United Nations Commission On International Trade Law Model Law Research Articles

A proposal for international arbitration law in Namibia based on the UNCITRAL Model Law on International Commercial Arbitration

International business arbitration is not covered by Namibia's present arbitration law, the Arbitration Act 42 of 1965 (the Act). There is no explicit language in the Act that addresses foreign arbitration as the Act, solely by default, covers national or domestic arbitration. When it comes to international arbitration, the Act has many flaws. Modern commercial arbitrations are increasingly being guided by the Model Law on International Commercial Arbitration (MLICA) of UNCITRAL (the United Nations Commission on International Trade Law) or by state legislation that has been influenced by it. It is undeniable that Namibia must embrace MLICA, including the majority of the 2006 revisions of the MLICA, in order to participate in the global economic village. Furthermore, Namibia has not yet ratified the 1958-adopted New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (CREFAA), which has been hailed as the most effective treaty governing global trade. This article suggests that Namibia should implement both the MLICA and the CREFAA. If this strategy is not adopted, businesses in Namibia will be hesitant to engage in international business transactions due to the lack of legal certainty that the New York Convention and contemporary domestic arbitration legislation bring.

International Commercial Law Emerging in Africa

This article provides an overview of the history of international commercial law in Africa with reference to instruments of the three sister organisations of private international law (in a wide sense): UNCITRAL (the United Nations Commission on International Trade Law), UNIDROIT (the International Institute for the Unification of Private Law) and the HCCH (the Hague Conference on Private International Law). The adoption of UNIDROIT's Cape Town Convention on International Interests in Mobile Equipment of 2001 is identified as a possible watershed moment in respect of the future development of international commercial law in Africa. Following the creation of an African Continental Free Trade Area by member countries of the African Union, it is suggested that participating states reconsider joining the United Nations Convention on the International Sale of Goods (1980) (CISG) and incorporating the UNCITRAL Model Law on International Commercial Arbitration (1985/2006), which are in a certain sense the two founding documents of the modern lex mercatoria. Another priority, the author suggests, is that Africa needs a supporting instrument on the private international law of contract. The first draft of the African Principles on the Law Applicable to International Commercial Contracts is then discussed with an emphasis on the role of substantive law instruments, in particular the CISG

Genericism in the uniformity endeavour: a plea against the one-size-fits-all approach

Abstract This article focuses on the practice of United Nations Commission on International Trade Law (UNCITRAL) to include the text of Article 7 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) into an array of other instruments, including model laws. Article 7 of the CISG lays out the interpretative methodology of this Convention. The discussion in this article is conducted through the lens of UNCITRAL’s best-known model law—the UNCITRAL Model Law on International Commercial Arbitration—whose Article 2A is the counterpart to CISG’s Article 7. To this end, this article first explains the difference between model laws and conventions. Second, it focuses on Article 7 of the CISG, explaining its meaning, purpose, and the widely accepted mode of operation. Third, the article shifts its focus specifically to Article 2A of the UNCITRAL Model Law on International Commercial Arbitration, and against the backdrop of the discussion on Article 7 of the CISG, seeks to unpack the meaning and scope of Article 2A. Last, but not least, the article will make a determination as to whether adding Article 2A to the Model Law was a good idea to begin with. Given the fact that other model laws contain similar or practically verbatim provisions, conclusions reached in this article also ought to be relevant outside of the realm of the Model Law on International Commercial Arbitration itself.

