, 102, 108,
651, 841–842, 883 195, 199–200, 237, 243, 251,
applicability to, 35–37 307, 309–310
country of enforcement, 528, 820 involvement, 109
court assistance, 100, 108, 197, 200, 237, involvement in arbitral proceedings,
369, 502, 516, 718–720, 100–103
724, 728 involvement not mentioned under
court orders, 143, 171, 269, 609, 653, Art 6, 109–110
678, 963 Kenya, 309, 487, 495–496, 639, 642,
court proceedings, 50, 74, 83, 91, 644, 650
170–171, 174, 267, 582, 593, local, 40, 45, 96, 171, 173, 176, 260,
603, 605–606, 905–907 309, 409, 572, 580, 583
court review, 241, 244, 257, 299–300, municipal, 319, 325, 329, 572, 864,
307, 735, 748 901, 904

in de x 987
national, 88–95, 117–118, 222, date
225–226, 245–246, 300–302, of award, 823–824
585–586, 864–865, 868–870, of receipt, 53, 70
933–935, 966–970, 975 deadlines, 70, 82, 120, 148, 151,
New Zealand, 65, 168, 353, 361, 364, 266–267, 623, 635, 855
366, 370–371, 447, 512, 534 extension, 855
powers, 170, 172, 313, 371, 384, 471, deadlock, 32, 192, 201, 237, 766,
500–501, 510, 513–515, 520, 770
722, 728 debtors, 341–342, 459,
regional, 101, 705, 791, 798–799, 960, 920–921
962–963 third-party, 338
Russia, 232, 291, 304, 548–549, decision-making
556, 564 by panel of arbitrators, 758–771
Singapore, 17, 20, 305, 308–309, process, 291, 345, 460, 758–759, 766,
311–312, 515, 531, 533, 768, 885
643–644, 707, 709, 967 decisions
Spain, 56, 203, 212, 222, 228, 233, arbitrator’s, 264, 471, 562–563,
669, 885 635, 663
Supreme, 68–69, 78–79, 82–83, final, 35, 237–238, 240, 252, 260, 439,
145–146, 151, 155–157, 267, 444–445, 550, 782
298–299, 301–302, 496, jurisdictional, 307–310, 313
798–799, 854 majority, 579, 958
United States, 60, 69, 164, 299, 369, on costs, 809, 837, 854
447, 489, 547, 623, 795–796, procedural, 27, 89, 297, 306, 385,
821, 845 550–551, 578, 666, 759
creditors, 338, 342, 518, 753, 788, 911, reasoned, 726, 794
917–921 subject to no appeal, 252
cross-undertakings in damages, unanimous, 765, 767,
356, 445 770
custody, interim, 163–164 declaratory statements, 775, 797
customary international law, 45, 179, default language, 60, 612–613, 618,
297, 522, 806, 813, 825 619–622, 624–625
Cyprus, 101, 606–607, 668, 700 default number of arbitrators, 108,
193, 765
damages, 9, 316, 317–318, 354–358, default of party, 675–696
366, 409–413, 417–418, 427, default procedures, 192–193, 196, 198
435–445, 447–452, default rules, 178–180, 181–184, 196,
506–507, 753 566, 575, 577, 604, 612, 619,
adequacy, 503, 507 807, 817, 822
amount of, 447, 707, 753 defaulting parties, 677–678, 679, 683,
and costs, 417, 435, 438, 441, 443, 688–689, 873
448, 452 defects, 149–150, 185, 602, 783–784,
award of, 343, 351, 356, 358, 361, 379, 816, 944
447, 796 procedural, 862, 972
cross-undertakings in, 356, 445 defence, statements of, 303, 304, 618,
liquidated, 971–972 628–632, 634–636, 639,
recovery, 357, 441, 446–447 643–644, 647–648, 650–651,
data messages, 112, 134 675, 678–683, 923–924

988 in de x
defences designated authorities, 98, 101, 102,
oral, 221–222, 226, 629, 667, 109–110
876–877, 882 designated judicial organs, 99, 101, 105
written or oral, 221–222, 226, 876 destruction of evidence, 384, 482
defendants, 53–54, 67–69, 79, 82, details of dispute, 602
353–354, 356, 506–509, 512, determination, 25–26, 32, 363,
603, 605, 623–624, 963 386–387, 471–474, 539–540,
defences, 75, 304, 696, 944, 949–950 566–567, 574–575, 577–579,
incapacity, 938, 941–942 585–588, 809–810, 890
deference, 312–313, 492, 551, 562, 619, equitable, 754
645, 770, 889, 893, 936 expert, 6, 152, 752
absolute, 180 final, 250, 329, 340
Delaware, 559, 561 judicial, 145, 252
delay, 145, 266–267, 273, 276, 292–294, of rules of procedure, 539–564, 699
303, 393–394, 475, 620–622, third party, 31, 575
634–635, 646–647, 651–653 digital signatures, 130–131, 134, 814
appropriate, 652–653 dilatory tactics, 195, 237, 241, 268,
tactics, 94, 154, 155, 158, 237, 814 296–297, 306, 362, 524, 652,
undue, 71, 81, 82, 201, 202–203, 245, 721, 726
255, 258–259, 261, 263–268, disagreement, 180, 184–185, 196, 256,
272–273, 276, 282 259, 584, 592, 713, 716, 810,
unnecessary, 617, 688 816, 819
delegates, 2, 5, 85–86, 88, 236–240, disclosing parties, 428–430, 431–433
381–386, 387, 593, 631, 633, disclosure, 46, 207, 209–211, 212, 214,
701, 705–706 215, 222, 232, 424–426,
delegations, 86–87, 238, 239–241, 252, 428–433, 561, 706, 725
257, 385–386, 460, 575, 676, and interim measures, 422–434
684–685, 706–707, 714 duration of duty, 218–222
deliberations, 237–238, 249, 252, 291, duty of
382, 423, 493–495, 499–500, arbitrators, 208–223
672, 758–761, 763–764, 885 obligations, 222, 233, 424–426,
final, 345, 763–764 427, 466
internal, 360, 670 of material changes, 432–433
Working Group, 84–85, 236, 239, prior, 373, 378
386, 389, 397, 425, 455, statements, 211, 215, 219, 235
541, 684 what, 210–212
delivery, 52, 54, 57, 60–62, 65, 67–68, when, 209–210
70, 151, 697, 715, 805, who, 213–215
827–829 discovery, 163, 210, 355, 360, 559, 718,
method, 54, 57 724–725, 727, 730
of copies of awards, 827–830 pre-hearing, 550, 559
personal, 61, 63 pre-trial, 725–726
proof of, 57, 66, 69 discretion
successful, 68–69 arbitral tribunals, 415–416
to addressee personally, 60–61 arbitrators, 89, 401, 404
demurrage, 724, 726 courts, 469–470, 723, 936,
dépeçage, 743–744 964
deposits, 91, 275, 336, 600, 903 judicial, 182, 518, 952

in de x 989
of arbitrators domestic laws/legislation, 40–43, 48,
oral hearings, 665–666 368–369, 440, 492–493, 511,
discretionary powers, 295, 296, 419, 592–594, 606–607, 737,
425, 428, 459, 474, 546, 684, 742–744, 823, 869–870
833–834 domestic legal systems, 123, 127, 129,
disputants, 32, 33, 279–281, 289, 380, 132, 134, 207, 211, 580, 585,
575, 584–585, 657–658, 586, 766, 770
660–661, 665–667, 873–878, domicile, 65–66, 469, 868, 930, 940
884–886 common, 5, 11
dispute, absence of, 153–154 double exequatur, 902, 925, 961
disputing parties, 215, 217, 291, 584, doubts
589, 837, 954 justifiable, 195, 206, 208, 209–211,
disruptions, 209, 224, 228, 282–283, 219, 224–225, 245–246,
307, 661 272, 705
dissenting arbitrators, 817–818 reasonable, 221, 223, 226–227, 229,
dissenting opinions, 814, 817–819 232–233, 235
district courts, 99, 101, 185, 509, drafters, 12–14, 279–280, 307–308, 315,
730, 885 317–318, 319, 328–329,
documentary evidence, 144, 155, 611, 405–406, 859–860, 861–862,
616, 625, 626, 669, 675, 900–902, 934
677–682, 683–689, drafts
693–694, 722 final, 72, 172, 255, 374, 415, 720,
translation, 613, 626 725, 834
documents, 62, 135–136, 549–551, first, 2, 38, 71, 196, 277, 293, 656, 698,
625–628, 633, 646–648, 777, 805
655–657, 665–667, 670–673, draftsmen, 99, 654, 725
712–714, 724–725, 945–946 due process, 533, 947
delivery, 54, 61 and notification, 54–56
evidentiary, 530, 655, 671–672 guarantees, 73, 527, 533, 613, 618,
production, 713–715, 718 622–625
relevant, 594, 671, 697, 714, rights, 55, 527, 623, 626, 752
949 violation, 625, 662–663, 670, 704,
submitted, 810, 838 877, 886, 893, 933, 947,
surprise, 671 950, 951
documents-only arbitration, 656,
666–667 see also written earliest practicable time, 381, 386,
proceedings 393–395
domestic arbitral awards, 863, 893 ECtHR (European Court of Human
domestic arbitrations, 5–6, 24, 450, 497, Rights), 55, 153, 522, 528,
514–515, 518, 521, 611, 530–534
645, 737 effective address, 64, 67
domestic awards, 6, 863, 893, 900, effective receipt, 54, 57, 59, 61, 63
902–903, 916, 959 effectiveness, arbitration, 160, 169, 336,
domestic contract law, 280–281, 344, 453
284–285 efficiency, arbitration, 212, 324,
domestic courts, 45, 115, 118, 147, 171, 476, 718
173, 328, 367, 492, 502, Egypt, 101, 143, 191, 250, 498, 515, 516,
511, 516 614, 647, 786, 833, 964

