The UNCITRAL Model Law on International Commercial Arbitration

Author(s): Michael F. Hoellering

Source: The International Lawyer , Winter 1986, Vol. 20, No. 1 (Winter 1986), pp. 327-
339
Published by: American Bar Association

Stable URL: https://www.jstor.org/stable/40705725

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 Michael F. Hoellering*

The UNCITRAL Model Law on

International Commercial Arbitration
I. Introduction

On June 21, 1985, following a three-week diplomatic conference attended

by representatives and observers from 58 states and 18 International or-
ganizations, the United Nations Commission on International Trade Law
(UNCITRAL) adopted a model law on international commercial ar-
bitration.1 The model law was drafted and developed by the Working Group
on International Contract Practices, which was entrusted with the project in
1981. The new model law is intended to serve as a model of domestic
arbitration legislation, harmonizing and making more uniform the practice
and procedure of international commercial arbitration while freeing inter-
national arbitration from the parochial law of any given adopting state. Its
existence should be of particular value not only in countries which would
benefit from modernization, but also in those countries which may be
adopting or expanding their arbitration laws for the first time.
This article briefly describes the background of the model law, its guiding
principles, and last, examines the structure and features of the model law.

II. Background

The project to develop a model law was conceived in 1979 when, after a
review of the favorable experience over the past twenty years with the 1958

*General Counsel, American Arbitration Association. Mr. Hoellering also served as a

member of the United States Delegation to the UNCITRAL Working Group on International
Contract Practices, which drafted the model law. The assistance of Carolyn M. Penna in the
preparation of this article is gratefully acknowledged.
1 . Report of the United Nations Commission on International Trade Law on the Work of its
Eighteenth Session, 40 U.N. GAOR Supp. (No. 17), U.N. Doc. A/40/17 (1985) [hereinafter
cited as Report of UNCITRAL on the Work of Its Eighteenth Session].

327

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328 THE INTERNATIONAL LAWYER

United Nations Convention on the Recognition and Enforcement of F

eign Arbitral Awards (N.Y. Convention), the Commission concluded tha
protocol to the Convention was not necessary, but that further work o
model law "could assist States in reforming and modernizing their law
arbitration . . . reduce divergencies encountered in the interpretation of th
1958 Convention . . . and minimize the possible conflicts between natio
laws and arbitration rules."2 Thus it was decided that the project should
in the form of a model law, and that due account should be taken of t
Convention and of the UNCITRAL Arbitration Rules.3
The work was undertaken by the Working Group in February, 1982 a
proceeded over the course of five sessions, and, in February, 1984, a dr
model law was completed and circulated for comment to governments a
international organizations. Comments were submitted until the close
1984, and, in June, 1985, at a plenary session of UNCITRAL in Vienna,
model law was finalized, taking into account the various comments received
A total of twenty-two states and five international organizations submitted
initial comments on the draft text. Virtually all of the respondents co
mented on the value of the model law, and expressed support for
generally.4

III. Guiding Principles Underlying

the Model Law

There are a number of basic principles which guided the drafting of the
model law, and which are highlighted below.

A. Party Autonomy

The entire scheme of the model law provides for a wide scope of par
autonomy, reflecting that this was one of the most significant principles a
defined by UNCITRAL.5 The Secretariat has stated that "Probably
most important principle on which the model law should be based is

2. Report of UNCITRAL on the Work of Its Twelfth Session, 34 U.N. GAOR Supp. (No
17), at paras. 78-80, U.N. Doc. A/34/17 (1979).
3. See Possible Features of a Model Law on International Commercial Arbitration: Repo
of the Secretary-General, U.N. Doc. A/CN9/207 (1981) [hereinafter cited as Possible
tures]. See also Hoellering, UNCITRAL Model Law: Commercial Arbitration, N.Y.L.J., J
12, 1984, at 1, reproduced in American Arbitration Association, Arbitration & the L
1984, 205 (1985).
4. See Analytical Compilation of Comments by Governments and International Organi
tions on the Draft Text of a Model Law on International Commercial Arbitration : Report of
Secretary-General, U.N. Doc. A/CN.9/263 (1985), at 4-5.
5. Herrmann, The UNCITRAL Model Law on International Commercial Arbitration - Its
Salient Features and Prospects, (paper delivered at a symposium on International Commercial
Arbitration, Chateau Frontenac, Quebec, Canada, Oct. 14-16, 1985, p. 5).

