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Foreword of the Guide to the 1985 UNCITRAL Model Law
Publication Carl-August Fleischhauer
A Guide to the UNCITRAL The advent of the UNCITRAL Model Law on International Commercial Arbitration, to which
Model Law on International this book is devoted, constitutes the most remarkable development and influential
Commercial Arbitration: accomplishment in the field of commercial arbitration in the eighties. For me, as Head of
Legislative History and the Office of Legal Affairs of the United Nations Secretariat, which, by its International
Commentary Trade Law Branch, serviced and assisted the United Nations Commission on International
Trade Law in the preparation of the UNCITRAL Model Law, it is a pleasant task to
contribute, albeit in a personal capacity, this Foreword. An additional reason is that the
Organization book essentially consists of United Nations documents providing authentic insights into
the travaux préparatories to the UNCITRAL Model Law and commentaries on them by the
United Nations Commission authors.
on International Trade Law
The UNCITRAL Model Law constitutes the third major contribution of the United Nations to
the development of a fair and efficient process of resolving disputes in international
commercial transactions. The first was the Convention on the Recognition and Enforcement
Bibliographic reference of Foreign Arbitral Awards, concluded at the United Nations Conference on International
Carl-August Fleischhauer, Commercial Arbitration (New York 1958) and now adhered to by 74 States. Then came the
'Foreword of the Guide to the UNCITRAL Arbitration Rules (1976), which are used worldwide in ad hoc arbitration and in
1985 UNCITRAL Model Law', administered arbitration, assisted by more than thirty arbitral institutions in all regions of
in Howard M. Holtzmann and the world. These two texts are taken into account and complemented by the UNCITRAL
Joseph Neuhaus , A Guide to Model Law (1985), which provides an excellent statutory framework for arbitral proceedings
the UNCITRAL Model Law on and thus a hospitable legal climate for such proceedings in any State adopting it.
International Commercial The General Assembly of the United Nations recognized that the UNCITRAL Model Law
Arbitration: Legislative serves the goals of modernization and unification when it recommended in its resolution
History and Commentary, 40/72 of 11 December 1985 that all States give due consideration to the UNCITRAL Model
(© Kluwer Law International; Law, in view of the desirability of uniformity of the law of arbitral procedures and the
Kluwer Law International specific needs of international arbitration practice.
1989) pp. v - vii
Modernization to meet the particular needs of international commercial arbitration is
desirable in the many States that do not have developed, comprehensive and appropriate
arbitration laws. The need for modernization is not limited to developing countries, as is
evidenced by the recent law reforms undertaken in various Western European States,
starting — concurrently with UNCITRAL's project — in 1981 with France as the first State ever
to enact a law specifically geared to international commercial arbitration.
Pv
P vi Not even the most modern national law, however, can serve as a promising basis for
worldwide unification — the other goal of the UNCITRAL Model Law. The text of the
UNCITRAL Model Law is unique in that it was elaborated by arbitration experts
representing all regions of the world and all legal and economic systems. Based on the
wealth of different views and approaches and in a process reflecting UNCITRAL's
traditional spirit of co–operation and consensus, pragmatic solutions were found that are
universally acceptable. This fact, already evidenced by the first adoptions of the UNCITRAL
Model Law in almost all jurisdictions of Canada and in Cyprus and by the advanced stage
of implementation in other States in various parts of the world, is of particular importance
in the field of arbitration.
The mobile and truly international arbitral process calls for a wide range of choices as
regards the place of arbitration and requires easily obtainable, accurate information
about the law of the country in question. In order to maximize this effect for the benefit of
the primarily foreign users, any legislature reviewing and revising its national arbitration
law would be well advised to follow the structure and wording of the global model as
closely as possible. This appeal has been heeded in exemplary fashion by the first States
that already adopted the UNCITRAL Model Law (Canada in almost all of its jurisdictions
and Cyprus) and by other jurisdictions (e.g., Australia and Hong Kong) that plan to make no
or only minimal modifications to the original model.
For States with legislation based on the UNCITRAL Model Law and for the many other
States considering its adoption, the preparatory documents are a useful tool for a full
understanding of the background, scope and meaning of individual provisions. This is
recognized, for example, by most Canadian enactments, which refer as aids in
interpretation to the report of the Commission's session (1985) and the Secretary–General's
commentary on the draft text (1984), and by the first court decision on the Model Law
(Navigation Sonamar Inc. c. Algoma Steamships Limited et autres, Cour supérieure du
Québec, [1987] Recueil de Jurisprudence du Québec, 1346) which quotes portions of the
travaux préparatories.
The readers of the present book are taken on a guided tour through the legislative history
of the UNCITRAL Model Law, to the extent it is laid down in documents. Although the book

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 is not an official commentary, it contains the most authoritative source material. This
material consists of the reports adopted by the Working Group and the Commission. There
are also the comments of Governments edited by the Secretariat and the many studies,
reports or notes of the Secretariat, published in Working Papers for the Working Group or in
documents submitted to the Commission. Finally there are the summary records of the
deliberations in the Commission, prepared by précis-writers of the United Nations
Language Services.
P vi
P vii
This book facilitates tracing the history and understanding the meaning of each of the
provisions of the Model Law by a number of useful means. It collects in one place, and in
easily accessible form, a large number of documents, all of which are available to the
public, although some of them are to be found only in more specialized libraries. Thus the
task of research is made much easier. The portions of the documents relating to a given
article are arranged together and in chronological order under the relevant article
number. The authors introduce each article with a commentary which, although not, of
course, an official commentary, guides the reader by summarizing the genesis of the
article. In addition to other useful sections, such as one setting forth the issues considered
by the Working Group but not regulated in the UNCITRAL Model Law, there is a general
introduction describing the background and purpose of UNCITRAL's efforts in this
important field, and explaining the legal relationship, within the framework of
international arbitration, of private contracts, arbitration rules, national laws, and
international conventions.
I am confident that this book, which is published at an opportune time with the
cooperation of the highly-respected T.M.C. Asser Institute of International Law in The
Hague, The Netherlands, will contribute to a better understanding of the UNCITRAL Model
Law and thus enhance the wide recognition of its unique values.
Carl-August Fleischhauer
The Legal Counsel
Under–Secretary–General for Legal Affairs
The United Nations
P vii

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Document information
Foreword of the Guide to the 2006 Amendments to the
Publication UNCITRAL Model Law
A Guide to the 2006 Jernej Sekolec
Amendments to the (★)
UNCITRAL Model Law on
International Commercial Following its adoption in 1985, the UNCITRAL Model Law on International Commercial
Arbitration: Legislative Arbitration soon came to be regarded as one of the major achievements in the field of
History and Commentary international arbitration, along with the 1958 New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards. No State would today draft arbitration legislation
without consulting the Model Law. Nor would any experienced arbitration practitioner,
Organization when construing one of its provisions, fail to also consult the 1989 seminal work by Howard
M. Holtzmann and Joseph E. Neuhaus: A Guide To the UNCITRAL Model Law on International
United Nations Commission Commercial Arbitration (Kluwer 1989). That book has been favorably reviewed by many
on International Trade Law writers, and used and recommended by countless practitioners over the years. It won the
1991 Certificate of Merit of the American Society of International Law as a work of “great
distinction.” The book has consistently been lauded for being “user-friendly,” as well as for
Bibliographic reference its clarity and ease of reference—which is no small feat, considering that it is a tome of
Jernej Sekolec, 'Foreword of over 1300 pages.
the Guide to the 2006 The 1989 book essentially arranged and edited the original U.N. drafts, reports, summary
Amendments to the records of debates, government comments, and other papers that made up the travaux
UNCITRAL Model Law', in préparatoires of the 1985 UNCITRAL Model Law into an annotated road-map of the process.
Howard M. Holtzmann , One prescient reviewer noted, in the April 1990 issue of the International and Commercial
Joseph Neuhaus , et al., A Law Quarterly, that the book would “be in use (without need for subsequent editions) for
Guide to the 2006 many years to come.” Indeed, as of the time of this writing, of the 99 jurisdictions in 69
Amendments to the States that have adopted national legislation based on the Model Law, 76 still have
UNCITRAL Model Law on legislation based on the 1985 Model Law, and for those jurisdictions, therefore, the
International Commercial Holtzmann-Neuhaus book remains the current and complete reference guide. Twenty-three
Arbitration: Legislative of the 99 jurisdictions, however, have by now amended or updated their arbitration laws on
History and Commentary, the basis of amendments that UNCITRAL made to the Model Law in 2006. For these and any
(© Kluwer Law International; future enactments, the need for a second edition of the book had arisen.
Kluwer Law International
2015) pp. vii - x The 2006 amendments of the Model Law addressed two main topics: the “writing”
P vii requirement for arbitration agreements, and the conditions under which interim measures
P viii of protection could be issued. The Working Group tasked with drafting the amendments
furthermore found that the expansion of the forms of acceptable “writing” might conflict
with a narrow interpretation of the writing requirement in the New York Convention, and it
therefore decided to issue an interpretive instrument to encourage a broad interpretation
of the latter.
Although these topics arose from practical considerations such as advances in technology
and electronic commerce, they proved remarkably difficult to negotiate and required the
Working Group to reconcile different national approaches to the formation of arbitration
agreements with the writing requirement of the New York Convention. The discussions
generated seven years' worth of travaux préparatoires, interspersed with other topics on
the Commission's agenda, such as conciliation. But, in the end, the UN General Assembly
was able to approve the amendments to the Model Law, in Resolution 61/33 of 18
December 2006, recommending “that all States give favourable consideration to the
enactment of the revised articles of the Model Law, or the revised Model Law on
International Commercial Arbitration of [UNCITRAL], when they enact or revise their laws,
in view of the desirability of uniformity of the law of arbitral procedures and the specific
needs of international commercial arbitration practice.”
As Secretary of UNCITRAL and Director of the International Trade Law Division of the UN
Office of Legal Affairs at the time that the 2006 amendments were adopted and during
much of their negotiations, I am delighted that there is now a companion volume to the
1989 Holtzmann-Neuhaus book, assembled along the same familiar format, to organize the
numerous drafting history documents into coherent topics and explain how they
interrelate. For States that have legislation based on the amended Model Law, or for any
States considering its adoption, these preparatory documents are an essential tool for
understanding the origin, scope and meaning of each of the amended provisions.
While it was sometimes difficult in the 1980s to obtain a copy of UNCITRAL texts, often
entailing a visit to a specialized law library, the travaux of both the 1985 Law and the 2006
amendments are now readily available online on the UNCITRAL website at the touch of a
pixel on a practitioner's smartphone. Where there was once limited access, there is now
P viii information overload; to quote again the 1990 book review in the International and
P ix Commercial Law Quarterly: “mere access to such voluminous material is itself of no great
assistance to the legislator, practitioner or student who wishes to track down the ebb and
flow of debate on any particular topic covered by the Model Law or deliberated in the
Working Group.” It is as useful as ever that someone make the effort to digest the record
and place it into context, as the authors have done.

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 Judge Howard M. Holtzmann, who passed away before this book could be published, was a
uniquely passionate and dedicated jurist, arbitrator, author, editor, educator, and
philanthropist. He endowed a professorship in international law and established
fellowships in that field, wrote and edited many books and texts on international
arbitration, and for almost half a century contributed immeasurably to the development of
that field. He held many positions during his career, including President of the American
Arbitration Association, original member of the Iran-U.S. Claims Tribunal, Vice Chairman of
the International Council for Commercial Arbitration, member of the Claims Resolution
Tribunal for Dormant Accounts in Switzerland, and last but not least, U.S. delegate to
UNCITRAL. He played an active role in the negotiations and drafting of the 1985 Model Law
as well as its 2006 amendments.
During the writing of the 1989 book, Joseph Neuhaus had been working closely with Judge
Holtzmann as his law clerk, both at the Iran-United States Claims Tribunal in The Hague
and at the UNCITRAL Working Group in Vienna. Mr. Neuhaus is now a partner of the law firm
of Sullivan & Cromwell LLP, in New York, and coordinator of the firm's arbitration practice.
Thomas Walsh is Special Counsel at Sullivan & Cromwell and his practice is focused on
international commercial and investor-state arbitration, and international litigation in
U.S. federal and state courts. Edda Kristjánsdóttir is an international lawyer who worked for
Judge Holtzmann during her law studies in New York City after he retired from the Iran-US
Claims Tribunal, and they later co-edited the book International Mass Claims Processes:
Legal and Practical Perspectives (OUP 2007). With the support of Sullivan & Cromwell and
P ix the Holtzmann family, the authors have with this book created a welcome and worthy
P x companion to a classic in the field, and I am confident that it will be an essential aid to
understanding and utilizing the amended UNCITRAL Model Law.
June 2015
Px

References
★) Jernej Sekolec: Independent Arbitrator Former Secretary of UNCITRAL

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Document information
Introduction to the Guide to the 1985 UNCITRAL Model Law
Publication The General Assembly of the United Nations on 11 December 1985 adopted a Resolution
A Guide to the UNCITRAL approving the Model Law on International Commercial Arbitration that had been prepared
Model Law on International by the United Nations Commission on International Trade Law (“UNCITRAL”).
Commercial Arbitration: The Resolution emphasizes a number of key points that illuminate the background and
Legislative History and purpose of the Model Law, and a brief examination of it may, therefore, be a useful way to
Commentary introduce the subject of this book. The Resolution states:
The General Assembly,
Organization Recognizing the value of arbitration as a method of settling disputes arising in
United Nations Commission international commercial relations,
on International Trade Law Being convinced that the establishment of a model law on arbitration that is
acceptable to States with different legal, social and economic systems
contributes to the development of harmonious international economic
Bibliographic reference relations,
'Introduction to the Guide to Noting that the Model Law on International Commercial Arbitration was
the 1985 UNCITRAL Model adopted by the United Nations Commission on International Trade Law at its
Law', in Howard M. eighteenth session, after due deliberation and extensive consultation with
Holtzmann and Joseph arbitral institutions and individual experts on international commercial
Neuhaus , A Guide to the arbitration,
UNCITRAL Model Law on Being convinced that the Model Law, together with the Convention on the
International Commercial Recognition and Enforcement of Foreign Arbitral Awards and the Arbitration
Arbitration: Legislative Rules of the United Nations Commission on International Trade Law
History and Commentary, recommended by the General Assembly in its resolution 31/98 of 15 December
(© Kluwer Law International; 1976, significantly contributes to the establishment of a unified legal framework
Kluwer Law International for the fair and efficient settlement of disputes arising in international
1989) pp. 1 - 17 commercial relations,
1. Requests the Secretary–General to transmit the text of the Model Law on
International Commercial Arbitration of the United Nations Commission
on International Trade Law, together with the travaux préparatories from
the eighteenth session of the Commission, to Governments and to arbitral
institutions and other interested bodies, such as chambers of commerce;
2. Recommends that all States give due consideration to the Model Law on
International Commercial Arbitration, in view of the desirability of
uniformity of the law of arbitral procedures and the specific needs of
international commercial arbitration practice. (1)
P1
P2
This Resolution, adopted by consensus, was the culmination of a major project to draft a
Model Law on arbitration designed for use in all legal and political systems, in developed
as well as developing countries, and in all geographic regions. While this action of the
General Assembly marked the successful conclusion of the drafting phase of the Model
Law, it signaled, at the same time, the start of a new phase—the effort to secure enactment
by States throughout the world of modern arbitration legislation based on the Model Law.
The purpose of this book is to assist in that global effort by providing a practical guide to
understanding the structure of the Model Law and the meaning of its various provisions. In
that connection, the complete legislative history, consisting of the full texts of the travaux
préparatories, constitutes authoritative source material.
In order to facilitate access to the travaux préparatories, this book is arranged with a
separate section for each of the thirty–six Articles of the Model Law. Each section begins
with the text of the Article and a commentary by the authors on its legislative history,
highlighting the principal issues considered by UNCITRAL and the ways they were resolved.
The commentary also seeks to identify particular points in the legislative history that we
believe may be helpful in interpreting the Article. Following the commentary on each
Article is the full text of the portions of each official document that relate to the Article,
including drafts, session reports, Secretariat notes, summary records of debates,
government comments, etc. A more detailed description of the way this book has been
organized, along with suggestions to assist readers in using it, will be found in the section
entitled “The Arrangement of This Book.” (2) Suffice it now to explain that in organizing the
material for convenient reference we have attempted to include everything relevant,
because a legislative history is reliable only to the extent that it is comprehensive.

I The Value of Arbitration

It is significant that the General Assembly Resolution begins by recognizing “the value of
arbitration as a method of settling disputes arising in international commercial relations.”
The Resolution then goes on in its second paragraph to emphasize that the General

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 Assembly is “convinced that the establishment of a model law on arbitration that is
acceptable to States with different legal, social and economic systems contributes to the
development of harmonious international economic relations.”
P 2 Arbitration helps to improve international economic relations by providing a mechanism
P 3 that reduces the risk of transnational commerce. When business people enter into
foreign trade and investment transactions, they hope that there will be no future
disagreements, but they fear that disputes may arise. The possibility of future disputes is
seen as one of the risks of the transaction. The risk is greater when businessmen cannot be
sure that reliable procedures are available to resolve any such disputes promptly and
fairly. When risk is increased because effective dispute resolution procedures are not
available, businesses react in one of two ways: either they refuse to enter into the
transaction because the risk is too great, or they raise the price to compensate for the
additional hazard. In either event, the free flow of trade is hampered. On the other hand,
when businesses are confident that laws and procedures exist so that disputes can be
resolved efficiently, the conduct of trade and investment is facilitated.
In stressing the “value of arbitration,” the General Assembly Resolution was reflecting the
widespread recognition of the advantages of arbitration in world commerce. One of these
advantages is that arbitration provides the possibility of a truly international forum. Long
used in local commercial disputes because of its relative simplicity, economy, speed, and
privacy, arbitration has particular attractions in the international sphere. For example, a
party from one country often hesitates to sue in the national courts of the other party,
where the procedures are unfamiliar and where judges may approach the dispute with
different legal and cultural perspectives. And suing a foreign party even in one's own
national courts is often not a reliable solution because it may be difficult to obtain
jurisdiction over the other party and, if jurisdiction exists and a favorable judgment is won,
it may be difficult to enforce the national court judgment at the place abroad where the
foreign party has property.
In contrast, arbitration avoids the need to resort to courts, and arbitration awards are
often easier to enforce than court judgments because of multilateral conventions—such as
the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York
1958) (the “New York Convention”) (3) —bilateral treaties, and court decisions favoring
enforcement of foreign arbitral awards. Moreover, arbitration has other unique
characteristics that are particularly useful in international transactions. It permits parties
the flexibility to choose procedural rules that are equally familiar to both sides. Also, it
allows businesses to agree to conduct the arbitration in a third country and to have a
national of a State other than that of the parties as the presiding or sole arbitrator.
P 3 Further, parties may pick arbitrators who have specialized knowledge of trade practices,
P4 technical matters, and foreign languages that may not be as readily available in
national courts.
The contribution of arbitration in facilitating the “harmonious international economic
relations” of which the General Assembly Resolution speaks is not merely a matter of
importance to business enterprises. For, in an increasingly interdependent world,
wholesome economic relations are important building blocks in the structure of global
peace. For this reason alone, the development of a model law on international commercial
arbitration was a natural and appropriate task for the United Nations.

II The Function of UNCITRAL within the UN

As the third paragraph of the General Assembly Resolution notes, the preparation of the
Model Law was the work of UNCITRAL. A brief look at how UNCITRAL is organized and
functions within the United Nations may be helpful in understanding the legislative history
of the Model Law and the Law itself.
UNCITRAL is a specialized commission of the United Nations, created by the General
Assembly in 1966 in order to harmonize and unify international trade law. The General
Assembly, in a companion resolution adopted on the same day that it approved the Model
Law, described UNCITRAL as “the core legal body within the United Nations system in the
field of international trade law, [with a mandate] to co-ordinate legal activities in this field
in order to avoid duplication of effort and to promote efficiency, consistency and
coherence in the unification and harmonization of international trade law.” (4)
The membership of UNCITRAL is limited to 36 States (5) chosen from among the UN
membership on a regional basis in order to assure that it is broadly representative of the
world's principal legal, social, and economic systems. The regional distribution of the
Commission, as determined by the General Assembly, is: Africa, 9; Asia, 7; Eastern Europe, 5;
Latin America, 6; Western Europe and others, 9. (The category described as “others”
includes Australia, Canada, New Zealand, and the United States.) UNCITRAL is, however,
hospitable to participation, as observers, by other interested UN member States, as well
as by international organizations. Although called “observers,” they are welcome to join
P 4 fully in the discussion at all sessions, except that they have no right to vote. This exception
P 5 has little practical effect, however, since one of the characteristics of UNCITRAL is its
practice of reaching decisions by consensus, without the need for formal voting. Professor
John Honnold, a former Secretary of UNCITRAL, has aptly described those who attend its
sessions as “a wholesome mix of academic specialists in commercial and comparative law,

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 practicing lawyers, and members of government ministries with years of experience in
international lawmaking.” (6)
UNCITRAL generally does its work at annual sessions that last from two to four weeks. When
it undertakes projects such as the preparation of the Model Law, the initial task is usually
entrusted to a Working Group so that sessions of experts who have a particular interest in
the topic can be held more often, and drafting can be done in a less formal atmosphere.
The Working Groups report on their progress at the annual sessions of the Commission, and
present their completed work to the Commission for detailed review, a process that often
results in revision. Once a text is approved by the Commission it is submitted to the
General Assembly, which takes action after receiving a report from its Sixth Committee, the
General Assembly's legal committee.
The UN furnishes a highly qualified professional staff to assist the Commission and its
Working Groups. The International Trade Law Branch of the UN Office of Legal Affairs serves
as the Secretariat to UNCITRAL, and the Chief of the Branch is the Secretary of the
Commission. The Secretariat's functions include making preparatory reports, compiling
necessary background information, offering analyses, and suggesting preliminary draft
texts. Examples of such Secretariat contributions are evident throughout the legislative
history of the Model Law and constitute important parts of the travaux préparatories.
Recognizing the value of arbitration and its importance in the context of international
trade law, UNCITRAL has undertaken a number of significant projects in the field of
commercial dispute resolution. In 1976 it completed the UNCITRAL Arbitration Rules, (7)
which have been widely accepted and extensively used throughout the world. Four years
later came the UNCITRAL Conciliation Rules, (8) which not only establish flexible modern
procedures to assist parties in settling disagreements but also integrate those procedures
with a potential arbitration of the dispute if the conciliation fails to resolve the problem.
UNCITRAL has also undertaken successful activities to promote the recognition and
enforcement of arbitration awards in international cases. Thus, its resolutions and
P 5 educational programs calling attention to the importance of the New York Convention have
P 6 been influential factors in achieving adherence to the Convention by more than seventy
States, while its searching studies of the application and interpretation of the Convention
(9) have helped to increase its effectiveness. UNCITRAL's work in developing the Model Law
was thus a logical step forward in an area in which it had already made substantial
contributions.

III The Relationship of Contracts, Rules, Laws, and Conventions in the Legal
Framework of Arbitration
UNCITRAL's various activities in the field of arbitration are integral parts of a worldwide
system of justice. Recognizing this, the fourth paragraph of the General Assembly
Resolution described the relationships between the Model Law, the UNCITRAL Arbitration
Rules, and the New York Convention as “a unified legal framework for the fair and efficient
settlement of disputes arising in international commercial relations.” Before embarking on
a detailed analysis of the Model Law it is important to consider briefly the ways in which
national laws, contracts, arbitration rules, bilateral treaties, and multi–lateral conventions
function together to form that “legal framework.”
Arbitration depends first upon the existence of a contract between the parties by which
they agree that disputes that may arise between them in the future, or that may already
exist, will be submitted for final and binding decision by arbitrators, rather than to
litigation in a national court. Arbitrations can take place, and many do, based only on such
a simple agreement. Wise parties, and their lawyers, know, however, that an arbitration
will proceed more quickly and smoothly if the parties specify in their contract such
important factors as where the arbitration will be held, the language or languages of the
arbitral proceedings, the number of arbitrators who will decide the case, and how
arbitrators will be chosen if the parties cannot agree upon naming them. To provide for
even greater efficiency in the arbitral process, parties often also agree on detailed
procedures that are to be followed in conducting the arbitration. Frequently, rather than
taking the trouble to include long provisions in their contracts describing all of those
procedures, parties will choose to agree on a contract clause providing that the case will
be conducted in accordance with a particular set of arbitration rules. Many arbitration
rules are available for this purpose, prepared by arbitration institutions, chambers of
commerce, trade associations, stock exchanges, and regional economic organizations. Use
P 6 of such rules not only simplifies the task of contract negotiation, but also provides
P 7 procedures that reflect the experience of the organizations that established the rules. The
UNCITRAL Arbitration Rules are one such set of rules, unique in that they were
recommended by the General Assembly and were designed—as was the Model Law—to
serve in all legal, economic, and social systems, in practically all kinds of disputes, and in
all geographic regions. Arbitration rules, whatever their origin, become legally a part of the
contract of the parties by being incorporated into it by reference. Thus, arbitration rules
have the effect of contractual obligations, not the compulsion of law.
While arbitration derives from contract and its procedures are often governed by rules
incorporated by reference into the contract, international commercial arbitration does not
exist in a vacuum outside of the sphere of national law. That is because in order to have a
legally binding arbitration there must be national law permitting parties to choose to

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 arbitrate instead of submitting their dispute to a national court. Also, laws are needed that
direct national courts to recognize agreements to arbitrate and refer to arbitration
disputes that the parties have agreed shall be arbitrated. Moreover, while national laws
generally leave the choice of detailed arbitral procedures to the parties, or to arbitration
rules that the parties may have agreed to use, such laws typically specify certain basic
procedures to be followed when the parties have not otherwise agreed.
When considering the relationship of national laws to arbitration rules, it must be noted
that most national laws establish mandatory procedural requirements that must be
observed in order to satisfy the concepts of fairness and the public policies of the State
whose law governs the arbitration. Consequently, the procedures established by
arbitration rules are subject to any mandatory provisions of the national law that governs
the arbitration. The relationship between arbitration rules and national laws is expressly
recognized in the UNCITRAL Arbitration Rules, which state,
These Rules shall govern except that where any of these Rules is in conflict with
a provision of the law applicable to the arbitration from which the parties
cannot derogate, that provision shall prevail. (10)
While the UNCITRAL Arbitration Rules include this provision in order to remind parties of
the dominant effect of mandatory provisions of national law, the same legal result follows
even when no such explicit statement is contained in the contract or the applicable
arbitration rules.
P 7 Experience shows that most arbitration awards are carried out voluntarily by the parties,
P 8 but when that does not occur effective international arbitration requires the
availability of legal mechanisms for the recognition and enforcement of arbitral awards.
National laws frequently contain provisions for recognition and enforcement of awards
made in the same State in which they are to be recognized or enforced. For foreign arbitral
awards, however, a critical role in recognition and enforcement is played by international
treaties. The most widespread and effective instrument for the recognition and
enforcement of foreign arbitral awards is the New York Convention, to which, as noted,
more than seventy States have now adhered. (This Convention also is important in the
international system that ensures that agreements to arbitrate will be respected by
national courts; the New York Convention requires that disputes that are the subject matter
of an arbitration agreement be referred to arbitration. (11) ) The process of recognition and
enforcement of foreign arbitral awards in international cases is also facilitated by regional
and specialized conventions, notably the Inter–American Commercial Arbitration
Convention (Panama 1975), (12) the European Convention on International Commercial
Arbitration (Geneva 1961), (13) and the Convention on the Decision by way of Arbitration of
Civil Litigations Resulting from Relations of Economic and Scientific–technological
Cooperation (Moscow 1972). (14) There are also bilaterial treaties on recognition and
enforcement of arbitral awards between some States.
These conventions—whether worldwide, regional, specialized, or bilateral—typically
contain significant references to the national law that governed the particular arbitration
that produced the award whose enforcement is sought. Thus, for example, the New York
Convention provides that recognition and enforcement of an award may be refused if the
“award has not yet become binding on the parties, or has been set aside or suspended by a
competent authority of the country in which, or under the law of which, that award was
made.” (15) Also, recognition and enforcement may be refused under the Convention where,
inter alia, the “composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties, or, failing such agreement, was not in
accordance with the law of the country where the arbitration took place.” (16) Moreover,
the national law of the enforcing State may also play a significant role: the New York
Convention provides that awards need not be recognized or enforced if the “subject matter
P 8 of the difference is not capable of settlement by arbitration under the law of [the] country”
P 9 where recognition or enforcement is sought, or is “contrary to the public policy of that
country.” (17) Thus, national laws applicable to an arbitration, as well as the agreement of
the parties on procedure, including any agreement to use particular arbitration rules, are
intimately related to the means by which international awards can be enforced.
The legislative history of the Model Law makes amply clear that UNCITRAL recognized that
a national arbitration law does not stand alone, but, rather, is a closely related part of the
“unified legal framework” that also includes contracts, arbitration rules, and enforcement
conventions. From the very inception of the Model Law project— when UNCITRAL decided
that the law to be drafted should “take into account” both the New York Convention and
the UNCITRAL Arbitration Rules (18) —to the General Assembly Resolution already quoted,
the drafters were careful to ensure that the Model Law would fit into this interrelated legal
system.