990 in de x
electronic communications, 58, 69, 112, requests for, 459, 463, 476, 480,
130, 134, 813 490, 923
electronic forms, 69, 130, 813–814 stage, 73–74, 139, 214, 251, 304, 666,
electronic notifications, proof of 919, 921, 937–938, 945
delivery in, 68–69 upon application, 916–917
electronic signatures, 130–131, 134, 814 enforcing courts, 81, 457–460, 462,
element of surprise, 346, 383, 389, 467–472, 964
396–397, 482, 535 equal treatment, 81, 185, 389, 522–538,
elements, agreement on, 646–648 542, 584, 589, 691–692
emails, 57, 131–132, 134, 590 equality, 184, 189, 289–290, 522, 526,
emergency arbitrators, 177, 516, 529–534, 538, 542, 544,
887 546, 674
empowerment, 173, 502, 519, 521 of arms, 289–290, 522, 530–534, 891
enacting States, 27, 96–97, 101, 116, party, 55, 291, 385, 524, 526–527, 828
720, 861, 863, 892–893, 901, principle, 54, 291, 542–543, 567,
915, 918, 924 612, 667
enforceability, 330, 336, 345, 348, equitable determination, 754
384–385, 455–457, 464, 847, equitable principles, 740, 751–754
908–909, 958, 963, 966 equity, 46, 750–754, 839
interim measures, 383, 400, 456, errors, 149, 316, 404, 532, 846–848, 851,
465–466 878, 919, 973
international, 113, 464 amenable to corrections, 850
judicial, 396, 461 computational, 851, 963
of interim measures, 383, 400, 456, typographical, 404, 846, 848, 856, 897
465–466, 904 estoppel, 46, 49, 75–76, 78, 135, 156,
presumptive, 954 181, 299, 808, 811, 945
enforceable awards, 528, 754, 797 conduct-based, 133, 135, 139
enforcement, 453–455, 457–464, procedural, 78
466–470, 473–483, 484–499, EU law, and arbitral interim relief,
899–905, 909–913, 916–930, 340–342
931–943, 951–953, 959–962, European Court of Human Rights see
964–969 ECtHR.
applications, 626, 917, 922, 952 European Union, 10, 341–342, 455
intended country of, 528, 819 evidence, 163–165, 530–531, 534–541,
interim measures, 448–450 557, 560–563, 582–583,
of awards, 100, 367, 465, 481, 487, 625–629, 694–696, 712–718,
496, 581, 826, 965 723–725, 727–730, 949–951
of foreign awards, 496, 616 admissibility, 530, 557–558, 560, 562
of interim awards, 495, 497 at trial, 724–725, 726
of orders and directions of arbitral available, 364, 536, 617
tribunals, 171–173 circumstantial, 80, 131
of provisional measures, 463–464 confidential, 560–561
partial, 957 destruction, 384, 482
proceedings, 75, 304, 306, 480, 670, disregard and oversight as ground
838, 893, 906, 922, 950, for challenge to arbitrator’s
975–976 decision, 563–564
refusal of, 118, 494–498, 738, documentary see documentary
952, 956 evidence.

in dex 991
expert, 712, 716 exchange of statements of claim and
indisputable, 130, 259, 814 defence, 112, 135, 882,
materiality and weight, 539, 923–924
541–542, 546, 557–558, exclusion, 32–33, 176, 221, 228, 324,
715, 723 327, 496–497, 504, 816, 820,
materiality and weight of, 539, 855, 865
541–542, 546, 557, 715, 723 clauses, 55, 526
oral, 537, 715 exclusive jurisdiction, 250,
pieces of, 339, 377, 557–558, 259–260, 409
563–564, 951 executive organs, 46, 198
presentation, 535, 655–657, 659, exequatur, 910, 921, 925
665, 674 double, 902, 925, 961
preservation, 339, 355, 357, 365, 455, expectations, legitimate, 47, 403, 532
721, 729–730 expediency, 99, 101, 179, 244, 248, 266,
prima facie, 197, 200 620, 761, 764
privileged, 560–561 of arbitral proceedings, 98, 102
provisions governing relevance expenses, 147, 441–442, 525, 589, 613,
admissibility 617, 653, 745, 775, 800, 816
materiality and weight, 557–558 experience, 132, 295, 407, 515, 693
relevance, 557 expert determination, 6, 152, 752
rules of, 531, 540–541, 546, 556–557, expert evidence, 712, 716
559–560, 696, 811 expert reports, 530, 557, 655, 671, 974
taking of see taking of evidence. expert witnesses see also experts, 655,
witness, 568, 659, 667 659, 697–699, 715–716
evidentiary documents, 530, 655, expertise, 102, 109, 179, 269, 313, 711,
671–672 716, 745, 806
evidentiary hearings, 582, 589 experts, 214, 230, 231–232, 557, 565,
evidentiary matters, 145, 561–563, 718, 568, 697–704, 706, 708–709,
723–724 711–716, 717, 973–974
discretion in, 556, 558–560 appointed by tribunals, 697–717
evidentiary orders, 722, 725 independent, 703, 973
ex aequo et bono, 732, 740, 750, party-appointed, 214, 698, 704, 707,
751–754 712, 714–717
ex parte applications, 376, 396, technical, 697, 702, 705
730 tribunal-appointed, 213–214, 671,
ex parte measures, 346, 347, 348, 698–712, 713–717
374–375, 382–383, 385–386, expiration, 267, 395–396, 434, 482, 609,
414, 437, 442, 448, 460, 480 689, 849
requesting, 346–348 periods, 591–592
ex parte orders, 374, 378, 394, 425, express agreement, 180, 612–613, 619,
445–446, 447 620, 622, 624
ex parte proceedings, 362, 676 express authorisation, 298, 750, 770
ex parte relief, 419, 446 express choice, 618, 742, 755
exceptional circumstances, 275, 303, express language, 239, 253, 423, 759
306, 311, 399, 401–402, 406, express provisions, 194, 239, 375,
495–496, 736, 740, 825, 831 385, 539
exceptional court intervention, 92–95 express reference, 78, 318, 659
excess of mandate, 879–883 extraterritorial scope, 729

992 in de x
facts, relevant, 391, 702, 799, Finland, 237, 257, 440, 762, 765,
860 778, 929
factual circumstances, 262, 265, 339, first draft, 2, 38, 71, 196, 277, 293, 656,
380, 416, 549, 564 698, 777, 805
failure (or impossibility) to act, 106, first statements, 82, 141–142,
255–276, 281–282 156–157, 640
evolving standard, 268 force, use of, 321
standard, 261–268 foreign arbitral awards, 6, 455,
without undue delay, 263–268 495–496, 787, 939, 958
failure to comply, 315–317, 630, foreign arbitration, 174–176,
645, 713 512–516, 730
failure to disclose, arbitrators, 232–233 foreign awards, 73–74, 113, 494, 497,
failure to sign, 641, 814–817 862–863, 893, 899–902,
fair hearing, 55, 527, 553, 947 904–905, 911–912, 916,
fair trial, 48, 54–56, 149, 153, 522–529, 921, 930
530, 532, 537, 623, 830 enforcement, 496, 616
exceptions, 55, 526 recognition and enforcement,
fairness, 223, 227, 445, 450, 494, 863–864, 900–901, 965
524–526, 529–530, 546, 652, foreign courts, 147, 490, 501, 513, 571,
751–752, 873, 877 719–720, 728–730
fundamental, 393, 668 foreign judgments, 45, 384, 719,
procedural, 89, 250, 347, 482, 910, 921
523–524, 530, 532, 546, 558, foreign jurisdiction, 19, 174,
562–563, 724 262
substantive, 492, 530, 947 foreign parties, 15, 96
fault, 437, 679, 852 foreign proceedings, 147, 730
fault-based liability, 443–445 forgery, 301–302, 860, 945
fees, 91, 267–268, 274–275, 279, 287, form
442, 755, 814, 821, 827, and contents of awards, 805–830,
829–830, 965 856–857
final awards, 267–268, 306–308, electronic, 69, 130, 813–814
310–311, 326–327, 339–340, non-electronic, 70
460–461, 490, 833, 834, particular, 117, 130–131, 157, 603,
835–836, 839–841, 850–851, 690, 814
853–854, 907–908 written, 39, 115–116, 129, 134,
final decisions, 35, 237–238, 240, 252, 138–140, 598, 604, 632
260, 439, 444–445, 550, 782 formal communications, 21, 827
final deliberations, 345, 763–764 formal requirements, 57, 117, 119–120,
final determination, 250, 329, 340 272, 330, 636, 790, 899,
final disposition, 439, 809, 838 904–905, 922, 925
final draft, 72, 172, 255, 374, 415, 720, formal validity, 129, 808
725, 834 formalism, 139, 924–925
final settlement, 36, 764, 831, 841 formalities, 252, 626, 805, 807, 817, 819,
final text, 88, 98, 237, 240, 258, 260, 381, 822, 827
388, 424, 427, 634, 640 forum, 74–76, 97, 101, 119, 154, 180,
finality 182, 502, 512, 746, 748, 967
arbitration, 99, 101 court, 147, 168, 500
awards, 807, 934 State, 788, 969