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 UNCITRAL MODEL LAW ON INT'L COMMERCIAL ARBITRATION 329

freedom of the parties ... to tailor the 'rules of the game' to their specific
needs."6
As finalized by the Commission, the model law expressly permits the
parties to specify the international nature of the arbitrable subject matter
(Art. l(3)(c)); choose institutionalized arbitration and rules (Art. 2(d));
agree on the manner in which written communications are deemed received
(Art. 3(1)); determine the number of arbitrators (Art. 10(1)); determine the
procedure for arbitrator appointment (Art. 11(2)); agree on a procedure for
arbitrator challenge (Art. 13(1)); determine the procedure for conduct of
the arbitral proceedings (Art. 21); determine the language(s) to be used
(Art. 22(1)); agree to the manner and time frames governing presentation of
claims (Art. 23(1)); agree to oral hearings (Art. 24(1)); agree as to defaults
(Art. 25) and experts appointed by the tribunal (Art. 26); choose the law(s)
which will govern the proceedings (Art. 28(1)); and authorize the arbitra-
tors to decide ex aequo et bono or as amiable compositeur (Art. 28(3)).

B. Consistency with N.Y. Convention

and UNCITRAL Rules

Viewed in the context of existing machinery for effective intern

commercial arbitration, the model law was drafted to promote the p
and principles underlying both the N.Y. Convention and various in
tional and the UNCITRAL Arbitration Rules. Because of the success of the
N.Y. Convention in terms of recognition and enforcement of awards among
its signatories throughout its twenty-eight-year history, the interest in main-
taining its standards and promoting their general acceptance was desirable.
In addition, there was also agreement that the basic principles of the
UNCITRAL Arbitration Rules, now generally well recognized for their
neutrality and comprehensiveness, should be maintained to the greatest
extent possible.

C. Scope - Broad Definitions of

"International" and "Commercial"

It was decided at the outset that the scope of the applicability of the m
law be restricted to international commercial arbitration.7 Because o
special needs of transnational dispute resolution, and since the term
mercial" has been defined differently by states, it was deemed importan
define these terms widely, so as to apply to the broadest range of in

6. Possible Features supra note 3, at para. 17. See also Holtzmann, The Conduct of A
Proceedings, in International Council for Commercial Arbitration, UNCITRA
Project for a Model Law on International Commercial Arbitration, (Netherlands 198
7. See Possible Features, supra note 3, at para. 28.

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330 THE INTERNATIONAL LAWYER

tional commercial transactions, thus adding certainty to the

ment mechanism applicable to such transactions.8
Article 1(3) provides that an arbitration is deemed "intern
parties' places of business are in different states; if the arbitra
pal place of contract performance is in a state other than that
business of the parties; or if the parties expressly agree th
matter of the arbitration agreement relates to more than o
The term "commercial," according to an explanatory footn
1(1), is to be given "wide interpretation so as to cover matters
all relationships of a commercial nature, whether contractu
tionships of a commercial nature include, but are not limited t
ing transactions: any trade transaction for the supply or ex
or services; distribution agreement; commercial representat
factoring; leasing; construction of works; consulting; engineeri
investment; financing; banking; insurance; exploitation agr
cession; joint venture and other forms of industrial or
operation; carriage of goods or passengers by air, sea, rail

D. Limited Court Intervention

One of the key concepts of the model law is that of limited and clear
defined instances of court intervention into the arbitration process, with
curtailed right of appeal from a court decision sought during the pendency o
the arbitral proceedings. A fundamental aim throughout all stages of draft-
ing was to strike a proper balance in the relationship between arbitratio
and the courts. As ultimately reflected in the model law, the role of th
courts in general is one of assistance supportive of the arbitral process an
not one of interference with it.11
Article 5 expressly limits court intervention and assistance to those in
stances specifically delineated by the law, which are: granting of provisional
remedies (Art. 9); assisting the arbitral tribunal, if so requested, in th
taking of evidence within the model law state (Art. 27); granting recour