Arbitraż krajowy na tle standardów międzynarodowych

UNCITRAL (United Nations Commission on International Trade Law) amended and modernized the UNCITRAL Model Law on International Commercial Arbitration of 1985 in 2006. The provisions of the Polish Civil Procedures Code were aligned to the Model Law (in its original wording of 1985) on 28 July 2005, by amending Articles 1154 – 1217 accordingly, simultaneously repealing the regulations to date on the arbitration court – i.e. Articles 695 – 715 of the CPC. However, the Polish legislator has not yet fully aligned the regulations of the CPC to the amendments of the Model Law adopted in 2006. A new version of the Arbitration Rules was adopted by UNCITRAL on 29 June 2010, which was published in English on 12 July 2010 (and later in the other official UNCITRAL language versions).The amendments made to the Model Law and the Rules demonstrate the importance which UNCITRAL attaches to the alignment of the regulations it creates to the requirements of legal transactions and to the assurance of modernity and flexibility of the proposed legal structures. As a result, both of these acts of law should be considered equally precursory, which is of key importance to the international arbitral order. An analysis has been conducted in this publication of the interrelationships between arbitration and the general judiciary, together with an analysis of selected issues related to the UNCITRAL Arbitration Rules and arbitration proceedings conducted in accordance with these rules.

Power of Remission: Unanswered Questions

The power of remission under Article 34(4) of the United Nations Commission on International Trade Law (UNCITRAL) Model Law often rides on a thin line between arbitral autonomy and curial intervention. This is exemplified at various stages of its exercise including the grounds for remission, adjudication by arbitrators independent of court directions and enquiry upon resumption of setting aside proceedings. While remitting, courts seek to look into ‘curability’ of defects over the impact on other parts of the award, which may lead the enquiry beyond the scope of Article 34 (4). The power of arbitrators to accept fresh evidence often clashes with the scope of remission. The extent of court intervention upon resumption is bridled by independence of arbitrators, especially when the modified award has altered the grounds of setting aside proceedings under Article 34. An analysis of Indian and Singaporean judicial trend helps understand the practical nuances of remission. While both jurisdictions are open to remission, they differ with respect to extent of arbitral autonomy. Courts are yet to conclusively define curable defects vis-à-vis partial remission, scope of modification of awards and the extent of interference upon resumption. This article seeks to identify and address such issues in the application of Article 34(4). international arbitration, domestic arbitration, remission, partial remission, suspension of proceedings, Article 34(4) of UNCITRAL Model Law, arbitral tribunal, judicial intervention, powers of arbitrators, modified award, Arbitration and Conciliation Act 1996, curability, International Arbitration Act, Singapore Arbitration Act, resumption, fresh evidence.

The Application of Substantive Mandatory Rules in International Commercial Arbitration From the Perspective of an EU UNCITRAL Model Law Jurisdiction

The article deals with the obligation of arbitral tribunals to apply the substantive mandatory rules of the forum or of the law of third states not designated by the parties or by the tribunal (especially that of the state where enforcement of the award is anticipated) in international disputes. This obligation, with regard to the mandatory rules of the forum, has been challenged on the basis of the assumption that, in international commercial arbitration, the arbitrators have no forum. The author contests this assumption as such and also in light of the United Nations Commission on International Trade Law (UNCITRAL) Model Law and the Rome I and Rome II Regulations applicable in Greece. Same obligation, with regard to the law of third states, has been challenged on the basis of the assumption that the will of the contracting parties, as to the law applicable to the merits of the case, shall prevail. The author challenges this assumption as well by arguing that the limits of the parties’ autonomy in light of said Regulations undoubtedly exist also in the context of international commercial arbitration. Other matters pertinent to said issues are also dealt with in the article.

The application of substantive mandatory rules in International Commercial Arbitration from the perspective of an EU UNCITRAL Model Law jurisdiction

The article deals with the obligation of arbitral tribunals to apply the substantive mandatory rules of the forum or of the law of third states not designated by the parties or by the tribunal (especially that of the state where enforcement of the award is anticipated) in international disputes. This obligation, with regard to the mandatory rules of the forum, has been challenged on the basis of the assumption that, in international commercial arbitration, the arbitrators have no forum. The author contests this assumption as such and also in light of the United Nations Commission on International Trade Law (UNCITRAL) Model Law and the Rome I and Rome II Regulations applicable in Greece. Same obligation, with regard to the law of third states, has been challenged on the basis of the assumption that the will of the contracting parties, as to the law applicable to the merits of the case, shall prevail. The author challenges this assumption as well by arguing that the limits of the parties’ autonomy in light of said Regulations undoubtedly exist also in the context of international commercial arbitration. Other matters pertinent to said issues are also dealt with in the article.