in de x 993
France, 183, 223, 238, 243, 257, 765, goods, 2, 334, 339, 565–566, 568, 667,
773, 778, 809–811, 837–838, 670, 714, 718, 742–743,
963, 965 746, 752
fraud, 148, 498, 779, 787–788, 799, 843, governments, 369, 384, 388, 424, 543,
860, 932, 968–970 682, 761
freedom, 32, 192, 241–242, 532–533, grounds
539–540, 542–543, 545–548, for annulment, 860, 861,
566, 598–599, 646–647, 864–865, 879
699–700, 733–734 for challenge, 189, 206–235
freezing orders, 341, 489, 504 for refusal, 458, 478, 479, 861, 864,
fumus boni juris, 379 879, 902, 922, 928, 934–935
functional uniformity, 43–44 of recognition and enforcement,
functions, 94–96, 99–100, 101–105, 481, 497, 879, 965
107–108, 110–111, 115, guidance, 127, 145, 162, 168–169, 173,
198–199, 201, 255–256, 268–269, 274–275, 329, 332,
260–263, 282–283, 376–377 578–579, 619–622, 652
adjudicative, 106, 278, 793
adjudicatory, 706, 709, 714 habitual residence, 1, 21, 50, 51, 53–54,
administrative, 105 56, 61, 63, 64–65, 67–68,
judicial, 98, 99–101, 105, 746–747, 828, 949
793 definition, 21
of arbitration assistance, 96–98 Hague Conference, 32, 384, 721, 931
functions of appointment challenge harm, 323, 343, 351, 353–354, 355–356,
and replacement, 109, 111, 278 358–363, 365–366, 373,
functus officio, 637, 638, 783–784, 832, 379–380, 440–441,
836, 839–840, 842, 845, 850, 444–445, 506
853, 856, 897–898 imminent, 344, 727
fundamental principles, 40, 44, 74, 77, irreparable, 347, 357–359, 379, 503,
130, 131, 287, 304, 385, 389, 506–508, 521, 532
436, 969 likely, 355, 448
fundamental rights, 389, 667, 873–874 potential, 349, 355–359, 364–365,
395, 472
general obligations, 613, 659, 667, 896, substantial, 357–358
899–900, 912 harmonisation, 43–44, 459, 474, 539,
general principles, 38, 41, 45, 48–49, 75, 609, 746, 776, 934
141, 167, 171, 181, 322–324, harmony, 746, 930–932, 959
744, 824–825 hearings, 311–312, 535–536, 556–557,
geographical location, 582, 587–588 587–589, 655–670, 677–682,
Germany, 101, 259–260, 445, 449, 516, 687–689, 692–693, 697–701,
520, 575, 698, 702, 705, 707, 715–717, 953
779, 791 and written proceedings, 655–674,
good faith, 38–39, 46–49, 76–78, 80, 699–700
120, 153, 234, 441, 450–451, appropriateness, 664
669, 674, 756 evidentiary, 582, 589
liability for interim measures first, 135, 662
requested in, 450–451 oral, 83, 529, 535, 549–551, 655–664,
observance, 46–47 665–666, 770, 960, 973
of challenging party, 234–235 request by party to hold, 661–662

994 in de x
hearings (cont.) impartiality, 79, 204–211, 213–214,
tribunal failure to comply, 215–219, 221–229, 232–233,
662–664 235, 245–246, 251, 527, 529,
requests to hold on substantive and 704–705
procedural ssues, 664 and independence, 204, 207, 209,
scheduled, 79, 285, 669 211, 213–214, 215–217, 219,
subsequent, 67, 348, 640 221, 223–225, 227, 229,
hierarchical relationships, 35, 329, 232–233
755 impediments, legal, 256, 260, 465,
Hong Kong, 6, 101–102, 107–108, 537
171–172, 174–175, 466, 494, implicit agreement, 198, 888
514, 516–517, 521, 952, implicit assumption, 379, 669, 882, 890
970–971 implied agreement, 555–556
courts, 133, 174–175, 262, 308, 493, improper conduct, 443–444, 450
514, 521, 603, 605, 629, 636, in personam jurisdiction, 368, 515
649–650 inability to act, 104, 106, 258–259, 261,
265, 269, 273, 624, 626, 670,
IBA (International Bar Association), 947, 950
77–78, 211–212, 229, 232, inability to perform, 261–263
537, 545, 695–696, 704, 706, inability to present case, 876–879,
709, 715, 762 949–953
IBA Rules on the Taking of Evidence in incapacity, 76, 261, 858, 866, 869, 927,
International Arbitration 938–942, 943
Preamble, 77 legal, 261, 939
IBP (Integrated Bar of the of party to agreement, 866–870,
Philippines), 104 939–943
ICC (International Chamber of under some, 866, 930,
Commerce), 149, 183–184, 941
230, 259, 397, 409–410, 501, inconvenience, 651
572, 710, 767, 789, 795–796 balance of, 508–509, 510
ICC (International Chamber of practical, 574
Commerce), Court, 111, 198, incorporation, 33, 39–40, 41, 116–117,
202, 773–774, 780, 789 118–120, 125, 135–139, 352,
ICDR (International Centre for 371, 501, 547, 940
Dispute Resolution), 694, 767 by reference, 33–34, 135–138,
ICJ (International Court of Justice), 46, 139, 886
77, 405, 411, 706, 752 independence, 206, 208, 210–211,
ICSID (International Centre for 213–215, 217–218, 224, 226,
Settlement of Investment 228, 245–246, 251, 704, 705
Disputes), 10, 45, 221, 402, and impartiality, 204, 207, 209, 211,
594, 641 213–214, 215–217, 219, 221,
identification, 151, 505, 576, 579, 223–225, 227, 229, 232–233
894, 918 statements of, 213, 219, 222
illegality, 301, 496, 789, 971 arbitrators, 204, 215, 218, 223, 229,
imminent harm, 344, 727 235, 272
immovable property, 582, 747 independence and impartiality
impartial arbitrators, 81, 188, 205, 218, statements of, 213, 219, 222
228, 644 independent experts, 703, 973

in de x 995
India, 9, 12, 101–102, 179, 266–267, institutional rules, 70, 180–185, 193,
494, 496, 515–517, 600, 242, 273–275, 547–548,
635–638, 698, 701–702 593–594, 596–598, 621–622,
courts, 11–12, 176, 515–517, 518, 768–769, 814–816, 827–830
521, 602, 605, 608, 610, 632, choice, 548–549, 824
634, 636–640 language requirements, 621–622
indisputable evidence, 130, 259, 814 institutions, 30–32, 34, 104–106, 194,
inequality, 526, 529 198, 243, 244, 288, 575,
inferences, 218, 425, 468, 557–559, 684, 592–594, 599–600, 884
694, 710, 713 arbitration, 29, 104, 150, 735, 930
adverse, 468, 696, 713 permanent arbitral, 25, 30, 239,
explicit, 722 593
informality, 49, 131 instructions, 122, 432, 540–542, 714
information, 215, 219, 222, 244–246, Integrated Bar of the Philippines
428–430, 433, 439, 467, 671, see IBP.
714–715, 724, 873–875 intent, legislative, 3, 23, 514, 603–604
additional, 401, 405 intentions, 56, 58, 119–120, 129–132,
proprietary, 164, 315 150–152, 157, 285, 294–295,
relevant, 213, 423, 688, 697, 700, 601–602, 640–641,
713–714 833–834, 851
sufficient, 593, 596, 597, 640, 857 clear, 119, 783
infra petita, 860, 879 mutual, 128, 645
initial agreement, 234, 615, 884 to refer dispute to arbitration,
injunctions, 93, 144, 146–147, 165, 167, 602–604
253, 335, 368, 506–507, inter partes measures, 379, 437–438
509–510, 515, 743 interests, legitimate, 36, 831, 839,
interim, 164, 356, 362, 366, 370, 441, 841–842
463, 505, 520 interim awards, 308, 407, 463, 476,
interlocutory, 356–357, 362, 492–493, 495, 497–498, 531,
508 809, 835, 836–837
Mareva, 165, 175, 504 interim custody, 163–164
injunctive relief, 254, 507 interim injunctions, 164, 356, 362, 366,
injustice, 182, 508–509, 510, 746, 777, 370, 441, 463, 505, 520
879, 950 interim measures
procedural, 86–88, 861 and disclosure, 422–434
inoperable and ineffective arbitration applications for, 173, 176, 353, 357,
agreements, 150–153 372, 408, 500, 510–511,
inquiries, 65, 550, 603 518–520
reasonable, 50, 52–53, 56–57, 65–67, before commencement of
68, 828, 949 arbitration, 609–610
insolvency, 144, 459, 537 arbitral, 315, 317, 319, 345, 355, 369,
proceedings, 459, 652 448–449, 483
inspection, 154, 165, 166, 565–566, 568, availability, 44, 516
582, 589, 655, 667, 670, 697, by court and arbitration agreements,
973–974 160–177
institutional arbitration, 149, 242, 559, conditionality between security and
593, 599, 829 measure, 416
institutional organs, 193 conditions for granting, 343–372

996 in de x
interim measures (cont.) scope, 173, 349, 501
court powers to grant before status quo maintenance or
commencementof arbitral restoration, 334
proceedings, 516–519 temporal scope, 331
court-ordered, 5, 100, 160, 163, temporary nature, 326–327
170–173, 175–177, 344–345, terminated or suspended, 484–487
354, 360, 408–409, 443, 449 interim payments, 339–340
enforceability, 383, 400, 456, interim relief, 177, 315–316, 318, 320,
465–466 323, 369, 439–441, 445–446,
enforcement, 318, 349, 457, 465–466, 502–503, 505–507, 514–515,
476–478, 481, 721, 730 520–521
exhaustiveness of list, 331–334 arbitral, 320–322, 324–325, 335, 340
extraterritoriality, 513–516 interlocutory injunction, 356–357,
for preservation of evidence, 362, 508
364–365 interlocutory relief, 362, 505, 507
form, 329–331, 476 internal deliberations, 360, 670
grant by courts, 167–168 international arbitral proceedings, 617,
grounds for refusing recognition or 645, 740
enforcement, 473–499 international arbitration, 6–7, 13–15,
in aid of arbitration, 12, 384, 513 89, 92–95, 210–211, 451–452,
interaction between power of court 496–497, 500–502, 513–516,
and arbitrator, 519–521 539–540, 695, 771–773
issuance/granting, 337, 343, 348, 351, community, 183, 495
362, 369, 379, 404, 407, 504, rules, 18, 353, 730, 765–767
509, 516–519 International Bar Association see IBA.
liability for interim measures International Centre for Settlement of
requested in good faith, Investment Disputes see
450–451 ICSID.
modification international circulation, 114, 673, 856,
suspension and termination, 889, 913
399–411 international commercial arbitration,
of protection, 165–169, 174–175, 2–4, 5–10, 28, 44–45, 90, 102,
176, 343–345, 349–351, 297–298, 344, 382–383, 490,
358–359, 399–401, 438, 718–720, 749
448–450, 456, 458–460, international commercial transactions,
462–465 115, 733, 869
definition, 168–170 international consensus, 188, 803
out of jurisdiction, 173–175 international enforceability, 113, 464
power of tribunal to order, 314–342 international organisations, 388, 423,
protection of arbitral process, 439, 457, 543, 682, 761, 764
335–337 international origin, 38–49
protection under, 163–167 international public policy, 493, 495,
recognition and enforcement, 100, 752, 778, 893, 933, 969
330, 454, 460, 470, 479, 485 internationalist approach, 40, 45
relationship with subject matter of internationality, 13–15, 17–18, 29
dispute, 328–329 interpretation, 2–3, 7–9, 26, 38–40, 305,
requesting in courts, 367–372 358–359, 743–744, 845–852,
review of substance, 498–499 854–857, 956, 958–959, 968