8. See Report of UNCITRAL on the Work of Its Eighteenth Session, supra note 1 , at paras.
18-35. It has been conceded that the definition of "international" by the parties may lead
some abuse. See Hunter, International Commercial Arbitrations: The UNCITRAL Model Law
Int'l Bus. Law. Apr. 1984, at 189.
9. See Szasz, Introduction to the Model Law of UNCITRAL on International Commercia
Arbitration, in International Council for Commercial Arbitration: UNCITRAL's Project
for a Model Law on International Commercial Arbitration (Netherlands 1984V

10. Id., at 40. See also Bernini, Recent Legislations and International Unification of
on Arbitration, (paper delivered at a symposium on International Commercial Ar
Chateau Frontenac, Quebec, Canada, Oct. 14-16, 1985, p. 44).
11. See U.S. Government Comments on the UNCITRAL Working Group Draft T
Model Law on International Commercial Arbitration, reproduced in American A
Association, Arbitration & the Law 1984, 195 [hereinafter cited as U.S. Go
Comments].

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 UNCITRAL MODEL LAW ON INT'L COMMERCIAL ARBITRATION 331

against an award if the grounds outlined are met (Art. 34); and enforc
award (Art. 35) or refusing enforcement where sufficient groun
proven (Art. 36). 12
The model law further provides that, for certain functions, either a
or other named authority may be designated to perform the tasks of
ing an arbitrator failing party agreement (Art. 11); deciding chal
arbitrators (Art. 13); removing an arbitrator (Art. 14); deciding a
to arbitral jurisdiction (Art. 16); or setting aside an award (Art.
enacting state chooses the court or other authority of competent juri
for such actions (Art. 6). These matters, once referred to the co
specified authority, are not subject to appeal.
The approach of the model law, which allows limited prompt rec
court during the arbitral proceedings, but simultaneously perm
arbitration to go forward, represents a balance between the poten
delay through dilatory tactics of a recalcitrant party, and the futility
cost of arbitral proceedings in which the award is ultimately set aside
court.

E. Broad Arbitrator Authority

Under the provisions of the model law, the arbitrators are given expa
power to make certain decisions, subject only to contrary agreement
parties.13 The arbitral tribunal is empowered to decide on challenge
given arbitrator (Art. 13(2));14 rule on its own jurisdiction (Art. 16
interim measures of protection or provide security (Art. 18); determ
procedure for conduct of the arbitration and admissibility of evidence (
19(2)); determine the place of arbitration (Art. 20); determine the la
of the proceedings (Art. 22); decide whether to hold oral hearings
such hearings are not requested (Art. 24(1)); terminate or continue
ceedings on default of a party duly notified (Art. 25); appoint expe
assist the tribunal (Art. 26); request court assistance in the taking o
dence (Art. 27); decide the controversy in accordance with the app
rules of law (Art. 28); correct facial errors in the award on its own initi
within 30 days (Art. 33(2)); and extend the period of time for such
tions or interpretations of the award (Art. 33(4)).

12. See Melis, Arbitration and the Courts, in International Council for Commercial
Arbitration, UNCITRAL's Project for a Model Law on International Commercial
Arbitration 83 (Netherlands 1984).
13. See Herrmann, supra note 5.
14. Such determinations, however, may be subject to appeal to a court or other authority.
See Report of UNCITRAL on the Work of Its Eighteenth Session , supra note 1 , at art . 6; 1 3(3) .

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332 THE INTERNATIONAL LAWYER

IV. Structure and Features

of the Model Law

The UNCITRAL model law is divided into eight chapters and 36

articles. l5 The chapters cover (1) basic definitions and general provisions of
the law; (2) the arbitration agreement; (3) composition of the arbitral
tribunal; (4) jurisdiction of the arbitral tribunal; (5) conduct of the arbitral
proceedings; (6) making of the award and termination of the proceedings;
(7) recourse against the award; and (8) recognition and enforcement of
awards. It is intended as domestic law of the adopting state, subject to any
international treaties, conventions or agreements in force between the
adopting state and other states16 (such as the N.Y. Convention), and, by its
own terms,17 as lex specialis, would be subordinate to any other domestic
law affecting arbitration.
There are a number of interesting and important aspects of the model law.
These features will be discussed in numerical order, article by article, as they
appear in the law.

