PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
1. Origin and main features
The origin of the Model Law can be traced back to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York , 1958). The fundamental rule of that Convention is laid down in its article III, which provides that “each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon (…) and that “(t)here shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.” The New York Convention has been a remarkable success in achieving that basic rule, but its ambit is limited.
Indeed, a party wishing to enforce an award under the Convention will have to be informed of a number of matters not dealt with in the Convention, such as whether the award will be enforced by a court or by another authority, or which court or which other authority; the procedure to be followed; the conditions or fees that may be charged and how they relate to those imposed on the recognition or enforcement of domestic awards in the country of enforcement. All those important details are found in the statutes of the country of enforcement.
UNCITRAL recognized those difficulties, but was not willing to embark upon amending an instrument as successful as the New York Convention. Instead, UNCITRAL undertook the preparation of what became the UNCITRAL Model Arbitration Law.
The UNCITRAL Model Law was preceded by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the UNCITRAL Arbitration Rules. In the preparation of the Model Law, the drafters were careful not to include deviation from those two previous documents. One of the question was whether to find new solutions or to maintain
(Federal Commercial Arbitration Act 1985); Chile
(Ley n° 19.971 of 2004 – Ley de arbitraje comercial Cyprus (International Commercial Arbitration Law
1987); Egypt (Law No. 27/1994 Promulgating the Law Matters); Germany (Code of Civil Procedure 1998,
Concerning Arbitration in Civil and Commercial Tenth Book); Greece (Law No 2735 of 1999-
International Arbitration Law); Guatemala (Decreto n° 67-95 - Ley de Arbitraje); Hungary (Act LXXI 1994 On Arbitration); India (Arbitration and Conciliation Ordinance, No. 8 of 1996); Islamic Republic
Iran (Law on International Commercial Arbitration, of (International Commercial) Act 1998 (No. 14 of 1998));
5 November 1997); Ireland (Arbitration Japan (Law No. 138 of 2003 – Law of
Arbitration); Jordan (Law No. 31 of 2001 – Arbitration Law); Kenya (Arbitration Act 1995 (No. 4 of 1995)); Lithuania (Law on Commercial Arbitration 1996 (No. 1-1274)); Madagascar (Code de procédure civile, Libre quatrième: de l’arbitrage(Loi 98-019 du 11 novembre 1998)); Malta (Arbitration Act 1996 (No. 11 of 1 996); Mexico (Código de Comercio: Título IV, Libro V – Del Arbitraje Comercial (1993)); New Zealand (Arbitration Act 1996); Nigeria (Arbitration and Conciliation Decree 1988 (Decree No. 11 of March 14, 1988)); Oman (Act on Arbitration in Civil and Commercial Matters (Sultanate Decree No. 47/97 issuing the Act in Civil and Commercial Matters)); Paraguay (Código de Procedimiento Civil, Libro V – Del proceso arbitral (Ley n° 1.337/88 ); Peru (Ley n° 26572, 1996 – Ley General de Arbitraje);
Republic of Korea Federation (Law of
(Arbitration the Russian
Act - Amended by Act No.6083 as of Federation on International Commercial
31 December 1999); Russian
(International Arbitration Act 1994); Spain (Ley 60/2003, de 23 de diciembre, de arbitraje); Sri (Arbitration Act (No. 11 of 1995); Thailand (Arbitration Act 1987); Tunisia (Loi 93-42 du 26 avril Code de l’abitrage); Ukraine (Law on Commercial Arbitration 1994); Zambia (Arbitration Act Zimbabwe (Arbitration Act 1996 (No. 6 of 1996).
Lanka 1993 - 2000),
5 In China, by the Hong Kong Special Administrative Region (Arbitration Ordinance 1996) and the Macau Special Administrative Region (Decreto-Lei No. 55/98/M); Within the United kingdom, by Scotland (Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) and in the U.K. overseas territory of Bermuda (Bermuda International Conciliation and Arbitration Act 1993); within the United States, California (Code of Civil Procedure); Connecticut (An Act Concerning the UNCITRAL Model Law on International Commercial Arbitration 1989); Illinois (International Commercial Arbitration Act 1998); Oregon (International Commercial Arbitration and Conciliation Act 1991); Texas (An Act Relating to the Arbitration or Conciliation of International Commercial Disputes 1989, Title 10)