The Reform of Commercial Arbitration in Australia: Recent and Prospective Developments

International commercial arbitration (ICA) in Australia is growing, albeit not geometrically. These developments are attributable in part to new legislation adapted by the federal, state and territory governments that make arbitration in Australia more attractive to domestic and foreign parties. These include the preservation of the autonomy of the parties to choose their preferred form of arbitration, whether institutional or not, the fact that Australian courts are firmly committed to the principles of the rule of law, and that ICA awards are enforced consistent with international standards and laws that are incorporated into Australian federal, state and territorial law. Australia has ratified both the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitration Awards and the ICSID Convention in its domestic law. Both are included in section 40 of the International Arbitration Act 1974 (Cth) (IAA). Australia’s accession to the New York Convention is without reservation and extends to all States and Territories within the country. Australia has an established record of recognizing international commercial arbitration. It was one of the first to adopt the 2006 amendments to the 1985 United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (the Model Law). It has long endorsed the principles embodied in that Model Law, including protection of the autonomy of parties to arbitration, flexibility in the conduct of arbitration and greater uniformity in arbitration across national jurisdictions. These tenets of arbitration were incorporated into the IAA by the 2010 amendment, as a reflection of international best practice. In accordance with the 2010 amendments to the IAA, disputing parties can no longer choose to exclude the application of the Model Law insofar as it is incorporated into the IAA. The IAA affirms the finality of arbitration awards and limits the grounds for judicial review. It also builds on the authority of arbitrators to grant interim awards and creates a regime to ensure confidentiality. The core principles regarding commercial arbitration embodied in the 2010 amendment are also reflected in uniform legislation across all Australian jurisdictions. They affirm the legitimacy of arbitration as a mechanism for dispute resolution and the significance of Australia as a center for the resolution of disputes. However, ICA in Australia continues to face concern over what are sometimes perceived to be protracted arbitral proceedings that are both dilatory and costly. The author has responded to these criticisms in a co-authored article which argues that comprehensive proceedings are often necessary in deciding complex arbitrations and the allegedly ‘judicialisation’ of the arbitral process is often misconceived and over-stated. In addition, there has been a signifi cant increase in resort to institutional arbitration in ICA proceedings, notably with the adoption of new Arbitration Rules by the Australian Centre for International Commercial Arbitration (ACICA) and the establishment of the Australian International Dispute Centre (AIDC). There have also been increases in arbitrations since the revision of the IAA in June 2010 and recent amendments to domestic Commercial Arbitration Acts (CAAs). While Article 1(3) of the UNCITRAL Model Law stipulates that it only applies to international commercial arbitration, and not to domestic arbitration, the recently revised CAAs of states across Australia now replicate the Model Law with some variations. This chapter will focus on the Australian legal system and its role in arbitration. It will examine the development of ICA in Australia and the 2010 amendment to the IAA. It will consider the role of the Australian Centre of International Commercial Arbitration (ACICA) as an exemplary centre governing commercial arbitration. It will focus on Australia’s role in promoting arbitration within the Asia Pacific region, of which it is an integral part. It will explore Australia’s whole-hearted embrace of international arbitration as a viable alternative to court proceedings. Finally, it will support the conservative and formalist underpinnings of current arbitration reforms, including the need to elaborate on them, and render them more dynamic in operation.

European and American Perspectives on the Choice of Law Regarding Cross-Border Insolvencies of Multinational Corporations – Suggestions for South Africa

An increase in economic globalisation and international trade has amounted to an increase in the number of multinational enterprises that have debt, own assets and conduct business in various jurisdictions around the world. This, coupled with the recent worldwide economic recession, has inevitably caused the increased occurrence of multinational financial default, also known as cross-border insolvency (CBI).
 
 The legal response to this trend has, inter alia, produced two important international instruments that were designed to address key issues associated with CBI. Firstly, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Cross-Border Insolvency (the Model Law) in 1997, which has been adopted by nineteen countries including the United States of America and South Africa. Secondly, the European Union (EU) adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000. Both the EC Regulation and Chapter 15 adopt a “modified universalist” approach towards CBI matters.
 