A. General Provisions (Chapter I)

Scope of application (Art. 1). - The scope of application of the model law,
as discussed in the underlying principles above, is limited to international
commercial arbitration, subject to any treaties and conventions already in
force. It is intended as domestic law and applies only if arbitration is held
within the territory of the enacting state except for the following limited
circumstances where domestic courts may exercise jurisdiction, even though
the place of arbitration may not be within the model law state, or the locale
of same has not yet been determined: actions to compel arbitration (Art. 8);
court grants of interim relief (Art. 9) ; and granting or refusing recognition of
an award (Arts. 35-36).
Definitions and rules of interpretation (Art. 2). - Article 2 defines ^arbitra-
tion/' "arbitral tribunal," and "court," and further expressly provides that
parties may delegate to a third party, e.g. , an arbitral institution, determina-
tions they themselves are authorized to make, or that parties may choose
rules for the conduct of their arbitration.
Receipt of written communications (Art. 3). - Written communications
under the model law are deemed received if delivered, on the day delivery
was made. This section expressly does not apply to court proceedings, but to
the arbitral proceedings only.
15. As adopted by UNCITRAL, June 21 . 1985. See Report of UNCITRAL on the Work of
Its Eighteenth Session, supra note 1. at 81.
16. Report ot UNL1 1 RALon the Workot Its highteenth Session, supra note 1, at art. 1(1).
17. Report of UNCITRAL on the Work of Its Eighteenth Session, supra note 1, at art. 1(5)
provides that kW[t]his Law shall not affect any other law of this State by virtue of which certain
disputes may not be submitted to arbitration or may be submitted to arbitration only according
to provisions other than those of this Law."
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 UNCITRAL MODEL LAW ON INT'L COMMERCIAL ARBITRATION 333

Waiver of right to object (Art. 4). - Failure to object when the provision
of the model law from which the parties may derogate have not been
adhered to acts as a waiver of the right to object. This is true not only
throughout the course of the arbitral proceedings, but in any subsequent
litigation as well.18
Extent of court intervention (Art. 5). - Court intervention and assistance
is limited to those functions expressly specified in the law, as explained in the
underlying principles above. To be noted, however, is that these provision
are expressly limited to "matters governed by this law," thus excluding
certain questions such as subject-matter arbitrability, capacity of the par
ties, sovereign immunity, consolidation, etc., which may be covered by
other domestic law.19
Court or other authority for certain functions of arbitration assistance and
supervision (Art. 6). - The enacting state may name a special court o
courts, or other competent authority, which will perform the functions of a
court as specified in this article.

B. Arbitration Agreement (Chapter II)

Definition and form of arbitration agreement (Art. 7). - In this article the
term "arbitration agreement" is defined as including both present and
future disputes, either under a contractual clause or a separate agreement. It
mandates that such agreement be in writing, and, consistent with terms o
the N.Y. Convention, defines an agreement in writing broadly to include
advances in communications technology which have developed over the
years. It further provides for incorporation of the arbitration agreement by
reference, and for constructive agreement, where such agreement is alleged
by one party and not denied by the other in the course of an arbitration
proceeding.
Arbitration agreement and substantive claim before court (Art. 8). - The
terms of this article require that a court "shall" refer the parties to arbitra-
tion unless it finds the arbitration agreement flawed, as defined by this
article. Despite the commencement of such a court action, however, arbitra-
tion proceedings may continue through award.
Arbitration agreement and interim measures by court (Art. 9). - Provi-
sional remedies are not deemed inconsistent with the arbitration process,
and there is no waiver of the right to arbitration by seeking interim relief
from a court.20

18. See Report of UNCITRAL on the Work of Its Eighteenth Session, supra note 1, at ch.
11, para. 57.
iy. òee Herrmann, supra note :>, at y.
20. United States law on this point, by comparison, is not very clear. Compare, e.g. , Coop
v. Ateliers de la Motobecane, S. A. , 57 N. Y.2d 408, 442 N.E.2d 1239, 456 N. Y.S.2d 728 (19
(the provisional remedy of attachment held inconsistent with arbitration under the N.
Convention) with Construction Exporting Enterprises, UNECA v. Nikki Maritime Ltd. , 558
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334 THE INTERNATIONAL LAWYER

