UNCITRAL 2012 Digest of Case Law on the Model Law on International Commercial ArbitrationINTRODUCTION TO THE UNCITRAL 2012 DIGEST OF CASE LAW ON THE MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION (1985, WITH AMENDMENTS AS ADOPTED IN 2006) ‘THE UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION L._ The UNCITRAL Model Law on International Com- mercial Arbitration’ (the Model Law”) was adopted by the United Nations Commission on Intemational Trade Law (UNCITRAL) on 21 June 1985, atthe end of the eighteenth session of the Commission, The General Assembly, in its resolution 40/72 of 11 December 1985, recommended “that all States give due consideration to the Model Law on International Commescial Ati in view of the desir ability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice”, The Model Law was amended by UNCITRAL fon 7 July 2006? atthe thirty-ninth session of the Commis- sion (Gee below in this section, para, 4). The General Assembly, in its resolution 61/33 of 4 December 2006, recommended “that all States give favourable consideration (0 the enactment of the revised stiles of the Model Lev, cr the revised Model Law (...), when they enact or revise their laws ( 2. "The Model Law was developed to address considerable disparities in netional laws on arbitration. The need for ‘improvement and harmonization was based on findings that national laws were often particularly inappropriate for international cases. The Model Law constitutes & sound basis for the desired harmonization and improvement of nationsl laws. Tt covers all stages of the arbitral process from the arbitration agreement to the recognition and enforcement of the arbitral award and reflects a worldwide ‘consensus on the principles and important issues of inter- national arbitration practice. I is aeceptable to States of all regions and the different legal or economic sysiems of the ‘would. Since its adoption by UNCITRAL, the Model Law hhas come to represent the accepted international legislative standard for a modern. arbitration law and a significant ‘number of jurisdictions have enacted arbitration legislation based on the Model Law. 3. The form of a model law was chosen 2s the vehicle for harmonization and modernization in view of the flexibility it provides to States in preparing new arbitcation laws. Not withstanding that flexibility, and in order to increase the likelihood of achieving a satisfactory dagree of harmoniza- tion, States are encouraged to make as Few changes as pos- sible when incorporating the Model Law into their legal systems, Efforts to minimize vasiation fiom the text adopted by UNCITRAL are also expected to increase the visibility ‘of harmonization, thos enhancing the confidence of foreign patties, as the primary usors of international arbitration, in the relishiliy of arbitration law in the enacting State (see bbelow in this section, para, 13) 4. ‘The revision of the Model Law adopted in 2006, includes article 2 A, which is designed to facilitate inter- pretation by reference to internationally accepted princi- ples and is aimed at promoting a uniform understanding Of the Model Lav. Other substantive amendments to tho ‘Model Lav relate tothe form of the arbitration agreement and to interim meastres. The original 1985 version of the provision on the form of the arbitration agreement (article 17) was modelled on the language used in article I (2) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) ("the 1958 Now York Convention”). The revision of article 7 is intended to address evolving practice in international rade and technological developments, The extensive revision of article 17 on interim measures was considered neces: sary in light of the fact that such measures aze incveas- ingly relied upon in the practice of intemational ccommetcial arbitration. The revision also includes an enforcement regime for such measures in recognition of the fact that the effectiveness of arbitration frequently depends upon the possibility of enforcing interim meas- tures. The new provisions on interim measures and. pre liminary orders. are coniained in chapter TV A of the Mode! Law. 5. Legislation based on the Model Law has been enacted, at the date of the Digest, in around ninety jurisdictions which come from all legal tactions, and have very differ cent economies, and levels of development’ The number of| academic works dedicated to the Model Law grows "Oficial Reconds of the General Ascambly,Fortith Session, Supplement Mo, 17 (AMON), annex I; United Natiocs publication, Sales No. B95.VI8 * Oficial Records of the General Assembly, Sisty-fvs Sesslon, Supplement No. 17 (AIGUII, annex 3; United Nations publication, Seles No. .08. Vi * United Nations, Treaty Serie, vol 330, No. 4739, p. 38 “Information on jucsictons having enacted legislation based on the Model Law is provides on UNCITRAL's website at hip:/vww. neiteal ong.2 LUNCETRAL 2012 Digest of Cate Lav on the Model La oo Snernationsl Commercial Arbitration constantly? as does the amount of related case law available from vasious sources. Its contribution to the goal of unica tion of intemational trade Jaw is definitely significant. PROMOTING UNIFORM INTERPRETATION (OF UNCITRAL INSTRUMENTS: CLOUT AND DIGESTS 6. UNCITRAL, in aecordance with its mandate has ‘undertaken the preparation of the tools necessary for a thor ugh understanding of the instruments it develops and for thelr uniform interpretation 7. UNCTTRAL has established a reporting system for cease law on UNCITRAL texts (CLOUT)? CLOUT was established in oeder to assist judges, arbitrators, fawyers, and parties to business transactions, by making available Uecisions of courts and arbitral tabunals interpreting UNCTTRAL texts; and in s0 doing, to futher the uniform interpretation and application of those texts. CLOUT covers cease le related to conventions and model laws prepared by UNCTTRAL, although the majority ofits cases refers to the ‘United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980), and to the Model Law, 8. A network of national correspondents, appointed by the Govemaments of States that are party 10 atleast one of the UNCITRAL conventions or have enacted at least one of the UNCITRAL miodel laws, monitors the relevant judi cial decisions in the respective counisies and reports them to the UNCITRAL Secretariat in the form of an abstract Voluntary coalributors can also prepate abstracts for the attention of the Secrotarat, which may publish chem in ‘agreement with the national comespondents. The Secretariat cedits and indexes all of the abstracts received and publishes them in the CLOUT series, The nctwork of national cor- respondents ensures coverage of a large number of domes- tic jurisdictions. The availability of CLOUT in the six pffcial languages of the United Nations greatly enhances the dissemination of the information, These two elements ste essential to promote uniformity of interpretation on the Widest possible scale. 