in de x 997
aids of, 39–41, 46, 736 judicial review, 89, 240–241, 245,
awards, 848, 849–851 250–251, 253, 296, 307, 309,
definitions and rules of, 25–37, 40 311, 313, 859
narrow, 496, 968 scope, 266, 308
of this law, 39–41 standard, 311–313
uniform, 43, 224–225, 382, 459, 474 judicial systems, 25, 27, 31, 97, 99, 102,
intervention 107, 110, 176, 260, 511, 937
courts, 84–95, 100, 102, 108, 195, juridical persons, 28, 398
199–200, 237, 243, 251, 307, jurisdiction
309–310 arbitral, 75, 142–143, 199–200,
judicial, 84–92, 201, 237, 243, 293–294, 296–298, 301–303,
250–252, 645, 678, 936, 951 304, 312, 321–322, 324,
invalidity, 111, 148–149, 292, 301, 305, 328, 333
866, 870, 930, 938–939, 943 arbitrators, 155, 645, 783
of agreement, 479–480, 870–872, awards on, 155, 295, 311, 905–908
943–946 competence to rule on, 292–313
Iran–US Claims Tribunal, 626, 706, 712 exclusive, 250, 259–260, 409
Ireland, 136, 505, 507–508, 624 in personam, 368, 515
irregularities, procedural, 80, 180, 345, method of contesting, 310–311
534, 663, 799–801, 878, 886, territorial, 99, 512–513
928, 951–952 to recognise and enforce, 917–922
irregularity, 40, 80, 181, 186, 529, 708, tribunals, 154, 303, 307, 310, 328,
769, 800, 817, 947, 952 782, 784–785, 905–906, 944
irreparable harm, 347, 357–359, 379, jurisdictional claims, 71, 155, 809
503, 506–508, 521, 532 jurisdictional decisions, negative,
isolation, 48, 226, 594 308–310, 313, 872
Italy, 142, 147, 257, 264, 295, 388, 489, jurisdictional issues, 145, 154, 158, 239,
543–544, 682, 735, 763 299, 300, 312
jurisdictional nexus, 918, 919–921
judgments jurisdictional objections, 298, 303,
final, 158, 338, 354, 405 306–307, 309, 960
foreign, 45, 384, 719, 910, 921 jurisdictional powers, 91, 649–650
judicial assistance, 200–201, 721–722, jurisdictions
723–724, 727 foreign, 19, 174, 262
judicial authorities, 161, 329, 409, 490, Model Law, 221, 222–223, 283–284,
496, 769 289, 291, 570–572, 728, 786,
judicial control, 85, 87–88, 188, 266, 870, 877–878, 894, 896–898
295, 645 non-Model Law, 177, 181, 192, 225,
judicial determination, 145, 252 243, 299, 339, 352–353, 621,
judicial discretion, 182, 518, 952 729, 822, 909
judicial enforceability, 396, 461 justice, 56, 153–154, 310–311, 490, 492,
judicial functions, 98, 99–101, 105, 793 494–496, 508, 510, 538, 562,
judicial intervention, 84–92, 201, 237, 969, 971
243, 250–252, 645, 678, justifiable doubts, 195, 206, 208,
936, 951 209–211, 219, 224–225,
judicial non-interference, 89–90, 92 245–246, 272, 705
judicial proceedings, 146, 158, 613 justification, 5, 91, 119, 134, 155, 346,
judicial reasoning, 638, 895 597, 708, 739

998 in de x
Kenya, 102, 154, 197, 352, 494–495, 736–740, 750–751, 827–828,
823, 970 861–862
courts, 309, 487, 495–496, 639, 642, domestic/national, 123, 127, 129,
644, 650 132, 134, 207, 211, 580, 585,
knowledge, 13, 21, 72, 76, 78–80, 102, 586, 766, 770
136, 580, 624, 671, 703, legislative choice, 207, 283, 415, 912
712–713 legislative intent, 3, 23, 514, 603–604
special, 644, 704 legislators, national, 190, 289, 419, 776
Korea, 17, 101, 572, 708, 763 legitimacy, 208, 213, 794
legitimate expectations, 47, 403, 532
labels, 35, 604, 808, 809, 837, 879, legitimate interests, 36, 831, 839,
904, 907 841
lack of jurisdiction, 302, 305, 345, 454, letters, registered, 50, 53, 65–67,
648–649 828, 949
effect of failure to raise plea as to, lex arbitri, 54–55, 61, 182, 283–284,
303–305 555–556, 572–574, 580,
form and timing of plea as to, 748–751, 818–820, 828,
302–303 889–892, 912
language, 59–60, 127–128, 162, lex fori, applicable, 325, 329,
387–389, 393–394, 611–627, 338
690, 899, 929–931, 953, lex mercatoria, 41, 47, 77, 733, 740–743,
957, 959 755–757
choice of, 616, 617, 622 liability, 282, 287, 435, 437–439,
failure to expressly designate, 442–445, 448–452, 602, 741,
618–621 810, 815, 838, 839
mandatory, 469, 748 arbitral tribunals, 451–452
official, 613–614, 617, 625, 899, 925 civil, 318, 786, 814
original, 252, 777, 930 fault-based, 443–445
preferred, 615, 618, 621–622, 886 for costs, 441–443
requirements imposed under for interim measures requested in
institutional rules, 621–622 good faith, 450–451
last-known address, 67–68, 828, 949 imposition, 437–438
last-known place of business, 50, 53–54, strict, 436, 443, 445
65–66, 67–68, 828, 949 under previous State practice,
LCIA (London Court of International 439–441
Arbitration), 31, 111, 177, Libya, 744, 810, 838
410, 560, 595, 648, 693, likelihood of success, 362, 505–506
701, 768 likely harm, 355, 448
legal aid, 525–526, 532 limit to party autonomy, 289–290, 525,
legal costs, 336, 416, 440, 442, 800 785, 892
legal impediments, 256, 260, 465, 537 limitation periods, 51, 592–593, 597,
legal incapacity, 261, 939 601, 603, 606–609, 638, 642,
legal obligations, 46, 77, 213, 467, 883 772, 823, 832, 848
legal persons, 61, 125, 868–870 liquidated damages, 971–972
legal proceedings, 440, 525, 537, 603, list procedure, 234
607, 729 litigants, 184, 214, 215–217, 233, 527,
legal systems, 3, 28–30, 42–44, 48, 322, 532, 661, 730
440, 546–547, 732–733, reasonable, 533–535

in de x 999
litigation, 37, 54–56, 118–120, 146, 150, matters governed by this Law, 38, 84,
152–153, 354–355, 469–470, 87, 89–91, 486
560–562, 640, 644, 739 mediation, 120, 148, 801–804, 909
civil, 243, 510, 537, 640 mediators, 107–108, 801–802
local courts, 40, 45, 96, 171, 173, 176, meetings, 64, 85, 139, 304, 550, 565,
260, 309, 409, 572, 580, 583 568–569, 587–589, 667, 670,
location, 14, 19–21, 61, 110, 298, 573, 682, 684
581–583, 585–588, 597, 670, secret, 528–529
911, 918 Working Group, 10, 85, 501,
geographical, 582, 587–588 519
physical, 582, 587–588 merits, 144, 158–159, 165–167, 297,
long-distance communications, 305–307, 340–343, 361–364,
134, 590 438–439, 443–445, 503–509,
losing parties, 110, 241, 623, 624, 820, 648–650, 771–772
862, 870, 897 stage, 347, 351, 357, 444, 479, 649
Mexico, 27, 154, 318, 452, 544, 698,
mailing address, 50, 53–54, 61–62, 778
65–66, 67, 605, 828, 949 minimalist approach, 640–641, 727
main contract, 115, 301, 575, 619, minimum requirements, 120, 595, 641,
742–744, 867, 870, 931, 646, 856, 950, 958
944, 946 misconduct, 78, 451, 972
majority decisions, 579, 767–769, 958 Model Law, jurisdictions, 221, 222–223,
majority principle, 761, 764, 770 283–284, 289, 291, 570–572,
Malaysia, 105–106, 515, 516 728, 786, 870, 877–878, 894,
mandate, 280–281, 284, 285–288, 637, 896–898
831, 836, 844, 845–848, 849, money, 248, 296, 306, 338, 342, 446,
880, 883, 955–956 613, 774, 833
excess of, 879–883 morality, 492, 494–496, 788,
qualification of relationship between 969–971, 974
arbitrator and parties as multilateral treaties, 42, 45, 48, 63, 719
mandate, 279–281 multi-party arbitration, 202, 248
mandatory language, 469, 748 default procedure for appointment
mandatory obligations, 423, 636, of arbitrators, 201
650, 776 municipal courts, 319, 325, 329, 572,
mandatory requirements, 347, 527, 601, 864, 901, 904
617, 621, 631, 648 mutual agreement, 320, 639,
mandatory rules, 224, 552–553, 620, 646
631, 686, 737, 758, 959 mutual intention, 128, 645
manifest unfairness, 878
Marchisio, G., 780, 797, 799 narrow interpretation, 496, 968
Mareva injunctions, 165, 175, 504 national authorities, 525, 576, 663, 667,
material changes, 404, 422, 424–426, 670, 874, 877–878, 888, 906,
428–434 910–911, 922, 926
disclosure, 432–433 national courts, 88–95, 117–118, 222,
materiality, 430–431, 524, 557, 558, 225–226, 245–246, 300–302,
563, 723 585–586, 864–865, 868–870,
materiality and weight of evidence, 539, 933–935, 966–970, 975
541–542, 546, 557, 715, 723 national languages, 31, 614, 617