C. Composition of Arbitral
Tribunal (Chapter III)
Number of arbitrators (Art. 10). - Three, absent a contrary agreement by
the parties.
Appointment of arbitrators (Art. 11). - A significant feature of this arti-
cle, which also provides for court assistance in the appointment of arbitra-
tors whenever necessary, is that the nationality of an arbitrator candidate
does not preclude service as an arbitrator. The provision brings the model
law into line with the UNCITRAL Rules, Art. 6(4) of which provides that
"the advisability of appointing an arbitrator of a nationality other than the
nationalities of the parties" should be taken into account. This matter is
currently a problem in certain countries, as only nationals of those states are
permitted to serve as arbitrators in any arbitration, international or domes-
tic, conducted within those states.21
Grounds for challenge (Art. 12). - Article 12 requires arbitrators to dis-
close any relationships likely to affect their impartiality and independence,
or the lack of any qualifications agreed to by the parties. The obligation to
disclose continues throughout the course of arbitral proceedings.22 Parties
have the right to challenge an arbitrator, on those grounds. If the arbitrator
is a party-appointee, however, challenge by the appointing party must be
made at the time of appointment. Challenges to arbitrators are permitted by
the party appointing them thereafter only if the circumstances giving rise to
the challenge came to light after appointment.
Challenge procedure (Art. 13). - A challenge procedure is set out in this
article, which further provides that a dissatisfied party may appeal the
results of the challenge to court in timely fashion and subject to no appeal.
Arbitral proceedings, however, may continue during such an action, at the
discretion of the tribunal.
Failure or impossibility to act (Art. 14). - The provisions of this article, as
well, include the right of an application to court, subject to no appeal. The
withdrawal of the arbitrator, or party agreement to termination of service,
however, is not to be inferred as an admission of the validity of any challenge
which may have been raised.
Appointment of substitute arbitrator (Art. 15). - Herein are provided the
mechanics of replacing an arbitrator removed or unable to act under Arti-
cles 12-14.

Supp. 1372 (S.D.N. Y. 1983) (the N.Y. Convention does not proscribe maritime attachments as
a provisional remedy).
21. See Analytical Commentary on Draft Text of a Model Law on International Commercial
Arbitration: Report of the Secretary-General, U.N. Doc. A/CN.9/264 at 28 (1985).
22. Cf. Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968)
(arbitrators have a duty to disclose any relationships which give the appearance of bias).

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 UNCITRAL MODEL LAW ON INT'L COMMERCIAL ARBITRATION 335

D. Jurisdiction of Arbitral
Tribunal (Chapter IV)
Competence of arbitral tribunal to rule on its jurisdiction (Art. 16). - T
arbitrators are authorized under Art. 16 to determine their own jurisdiction
This provides for the severability of the arbitration agreement from t
contract, thus providing jurisdiction to the arbitrators under the agreemen
to determine the validity of the contract itself.23 Art. 16 further authoriz
the arbitrators to make interim rulings. Again, a dissatisfied party, withou
having to wait for the conclusion of the arbitration, has recourse to court o
jurisdictional decisions of the tribunal, subject to no appeal, and the arbitra
tion proceedings may continue, at the discretion of the tribunal.
Power of arbitral tribunal to order interim measures (Art. 17). - Absent a
contrary agreement by the parties, the arbitrators are authorized to gr
provisional remedies, although such remedies will be more limited in sc
than those available from the court in that the arbitral tribunal's author
extends only to the arbitrating parties.

E. Conduct of Arbitral
Proceedings (Chapter V)
Equal treatment of parties (Art. 18). - This article highlights the b
requirement of fairness and due process, providing that "(t)he parties
be treated with equality and each party shall be given a full opportuni
presenting his case." One commentator has noted the importance of su
provision, stating that "(t)his principle is, of course, indispensable i
systems of justice. Without it, there is denial of justice, and lack of
process of law, and no court could be expected to enforce the arbitr
award."24
While the language of this article is not included word for word in the
grounds for the setting aside and refusal of recognition and enforcement of
an award (Art. 34 and 36); failure to comply with the terms of Article 18
provides a ground for recourse against the award.25
Determination of rules of procedure (Art. 19); place of arbitration (Art.
20); commencement of arbitral proceedings (Art. 21); language (Art. 22);
statement of claim and defence (Art. 23); hearings and written proceedings

