PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
uniformity among existing texts. The priority was to preserve harmony between the different texts.
The main purpose of the Model Law is to reduce the discrepancy between domestic procedural laws affecting international commercial arbitration. The UNCITRAL Model Arbitration Law deals with the essential elements of a favourable legal framework for the conduct of arbitration proceedings, such as: arbitration agreement; composition of arbitral tribunal (including appointment, substitution and challenge of arbitrators); jurisdiction of arbitral tribunal (including its competence of arbitral tribunal to rule on its own jurisdiction and its power to order interim measures); conduct of arbitral proceedings (treatment of parties, determination of rules of procedure, hearings and written proceedings, party default, appointment of experts, court assistance in taking evidence); making of award and termination of proceedings (settlement, form and contents of award; its correction and interpretation); setting aside and arbitral award; conditions for recognition and enforcement of awards and grounds for refusing recognition or enforcement
2. Implementation of the Model Law
When preparation of the UNCITRAL Model Arbitration Law first began, it was thought that it would be primarily useful for the developing world. Industrialized countries believed that their law of arbitration was adequate, if not much better than whatever UNCITRAL might produce. Interestingly, the past twenty years have shown that the UNCITRAL Model Arbitration Law has indeed been highly useful for developing countries, but also for many industrialized countries which have also reformed their law by adopting the Model Law.
UNCITRAL has not established fixed criteria or minimum requirements for determining when a country can be regarded as having enacted the Model Law. Nevertheless, it could be said that generally domestic arbitration statutes are considered to be enactments of the Model Law when it is clear that the legislator took the Model Law as a basis and made certain amendments and additions, but did not simply take the Model Law as one amongst various models or follow only ‘its principles’.6 This usually means also that the bulk of the provisions of the Model Law have been enacted and that the domestic statute does not contain any provision incompatible with the basic philosophy of the Model Law. Within those general parameters, a certain degree of adaptation is admissible and indeed necessary, as are certain deviations, in particular where they are intended to adjust the Model Law to the local context. Many of the decisions that need to be made by an enacting State were anticipated by UNCITRAL, while others may be particular to the country concerned, or at least to the group of countries with similar legal systems. 7
Form of enactment
UNCITRAL prepared the Model Arbitration Law as a freestanding arbitration statute. That fits the legislative structure of many countries, but in many others the legislative provisions on arbitration are to be found in the Code of Civil Procedure.
Some common law countries have arbitration laws based on the UNCITRAL Model Arbitration Law that are peculiar in appearance to lawyers from civil law jurisdictions in that the UNCITRAL Model Arbitration Law was incorporated in its entirety (including the footnote to Article 1 describing what should be considered commercial) as a schedule to a domestic act. This technique is similar to the technique used in those jurisdictions to promulgate a treaty as positive law. In those jurisdictions, all the changes to the UNCITRAL Model Arbitration Law as well as all additional provisions appear in the basic statute.
6 Alan Redfern and Martin Hunter, Law and Practice of International Commercial Arbitration , 3rd (Sweet & Maxwell, London, 1990), p. 642.
7 The best overall description of the choices made both at UNCITRAL and by States in their adoption of the UNCITRAL Model Arbitration Law is Peter Binder, International Commercial Arbitration in UNCITRAL Model Law Jurisdictions (London, Sweet & Maxwell 2000).