IV The Process of Drafting the Model Law

The decision to prepare a Model Law originated from suggestions that UNCITRAL explore
ways to improve the overall framework of international commercial arbitration. In
particular, recognizing the value of arbitration in the important regions it serves, the
Asian–African Legal Consultative Committee (“AALCC”), an inter–governmental body, raised
several questions concerning possible ways to make arbitration more effective. (19) One of

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 those questions was whether a new protocol to the New York Convention might be an
appropriate means to assure that national laws would not prevent parties from conducting
arbitration in accordance with rules they had freely chosen. This suggestion, along with
comments thereon submitted by the Secretariat, (20) was considered by UNCITRAL at its
session in 1977, and the Commission requested the Secretariat to study the matter in
consultation with the AALCC and other interested organizations. (21) Accordingly, the
Secretariat held a consultative meeting in Paris in September 1978 with representatives of
the AALCC and members of the International Council for Commercial Arbitration (ICCA) and
the Arbitration Commission of the International Chamber of Commerce (ICC). (22) It will be
P 9 recalled that the General Assembly Resolution noted that the preparation of the Model
P 10 Law involved “extensive consultation with arbitral institutions and individual experts
on international commercial arbitration.” The Paris meeting was the first instance of this
process of consultation concerning the Model Law and was the forerunner of further
extensive collaboration between UNCITRAL and the arbitration community.
The experts who met in Paris in 1978 reached the unanimous view that the most effective
action that UNCITRAL could take to strengthen the legal framework of international
arbitration would be to initiate steps to prepare a model law. They noted that if a model
law were prepared and adopted by States throughout the world, this would not only lead
to the establishment of uniform arbitral procedures tailored to the needs of international
trade, but would also help to achieve the universal standard of fairness that was one of the
expressed goals of the AALCC. Moreover, a model law could eliminate the conflicts that
arise in some States between an antiquated national law and modern international
arbitration rules. Finally, the participants in Paris recognized that a model law could be
helpful in appropriately limiting the grounds for judicial setting aside of arbitral awards,
an objective proposed by the ICC. (23)
The conclusions reached in Paris were reported by the Secretariat to UNCITRAL at its 1979
session. (24) The Secretariat also submitted an extensive report on the interpretation and
application of the New York Convention. (25) The Commission generally agreed that while
there was no need to revise the New York Convention or adopt a new protocol to it, it would
be advisable to prepare a model arbitration law to assist States in reforming and
modernizing their laws and to achieve the other benefits discussed at the Paris meeting.
(26) Accordingly, the Commission requested the Secretariat “to prepare, in consultation
with interested international organizations, in particular the Asian– African Legal
Consultative Committee and the International Council for Commercial Arbitration, a
preliminary draft of a model law on arbitral procedure.” (27) The Commission decided that
the draft should be restricted to international commercial arbitration and not attempt to
deal with domestic cases, and that it should take into account the provisions of the New
York Convention and the UNCITRAL Arbitration Rules. (28)
P 10
P 11 One of the issues that faced the Commission at the outset was whether the unification of
arbitration law should be accomplished by a model law or by a convention. A model law
becomes the law of a State when it is enacted by the national legislature or adopted by
such other means as the particular State's legal system provides. A convention, on the
other hand, is a multi-party treaty that generally becomes part of a State's law when it is
ratified by the State. There are thus two available roads to the same objective. The choice
to prepare a model law, rather than a convention, was based largely on practical
considerations. Under established United Nations practice, if UNCITRAL were to have
prepared a convention, it would have been necessary to convene a diplomatic conference
of all UN member States to review and adopt its text. That is a costly and time-consuming
process. It usually requires years to complete the convention text, and then additional
years to achieve ratification of the convention by individual States. In contrast, a model
law is available to guide State legislators as soon as its text is approved by the
Commission. Moreover, national arbitration laws are often embodied in a State's
procedural code. Because a model law is just what its name says — a model — it can
generally be absorbed more conveniently into a State's existing procedural system than a
convention, which is inherently inflexible and can only be varied by the relatively
cumbersome process of attaching reservations. The wording of a model law can be readily
adjusted to be compatible with the language and style of the broad national procedural
scheme into which it fits. For these reasons, UNCITRAL's decision at the outset to prepare a
model law rather than a convention had immense practical significance. Nevertheless, it
may be that an early Secretariat Note aptly put this issue of form into proper perspective
by observing that “it is ultimately the quality of the contents of the proposed law that
determines its acceptability.” (29)
The Secretariat, as an initial step, began collecting materials on national laws pertaining
to arbitration. The Commission at its 1980 session requested governments to provide such
materials to the Secretariat, (30) and the General Assembly included a similar appeal in a
resolution that it adopted in December 1980. (31) The Secretariat eventually collected a
substantial amount of helpful data; in addition, it notes in its reports that it also relied
P 11 upon the libraries of such institutions as the T.M.C. Asser Institute for International Law at
P 12 The Hague and the American Arbitration Association in New York, (32) as well as on
materials published in the Yearbook CommercialArbitration (33)
The Commission at its 1981 session had before it a Secretariat report reviewing possible
features of a model law on international commercial arbitration. (34) That report is

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 significant because it is the earliest glimpse of some of the broad issues that would be
faced in preparing the new law. After considering that report, the Commission decided to
proceed with the preparation of a Model Law, to entrust the task to its existing Working
Group on International Contract Practices (the “Working Group”), and to request the
Secretariat to prepare background studies and draft texts to assist the Working Group. (35)
In February 1982 the Working Group held its first session to consider the Model Law. (36)
Professor Ivan Szasz was elected Chairman, and he served in that capacity at all of the
sessions of the Working Group, bringing to the task a deep knowledge of the law, long
practical experience in the field, and valuable qualities of tactful leadership. Instead of
plunging immediately into wording of specific text, the Working Group first considered a
number of key questions that had been prepared by the Secretariat in order to focus
attention on various fundamental choices that would have to be made. (37) In answering
these questions, the Working Group made a number of central decisions that are reflected
in the basic policies of the Model Law.
At the time the Working Group began work on the Model Law it consisted of 15 member
States of the Commission. (38) The great interest in the project among other States is seen
from the fact that the first Working Group session on the Model Law was also attended by
P 12 observers from 27 States and six international organizations. (39) This level of interest
P 13 continued, and, indeed, increased, leading the Commission at its 1983 session to decide
to enlarge the Working Group to include all 36 of its member States. (40)
In all, the Working Group met five times between February 1982 and February 1984 in two–
week sessions. After each session, the Secretariat prepared draft texts of articles of the
Model Law reflecting the Working Group's discussion, and those drafts were then reviewed
at subsequent sessions. In addition, the Secretariat prepared background papers to assist
the ongoing work. (41) In this process, the Model Law went through five drafts in the Working
Group phases of the project. The Fifth Draft was adopted by the Working Group at its
February 1984 session, (42) after a drafting committee had reviewed corresponding
versions in the six languages of the Commission. (43)
With the task of the Working Group completed, a renewed round of consultations began.
The Commission at its June–July 1984 session requested the Secretary–General of the
United Nations to transmit the draft text of the Model Law to all governments within the
UN system and to interested international organizations for their comments. (44) The
Secretariat made detailed analytical compilations of the many comments that were
received. In addition, in May 1984 ICCA convened a special meeting in Lausanne,
Switzerland, to discuss the draft of the Model Law. Almost 550 practitioners and scholars in
the field of international commercial arbitration from 39 nations participated in the
meeting. As Professor Sanders, the President of ICCA, stated in his introduction to the
volume of the proceedings of the meeting, the Lausanne meeting was, in effect, “a massive
hearing” during which the Model Law was, “in general, . . . welcomed and approved.” (45)
The 250–page proceedings were published and available to the Secretariat and the
Commission in advance of the 1985 session. While the published proceedings of ICCA's
Lausanne meeting are not officially part of the travaux préparatories, and accordingly are
not included in this book, the discussion in Lausanne was another part of the extensive
consultations with the arbitration community that the General Assembly cited in its
Resolution.
The Commission met in Vienna in June 1985 with the hope of concluding a review of the
P 13 Working Group's draft Model Law. Representatives from 62 States and 18 international
P 14 organizations were present as members or observers. The participants had available to
them not only the Secretariat's analytical summary of the comments of governments and
international organizations, and the proceedings of the Lausanne meeting, but also — and
most importantly — an analytical commentary on the draft text painstakingly prepared by
the Secretariat. (46) The Secretariat comments facilitated the Commission's review of the
draft text and constitute a key element of the legislative history. For, although this
document is a comment on a draft, not on the final text, it contains many helpful
explanations and interpretations of lasting significance.
Dr. Roland Loewe of Austria was elected Chairman. Dr. Loewe, who also had been Chairman
in 1976 when the UNCITRAL Arbitration Rules were drafted by a Committee of the Whole,
contributed great experience, combined with the drive necessary to complete the Model
Law during the three–week session. The officers of the Commission reflected the broad
international character of the session. Thus, the vice–chairmen were Prof. Szasz of Hungary,
Dr. Luiz Gastao Pães de Barros La?s of Brazil, and Mr. Tang Houzi of The People's Republic
of China. Mr. Elikunde E.E. Mtango of Tanzania was elected Rapporteur.
The draft text was reviewed Article–by–Article—indeed, almost word–by–word—at the 1985
session of the Commission. The legislative history records the detailed discussion in
Summary Records of all the Commission sittings at which the Model Law was considered.
These Summary Records were prepared by members of the UN language staff who
summarized the statements of all speakers. Speakers had the opportunity to correct drafts
of their statements before they were published in final form. The Summary Records are a
particularly lively and revealing part of the legislative history. (47)
The Commission succeeded in adopting a final text of the Model Law by the end of its 1985
session. (48) It also approved a report of the work of the session that explains the decisions

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 made on each issue that was considered. (49) In addition, a drafting committee, generally
working late into the night following the daily meetings of the Commission, completed the
corresponding text of the Model Law in the Commission's six languages. When the
Commission adjourned on 21 June 1985, it had completed the task within exactly the
P 14 schedule it had established for the project. Firm leadership from the Chair, strong staff
P 15 support by the Secretariat, and a high spirit of collegiality among the participants
combined to achieve a modern model law designed to promote effective international
commercial arbitration in all legal and economic systems throughout the world.
As one reviews the legislative history set forth in this book, one must be impressed by the
lucid background materials and drafts prepared by the Secretariat, under the direction of
Professor Kazuaki Sono, who served as Secretary of the Commission during the entire
project. The Secretariat's contributions largely reflect the legal scholarship of Dr. Gerold
Herrmann, the Secretary of the Working Group, assisted by Dr. Jernej Sekolec. The
Secretariat documents are a rich resource for identifying and understanding the principal
issues relating not only to the Model Law but also to the entire field of international
commercial arbitration.

V The Importance of the Travaux Préparatoires

The operative portion of the General Assembly Resolution requests the Secretary-General
to transmit to governments not only the text of the Model Law but also the travaux
préparatories. This specific mention of travaux préparatories underscores their importance.
In our view, there are several reasons why the legislative history is important to those who
may consider adopting the Model Law. First, the drafters of the Model Law themselves
considered the travaux significant in interpreting their work. The Commission itself
suggested to the General Assembly that the travaux préparatories from its session be sent
to governments and there are a number of other instances in which the discussion refers to
the travaux préparatories as a means for clarifying the text. (50) Such clarification may be
of particular importance in a document drafted in the give-and-take atmosphere of an
international conference at which representatives are often not speaking in their mother
tongues. Second, those who seek to translate the Model Law into a language other than one
of the six Commission languages may find in the legislative history helpful insights into the
meaning and intent of the drafters. This is also true for those in some States who may face
the task of adjusting the Model Law to fit into the linguistic style and statutory format of an
existing code of civil procedure.
P 15 The importance of the legislative history does not end when a State adopts legislation
P 16 based on the Model Law. It can be expected that many States will recognize the
desirability of uniformity and hesitate to modify a text prepared by an expert
international body after careful study. In such circumstances, each State's own travaux
préparatoires may be relatively short. As a result, in States where resort may be had to
legislative history in interpreting a statute, the extensive legislative history of UNCITRAL
will assist practitioners and courts searching for the meaning of provisions in their national
laws that originate from the UNCITRAL model. (51)
We also venture to suggest that this legislative history may prove useful in other ways.
Because the background papers, reports, and discussions explore so many of the basic
issues of international commercial arbitration, they may be helpful to students of the
overall process, not only to those interested in the interpretation or application of
particular Articles of the Law. Moreover, the legislative history provides an illustrative case
study of how an international body can go about the process of establishing an
international instrument that is acceptable within different cultural, political, and
economic systems. In a world increasingly in need of such efforts in many spheres, we
suggest that the way UNCITRAL successfully prepared the Model Law may provide a helpful
example for international activities in other fields.

VI Acknowledgments (52)
In introducing this book, we must acknowledge with deep thanks those who have assisted
us in this effort. First, we must express our thanks to Dr. Carl-August Fleischhauer, Under-
Secretary-General for Legal Affairs and The Legal Counsel of the United Nations, for the
honor he does us by contributing the Foreword. He has encouraged us from the early days
of this project, even as he supported the development of the Model Law itself.
Dr. Gerold Herrmann, Senior Legal Officer, International Trade Law Branch, Office of Legal
Affairs of the United Nations, has generously reviewed the manuscript of the commentary
and has made many valuable suggestions. The manuscript has also been read and ably
commented upon by Dr. Aron Broches, former Vice President and General Counsel of the
P 16 World Bank, presently of counsel to Holtzmann, Wise & Shepard, who was the
P 17 representative of ICCA at the UNCITRAL sessions at which the Model Law was drafted. To
the extent that the commentary in this book is accurate it reflects their vigilance; where it
errs the authors bear full responsibility.
We are most thankful to the T.M.C. Asser Institute, and particularly to its director, Dr. CCA.
Voskuil, for cooperation in the publication of this work. We are proud that this book bears
the Asser name, linking it with a great tradition of scholarship in international law. The law
firm of Holtzmann, Wise & Shepard, and the two firms with which Joseph Neuhaus was

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 associated while working on this book, Covington & Burling and Sullivan & Cromwell, have
all provided unstinting support for which we are most grateful. John Berger has been a
constructive and patient editor. Ruth Akerman Stolk did much to help in the initial
organization of the travaux préparatories, Kim Pitts and Doris Andrusz skillfully typed the
manuscript, and Andrew Cameron provided painstaking assistance in preparing the text for
publication.
All books intrude into the lives of the authors' families. We thank our wives, Carol and
Cindy, for the grace and understanding with which they have coped with our
preoccupation.
P 17

References
1) General Assembly Resolution 40/72, 40 GAOR Supp. No. 53, A/40/53, p. 308 (adopted 11
December 1985). (“40 GAOR Supp. No. 53” refers to the Official Records of the General
Assembly, 40th Session, Supplement No. 53. “A/40/53” is the UN document number.)
2) Pp. 18-23 infra.
3) 330 U.N.T.S. 38. (“U.N.T.S.” refers to the United Nations Treaty Series. A copy of the
English text of the New York Convention appears as Appendix E, beginning on page
1287 infra.)
4) General Assembly Resolution 40/71, 40 GAOR Supp. No. 53, A/40/53, p. 307 (adopted 11
December 1985), appearing on pp. 1235–36 infra.
5) General Assembly Resolution 28/3108, 28 GAOR Supp. No. 30, A/9030, p. 145 (adopted
12 December 1973).
6) J. Honnold, Uniform Law for International Sales Under the 1980 United Nations
Convention 51 (1982).
7) UN Sales No. E.77.V.6. The UNCITRAL Arbitration Rules appear in Appendix D, p. 1272
infra.
8) UN Sales No. E.81.V.6.
9) See, e.g., Secretariat Study on the N.Y. Convention, A/CN.9/168 (20 April 1979). (In this
book we use short–form names such as this for frequently cited UN documents rather
than their much longer official titles. See “The Arrangement of this Book,” pp. 18–21
infra. For the full title of this and other documents in the legislative history of the
Model Law, see Appendix B, p. 1252 infra.)
10) Article 1(2).
11) New York Convention Art. II.
12) 14 I.L.M. 339. (“I.L.M.” refers to International Legal Materials).
13) 484 U.N.T.S. 349.
14) 13 I.L.M. 5.
15) Article V(1)(e).
16) Article V(1)(d).
17) Article V(2)(a) & (b).
18) 1979 Commission Report, A/34/17, para. 81, p. 1188 infra.
19) See Secretariat Note Reporting AALCC Decision, A/CN.9/127, Annex, para. 3, p. 1162
infra. The AALCC decision was adopted on 5 July 1976.
20) Secretariat Comments on AALCC Proposal, A/CN.9/127/Add.1, p. 1163 infra.
21) 1977 Commission Report, A/32/17, para. 39, p. 1167 infra.
22) Secretariat Note on Further Work, A/CN.9/169, para. 3, p. 1173 infra.
23) Id. paras. 6–9, pp. 1173–74 infra.
24) See generally 1979 Commission Report, A/34/17, paras. 76–81, pp. 1187–88 infra.
25) Secretariat Study on the New York Convention, A/CN.9/168 (20 April 1979).
26) 1979 Commission Report, A/34/17, paras. 76–80, pp. 1187–88 infra.
27) Id. para. 81, p. 1188 infra.
28) Id.
The Commission's decision in 1979 to prepare a model law may also be said to have
grown out of a proposal it had discussed at its 1973 session to examine “the feasibility
of unification and simplification of national rules on arbitration.” The Commission at
that time had declined to set up a study or working group on the topic, preferring to
have any preliminary work done by the Secretariat. See Report of the United Nations
Commission on International Trade Law on the Work of its Sixth Session, A/9017, paras.
66, 71–86 (1973).
29) First Secretariat Note, A/CN.9/207, para. 26, pp. 1197–98 infra. For further discussion of
whether to draft a model law or a convention, see, e.g., Secretariat Comments on AALCC
Proposal, A/CN.9/127/ Add.1, paras. 5–15, pp. 1164–66 infra; 1977 Commission Report,
A/32/17, Annex II, para. 31, p. 1168 infra; Secretariat Note on Further Work, A/CN.9/169,
paras. 4–9, pp. 1173–74 infra; 1979 Commission Report, A/34/17, paras. 77–78, pp. 1187–
88 infra; Summary Record, A/CN.9/SR.306, paras. 4–6, p. 1228 infra; 1985 Commission
Report, A/40/17, para. 16, p. 1233 infra.
30) 1980 Commission Report, A/35/17, para. 117, p. 1190 infra.

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 31) General Assembly Resolution 35/51, para. 12(d), 35 GAOR Supp. No. 48, A/35/48, p. 259,
260 (adopted 4 December 1980), p. 1191 infra.
32) Secretariat Progress Report, A/CN.9/190, para. 4, p. 1189 infra.
33) First Secretariat Note, A/CN.9/207, para. 8, pp. 1192–93 infra. The Yearbook Commercial
Arbitration is a publication of ICCA. P. Sanders was General Editor of the issues of the
Yearbook to which the Secretariat reports refer.
34) First Secretariat Note, A/CN.9/207 (14 May 1981).
35) 1981 Commission Report, A/36/17, para. 70, pp. 1200–01 infra.
36) See First Working Group Report, A/CN.9/216 (23 March 1982). A note of explanation is
needed concerning the numerical designations of the Working Group reports and
sessions in this book. The Working Group, which had been established before it was
entrusted with the Model Law project, devoted its First and Second Sessions to
discussion of matters not related to the Model Law. Its earliest discussion of the Model
Law occurred at what is officially designated as its Third Session. To facilitate following
the history of the Model Law, we have for the purposes of this book identified the
Working Group's reports that we cite in numercial order beginning with its first report
concerning its work on the Model Law. Thus, the first report by the Working Group on
the Model Law is designated by the short–form name “First Working Group Report”
although it is a report of the Working Group's Third Session. For further explanation of
our use of “short– form names” rather than the official titles of documents, see “The
Arrangement of this Book,” pp. 18–21 infra.
37) Second Secretariat Note, A/CN.9/WG.II/WP.35 (1 December 1981).
38) See 1981 Commission Report, A/36/17, para. 67, n. 23, p. 1200 infra.
39) First Working Group Report, A/CN.9/216, paras. 5, 6, pp. 1202–03 infra.
40) 1983 Commission Report, A/38/17, para. 143, p. 1208 infra.
41) See, e.g., Fourth Secretariat Note, A/CN.9/WG.II/WP.50 (16 December 1983) (comments
and suggestions on the Fourth Draft); Fifth Secretariat Note, A/CN.9/WG.II/WP.49 (21
December 1983) (discussion of the territorial scope of application of the Model Law
and related issues).
42) Fifth Working Group Report, A/CN.9/246 (6 March 1984).
43) Arabic, Chinese, English, French, Russian and Spanish.
44) 1984 Commission Report, A/39/17, para. 101, p. 1216 infra.
45) UNCITRAL's Project for a Model Law on International Commercial Arbitration, p. v (ICCA
Congress Series No. 2, P. Sanders ed. 1984).
46) Seventh Secretariat Note, A/CN.9/264 (25 March 1984).
47) No Summary Records are generally kept of UNCITRAL Working Group sessions, and
none were produced with respect to the sessions of the Working Group on International
Contract Practices at which the Model Law was considered.
48) The text of the Model Law as adopted by the Commission is printed in full as Appendix
A to this book, p. 1240 infra.
49) Commission Report, A/40/17 (issued in English on 21 August 1985).
50) The Commission's recommendation is contained in the 1985 Commission Report at
paragraph 333, appearing in the section on Purposes and Procedures of the
Commission, p. 1233 infra. For other references to the travaux, see, e.g., Commission
Report, A/40/17, para. 60, appearing in the section on Article 5, p. 237 infra; Summary
Record, A/CN.9/SR.306, para. 19, appearing in the section on Article 1, p. 76 infra; id.
SR.324, para. 57, appearing in the section on Article 34, pp. 994-95 infra.
51) In fact, the “implementing” acts in a number of the jurisdictions that have adopted the
Model Law refer specifically to the UNCITRAL travaux préparatoires as an aid to
interpreting the new law. See Broches, “1985 Model Law on International Commercial
Arbitration: An Exercise in International Legislation,” 18 Netherlands Yearbook of
International Law 3, 52-53 (1987) (reviewing legislation in Canadian jurisdictions).
52) The authors of this book participated in the June 1985 session of UNCITRAL as members
of the delegation of the United States; Howard Holtzmann also participated in several
sessions of the Working Group during its work on the Model Law. The authors' views in
this book are, however, their own, and do not necessarily represent those of the United
States Government.