1000 in de x
national laws/legislation, 10–11, 14–15, non-signatories, 28, 493, 945
239, 249–250, 270, 316–317, Norway, 53, 296, 316, 512, 523, 544,
384–387, 388–390, 438, 735, 762
766–769, 790–791, 801–802 notice, 852
national legal systems, 123, 127, 129, proper, 59, 69, 480–483, 873, 875,
132, 134, 207, 211, 580, 585, 947–948
586, 766, 770 notification, 51–53, 56–58, 62, 65–68,
national legislators, 190, 289, 419, 776 69, 244, 265, 390, 392, 599,
national procedural law, 457, 748, 909 601, 827–828
nationality, 108, 187–188, 189–191, of arbitral proceedings, 68, 948
202, 204–205, 224, 570–571, process, 56, 57
577, 868, 912, 930, 940 proper, 56–59, 65, 481
arbitrators, 204–205 notification as due process guarantee,
issue, 202, 204 54–56
natural justice, 498, 533–534, 535, 553, notorious facts, 222–223
852, 947, 973 not-yet-binding awards, effects,
regulatory force, 553 961–964
rules, 494, 498, 533, 968 null and void arbitration agreements,
natural persons, 670, 747, 868–869, 148–149
940–942
negative jurisdictional decisions/ objections, 71–73, 78, 199–200,
rulings, 308–310, 313, 872 293–294, 297–298, 302–305,
reviewability, 308–310 381, 394, 425, 567–568,
negotiations, 119–120, 150, 314, 566 666, 708
New Zealand, 65, 163, 370–371, 465, jurisdictional, 298, 303, 306–307,
504, 509, 511, 512–513, 520, 309, 960
672, 854 objective arbitrability, 966
courts, 65, 168, 353, 361, 364, 366, obligations
370–371, 447, 512, 534 contractual, 54, 127, 510, 602, 969
non-arbitrability, 23, 149, 497, 932, 955 general, 613, 659, 667, 896,
rules, 8, 932 899–900, 912
non-arbitrable subject matter, 891–892 legal, 46, 77, 213, 467, 883
non-compliance, 71–73, 272, 483–484, mandatory, 423, 636, 650, 776
637, 685 observers, 9, 29, 85–87, 208, 228,
security provisions, 483–484 236–238, 381, 397, 701,
non-exhaustive lists, 3, 7, 332, 391 764–765
non-interference, judicial, 89–90, 92 official languages, 613–614, 617, 625,
non-judicial authorities, 99, 105, 899, 925
107–109, 110–111 Ontario, 9, 65, 79, 101, 956,
non-mandatory provisions, 73–74, 83, 971–972, 976
273–274, 639, 647, 656, opportunity
683, 848 to be heard, 406, 426
non-mandatory rules, 72, 631 to present case, 534–538
non-Model Law jurisdictions, 177, 181, opposition, 37, 119, 385, 410, 424, 475,
192, 225, 243, 299, 339, 592, 685, 779
352–353, 621, 729, 822, 909 opting out of Model Law, 554–556
non-participation, 692, 768 oral agreements, 48, 131–132, 139, 774,
non-payment, 275, 827, 829 923, 971

in de x 1001
oral arbitration agreements, 114, 132, panels, 25, 30–31, 122, 181–183,
139–140, 924 191–192, 286, 578, 758,
oral communications, 381, 387, 391 765–767, 816, 823
oral defences, 221–222, 226, 629, 667, partial awards, 781–782, 796, 810, 836,
876–877, 882 838, 905
oral evidence, 537, 715 partial recognition and enforcement,
oral hearings, 83, 529, 535–538, 953, 956–957
549–551, 655–663, 664, 665, partiality, 338, 671, 673,
666, 770, 960, 973 704–705
appropriateness, 664 parties, 226–248, 265–299, 386–417,
arbitral discretion, 665–666 518–595, 604–634, 651–682,
choice between hearings and 683–706, 731–761, 763–791,
documents-only 822–860, 865–899, 936–964
arbitration, 666 agreement on elements, 646–648
parties’ agreement to exclude, defaulting, 677–678, 679, 683,
660–661 688–689, 873
request by party to hold, 661–662 disclosing, 428–430, 431–433
tribunal failure to comply, disputing, 215, 217, 291, 584, 589,
662–664 837, 954
requests to hold on substantive and foreign, 15, 96
procedural ssues, 664 losing, 110, 241, 623, 624, 820, 862,
oral proceedings, 536, 549, 655 870, 897
oral reports, 697, 715 private, 30, 207, 322
order, definition, 840–841 recalcitrant, 259, 268, 455
orders requesting, 350, 375–376, 395,
court, 143, 171, 269, 609, 653, 413–417, 419, 424–426,
678, 963 433–438, 442–445, 448–453,
evidentiary, 722, 725 468–470, 849, 854
ex parte, 374, 378, 394, 425, responding, 386–387, 393, 426,
445–446, 447 445–446, 449, 482
freezing, 341, 489, 504 to arbitration, 12, 55, 97, 139–142,
preliminary, 338, 373–380, 381, 382, 144–145, 151, 154, 174, 300,
383, 386–399, 402–408, 414, 348, 635–636, 642
419–428, 432–435, 448, 451, unsuccessful, 580, 586, 862, 887,
461, 498 895–896, 964
referral, 147, 154 party agreement, 178, 182, 285, 385,
termination, 638, 783, 793, 831–832, 556, 588
834, 837–839, 840, 841, party autonomy, 11–12, 48–49, 55,
842–845 145–147, 157–158, 179–182,
Oregon, 163–164, 370 192, 242–243, 287–290,
organs, 25, 27, 31, 110, 248, 251, 260, 324–326, 524–525, 616–618,
461, 511, 937 621–623, 785
designated judicial, 99, 101, 105 and seat, 587–589
executive, 46, 198 as regards hearings and written
institutional, 193 proceedings, 659–665
origin, international, 38, 40–41, 45–46, definition and interpretation, 31–33
48–49 limits to, 289–290, 525–529, 785, 892
owners, 124, 166, 205, 948 party consent, 117, 328, 752, 955

1002 i nde x
party equality, 55, 291, 385, 524, plaintiffs, 82, 356, 366, 503–509, 510,
526–527, 828 513, 521, 533–535, 603, 605,
party impulse, 320, 322–324, 608, 724–726
865–866, 917 pleadings, 142, 531, 551, 622, 628, 640,
party non-signatories, third, 782 642–644, 651, 800, 951
party resisting recognition, 477, pleas, 78, 143, 292–295, 297, 303–304,
911, 954 306, 647, 649
party-appointed arbitrators, 180–181, Poland, 73, 296, 544, 658
183, 219, 232, 283, 285, policies, 118, 119–121, 190, 306, 496,
291, 960 559, 678, 762, 951
and presiding arbitrators, 215–217 policy choice, 208, 316, 320, 374, 765,
party-appointed experts, 214, 698, 704, 863, 892
707, 712, 714–717 policy reasons, 724, 727, 743
passengers, 2, 8–9 policy, public see public policy.
payment, 49, 166, 287, 340, 416, 775, posting of security, 445–448, 470, 484
777, 795–796, 830, 962, potential harm, 349, 355–359, 364–365,
965, 972 395, 472
payments powers
interim, 339–340 arbitral tribunals, 301, 314, 348–349,
settlement, 800 385, 397–399, 436, 541,
PCA (Permanent Court of Arbitration), 557, 656
109, 183, 193, 198, 238–239 competence-competence, 155,
periculum in mora, 379 298–299, 749
permanent arbitral institutions, 25, courts, 170, 172, 313, 371, 471, 487,
29–30, 239, 593 500–501, 510, 513–515, 520,
Permanent Court of Arbitration 722, 728
see PCA. discretional, 418, 657
personal delivery, 61, 63 discretionary, 295, 296, 419, 425, 428,
petitioners, 450, 635, 722 459, 474, 546, 684, 833–834
petitions, 145, 240, 252, 450, 648, 650, jurisdictional, 91, 649–650
795–796, 833 procedural, 161, 489, 550
Philippines, 102, 104–105, residual, 87, 585
511–512, 516 tribunals, 214, 293, 320, 333, 338,
Alternative Dispute Resolution 339–340, 374, 404, 406, 546,
Act, 104 650, 748
phraseology, 295, 850 practical relevance, 26, 220, 235, 374,
physical location, 582, 587–588 419, 874, 889–890
place of arbitration, 1, 10–11, 174, pre-award attachments, 162–163,
565–590, 805–806, 824–826, 164–165
932–933, 936–937, 953, 958, precedence, 665, 966
963–964, 974–976 precedent, 128, 155, 229, 489, 532–533,
place of award, 824–826 673, 780, 794, 812, 936
place of business, 1, 4–5, 13–18, 19–20, preclusion limitations, 74, 304
29, 50, 51–52, 62–64, 68, 93, preclusive effects, 37, 305, 910, 921, 964
570, 574 preconditions, 797, 903
last-known, 50, 53–54, 65–66, 67–68, predictability, 169, 230, 360, 497, 498,
828, 949 509, 645, 734, 824, 860,
principal, 20, 63, 577 930, 934

in de x 1003
pre-dispute agreements, 122, 574 private adjudication, 118, 138, 223,
preferred language, 615, 618, 227, 876
621–622, 886 private agreement, 828, 970
pre-hearing conferences, 536, 588 private autonomy, 32–33, 233, 288, 374,
pre-hearing discovery, 550, 559 566, 873, 889
prejudgment, 230, 340, 363, 877 private international law, 32, 49, 155,
prejudice, 55, 323, 335, 336, 360, 192, 384, 703, 721, 737,
362–363, 526, 531, 533, 647, 745, 747
649, 651–652 private parties, 30, 207, 322
procedural, 535, 633 privileged evidence, 560–561
preliminary issues, 200, 624, 649, 745 probative value, 530–531, 557
preliminary matters, 145, 296, 305–307, procedural activities, 220, 279, 282,
308, 503 573, 590
preliminary orders, 338, 373–380, 381, procedural choices, 547, 878–879, 888
382, 383, 386–399, 402–408, procedural conduct, 878, 886
414, 419–427, 428, 432–435, procedural decisions, 27, 89, 297, 306,
448, 451, 461, 498 385, 550–551, 578, 666, 759
modification procedural defects, 862, 972
suspension and termination, procedural economy, 589, 711
399–411 procedural estoppel, 78
need for security, 419–420 procedural fairness, 89, 250, 347, 482,
specific regime for, 381–398 523–524, 530, 532, 546, 558,
preliminary questions, 106, 145, 562–563, 724
292–293, 295–297, 306, test, 562–563
307–309, 650 procedural injustice, 86–88, 861
preliminary rulings, 145, 307 procedural irregularities, 80, 180, 345,
presentation of evidence, 535, 655–657, 534, 663, 799–801, 878, 886,
659, 665, 674 928, 951–952
preservation procedural law, 78, 99, 424, 489, 502,
assets, 314, 337–338, 340, 344, 529, 556, 560, 577, 677,
355 719, 736
evidence, 339, 355, 357, 365, 721, civil, 465, 556
729–730 domestic, 77, 487, 923
preservation of evidence, interim national, 457, 748, 909
measures for, 364–365 procedural powers, 161, 489, 550
presiding arbitrators, 191–194, 196, procedural prejudice, 535, 633
203, 216, 232, 234, 578–579, procedural public policy, 705
629, 758, 760–765, procedural requirements, 156, 272, 726
769–771, 816 procedural rights, 71–72, 203, 877–878
and party-appointed arbitrators, procedural rules, 89, 97, 523–524, 544,
215–217 547, 549, 554–556, 682, 686,
and questions of procedure, 770–771 688, 690, 720–721
presumptions, 128–129, 138, 156, 337, procedural standards, 502, 877, 934
550, 620, 806, 822, 825, 850 procedural unfairness, 91, 530, 723
pre-trial discovery, 725–726 procedure
prima facie case, 364, 503–506, 509 arbitral see arbitral procedure.
prima facie evidence, 197, 200 civil, 43, 75–76, 192, 223, 263, 272,
principal place of business, 20, 63, 577 304, 339, 369, 450, 683, 687