 Europe and the United States of America are currently the world leaders in the area of CBI and the CBI legislation adopted and applied in these jurisdictions seems to be effective. As South Africa’s Cross-Border Insolvency Act is not yet effective, there is no local policy guidance available to insolvency practitioners with regard to the application of the Model Law. At the basis of this article is the view that an analysis of the European and American approaches to CBI matters will provide South African practitioners with valuable insight, knowledge and lessons that could be used to understand and apply the principles adopted and applied in terms of the EC Regulation and Chapter 15, specifically the COMI concept, the “establishment” concept in the case of integrated multinational enterprises and related aspects. 

A Critical Evaluation of International Commercial Arbitration within the National Legal System

Over the years, there has been an increase in trade across borders between countries. With advancement in technology resulting in a new global business paradigm, various trade and governmental bodies such as the World Trade Organisation (WTO), the Economic Community of West Africa (ECOWAS) have intensified efforts to end protectionism, establish liberalized cross borders and put an end to the prevalence of beggar-thy-neighbour economic policies. While these efforts have been hugely successful, trade barriers are being erected in an unlikely place-international commercial arbitration. These trade barriers have been erected because of conflicting national arbitral rules, applicability of substantive and procedural law, forum shopping, unenforceability of arbitration agreements and resulting arbitral awards especially against state parties. The outcome of the legal straits experienced by foreign investors in settling arbitration issues with their local partners led to a series of international interventions aimed at rectifying the problem. Prominent among these are the internalization of the arbitration rules in the arbitration law of all signatory states under the auspices of the United Nations Commission on International Trade Law (UNCITRAL) and the establishment of the International Chambers of Commerce (ICC) Rules of Arbitration. This paper seeks to conduct a critical evaluation of international commercial arbitration within the national legal systems of the United Kingdom and Nigeria with the UNCITRAL Model Law on International Commercial Arbitration (Model Law) as the legal framework.

Rwanda Legal Framework on Insolvency: Problems and Proposals for Reform

AbstractThe purpose of this article is to explore some key insolvency issues, which will be highly selective for this article, and to identify the weaknesses and inconsistencies in the existing framework on insolvency. Rwanda does not have an efficient and effective framework on insolvency, and the article argues that there is a need for an improved insolvency law regime. In view of the weaknesses and inconsistencies, it is vital to consider international best practices such as the United Nations Commission on International Trade Law (UNCITRAL) Legislative Guide on Insolvency and the UNCITRAL Model Law on Cross‐border Insolvency as the basis needed to deal with different aspects or elements of the Rwanda insolvency law. The value of this article lies in the insights it offers into the current framework on insolvency and the opportunity given to address the inconsistencies, weaknesses and uncertainties that invariably arise from the law. Copyright © 2015 INSOL International and John Wiley & Sons, Ltd

Adequacy of Contracts Act 1950 in Governing the Formation of E-Contracts in Malaysia: UNCITRAL Model Law in E-Commerce as Benchmark

Under conventional Malaysian law, a binding contract arises when there is an offer, an acceptance of that offer, some payment (or “consideration”) passing and an intention to create legal relations between parties having the capacity to do so. This does not change in cyberspace. Technological advancement has given rise to business owners and consumers using technology in their dealings and hence, the usage of the Internet as a medium to communicate and to form a legally binding contract is anticipated. This paper highlights the issues on formation of e-contracts in Malaysia. Contracts Act 1950 and Electronic Commerce Act 2006 with United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce was analysed and the current protection available was examined. It is recommended that legislation should be technologically advanced and at the same time flexible to ensure a level of legal certainty in electronic transactions without the need to constantly update laws related to e-commerce activity as having a comprehensive law on e-commerce will ultimately benefit all parties especially the e-consumers.

Colombia Enacts a New International Arbitration Law

By enacting Law 1563 of 12 July 2012, Colombia has established an international commercial arbitration regime based on the United Nations Commission on International Trade Law (UNCITRAL) Model Law. The deviations which the Colombian legislature has made from the UNCITRAL Model Law are the subject of the present article.