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Document information
Introduction to the Guide to the 2006 Amendments to the
Publication UNCITRAL Model Law
A Guide to the 2006 The General Assembly of the United Nations on 11 December 1985 adopted a Resolution
Amendments to the approving the Model Law on International Commercial Arbitration that had been prepared
UNCITRAL Model Law on by the United Nations Commission on International Trade Law (“UNCITRAL”). (1) Twenty-one
International Commercial years later, on 18 December 2006, the General Assembly acted again to approve
Arbitration: Legislative amendments to update and expand the Model Law on two critical points—the writing
History and Commentary requirement for arbitration agreements and issuance of interim measures of protection. (2)
The General Assembly also approved at that time an interpretive instrument intended to
guide the interpretation of the writing requirement in the New York Convention on
Organization Recognition and Enforcement of Foreign Arbitral Awards (“Interpretive Instrument”). (3)
United Nations Commission The 1985 Resolution was the culmination of an effort to draft a Model Law on arbitration for
on International Trade Law use in all legal and political systems, in developed as well as emerging markets, and in all
geographic regions. The 2006 Amendments were the product of a project to update and
improve the Model Law to reflect changes in the juridical conception of the writing
Bibliographic reference requirement and role of interim measures in arbitration. The 1985 Model Law has been
highly successful and influential, and the 2006 Amendments are off to a similarly good
'Introduction to the Guide to start. The purpose of this book is to assist in expanding the influence of the Model Law and
the 2006 Amendments to the in its application by providing a practical guide to understanding the 2006 Amendments.
UNCITRAL Model Law', in To that end, the complete legislative history, consisting of the full texts of the travaux
Howard M. Holtzmann , préparatoires, constitutes authoritative source material.
Joseph Neuhaus , et al., A
Guide to the 2006 In order to facilitate access to the travaux préparatoires, this book is arranged with a
Amendments to the separate section for each of the fifteen Articles of the Model Law that were amended or
UNCITRAL Model Law on added by the 2006 Amendments, (4) plus a similar section for the Interpretive Instrument.
International Commercial P 1 Each section begins with the text of the Article (or the Instrument) showing the changes or
Arbitration: Legislative P 2 additions made since the 1985 Model Law, and a commentary by the authors on the
History and Commentary, legislative history of the 2006 Amendments, highlighting the principal issues considered by
(© Kluwer Law International; UNCITRAL and the ways they were resolved. The commentary also seeks to identify
Kluwer Law International particular points in the legislative history that we believe may be helpful in interpreting
2015) pp. 1 - 7 the Article. Following the commentary on each Article is the full text of the portions of each
official document that relate to the Article, including Secretariat notes, session reports,
government comments, etc. A more detailed description of the way this book has been
organized, along with suggestions to assist readers in using it, will be found in the section
entitled “The Arrangement of This Book.” (5) Suffice it now to explain that in organizing the
material for convenient reference, we have attempted to include everything relevant,
because a legislative history is reliable only to the extent that it is comprehensive.
This book is a companion to Howard M. Holtzmann and Joseph E. Neuhaus, A Guide to the
UNCITRAL Model Law on International Commercial Arbitration: Legislative History and
Commentary (Kluwer 1989) (“Holtzmann & Neuhaus”), which presents the legislative history
of the original Model Law in the same manner. For an overview of the process of drafting
the original Law, as well as a discussion of the legal framework governing arbitration—of
which laws adopted based on the Model Law are a part – and the role of UNCITRAL in
establishing that framework, see pp. 9–15 of that volume. We present below a brief
summary of the process that led to the successful adoption of the 2006 Amendments.
Although the 2006 Amendments deal with only two topics—the requirement that the
arbitration agreement be in writing and the scope and procedures for interim measures—
they proved to be difficult and relatively contentious. The drafting process eventually
spanned seven years (along with work on other matters) from conception to product,
almost as long as the work on the original Model Law. The story begins, fittingly enough, at
P 2 UNCITRAL's New York Convention Day in June 1998 to commemorate the fortieth
P 3 anniversary of the New York Convention. The Commission decided to launch
consideration of possible future work in the area of arbitration. (6)
Based on a Secretariat note, (7) the Commission the next year outlined an ambitious
agenda of assessing and updating the Model Law, the UNCITRAL Arbitration Rules and the
UNCITRAL Conciliation Rules. (8) Without dictating the eventual form of any resulting text,
the Commission established the following priority topics to be addressed: (1) the
requirement of written form for the arbitration agreement contained in Article 7(2) of the
1985 Model Law and article II(2) of the New York Convention, (2) enforceability of interim
measures of protection, and (3) possible enforceability of an award that had been set
aside in the State of origin. (9) The third item was eventually dropped on the ground that
court decisions that had enforced awards previously set aside in the State of origin “should
not be regarded as a trend” and the issue therefore did not need UNCITRAL's attention. (10)
Consideration of the other topics led to the revision in 2006 of Articles 1(2), 7, 17, and 35 of
the 1985 Model Law and promulgation of new Articles 2A and 17 A through 17 J, collectively
“the 2006 Amendments.”
The Commission entrusted the work to one of its working groups, which it established as
“Working Group II (Arbitration).” Meeting in March 2000, the Working Group elected José

14
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 María Abascal as its Chairman, and he served in that capacity at every session of the
Working Group that considered the amendments to the Model Law. Bringing to the task
extensive knowledge of the field and enormous patience and diplomacy, Abascal
successfully guided the Working Group through a task that was longer and covered far more
ground than most observers could have anticipated.
The Working Group initially considered draft texts on the writing requirement and court
P 3 enforcement of interim measures of protection issued by arbitral tribunals. (11) At its
P 4 session in November–December 2000, the Working Group decided not to deal
immediately with two related topics—court-ordered interim measures of protection, and
the scope of interim measures that might be ordered by arbitral tribunals—but hold them
in reserve as likely items for future work. (12) As seen below, the work on the topics
originally on the table—the writing requirement and enforcement of interim measures
ordered by arbitral tribunals—was somewhat episodic, and it ultimately caught up with
the future: in the end, the 2006 Amendments included the two postponed topics.
During the first two years of work, the Working Group also spent time on related topics. In
particular, at the direction of the Commission, the Working Group took a break from the
consideration of the writing requirement and interim measures in November 2001 to
consider and approve a draft model law on international commercial conciliation. (13)
The Working Group returned to the writing requirement and interim measures in March
2002. With respect to the writing requirement, the Working Group considered both
amendments to the Model Law and the Interpretive Instrument, and also the possibility of
an amending protocol for the New York Convention. While the proposal to amend the
Convention was ultimately abandoned, it played a role in a second partial hiatus in the
work on the Amendments. (14) At its session in June 2002, the Commission, noting the
significance of attempting an amendment to a treaty as widely adopted as the New York
Convention, instructed the Working Group to take a break from consideration of the writing
requirement in order to allow States ample time to consider the issues involved in that
question. (15) This sojourn ultimately lasted three years, until October 2005.
In the meantime, at its October 2002 session, the Working Group turned back to the
question of interim measures ordered by arbitral tribunals, and took up two important new
P 4 aspects of the question: interim measures ordered ex parte, and recognition and
P 5 enforcement of interim measures. (16) The former in particular was extensively
debated, and at times threatened to derail the project. The Working Group devoted its
next four sessions—from November 2003 through January 2005—almost exclusively to
interim measures. (17) This was highly productive, as the Working Group broke the ex parte
measures logjam and managed to reach consensus on provisions dealing not only with the
applicable procedures and scope of interim measures ordered by arbitral tribunals, but
also recognition and enforcement of tribunal-ordered interim measures and interim
measures of protection issued by State courts in support of arbitration. (18)
In October 2005, the Working Group completed its work on interim measures and turned
back to the writing requirement. In that single session, the Working Group made fast
progress on the detailed provisions that became Option I of Article 7 and also took up a
proposal by the Mexican delegation to omit the writing requirement entirely from the
Model Law. (19) The Mexican proposal ultimately became Option II of the revised Article 7.
(20) The Working Group finished its work on written form at a final session in January 2006.
The draft amended Model Law was circulated to governments for comments and presented
to the Commission in July 2006, where the amendments were reviewed in detail and, with
some last-minute tweaks, adopted. (21)
The work on what became the Interpretive Instrument proceeded in parallel with the work
on the 2006 Amendments as such. Beginning in April 2000, the Working Group expressed
concerns that the expansions of the forms of acceptable “writing” that it was considering
P 5 might conflict with a narrow interpretation of the writing requirement of Article II(2) of the
P 6 New York Convention. (22) After considering various alternatives, over a number of
sessions, (23) the Working Group in February 2006 settled on issuing an instrument that
would urge a broad interpretation of Article II(2). (24) At that session, the Working Group
also expanded the recommendation to urge an interpretation of a different provision of
the New York Convention, Article VII(1), that allows parties to rely on more liberal
provisions of a country's laws in enforcing arbitration awards. (25) The Instrument urges
that this provision be interpreted to apply to recognition of arbitration agreements as well
as enforcements of awards. (26)

Acknowledgments (27)
Howard Holtzmann died on December 9, 2013, and did not get a chance to hold this book in
his hands. He conceived the project, as he had the volume on the original Model Law, and
oversaw its development until it was almost done. Howard introduced Joe Neuhaus and
Edda Kristjánsdóttir to the world of arbitration, and we are grateful to have been guided
by, and to have learned from, him over many years. Tom Walsh came to know Howard more
recently. Howard brought to every writing project a meticulous attention to detail, an
ability to explain complex topics patiently, completely, and clearly, and a passion for
finding precisely the right word and the right tone for every sentence, paragraph, and
chapter. Much of this book reflects his hand directly, and where it does not, we hope the

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© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 reader cannot tell.
We are grateful to Dr. Jernej Sekolec, former Secretary of UNCITRAL and Director of the
P 6 International Trade Law Division of the United Nations Office of Legal Affairs, for generously
P 7 contributing the Foreword to this volume. As so much of the legislative history
presented here reflects his legal scholarship, it is an honor that he approves of what we
have done to it.
Sullivan & Cromwell LLP, with which Joe Neuhaus and Tom Walsh have been associated
throughout the work on this book, provided unstinting support for which we are most
grateful. Vincent Verschoor at Kluwer Law International has been a constructive and, most
of all, patient, editor. Akash Toprani and Stephen T. Wilson, associates at Sullivan &
Cromwell, provided careful and diligent work preparing first drafts of some material,
checking the text and preparing the manuscript for publication. Their work was invaluable.
They also guided the work of other lawyers, summer associates and legal assistants at the
firm, who tackled the task with energy, expertise and extraordinary care: associates Angela
Choe, Jean-Christophe Martel, Harry Murphy, Valerie Scott, Oscar Shine and Jesse Wenger;
summer associates Angela Chang, Alidad Damooei and Inbar Gal; and legal assistants
Jeffrey Chiu, Colin Hill, Kelly Stadelmann and Nestor Viloria.
Joe Neuhaus
Edda Kristjánsdóttir
Tom Walsh
P7

References
1) General Assembly Resolution 40/72, 40 GAOR Supp. No. 53, A/40/53 (Vol. I), p. 308
(adopted 11 December 1985). (“40 GAOR Supp. No. 53” refers to the Official Records of
the General Assembly, 40th Session, Supplement No. 53. “A/40/53” is the UN document
number.)
2) General Assembly Resolution 61/33, 61 GAOR Supp. No. 49, A/61/49, pp. 502–03
(adopted 18 December 2006).
3) Id.
4) Articles 1(2); 2A; 7; 17; 17 A through 17 J; and 35.
5) Pp. 8–12 infra.
6) 1998 Commission Report, A/53/17, para. 235, pp. 733-34 infra.
7) April 1999 Secretariat Note, A/CN.9/460, paras. 4–6, pp. 735–36 infra.
8) See 1999 Commission Report, A/54/17, paras. 337–80. Most of these paragraphs are
reprinted in the sections on Article 7, pp. 51–53 infra, Matters Not Addressed in the
Final Text, pp. 705–10 infra, and Drafting Process of the Working Group and Commission,
pp. 736–39 infra.
9) Id., paras. 359, 373, 376, pp. 707, 193, 710 infra.
10) 2000 Commission Report, A/55/17, para. 396, p. 714 infra.
11) September 2000 Secretariat Note, A/CN.9/WG.II/WP.110, pp. 74–80, 450–57 infra;
October 2000 Secretariat Note, A/CN.9/WG.II/WP.111, pp. 214–15, 549–56 infra; March
2001 Secretariat Note, A/CN.9/WG.II/WP.113, pp. 91–92, 219–20, 464–66 infra.
12) December 2000 Working Group Report, A/CN.9/485, paras. 105–06, p. 716 infra.
13) December 2001 Working Group Report, A/CN.9/506 (not reprinted).
14) See April 2002 Working Group Report, A/CN.9/508, paras. 45–49, pp. 112–13 infra.
15) 2002 Commission Report, A/57/17, para. 183, p. 114 infra.
16) November 2002 Working Group Report, A/CN.9/523, pp. 250–67, 471–73, 570–71 infra.
17) The Working Group took time at both its September 2004 and January 2005 sessions to
consider the question of inclusion of a reference to the New York Convention in a draft
convention then being prepared by Working Group II on the use of electronic
communications in the formation and performance of international contracts. Article
20 of the draft convention as ultimately adopted would extend its provisions
recognizing electronic communications to the New York Convention. United Nations
Convention on the Use of Electronic Communications in International Contracts,
General Assembly Resolution 60/21, 60 GAOR Supp. No. 49, A/60/49, pp. 492–97
(adopted 23 November 2005).
18) See, e.g., January 2005 Working Group Report, A/CN.9/573, paras. 11-69, pp. 368–79 infra,
paras. 70-89, pp. 522-527 infra, and paras. 90-95, pp. 575–76 infra.
19) April 2005 Secretariat Note, A/CN.9/WG.II/WP.137, pp. 115–17 infra; October 2005
Working Group Report, A/CN.9/589, paras. 109-12, pp. 120–21 infra.
20) Article 7 Option II, p. 30 infra.
21) 2006 Commission Report, A/61/17, paras. 87-187.
22) See April 2000 Working Group Report, A/CN.9/468, paras 92-106, pp. 613–19 infra.
23) See, e.g., id. para. 88, p. 613 infra; June 2001 Working Group Report, A/CN.9/487, para.
43, p. 636 infra; April 2002 Working Group Report, A/CN.9/508, paras. 44-49, pp. 644–46
infra.
24) February 2006 Working Group Report, A/CN.9/592, para. 85, p. 658 infra.

16
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 25) Id. Para. 86, pp. 658–59 infra.
26) See the Commentary on the Interpretive Instrument, pp. 605–12 infra.
27) Howard Holtzmann and Joseph Neuhaus participated in sessions of the Working Group
on the 2006 Amendments as advisers to the delegation of the United States. The
authors' views in this book are, however, their own, and do not necessarily represent
those of the United States Government.

17
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Document information
The Arrangement of the Guide to the 1985 UNCITRAL Model
Publication Law
A Guide to the UNCITRAL The overriding intention in assembling this volume was to allow the general user —
Model Law on International legislator, practitioner, arbitrator, court, or scholar — to pick up the book for the first time
Commercial Arbitration: and to trace the legislative history of any particular provision of the UNCITRAL Model Law
Legislative History and relatively quickly and easily. A second, related goal was to keep the book as a whole and
Commentary each part of it within a manageable length. These purposes determined our choice of
approach and of editing conventions.
The overall approach is straightforward. With a few exceptions noted below, each section
Organization of the book consists of three parts: first, the text of an Article of the Law; second, a brief
United Nations Commission commentary highlighting the issues considered in drafting the Article and providing other
on International Trade Law background information; and third, those portions of each document produced by
UNCITRAL during the consideration and drafting of the Model Law that discuss the topic or
topics dealt with in the final text of the particular Article under consideration.
Bibliographic reference The sole exceptions to this approach are in Article 1 and in the final two sections of this
'The Arrangement of the book. The very lengthy legislative history of Article 1 is itself divided into three
Guide to the 1985 UNCITRAL subsections, each providing the drafting history of one of the three broad topics addressed
Model Law', in Howard M. in that Article. The final two sections collect materials not directly related to any
Holtzmann and Joseph particular Article of the final text, either because they address general policies underlying
Neuhaus , A Guide to the the Model Law as a whole or because they concern specific matters ultimately not
UNCITRAL Model Law on addressed anywhere in the Model Law.
International Commercial In order to produce an orderly and succinct presentation of the UN materials, certain
Arbitration: Legislative editorial conventions were required. The most important of these are the following:
History and Commentary,
(© Kluwer Law International; 1. Names of documents. The excerpts from the legislative history are labeled with titles
Kluwer Law International that are not the official names of the original documents, but are short-form names
1989) pp. 18 - 23 that we have developed for use in this book. The primary reason for not using the full
and formal UNCITRAL title each time an excerpt appears is the need for brevity,
because the full titles of documents issued by UNCITRAL are frequently very lengthy.
On the other hand, referring to documents simply by their UN document number is,
we believe, more difficult for readers than using a designated short-form name.
The short-form names used in this book are intended to convey the kind of document
under discussion, its source and the approximate stage in the development of the
Model Law at which it was issued. In addition, to ensure accurate identification, each
P 18 time a short-form name is used it is followed immediately by its United Nations
P 19 document number, except when this is unnecessary because the reference follows
closely after another reference in which the particular UN document number is
included. To assist those who may wish to cite documents by their official names
rather than the short-form names we have used, there is a listing in Appendix B, p.
1252 infra, that shows for each document its short-form name, the United Nations
document number, and its official name.
The short-form names divide into the following types:
a. Working Group Reports. These are the reports of the sessions of UNCITRAL's
Working Group on International Contract Practices at which the Model Law was
considered. There were five such sessions, and we have designated these
reports by the short-form names “First Working Group Report” through “Fifth
Working Group Report.”
b. Drafts. These are drafts of the Model Law, produced by the Secretariat in
implementing decisions taken by the Working Group. There were essentially five
drafts, to which we have given the short-form names “First Draft” through “Fifth
Draft.” In the case of the first three drafts, the draft Articles were not all issued
by the Secretariat in a single document, but rather in two or three installments
issued within a few weeks of each other. In these cases, all such installments
carry the same short-form name — e.g., Third Draft — but the different
installments are identified by the actual United Nations document number that
they bear.
Not all Articles appeared in every draft, however. First, some Articles were not
initially drafted until late in the process. Second, on occasion, the Working
Group did not finish consideration of all Articles of a prior draft at a session;
when that happened, the Secretariat would issue a partial new draft of only
those Articles that the Working Group had considered. A new draft of the
remaining Articles would be issued after the next Working Group session. Thus,
for example, there is no “Third Draft” of Articles 3, 16-20, 24-26, 28-31, and 33,
and new drafts of these provisions were issued together with the “Fourth Draft”
of other Articles.
c. Secretariat Notes. These are commentaries, suggestions, studies, and
collections of government comments prepared by the UNCITRAL Secretariat

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© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 either in its own name or in the name of the United Nations Secretary-General.
For the sake of simplicity, documents issued in either name are referred to as
“Secretariat Notes.” Seven were issued during the consideration of the Model
Law, and they are labeled First through Seventh. In headings in the legislative
history, the short-form names for the Secretariat Notes also contain a subtitle
that we have added to indicate the topic of the Note.
d. Summary Records. These are the summaries of what was said during the
Commission's deliberations in Vienna in June 1985. They were prepared by the
P 19 Secretariat and the delegates were given an opportunity to make corrections
P 20 after the session. The corrected text, which was issued in English on 18
December 1985, appears here. One Summary Record was issued for each
“meeting” of the Commission, which generally consisted of a morning or
afternoon sitting. The Summary Records that concerned the Model Law — and
that appear in this book — begin with the 305th Meeting of UNCITRAL and end
with the 333rd. They can be distinguished by their UN document number, which
ends in “SR.305,” “SR.306,” etc.
Contained in footnotes in the Summary Record when referred to are another
kind of document, the Conference Room Paper. These documents consisted of
suggested language proposed during the UNCITRAL session by a delegate, a
drafting group of several delegates, or the Secretariat. (These documents did
not carry a formal title, but simply a UN document number ending in CRP. and a
number.)
e. Commission Report. This is the Commission's authoritative report to the UN
General Assembly of the session at which the Model Law was adopted. It was
initially prepared by the Rapporteur of the Commission with the assistance of
the Secretariat. The draft was then reviewed, and in some places revised, by the
Commission as a whole, and then adopted. (The Commission Report also
included relatively brief discussions of other ongoing UNCITRAL projects. This
unrelated material is not included in this book.)
f. Certain related documents. In addition to the documents listed above, which
may be said to be formally part of the substantive legislative history of the
Model Law, this book excerpts portions of other documents that touched on the
Model Law project. First, the Commission's decision in 1979 to prepare the
Model Law developed in large part out of proposals by the Asian-African Legal
Consultative Committee (“AALCC”) that UNCITRAL prepare a protocol to the New
York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
that would address ways to make arbitration more effective. (1) Several
documents were prepared in connection with this proposal, including
comments by the Secretariat on the AALCC's proposals and a study by the
Secretariat of the application and enforcement of the New York Convention.
Parts of these documents influenced the drafting of certain provisions of the
Model Law. These portions are printed in this book with descriptive short-form
names such as “Secretariat Comments on AALCC Proposals” and “Secretariat
Study on the New York Convention.” Second, the procedural status of the Model
Law project was considered relatively briefly by the Commission at its annual
meetings during each year from 1979, when the project was undertaken, through
P 20 1984. The Commission Report for each of these sessions reflects these
P 21 discussions, and the relevant parts are printed herein under the short-form
names “1979 Commission Report,” “1980 Commission Report,” etc. (2)
2. Dates. The date following the short-form name of a document is the date the relevant
document was issued in English. Because of the time needed to prepare and
duplicate Working Group and Commission Reports, the date of issue is generally
some time after the date the Report was adopted. These Reports were adopted on
the last day of the session reported, and the dates of the sessions are indicated in
the list in Appendix B, p. 1252 infra.
3. Order of documents. Excerpts of documents printed in the legislative history parts of
this book appear in chronological order, except for the addenda to the Sixth
Secretariat Note. That Note consists of the Secretariat's compilation of government
comments on the Fifth Draft, the Working Group's final draft. The three addenda,
which compile late-filed government comments, appear together with the original
compilation, even though they were actually issued after documents that follow them
in this book.
4. Headings within documents. Documents issued by the UNCITRAL Secretariat
frequently contain a hierarchy of headings and subheadings. No attempt has been
made to indicate all the headings up to the top of the “outline,” for that would
frequently lead to lengthy lists of headings prior to each excerpt that would have
little meaning for the reader. Headings indicated herein are those that are necessary
either to locate the excerpt in the full document or to understand the topic under
discussion. On occasion, the headings have been altered to include the short-form
name rather than the official UNCITRAL title. (3)
5. Editors' notes. In the legislative history parts of this book, insertions, citations, cross-
references, and comments by the editors are set off from the surrounding text by
bold-faced brackets and set in italic type (e.g., [Editors' Note]). Frequently, these

19
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 insertions or comments begin with the words “Editors' Note,” but where the insertion
is brief no such notation has been included. Where irrelevant or repetitious material
has been omitted, the deletion is indicated by an ellipsis between bold-faced
brackets ([….]).
6. Use of brackets in Drafts. It was the Secretariat's practice in preparing some of the
Drafts of the Model Law to include within brackets language that was still under
consideration by the Working Group or that was offered as an alternative. Such
P 21 brackets and the suggested language appear in the legislative history parts of this
P 22 book in regular type (e.g., [alternative language]), in contrast to notes, insertions,
and comments added by the editors, which, as noted above, appear in italics and
within bold-faced brackets.
7. Footnotes in legislative history. Footnotes contained in the UN documents excerpted
in this book appear immediately following the paragraph to which they pertain,
indented and with their original footnote numbers or other reference system. Where
the editors of this book have added an explanatory footnote, that footnote will have
an asterisk or similar designation rather than a number, will begin with the words
“Editors' Note,” and will appear between boldfaced brackets and in italic type.
8. Article numbers that changed during drafting. During the various drafting steps, the
designation assigned to a particular draft Article invariably changed. These earlier
Article numbers (or, in some cases, letters) are retained in this book, but after the
first mention of each Article in each excerpt, the final Article number of the language
under discussion is also indicated in brackets.
Since draft Articles did not always conform in either form or content to the final text
of the provision, these bracketed indications should be treated as no more than
general guides to the topic addressed in the referenced provision. Thus, for example,
when a cross-reference refers to “the Court referred to in Article V [Art. 6 in the final
text],” the reader should turn to the section on Article 6 to see the text of that portion
of draft Article V to which reference is being made.
9. Omissions of irrelevant and repetitious material. Each section of this book includes
either the text of any part of any of the UNCITRAL or UN documents produced during
the drafting of the Model Law that touches on the particular topic of the Article under
consideration, or a cross-reference to the section in the book where such text is
printed. A list of the documents included appears in Appendix B, p. 1252 infra. The
process of choosing and arranging segments of these documents that relate to
particular Articles of the Model Law involves some judgment as to what is relevant to
the topic in the Article under consideration. When in doubt, we have sought to err on
the side of overinclusiveness.
The original documents also include some material that does not appear in this book. First,
as is customary in UN records, many of the documents begin with a brief summary of the
work carried on up to the time the document was written. Such introductory material is
included by the UN so that representatives need not search back into earlier documents to
find out what went before. Similarly, prior to and during sessions of the Commission purely
procedural documents such as provisional agendas were issued. Such procedural
documents and reviews of background are unnecessary here, since the reader need only
turn back a page or two to discover the history to that point. Therefore, repetitive
background information has not been included.
P 22
P 23
Second, as noted above, some of the early documents — in particular, the Secretariat
Study on the New York Convention — as well as the Commission Reports, were not drafted
solely with a view to producing a Model Law on International Commercial Arbitration, and
therefore include a good deal of material that has nothing to do with the Model Law. Only
those portions of these documents that address the Model Law are reproduced here.
Third, during the Commission's 1985 session, after a provision had been discussed and
agreed to by the Commission as a whole, it was reviewed in detail by a Drafting Group. The
function of this Group was largely to polish wording and conform the versions in the six
languages of UNCITRAL. The revised draft was presented to the Commission in plenary
session for review and approval, and the discussion is reflected in the Summary Record.
Generally, the Drafting Group's revision is the same as the final text of the Model Law. In
order to avoid needless duplication, therefore, only the final text is printed here. Where
the Commission's discussion resulted in further changes, an editors' note indicates how the
draft as revised by the Drafting Group differs from the final text.
One further document that is occasionally mentioned in the Summary Record is the
Rapporteur's draft of the Report of the Commission of its 1985 session. Generally, only the
final text of the Report as drafted by the Commission is printed here. Where the
Rapporteur's draft is referred to, however, an editors' note indicates whether and how the
draft differs from the final text of the Commission Report.
Finally, in accordance with normal practice, the Model Law was considered by the Sixth
Committee of the General Assembly, which proposed a draft resolution for the General
Assembly's action. Since the discussions in that Committee were not part of the actual
drafting of the Model Law and did not result in any changes to the text adopted by the
Commission, the Summary Records of the discussions (4) are not included in this book. The

20
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 report of the Sixth Committee (5) and the resulting General Assembly resolution, (6)
however, are reprinted herein.
P 23

References
1) See Introduction, p. 9 supra.
2) Where Summary Records of these meetings were kept, they are also reprinted in this
book under the short–form name “Summary Record.” Similarly, the resolutions in which
the General Assembly acted on the Commission Reports are reprinted insofar as they
mention the Model Law project.
3) As noted, the full title of each document appears in Appendix B.
4) Summary Records of the Sixth Committee, A/C.6/40/SR.3–.5, .37, .38 (25, 27, 30 Sept. and
13–14 Nov. 1985).
5) See p. 1234 infra.
6) See p. 1 supra and p. 1236 infra.

21
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Document information
The Arrangement of the Guide to the 2006 Amendments to
Publication the UNCITRAL Model Law
A Guide to the 2006 As with the book on the original Model Law, the overriding intention in assembling this
Amendments to the volume was to allow the general user—legislator, practitioner, arbitrator, court, or scholar
UNCITRAL Model Law on —to pick up the book for the first time and to trace the legislative history of any particular
International Commercial provision of the 2006 Amendments relatively quickly and easily. A second, related goal was
Arbitration: Legislative to keep the book as a whole and each part of it within a manageable length. These
History and Commentary purposes determined our choice of approach and of editing conventions.
The overall approach is straightforward. With a few exceptions noted below, each section
of the book consists of three parts: first, the text of an Article of the Law that was amended
Organization by the 2006 Amendments and of the Interpretive Instrument; second, a brief commentary
United Nations Commission highlighting the issues considered in crafting the Amendments or the Instrument and
on International Trade Law providing other background information; and third, those portions of each document
produced by UNCITRAL during the consideration and drafting of the Amendments or
Instrument that discuss the topic or topics dealt with in the final text of the portion under
Bibliographic reference consideration.

