Commercial Arbitration and
Other Alternative Dispute Resolution Methods
United Nations
Commission on International Trade Law (UNCITRAL)
Model
Law on International Commercial Arbitration
CHAPTER IV. JURISDICTION OF ARBITRAL TRIBUNAL
Article 16.
Competence of arbitral tribunal to rule on its
jurisdiction
(1) The arbitral tribunal may rule on its own jurisdiction, including any
objections with respect to the existence or validity of the arbitration
agreement. For that purpose, an arbitration clause which forms part of a
contract shall be treated as an agreement independent of the other terms of the
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 defence. A party is not
precluded from raising such a plea by the fact that he has appointed, or
participated in the appointment of, an arbitrator. A plea that the arbitral
tribunal is exceeding the scope of its authority shall be raised as soon as the
matter alleged to be beyond the scope of its authority is raised during the
arbitral proceedings. The arbitral tribunal may, in either case, admit a later
plea if it considers the delay justified.
(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of
this article either as a preliminary question or in an award on the merits. If
the arbitral tribunal rules as a preliminary question that it has jurisdiction,
any party may request, within thirty days after having received notice of that
ruling, the court specified in article 6 to decide the matter, which decision
shall be subject to no appeal; while such a request is pending, the arbitral
tribunal may continue the arbitral proceedings and make an award.
Article 17. Power of arbitral tribunal to order interim measures
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.
CHAPTER V. CONDUCT OF ARBITRAL PROCEEDINGS
Article 18. Equal treatment of parties
The parties shall be treated with equality and each party shall be given a
full opportunity of presenting his case.
Article 19. Determination of rules of procedure
(1) Subject to the provisions of this Law, the parties are free to agree on
the procedure to be followed by the arbitral tribunal in conducting the
proceedings.
(2) Failing such agreement, the arbitral tribunal may, subject to the
provisions of this Law, conduct the arbitration in such manner as it considers
appropriate. The power conferred upon the arbitral tribunal includes the power
to determine the admissibility, relevance, materiality and weight of any
evidence.
Article 20. Place of arbitration
(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 members, for hearing
witnesses, experts or the parties, or for inspection of goods, other property or
documents.
Article 21. Commencement of arbitral proceedings
Unless otherwise agreed by the parties, the arbitral proceedings in respect
of a particular dispute commence on the date on which a request for that dispute
to be referred to arbitration is received by the respondent.
Article 22. Language
(1) The parties are free to agree on the language or languages to be used in
the arbitral proceedings. Failing such agreement, the arbitral tribunal shall
determine the language or languages to be used in the proceedings. This
agreement or determination, unless otherwise specified therein, shall apply to
any written statement by a party, any hearing and any award, decision or other
communication by the arbitral tribunal.
(2) The arbitral tribunal may order that any documentary evidence shall be
accompanied by a translation into the language or languages agreed upon by the
parties or determined by the arbitral tribunal.
Article 23. Statements of claim and defence
(1) Within the period of time agreed by the parties or determined by the
arbitral tribunal, the claimant shall state the facts supporting his claim, the
points at issue and the relief or remedy sought, and the respondent shall state
his defence in respect of these particulars, unless the parties have 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.
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 25. Default of a party
Unless otherwise agreed by the parties, if, without showing sufficient cause,
(a) the claimant fails to communicate his statement of claim in accordance
with article 23(1), the arbitral tribunal shall terminate the proceedings;
(b) the respondent fails to communicate his statement of defence in
accordance with article 23(1), the arbitral tribunal shall continue the
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.
Article 26. Expert appointed by arbitral tribunal
(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 27. Court assistance in taking evidence
The arbitral tribunal or a party with the approval of the arbitral tribunal
may request from a competent court of this State assistance in taking evidence.
The court may execute the request within its competence and according to its
rules on taking evidence.
CHAPTER VI. MAKING OF AWARD AND TERMINATION OF PROCEEDINGS
Article 28. Rules applicable to substance of dispute
(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 29. Decision making by panel of arbitrators
In arbitral proceedings with more than one arbitrator, any decision of the
arbitral tribunal shall be made, unless otherwise agreed by the parties, by a
majority of all its members. However, questions of procedure may be decided by a
presiding arbitrator, if so authorized by the parties or all members of the
arbitral tribunal.
Article 30. Settlement
(1) If, during arbitral proceedings, the parties settle the dispute, the
arbitral tribunal shall terminate the proceedings and, if requested by the
parties and not objected to by the arbitral tribunal, record the settlement in
the form of an arbitral award on agreed terms.
(2) An award on agreed terms shall be made in accordance with the 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.
Article 31. Form and contents of award
(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 determined
in accordance with article 20(1). The award shall be deemed to have been made at
that place.
(4) After the award is made, a copy signed by the arbitrators in accordance
with paragraph (1) of this article shall be delivered to each party.