1004 in de x
procedure (cont.) prospective arbitrators, 207–209,
rules of, 393, 411, 524, 531, 539, 210–211, 214–215, 229, 235
542–544, 547, 562, 632 protection, 165–169, 174–175, 176,
procedures 343–345, 349–351, 355,
appointment, 97, 103–105, 187–189, 356–359, 397–400, 448–449,
191–192, 194–197, 198–201, 458–460, 462–465, 472
202–203 constitutional writs of, 94, 252–254
default, 192–193, 196, 198 temporary, 376, 396, 423, 432, 434
list, 234 under interim measures, 163–167
proceedings, 36–37, 221–223, 306–311, protective measures, 169, 343, 346–347,
615–625, 636–641, 675–677, 367, 384, 422–423, 597, 610
680–685, 688–694, 825–827, protective relief, 440, 610
831–835, 838–843, 872–879 provisional, 371, 481
arbitral, 72–76, 141–143, 303–305, provisional measures, 320–324,
516–519, 524–528, 589–607, 325–326, 332, 341, 374, 402,
613–617, 648–652, 720–724, 405–407, 409, 445, 476,
831–835, 842–846, 872–875 809, 837
default, 481, 636, 680 enforcement, 463–464
ex parte, 362, 676 provisional relief, 321–325, 346, 347,
foreign, 147, 730 364–365, 368, 371, 377, 433,
judicial, 146, 158, 613 437, 440, 444, 446–447
legal, 440, 525, 537, 603, 607, proximity, 19, 46, 582
729 public authorities, 902, 926
oral, 536, 549, 655 public interests, 22, 366–367, 447, 496,
termination, 637, 831–845 510–511, 967
truncated, 185, 816 public international law, 577, 738, 740,
production, of documents, 744, 901
713–715, 718 public policy, 291, 490–496, 740–741,
pro-enforcement bias, 478, 973 779, 786–787, 799, 865–866,
proof, 49, 54, 59, 62, 131–133, 350–355, 892–894, 932–933, 947,
477–479, 696, 864–866, 876, 965–966, 968–975
878, 936–937 and recognition and enforcement,
burden of, 49, 59, 70, 350, 354, 967–970
477–479, 531, 696, 712, and setting aside, 892–895
865, 936 international, 493, 495, 752, 778, 893,
of delivery, 57, 66, 69 933, 969
in electronic notifications, 68–69 notion, 496, 788, 861, 894
of receipt, 51, 57, 60, 68 procedural, 705
standard of, 350–355, 479, 696, 878 rules, 44, 301, 972
proper content, 52, 59–60 scope, 494, 967–968
proper notice, 59, 69, 480–483, 873, substantive, 895
875, 948 violation of, 149, 788, 936
content and criteria, 947–949
proper notification, 56–59, 65, 481 qualification requirements, 233, 581
property, 124, 163–165, 338, 458, 512, qualifications, 62, 188–189, 203–206,
565–566, 568, 589, 667, 670, 208, 223, 233–234, 272, 279,
713–714, 801 286, 433, 557, 581
immovable, 582, 747 challenge, 233–234

in de x 1005
quantification, 417, 753 grounds for refusal, 481, 497, 879,
factors influencing, 417 927–976
Quebec, 155, 205, 972 incapacity of party to agreement,
939–942
reappraisal, 963 interim measures, 100, 330, 454, 460,
reasonable doubts, 221, 223, 226–227, 470, 479, 485
229, 232–233, 235 invalidity of agreement, 943–946
reasonable inquiries, 50, 52–53, 56–57, irrespective of country in which
65–67, 68, 828, 949 award made, 911–912
reasonable litigants, 533–535 jurisdiction, 917–922
reasonable possibility, 343, 351, 357, obligation, 912
361, 364, 379 partial, 953, 956–957
of success, 351, 353, 361–364 party resisting, 477, 911, 954
reasoned awards, 820–822 procedural grounds for refusal,
reasoned decisions, 726, 794 972–975
reasoning, 368, 415, 420, 533–535, 811, provisional relief, 482
812, 819–821, 872, 874–875, recognition as binding, 913
887, 889, 951 refusal, 291, 481, 487, 493, 497, 499,
judicial, 638, 895 589, 879, 912
recalcitrant parties, 259, 268, 455 requirements for, 922
receipt, 52–53, 57, 61–62, 65–67, 68–69, stage, 139, 214, 251, 666, 919, 938
265, 269, 593–594, 599, 605, subjective scope, 914
827, 849 substantive grounds for refusal,
date of, 53, 70 970–972
effective, 54, 57, 59, 61, 63 recognition, resisting, 467, 862–863,
of requests, 604–606, 849 910, 920–922, 947, 966
of written communications, reference
50–70, 876 express, 78, 318, 659
proof of, 51, 57, 60, 68 incorporation by, 33, 135–139, 886
recipients, 59, 69, 380, 602–603, 770, referral, 109, 144–146, 151, 153–154,
875–876 155–159, 331
reciprocity, 44, 47, 720 by request of a party, 145–147
reservation, 581, 900, 911 in respect of actions not seised by
recognition and enforcement, 92–94, forum court, 147
113–115, 304–305, 453–455, orders, 147, 154
494, 889, 899–926, 931–943, requests, 144, 146, 157
951–953 refusal, 473–475, 478, 479–480,
adjournment of decision, 975 487–488, 490, 497–498, 503,
and public policy, 967–970 506, 508, 864, 913, 965
arbitral procedure, 957–960 grounds for, 458, 478, 479, 861, 864,
chronological scope, 915–916 879, 902, 922, 928, 934–935
composition of tribunal, 957–960 of enforcement, 118, 494–498, 738,
effect of setting aside or suspension 952, 956
of award, 964–966 of recognition and enforcement, 291,
enforcement upon application, 481, 487, 493, 497, 499, 589,
916–917 879, 912
foreign awards, 863–864, regional courts, 101, 705, 791, 798–799,
900–901, 965 960, 962–963

1006 in de x
registered letter, 50, 53, 65–67, 828, 949 for arbitration, 548–549, 594–596,
relationship, closest, 1, 19–21, 63 600–603, 604–606, 628,
relationships 641, 796
commercial, 1, 13, 16–17, 174 for assistance, 88, 457, 720
contractual, 91, 127, 279–280, 285, for enforcement, 459, 463, 476, 480,
621, 772 490, 923
hierarchical, 35, 329, 755 for interim measures, 109, 160–161,
relevance, 218, 222, 226, 539–542, 320, 377–378, 428, 503
544–546, 557, 558–561, 578, moment of request, 855
580, 723–724, 727, 886 receipt, 604–606, 849
practical, 26, 220, 235, 374, 419, 874, referral, 144, 146, 157
889–890 valid, 596, 603, 845
relevant documents, 594, 671, 697, requests for arbitration, 548–549,
714, 949 594–596, 600–603, 604–606,
reliability, 210, 224, 558 628, 641, 796
relief requirements
anticipatory, 339–340 mandatory, 347, 527, 601, 631, 648
ex parte, 419, 446 minimum, 595, 641, 646, 856,
injunctive, 254, 507 950, 958
interim, 177, 315–316, 318, 320, 323, procedural, 156, 272, 726
369, 439–441, 445–446, qualification, 233, 581
502–503, 505–508, 514–515, res judicata, 402, 638, 755, 794, 797,
520–521 806–808, 810–812, 835–836,
interlocutory, 362, 505, 507 839, 841, 914–915, 917
protective see protective relief. reservations, reciprocity, 581, 900, 911
provisional, 321–325, 346, 347, residence, 21, 51–53, 66, 868, 930,
364–365, 368, 371, 377, 433, 940
437, 440, 444, 446–447 habitual see habitual residence.
requests for, 538 residual powers, 87, 585
temporary, 321, 327, 343, 375 resignations, 269–270, 283, 285, 652
urgent, 177, 322, 324, 340 respondents, 68–70, 440–442, 480–482,
remission, 861, 897–898 600–602, 639–640, 646–649,
removal, 44, 223–226, 230, 233, 259, 678–683, 691–695, 781–782,
273, 276, 286, 405, 582 798–799, 948–951, 970–976
arbitrators, 232, 271 responding parties, 386–387, 393, 426,
replacement of arbitrators, 111, 186, 445–446, 449, 482
273, 283, 289, 768 responsibility, 67–69, 106–107, 270,
reports, 86, 540, 683–685, 697, 702, 704, 456, 937
708, 715, 758, 761–763, review, 99–100, 106, 144, 154–155,
967, 974 240–241, 306, 308–313, 400,
oral, 697, 715 404–407, 409–410, 498,
requesting parties, 350, 375–376, 395, 706–707
413–417, 419, 424–426, appellate, 203, 306
433–438, 442–445, 448–453, court, 241, 244, 257, 299–300, 307,
468–470, 849, 854 735, 748
requests judicial see judicial review.
as means of commencing arbitration, of jurisdiction, 106
601–602 reviewability, 308, 310