'The Arrangement of the The materials on Articles 17 – 17 J are an exception to this approach. As noted on p. 192
Guide to the 2006 infra, the legislative history of Articles 17 – 17 J, which were drafted as a unit dealing with
Amendments to the interim measures, is presented in four subunits. First, materials common to all the articles
UNCITRAL Model Law', in concerning the decision to undertake the revisions as whole, the formatting of the revisions
Howard M. Holtzmann , and certain government comments applicable to all of the provisions. Second, third, and
Joseph Neuhaus , et al., A fourth, sections addressing what became Articles 17 – 17 G (dealing with the issuance of
Guide to the 2006 interim measures by arbitral tribunals), 17 H – 17 I (dealing with recognition and
Amendments to the enforcement of such measures), and 17 J (dealing with court-ordered interim measures),
UNCITRAL Model Law on respectively. The final two parts of this book collect materials not directly related to any
International Commercial particular part of the Amendments or Instrument, but rather address the drafting process
Arbitration: Legislative of the work on the Amendments as a
History and Commentary, whole or concern specific matters considered but ultimately not addressed in the final
(© Kluwer Law International; texts.
Kluwer Law International
2015) pp. 8 - 12 In order to produce an orderly and succinct presentation of the UN materials, certain
editorial conventions were required. The most important of these are the following:
P8
P9
1. Names of documents. The excerpts from the legislative history are labeled with titles
that are not the official names of the original documents, but are short-form names that we
have developed for use in this book. The primary reason for not using the full and formal
UNCITRAL title each time an excerpt appears is the need for brevity, because the full titles
of documents issued by UNCITRAL are frequently very lengthy. On the other hand, referring
to documents simply by their UN document number is, we believe, more difficult for
readers than using a designated short-form name.
The short-form names used in this book are intended to convey the kind of document
under discussion, its source and the approximate date on which it was issued. To ensure
accurate identification, each time a short-form name is used it is followed immediately by
its United Nations document number, except when that is unnecessary given the context.
To assist those who may wish to cite documents by their official names rather than the
short-form names we have used, there is a listing in Appendix C, pp. 809–14 infra, that
shows for each document its short-form name, the United Nations document number, and
its official name.
The short–form names divide into the following types:
a. Working Group Reports. These are the reports of the sessions of UNCITRAL's Working
Group on Arbitration at which the Amendments or Instrument were considered. We have
designated these reports by the short-form name “Working Group Report.” Because a
number of these Reports were issued a year, we distinguish between the Reports by the
month and year each Report was issued, so that, for example, the Working Group Report
issued on 27 February 2006 is referred to as the “February 2006 Working Group Report.”
b. Secretariat Notes. These are commentaries, suggestions, studies, drafts, and collections
of government comments prepared by the UNCITRAL Secretariat. We distinguish between
the Notes by the month and year each Note was issued, and if two or more Notes were
issued in the same month, by the days the Notes were issued. In headings in the legislative
history, the short-form names for the Secretariat Notes also contain a subtitle that we have
added to indicate the topic of the Note. For example, the Notes issued on the 5 and 14 of
P 9 December 2005 are referred to as the “5 December 2005 Secretariat Note – Interim
P 10 Measures” and the “14 December 2005 Secretariat Note – Interim Measures.”

c. Commission Reports. The procedural status of the 2006 Amendments and the
Interpretive Instrument were considered by the Commission at its annual meetings during

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 each year when these projects were undertaken. The Commission Report for each of those
sessions reflects these discussions, and the relevant parts are printed herein under the
short-form names—e.g., “2002 Commission Report.” In addition, this volume includes the
Commission's authoritative report to the UN General Assembly of the session at which the
2006 Amendments and the Interpretive Instrument were adopted.
2. Dates. The date following the short–form name of a document is the date the relevant
document was issued in English. (Some Commission Reports do not indicate the date of
issuance; in those cases, the date indicated is the date that the Commission adopted the
Report.) Because of the time needed to prepare and duplicate Working Group and
Commission Reports, the date of issue is generally some time after the date the Report was
adopted. These Reports were adopted on the last day of the session reported, and the
dates of the sessions are indicated in the list in Appendix C, pp. 809–14 infra.
3. Headings within documents. Documents issued by the UNCITRAL Secretariat frequently
contain a hierarchy of headings and subheadings. No attempt has been made to indicate
all the headings up to the top of the “outline,” for that would frequently lead to lengthy
lists of headings prior to each excerpt that would have little meaning for the reader.
Headings indicated herein are those that are necessary either to locate the excerpt in the
full document or to understand the topic under discussion. On occasion, the headings have
been altered to include the short-form name rather than the official UNCITRAL title. (3)
4. Editors' notes. Throughout this book, insertions, citations, cross–references, and
comments by the editors are set off from the surrounding text by bold-faced brackets and
P 10 set in italic type (e.g., [Editors' Note]). Frequently, these insertions or comments begin with
P 11 the words “Editors' Note,” but where the insertion is brief, no such notation has been
included. Where irrelevant or repetitious material has been omitted, the deletion is
indicated by an ellipsis between bold–faced brackets ([.…]).
5. Use of brackets in Drafts. It was the Secretariat's practice in preparing some of the
Drafts of the 2006 Amendments to include within brackets language that was still under
consideration by the Working Group or that was offered as an alternative. Such brackets
and the suggested language appear in the legislative history parts of this book in regular
type (e.g., [alternative language]), in contrast to notes, insertions, and comments added by
the editors, which, as noted above, appear in italics and within bold-faced brackets.
6. Footnotes in legislative history. Footnotes contained in the UN documents excerpted in
this book appear immediately following the paragraph to which they pertain, indented
and with their original footnote numbers or other reference system. Where the editors of
this book have added an explanatory footnote, that footnote will have an asterisk or
similar designation rather than a number, will begin with the words “Editors' Note,” and
will appear between boldfaced brackets and in italic type.
7. Article numbers that changed during drafting. During the various drafting steps, the
designation assigned to a particular draft Article sometimes changed. These earlier Article
designations are retained in this book, but after the first mention of each Article in each
excerpt, the final Article number of the language under discussion is also indicated in
brackets.
Since draft Articles did not always conform in either form or content to the final text of the
provision, these bracketed indications should be treated as no more than general guides
to the topic addressed in the referenced provision. Thus, for example, when a cross-
reference refers to Article 17 bis [Art. 17 A in the final text],” the reader should turn to the
section on Article 17 A to see the text of that portion of draft Article 17 bis to which
reference is being made.
8. Omissions of irrelevant and repetitious material. Each section of this book includes
either the text of any part of any of the UNCITRAL or UN documents produced during the
drafting that touches on the particular topic of the Article under consideration, or a cross-
reference to the section in the book where such text is printed. A list of the documents
P 11 included appears in Appendix C, pp. 809–14 infra. The process of choosing and arranging
P 12 segments of these documents that relate to particular Articles of the Model Law
involves some judgment as to what is relevant to the topic in the Article under
consideration. When in doubt, we have sought to err on the side of overinclusiveness.
The original documents also include some material that does not appear in this book. First,
as is customary in UN records, many of the documents begin with a brief summary of the
work carried on up to the time the document was written. Such introductory material is
included by the UN so that representatives need not search back into earlier documents to
find out what went before. Similarly, prior to and during sessions of the Commission, purely
procedural documents such as provisional agendas were issued. Such procedural
documents and reviews of background are unnecessary here, since the reader need only
turn back a page or two to discover the history to that point. Therefore, repetitive
background information has not been included.
Second, some of the documents excerpted here were not drafted solely with a view to
producing the 2006 Amendments or Interpretive Instrument, and therefore include
material that has nothing to do with the Model Law. Only those portions of these
documents that address the Model Law are reproduced here.
P 12

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 P 12

References
3) As noted, the full title of each document appears in Appendix C.

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© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Document information
UNCITRAL Model Law, Chapter I, Article 1 – original version
Publication [Scope of application]
A Guide to the UNCITRAL (*)
Model Law on International
Commercial Arbitration: (1) This Law applies to international commercial (**) arbitration, subject to any
Legislative History and agreement in force between this State and any other State or States.
Commentary (2) The provisions of this Law, except articles 8, 9, 35 and 36, apply only if the place of
arbitration is in the territory of this State.
(3) An arbitration is international if:
Organization
(a) the parties to an arbitration agreement have, at the time of the conclusion of
United Nations Commission that agreement, their places of business in different States; or
on International Trade Law (b) one of the following places is situated outside the State in which the parties
have their places of business:
Promulgation (i) the place of arbitration if determined in, or pursuant to, the arbitration
agreement;
21 June 1985 (ii) any place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with which the subject-
matter of the dispute is most closely connected; or
Legislation number (c) the parties have expressly agreed that the subject-matter of the arbitration
United Nations Document agreement relates to more than one country.
A/40/17, Annex I (4) For the purposes of paragraph (3) of this article:
(a) if a party has more than one place of business, the place of business is that
which has the closest relationship to the arbitration agreement;
Bibliographic reference (b) if a party does not have a place of business, reference is to be made to his
'UNCITRAL Model Law, habitual residence.
Chapter I, Article 1 – original (5) This Law shall not affect any other law of this State by virtue of which certain
version [Scope of disputes may not be submitted to arbitration or may be submitted to arbitration
application]', in Howard M. only according to provisions other than those of this Law.
Holtzmann and Joseph
Neuhaus , A Guide to the Commentary
UNCITRAL Model Law on
International Commercial The authors of the Model Law recognized from the outset that they were preparing a
Arbitration: Legislative P 26 suggested text that, when enacted by a State, would form only one part of the entire body
History and Commentary, P 27 of that State's law. Because the Model Law must thus co-exist with a State's other laws,
(© Kluwer Law International; it is necessary to define the area in which it operates to the exclusion of those other laws.
Kluwer Law International Also, in view of the fact that the Model Law deals with international transactions, it is
1989) pp. 26 - 149 necessary to determine its relationship to the laws of States other than the State that
enacts it. The authors of the Model Law therefore made extensive efforts to describe its
scope of application in order to avoid duplication, overlapping, conflict, and confusion.
The principal provisions that describe the scope of the Model Law's application appear in
Article 1, although, as noted below, some aspects of this subject are also covered in several
other Articles. The importance of this matter and the extent of the difficulties that it
presented to the Working Group and the Commission are reflected in the fact that the
legislative history of Article 1 is the longest of any Article of the Model Law.
Article 1 establishes several different kinds of limitations on the scope of application of
the Model Law. These determine what matters are governed by the Law rather than by
other provisions of domestic law. The first limitation is that the Law applies only to
“international commercial arbitration,” as that term is defined in the Law. This serves to
distinguish those arbitrations that are governed by the Model Law from those that would
be governed by the adopting State's domestic arbitration law. Second, Article 1 fixes the
territorial limits on the scope of application of the Law. The Law applies only to
arbitrations as to which the “place of arbitration” is in the State adopting the Law (except
for certain Articles providing for recognition and enforcement of awards and for other
forms of court assistance; these Articles apply to foreign arbitrations as well). Finally,
Article 1 establishes that the Model Law does not affect other laws of the State that govern
arbitrability or special arbitral procedures. (1)
In setting forth the legislative history of Article 1, we have, because of its length, divided
the materials into three subsections, corresponding to these three broad topics addressed
in that Article. We will first present the history of paragraphs 1, 3, and 4, which define
elements of the term “international commercial arbitration.” (2) Second, we will address
paragraph 2 of Article 1, which determines the territorial scope of application of the Law.
This second subsection also will include materials on a related proposal to provide rules
P 27 to govern inter-State conflicts of jurisdiction, rules that were not in the end included in
P 28 the final text of the Law. Finally, we will turn to the limitation regarding arbitrability that is
contained in paragraph 5. This last subsection will also deal with certain related proposals
— not included in the final text—that would have explicitly stipulated that the Model Law

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 is lex specialis.

Article 1(1), (3) and (4): “International Commercial Arbitration”

In its earliest discussions of the proposal to draft a model law on arbitral procedure, the
Commission decided that the scope of the Law should be limited to international
commercial arbitration. (3) It was felt that it was in international cases in particular that
trade was hindered by the present disparity among national laws, some of which were
considered not sufficiently flexible to meet modern needs. In addition, from a practical
standpoint, the chances for unification were thought to be greater if the Law were limited
to the international field because the interest of States in maintaining their own particular
procedures and concepts was less strong there than in purely domestic disputes. (4)
Several delegations voiced concern that this limitation on the scope of the Law meant that
States would have different arbitration laws for international and domestic arbitrations, a
dual structure that might create complexities. (5) In response, it was stressed that States
are free to adopt the Model Law for both domestic and international arbitrations. (6)
Except for Article 1, all provisions of the Model Law could be readily applied to domestic
as well as international commercial arbitrations. (7)
(i) “International.” Article 1 provides four alternative tests for determining when a
commercial arbitration is to be governed by the Model Law rather than a State's
domestic law of arbitration. These are set forth in paragraph 3. The Working Group
preferred this specific and objective approach to a single general formula such as
that contained in the 1981 revision of the Code of Civil Procedure of France, which
provides that “an arbitration is international if it involves international commercial
P 28 interests.” (8) The French definition had the merit of breadth, but it was felt that it
P 29 might lead to divergent interpretations in the courts of the various States that
adopted the Model Law. (9)
The first test contained in the final text of the Law was regarded as the basic one, the
criterion that would provide for most cases of international arbitration. It was
inspired by the European Convention on International Commercial Arbitration
(Geneva 1961) (10) and provides that an arbitration is international if the parties have
their places of business in different States. It defines “place of business” for this
purpose as the place of business with the closest relationship to the arbitration
agreement (or, in the rare case in which a party to an international commercial
arbitration has no place of business, the place of business is that party's habitual
residence). The Working Group preferred this definition over the European
Convention's term “seat” or an alternative proposal, “principal place of business.” It
recognized that these alternatives would have provided greater certainty and
covered more cases, but adopted the closest-relationship- to-the-arbitration-
agreement test for two reasons: first, because it was thought to better reflect the
probable interests and wishes of the parties, who would likely have been dealing with
and have had in mind the place of business most closely connected with the
transaction; and second, because it was parallel to the solution provided in the
United Nations Convention on Contracts for the International Sale of Goods (Vienna
1980), another important UNCITRAL project. (11)
Although the place-of-business test probably encompasses most cases of
international arbitration, it does not cover some situations that were regarded as
international in practice. For example, an arbitration between parties in the same
State about a foreign subject matter would not be covered, and in many cases
neither would an arbitration involving a foreign party that has a place of business in
the country of the other party. (12) The Working Group therefore sought to expand the
test for internationally. (13) It added what became subparagraph 3(b) of Article 1,
which stipulates that an arbitration is considered international if any of the following
is in a State other than the one in which the parties have their places of business: (i)
P 29 the place of arbitration, if determined in the arbitration agreement; (ii) the place of
P 30 arbitration, if determined “pursuant to” the arbitration agreement; (iii) any place
in which a substantial portion of the obligations is performed; or (iv) the place with
which the dispute is most closely connected.
It may be objected that the first of these criteria permits the parties to turn an
otherwise domestic relationship into an international one merely by selecting “a
foreign place of arbitration.” It must be recalled, however, that the Model Law
applies when the place of arbitration is in the enacting State. As long as two parties
from one State may validly select a foreign place of arbitration—and it is a basic
policy of the Model Law to provide parties with such freedom (14) —it is essential that
the resulting arbitration be considered international, because otherwise it would be
governed by the domestic law of arbitration of the chosen foreign State. That result—
submitting an arbitration between two parties from a foreign state to the domestic
law of arbitration—would be anomalous. (15)
The words “pursuant to[] the arbitration agreement” were the subject of some
discussion by the Commission with respect to whether the provision covers cases in
which the arbitral tribunal itself determines the place of arbitration. The question is
of some importance, because the Model Law and many arbitration rules provide that
the arbitral tribunal is to select the place of arbitration if the parties have not done
so. In its commentary on the Working Group's draft of the provision, the Secretariat

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 submitted that the proviso would not be satisfied by a stipulation in the arbitration
agreement authorizing the arbitral tribunal to select the place of arbitration. (16)
Divergent views were expressed on this question during the Commission's session,
and no definitive conclusions were reached. (17) The Commission Report also does
not resolve the question: it merely records an argument raised in favor of deleting the
“pursuant to” clause, which was that the clause might give rise to uncertainty because
“the provision covered not only the case where the place of arbitration was
determined in the arbitration agreement but also the case where it was determined
only later pursuant to the agreement, for example by an arbitral institution or the
arbitral tribunal.” (18) Since this appears to be merely a report of one view expressed
in the Commission, rather than a decision by the Commission, it probably should not
be taken as an authoritative interpretation on the question. Thus, some ambiguity
remains.
It is submitted that there may be situations in which the “pursuant to'' clause should
P 30 be satisfied by the arbitral tribunal's selection of a foreign place of arbitration. This
P 31 would be the case where the arbitral tribunal's power to make the choice was
derived from language in the arbitration agreement or any rules selected therein.
That is, it would seem a natural reading to say that the place of arbitration was
selected “pursuant to the arbitration agreement” where that agreement explicitly
provides that the arbitral tribunal is to select the place of arbitration. The clause
should not be satisfied, however, where the arbitral tribunal's power to select the
place of arbitration derives from a statutory provision such as Article 20(1) of the
Model Law. Otherwise, the proviso “if determined in, or pursuant to, the arbitration
agreement” would be deprived of any meaning.
The above tests for whether an arbitration is “international” still did not, however,
cover all cases that the Working Group considered to be international. For example,
many arbitrations between two parties of the same State, one of which is controlled
and managed by a foreign company, would not be covered. One proposal was to use
as a criterion significant foreign ownership or substantial foreign control, but this was
rejected because of “the controversial and sensitive nature of the issue and the
practical difficulties in devising a workable test.” (19) Instead, the Working Group
suggested the following additional test of the international nature of an arbitration: if
“the subject matter of the arbitration agreement is otherwise related to more than
one State.” (20) The Commission, however, decided to delete this provision because it
was regarded as too vague and therefore unworkable. (21) Instead, the Commission
adopted an “opt-in” provision whereby an arbitration would be deemed to be
international if the parties had expressly agreed that the subject matter of the
arbitration agreement related to more than one country. (22) This provision was a
revision of an earlier proposal that would have allowed the parties to “opt–in” to the
Law if their relationship contained one of a list of international contacts, such as the
P 31 place of offer or acceptance or the place of one party's central management and
P 32 control. (23) The Commission favored the opt-in concept because the benefits of
certainty of application were considered to outweigh any concern that the parties to
a purely domestic transaction might then be able to evade the mandatory provisions
of domestic law. In addition, the Commission also inserted in Article 1 a provision
noting that the Model Law did not affect restrictions on arbitrability contained in
other laws of the enacting State. See the discussion of Article 1(5), infra. This provision,
which restricts the parties' ability to choose to arbitrate under the Model Law, was
seen as limiting the effect of the party–autonomy provisions of Article 1. (24)
It may be noted that the opt–in party autonomy provided by the Law in Article 1(3)(c)
is merely the power to select, for the sake of certainty, either of two systems adopted
by the State's legislature in cases in which the parties wish to arbitrate in their home
State. It is not the power to choose a system that is unjust. Moreover, the courts of the
State maintain a measure of control in cases regarded as egregious because they
have the power to set side or refuse enforcement of an award that is contrary to
public policy. They also may be able to refuse to refer such cases to arbitration under
Article 8. (25) Nevertheless, the opt-in provision is subject to the criticism that it
allows parties to avoid application of a system of law—the State's domestic law of
arbitration—that the legislature has specifically chosen to maintain as a separate
system. (26) An answer may be that domestic arbitration laws tend to provide
protections that are not needed by the sophisticated parties likely to use the opt-in
provision. But in any case, legislatures that find the opt–in provision in the final text
objectionable can return to the earlier opt–in proposal, which contains a list of
international contacts. The Model Law would then lose an element of certainty in
operation, but retain substantially all of its intended scope of application.
(ii) “Commercial.” In the early stages of drafting the Model Law, the Working Group
recognized the difficulties of defining the term “commercial.” (27) Various suggestions
were advanced, including use of the words “trade,” “commerce,” “economic
transaction,” or “business,” (28) but no comprehensive definition of the term was
P 32 found. As the Secretariat noted in its commentary on the Working Group's final draft,
P 33 conventions on international commercial arbitration do not define the word. (29)
The view appears to have been that the compound term “commercial arbitration” is
widely used and has acquired a sufficiently clear meaning. (30)
The early drafts of Article 1 provided, in the text, a non-exhaustive list of examples of

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 commercial relationships, similar to the list included in the footnote to the final text.
(31) After the Second Draft, the Working Group moved the list into a footnote. The
prevailing view in the Working Group was that inclusion of the list was useful, but
inappropriate in the body of the Law itself, primarily because (i) such a list was
contrary to the legislative techniques of a number of legal systems, (ii) the examples
might be interpreted as exhaustive, and (iii) they might be too wide or too vague. (32)
In the Commission it was again proposed that some of the important elements of the
footnote be moved into the text: an ad hoc working party proposed that the words
“international commercial arbitration” be replaced by the words “international
arbitration in commercial matters, including services and other economic relations.”
(33) In the end, however, the original text, with its widely known nomen juris
“international commercial arbitration,” was retained, and the footnote was amended
to make clear that provision of services was included. (34)
The Commission, the Working Group and the Secretariat suggested that even in those
instances in which a State that enacted the Model Law omitted the footnote as
inconsistent with its statutory drafting style, the existence of the footnote in the text
of the Model Law could nevertheless provide useful guidance in interpreting the Law.
(35)
The footnote itself states that the term “commercial” was to be given a wide
interpretation, and this call is repeated throughout the legislative history. (36) In
particular, the Commission and Working Group reports emphasize that the term is not
to be construed in accordance with national law definitions of “commercial'' in
certain civil law countries, some of which include only those relationships dealt with
P 33 in the commercial code or only transactions between “commercial persons” (i.e.,
P 34 merchants). (37) This concern arose out of experience with the provision in the New
York Convention that allows States to restrict the Convention to awards arising out of
“legal relationships… which are considered as commercial under the national law of
the State” making the restriction. (38) The view was that this proviso had resulted in
an excessively narrow interpretation. (39)
In both the Working Group and the Commission, attempts were made to make explicit
in the Law this intent not to limit “commercial” to transactions with merchants.
Amendments to the footnote were offered that would have stipulated that the Law
applied “irrespective of whether the parties are ‘commercial persons’ (merchants)
under any given national law” or, in another version, “regardless of the nature or
character of the parties.” (40) Some delegations feared, however, that such a
provision might be interpreted as touching upon the question of State or sovereign
immunity. (41) It was widely agreed that the Law is not intended to confer immunity
on States that have waived it under the applicable rules (such as by engaging in non-
governmental activities or signing arbitration clauses), nor to lift that immunity
where it has not been waived. (42) In the end, the Commission found that the footnote
expressed sufficiently clearly that the “commercial” nature of a relationship for
purposes of the Model Law did not depend on the nature of the parties, and that view
was further stipulated in the Report of the session. (43)
The list of examples of commercial relationships is, by its terms, not exhaustive; it is
intended merely to illustrate that the term is to be interpreted broadly. The
Secretariat noted, for example, several relationships that were not included in the
list, but should be considered to be “commercial” within the meaning of Article 1,
including arrangements to supply electrical energy or to transport liquified gas via
pipeline, and “non-transactions” such as claims for damages arising in a commercial
context. (44) This is not to say that the term “commercial” is boundless. The
legislative history also provides examples of relationships that were not meant to be
P 34 included in the term, in particular, labor and employment disputes and ordinary
P 35 consumer claims. (45) In addition, Article 1(5) of the Law places an additional
limitation on the scope of relationships that are subject to the Law: no matter may be
submitted to arbitration under the Model Law if it is not arbitrable under municipal
law or if it may be submitted to arbitration only under other provisions of law. See
the discussion of Article 1(5), pages 38–39 infra.
(iii) “Arbitration.” The term “arbitration” is not defined in Article 1; certain clarifications
of the term are, however, included in Article 2(a). The legislative history of the term
“arbitration” is therefore set forth in the section of this book on Article 2, pages 150–
82 infra.

Article 1(2): Territorial Scope of Application

Article 1(2) specifies those international commercial arbitrations concerning arbitrable
subject matters to which the Model Law applies. The Model Law, like the great majority of
existing national laws, specifies that it applies if the place of arbitration is in the enacting
State. There are four exceptions, Articles that apply to any international commercial
arbitration regardless of the place of arbitration. Each of these provisions directs the
courts of the Model Law State to provide assistance to arbitrations taking place either in
the Model Law State or elsewhere. The four exceptions are: Article 8, providing for a court
to refer parties to arbitration when an action is brought in a matter governed by a valid
arbitration agreement; Article 9, which provides that a request to a court for interim
measures is compatible with an agreement submitting the underlying dispute to

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 arbitration; and Articles 35 and 36, which provide for recognition and enforcement of
foreign arbitral awards on the same terms as domestic awards. (46) In early discussions of
this issue, Article 27, dealing with court assistance in taking evidence, was included in the
list of exceptions. (47) At that time, the draft of that Article provided for such assistance to
foreign arbitrations. (48) The provision was subsequently changed to its present format,
and, by virtue of Article 1(2), it applies only to arbitrations in the enacting State. Assistance
in taking evidence for use in foreign arbitrations can be provided only under any rules on
the question in other laws of the State. (49)
The Commission adopted the principle that the Model Law would apply if the place of
P 35 arbitration was in the enacting State— known as the “territorial criterion” for applicability
P 36 —only after extensive debate. The primary alternative position was to add a principle
called the “autonomy criterion,” which would have applied the Law also to arbitrations
taking place in another country if the parties had chosen to be governed by the procedural
law of the Model Law State. Thus, if the autonomy criterion had been adopted, the parties
would have been free, subject to restrictions such as fundamental justice, public policy,
and rules of court competence, (50) to choose the arbitration law of a State other than that
of the place of arbitration. The courts of the Model Law State would then presumably have
provided any court assistance needed by this arbitration, including setting aside, even
though the place of arbitration was elsewhere. Such a system of party autonomy is
envisioned by the New York Convention, which recognizes that a State may consider as
domestic an award made outside the State, and vice versa. (51)
The Commission decided not to adopt the autonomy criterion. (52) It was noted that the
territorial criterion was widely accepted by existing national laws, and that where the
autonomy criterion was available it was rarely used. Moreover, the Model Law allowed the
parties wide freedom in shaping the rules of arbitral proceedings, including the power to
agree on the procedural provisions of a foreign law as long as they did not conflict with the
mandatory provisions of the Model Law. This freedom, it was felt, reduced the need for
providing the parties with the choice of a foreign law in lieu of the Model Law. (53)
The territorial criterion as finally adopted does not provide for the situation in which the
place of arbitration is not yet known, as when the question is left to the arbitral tribunal to
decide. In such cases, a party may need court assistance, for example, in appointing an
arbitrator or deciding a challenge to an arbitrator. Five possible criteria were suggested
for determining the jurisdiction of the courts of the Model Law State in such a
circumstance: (i) if the place of business of the respondent is in the State; (ii) if the place of
business of the claimant is in the State; (iii) if the place of business of either the claimant
or the respondent is in the State; (iv) if the arbitration agreement was concluded in the
P 36
State; and (v) in certain circumstances, if the residence of an arbitrator is in the State. (54)
P 37 In addition, it was suggested that an outside party—such as the Secretary–General of
the Permanent Court of Arbitration in The Hague, which is the authority specified in the
UNCITRAL Arbitration Rules (55) —might make the necessary decisions. (56) The
Commission tentatively concluded that the court of the State in which the respondent had
its place of business had competence to appoint an arbitrator, and that, possibly, if that
court failed to act, the court of the State where the claimant had its place of business
could do so. (57) It was envisioned that a provision such as this would be needed with
regard to Articles 11 (appointment of arbitrators), 13 (challenge procedure), and 14 (failure
or impossibility to act).
In the end, the problem was left outside the scope of the Model Law, since no proposed
connecting factor was completely satisfactory to all delegations. It was noted that the
issue was a complex one that was dealt with by lengthy provisions in documents such as
the European Convention on International Commercial Arbitration (Geneva 1961). (58)
Moreover, it was thought that in practice the problem arose relatively rarely. The
Commission made clear, however, that the matter of court assistance to arbitration prior
to selection of the place of arbitration was one not governed by the Model Law, so that a
party would be able to obtain court assistance under any applicable provision of law other
than the Model Law. (59) Legislatures considering the Model Law are, of course, free to
extend its scope to cover such situations. (60)
The Commission also considered, but did not adopt, proposals to govern issues of conflict
of laws raised by the laws on arbitral procedure. For example, conflicts of court
competence may arise if States that have not adopted the Model Law provide for a scope
of territorial application different from that provided in the Model Law, such as if they
provide parties the freedom to select a foreign procedural law. In that case, it could
happen that both courts could seek to exercise competence or that neither would. (61) The
P 37 Secretariat proposed that the courts of the Model Law State be empowered to decline to
P 38 exercise competence if another court had taken up an issue or might do so. (62) The
Secretariat also noted that Articles 34 and 36 of the Model Law contain a partial choice-of-
law provision regarding the law governing the validity of an arbitration agreement. Those
Articles specify the law chosen by the parties, or, in the absence of such a choice, the law
of the place where the award was made. The Secretariat suggested that a provision be
added making clear that this rule applied to the Model Law as a whole. (63) The Working
Group, however, declined to adopt any general conflicts rules. (64) It was noted in support
of this result that conflicts rules are generally included in provisions of law of a State other
than its arbitration law. (65) Conflicts questions thus presumably are to be regulated by

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 such other provisions of law.