9, In light of the large number of cases collected in CLOUT on the Model Law, the Conmission requested a tool specifically designed to present selected information ‘on the interpretation of the Model Law in a clea, concise tnd objective manner, This request originated the Digest of ease law on the Model Law? 10. ‘The goal of harmonized interpretation of the Model Law has greatly benefited from CLOUT, an itis expected that the Digest will furher support it. As highlighted by article 2A of the Model Lavy, in the interpretation of the ‘Model Law, “sega isto be had to its intemational origin”, and the Digest aims at promoting uniformity in its applica- tion by encouraging judges to consider how the Model Law has been applied by courts in jussdictions where the Model Law has been enacted. 11, The Digest presents the information in @ format based ‘on chapters corresponding to chapters of the Model Law. Fach chapter contains a synopsis of the relevant case Ia for each azticl, highlighting common views and reporting any divergent epproach, The Digest is meant to reflect the cvoluton of case law and, therefore, updates will be peri- odically released. While the CLOUT system reports cases in the form of abstracts, the present Digest makes reference ‘also to the full text of a decision whenever this is useful to illustrate tho point. This Digest was prepared using the full text of the decisions cited in the CLOUT abstracts and other citations listed in tae footnotes. The absteacts are intended to serve oaly as suramaries of the underlying deci- sions and may not reflect all the points made in this Digest Readers are advised to consult the full text of the listed court and arbiteal decisions rather then relying solely oa the CLOUT absiracs 12. The Digest does not constitute an independent author- ity indicating the interpretation to be given to individual provisions but ithe serves as reference tool summacizing and pointing to the decisions that had been included inthe Digest. The purpose of the Digest is to assist in the dis semination of information on the Model Law and further ‘promote its adoption as well as its uniform interpretation In addition, the Digest is meant to help judges, arbitrators, TONCETRAL prepares yearly a Bibliography of recené writings related tothe work of UNCITRAL, saiable on UNCITRAL'S website a hapfvorwuncial or CUNCITRAL should be active, inter ali, in “..} promoting ways and means of ensuing « uniform interpretation and application of inernational conventions and vnifo ‘on national Igilstion ard modern we in the field f the law of iterations] trade [and] collecting and disseminating information developments, including cx aw, in the fled of the law of international ade; ("Gener ‘Ausenbly resokaion 2205 (XI) of 17 Decentper 1966, avallable on UNCTTRALS website at Inipulwwwuncital.org, For details cov. ‘Coming the mandate for the progressive developmeat oF the law of international tad, se alo the report ofthe Secretay-Cenieral sectlgod in document AIE39® (Oficial Reconds of the Genera! Assembly, Twenyis Sesion, Annexcs, agenda item 88, dosumeat ‘816396, reproduced in UNCITRAL Yearbook, vo. 1. 1968-1970, past one, chap. I, set. By; the report of the Fi st item (Oficial Records of te General Assembly, Iwenyfirst Session, General Assembly at ite (Weny-fas session on te relevant agen Conte ofthe ‘Ranenes agends item 88, document A/6S94, reproduced in UNCITRAL Yearbook, vo. I: 1968-1970, part one chap. T st. Dyin the relbvant summary records of the proceedings of the Sixth Comite, which are contained in the Official Records of the General ‘Revcubly, Twennyfirs Seaxion, Sith Commits, 94789550 meetings and of which excerpts are reproduced i the UNCITRAL. Year~ ‘boo, vo. I: 1968-1970, part one, chap. I, set. * Oficial Reconis of the General Assenbly, Forty-shird Session Supplement No. 17 (NA3/I7), paras. 98-108. CLOUT reprts ave publched as Usted Nations documents AICN SISERCIABSTRACTS/L to AICNSISERCIABSTRACTSIxx, The CLOUT repors se iso avilable on UNCITRALS website at htp//wwrwaneiteal org "United Nations Tay Series, vol. 1498, No-25567, p. 3 (Gee FN 57), » Oficial Records of the General Assembly, Fifpsith Session, Supplement No, 17 (ASNT). para. 39. Offical Records ofthe Genera Assembly, Fiy-nitsh Session, Supplement No, 17 (ASH), paras. 87-91, 2 rintrodoction 3 practitioners, academics and Government officials use more cfficiently the cese law relating to the Model Law.” 13, States, when enacting the Model Lavy, have in cortin instances made modifications to certain provisions, despite recomenslation fo make as few changes as possible when incorporating the text into their legal system (see above in this section, para, 3), The Digest indicates, to the extent possible, where a diverging interpretation ofa specific pro- ‘vision originates from a modification made to the Model Law provision when enacted in the domestic legislation, ACKNOWLEDGEMENT OF CONTRIBUTIONS 14, The Digest is the result of the cooperation between the national correspondents and the UNCITRAL Secretariat Is first draft, prepared in 2012, greatly benefited from the contributions of Frédéric Bachand, Lawrence Boo and Stephan Kell. Before being published in the current for mat, the Digest was further edited by the UNCITRAL Secretariat For questions or comments on the Digest please contact the Secretariat of UNCTTRAL ntemational Trade Law Division, ‘Olfice of Legal Affairs, ‘United Nations, Vienna International Centre RO. Box 500, 1400 Vienna, Austria, ‘uncial @uncitra.ors)-