The UNCITRAL Model Law on International Commercial Arbitration: 25 Years

Overview

This publication discusses the theoretical implications behind United Nations Conference on International Trade Law (UNCITRAL). The conference sought to measure the degree of unification which the Model Law has achieved and its contribution to the development of legal thinking on international arbitration. This book serves as review of the latest developments and perspectives on the UNCITRAL Model Law on International Commercial Arbitration in the past twenty-five years. The reader will gain insight on certain ...

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Overview

This publication discusses the theoretical implications behind United Nations Conference on International Trade Law (UNCITRAL). The conference sought to measure the degree of unification which the Model Law has achieved and its contribution to the development of legal thinking on international arbitration. This book serves as review of the latest developments and perspectives on the UNCITRAL Model Law on International Commercial Arbitration in the past twenty-five years. The reader will gain insight on certain provisions and rules of the Model Law as well as recent reforms by various countries.

Different attempts at harmonization and national reform, from Canada and US to China and Europe, are explored by Gerald Ghikas, Yuliya Chernykh, Giovanna Kwong, and Ryan Reetz. Johan Billiet, president of AIA, addresses the reform of Belgian arbitration law. For a regional perspective, Alain Fénéon discusses the influence of the Model Law on the OHADA Arbitration Law. Carole Malinvaud, Gerold Zeiler, Dirk Pulkowski, Hamid Gharavi, and Migel Galvão Teles assess specific rules in the model law and the need for international approval. The result is a well-rounded, theoretical and empirical analysis of contemporary issues in international arbitration, trade, and jurisprudence.

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Product Details

  • ISBN-13: 9789046603581
  • Publisher: Maklu Publishers
  • Publication date: 6/4/2010
  • Pages: 168
  • Product dimensions: 6.00 (w) x 9.30 (h) x 0.50 (d)

Table of Contents

Introduction Johan Billiet 5

The UNCITRAL Model Law in Canada Gerald W. Ghikas 13

1 Introduction 13

2 Stays of Judicial Proceeding 14

3 Kompetenz-Kompetenz 20

4 Recognition and Enforcement 25

5 Online Arbitration Agreements and Class Actions 45

6 Conclusion 52

A New Arbitration Law in Africa Alain Feneon 53

Rise of arbitration 53

Two innovations 54

1 Efficiency of OHADA Arbitration 54

1.1 The Uniform Act 54

1.2 The Arbitration Agreement 55

1.3 The setting up of the Arbitral Tribunal 55

1.4 The arbitral award 56

2 Guarantees of OHADA Arbitration 57

2.1 The setting up of the Arbitral Tribunal 57

2.2 The arbitral proceedings 57

2.3 Appeals 58

2.4 Foreign awards 59

The Influence of the UNCITRAL Model Law in Hong Kong and in China Giovanna Kwong 61

1 Hong Kong 61

2 The new Ordinance 62

3 The People's Republic of China 63

UNCITRAL Model Law vs. Customized Local Law: The Florida Experience C. Ryan Reetz 67

1 The Florida International Arbitration Act and the UNCITRAL Model Law 68

2 The Legislative Campaign 70

3 Current Status 72

Annex 73

The Reform of Belgian Arbitration Law and the UNCITRAL Model Law Johan Billiet 85

Introduction 85

1 Mechanism for review of fees and expenses of the arbitrators 86

2 Exclusion of liability/Immunity of the Arbitrators 87

3 Inclusion of a third party before constitution of the arbitral tribunal 88

4 Multiple parties arbitration 88

5 Interim measures - costs 89

6 Possibility of a "set-off claim" 89

7 Control on costs and expenses by the appointing authority 90

8 Use of evidence - witnesses 90

9 Commencement of arbitral proceedings, the challenge of arbitrators & disclosures by arbitrators and representation and assistance in arbitral proceedings 91

9.1 Commencement of arbitral proceedings 91

9.2 Challenge of arbitrators & disclosures by arbitrators 92

9.3 Representation and assistance in arbitral proceedings 92

10 Conclusion 92

UNCITRAL Model Law in Ukraine: Whether Update is Needed Yuliya Chernykh 95

The Amendment to the UNCITRAL Model Law on Interim Measures: A Compromise on Ex Parte Measures Carole Malinvaud 99