23. Cf. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), (questions of
fraud in the inducement of the contract, as opposed to fraud in the making of the arbitration
agreement itself, is a question for arbitral determination under the United States Arbitration
Act, 9 U.S.C. § 1 et sea).
24. Holtzmann, The Conduct of Arbitral Proceedings, in International Council for
Commercial Arbitration, UNCITRAL/s Project for a Model Law on International
Commercial Arbitration 129 (Netherlands 1984).
25. See Report ot UNCITRAL on the Work of Its Eighteenth Session, supra note 1, at 56,
para. 287.

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336 THE INTERNATIONAL LAWYER

(Art. 24); default of a party (Art. 25); expert appointed by arbit

(Art. 26); court assistance in taking evidence (Art. 27). - These
discuss generally the "rules" of procedure to be followed during
of the arbitral proceedings, and generally track the provisions
CITRAL Arbitration Rules. The principle of party autonomy go
of these provisions, and, failing party agreement, such decisions
tribunal.
Several points arise in these provisions which are worthy of highlight. Art.
21 provides that arbitral proceedings officially commence with the receipt by
the respondent of the request for arbitration. The parties have a right to oral
hearings, and may demand them under Art. 24, unless they have agreed that
the arbitration be conducted on the basis of documents and other materials
only. The United States government commented that "[u]nless the right is
expressly waived, a party should have the right to introduce oral evidence by
witnesses and to have the tribunal determine the credibility of any witness.
A party also should have the right to communicate its legal and factual
arguments as effectively as possible."26 Failure to prosecute or failure to
defend one's position at the hearings, if duly notified, amounts to a default
under Art. 25, and the arbitrators are authorized to decide the matter ex
parte. Parties have the right to question any expert appointed by the arbitral
tribunal, under Art. 26, and the tribunal, or any party with the tribunal's
approval, may petition the court for assistance, within the model law state,
in taking evidence, under Article 27.

F. Making of Award and Termination

of Proceedings (Chapter VI)
Rules applicable to substance of dispute (Art. 28). - Art. 28 provides th
the arbitrators shall decide in accordance with the applicable law or rules
law. Applicable law is chosen by the parties, and this formulation provid
parties to international commercial transactions with newly defined fr
dom to designate as applicable to their agreement rules of more than on
legal system, including rules of law which have been elaborated on th
international level. In the absence of choice of law by the parties, the l
applicable shall be determined by the arbitral tribunal based upon the
conflict of laws rules which it considers applicable.
The United States government noted, in its comments on the draft model
law, that this was a most important feature:
The United States fully endorses the decision of the Working Group, containe
in Article 28(1), to extend party autonomy in the designation of the law applicab
to the substance of the dispute to include "the rules of law" which parties m
designate as applicable to their dispute.27
26. U.S. Government Comments, supra note 11, at 200.
27. Id., at 202.

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 UNCITRAL MODEL LAW ON INT'L COMMERCIAL ARBITRATION 337

The arbitrators must also decide in accordance with the terms of the
contract and take into account trade usage. In considering the value of this
provision it has been recognized that:
the law applicable to the contract is, in international business relations, a delicate
subject on which, at the end of lengthy negotiations, it may be difficult to reach
agreement. Each party will prefer to have its own law be declared applicable,
afraid of surprises the law of the other party may present. The question remains
therefore often outstanding. It may even be a stimulant for insertion of an
arbitration clause into the contract as the parties, not without good reason, expect
from arbitrators that they will above all base their decision on the wording and
history of the contract and the usages of trade.28
Additionally, the tribunal may not decide ex aequo et bono, or as amiable
compositeur, unless expressly so authorized by the parties.
Decision-making by panel of arbitrators (Art. 29). - Awards must be
made by a majority of the tribunal. Procedural decisions may be made by "a
presiding arbitrator" alone, however, if so agreed by the parties or the
tribunal.
Settlement (Art. 30). - Settlements may be memorialized into consent
awards, which have the same effect as any other award on the merits, if the
arbitrators approve.
Form and contents of award (Art. 31). - The parties may agree to an
unreasoned award, if they so desire. Otherwise, the award must state
reasons. The award further is deemed made where stated in the award,
irrespective of where it may have been executed by the arbitrators.
Termination of proceedings (Art. 32). - The conditions of termination,
which include withdrawal of claim, settlement, making of final award, or
agreement of the tribunal, are outlined in this article.
Correction and interpretation of award; additional award (Art. 33). - The
parties may agree that interpretation of a particular point or part of an award
may be requested from the tribunal, and any party may request correction of
any facial errors on the award. The arbitrators themselves have the author-
ity to correct facial errors to the award sua sponte within thirty days. They
further have the authority to extend that period of time, if they so agree.