Article 1(5): Arbitrability

In addition to limiting the scope of applicability of the Model Law to international
commercial arbitration, the Commission considered a variety of other measures regulating
the relationship between the Model Law and other provisions of the law of the enacting
State. The need for such measures was seen in three areas: treaty law, which is governed by
Article 1(1); provisions governing arbitrability or providing that certain disputes must be
arbitrated under other laws, which is dealt with in Article 1(5); and provisions—such as
other statutes on arbitral procedure—that conflict with the Model Law, as to which it was
deemed to be implicit that the Model Law, as lex specialis, prevails within its scope of
application.
It should be noted that questions of arbitrability and lex specialis are also touched upon in
Article 5, regulating the extent of court intervention “[i]n matters governed by this Law”;
Article 7, defining the arbitration agreement; Article 8, governing its effect in courts; and
Article 34(2)(b)(i), which provides for setting aside awards that concern a nonarbitrable
subject matter. A related question considered by the Commission was whether a third
party that is asked to “fill a gap” in a contract or to adjust the contract may be said to be
conducting “arbitrations” under the Model Law. The materials on this topic appear in the
section of this book on Matters Not Addressed in the Final Text. (66)
P 38
Article 1(5) was the result of consideration of a variety of proposals aimed at excluding
P 39 nonarbitrable subject matters from arbitration under the Model Law. At the outset it
was noted that national laws excluding certain subject matters—such as bankruptcy,
antitrust, securities or patents—from the domain of arbitration are increasingly applied
more leniently to international transactions than to purely domestic ones. (67) The
Secretariat suggested that the Model Law might attempt to limit the number of
nonarbitrable subject matters, or at least list them as an easy reference for foreign lawyers
and businessmen. (68) The Working Group concluded, however, that it would not be
possible to provide an exhaustive list of nonarbitrable subject matters and that a
provision for an open list to be supplemented by each State would not further the cause of
harmonization. (69) In addition, consideration was given to requiring in either Article 7,
which defines the arbitration agreement, or Article 8, which specifies its effect in courts,
that arbitration agreements be limited to arbitrable subject matters. (70) Such provisions
were deemed unnecessary primarily because in many, if not all, jurisdictions such
agreements would be null and void, and therefore not enforceable under the terms of
Article 8.
In the end, the Commission adopted Article 1(5), specifying that the Model Law does not
affect other laws of the enacting 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 the Model Law. The provision was adopted in part to ensure that the
broad definition of “international commercial arbitration” would not be taken to override
arbitrability provisions of other laws. (71)
While provisions expressing the lex specialis character of the Model Law were proposed, in
the end no satisfactory wording was found. The main aim of these proposals was “to help
clarify that the model law is not a self-contained and self-sufficient legal system which
would exclude the application of all other national provisions of law dealing with
arbitration.” (72) To some extent, the provision on arbitrability in Article 1(5) satisfies this
need. In any event, the Commission's Report notes that “it was understood that, since the
model law was designed to establish a special legal regime, in case of conflict its
provisions, rather than those applicable to arbitrations in general, would apply to
international commercial arbitrations.” (73)
P 39
P 40

Legislative History
ARTICLE 1, PARAGRAPHS 1, 3 AND 4 “INTERNATIONAL COMMERCIAL ARBITRATION”
[Editors' Note: The legislative history section on Article 1 is divided into three parts. The
materials that follow concern paragraphs 1, 3 and 4, which, inter alia, provide that the Model
Law shall apply to “international commercial arbitration” and define certain elements of that
term. For materials on paragraph 2, see pp. 97-133 infra. For materials on paragraph 5, see
pp. 133-49 infra.]
1979 COMMISSION REPORT A/34/17 (15 AUGUST 1979)
[Editors' Note: The Commission at this session discussed certain recommendations of the
Asian-African Legal Consultative Committee (AALCC) relating to international commercial
arbitration. These recommendations, the Summary Records of the Commission's discussions
and the full text of the Commission Report on this discussion appear at pages 1161-62, 1175–
89 infra. The Commission decided to attempt to elaborate a model law on arbitral
procedure.]
79. As to the scope of application of such model law, it was generally agreed that it should
be restricted to international commercial arbitration in view of the specific features

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 inherent in the settlement of international disputes. This would, however, not prevent
States which were willing to do so from adopting the model provisions also for domestic
arbitrations.
[….]
Decision of the Commission
81. The Commission, at its 220th meeting, on 25 June, 1979, adopted the following decision:
The United Nations Commission on International Trade Law
[….]
2. Requests the Secretary-General:
[….]
(b) To prepare, in consultation with interested international organizations, in particular
the Asian-African Legal Consultative Committee and the International Council for
Commercial Arbitration, a preliminary draft of a model law on arbitral procedure,
taking into account the conclusions reached by the Commission, and in particular:
(i) That the scope of application of the draft uniform rules should be restricted to
international commercial arbitration; […].
P 40
P 41
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
I. Scope of application
28. As decided by the Commission at its twelfth session, [reported in the 1979 Commission
Report, supra,] “the scope of application of the draft uniform rules should be restricted to
international commercial arbitration” (see above, para. 2). (*) It seems clear that this
restriction, if finally maintained, will have to be stated in the model law. It is less clear,
though, whether the three elements delimiting the scope of application, i.e. “arbitration,”
“commercial” and “international,” should be defined and, if so, in which way.
1. “Arbitration”
[Editors' Note: The term “arbitration” was ultimately addressed in Article 2 of the final text.
See the section on that Article, pp. 155-56 infra.]
2. “Commercial”
31. As to the second element delimiting the scope of application, i.e. “commercial,” it is
doubtful whether that should be defined in the model law. It may be thought that this
term, although not always in all respects construed in an identical manner, has by now
gained a sufficiently clear meaning, at least as a modifier to arbitration, thus excluding
arbitrations of a different nature such as those in labour disputes or family law matters.
Based on the experience with article I, para. 3 of the 1958 New York Convention, (13) it is
further suggested not to qualify the term along the following lines: “relationships which are
considered as commercial under the national law of the respective State.”
3. “International”
32. As to the third element, i.e. “international,” it would seem necessary, though difficult, to
define that term since the model law is designed to provide a special legal régime for
P 41 those arbitrations where more than purely domestic interests are involved. There are a
P 42 number of possible criteria to regard an arbitration as “international” in the sense of
“not purely domestic.” One such instance would be that at least one of the parties has its
place of business in, or is a national of, a State other than the one concerned (hereinafter
called X). Another factor could be that the place of arbitration lies outside State X. Yet
other factors may be that the arbitration agreement (or the contract containing the
arbitration clause) is concluded in a State other than X or that the subject-matter of the
dispute concerns an area outside State X (e.g. the market regulated in a distribution
agreement).
33. The first two criteria are used, for example, in the United Kingdom Arbitration Act 1979
which defines, in section 3(7),
“domestic arbitration agreement” as an “arbitration agreement which does not
provide, expressly or by implication, for arbitration in a State other than the
United Kingdom and to which neither
(a) an individual who is a national of, or habitually resident in, any State
other than the United Kingdom, nor
(b) a body corporate which is incorporated in, or whose central management
and control is exercised in, any State other than the United Kingdom,
is a party at the time the arbitration agreement is entered into.”
It has been observed that, in this definition, the ambit of a non-domestic arbitration is

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 drawn very widely in order to give essentially international arbitrations the full benefit of
the relaxation introduced by the new legislation. (14) In view of this international thrust
and of the technique employed (i.e. to define domestic rather than non-domestic), the
above definition may seem to commend itself as an interesting model.
34. However, for the purposes of the scope of application of the model law which is to
cover various stages of arbitration (e.g. conclusion of arbitration agreement, arbitral
proceedings, setting aside of award, recognition and enforcement of award), certain
difficulties should not be overlooked which may arise, in particular, when the place of
arbitration is used as a distinguishing factor. One difficulty relates to the fact that the
question of the applicability of the model law, based on the non-domestic character of the
arbitration, may already be relevant before the arbitration has started, e.g. in the context
of a referral to arbitration as envisaged under art. II, para. 3 of the 1958 New York
Convention. Uncertainty would then exist if, as is sometimes the case, the arbitration
agreement does not specify the place of arbitration but leaves that determination to the
arbitrator. Such an arbitration agreement, if concluded between two nationals of State X,
would under the above definition conceivably be treated as a domestic one since it “does
not provide for arbitration in a State other than X.” If a foreign party is involved, then this
P 42 would be the international connexion bringing it within the scope of the model law.
P 43 Consequently, one might consider to solely rely on this criterion, i.e. foreign place of
business or nationality of at least one of the parties.
35. This suggestion could also meet the following concern: A State (X) may not be willing to
apply its “relaxed” international arbitration provisions to the situation where, as would be
covered under the above definition, two nationals of that State select a foreign place of
arbitration (and could, thus, avoid the more restrictive procedural law for domestic cases).
On the other hand, the State where the arbitration takes place may have no objection
against the application of its “international” arbitration law even if both parties are from
the same foreign country. The same may be true where in this State a stay of proceedings is
sought based on such an arbitration agreement.
36. There is yet another concern in respect of those provisions of the model law which
would govern the arbitration proceedings and any setting aside procedures. One should
expect that these provisions would primarily, though not exclusively, apply to those
“international” arbitrations which take place within the boundaries of the State concerned
(X). This expectation is based on the existing conflicts rules according to which the
applicable procedural law is normally the law of the place of arbitration, except where
another law is validly chosen by the parties. Although the above definition could
technically work here since it would not prevent the application of the law to arbitrations
in State X as long as at least one of the parties is a national of another State, the use of the
(foreign) place of arbitration as one of two alternative criteria could be regarded as
misleading or as a matter of misplaced emphasis. In fact, the place of business (or
nationality) of the parties remains as the decisive factor.
37. If, thus, one were to require that the parties are from different States, one would
certainly exclude purely domestic arbitrations. This would also include cases where none
of the parties is from the State concerned. Yet, it may be doubtful whether the law of State
X should apply to such “fully nondomestic” cases since one might assume that a certain
connexion with that State should exist. Here, one may well take the position that this is not
an issue to be dealt with under “scope of application,” the purpose of which is to indicate
generally what type of cases the law is designed to regulate.
38. The above examples, to which many could be added, indicate not only the complexity
of the issue at hand but also the inter–play or interdependence between the scope of
application and the pertinent conflicts rules. Therefore, the Commission may wish to
discuss to what extent such considerations should be taken into account when defining the
scope of application and it may even wish to decide whether it would not be appropriate
to envisage inclusion of some model conflicts rules. Whatever the final answer may be, the
relevant provisions of the 1958 New York Convention would have to be taken into account
in order to avoid any conflict and, at least with regard to the scope of application, an
attempt should be made to use the same criterion or criteria for the various stages of
arbitration regulated by the model law.
P 43
P 44
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
I. Scope of application
1. “Arbitration”
9. According to a decision by the Commission, the model law is to apply to “international
commercial arbitration” […] While this would be stated in the law, it is less clear whether
the three elements delimiting the scope of application, i.e. “arbitration,” “commercial”
and “international,” should be defined and, if so, in what way.
[….]
2. “Commercial”

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 11. As suggested in the report [First Secretariat Note] (para. 31), there seems to be no
particular need for defining the term “commercial,” which is the second element
delimiting the scope of application of the model law. If, however, such a need were felt, it
would be advisable to define the term in the model law but not to follow the approach
taken in the 1958 New York Convention which refers to “relationships which are considered
as commercial under the national law of the respective State” (art. I, para. 3).
Question 1–3: Should the term “commercial” be defined in the model law?
3. “International”
12. As indicated in the discussion set forth in the report (paras. 32-38), the third element
delimiting the scope of application, i.e. “international,” raises a number of difficult and
complex questions. Not only is there a great variety of possible criteria for distinguishing
between domestic and “international” cases (e.g. subject matter of dispute; nationality or
domicile of parties; applicable procedural law; nationality of arbitrators; place of arbitral
proceedings and award). There is also the difficulty that the distinction must be made with
regard to the various phases covered by the model law (i.e. arbitration agreement, arbitral
proceedings, arbitral award) which conceivably may call for different criteria. In addition,
this issue may be viewed as being linked with questions of conflicts of laws or international
jurisdiction.
13. In view of this, the Working Group may wish, during its first exchange of views, to
tentatively agree on a simple formula applicable to all phases. This formula would serve as
a working assumption for the discussion on the other issues and would then be reviewed
and refined in the light of these discussions.
14. A simple formula is used, for example, in the most recent national arbitration law,
establishing special rules for international cases: under article 1492 of the New Code of
Civil Procedure of France, an “arbitration is international if it involves international
P 44 commercial interests.” (6) Reference is, thus, made to the subject matter of the dispute,
P 45 which has been said to explain best the special nature of, and need for, rules of
international commercial arbitration. (7) This formula, which is based on a notion
developed in French case law, (8) does not include a definition of the term “international.”
15. If any definition were desired, a formula, still relatively simple, might be found along
the lines of the notion used in the European Convention on International Commercial
Arbitration [484 U.N.T.S. 349] (Geneva, 1961), article I, para. 1:
“This Convention shall apply:
(a) to arbitration agreements concluded for the purpose of settling disputes
arising from international trade between physical or legal persons having,
when concluding the agreement, their habitual place of residence or their
seat in different Contracting States;
(b) to arbitral procedures and awards based on agreements referred to in
paragraph 1(a) above.”
Similarly, the model law might state that it applies to arbitration agreements, and to the
arbitral proceedings and awards based thereon, between parties whose places of business
are in different States.
Question
1–4: Would it be sufficient to refer simply, i.e. without definition, to the international
nature of the commercial matter in dispute (or of the arbitration agreement)?
Question
1–5: If a definition is desirable, should one formula (e.g. parties from different States) be
adopted for all phases covered by the model law?
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[….]
I. Scope of application
[….]
2. “Commercial”
Question 1-3: Should the term “commercial” be defined in the model law?
19. There was general agreement that the term “commercial” should be given a wide
P 45 meaning in order to meet the concern that, in certain legal systems, the term might be
P 46 construed in an unduly restrictive manner. The Working Group noted the difficulty of
devising a clear-cut formula for defining that aspect of the scope of application of the
model law. Various suggestions were made for possible elements of an appropriate
formula, including (international) “trade,” “commerce” and “economic transactions.” It was
also suggested that for different language versions, different terms might be used to ensure
that the term “commercial” would have a wide meaning. It was also suggested that the
wide scope to be given to the term “commercial” might be indicated by excluding

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 arbitration of certain disputes (e.g., labour disputes) from the scope of the law.
3. “International”
Questions
1-4: Would it be sufficient to refer simply, i.e. without definition, to the international
nature of the commercial matter in dispute (or of the arbitration agreement)?
Question
1-5: If a definition is desirable, should one formula (e.g., parties from different States) be
adopted for all phases covered by the model law?
20. There was general agreement that it would not suffice for the model law to refer simply,
without definition, to the international nature of the commercial matter in dispute. The
criterion of the international nature of the matter in dispute would determine whether in a
given case the special régime embodied in the model law would govern, or whether the
rules for strictly domestic arbitrations would apply. As to how the definition should be
formulated, there was general agreement that the definition contained in the European
Convention (Geneva 1961) formed a good starting point. The details of the definition might
be aligned to the corresponding definition used in the Vienna Sales Convention of 1980
[United Nations Convention on Contracts for the International Sale of Goods, A/Conf.97/18].
21. It was agreed that further consideration should be given to the possibility of expanding
the scope of application of the model law, by adding to the situations covered by the
definition of the international nature of a dispute (parties from different States) other
cases (e.g. where a contract is to be performed outside the country in which both parties
are resident, or where property in dispute is situated outside such country). Such
expansion might either be reflected in the definition contained in the model law, or it
could be left to the decision of States when adopting the model law to expand the scope of
the definition.
FIRST DRAFT A/CN.9/WG.II/WP.37 (15 JULY 1982)
I. Scope of application (1)
Alternative A: (2)
Article 1 (A)
This Law applies:
P 46 (a) to arbitration agreements concluded by parties to a commercial [or economic]
P 47 transaction whose places of business are in different States [or, if their places of
business are in the same State, where their contract is to be performed outside that
State or where the subject-matter in dispute is property situated outside that State];
(3) if a party has more than one place of business the relevant place of business is
that which has the closest relationship to [the contract and its performance] [the
conclusion of the arbitration agreement]; (4)
(b) to the preparation and conduct of arbitration proceedings based on agreements
referred to in paragraph (a);
(c) to arbitral awards rendered in proceedings referred to in paragraph (b).
Alternative B:
Article 1 (B)
(1) This Law applies to international commercial arbitration as specified in paragraphs
(2), (3) and (4) of this article.
(2) “Arbitration” covers arbitration agreements, the preparation and conduct of
arbitration proceedings based on such agreements whether or not administered by a
permanent arbitral institution, and the arbitral awards resulting therefrom.
(3) “Commercial” refers to the settlement of a dispute arising in the context of any
commercial transaction [or similar economic relationship] [including supply or
exchange of goods, construction of works, financing, joint venture and other forms of
business co–operation, provision of services, except labour under a contract of
employment]. (5)
(4) “International” are those cases where the arbitration agreement is concluded by
parties whose places of business are in different States [or, if their places of business
are in the same State where their contract is to be performed outside that State or
where the subject–matter in dispute is property situated outside that State]. (6) If a
P 47 party has more than one place of business, the relevant place of business is that
P 48 which has the closest relationship to [the contract and its performance] [the
conclusion of the arbitration agreement]. (7)
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[….]
Scope of application
Article 1

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 26. The text of two alternative versions of article 1 as considered by the Working Group was
as follows:
[same as First Draft, supra].
In general
27. There was general agreement that the drafting technique used in alternative B was
more precise than that used in alternative A and that it should, therefore, be used in the
model law.
28. It was observed that a State could modify the provisions of the model law when
adopting it. However, it was not felt that an express provision to this effect was needed.
Alternative B:
Paragraph (2)
[Editors' Note: The discussion of paragraph 2 appears in the section on Article 2, p. 158 infra.]
Paragraph (3)
30. There was general agreement that the term “commercial” should be defined in a broad
sense. Different views were expressed as to how this result could best be achieved,
especially in view of the fact that in some legal systems the term “commercial” is defined
more narrowly than it is in others.
31. Under one view it was unnecessary to include a definition of “commercial.”
Furthermore, no definition could delineate between the cases which should be included
and those which should be excluded.
32. Among the suggestions made for altering the definition were that (a) a full stop be
placed after the words “commercial transactions” with the rest of the definition deleted,
(b) the word “commercial” be changed to “business,” (c) additional examples, such as
investment, factoring and leasing be added to the list of commercial transactions, and (d)
P 48 the term “commercial” should be defined by way of listing legal relationships which were
P 49 not commercial (e.g. consumer and employment relations). If an illustrative list of
commercial activities were to be adopted the inclusion of “investment” was widely
supported. A combined approach was also suggested by which the provision would list
examples of both legal relationships which would be considered commercial and those
which would not be considered commercial.
33. It was also suggested that some of the problems might be solved by an official
commentary to the text.
Paragraph (4)
34. There was general agreement that the test of “internationality” should depend upon the
character of the parties rather than the subject matter of the dispute.
35. Under one view the determining test should be the nationality of the parties, whether
they were natural or legal persons. It was suggested that for this purpose the nationality of
a legal person might be determined either by the place of incorporation or by the element
of control.
36. The prevailing view, however, was that the determining fest should be the place of
business of the parties, even though it was recognized that the concept of place of business
was a complex one and could give rise to difficulty of application in certain cases (e.g.
when the party was temporarily doing business in a State or when the dispute involved
business activities of a State). It was suggested that it was preferable to align the test of
internationality with that in the 1961 Geneva Convention and the 1980 Vienna Sales
Convention.
[….]
[Editors' Note: The concept of including a provision whereby the parties could agree that an
arbitration was “international” first arose in connection with the discussion of the law
applicable to the substance of the dispute. For the full discussion, see the section on Article
28, pp. 779-80 infra.]
Law applicable to substance of dispute
[….]
167. Noting the strong support for maintaining the autonomy of the parties in choosing the
law applicable to the substance of the dispute, a view was expressed that similar freedom
of choice should be given to parties in transactions having international links to include a
provision in their agreement that the model law shall apply, thereby avoiding possible
uncertainty in determining whether the model law or domestic law applies. This view could
be considered in connexion with the next draft of article 1.
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
A. Scope of application
Article I [Article 1 in the final text]

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 (1) This Law applies to international commercial arbitration as specified in paragraphs
(2), (3) and (4) of this article.
P 49
P 50
(2) “Arbitration” includes [all matters of arbitration, in particular]
(a) arbitration agreements [as defined in article II [Art. 7 in the final text],
paragraph (1)]; [footnote omitted]
(b) the preparation and conduct of arbitration proceedings based on such
agreements whether or not administered by a permanent arbitral institution;
and
(c) the arbitral awards resulting therefrom.
(3) “Commercial” refers to any [defined legal] relationship of a commercial [or economic]
nature [including, for example, any trade transaction for the supply or exchange of
goods, factoring, leasing, construction of works, consulting, engineering, commercial
representation, investment, joint venture and other forms of industrial or business
co–operation, financing, or providing of services]. (5)
(4) “International” are those cases where the arbitration agreement is concluded by
parties whose places of business are in different States. If a party has more than one
place of business, the relevant place of business is [that which has the closest
relationship to the arbitration agreement] [the seat of the head office]. (6) , (7)
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[….]
A. Scope of application
47. The text of article I as considered by the Working Group was as follows:
[same as Second Draft, supra].
P 50
P 51
Paragraph (1)
48. The Working Group was agreed that the model law should specify its scope of
application. It was also agreed that this scope — in line with the mandate given to the
Working Group by the Commission — was “international commercial arbitration,” as stated
in paragraph (1).
49. However, divergent views were expressed as to the “definitions” of the three elements
(“arbitration,” “commercial,” “international”) suggested in paragraphs (2), (3) and (4). As a
result of the decisions on those paragraphs (see below, paras. 50-60), the Working Group
decided to delete the words “as specified in paragraphs (2), (3) and (4) of this article” and
requested the Secretariat to consider combining the remaining words of paragraph (1) with
other provisions in a revised concise draft of the whole article.
Paragraph (2)
[Editors' Note: The discussion of paragraph 2 appears in the section on Article 2, pp. 159-60
infra.]
Paragraph (3)
52. The Working Group was agreed that the term “commercial” should be given a wide
interpretation but divergent views were expressed as to whether and, if so, in what manner
the term should be defined in the model law. There was even some concern as to the use of
the term as such in that, under some legal systems, it might be construed as applying only
to transactions by “commercial persons” (merchants) as defined by a given national law.
53. Under one view, the model law should not attempt to define the term “commercial”
since no satisfactory definition had been found to date. Under another view, which also
recognized the great difficulties in finding a workable definition, it was sufficient to state
in general terms that “commercial” referred to a “relationship of a commercial nature or”
[sic — the quotation mark should precede the word “or”], as supported by some
representatives, “of an economic character.” In support of those views, it was pointed out
that the illustrative list of commercial transactions set forth in paragraph (3) was
inappropriate for various reasons: (a) inclusion of a list of examples was contrary to the
legislative techniques in a number of legal systems; (b) courts might interpret the list as
exhaustive despite its express illustrative nature; (c) the examples contained in the list
were unbalanced in that important transactions were missing (e.g., maritime transport,
banking, insurance, licensing); (d) some of the examples (e.g., consulting, providing of
services) were too wide or vague and thus more harmful than helpful.
54. Under yet another view, however, it was useful to include in the model law a list,
despite its shortcomings, since it would provide some guidance and help to prevent too
restrictive interpretations as found in some national laws or legal doctrine. The proponents
of that view suggested various amendments to the list.
55. In view of the divergency of views in the Working Group, it was also suggested that the

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 P 51 list could be placed in a footnote to article I rather than in the body of the text itself. Yet
P 52 another suggestion was to include the list in a commentary, if one were to be published
with the final model law.
56. The Working Group, after deliberation, decided not to retain paragraph (3). It requested
the Secretariat to draft a footnote to the term “commercial” in paragraph (1), which would
contain the substance of paragraph (3) and take into account the suggested amendments
and the need for clarifying that not only transactions between merchants but also others
were covered.
Paragraph (4)
57. There was general agreement that the term “international” should be given a wide
interpretation. However, divergent views were expressed as to how this could be done in a
satisfactory and clear manner.
58. Under one view, the definition suggested in paragraph (4) did not fully correspond with
international practice and excluded some important international situations (e.g.,
arbitration between parties of same State about foreign subject–matter; arbitration
between parties of same State, one of which is controlled and managed by foreign
company). It was suggested, therefore, to adopt a more general formula such as, e.g.,
“transaction involving international trade interests.” Another suggestion in this direction
was to add to paragraph (4) a provision allowing parties to agree on the application of the
model law provided that there was an international element in their relationship (possibly
to be established by objective criteria such as the ones mentioned in footnote 7 of [the
Second Draft,] WP.40).
59. The prevailing view was that the first sentence of paragraph (4) presented a solid basis
for determining the international character. As to the second sentence, divergent views
were expressed as to which of the alternative solutions was to be preferred. In support of
the second alternative (i.e. seat of head office, or better: principal place of business) it was
noted that that text provided greater certainty and would enhance the applicability of the
model law. There was wider support, however, for the first alternative (closest relationship)
since it was similar to the solution adopted in the United Nations Convention on Contracts
for the International Sale of Goods [A/Conf. 97/18] (Vienna 1980; article 10 (a)) and because
it reflected the probable interests and wishes of the parties. It was suggested that the
relevant connecting factor was not only the arbitration agreement but also its
implementation and, possibly, the subject-matter of the dispute.
60. The Working Group, after deliberation, decided to retain paragraph (4), except for the
second alternative, as a basis for future reconsideration and requested the Secretariat to
prepare, for future consideration, an additional draft provision containing a wider and
more general definition, possibly with an enumeration of objective criteria. Such a formula
could be used in an “opting–in” provision or as a substitute for paragraph (4) itself.
[….]
P 52 [Editors' Note: The indication in Article 1(1) that the Model Law is subject to treaties entered
P 53 into by the Model Law State arose out of a more limited provision in an early draft of what
became Article 35. For the full text of the discussion of that draft, see the section on that
Article, pp. 1023–24 infra.]
J. Recognition and enforcement of award
[….]
Article XXVI [Article 35(2) in the final text]
127. The text of article XXVI as considered by the Working Group was as follows:
Article XXVI
An arbitral award made outside the territory of this State shall be recognized as binding
and enforced in accordance with the following procedure, subject to any multilateral or
bilateral agreement entered into by this State: […].
128. There was general agreement in the Working Group that the rules of procedure for
recognition or enforcement of arbitral awards made abroad should be subject to any
multilateral or bilateral agreements entered into by the State. It was felt, however, that
that principle was not only relevant for article XXVI and should, therefore, be expressed as
a general rule in a separate provision.
THIRD DRAFT A/CN.9/WG.II/WP.45 (13 JUNE 1983)
A. Scope of application
Article I [Article 1 in the final text] (2)
(1) This Law applies to international commercial (*) arbitration [, subject to any
multilateral or bilateral agreement entered into by this State]. (3)
P 53
P 54
(2) An arbitration is international if the parties to an arbitration agreement have [, at the
time of the conclusion of that agreement,] (4) their places of business in different
States. If a party has more than one place of business, the relevant place of business

