PUBLIC AND PRIVATE JUSTICE- DISPUTE RESOLUTION IN MODERN SOCIETIES Establishing a Fair and Efficient Justice System
(b) Scope of application
The main focus of UNCITRAL when preparing the Model Arbitration Law was to harmonize and modernize the law governing the settlement of international commercial disputes, rather than the conduct of domestic arbitrations. Nevertheless, it was obvious that a State could easily adapt the UNCITRAL Model Arbitration Law to domestic arbitrations and a significant number of States have done so. Only a small number of provisions like place, language, time limits need different solutions in national and international arbitration
Consistent with its mandate to promote the harmonization of the law of international trade, UNCITRAL conceived its Model Law for use in commercial arbitrations. The difficulty however was in determining what matters should be regarded as “commercial”. UNCITRAL eventually adopted the footnote to article 1(1) that lists a large number of activities of an economic nature that should be considered as “commercial” in the context of the UNCITRAL Model Arbitration Law. Inevitably, not all of them necessarily coincide with what individual States traditionally regard as “commercial”.
Those States that have adopted the UNCITRAL Model Arbitration Law in a schedule to a new national arbitration law had an easy way to include the footnote. In other countries, the essentials of the footnote have been included in the main text of the arbitration law.8 In many other cases the footnote has been left out and there is no indication in the text of the arbitration law as to what is commercial.
In some countries the answer is provided by the use of general provisions aimed at both defining the material scope of the arbitration act and determining the types of disputes that are capable of settlement by arbitration (“arbitrability”). Article V(2) of the New York Convention recognizes that arbitrability is to be defined by each State when it provides that recognition and enforcement of an arbitral award may be refused if the subject matter of the difference “is not capable of settlement by arbitration under the law of that country.” The UNCITRAL Model Arbitration Law adopts the same provision, not only for recognition and enforcement of an award in article 36(1)(b)(i), but also as grounds for setting aside in article 34(2)(b)(i). Nevertheless, there is no indication in the UNCITRAL Model Arbitration Law as to what disputes are not, or should not be, capable of settlement by arbitration.
(c) Additions, deletions and variations
One of the basic concerns during the preparation of the UNCITRAL Model Arbitration Law was to devise a system the preserves as much as possible the parties’ agreement to arbitrate and the conduct of arbitration proceedings from extraneous interference. Therefore, one of the more important features of the Model Arbitration Law is article 5, which provides that in matters governed by the Model Law, no court shall intervene except where so provided in the Model Law. While this provision was adopted in most jurisdictions that have implemented the UNCITRAL Model Arbitration Law, some countries apparently felt that the provision went too far and preferred not to adopt it. 9
Closely related to article 5 is article 6, which lists provisions in the UNCITRAL Model Arbitration Law that call on the courts to perform some function in aid of arbitration and calls on the adopting State to specify the court or other authority that is to perform them. This is not a complete list of provisions in which the UNCITRAL Model Arbitration Law anticipates the involvement of a court in the arbitration. In particular, article 9 anticipates that parties may request a court for an interim measure of protection and article 27 authorizes “a competent court of this State” to give assistance in the taking of evidence on the request of the arbitral tribunal or a party with the approval of the arbitral tribunal. Evidently, the drafters of the UNCITRAL Model Arbitration Law could not say much more on matters of internal judicial competence, and nearly all enacting States filled these gaps by indicating the competent courts to act under those provisions.
g. Cyprus, Egypt, Islamic Republic of Iran, Nigeria, Oman, Russian Federation.
g. Egypt, Islamic Republic of Iran, Oman, Sri Lanka.