G. Recourse Against Award

(Chapter VII)
Application for setting aside as exclusive recourse against arbitration a
(art. 34). - The grounds for setting aside an award are the same as th
the N.Y. Convention, including nonarbitrability and public policy.
article provides a short three month time limit for actions to set aside,

28. Id., at 203 (quoting Pieter Sanders, Fifth International Arbitration Congres
Delhi, 1975).

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338 THE INTERNATIONAL LAWYER

gives the court discretion, upon the request of a party, to suspe

proceedings to allow the tribunal to resume the arbitration or t
other action as will eliminate the grounds for setting aside.

H. Recognition and Enforcement

of Awards (Chapter VIII)
Recognition and Enforcement (Art. 35). - Awards under the mode
are considered binding and enforceable, irrespective of the country in wh
made. This article was included to provide supplementary assistance i
enforcement of non-Convention awards without adversely affectin
operation of the N.Y. Convention. Recognizing that some states may f
easier to adopt the model law rather than adhere to a multilateral con
tion, the model law thus represents a further means of creating, in addit
to the multilateral and bilateral network, a unilateral system of recognit
and enforcement of foreign arbitral awards. The provisions for recog
and enforcement outlined in this article are deemed "maximum stand
thus, the adopting state may impose less rigorous standards for recognit
and enforcement.
Grounds for refusing recognition or enforcement (Art. 36). - Again, the
grounds for such refusal are the same as those in the N.Y. Convention, and
are essentially identical to the grounds for setting aside the award. It is
noteworthy that a party who has not timely moved to set aside the award
under Art. 34 is not foreclosed from raising defenses to recognition and
enforcement of that award.29
The court is expressly authorized by the terms of this article to "adjourn
its decision" pending a decision on setting aside an award from another
court. The article thus may be used to avoid concurrent judicial review and
the possibility of conflicting decisions.30 The court also is authorized to order
appropriate security where deemed required, to ensure satisfaction of the
award.

V. Conclusion

The result of UNCITRAL's latest arbitration initiative is a comprehen

sive model law of arbitration procedure which, in time, will serve to stream-
line and make more uniform the practice of international commercial
arbitration worldwide. Although just completed, the model law has gener
ated wide interest in the international community, and already has had

29. See Report of UNCITRAL on the Work of Its Eighteenth Session, supra note 1, at 54,
para. 274.
30. Analytical Commentary on Draft Text of a Model Law on International Commercial
Arbitration, supra note 21, at 79.

VOL. 20, NO. 1

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 UNCITRAL MODEL LAW ON INT'L COMMERCIAL ARBITRATION 339

harmonizing effect in the very process of seeking to formulate an interna-

tional consensus on the necessary procedural elements of effective interna-
tional commercial arbitration. To a large extent the model law parallels
existing United States law in that many of its provisions and basic concepts
are essentially similar.
The law, as finally adopted by the Commission, was made possible by the
dedicated common efforts of representatives and observers from many
states, representing the various geographic regions and principal economic
and legal systems of the world. The cooperative efforts over the last two and
a half years have produced a model law on international commercial arbitra-
tion which is in most respects excellent, one which provides for broad party
autonomy in fashioning the arbitration process, reflects principles of fair-
ness and equality of treatment of the parties, includes basic provisions for
the functioning of arbitral proceedings where the parties have not made
necessary provisions, and strikes a proper relationship between arbitration
and the courts.
The model law represents a further step in the advancement of interna-
tional commercial arbitration as a viable and preferred forum for resolution
of transnational business disputes - so greatly needed to facilitate and
stimulate the smooth flow of international trade and investment.

WINTER 1986

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