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 is that which has the closest relationship to the arbitration agreement. (5)
[(3) An arbitration shall also be regarded as international for the purpose of paragraph (1)
where the parties to an arbitration agreement have stipulated that this Law shall
apply in lieu of a national law on domestic arbitration, provided that [their
relationship involves international trade interests. A relationship is deemed to
involve international trade interests if] not all of the following places are situated in
the same State: the place where the offer for the contract containing the arbitration
clause or for the separate arbitration agreement was made; the place where the
corresponding acceptance was made; the place of performance of any contractual
obligation or of the location of the subject-matter; the place where each party is
registered or incorporated or where its central management and control is exercised;
the place of arbitration if determined in the arbitration agreement.] (6)
B. General provisions
New Article I bis
For purposes of this Law:
[Editors' Note: Paragraphs (a) through (d) appear in the section on Article 2, p. 161 infra;
paragraph (e) became Art. 1(4)(b).]
[(e) if a party does not have a place of business, reference is to be made to his habitual
residence.] (10)
P 54
P 55
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Third Draft,] (A/CN.9/WG.II/WP.45)
[….]
Article I [Article 1 in the final text]
160. The text of article I as considered by the Working Group was as follows:
[same as Third Draft, supra].
Paragraph (1)
161. The Working Group adopted this paragraph, including the words placed between
square brackets, although there was some support for expressing the proviso in a separate
provision.
162. As regards the foot–note annexed to the term “commercial,” there was some support
for incorporating the illustrative list set forth therein into the body of the text of paragraph
(1) since the legal effect of a foot–note to a law was not clear. There was also some support
for not retaining any such illustrative list at all. The prevailing view, however, was to retain
the foot–note since it provided some useful guidance for the interpretation of the term
“commercial.”
163. As regards the text of the foot-note, there was some support for retaining the words “or
economic” and for deleting the phrase “irrespective of whether the parties are
‘commercial persons’ (merchants) under any given national law.” The prevailing view,
however, was to retain this latter phrase and to delete the words “or economic.”
Paragraphs (2) and (3)
164. The Working Group was agreed that the definition of “international” was of utmost
importance for the practical effects of a model law on international commercial
arbitration and crucial for its acceptability. It was recognized that to find a satisfactory
solution was one of the most difficult tasks in the preparation of the model law.
165. Divergent views were expressed as to which would be the most appropriate test of
internationality for the model law. Under one view, it was sufficient to use the standard set
forth in paragraph (2) which was the test adopted in the United Nations Convention on
Contracts for the International Sale of Goods [, A/Conf. 97/18] (Vienna, 1980). It was stated
in support that this test provided a workable and precise formula which would allow easy
determination of whether in a given case the (model) law on international arbitration or
the national law on domestic arbitration would apply.
166. Under another view, the standard of paragraph (2) was too narrow and should be
supplemented by further criteria which would avoid the vagueness of a general formula
P 55 but cover the variety of cases for which the model law should establish a special regime.
P 56 Objective criteria to be used for that purpose were the ones listed in paragraph (3), to
which could be added, as suggested by one representative, the substantial ownership of a
party. In support of this view to add objective criteria for the purpose of establishing the
international character of an arbitration, it was stated that the opting–in mechanism
provided under paragraph (3) was not appropriate for the many cases where the parties
assumed that, because of some foreign element, their relationship was an international
one and, thus, did not see any reason for a special act (of opting–in) on their part.
167. Under yet another view, it was impossible to cover all deserving cases by individual
criteria. It was, therefore, necessary to adopt a general formula such as “involving

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 international commercial interests,” despite its possible shortcomings in view of the
possibility that divergent interpretations would be given to it by the different courts of
different States.
168. The Working Group, after deliberation, decided not to adopt the latter approach of a
general formula but to widen the standard used in paragraph (2) by adding other objective
criteria, in particular, the place of performance of contractual obligations and the location
of the subject–matter of the transaction, as well as the place of arbitration if determined
in the arbitration agreement. The Working Group requested the Secretariat to prepare a
draft provision embodying this compromise solution which should meet with the approval
of the greatest number of States.
New Article I bis [Article I(4)(b) in the final text]
169. The text of new Article I bis as considered by the Working Group was as follows: [same
as Third Draft, supra].
[Editors' Note: For the discussion of sub–paragraphs (a)–(d), see the section on Article 2, p.
162 infra.]
173. The Working Group adopted sub-paragraph (e) and decided to incorporate it into
article I(2) [Art. 1(4) in the final text], unless it was found to be relevant to another provision
of the model law, too.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Chapter I. General Provisions
Article 1. Scope of application
(1) This Law applies to international commercial (*) arbitration. Its provisions are subject
to any multilateral or bilateral agreement entered into by this State.
P 56
P 57
(2) [An] arbitration is international if:
(a) the parties to an arbitration agreement have, at the time of the conclusion of
that agreement, their places of business in different States; or
(b) one of the following places is situated outside the [territory of the] State in
which the parties have their places of business:
(i) the place of arbitration if determined in the arbitration agreement;
(ii) any place where [a substantial] [the preponderant] part of the
[characteristic] obligations of the [commercial relationship] [transaction]
are to be performed or where its centre of activity or its subject-matter is
located.
(3) For the purposes of paragraph (2), if a party has more than one place of business, the
relevant place of business is that which has the closest relationship to the arbitration
agreement. If a party does not have a place of business, reference is to be made to
his habitual residence.
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[….]
Chapter I. General Provisions
Article 1
156. The text of article 1 as considered by the Working Group was as follows:
[same as Fourth Draft, supra.]
157. The Working Group adopted that article, subject to the deletion, in the first sentence of
the footnote annexed to paragraph (1), of the words “irrespective of whether the parties are
‘commercial persons’ (merchants) under any given national law,” and subject to the
modification of paragraph (2) in the following form:
“(2) An arbitration is international if:
“(a) the parties to an arbitration agreement have, at the time of the conclusion of
that agreement, their places of business in different States; or
“(b) one of the following places is situated outside the State in which the parties
have their places of business:
“(i) the place of arbitration if determined in, or pursuant to, the arbitration
agreement;
P 57
P 58
“(ii) any place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with which the subject-matter
of the dispute is most closely connected;
“or

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 “(c) the subject-matter of the arbitration agreement is otherwise related to more
than one State.”
158. As regards the content of the footnote annexed to paragraph (1), concern was
expressed that the words “irrespective of whether the parties are ‘commercial persons’
(merchants) under any given national law” might be interpreted as dealing with the issue
of State immunity. The Working Group noted that those words were not intended to touch
upon that sensitive issue but were incorporated for the sole purpose of clarifying that the
commercial nature was not dependent on the qualification of the parties as merchants
since some national laws used that qualification for distinguishing between commercial
and civil relationships. While there was support for maintaining those words for that very
purpose, the Working Group, after deliberation, decided to delete them in order to meet
the above expressed concern. It was understood that the deletion did not change the
meaning of the first sentence of the footnote.
159. As regards the form of the footnote, the Working Group was agreed that the technique
of a footnote was not an ideal one. It was nevertheless maintained as an intermediate
solution between the approach of attempting to incorporate in the text of article 1 or 2 a
definition of the term “commercial” and the mere inclusion in the report of the content of
the footnote. It was observed that the footnote could provide guidance to the legislature of
a State when adopting the model law but was unlikely to be reproduced in the national
enactment of the model law.
160. As regards paragraph (2), divergent views were expressed concerning the test of
internationality. Under one view, an arbitration was international only if the requirement
set forth in subparagraph (a) was met, which was the test used in the United Nations
Convention on Contracts for the International Sale of Goods [A/Conf.97/18] (Vienna, 1980).
Under another view, a text comprising the criteria referred to in subparagraphs (a) and (b)
was appropriate, subject to minor modifications in the wording of subparagraphs (b) (i)
and (ii). The prevailing view, however, was to further widen the scope of the term
“international.” To that effect, various suggestions were made.
161. One proposal was to use as a criterion significant foreign ownership or substantial
control. The Working Group did not adopt that proposal in view of the controversial and
sensitive nature of the issue and the practical difficulties in devising a workable test.
162. Another suggestion was to use a general formula such as “involving international
commercial interests.” The Working Group did not adopt that proposal on the ground that
P 58 it was too vague for a model law. Another suggestion was to combine that general formula
P 59 with the element of stipulation of the parties, as follows: “if it involves international
commercial interests and the parties so agree.” While there was considerable support for
that proposal, the Working Group did not accept it, for the time being, on the ground that it
combined a flexible formula with the requirement of an agreement by the parties.
163. Yet another suggestion was to add a new subparagraph (c) to cover all other cases
where the subject-matter of the arbitration agreement was related to more than one State.
The Working Group, after deliberation, adopted that proposal since it presented a widely
acceptable formula to achieve the desired widening of the test of internationality.
164. As regards paragraph (3), there was some support for replacing the criterion used
therein by the “principal place of business,” which was regarded as a clearer criterion. The
prevailing view, however, was to retain paragraph (3) in its present form which was
modelled on the 1980 Vienna Sales Convention.
[….]
B. Other Issues
1. Headings
191. The Working Group decided to retain the headings of chapters as forming part of the
model law. As regards the headings of the individual articles, the Working Group decided
to retain them for the mere purpose of easy reference. It was agreed to express that
understanding in a footnote or by other means, as follows: “Headings to individual articles
are provided for easy reference but they are not to be relied on in interpreting the text of
the article.” (*)
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Chapter I. General Provisions
Article 1. Scope of application (*)
(1) This Law applies to international commercial (**) arbitration, subject to any
multilateral or bilateral agreement which has effect in this State.
P 59
P 60
(2) An arbitration is international if:
(a) the parties to an arbitration agreement have, at the time of the conclusion of
that agreement, their places of business in different States; or
(b) one of the following places is situated outside the State in which the parties
have their places of business:

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 (i) the place of arbitration if determined in, or pursuant to, the arbitration
agreement;
(ii) any place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with which the subject–matter
of the dispute is most closely connected; or
(c) the subject–matter of the arbitration agreement is otherwise related to more
than one State.
(3) For the purposes of paragraph (2) of this article, if a party has more than one place of
business, the relevant place of business is that which has the closest relationship to
the arbitration agreement. If a party does not have a place of business, reference is
to be made to his habitual residence.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[….]
Article 1. Scope of application
[….]
3. Model law yields to treaty law
4. The Soviet Union suggests making the wording of paragraph (1) more precise by using,
instead of the language “subject to any multilateral or bilateral agreement which has
effect in this State” (i.e. in the State that has adopted the model law), the following
language: “subject to any international multilateral or bilateral treaty to which this State is
a party.”
5. In the view of CEC [Commission of the European Communities] it would be desirable to
provide a commentary on paragraph (1) of this article, in particular on the phrase “subject
to any multilateral or bilateral agreement which has effect in this State.” It appears very
important that there be an indication that the adoption of the model law by a State that
would be a party to the future Convention of Lomé would not modify the provisions on
arbitration to be contained in that Convention.
4. Substantive scope of application: “international commercial arbitration”
P 60 6. Norway expresses its assumption that a State in adopting the model law is not
P 61 prevented from extending its scope to cover, in addition to international commercial
arbitration, national and non–commercial arbitration. On the basis of this assumption
Norway accepts the limitation of the scope of application of the model law to international
commercial arbitration.
7. Sweden questions the approach of the model law to confine itself to international
commercial arbitration. It observes that States, like Sweden, already having well
functioning arbitration legislation may hesitate to introduce additional legislation based
on the model law. Noting the possible view that these States would be free to adopt
legislation based on the model law applicable also to purely national and non-commercial
arbitrations, Sweden points out a risk that such States may choose not to make the model
law the basis for amendments of their internal legislation or may do so only partly. In such
case the striving for harmonization would be negatively affected.
8. Argentina remarks that the wording “this Law applies to international commercial
arbitration” should be understood as a criterion which is sufficiently flexible and adequate
to the commercial nature of international arbitration.
[….]
10. The United States in a general comment points out that a proper definition of
“commercial” and “international” is particularly important since the usefulness of the
model law will depend on a wording that will ensure, without undue controversy,
application of the law to business transactions which, while carried out in a particular
country, involve the interests of international trade.
[….]
(b) “Commercial”
[….]
13. While Japan does not object to the presentation of the rule of interpretation on
“commercial” in the footnote to article 1 and to the suggestion contained in the rule that
the term be given a wide interpretation, it is of the opinion that the term “commercial”
would not be necessary when a State incorporates the model law in its domestic law. In
such case it would suffice to provide a clarification to the effect that the law deals with
disputes of a private nature.
14. The Federal Republic of Germany and the United States comment on the need to make
clear in the model law that it applies irrespective of whether the parties are commercial
persons. The Federal Republic of Germany, noting that such clarification was contained in

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 a previous draft and deleted by the Working Group, (16) proposes reinstating the
clarification and suggests the following text with a somewhat shorter list of examples of
commercial transactions than are contained in the present text:
“An arbitration is commercial if the matter of arbitration is in the widest sense
of a commercial nature, irrespective of whether the parties are ‘commercial
P 61 persons’ (merchants) under any given national law, e.g. any transaction for the
P 62 supply or exchange of goods, factoring, leasing, construction of works,
financing, banking, insurance, carriage of goods or passengers … etc.”
The proposal of the United States is to add the words “regardless of the nature or character
of the parties” at the end of the first sentence of the present text.
15. Some respondents propose additions to the rule of interpretation on “commercial” to
make it wider or clearer. Czechoslovakia proposes to add “inspection contracts to verify
the quality or quantity of goods.” The German Democratic Republic proposes to add a
reference to typical cases related to the law of the sea in addition to carriage of goods by
sea and, with respect to the clarity of the definition, raises the question whether the
present text indicates clearly enough that a commercial relationship may be of a
contractual or non–contractual nature. The United States proposes the addition of the
words “or services” after the word “goods” in the second sentence of the footnote.
16. Sweden states that the interpretation of the term “commercial” may raise problems
and that this term, if it is to be retained at all, should be interpreted as broadly as
possible.
17. The Federal Republic of Germany, Poland, Sweden and the United States observe that
the rule of interpretation on “commercial” may not be understood in a certain and uniform
way, particularly in view of the fact that it is contained in a footnote which is likely to be
given different weight and effect in the various legal systems. For this reason, the Federal
Republic of Germany, Sweden and the United States suggest the inclusion of the text of the
footnote into the body of the text of the model law. In support of this suggestion the United
States notes past difficulties stemming from the rather narrow meaning given to the term
“commercial” in some countries and the resulting importance of providing guidance with
regard to its interpretation.
(c) “International”
Width and certainty of the test of internationally
18. India, Norway, Poland, United States and IBA [International Bar Association] express the
view that the objective should be to achieve more clarity and certainty in delimiting the
notion of “international.” The United States and IBA point out that it is important that the
parties should know from the beginning whether an arbitration will be governed by the
model law or by some other regulations if the State has such other regulations on domestic
arbitration. The United States and IBA suggest reconsidering the proposal discussed at the
fifth, sixth and seventh sessions of the Working Group according to which the present
concept should be coupled with the agreement of the parties to define the arbitration as
international. (17) The United States draws attention to the many forms in which
international commerce is conducted. One form, for example, is when a corporation which
is doing business in another country opens an office in the foreign country. As a business
P 62 matter, it is suggested, the transaction is international regardless of whether the office
P 63 is in the form of a branch or an entity organized under local law. It is believed that in such
a situation contracts made by an office formed as a corporation would come within the
definition of sub-paragraph (c) because those contracts are related to more than one
State. However, to remove any doubt or later argument concerning this point, the United
States proposes the addition to sub-paragraph (c) of a new sentence which would provide
that, if the parties to an arbitration agreement have written into their contract a statement
that it involves interests in more than one State, they shall thereafter be precluded from
denying that it does. Parties would not need to add such a statement to their contract to
have the contract be within sub–paragraph (c), but if they did include such a statement a
party could not later contend that the contract was not “international” within the meaning
of the model law.
19. Japan states that the definition of the term “international” is acceptable.
20. Under the assumption that there may exist a national regulation, different from the
model law, for national or non–commercial arbitration, Norway suggests that the model
law ought not to preclude the parties from agreeing that the arbitration will be in
accordance with such regulation even if their relationship is international and commercial.
Furthermore, as the criteria for defining an arbitration as international and commercial
are vague, the parties to the arbitration agreement may wish to make provision for the
choice of law on arbitration in the arbitration agreement. Norway therefore suggests
including a new provision in article 1 enabling the parties, subject to the territorial scope
of application of the model law, to stipulate whether the model law or another law applies.
Parties' places of business in different States (article 1, paragraph 2(a))
21. Sweden states that the interpretation of the term “international” may raise problems
and that this term, if it is to be retained at all, should be interpreted as broadly as

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 possible. Thus, a dispute should be considered international even when it has arisen in an
operation conducted between the parties having their places of business in one State if
one party is a subsidiary company of a foreign company, and that according to the present
wording of paragraph (2)(a) and (b) such dispute would not be considered international. It
is proposed to delete paragraph (3) and modify paragraph (2)(a) so that, for an arbitration
to be considered international, it would suffice that the parties have their principal places
of business in different States.
Places, other than place of business, determining international character of arbitration
(article 1, paragraph 2(b))
22. Czechoslovakia suggests deleting the text of paragraph (2)(b) in order to avoid
submitting disputes between parties from one State to an international arbitration.
P 63 23. The Federal Republic of Germany, noting that the Working Group at its last session
P 64 decided to include in paragraph (2)(b)(i) the words “or pursuant to,” (18) raises the
question whether these words are directly related to the possibility envisaged under
article 20(1) that the place of arbitration, failing agreement by the parties, is to be
determined by the arbitral tribunal. If this is so, the arbitral tribunal would have the
option of making international arbitration proceedings out of proceedings that would
otherwise have no international connection, solely by determining the place of arbitration.
In the view of the Federal Republic of Germany this is not intended to be the case; thus,
the expression “or pursuant to” should probably be interpreted to mean that, even though
the place of arbitration is not expressly defined in the arbitration agreement, the place of
arbitration desired by the parties can still be derived from the contents of the agreement.
24. The Federal Republic of Germany observes that “a substantial part of the obligations of
the commercial relationship” as referred to in paragraph 2(b)(ii) need not be connected
with the subject–matter of the dispute or even be a subject of the arbitration agreement;
the international character of an arbitration should depend solely on the test of the
second part of paragraph 2(b)(ii), i.e. the connection between the subject–matter of the
dispute and a place outside the State in which the parties have their places of business.
Thus, it is proposed to delete the first part of the sentence in paragraph 2(b)(ii) given the
fact that other provisions of article 1(2) seem to guarantee that virtually any dispute with
any kind of international connection is covered by the model law.
Yet other international link (article 1, paragraph 2(c))
25. The United States is of the view that the provision of paragraph 2(c) is helpful in
achieving a definition that is broad and comprehensive. It is noted that this provision
speaks of “subject–matter…related to more than one State” and that it might be argued
that this means something related to the State itself, i.e. its government. The United
States, suggesting that it should be made clear that the provision also relates to private
interests in a State, recommends that it be amended to refer to “subject–matter… related
to commercial interests in more than one State.”
26. Poland is of the opinion that the wording of paragraph (2)(c) is too general and might
lead to divergent interpretations. Consequently, it is proposed to replace the provision by
a more precise one.
Determination of place of business (article 1, paragraph (3) [para. 4 in the final text])
27. Cyprus suggests deleting the word “relevant” in paragraph (3). It notes that paragraph
(2)(a) defines an arbitration as “international” if the parties to an arbitration agreement
have, at the time of the conclusion of that agreement, “their places of business” in different
States; therefore, if a party has more than one place of business, the “place of business” —
and not the relevant place of business — for the purposes of paragraph (2), is that which
has the closest relationship to the arbitration agreement.
P 64
P 65
28. The Federal Republic of Germany suggests deleting the word “habitual” in the second
sentence of paragraph (3). In relation to its suggestion (noted in paragraph 14, above) that
the model law should apply both to businessmen and non–businessmen it further suggests
that, in principle, the place of residence should have the same significance as the place of
business. To be precise, it would be necessary to include a reference to the place of
residence each time the place of business is referred to in paragraph (2). However, to avoid
repetitive references there should be a general provision equalizing both terms; it is
remarked that the present formulation of the second sentence of paragraph (3) expressing
such equality between the place of business and the place of residence may not be
appropriate since it could be understood as referring only to the case covered by the first
sentence of paragraph (3), i.e. where a party has more than one place of business or place
of residence. The following formulation of paragraph (3) is proposed:
“For the purpose of paragraph (2) of this article, if a party does not have a place
of business, reference is to be made to his residence. If a party has more than
one place of business or residence, the relevant place of business or residence
is that which has the closest relationship to the arbitration agreement.”
29. As noted in paragraph 21, above, Sweden proposes the deletion of paragraph (3) in
connection with its suggestion for the modification of paragraph (2)(a).

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 A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[….]
Article 1. Scope of application
[….]
2. Model law yields to treaty law
2. AALCC [Asian-African Legal Consultative Committee] recommends replacing in paragraph
(1) the words “which has effect in this State” by the words “which is in force in this State.”
3. Substantive scope of application: “international commercial arbitration” “Commercial”
3. With respect to the definition of “commercial,” Canada recognizes that, although it is not
usual statutory drafting practice to place definitions in footnotes, any jurisdiction which
decides that a definition of “commercial” is necessary in its arbitration legislation will
apply its own techniques of drafting and interpretation in that regard. It is the view of
Canada that business activities of governments and their agencies, including sovereign risk
loans, are included in the definition of “commercial.” If it is not intended that such
P 65 governmental activities or loans be covered by the definition, this should be made
P 66 explicit. It would seem preferable to provide that such activities come under the model
law, leaving it open to a government which wishes to exempt itself to identify this fact in
its legislation.
4. AALCC recommends that, instead of an illustrative list, a definition of the term
“commercial” should be given and included in the text of article 1 itself.
5. In the view of ICC [International Chamber of Commerce], the technique of leaving the
definition of the term “commercial” in a footnote is not advisable. The term is essential to
the scope of the model law and should find its place in the law itself. ICC is not of the
opinion that the law must bring about a harmonization of the concept “commercial.” On
the contrary, various interpretations and meanings given by different countries must be
respected, but the law should elaborate on the definitions so that the examples which will
eventually be included in the model law are precise and provide guidance to the persons
involved in arbitration. ICC adds that it seems indispensable for the usefulness of the
model law to indicate whether it applies to commercial transactions undertaken by
sovereign States and State owned enterprises.
“International”
6. As to the term “international,” the view of ICC is that the present compromise solution in
article 1(2) is acceptable. ICC interprets it as covering the common case where two parties
having their places of business in the same country enter into a contract which has to be
performed abroad.
Places, other than place of business, determining international character of arbitration
(article 1, paragraph (2)(b))
7. Canada notes that some of those consulted, including its provincial governments,
expressed concern that under paragraph (2)(b) an arbitration became international merely
by virtue of the fact that the place of arbitration was selected outside of the jurisdiction.
This could permit a type of “forum shopping” which could prove unacceptable to some
jurisdictions.
Yet other international link (article 1, paragraph (2)(c))
8. In the view of Canada, paragraph (2)(c) is too vague. Canada is uncertain what the sub-
paragraph is intended to accomplish and believes it is unlikely that many jurisdictions,
especially those that follow the common law, would enact such a provision.
9. Yugoslavia is of the opinion that the definition of the term “international” contained in
article 1 is too broad since, according to paragraph (2)(c), an arbitral award is considered
international where both parties have their places of business in the same State provided
that “the subject-matter of the arbitration agreement is otherwise related to more than
one State.” In addition, the definition of international commercial arbitration implies that
the arbitral tribunal may examine issues of substance in order to determine its
competence, which is contrary to the existing international practice. Since such a solution
could create complex situations it is suggested simplifying article 1 so as to ensure
P 66 effective determination of the arbitral tribunal's competence. The solutions contained in
P 67 article 1 are contrary to Yugoslav laws and regulations, and it is feared that this can be
one of the reasons for a negative attitude towards the model law as a whole. The definition
contained in article 1 is reflected particularly in articles 35 and 36 according to which a
domestic award may in some cases be subject to the exequatur procedure, which is
contrary to the practice in Yugoslavia as well as in many other countries. It is suggested
that the definition contained in article 1 should be re–examined and re–formulated in
accordance with the existing international practice and the solutions provided in existing
conventions relating to recognition and enforcement of foreign arbitral awards.
A/CN.9/263/ADD.3 (31 JULY 1985) (COMMENTS OF EGYPT)

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 I. General Comments
A. The model law and national arbitration
4. In conformity with the objectives of the body initiating it, the draft is only concerned
with the interests of international commerce, putting forward a model law on arbitration
which is likely to be accepted by a large majority of countries and thus achieving a certain
standardization of the law on this subject. It is therefore restricted to international
commercial arbitration without concerning itself with the fact that any State adopting it
would have two laws in its legislation (both of them national), one governing so-called
national arbitration which does not fall within the definition of “international” set out in
article 1 paragraph 2, and the other concerning international arbitration as defined in that
paragraph. Now it would not be unusual for a State wishing to avoid this duplication to
prefer to extend the scope of the model law by incorporating both categories of arbitration
within its provisions. A State taking this course would be faced with difficulties which it
could only overcome by introducing amendments into the model law which could lead to
disparity between legislations and conflicts of laws. We particularly have in mind the
provisions of the model law relating to public policy in certain States, such as, for
example, the non-statement of reasons for the arbitral judgment, the unlimited right of the
parties to authorize the arbitrator to make a judgment ex aequo et bono, the non–
requirement for an odd number of arbitrators and the restriction of the jurisdiction of the
courts over the arbitral proceedings. These exceptions to the requirements of public policy
could, in a spirit of internationalism, be tolerated by the State as regards external
relations, but at national level the State is more sensitive with regard to its public policy
requirements. There lies the problem for a State wishing to combine the two categories of
arbitration under the umbrella of the model law. The problem has not been studied by the
Working Group. At this late stage we will confine ourselves to drawing attention to it
without suggesting that the Commission should consider it, since there would be objections
that this is a particular problem which each State concerned will resolve in its own fashion.
Nevertheless, it also constitutes a breach which could admit disparities in national
legislations and thus might threaten the work of standardization.
[….]
P 67
P 68
C. “Commercial” and “international”
8. With regard to the term “commercial,” Egypt, although among those countries which
make a distinction between commercial and non–commercial persons and between
commercial and civil acts, is in favour of the content of the text of the note relating to
article 1 paragraph 1, for it proposes an acceptable compromise on this subject between
the different juridical systems. Although Egypt is fundamentally in agreement, it would
have difficulty, however, in including such a note in the model law when it adopts it, for it
is not customary in Egyptian legislation to include notes on the texts of laws or to cite
examples as an aid to their interpretation. Egypt therefore proposes that a definition of
the term “commercial” reproducing the content of the note without the examples referred
to should be inserted in article 2. Of course, these examples would be useful in clarifying
the too general terms of the proposed definition, but such clarification would be better
placed in a commentary on the model law or in an accompanying explanatory note.
9. With regard to the term “international,” Egypt is in favour of the system suggested in
article 1 paragraph 2, which sets out in subparagraph (a) a general criterion and adds in
subparagraph (b) other situations which tend to ease the rigidity of the general criterion
and thus extend the scope of the concept of “international.” In our view this system is a
reasonable compromise between those extreme opinions which tend towards an excessive
extension or restriction of the scope of the model law.
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 1. Scope of application
[….]
1. Article 1 of the draft text of a model law on international commercial arbitration
(hereinafter referred to as “the model law”) deals with the intended scope of application of
the model law. In particular, it lays down the substantive field of application, which is, in
accordance with the Commission's mandate to the Working Group, (12) “international
commercial arbitration.” Before considering this substantive scope of application, some
general comments on the form of the model law and on further aspects of its application
are made.
A. “This Law applies …”
I. The model law as “this Law” of a given State
2. The mode of unification and improvement of national arbitration laws envisaged by the
P 68 Working Group, subject to final decision by the Commission, is that of a model law. The
P 69 text, in its final form, would be recommended by the Commission and then by the
General Assembly to all States for incorporation into their national legislation.

