Commercial Arbitration and
Other Alternative Dispute Resolution Methods
United Nations
Commission on International Trade Law (UNCITRAL)
Model Law on International Commercial Arbitration
CONTENTS
Chapter I. General provisions
- Article
1. Scope of application
- Article
2. Definitions and rules of interpretation
- Article
3. Receipt of written communications
- Article
4. Waiver of right to object
- Article
5. Extent of court intervention
- Article
6. Court or other authority for certain functions of arbitration
assistance and supervision
Chapter II. Arbitration agreement
- Article
7. Definition and form of arbitration agreement
- Article
8. Arbitration and substantive claim before court
- Article
9. Arbitration agreement and interim measures by court
Chapter III. Composition of arbitral tribunal
- Article
10. Number of arbitrators
- Article
11. Appointment of arbitrators
- Article
12. Grounds for challenge
- Article
13. Challenge procedure
- Article
14. Failure or impossibility to act
- Article
15. Appointment of substitute arbitrator
Chapter IV. Jurisdiction of arbitral tribunal
- Article
16. Competence of arbitral tribunal to rule on its jurisdiction
- Article
17. Power of arbitral tribunal to order interim measures
Chapter V. Conduct of arbitral proceedings
- Article
18. Equal treatment of parties
- Article
19. Determination of rules of procedure
- Article
20. Place of arbitration
- Article
21. Commencement of arbitral proceedings
- Article
22. Language
- Article
23. Statements of claim and defence
- Article
24. Hearings and written proceedings
- Article
25. Default of a party
- Article
26. Expert appointed by arbitral tribunal
- Article
27. Court assistance in taking evidence
Chapter VI. Making of award and termination of proceedings
- Article
28. Rules applicable to substance of dispute
- Article
29. Decision making by panel of arbitrators
- Article
30. Settlement
- Article
31. Form and contents of award
- Article
32. Termination of proceedings
- Article
33. Correction and interpretation of award; additional award
Chapter VII. Recourse against award
Article
34. Application for setting aside as exclusive recourse against
arbitral award
Chapter VIII. Recognition and enforcement of awards
Article
35. Recognition and enforcement
Article
36. Grounds for refusing recognition or enforcement
Explanatory Note by the UNCITRAL Secretariat
on the Model Law on International Commercial Arbitration
A. Background to the Model Law
- 1. Inadequacy of domestic laws
- 2. Disparity between national laws
B. Salient features of the Model Law
- 1. Special procedural regime for international
commercial arbitration
- 2. Arbitration agreement
- 3. Composition of arbitral tribunal
- 4. Jurisdiction of arbitral tribunal
- 5. Conduct of arbitral proceedings
- 6. Making of award and termination of proceedings
- 7. Recourse against award
- 8. Recognition and enforcement of awards
CHAPTER I. GENERAL PROVISIONS
Article
1. Scope of application*
(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, 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 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 connected; or
(c) the parties have expressly agreed
that the subject-matter of the \arbitration agreement relates to more than one
country.
* Article headings are for reference purposes only and are not to be used
for purposes of interpretation.
* *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; construction of works; consulting; engineering;
licensing; investment; financing; banking; insurance; exploitation agreement or
concession; joint venture and other forms of industrial or business
co-operation; carriage of goods or passengers by air, sea, rail or road.
(4) For the purposes of paragraph (3) of this article:
(a) if a party has more than one place of
business, the place of business is that which has the closest relationship to
the arbitration agreement;
(b) if a party does not have a place of
business, reference is to be made to his habitual residence.
(5) This Law shall not affect any other law of this State by virtue of which
certain disputes may not be submitted to arbitration or may be submitted to
arbitration only according to provisions other than those of this Law.
Article 2. Definitions and rules of interpretation
For the purposes of this Law:
(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.
Article 3. Receipt of written communications
(1) Unless otherwise agreed by the parties:
(a) any written communication is deemed
to have been received if it is delivered to the addressee personally or if it is
delivered at his place of business, habitual residence or mailing address; if
none of these can be found after making a reasonable inquiry, a written
communication is deemed to have been received if it is sent to the addressee's
last-known place of business, habitual residence or mailing address by
registered letter or any other means which provides a record of the attempt to
deliver it;
(b) the communication is deemed to have
been received on the day it is so delivered.
(2) The provisions of this article do not apply to communications in court
proceedings.
Article 4. Waiver of right to object
A party who knows that any provision of this Law from which the parties may
derogate or any requirement under the arbitration agreement has not been
complied with and yet proceeds with the arbitration without stating his
objection to such non-compliance without undue delay or, if a time-limit is
provided therefor, within such period of time, shall be deemed to have waived
his right to object.
Article
5. Extent of court intervention
In matters governed by this Law, no court shall intervene except where so
provided in this Law.
Article
6. Court or other authority for certain functions of arbitration
assistance and supervision
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.]