Article 32. Termination of proceedings
(1) The arbitral proceedings are terminated by the final award or by an order
of the arbitral tribunal in accordance with paragraph (2) of this article.
(2) The arbitral tribunal shall issue an order for the termination of the
arbitral proceedings when:
(a) the claimant withdraws his claim,
unless the respondent objects thereto and the arbitral tribunal recognizes a
legitimate interest on his part in obtaining a final settlement of the dispute;
(b) the parties agree on the termination
of the proceedings;
(c) the arbitral tribunal finds that the
continuation of the proceedings has for any other reason become unnecessary or
impossible.
(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).
Article 33. Correction and interpretation of award; additional
award
(1) Within thirty days of receipt of the award, unless another period of time
has been agreed upon by the parties:
(a) a party, with notice to the other
party, may request the arbitral tribunal to correct in the award any errors in
computation, any clerical or typographical errors or any errors of similar
nature;
(b) if so agreed by the parties, a party,
with notice to the other party, may request the arbitral tribunal to give an
interpretation of a specific point or part of the award.
If the arbitral tribunal considers the request to be justified, it shall make
the correction or give the interpretation within thirty days of receipt of the
request. The interpretation shall form part of the award.
(2) The arbitral tribunal may correct any error of the type referred to in
paragraph (1)(a) of this article on its own initiative within thirty days of the
date of the award.
(3) Unless otherwise agreed by the parties, a party, with notice to the other
party, may request, within thirty days of receipt of the award, the arbitral
tribunal to make an additional award as to claims presented in the arbitral
proceedings but omitted from the award. If the arbitral tribunal considers the
request to be justified, it shall make the additional award within sixty days.
(4) The arbitral tribunal may extend, if necessary, the period of time within
which it shall make a correction, interpretation or an additional award under
paragraph (1) or (3) of this article.
(5) The provisions of article 31 shall apply to a correction or
interpretation of the award or to an additional award.
CHAPTER VII. RECOURSE AGAINST AWARD
Article 34. Application for setting aside as exclusive recourse against
arbitral award
(1) Recourse to a court against an arbitral award may be made only by an
application for setting aside in accordance with paragraphs (2) and (3) of this
article.
(2) An arbitral award may be set aside by the court specified in article 6
only if:
(a) the party making the application
furnishes proof that:
(i) a
party to the arbitration agreement referred to in article 7 was under some
incapacity; or the said agreement is not valid under the law to which the
parties have subjected it or, failing any indication thereon, under the law of
this State; or
(ii)
the party making the application was not given proper notice of the appointment
of an arbitrator or of the arbitral proceedings or was otherwise unable to
present his case; or
(iii)
the award deals with a dispute not contemplated by or not falling within the
terms of the submission to arbitration, or contains decisions on matters beyond
the scope of the submission to arbitration, provided that, if the decisions on
matters submitted to arbitration can be separated from those not so submitted,
only that part of the award which contains decisions on matters not submitted to
arbitration may be set aside; or
(iv)
the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties, unless such agreement was in
conflict with a provision of this Law from which the parties cannot derogate,
or, failing such agreement, was not in accordance with this Law; or
(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.
CHAPTER VIII. RECOGNITION AND ENFORCEMENT OF AWARDS
Article 35. Recognition and enforcement
(1) An arbitral award, irrespective of the country in which it was made,
shall be recognized as binding and, upon application in writing to the competent
court, shall be enforced subject to the provisions of this article and of
article 36.
(2) The party relying on an award or applying for its enforcement shall
supply the 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.***
Article 36. Grounds for refusing recognition or enforcement
(1) Recognition or enforcement of an arbitral award, irrespective of the
country in which it was made, may be refused only:
(a) at the request of the party against
whom it is invoked, if that party furnishes to the competent court where
recognition or enforcement is sought proof that:
(i) a
party to the arbitration agreement referred to in article 7 was under some
incapacity; or the said agreement is not valid under the law to which the
parties have subjected it or, failing any indication thereon, under the law of
the country where the award was made; or
(ii)
the party against whom the award is invoked was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was otherwise
unable to present his case; or
*** The conditions set forth in this paragraph are intended to set
maximum standards. It would, thus, not be contrary to the harmonization to be
achieved by the model law if a State retained even less onerous conditions.
(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 toarbitration, provided that, if the
decisions on matters submitted to arbitration can be separated from those not so
submitted, that part of the award which contains decisions on matters submitted
to arbitration may be recognized and enforced; or
(iv)
the composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties or, failing such agreement, was not
in accordance with the law of the country where the arbitration took place; or
(v)
the award has not yet become binding on the parties or has been set aside or
suspended by a court of the country in which, or under the law of which, that
award was made; or
(b) if the court finds that:
(i)
the subject-matter of the dispute is not capable of settlement 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.
Continue on to: Explanatory Note by
the UNICITRAL Secretariat on the Model Law on International Commercial
Arbitration
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