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 3. To facilitate such incorporation, the text has been drafted in a form in which it could be
enacted in a given State. The commentary follows this direction towards a particular State
and refers to “this State,” (13) where “this Law” would apply, as State X.
[Editors' Note: Paragraphs 4–6 concern the territorial scope of application, see pp. 113–14
infra; paragraphs 7–8 concern the question of lex specialis, see p. 142 infra.]
B. Model law yields to treaty law
9. According to paragraph (1) of article 1, “this Law” applies “subject to any multilateral or
bilateral agreement which has effect in this State.” This proviso might be regarded as
superfluous since the priority of treaty law would follow in most, if not all, legal systems
from the internal hierarchy of sources of law. Nevertheless, it has been retained as a useful
declaration of the legislative intent not to affect the validity and operation of multilateral
and bilateral agreements in force in State X.
10. The proviso would be of primary relevance with regard to treaties devoted to the same
subject-matter as that dealt with in the model law. Prominent examples of such
multilateral treaties are the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards [330 U.N. T.S. 38] (New York, 1958; hereinafter referred to as “1958 New York
Convention”), the European Convention on International Commercial Arbitration [484
U.N.T.S. 349] (Geneva, 1961; hereinafter referred to as “1961 Geneva Convention”), the
Convention on the Settlement of Investment Disputes between States and Nationals of
Other States [575 U.N.T.S. 159] (Washington, 1965; hereinafter referred to as “1965
Washington Convention”), and the Inter-American Convention on International Commercial
Arbitration [14 I.L.M. 339] (Panama, 1975). (19)
11. It should be noted, however, that the scope of the proviso is wider in that it also covers
treaties which are devoted to other subject–matters but contain provisions on arbitration.
An example would be the United Nations Convention on the Carriage of Goods by Sea, 1978
(Hamburg), which, by its article 22(3), reduces the effect of an original agreement on the
place of arbitration by providing some alternative places at the option of the claimant.
P 69 (20) This provision, if in force in State X and applicable to the case at hand, would prevail
P 70 over article 20 of the model law which recognizes the freedom of the parties to agree on
the place of arbitration and gives full effect to such choice, whether made before or after
the dispute has arisen.
C. Substantive scope of application: “International commercial arbitration”
12. The substantive scope of application of the model law, as expressed in its title, is
“international commercial arbitration.” This widely used term consists of three elements
which are in the model law defined, illustrated or accompanied by a declaratory remark.
I. “Arbitration”
[Editors' Note: The discussion of the term “arbitration” appears in the section on Article 2, pp.
169–70 infra.]
II. “Commercial”
16. The term “commercial” has been left undefined in the model law, as in conventions on
international commercial arbitration. Although a clear–cut definition would be desirable,
no such definition, which would draw a precise line between commercial and non-
commercial relationships, could, be found. Yet, it was deemed undesirable to leave the
matter to the individual States or to provide some guidance for uniform interpretation
merely in the session reports of the Working Group or any commentary on the model law.
As an intermediate solution, a footnote is annexed to article 1 as an aid in the
interpretation of the term “commercial.”
17. As regards the form, there may be some uncertainty as to the addressee and the legal
effect of this footnote, since such legislative technique is not used in all systems. At the
least, the footnote could provide some guidance to the legislator of a State even where it
would not be reproduced in the national enactment of the model law. A more far reaching
use, which the Commission may wish to recommend, would be to retain the footnote in the
national enactment and, thus, to provide some guidance in the application and
interpretation of “this Law.”
18. The content of the footnote reflects the legislative intent to construe the term
P 70 commercial in a wide manner. This call for a wide interpretation is supported by an
P 71 illustrative list of commercial relationships. Although the examples listed include
almost all types of contexts known to have given rise to disputes dealt with in international
commercial arbitrations, the list is expressly not exhaustive. Therefore, also covered as
commercial would be transactions such as supply of electric energy, transport of liquified
gas via pipeline and even “non–transactions” such as claims for damages arising in a
commercial context. Not covered are, for example, labour or employment disputes and
ordinary consumer claims, despite their relation to business. Of course, the fact that a
transaction is covered by the model law by virtue of its commercial nature does not
necessarily mean that all disputes arising from the transaction are capable of settlement
by arbitration (as to the requirement of arbitrability, see commentary to article 7, para. 5
[in the subsection on Article 1(5), p. 142 infra.]).
19. The footnote, while not giving a clear-cut definition, provides guidance for an

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 autonomous interpretation of the term “commercial”; it does not refer, as does the 1958
New York Convention (article I(3)), to what the existing national law regards as commercial.
Therefore, it would be wrong to apply national concepts which define as commercial, for
example, only those types of relationship dealt with in the commercial code or only those
transactions the parties to which are commercial persons.
20. This latter idea of preclusion had been expressed in a previous draft of the footnote by
the words (following the first sentence): “irrespective of whether the parties are
‘commercial persons’ (merchants) under any given national law.” This wording, which was
exclusively intended to clarify that the commercial nature of the relationship is not
dependent on the qualification of the parties as merchants (as used in some national laws
for distinguishing between commercial and civil relationships), was nevertheless deleted
lest it might be construed as dealing with the issue of State immunity. (22)
21. In this connection, it may be noted that the model law does not touch upon the
sensitive and complex issue of State immunity. For example, it does not say whether the
signing of an arbitration agreement by a State organ or governmental agency constitutes a
waiver of any such immunity. On the other hand, it seems equally noteworthy that the
model law covers those relationships to which a State organ or governmental entity is a
party, provided, of course, the relationship is of a commercial nature.
III. “International,” paragraph (2)
22. In accordance with the mandate of the Commission, the model law is designed to
establish a special regime for international cases. It is in these cases that the present
disparity between national laws creates difficulties and adversely affects the functioning
of the arbitral process. Furthermore, in these cases more flexible and liberal rules are
needed in order to overcome local constraints and peculiarities. Finally, in these cases the
interest of a State in maintaining its traditional concepts and familiar rules is less strong
P 71 than in a strictly domestic setting. However, despite this design and legislative self-
P 72 restraint, any State is free to take the model law, whether immediately or at a later
stage, as a model for legislation on domestic arbitration and, thus, avoid a dichotomy
within its arbitration law.
23. Unless a State opts for such unitary treatment, the test of “internationality” set forth in
article 1(2) is of utmost importance and crucial for the applicability of “this Law.” Since it
determines whether a given case would be governed by the special regime embodied in
the model law or by the law on domestic arbitration, the definition should be as precise as
possible so as to provide certainty to all those concerned. Unfortunately, the search for an
appropriate test reveals a dilemma: A precise formula tends to be too narrow to cover all
cases encountered in the practice of international commercial arbitration; and the wider
the scope of the test the more it is likely to lack precision. The solution presented in
paragraph (2) starts with a rather precise criterion in sub–paragraph (a), which covers the
great bulk of worthy cases, and then widens its scope in sub–paragraphs (b) and (c) with an
increasing reduction in precision.
Parties' places of business in different States, sub–paragraph (a)
24. The basic criterion, laid down in sub-paragraph (a), is modelled on the test of
internationality adopted in article 1(1) of the United Nations Convention on Contracts for
the International Sale of Goods (Vienna, 1980; (23) hereinafter referred to as “1980 Vienna
Sales Convention”). It uses as determining factor the location of the places of business of
the parties to the arbitration agreement. Accordingly, other characteristics of a party such
as its nationality or place of incorporation or registration are not determinative.
25. Since a given case is international if the parties have their places of business “in
different States,” it is irrelevant whether any of these States is State X (i.e. the one enacting
“this Law”). Included are, thus, any arbitration between “foreigners” (e.g. parties with place
of business in State Y and State Z) and any arbitration between a party in State X and a
party in a foreign State (Y). However, whether and to what extent this Law would apply in
any such international case is a different question, to be answered according to other rules
on the [territorial] scope of application (discussed above, paras. 4–6 [appearing in the
subsection on Article 1(2), pp. 113–14 infra]). While articles 8, 9, 35 and 36, dealing with
recognition of arbitration agreements and awards by the courts of State X, apply without
regard to the place of arbitration or any choice of procedural law, the remaining bulk of
provisions, dealing in particular with arbitration procedure, would apply only if the case
falls within the territorial scope of application.
Other relevant places, sub–paragraph (b)
26. Either of the places listed in sub–paragraph (b) establishes an international link if
situated in a State other than the one where the parties have their places of business.
P 72 Again, it is without relevance to the test of internationality whether any of these States is
P 73 State X. Thus, an arbitration would be international under sub–paragraph (b) in any of
the following situations: Parties' places of business in State X and other relevant place in
State Y; parties' places of business in State Y and other relevant place in State X; parties'
places of business in State Y and other relevant place in State Z. However, whether in fact
“this Law” would apply in full depends, again, on whether the case falls within the
territorial scope of application. (24)

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 27. The places listed in sub–paragraph (b) relate either to the arbitration (sub-paragraph
(i)) or to the subject–matter of the relationship or the dispute (sub–paragraph (ii)). The first
relevant place is the place of arbitration, as the only arbitration–related criterion. Thus,
the international link would not be established by any other arbitration-related element
such as appointment of foreign arbitrator or choice of foreign procedural law (if
permissible).
28. The place of arbitration is relevant if determined in, or pursuant to, the arbitration
agreement. Where the place of arbitration is specified in the arbitration agreement, the
parties know from the start whether their case is international under sub–paragraph (i).
Where the place of arbitration is determined pursuant to the agreement, there may be a
long period of uncertainty about this point. It is submitted that this requirement would not
be met by a stipulation authorizing the arbitral tribunal to determine the place of
arbitration.
29. Under sub–paragraph (ii), internationality is established if a substantial part of the
obligations of the commercial relationship is to be performed in a State other than the one
where the parties have their places of business. This would be the case, for example, where
a producer and a trader conclude a sole distributorship agreement concerning a foreign
market or where a general contractor employs an independent sub–contractor for certain
parts of a foreign construction project. While the arbitration agreement must cover any
dispute or certain disputes arising out of this relationship, it is not necessary that the
dispute itself relates to the international element.
30. Even where no substantial part of the obligations is to be performed abroad, an
arbitration would be international under sub-paragraph (ii) if the subject–matter of the
dispute is most closely connected with a foreign place. Since instances of this kind will be
very exceptional, one may accept the disadvantage of this criterion which lies in the fact
that the international character cannot be determined before the dispute arises.
Yet other international link, sub–paragraph (c)
31. The final criterion, laid down in sub–paragraph (c), is that “the subject–matter of the
arbitration agreement is otherwise related to more than one State.” This “residual” test is
P 73 designed to catch all worthy cases, not covered by sub-paragraphs (a) or (b); it is apparent
P 74 that this wide scope is accompanied by a considerable degree of imprecision. It may be
added that “the subject–matter of the arbitration agreement” is not to be construed as
referring to the arbitration itself but to the substantive matters that may be subject to
arbitration.
Determination of place of business, paragraph (3)
32. If a party has two or more places of business, one of which is in the same State as is the
other party's place of business, it is necessary to determine which of his places is relevant
for the purposes of paragraph (2). According to paragraph (3), first sentence, it is the one
which has the closest relationship to the arbitration agreement. An instance of such close
relationship would be that a contract, including an arbitration clause, is fully negotiated
by the branch or office in question, even if it is signed at another place (e.g. the principal
place of business).
33. As indicated in this example, the location of the principal place of business (or head
office) is irrelevant. If one were to take the principal place of business as the decisive
criterion, one would have a somewhat wider application of the model law since it would
cover also those cases where the “closely connected” place of business, but not the
principal place of business, is in the same State as is the other party's place of business.
Nevertheless, the criterion of “closest connection” was adopted because it was thought to
reflect better the expectations of the parties and, in particular, for the sake of consistency
with the 1980 Vienna Sales Convention (article 10(a)). (25)
34. The second sentence of paragraph (3) deals with the rare situation that a person
involved in a commercial transaction does not have an established “place of business.” In
such case, his habitual residence would be the decisive place for the purposes of
paragraph (2).
SUMMARY RECORD A/CN.9/SR.306-.307, .319, .330, .332
[3 June 1985, 2:30 p.m , A/CN.9/SR.306]
1. The CHAIRMAN [Mr. LOEWE (Austria)] invited the Commission to consider whether it
wished the model law to be applied to international commercial arbitration and, if so, how
were international arbitration and commercial arbitration to be defined.
2. Mr. BONELL (Italy), speaking on a point of procedure, proposed that the territorial scope
of the model law should be clarified at that point, since it would have many implications
on subsequent discussions of the text.
3. The CHAIRMAN suggested that the Commission should perhaps be allowed to discuss the
draft text in order to ascertain the opinion of the representatives thereon and hence the
role to be played by that text.
P 74
P 75
[Editors' Note: Paragraphs 4–6 of this document concerned whether the text being drafted

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 should be a model law or a convention. They appear in the section on Purposes and
Procedures of the Commission, p. 1228 infra.]
7. Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration) said that
the Centre was eager to define the scope of application of the model law and to have some
kind of definition of the word “commercial.” He also proposed that the footnote to article
1(1) should be incorporated into the text.
8. MR GRIFFITH (Australia) said that they should attempt to define [commercial?]
arbitration within the text and not by footnote. He proposed that “commercial” should be
defined as “arising out of trade and commerce.”
9. The CHAIRMAN said that he understood there was general agreement on article 1(1),
except for the definition of “commercial.” Noting that all the statements so far had been in
favour of a definition within the text, he suggested that it should be briefer than the
description of what was commercial contained in the footnote, but felt that a very brief
description such as “trade and commerce” would serve little purpose.
10. Mr. TORNARITIS (Cyprus) said that it was not customary to put footnotes in a draft law.
Moreover, it was dangerous to attempt to define too closely: omnis definitio periculosa est.
By definition “commercial” was intended to refer to transactions between people in the
ordinary course of commerce. If it were not closely defined, future interpreters would have
to apply the ordinary meaning to it. It would, however, be better if another means were
found of describing “commercial,” such as “dealings in commerce and trade.”
11. Mr. SEKHON (India) said that a way out of the difficulty of arriving at a comprehensive
definition of “commercial” would be to append an explanation to the draft model law, thus
leaving room for further additional interpretations.
12. Mr. EYZAGUIRRE (Observer for Chile) said that he did not favour defining the term
“commercial” because it was understood in widely differing ways in different legal systems
throughout the world. He considered that the footnote would serve to ensure adequate
understanding.
13. Mr. RUZICKA (Czechoslovakia) said that his delegation was satisfied with the concept of
“commercial” as already included in the draft model law. He felt it was not sufficient to
give a few examples of cases of commercial transactions; the list should be expanded,
although it could never be exhaustive. However, his delegation did not insist on an
expanded list, and would accept it as it stood.
14. Mrs. RATIB (Egypt) said that the difference between commercial and non-commercial
transactions was generally understood; still, she approved the contents of the footnote as
an acceptable compromise to accommodate different legal systems. It would, however, be
P 75 difficult to incorporate into Egyptian law because it was not customary to include
P 76 footnotes in legislation. She suggested that a definition of “commercial,” without
examples, should be included in article 2. Examples might usefully be given in a
commentary or in an explanatory note.
15. Mr. KNOEPFLER (Observer for Switzerland) said that in drafting a model law it was
possible to accept a more flexible approach. If the form of a convention was adopted, a
precise definition in the body of the text would have a restrictive effect. For the model law,
he favoured the system which had been used.
16. Mr. MAGNUSSON (Sweden) had doubts as to whether the model law should be restricted
only to international arbitration and his first choice would be to omit the words
“international” and “commercial” altogether. In Sweden, there were already in existence
good arbitration systems and there would be reservations about introducing new
complexities based on the model law. However, following the lengthy discussions in the
Working Group, his delegation could accept the restriction on the scope of application and
the concepts of “international” and “commercial,” but it was important to interpret those
terms as broadly as possible. With regard to “commercial,” he found it strange that the
interpretation should be in a footnote and saw a risk of divergent interpretations. An
attempt should be made to define the term in the text but he was not optimistic about the
possibility of success.
17. Sir Michael MUSTILL (United Kingdom) said that it was impracticable to attempt to
define “commercial” precisely and it was better to be content with a general expression in
the text. If the term were to be explained outside the text, his delegation preferred it to be
in a commentary rather than in a footnote. It would be open to individual States to define
the term, if required; that would not be a departure from the spirit of the model law.
18. The CHAIRMAN said that an agreed commentary could not be achieved for practical
reasons. Commentaries were really intended for the private use of delegations and
contained a variety of definitions. The footnote to article 1 was in the nature of an incipient
agreed commentary.
19. Sir Michael MUSTILL (United Kingdom) said that the matter was of considerable
importance. He hoped that, with the assistance of the Secretariat, a record of the
proceedings (constituting travaux préparatories) would serve as guidance to legislators.
20. Mr. HOLTZMANN (United States of America) said that the definition of the term
“commercial” was a key issue. There were parts of the world where “commercial” referred

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 only to trade transactions by merchants and where there were wide exclusions. The model
law was intended to cover trade and commerce in the broadest possible sense. He felt that
brevity was not the principal goal and might, in the circumstances, be the enemy of clarity.
The footnote might be lost when the text was considered by courts. As for the travaux
préparatories, they would not be available to the courts. In his view, the footnote should be
brought into the text because the details in question were important at the drafting stage
and would serve to avoid subsequent litigation. He found the footnote as written
P 76 satisfactory, but suggested two alterations. The first was to add at the end of the first
P 77 sentence the words “regardless of the nature or character of the parties.” The second
was to expand the first item in the list of examples to read “any trade transaction for the
supply or exchange of goods or services.”
21. Mr. SAWADA (Japan) found the wording of article 1 acceptable. His delegation realized
that the word “commercial” was ambiguous, but to define it would be impracticable. He
did not feel that the addition of “trade and commerce” would clarify the matter. He
suggested that examples should be included in a commentary.
22. Mr. MOELLER (Observer for Finland) said that the model law should be limited to
international and commercial arbitration. He favoured a broad definition of “commercial”
and supported the United States amendments. He felt that the footnote as drafted should
be included in the text, unless that were to have a restrictive effect on the scope of the
model law. He was not in favour of its inclusion in a commentary, since the legal effect of a
commentary was even less clear than that of a footnote.
23. Mr. BONELL (Italy) supported the restriction of the scope of the application of the
model law to international and commercial arbitration. Since there was no consensus
regarding the precise meaning of “commercial,” the footnote—or the report on the session
—would serve as a guideline to interpret the term in the widest possible sense. He recalled
that the main purpose of the work on the present topic was to achieve the highest possible
uniformity in commercial arbitration throughout the world. If the term “commercial” were
too closely defined, the existing national legislation would prevent certain countries from
incorporating the model law. However he found the United States suggestion useful in that
it made it clear that the commercial character of the arbitration did not depend upon the
commercial status of the parties to it.
24. Mr. EYZAGUIRRE (Observer for Chile) agreed that in legislative drafting any definition
was dangerous. It might, however, be possible to work out some general criterion for
inclusion in the text without resorting either to a definition or to examples. An appended
note or commentary would have no force of law in his country's legal system.
25. Mr. SCHUETZ (Austria) agreed with previous speakers regarding the advantages of the
form that had been adopted. The Working Group had discussed the matter at length and
the text as it stood, with the footnote, seemed to offer the best possible solution. The
footnote made it clear that the term “commercial” should be interpreted broadly and
flexibly, which was the most important point. His delegation could accept the United
States proposal to insert the words “or services” and “regardless of the nature or character
of the parties” although the Working Group had decided to delete the latter concept.
26. Mr. STALEV (Observer for Bulgaria) said that the clarity and certainty required for the
application of the model law to actual international commercial disputes could only be
achieved by means of a precise definition of the term “commercial.” That definition should
be in the text of the model law itself, and the proper place for it was article 2, which dealt
P 77 with definitions. Regarding the contents of the definition, he could support the additions
P 78 suggested by the United States delegation. The list of contracts given in the footnote
should also include the contemporary contracts for international economic co-operation of
all kinds.
27. Mr. ILLESCAS ORTIZ (Spain) felt that since any list of trade transactions, of the kind given
in the footnote, would be constantly outdated and could never be complete, a conceptual
approach was preferable. Article 36 of the model law, which related to grounds for refusing
recognition or enforcement of an arbitral award, offered an opportunity to provide for
exclusions.
28. Mr. TANG Houzhi (China) said that the Working Group had spent some two years
discussing the term “commercial.” Since it had already decided to delete the words
“irrespective of whether the parties are ‘commercial persons’,” the present suggestion that
the idea should be restored could well lead to a further two years' discussion. The
Commission was unlikely to succeed where earlier efforts to arrive at an agreement had
failed. The area was a sensitive one for many States and it would be better to leave the
text as it stood, with the footnote, so that the draft could be finalized as soon as possible.
As far as the scope of application was concerned, his delegation would prefer territorial
criteria.
29. Mr. SAMI (Iraq) urged that the scope of application of the model law should be confined
to international transactions. Since the Commission was attempting to draw up a model
law for adoption by all States regardless of differing legal systems, it would be appropriate
not to determine the meaning of the term “commercial” but rather to leave the issue to
national legislations. States applied many different criteria to define commercial
transactions. A list of the kind in the footnote could never be exhaustive and a number of

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 delegations had already given examples of new commercial transactions that should be
included. He would not object to maintaining the footnote since it could help to guide
legislators. He would, however, oppose the proposal to include it in the text of article 1(1).
30. Mr. PAES de BARROS LEAES (Brazil) said that it must be made clear that the model law
was confined to international commercial arbitration. He agreed that it would be
dangerous to attempt to define “commercial” in the text itself and therefore supported the
listing of examples in a footnote.
31. Mr. SCHUMACHER (Federal Republic of Germany) felt that, given its importance, the
term “commercial” should be defined in article 1 rather than in a footnote. At the same
time, he appreciated the difficulty of finding a suitably short definition and he would not
therefore oppose the footnote form. It was, however, essential to make it clear that the law
would apply irrespective of whether the parties were commercial persons or not. The
phrase to that effect in the previous draft had been deleted on the grounds that it touched
on the question of State immunity. However, if a State had already agreed to arbitration in
a contract, the question of immunity did not arise.
The meeting was suspended at 4 P.M. and resumed at 4.25 P.M.
32. Mr. GOH (Singapore) urged that the model law should state clearly that it applied to
P 78 international commercial arbitration. In addition, a definition of the term “commercial”
P 79 somewhere in the model law would help to reduce disputes at a later date, when the
law was in force. He believed it was not impossible to work out a satisfactory definition
which should not be unduly restrictive.
33. Mr. SZASZ (Hungary) said that his delegation also would have liked a clear-cut
definition of “commercial” in the text, but since it was unable to offer one it believed that
it must be satisfied with the text as it stood. The footnote, or some other guidance, would
be better than nothing. In Hungary, it would not have any legal standing, although he did
not consider that that was its intent anyway. It would, however, have a helpful unifying
effect and it was possible that other national legislations might be able to agree on a
definition for inclusion in the text. Those States whose legislative techniques allowed them
to put the footnote as it stood into the body of the text were, of course, free to do so. The
solution put forward by the Working Group was, therefore, satisfactory. He did not favour
introducing more examples since it might then appear that the list was intended to be a
full definition.
34. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that his delegation too
understood fully the obstacles in the way of defining the term “commercial.” Given the
difficulty of finding any solution satisfactory to all States, it had supported the Working
Group's decision. He noted, however, that the relationships mentioned in the footnote
referred only to transactions, and asked whether that meant that the model law would not
apply to relationships not of a contractual nature. Article 7(1) referred to a “defined legal
relationship, whether contractual or not.” It would be expedient to make that point in the
footnote as well.
[Editors' Note: Paragraph 35 addressed the question of arbitrability and appears in the
subsection on paragraph 5 of Article 1, p. 143 infra.]
36. Mrs. VILUS (Yugoslavia) said that her country had not been a member of the Working
Group and she was not therefore familiar with all the problems encountered in trying to
define the term “commercial.” She was ready to support the Egyptian proposal and the
additions proposed by the United States. She found the arguments in favour of a list
convincing, although a definition without examples might be preferable. Since it was
difficult to decide without seeing a text, she suggested that a drafting group should be set
up.
37. Mr. STROHBACH (German Democratic Republic) said that his delegation did not
altogether approve of the technique of leaving the explanation of the term “commercial” in
the footnote but realized how difficult it would be to find an adequate solution in the near
future. It was more important, therefore, to improve the footnote slightly in order to make
it more precise. His delegation would support the additions proposed by the United
States, together with a statement to the effect that the commercial relationships could be
contractual or non–contractual. That would not be a major change and would be in line
with the general approach in the Working Group.
P 79 38. Mr. ROEHRICH (France) said that the definition of “commercial” must be realistic and
P 80 supported the Working Group's approach with the additions to the footnote suggested
by the United States. [….] He agreed with the Hungarian representative that the footnote
was indicative of the wide scope of article 1(1) while recognizing that some States might
wish to exclude certain activities, such as financing or investment, from the scope of
international arbitration. With regard to the point raised by the USSR representative on
non–contractual relationships, it was perhaps adequately covered by article 7(1) and
therefore need not appear also in article 1.
39. The CHAIRMAN, summing up the discussion on paragraph 1, said that the majority of
speakers had favoured that paragraph being confined to the commercial field but some
had wanted a slight expansion in the text of the definition of “commercial.” An equal
number had not favoured that proposal because they feared that it would lead to