1 The Power of Arbitrators to Order Interim Measures 99

1.1 The measures concerned 100

1.2 The conditions to obtain interim measures 101

1.2.1 The harm 101

1.2.2 Reasonable possibility of success on the merits of the claim 101

1.3 Safeguards against abuse 101

2 A Compromise: 'The Preliminary Orders' 103

2.1 The main elements of the controversy 103

2.2 The adopted text on preliminary orders 104

2.2.1 General presentation 104

2.2.2 Conditions to the grant of ex parte measures 105

2.2.3 The safeguards 106

The Principle of Kompetenz Kompetenz According to the UNCITRAL Model Law on International Commercial Arbitration Gerold Zeiler Katarina Hruskovicova 109

1 The term "Kompetenz Kompetenz" 109

2 What is Kompetenz Kompetenz worth? 109

3 UNCITRAL Model Law 110

5 NYC 114

6 European Convention 114

7 Draft Art 27A Brussels Regulation 114

8 The end of Kompetenz Kompetenz? 115

Court Review of Arbitration Awards for Excès De Pouvoir Dirk Pulkowski 119

1 Introduction 119

2 A Typology of Situations of Excess of Competence of Arbitral Tribunals 121

2.1 Tribunal Awarded More than Requested 121

2.2 Tribunal Addressed Matters Not Raised by Parties 122

2.3 Tribunal Granted Relief Excluded in Arbitration Agreement 123

2.4 Tribunal Decided Matters Not Provided for in the Arbitration Agreement 123

2.5 Other Constellations of Excess of Powers 125

2.6 Degree of Deference Accorded to the Tribunal's Interpretation 126

3 The International Law Standard of Excess of Competence 128

3.1 The Scope of Review for excès de pouvoir Is Limited 128

3.2 Arbitral Tribunals Are Vested with Kompetenz-Kompetenz 129

3.3 A Tribunal's Interpretation Deserves Deference as Long as that Interpretation Is Reasonable 130

4 Conclusion 133

Achievements and Limits of the UNCITRAL Model Law's Annulment Regime Hamid G. Gharavi 135

1 The Achievements of the Model Law 135

1.1 The Exclusive Nature of the Annulment Proceedings 135

1.2 The Exclusive Jurisdiction of Courts at the Place of Arbitration 136

1.3 The Exhaustive Nature of the Annulment Grounds 136

2 The Limits of the Model Law 137

2.1 Modalities of Control Stricter Than Those of the Model Law 137

2.1.1 Deviation from the Exclusivity of the Annulment Procedure 137

2.1.2 Departure from the Exclusivity of the Jurisdiction of Courts at the Seat 138

2.1.3 Adoption of Annulment Grounds More Rigorous Than Those of the Model Law 139

2.2 Modalities of Control less Strict Than Those of the Model Law 141

2.2.1 Adoption of Annulment Grounds less Rigorous Than Those of the Model Law 141

2.2.2 Discretionary Power of the Court Over Annulment 142

2.2.3 The Exclusion of Annulment Actions 143

Addition of Parties: A Vacuum Left by the Model Law in Need of Internationally Approved Rules Miguel Galvão Teles 145

Introduction 145

Addition of Parties and UNCITRAL Rules and MODEL LAW 145

1 Concepts 145

2 The need for a jurisdictional link, of an arbitral nature, between the original and the added parties 146

3 Some existing provisions on addition of parties 147

4 The relationship between addition of parties and equality regarding the appointment of arbitrators 148

5 UNCITRAL 1976 rules, Model Law and UNCITRAL draft revised Rules on multiparty arbitration 150

6 The addition of parties to arbitration 150

7 Cases where addition of parties is particularly justified 152

8 Claims by and against additional parties; declaratory claims 153

9 The need to include provisions on multiparty arbitration and addition of parties in Model Law 153

10 The challenge of equality of parties 154

Annex 1 157

Annex 2 159

List of contributors 167

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