ind ex 1007
revision, 38–39, 41, 178–179, 318–319, of public policy, 494, 967–968
326, 328, 407, 415–416, 418, of security, 413, 417–418
422, 424, 760–761 subjective, 28, 914–915
revocation, 277, 287, 405, 414, 420, scrutiny, 154, 221, 250, 532, 578,
482, 737 786–787, 789, 881, 956
by agreement of the parties, 285–287 seat
rights activities which tribunal can carry
due process, 55, 527, 623, 626, 752 out outside seat, 589
fundamental, 389, 667, 873–874 and convenience of parties, 583–585
procedural, 71–72, 203, 877–878 and party autonomy, 587–589
third parties, 453, 471–472, 967 choice, 298, 572–573, 574, 576,
to supplement, 653–654 825–826
to translation, 612 indirect, 574–576
rules definition, 569–571
applicable to substance of dispute, failure to determine, 585–587
732–757 juridical, 588, 806, 825–826
mandatory, 224, 552–553, 620, 631, limitation of parties’ freedom,
686, 737, 758, 959 576–577
non-mandatory, 72, 631 of arbitration, 99, 278, 566, 570–580,
of evidence, 531, 540–541, 546, 582, 585–586, 863, 889, 897,
556–557, 559–560, 696, 811 903–904, 963–964, 965–966
of interpretation, 31, 34, 35, 40 practical considerations, 581–583
of law, 732–734, 737–742, 743, 745, selection by arbitral tribunal,
749, 751, 755–757 577–587
of natural justice, 494, 498, 533, 968 selection by parties, 571–576
of procedure, 393, 411, 524, 531, 539, secret meetings, 528–529
542–544, 547, 562, 632 secretaries, administrative, 213–214
procedural, 89, 97, 523–524, 544, security, 174, 176, 318, 336, 375,
547, 549, 554–556, 682, 686, 412–418, 436, 440–441,
688, 690, 720–721 445–446, 453, 468–472,
public policy, 44, 301, 972 483–484
supplementary, 97, 189, 240, 541, 566 adequate, 317, 413, 420
Russia, 18, 66, 81–82, 101–102, 232, appropriate, 315, 318, 412, 420, 435,
291, 556, 703, 749, 885, 453, 460, 468–469, 472,
962, 970 483–484, 928, 976
courts, 232, 291, 304, 548–549, bonds, 441, 446–447
556, 564 for costs, 163, 336–337, 410, 418, 465
for costs and damages, 445–448
scheduled hearings, 79, 285, 669 non-compliance with provisions,
scope, 86, 90–92, 126–128, 172–174, 483–484
212–213, 292–293, 298–299, posting, 445–448, 470, 484
634–636, 643, 670–672, provision, 314–315, 318–319, 375,
880–883, 953–957 412, 414–416, 418, 420–421,
extraterritorial, 729 446, 483
of arbitrability, 892, 967 scope, 413, 417–418
of arbitral proceedings, 615–616 seizure, 163, 165
of arbitration clauses, 127–128 senders, 51, 54, 61, 62, 67–69, 70, 602,
of interim measures, 173, 349, 501 828, 855

1008 i nde x
separability, 121, 123, 154, 158, 301, arbitration as means of inducing, 801
867, 870, 944 final, 36, 764, 831, 841
service contracts, 279, 284 form of award, 790–791
service providers, 284, 746 payments, 800
services, 2, 51, 61, 62, 67–68, 70, 219, status and effect of award, 792–801
504, 746, 795–796 terms, 774, 779, 783
set-off, 49, 629, 651–652, 973 severability, 300–302, 782, 883
setting aside, 106–107, 295–297, signatures, 124, 130–131, 137, 149, 763,
304–305, 310–313, 486, 804–805, 812–815, 816–818,
580–582, 851–853, 858–870, 823, 905, 925, 945
873–874, 891, 894–896, digital/electronic, 130–131, 134, 814
897–898 Singapore, 20, 101–102, 164, 175–176,
absence of proper notice, 872–876 268, 305, 312–313, 352, 372,
and party impulse, 865–866 515, 788, 967–969
applications for, 83, 305, 312, 465, courts, 17, 20, 305, 308–309,
702, 704–705, 708, 717, 800, 311–312, 515, 531, 533,
858–898 643–644, 707, 709, 967
time limit, 895–897 soft law instruments, 77, 352, 730, 794
arbitral procedure not in accordance sole/single arbitrators, 30–31, 178–179,
with agreement of parties, 182, 191–193, 195, 198–199,
885–888 239, 247–249, 267, 599,
arbitral procedure not in accordance 662–663, 763–767
with Model Law, 890–891 Soviet Union see also Russia, 237, 295,
composition of tribunal, 884–885, 632, 673, 682, 685, 916
890–891 Spain, 54, 154, 367–368, 790
confllict between agreement of courts, 56, 203, 212, 222, 228, 233,
parties and mandatory 669, 885
provisions of Model Law, special authorisation, 399, 676
888–890 special knowledge, 644, 704
excess of mandate, 879–883 specificity, 162, 232, 603–604, 673, 724,
exclusive nature of recourse, 862 727, 866, 911, 944
inability to present case, 876–879 specified authorities, 198, 200–201,
incapacity of party to agreement, 202–204
866–870 standard of proof, 350–355, 479,
invalidity of agreement, 870–872 696, 878
obligations standard of review required of courts,
discretion and powers of court, 154–156
863–865 standard terms, 136, 575, 755
public policy, 892–895 standards, 155, 207, 355, 360, 469, 494,
severability, 883 502, 505, 688, 931
subject matter of dispute, 891–892 general, 211, 270, 877
suspension of setting aside procedural, 502, 877, 934
proceedings, 897–898 State courts, competent, 129, 135, 324,
settlement, 143, 199, 231, 772–804, 891, 331, 338, 454
908–909, 928, 932 statements, 2, 7, 219, 628–636, 639–641,
agreements, 768, 773–776, 780–782, 646–648, 654–655, 671,
784, 787, 790–791, 796, 673–676, 690–691, 789, 791
799–800, 803, 908 declaratory, 775, 797

in dex 1009
disclosure, 211, 215, 219, 235 before courts, 141–159
elements, 639–646 substantive fairness, 492, 530, 947
party agreement on, 646–648 substantive law, 33, 147, 279, 287, 544,
first, 82, 141–142, 156–157, 640 556, 732, 737, 740, 746,
of acceptance, 210, 215 747–751, 791
of claim, 36, 599, 601, 604, 628–654, applicable, 32, 122, 287, 734–735,
679, 689–691, 842, 923–924 754
of defence, 303, 304, 618, 628–654, substantive liability test, 443–445
678–683, 923–924 substantive public policy, 895
jurisdictional questions and filing, substitute arbitrators, 82, 185, 267, 270,
648–650 274–275
of independence and impartiality, appointment, 277–291
213, 219, 222 success, 347, 351, 364, 509,
of principle, 699, 701, 710 600
witness, 551, 707, 724 chances of, 58, 66
written, 236, 611, 625, 647–648, likelihood of, 362, 505–506
663, 740 reasonable possibility of, 351, 353,
status quo, 314, 327, 330, 334, 344, 361, 361–364
375, 503, 510 ultimate, 357, 505
strict liability, 436, 443, 445 successful delivery, 68–69
subject matter, 13, 16–18, 28–29, 36, sufficient cause, 440, 637–638, 669, 675,
49–51, 147–149, 163–164, 676–681, 683, 684, 685, 686,
315–316, 328–329, 490–491, 687–689, 691, 693–694, 722,
646–647, 905–907 832, 842
main, 328, 907 sufficient information, 593, 596, 597,
non-arbitrable, 891–892 640, 857
subjective arbitrability, 966 supervision, 17, 89, 94–96, 678,
subjective scope, 28, 914–915 719
submission supplement, right to, 653–654
agreements, 121, 124, 181–182, supplementary rules, 97, 189, 240,
184–186, 526, 618, 621–623, 541, 566
626, 812, 816, 835, 881 supplements, right to supplement,
to arbitration, 640, 643, 858, 653–654
881–882, 927, 953–955, Supreme Courts, 68–69, 78–79, 82–83,
956, 957 145–146, 151, 155–157, 267,
submissions, 80–83, 440, 533–534, 298–299, 301–302, 496,
626–633, 634–636, 639–640, 798–799, 854
643, 647–648, 799–800, surprise documents, 671
881–882, 950–951, 953–956 surprise effect, 338, 341–342, 378,
written, 393, 407, 426, 549, 618, 660, 379, 419
663, 950 surprise, element of, 346, 383, 389,
subordination of Art. 19 to mandatory 396–397, 482, 535
rules, 552 suspension, 142, 399, 402–403, 406,
subpoenas, 165, 723, 725, 728 453, 467, 480, 486, 606, 624,
substance of dispute, rules applicable 650, 964
to, 732–757 Sweden, 68, 73, 142, 543, 658, 762, 849
substantial harm, 357–358 Switzerland, 243, 321, 441, 450–451,
substantive claims, 94, 835 465, 494, 609, 795, 965

