Annotated Model Arbitration LawM.J. Chapman, 1999.
(updated October 2003)
index.
M.J. Chapman, 1999.
(updated October 2003)
index.
CONTENTS
Article 34. Application for setting aside as exclusive recourse against arbitral award
(United Nations document A/40/17, Annex I)(As adopted by the United Nations Commission on
International Trade Law on 21 June 1985)
(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.
(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.
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.]
(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.
(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.
(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.
The parties shall be treated with equality and each party shall be given a full opportunity of
presenting his case.
(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.
(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.
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) 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.
(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) 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.
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.
(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.
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.
(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.
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.
(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) 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.
(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).
(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.
(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.
(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) 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
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.
* Article headings are for reference purposes only and are not to be used for purposes of
interpretation.return
** 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.return
*** 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. return
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 23(1)
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 31(2)
article 31(3)
Article 32. Termination of proceedings
Article 33. Correction and interpretation of award; additional award
article 33(1)
CHAPTER VII. RECOURSE AGAINST AWARD
Article 34. Application for setting aside as exclusive recourse against arbitral
award
article 34(1)
article 34(2)
article 34(2)(a)(iii)
article 34(2)(a)(iv)
article 34(2)(b)(ii)
article 34(3)
article 34(4)
CHAPTER VIII. RECOGNITION AND ENFORCEMENT OF AWARDS
Article 35. Recognition and enforcement
article 35(1)
Article 36. Grounds for refusing recognition or enforcement
article 36(1)
article 36(1)(a)(ii)
article 36(1)(a)(iv)
article 36(1)(a)(v)
article 36(1)(b)
article 36(1)(b)(ii)
article 36(2)
All rights reserved.