European and American Perspectives on the Choice of Law Regarding Cross-Border Insolvencies of Multinational Corporations – Suggestions for South Africa

An increase in economic globalisation and international trade has amounted to an increase in the number of multinational enterprises that have debt, own assets and conduct business in various jurisdictions around the world. This, coupled with the recent worldwide economic recession, has inevitably caused the increased occurrence of multinational financial default, also known as cross-border insolvency (CBI). The legal response to this trend has, inter alia, produced two important international instruments that were designed to address key issues associated with CBI. Firstly, the United Nations Commission on International Trade Law (UNCITRAL) adopted the UNCITRAL Model Law on Cross-Border Insolvency (the Model Law) in 1997, which has been adopted by nineteen countries including the United States of America and South Africa. Secondly, the European Union (EU) adopted the European Council Regulation on Insolvency Proceedings (EC Regulation) in 2000. Both the EC Regulation and Chapter 15 adopt a “modified universalist” approach towards CBI matters. Europe and the United States of America are currently the world leaders in the area of CBI and the CBI legislation adopted and applied in these jurisdictions seems to be effective. As South Africa’s Cross-Border Insolvency Act is not yet effective, there is no local policy guidance available to insolvency practitioners with regard to the application of the Model Law. At the basis of this article is the view that an analysis of the European and American approaches to CBI matters will provide South African practitioners with valuable insight, knowledge and lessons that could be used to understand and apply the principles adopted and applied in terms of the EC Regulation and Chapter 15, specifically the COMI concept, the “establishment” concept in the case of integrated multinational enterprises and related aspects.

Cross‐border Insolvency Problems: Is the UNCITRAL Model Law the Answer?

AbstractThis paper examines the impact that the United Nations Commission on International Trade Law (UNCITRAL) Model Law on Cross‐border Insolvency has had on States in the light of the central problems often associated with transnational insolvencies. Despite the accolades that it has received, the Model Law has been adopted in only 19 countries in the last 15 years and that too in many different ways. If the number of adoptees and the rather conditional acceptance of the Model Law's provisions represent a lack of international enthusiasm for adopting the Model Law, what are the reasons for this? The paper concludes by asking whether the UNCITRAL Model Law presently has a future in dealing with cross‐border insolvencies. Copyright © 2012 INSOL International and John Wiley & Sons, Ltd.

Interdiscursive colonisation of arbitration practice

International commercial arbitration was originally proposed by the United Nations Com-mission on International Trade Law (UNCITRAL), and was established by the UnitedNations General Assembly by its Resolution 2205 (XXI) of 17 December 1966 “to pro-mote the progressive harmonisation and unification of international trade law”. As partof their work, the commission prepared a model law on international commercial arbi-tration, which was subsequently adopted by the United Nations General Assembly on21 June 1985, and was recommended for adoption as the UNCITRAL Model Law onInternational Commercial Arbitration. Although the Model Law was not binding, the UNrecommended its adoption and incorporation into the domestic law of individual memberstates. International arbitration, in principle, was intended as alternative to litigation toresolve commercial disputes in cross-border contexts, which was also meant to lead to anintegration of processes and procedures across legal systems, cultures, linguistic choices,including world Englishes.Today, international arbitration is the most widely used alternative dispute resolutionmethod to resolve commercial disputes between parties. International commercial arbi-tration is considered a creature of party agreement as it crucially depends on the parties’agreement to resolve disputes through private adjudication by a single arbitrator, or atribunal of more than one, appointed in accordance with rules of a specific arbitrationinstitution that the parties themselves have agreed to adopt, usually by including an arbi-tration clause in their contract. The practice of international arbitration has developed in amanner to allow parties from different legal and cultural backgrounds to use any varietyof English or other language to resolve their disputes without any interference from thesystem of courts.Inarbitration,partiesortheirrepresentatives,oftenlegalcounsels,presentadisputetoanimpartial single arbitrator or an arbitration tribunal consisting of more than one arbitrator,oftenthreeoranotheroddnumberdependingonthenature,extentandsizeofthedisputetoresolveitandorderadecision,whichislikealegaljudgment,butinarbitrationisknownasanaward.Unlikeotherformsofalternativedisputeresolution(ADR),namely,conciliationandmediation,whichdonotsuggestorimposeanyspecificdecisiontoresolvethedispute,arbitration is meant to issue a decision or award which is binding for the disputing parties,which means it is generally non-appealable in a court of law. In arbitration, the parties