CHAPTER II. ARBITRATION AGREEMENT
Article
7. Definition and form of arbitration agreement
(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. An agreement is in writing
if it is contained in a document signed by the parties or in an exchange of
letters, telex, telegrams or other means of telecommunication which provide a
record of the agreement, or 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 reference in a contract to a document containing an arbitration
clause constitutes an arbitration agreement provided that the contract is in
writing and the reference is such as to make that clause part of the contract.
Article 8. Arbitration agreement and substantive claim before
court
(1) A court before which an action is brought in a matter which is the
subject of an arbitration agreement shall, if a party so requests not later than
when submitting his first statement on the substance of the dispute, refer the
parties to arbitration unless it finds that the agreement is null and void,
inoperative or incapable of being performed.
(2) Where an action referred to in paragraph (1) of this article has been
brought, arbitral proceedings may nevertheless be commenced or continued, and an
award may be made, while the issue is pending before the court.
Article 9. Arbitration agreement and interim measures by court
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.
CHAPTER III. COMPOSITION OF ARBITRAL TRIBUNAL
Article 10. Number of arbitrators
(1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, the number of arbitrators shall be three.
Article 11. Appointment of arbitrators
(1) No person shall be precluded by reason of his nationality from acting as
an arbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree on a procedure of appointing the arbitrator
or arbitrators, subject to the provisions of paragraphs (4) and (5) of this
article.
(3) Failing such agreement,
(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) a party fails to act as required
under such procedure, or
(b) the parties, or two arbitrators, are
unable to reach an agreement expected of them under such procedure, or
(c) a third party, including an
institution, fails to perform any function entrusted to it under such procedure,
any party may request the court or other authority specified in article 6 to
take the necessary measure, unless the agreement on the appointment procedure
provides other means for securing the appointment.
(5) A decision on a matter entrusted by paragraph (3) or (4) of this article
to the court or other authority specified in article 6 shall be subject to no
appeal. The court or other authority, in appointing an arbitrator, shall have
due regard to any qualifications required of the arbitrator by the agreement of
the parties and to such considerations as are likely to secure the appointment
of an independent and impartial arbitrator and, in the case of a sole or third
arbitrator, shall take into account as well the advisability of appointing an
arbitrator of a nationality other than those of the parties.
Article 12. Grounds for challenge
(1) When a person is approached in connection with his possible appointment
as an arbitrator, he shall disclose any circumstances likely to give rise to
justifiable doubts as to his impartiality or independence. An arbitrator, from
the time of his appointment and throughout the arbitral proceedings, shall
without delay disclose any such circumstances to the parties unless they have
already been informed of them by him.
(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 appointment he has participated, only
for reasons of which he becomes aware after the appointment has been made.
Article 13. Challenge procedure
(1) The parties are free to agree on a procedure for challenging an
arbitrator, subject to the provisions of paragraph (3) of this article.
(2) Failing such agreement, a party who intends to challenge an arbitrator
shall, within fifteen days after becoming aware of the constitution of the
arbitral tribunal or after becoming aware of any circumstance referred to in
article 12(2), send a written statement of the reasons for the challenge to the
arbitral tribunal. Unless the challenged arbitrator withdraws from his office or
the other party agrees to the challenge, the arbitral tribunal shall decide on
the challenge.
(3) If a challenge under any procedure agreed upon by the parties or under
the procedure of paragraph (2) of this article is not successful, the
challenging party may request, within thirty days after having received notice
of the decision rejecting the challenge, the court or other authority specified
in article 6 to decide on the challenge, which decision shall be subject to no
appeal; while such a request is pending, the arbitral tribunal, including the
challenged arbitrator, may continue the arbitral proceedings and make an award.
Article 14. Failure or impossibility to act
(1) If an arbitrator becomes de jure or de facto unable to
perform his functions or for other reasons fails to act without undue delay, his
mandate terminates if he withdraws from his office or if the parties agree on
the termination. Otherwise, if a controversy remains concerning any of these
grounds, any party may request the court or other authority specified in article
6 to decide on the termination of the mandate, which decision shall be subject
to no appeal.
(2) If, under this article or article 13(2), an arbitrator withdraws from his
office or a party agrees to the termination of the mandate of an arbitrator,
this does not imply acceptance of the validity of any ground referred to in this
article or article 12(2).
Article 15. Appointment of substitute arbitrator
Where the mandate of an arbitrator terminates under article 13 or 14 or
because of his withdrawal from office for any other reason or because of the
revocation of his mandate by agreement of the parties or in any other case of
termination of his mandate, a substitute arbitrator shall be appointed according
to the rules that were applicable to the appointment of the arbitrator being
replaced.
Continue on to: Chapter IV: Jurisdiction of Arbitral Tribunal: Article
16: "Competence of Arbitral Tribunal to rule on its Jurisdiction"
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