1010 in de x
tacit waivers, 74, 78, 81 tests, 355, 357–360, 362, 364–366, 371,
tactics, dilatory, 195, 237, 241, 268, 379–380, 503–506, 508–509,
296–297, 306, 362, 524, 652, 511, 809, 811, 823–826
721, 726 balancing, 266, 378
taking of evidence, 77, 695–696, 704, objective, 810, 838
706, 709, 713, 715, 718, timeliness, 72, 76
719–722, 724–725, 727, textual uniformity, 43–44
730–731 that, 755
court assistance in, 100, 108, 718–731 third parties, 32–34, 124–125, 146, 160,
Tanzania, 293–295, 352, 701 163, 170, 198–199, 338, 361,
technical experts, 697, 702, 705 472, 574–575, 729–730
telecommunication, 57, 114 determination, 31, 575
telegrams, 112, 113 innocent, 361
telex, 112, 134, 764 rights, 453, 471–472, 967
temporary measures, 314, 320–321, trusted, 32
328, 344, 384, 402, 407 three-factored test, 561–562
temporary relief, 321, 327, 343, 375 three-person tribunals, 196, 265,
termination, 255–256, 258–261, 884
264–266, 268, 271–274, three-prong test, 509–511
284–286, 399–404, 467, time
635–638, 831–834, 838–841, earliest practicable, 381, 386,
842–844 393–395
and continuation of proceedings, of commencement, 591–592,
274–275 598–601, 887
any other case, 287 time limits, 71–72, 82–83, 104,
automatic, 259, 395 197–198, 265–266, 267–268,
by agreement of the parties, 271 272, 517–518, 828–829,
by request to court or other 845–848, 855, 919
authority, 271 agreed, 198, 265–266
non-formal proceeding, 272 applications for setting aside,
non-mandaory character of Art. 895–897
14, 273 definite, 82, 518
of arbitral mandate, 279–287 extension, 855
of proceedings, 637, 831–845 strict, 155, 854
orders, 638, 783, 793, 831–832, 834, time frames, 83, 240, 244–245, 250, 394,
837–839, 840, 841, 843–845 429, 467, 599
revocation by tribunal, 842 timelines, 72, 157, 245, 629, 724,
procedure, 272–274 727, 849
time limit, 272–273 before corrected
terms of the contract, and choice of law, interpreted and additional
755–756 awards, 854
terms, standard, 136, 575, 755 timeliness, 72, 76, 157
territorial application, 11–12 tort, 79, 127–129, 444, 512, 815,
territorial criterion, 11–12 824, 839
territorial jurisdiction, 99, 512–513 trade usages, 735, 738, 753, 755,
territory, 174, 352, 454, 464, 468–469, 756–757
507, 565, 568–569, 590, 728, transactions, 2, 7–8, 29, 64, 128, 301,
918, 920 642, 732, 736, 750, 940

ind ex 1011
international commercial, 115, Art. 36, 928–933
733, 869 Art. 3, 50–54
translation, 611–613, 616, 620–621, Art. 4, 71–73
625–626, 925–926 Art. 5, 84–88
costs, 615–617, 621 Art. 6, 96–100
of documentary evidence, 613, Art. 7, 113–116
626 Art. 8, 141–143
right to, 612 Art. 9, 160–163
translators, 623–624, 925 treaties, 10, 40–42, 45, 47–48, 69, 77,
travaux préparatoires 382, 581, 756, 804
Art. 1, 2–5 bilateral, 10, 567, 581, 901
Art. 11, 188–189 multilateral, 42, 45, 48, 63, 719
Art. 12, 206–208 trial, 354, 357, 362, 505, 512, 623, 644,
Art. 13, 236–241 725, 799
Art. 14, 255–260 tribunal-appointed experts, 213–214,
Art. 15, 277–279 671, 698–712, 713–717
Art. 16, 293–297 tribunals
Art. 17, 314–319 arbitral see arbitral tribunals.
Art. 17A, 343–346 jurisdiction, 154, 303, 307, 310, 328,
Art. 17B, 373–375 782, 784–785, 905–906, 944
Art. 17C, 381–389 powers, 214, 293, 320, 333, 338,
Art. 17D, 399–402 339–340, 374, 404, 406, 546,
Art. 17E, 412–415 650, 748
Art. 17F, 422–428 three-person, 196, 265, 884
Art. 17G, 435–439 truncated, 83, 185–186, 290–291,
Art. 17H, 453–461 768, 816
Art. 17I, 474–479 truncated awards, 185, 816
Art. 17J, 500–502 truncated proceedings, 185, 816
Art. 18, 522–524 truncated tribunals, 83, 185–186,
Art. 19, 539–546 290–291, 768, 816
Art. 2, 25–28 trusts, 123, 124–125, 128–129, 131,
Art. 2A, 38–39 648–649, 871
Art. 20, 565–569 truth, 536–537, 561, 725
Art. 21, 592–597 Turkey, 64, 67, 101, 230, 243, 516–518
Art. 22, 611–613 typographical errors, 404, 846, 848,
Art. 23, 630–634 856, 897
Art. 24, 655–659
Art. 25, 675–686 UK see United Kingdom.
Art. 26, 697–701 Ukraine, 18, 101–102, 887
Art. 27, 718–722 umpires, 759, 766, 769
Art. 28, 732–736 unanimity, 370, 767–768, 770, 944,
Art. 29, 758–765 958
Art. 30, 776–780 unanimous decisions, 765, 767, 770
Art. 31, 805–807 unbiasedness, 204, 208–209, 213,
Art. 32, 831–834 216–217, 223
Art. 33, 847–850 uncertainties, 3, 5, 357, 360, 480, 483,
Art. 34, 860–862 489, 495, 502, 735, 739,
Art. 35, 900–903 744–745

1012 in de x
undue delay, 71, 81, 82, 201, 202–203, validation principle, 869, 940
245, 255, 258–259, 261, validity, 113–114, 128–130, 139–140,
263–268, 272–273, 276, 282 150–151, 255–256, 290–292,
unenforceability, 290, 388–389, 398 293, 301–302, 480, 575, 870,
unfairness 943–945
manifest, 878 formal, 129, 808
procedural, 91, 530, 723 of arbitration agreements, 113, 117
uniform interpretation, 43, 224–225, variants, 458–459, 474–475, 488,
382, 459, 474 490–491, 502–503, 681, 735,
uniformity, 38–45, 48–49, 75, 143, 169, 745, 832, 834
188, 304, 593, 596, 809, videoconferencing, 590, 669–670
812, 815 voluntary withdrawal, 261, 275
applied, 43–45 votes, 125, 248, 764, 769
functional, 43–44 casting, 759
promotion, 41–45 deciding, 181, 769
textual, 43–44 decisive, 760, 763
unilaterality, prohibition in relation to
choosing/amending arbitral waivers, 71–76, 78–82, 135, 148, 156,
procedure, 549 161, 246, 262, 299, 527,
United Kingdom, 86–87, 342, 388, 507, 797, 821
643, 648–650, 724, 765 nature, 76–81
courts, 59, 147, 368, 563, 729, 970 of right to object, 71–83
United States, 216, 223, 445, 446, scope, 73–76
543–544, 730, 765, 849, 920, tacit, 74, 78, 81
929, 957, 965 way, 857
courts, 60, 69, 164, 299, 369, 447, 489, weaker parties, 336, 525, 532, 566
547, 623, 795–796, 821, 845 weight of evidence, 539, 541–542, 546,
Oregon, 163–164, 370 557–558, 715, 723
unjustified withdrawal, 282, 284 withdrawal, 36–37, 259, 276–277,
unnecessary delay, 617, 688 282–283, 285
unsuccessful parties, 580, 586, 862, 887, arbitrators, 247, 269–270
895–896, 964 capricious, 283
unwilling arbitrators, 270, 283 claimants, 842–843
urgency, 360, 364, 387, 393, 429, 451, unforeseeable, 282
479, 597 unjustified, 282, 284
urgent relief, 177, 322, 324, 340 voluntary, 261, 275
usage, 132, 367, 738, 755–756 witness evidence, 568, 659, 667
common, 132–133 witness statements, 551, 707, 724
industry-wide, 756 witnesses, 131, 139, 536–537, 582–583,
trade, 735, 738, 753, 755–757 589, 655, 659, 718, 722–723,
use of force, 321 724, 726, 728–729
expert, 655, 659, 697–699, 715–716
valid agreements, 33, 133–134, 866, Working Group, 2–5, 252–260,
871, 880, 882, 906, 908, 345–351, 383–388, 412–418,
923, 954 420–427, 474–480, 655–659,
valid arbitration clauses, 80, 883, 675–684, 698–701, 759–762,
907 928–933
valid requests, 596, 603, 845 Working Group II, 307, 803, 832–833

in de x 1013
Working Group, meetings, 10, 85, written form, 39, 115–116, 129, 134,
501, 519 138–140, 598, 604, 632
writing, 126, 129–135, 139, 245, 247, written or oral defences, 221–222,
663, 802, 805, 807, 812, 917, 226, 876
923–924 written proceedings and hearings,
agreements in, 113, 129–131, 134, 655–674, 699–700
139, 802, 971 written statements, 236, 611, 625,
writs, 93, 398, 647–648, 663, 740
728 written submissions, 393, 407, 426, 549,
written agreements, 115, 129, 131–132, 618, 660, 663, 950
135, 139–140, 555
written communications, 50–52, 54, Yugoslavia, 544, 735, 763
56–61, 63, 66, 69, 70, 132,
598, 605, 828, 876 Zimbabwe, 163, 168, 975


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UNCITRAL MODEL LAW

This book provides a comprehensive commentary on the UNCITRAL

ilias bantekas is Professor of International Law and Arbitration at

Published online by Cambridge University Press

Published online by Cambridge University Press

Cambridge University Press is part of the University of Cambridge.

Published online by Cambridge University Press

This book provides a comprehensive commentary on the UNCITRAL

ilias bantekas is Professor of International Law and Arbitration at

Published online by Cambridge University Press

Published online by Cambridge University Press

Cambridge University Press is part of the University of Cambridge.

Published online by Cambridge University Press

This book provides a comprehensive commentary on the UNCITRAL

ilias bantekas is Professor of International Law and Arbitration at

Published online by Cambridge University Press

Published online by Cambridge University Press

Cambridge University Press is part of the University of Cambridge.

Published online by Cambridge University Press

Preface page xxxv

Article 1: Scope of Application 1

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1. Background and Travaux

Article 3: Receipt of Written Communications 50

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4. ‘Without Undue Delay’ 81

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2. Involvement of Courts in Arbitral

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Article 8: Arbitration Agreement and Substantive Claim

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Article 9: Arbitration Agreement and Interim Measures

3. Grant of Interim Measure by

4. Truncated Tribunals 185

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Article 12: Grounds for Challenge 206

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3. Paragraph 2: The Challenge 223

Article 13: Challenge Procedure 236

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Article 14: Failure or Impossibility to Act 255

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1. Background and Travaux

Article 16: Competence of Arbitral Tribunal to Rule on Its

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Article 17: Power of Arbitral Tribunal to Order Interim

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Article 17A: Conditions for Granting Interim

3. Requesting Interim Measures in

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1. Background and Travaux

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Article 17F: Disclosure 422

2. Liability for Costs 441

4. Security for Costs and Damages 445

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8. Liability of Arbitral Tribunal? 451

2. Chapeau: Refusal at the Request of a

3. Paragraph 1(b): Refusal by a Court

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4. Paragraph 2: Review of the Substance of the

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4. Full Opportunity to Present One’s

Article 19: Determination of Rules of Procedure 539