The Singapore Arbitration Regime and the UNCITRAL Model Law

This article considers the role of the Model Law on International Commercial Arbitration (‘the Model Law’) prepared in 1985 by the United Nations Commission on International Trade Law (UNCITRAL) in the development of the statutory regime governing arbitrations in Singapore. It will examine the historical unified approach in Singapore, when no distinction was drawn between domestic and international arbitrations, and the transition to the current reliance on this key distinction. It will also analyse the structure and operation of the Singapore statutory regime following the introduction of the UNCITRAL Model Law, as well as some recent case law dealing with the intricacies of its operation. Four important points emerge from this review: The origins of Singapore statutory law on arbitration can be traced to the Arbitration Ordinance of 1809,1 in what was then the British India-controlled Straits Settlements, comprising Singapore, Malacca and Penang. The...

Recent Developments in International Commercial Dispute Resolution: Expanding the Options

Several international organisations, including the International Chamber of Commerce (ICC) and the United Nations Commission on International Trade Law (UNCITRAL), are now taking steps (albeit small and tentative ones) to establish an infrastructure of laws, rules and procedures which recognises ADR clauses and settlements reached in ADR [alternative dispute resolution] proceedings. These efforts are aimed at promoting certainty and consistency in the use of ADR processes and, ultimately, at expanding the options available to parties for the resolution of international commercial disputes. This article examines the latest initiatives of the ICC (namely the ICC ADR Rules) and UNCITRAL (namely the Draft UNCITRAL Model Law on International Commercial Conciliation) to facilitate the use of ADR options such as mediation and conciliation.

Does the World Need Additional Uniform Legislation on Arbitration?: The 1998 Freshfields Lecture

WHAT AN honour to be invited to the Holy Grail of Freshfields Arbitration Lecturers, and this as one of the few invitees not born on the island where the Knights of the Round Table assemble. Upon receipt of the honouring invitation, I asked some English friends for suggestions as to a suitable and interesting topic. None of them made a positive proposal; but they all agreed in the negative by telling me unanimously: ‘Please, not another talk on the new English Arbitration Act! … and certainly not by a civil lawyer!’ What a pity, since it prevents me from presenting with relish the following quotation from one of the commentaries: ‘When, over 15 years ago, the United Nations Commission on International Trade Law (UNCITRAL) decided to prepare a draft uniform law on arbitration procedure, its members could hardly have imagined that their proposal would lead to a revolution in the practice of arbitration in England. Yet such a revolution is the likely consequence of the Arbitration Act 1996.’1 The conclusion is obvious: England would not have that Act today without the earlier advent of the UNCITRAL Model Law. We clearly have come a long way since the mid-eighties, where an extremely influential judge warned against the theoretical or abstract French concepts sweeping over the Channel and saw the Model Law for quite some time (at least until Scotland adopted it) as being potentially useful exclusively for underdeveloped countries where arbitration was not practised anyway. As far as England is concerned, he predicted at the 1982 Annual Conference of the Chartered Institute of Arbitrators as the consequence of the Law coming into being that ‘the whole of our arbitration law would have to change and that, in turn, would lead to a revolution’.2 I fondly remember the raging debates …

UNCITRAL Model Law Adopted in Zimbabwe

The Arbitration Act, 1996, provides for the adoption of the United Nations Commission on International Trade Law (UNCITRAL) model law on international commercial arbitration as the law of Zimbabwe. The Act also gives legal effect to the 10 June, 1958, Convention on the Recognition and Enforcement of Foreign Awards to which Zimbabwe is a party.