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 problems with domestic legislation, in which the term “commercial” was used in many
other contexts; they had therefore supported the retention of the footnote. He therefore
suggested, as a preliminary for further work, that the possibility should be considered of
making paragraph 1 more explicit but retaining a footnote with the examples of the
activities which the Commission had had in mind. The footnote might be enriched by
including the proposal of the United States representative; it should also be drafted
clearly to show that it was not intended to infringe State immunity. If his suggestion was
accepted, the meeting might set up a small drafting group to formulate a text for the
opening of paragraph 1 and for the footnote.
40. Mr. BONELL (Italy) asked what instructions would be given the drafting group with
regard to a change in paragraph 1.
41. The CHAIRMAN said that he did not wish to propose any specific wording; perhaps the
proposal made by the Australian representative might be considered.
42. Mr. BONELL (Italy) observed that, as an alternative to that proposal, the drafting group
might consider the relevant passage in the Geneva Convention [(European Convention on
International Commercial Arbitration, 484 U.N.T.S. 349 (1961)].
43. The CHAIRMAN suggested that the membership of the drafting group should consist of
Mr. Szasz, Mr. Holtzmann and Mr. Tang Houzhi. If there was no objection, he would take it
that the Commission agreed to set up a drafting group with that composition.
44. It was so agreed.
Article 1(2) [Article 1(3) in the final text]
45. The CHAIRMAN invited the meeting to consider the definition of internationality.
46. Mr. BONELL (Italy) said that his delegation had always found it difficult to regard
subparagraph (b)(i) as a desirable criterion, although it was true, according to the
Secretariat commentary, that the intention was to exclude cases where the place of
arbitration would be determined by the arbitrators only. However, he wondered what the
P 80 result would be when the place of arbitration determined pursuant to the arbitration
P 81 agreement turned out to be different from the place of business of the parties. While it
remained undetermined, many issues, such as challenges, might arise and there would be
uncertainty as to which law should be applied. If subparagraph (b)(i) was eliminated, there
remained subparagraph (b)(ii) which was not very different from subparagraph (c).
Paragraph 2 [paragraph 3 in the final text] might therefore be revised to contain
subparagraph (a) followed by subparagraph (c).
47. The CHAIRMAN said that there was not much controversy about subparagraph (a), which
covered the majority of cases. Subparagraph (b)(i) covered two situations: one in which the
place of arbitration had been previously determined and one in which the matter was not
so certain and was perhaps subject to the decision of the three arbitrators.
48. Mr. SCHUMACHER (Federal Republic of Germany) endorsed the views of the Italian
representative. His delegation supported the deletion of the words “or pursuant to.”
49. Mr. HOLTZMANN (United States of America) said that the text should be left as it was.
The words “pursuant to” had been included to accommodate the common situation which
arose when parties chose not to specify the place of arbitration in their contract. There
were several reasons for that. In some transactions, parties found it difficult to predict the
nature of the disputes which might arise and felt that the most appropriate place to
arbitrate could only be chosen when the issues in dispute were known. In other cases, the
place of arbitration might be a source of contention in contract negotiations, and parties
might find it expedient to postpone the question until a dispute actually arose. For these,
and other, reasons it was common for some parties not to designate a place of arbitration
in their contract, but to provide for such a determination to be made later pursuant to
procedures established in their contract.
50. The CHAIRMAN asked whether the interpretation of “pursuant to” in the text would
cover a case where, some speakers had maintained, no one would know which law would
be applicable until the arbitrator had agreed to conduct the arbitration outside the
countries where the parties had their places of business.
51. Mr. HOLTZMANN (United States of America) said that would be exactly the case. If he
was acting as counsel for one of the parties, he would advise the place of arbitration to be
determined at the outset, but if the two parties preferred to postpone that determination
they should be free to do so.
52. Mr. STALEV (Observer for Bulgaria) said that the definition of “international” was too
broad because it tried to combine two criteria, namely the substantive link between the
subject-matter of arbitration and international trade, and the procedural test of the place
of arbitration. If the latter criterion was adopted, it was clear from reading article 1 in
conjunction with article 28 that a dispute involving a domestic contract for domestic goods
denominated in domestic currency could, if the parties to the dispute so chose, be
P 81 regulated by foreign law. It should not be possible for parties to evade the laws of their
P 82 own country by submitting to arbitration abroad. The autonomy of the parties with
regard to the place of arbitration was accepted in private international law when the
contract had an international aspect. He therefore supported the deletion of the place of

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 arbitration as a criterion of internationality.
53. Mr. SZASZ (Hungary) said that generally he was in agreement with the text as it stood
but he thought that subparagraph (b)(i) might make the scope of application too broad.
The point to be clarified was whether it was desired to make the scope of application
purely territorial or whether a broader approach was desired. If the scope of application
was to be territorial, it was possible to accept the present text, perhaps slightly amended.
If a broader concept was adopted, then the text as it stood was dangerous.
54. Mr. ROEHRICH (France) said that his delegation supported the broadest approach.
There were two important principles in international commercial arbitration, namely to
give the greatest possible autonomy to the parties and to make provision for the “de–
territorialization” of the relation between those parties when it came to a dispute, while
keeping matters within a reasonable framework. In his view, that would imply that the
place of arbitration must play a role. On the policy to be followed as to the scope of
application of internationality, the key issue had been raised by the Bulgarian
representative, namely whether to have a provision like the one in the present text or not
to have a provision at all. The question of whether or not to delete “pursuant to” was of
relatively minor importance compared to the real problem which was whether to give
effect to the place of arbitration for determining whether the arbitration was
“international” or not. In his view, from the moment that two parties domiciled in one
country indicated, even if not expressly, that they wanted arbitration in another country,
that fact indicated that the arbitration was international. Turning to the question of why
such parties should designate a third country, he agreed it might sometimes be to avoid
the application of mandatory rules existing in the country where they had their places of
business. However, after the arbitration award had been made, it might still not be
enforceable if it was contrary to the law of the country of residence of the parties
concerned. When countries agreed that an arbitration was international, and the parties
designated another country as the place of arbitration or left the decision to the
arbitrator, it was appropriate to allow for those options in the model law. There had
naturally to be some limit to the autonomy of the parties, and he therefore supported the
existing text. The deletion of “pursuant to” unnecessarily circumscribed the freedom of the
parties in view of the complexity in practice of such cases.
55. Mr. BONELL (Italy) said that it was necessary to distinguish clearly between two aspects:
the first was whether or not to adopt the broader criterion of the scope of application or to
agree that internationality might depend only on the place of arbitration being situated
outside the country in which both parties had their place of business. The second and
independent issue was whether to agree that the relevant place of arbitration could be
determined at a later stage. He failed to understand how such a provision could work in
P 82 practice owing to the uncertainty as to which court would be competent to decide many
P 83 important issues, including the situation envisaged in article 8. He must insist at least
on the deletion of the words “or pursuant to.”
[4 June 1985, 9:30 a.m., A/CN.9/SR.307]
1. Mr. MAGNUSSON (Sweden) said that article 1(2) [Art. 1(3) in the final text] of the draft
model law ([Fifth Draft,] A/CN.9/246, annex) was sound in intention but might be improved
in order to eliminate overlapping provisions. Subparagraph (b)(i), however, should remain
unchanged. It covered situations commonly found in practice. It was best if the parties
agreed [on] the place of arbitration in advance, but often they did not; if the arbitrators
subsequently chose a foreign place of arbitration, the model law should cover the
situation. If the place of arbitration was not determined by the parties, the question of
applicable law would remain pending and domestic law would apply in the mean time.
2. Mr. MOELLER (Observer for Finland) said that paragraph 2 [paragraph 3 in the final text]
should remain unchanged. Paragraph 2(b)(i) would not lead to problems if the model law
was made strictly territorial in application.
3. Mr. SCHUETZ (Austria) said that he also approved the existing text of paragraph 2. It was
not unusual in private international law for purely domestic cases to become
international. The model law should apply as broadly as possible and include cases where
the place of arbitration was in a foreign country and was determined by the arbitrators.
4. Mr. PELICHET (Observer, The Hague Conference on Private International Law) said that
the words “or pursuant to” might raise practical problems. The aim was to have a broadly
applicable law and to limit confusion. Other speakers had pointed to the dangers inherent
in the present text, which suggested that the price of retaining paragraph 2(b)(i) might
prove high. In any case the draft text made the place of arbitration almost a fiction, since
the tribunal could meet wherever it wanted and for any purpose; it need never meet at the
place of arbitration at all. That consideration removed much of the force from
subparagraph (b)(i).
5. Mr. SAWADA (Japan) said that he had no difficulty in accepting the Working Group's text.
If it was to be changed, however, he would prefer that paragraph 2(b)(ii) be deleted since it
was covered by paragraph 2(c) [not included in final text], and that paragraph 2(b)(i) be
amended to read “the place of arbitration chosen by the parties.”
6. Sir Michael MUSTILL (United Kingdom) said that the words “or pursuant to” should be
deleted because of the difficulties to which they might give rise.

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 7. Mr. HERRMANN (International Trade Law Branch) said that a distinction must be made
between the territorial scope of application of the model law and the internationality of
an arbitration. The model law did not seek to cover all cases where an arbitration was
transferred from one country to another, but only cases so transferred which were
international ones; and paragraph 2(b)(i) answered the question whether the arbitrators in
the country to which an international arbitration had been transferred would apply its
domestic arbitration law or its model law for international arbitration. The words “or
P 83 pursuant to” did admit of uncertainty in that respect because of the possibility of delay
P 84 in determining the place of arbitration, but that uncertainty existed in practice and could
not be removed by the model law. The Commission would meet the same kind of
uncertainty in regard to the territorial scope of application of the model law.
8. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that paragraph 2
was bound to involve a measure of uncertainty. There was no problem with the many cases
that would fall under subparagraph (a), but subparagraphs (b) and (c) could give rise to
difficulties. The problems arising from subparagraph (b)(i) would be no greater than those
inherent in other provisions. In principle arbitrators would be able to work with it, but it
would be best for the words “or pursuant to” to be deleted since they placed a heavy
responsibility on the initial arbitrators.
9. Mr. GRIFFITH (Australia) agreed that the words “or pursuant to” created uncertainty and
should be deleted.
10. Mr. SAMI (Iraq) said that, for the purpose of determining whether an arbitration was
international, he could accept the criterion of the places of business of the parties and the
criterion of the place where a substantial part of the obligations was to be performed. The
place of arbitration, however, was not an essential feature of a contract and should not be
an essential criterion for determining internationality. As to the deletion of the words “or
pursuant to,” it must be remembered that it might be impossible to determine the place
of arbitration in advance. Furthermore, to use the place of arbitration as the main criterion
for determining internationality could produce a situation in which the parties, being of
the same nationality, could choose internationality in order to evade the mandatory
provisions of their domestic law. However important freedom of decision was in the
arbitration process, that situation was unacceptable; if it arose, the country to which the
parties belonged might not enable the foreign award to be enforced. The best course
would be to delete paragraph 2(b) altogether. If the model law was to be acceptable to all
countries, it must not conflict with their legislation or sovereignty.
11. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that since the text was to be a
model law and not a convention, it would be for each State adopting the model law to
retain or delete the provisions of subparagraphs (b) or (c). The model law should include,
however, a provision to the effect that it did not apply to international commercial
disputes where another provision of the applicable national legislation precluded the
submission of such disputes to arbitration or assigned their settlement exclusively to a
specified judicial or other body. That point arose with regard to later provisions of the
draft as well.
12. Mr. SEKHON (India) said that he had reservations about the lack of precision of
subparagraph (c), which was designed to catch residual cases. Furthermore, it became
inoperable when read in conjunction with the reference to a separate agreement in the
second sentence of article 7(1), since such an agreement could not be said to relate to
more than one State.
13. Mr. HERRMANN (International Trade Law Branch) said that the parties' intention as to
P 84 the subject-matter of the arbitration agreement should be clear from that agreement,
P 85 whether the arbitration agreement was separate from the contract or in a clause in the
contract itself. The Working Group had intended that the subject-matter of an arbitration
agreement, whether in the former shape or the latter, should mean the area in which a
dispute might arise that was then to be settled by arbitration.
14. Sir Michael MUSTILL (United Kingdom) said that it would appear from what the previous
speaker had said that the term “subject–matter” in subparagraph (c) had more than one
meaning. He asked whether the subject–matter of the arbitration agreement meant the
obligation giving rise to a dispute or the goods or services which were the object of the
contract. That consideration affected the question of the internationality of the arbitration.
The words “otherwise related to more than one State” in subparagraph (c) had to be read
with subparagraph (b)(ii), which referred to any place where a substantial part of the
obligations was to be performed. Subparagraph (c) did not, therefore, relate to the place
where the obligation was to be performed. What, then, did it mean?
15. Mr. HERRMANN (International Trade Law Branch) said that the analytical commentary
([Seventh Secretariat Note,] A/CN.9/264) did not include any examples for subparagraph (c)
since it had been thought that most cases would come under the other subparagraphs. The
wording of subparagraph (c) had been proposed by the Observer for the International
Chamber of Commerce with a view to increasing the scope of article 1(2).
16. Mr. SZASZ (Hungary) said that paragraph 2(c) has almost unlimited scope but perhaps
its wording was rather vague. Almost all practical cases were covered by paragraph 2(b)(ii),
but if the Commission wanted paragraph 2 to be really broad in scope it would have to

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 word subparagraph (c) more precisely. His own delegation proposed that the
subparagraph should be deleted, since it referred by implication to matters with which the
Commission was not competent to deal, such as the rights of multinational corporations in
host countries.
17. Mr. ROEHRICH (France) pointed out that paragraph 2(b)(ii) referred to “the obligations of
the commercial relationship,” whereas paragraph 2(c) referred to “the subject matter of
the arbitration agreement”; it would be more logical for the latter to speak of “the subject-
matter of the dispute.” The two subparagraphs did not duplicate one another. If
subparagraph (c) was to be retained, it would have to be formulated more precisely.
18. Mr. HOLTZMANN (United States of America) said that a company which was performing a
contract in a country other than its own would be performing one which was international
in nature regardless of whether it did so through a branch office or an entity incorporated
under the law of the host country. It was such cases that paragraph 2(c) was intended to
cover. It was therefore a necessary provision. To clarify this intent, a sentence might be
added to subparagraph (c) to the effect that, if the parties had included in their contract a
statement that the contract involved activities in more than one State, they could not deny
the internationality of the contract at a later stage. Also, his Government had suggested an
amendment to subparagraph (c) in its written comments ([Sixth Secretariat Note
P 85 (Government Comments),] A/CN.9/263, [Art. 1], para. 25), to clarify that the phrase “related
P 86 to more than one State” was not intended to be limited to the State itself, i.e.
governmental activities, but rather activities within a State. To accomplish this he
proposed that the provision should read “subject–matter …related to commercial
activities in more than one State.”
19. Mrs. VILUS (Yugoslavia) said that the provisions of paragraphs 2(b)(ii) and 2(c) were too
broad and also vague. Although the amendments suggested by the United States
representative might resolve that situation to some extent, her delegation would prefer
the course of deleting paragraph 2(c) altogether.
20. Mr. TANG Houzhi (China) agreed that paragraph 2(c) should be deleted.
21. Mr. de HOYOS GUTIERREZ (Cuba) said that paragraph 2(b) dealt with the matter
adequately. Paragraph 2(c) would only cause confusion and should be deleted.
22. Mr. BONELL (Italy) said that his delegation had proposed that the words “or pursuant to”
in paragraph 2(b)(i) should be deleted. If they were not, subparagraph (c) should be
deleted. It was important for the model law to make it clear that an arbitration could not
be considered international merely because one of the parties was wholly or partly owned
by a foreign corporation.
23. Mr. KNOEPFLER (Observer for Switzerland) said that subparagraph (c) should be
retained since it made it clear that the scope of paragraph 2 was intended to be as wide as
possible.
24. Mr. MAGNUSSON (Sweden) agreed that subparagraph (c) should be retained. The notion
of internationality should bear the broadest possible interpretation, and in order to
achieve that the subparagraph needed some refinement. His delegation could agree to it
being worded along the lines suggested by the United States.
25. Mr. GOH (Singapore) said that subparagraph (c) should be deleted.
26. Mrs. OLIVEROS (Observer for Argentina) agreed. The wording “otherwise related to more
than one State” was too unclear to be of any use, and also the subparagraph would not
allow national cases to be dealt with in an international context.
27. Mr. MOELLER (Observer for Finland) proposed that a sentence should be inserted in
paragraph 2(b)(ii) to the effect that, if the parties had agreed that the subject–matter of
the dispute was of an international nature, they should not be able to deny the fact at a
later stage. Subparagraph (c) might then be deleted.
28. Mr. TORNARITIS (Cyprus) said that the draft text had been drawn up by experts and
should not be altered unless it contained obvious mistakes or ambiguities. The United
States representative had made it clear why subparagraph (c) was necessary.
29. Mr. PAES de BARROS LEAES (Brazil) said that the test of internationality was adequately
defined in subparagraphs (a) and (b). Subparagraph (c) should therefore be deleted.
P 86
P 87
30. Mr. SCHUMACHER (Federal Republic of Germany) said that his delegation withdrew its
written comments on the matter and recommended that subparagraph (c) be deleted.
31. Mr. GRIFFITH (Australia) said that the present subparagraph (c) should be replaced by
an opting-in clause to the effect that an arbitration agreement was international if the
parties specified that it was international. Such a provision would give them desirable
freedom of choice. His proposal differed from that of the Observer for Finland in making
the result of characterizing the arbitration agreement quite clear.
32. Mr. LEBEDEV (Union of Soviet Socialist Republics) agreed with other speakers that
subparagraph (c) was vague. It was important that the model law should be unambiguous,
and therefore desirable that it should include an explicit statement concerning the

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 arbitrability of a dispute. He proposed that a new subparagraph should be inserted
between the present paragraphs 2 and 3 to the effect that the model law should not affect
the legislation of a State by virtue of which the dispute was assigned to the exclusive
jurisdiction of judicial, administrative or any other authorities, or alternatively to the
effect that it should not affect the legislation of a State by virtue of which the dispute was
not capable of settlement by arbitration. A provision of that kind had appeared in many
international instruments.
33. Mr. GRIFFITH (Australia) supported the Soviet Union proposal and said it would suitably
balance the opting–in provision which his delegation had proposed as a replacement for
subparagraph (c).
34. The CHAIRMAN [Mr. LOEWE (Austria)] asked the Commission whether it wished article 1
to contain a provision along the lines proposed by the Soviet Union representative.
35. It was so agreed. [Editors' Note: The provision on arbitrability was ultimately included as
paragraph 5 of Article 1. For more on the legislative history of this provision, see pages 133–49
infra.]
36. Mr. ILLESCAS ORTIZ (Spain) said that subparagraph (c) contained a general provision
under which all factors of internationality could be taken into account in determining the
application of the model law to a dispute. It therefore made the rest of the paragraph
superfluous. Once the factor of internationality had been established, there would seem to
be no need to refer to the place of business or to the place of performance of obligations.
He would like to see paragraph 2 drafted along the lines suggested by Australia and
Finland. If the parties to a dispute determined a place of arbitration other than their place
of residence, that would indicate their willingness to submit the dispute to international
commercial arbitration under the Model Law.
37. The CHAIRMAN said that there was a difference between paragraph 2(b)(i) and
suggested the opting–in clause. Under the former the parties would not have taken a
decision on the applicable procedural law, but would simply have stated that arbitration
would be in a place abroad; under the latter, however, they could determine a place of
arbitration within their State and still choose the law applicable to international
arbitration.
P 87
P 88
38. Sir Michael MUSTILL (United Kingdom) said that he fully endorsed the views expressed
by the Soviet Union representative. He favoured the replacement of paragraph 2(c) by an
opting-in provision formulated along the lines proposed by the Australian delegation. A
provision of the kind suggested by the Soviet Union would be an essential safeguard if an
opting–in provision was included.
39. Mr. MAGNUSSON (Sweden) said that his first preference was for a provision on the lines
of subparagraph (c), but in view of the difficulty of redrafting the subparagraph to remove
its weaknesses, he would not press for its retention. He too was in favour of giving the
parties to a dispute the freedom to decide whether it was international or not. He could
accept the proposal of the Observer for Finland but would prefer that of the Australian
representative. He had nothing against the addition proposed by the Soviet Union.
40. Mr. BARRERA GRAF (Mexico) expressed support for the Finnish proposal. Paragraph 2(c)
as it stood was too broad in scope. He agreed with the representative of Spain that it made
paragraph 2(b) superfluous. The model law should include a provision leaving the decision
about the internationality of a dispute to the parties concerned, either in paragraph 2(a) or
as a separate subparagraph between subparagraphs (a) and (b) of paragraph 2. He
reserved his position as to the precise way in which the Soviet Union proposal should be
given effect.
41. Mr. HOLTZMANN (United States of America) said that he could support either the
Finnish or the Australian proposal. In regard to the Soviet Union proposal he favoured the
second alternative.
42. Mr. ROEHRICH (France) said that the addition proposed by the Soviet Union should be a
general provision in respect of the model law. He supported the idea of an opting-in
provision as suggested by Australia. However, he regretted the fact that it would allow two
parties who both had businesses in a given country to agree to resort to international law
even if their transactions were devoid of any international subject-matter.
43. Mr. SZASZ (Hungary) said he strongly supported the idea of an arbitrability provision as
suggested by the Soviet Union representative. He shared the concern of the representative
of France about the effect of the proposed opting-in clause. States either differentiated
between foreign and domestic arbitration or they did not. However, if the majority
supported the proposal, he would not press his objection.
44. Mr. SAWADA (Japan) said that, while his delegation was in favour of improving
paragraph 2(c), it had reservations about the desirability of allowing the parties to decide
what was international.
45. The CHAIRMAN observed that the paragraph proposed by the Soviet Union
representative could restrict the effect of the proposed opting-in clause.

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 46. Mr. HJERNER (Observer, International Chamber of Commerce) asked whether the Soviet
Union would submit its proposal in writing, because it had important implications.
47. Mr. LAVINA (Philippines) supported the request.
P 88
P 89
48. The CHAIRMAN said that the Soviet Union representative had explained his proposal
sufficiently clearly for it to be dealt with first by a drafting committee.
49. Mr. de HOYOS GUTIERREZ (Cuba) said that his delegation firmly supported the Soviet
Union proposal.
50. Paragraph 2(c) was rendered ambiguous by the word “otherwise.” It should be deleted
unless it could be reworded to make it clear that the subject-matter of the arbitration
agreement must relate directly or indirectly to more than one State.
51. The CHAIRMAN said that the Commission appeared to agree that subparagraph (c) of
paragraph 2 should be replaced by a paragraph embodying an opting-in clause. It had
already agreed that a paragraph on dispute arbitrability based on the Soviet Union
proposal should be added to article 1. He suggested that the task of drafting those
paragraphs should be entrusted to a committee composed of the Union of Soviet Socialist
Republics, Finland, Australia, India and the United States of America.
52. It was so decided.
Article 1(3) [Article 1(4) in the final text]
53. Mr. SCHUMACHER (Federal Republic of Germany) said that the model law should
contain a general provision on residence, something which would be important in cases
where a party was not a business.
54. Mr. SEKHON (India) said that the word “relevant” in the second line of the paragraph
was redundant in view of the expression “For the purposes of paragraph (2) of this article”
and the article “the” preceding this word. It therefore needed to be deleted.
55. The CHAIRMAN suggested that article 1(3) should be redrafted accordingly by the
drafting committee which had just been set up.
56. It was so agreed.
[12 June 1985, 9:30 a.m., A/CN.9/SR.319]
Article 1. Scope of application (continued)
Paragraph (1) (continued) (A/CN.9/XVIII/CRP.1)
23. Mr. HOLTZMANN (United States of America) introduced the text proposed by the ad hoc
working party (A/CN.9/XVIII/CRP.1). (*)
P 89
P 90
24. Mr. ROEHRICH (France) said that his delegation was not happy with the new proposal.
Its main defect was that it no longer used the term “international commercial arbitration,”
which despite different interpretations had become a well-known concept in international
trade circles. The new wording created ambiguity, especially by using the words “other
economic relations.” His delegation favoured a broad interpretation of the concept of
“commercial” but was unwilling to exchange satisfactory wording for unsatisfactory. Any
reference to “services and other economic relations” should appear in the footnote and not
in the text.
25. Mr. WAGNER (German Democratic Republic) said that his delegation could accept either
the original text or the new version. If the Commission adopted the latter, he would like to
have the words “whether contractual or not” inserted after the words “economic relations.”
If the original text was retained, the insertion should come after the words “commercial
nature” in the footnote.
26. Mrs. RATIB (Egypt) said that her delegation preferred the original text.
27. Sir Michael MUSTILL (United Kingdom) said that his delegation tended to prefer the
original text. The new version introduced into the text two ideas taken from among a
number of ideas expressed in the original footnote. It would be better for all those notions
to be in the footnote since they were all of similar importance. He agreed with the
representative of France that the term “international commercial arbitration” had become
generally accepted.
28. Mr. SAMI (Iraq) said that his delegation also had problems with the new proposal. The
original text should be retained and any necessary details defining commercial activity
should appear in the footnote.
29. Mr. HOLTZMANN (United States of America) said that the ad hoc working party had
inserted the phrase “economic relations” in the text of the paragraph with the intention of
summarizing the contents of the original footnote. The word “services” was intended to
reflect the majority's desire that they be included. He noted that the intention was to
make clear that a contract to buy trousers, a contract to build a factory and a contract to
lend money would all be “commercial” under the model law, even though they might not

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 be under some laws.
30. Mr. SAWADA (Japan) said that his delegation preferred the original text. If the
Commission decided to adopt the new version, the phrase “including services and other
economic relations” should be replaced by the words “including those involving services”
and the words “commercial matters” should be replaced by “commercial transactions.”
31. Mr. ILLESCAS ORTIZ (Spain) agreed with the French representative with regard to the
term “international commercial arbitration;” it was a nomen juris recognized in many
countries and should appear in the model law. The reference to “services and other
economic relations” should appear in the footnote.
P 90 32. Mr. LEBEDEV (Union of Soviet Socialist Republics), supported by Mr. SZASZ (Hungary)
P 91 proposed that the original text should be maintained, with two minor amendments to
the second footnote: the end of the first sentence should be amended to read “…
relationships of a commercial nature, whether contractual or not,” as suggested by the
representative of the German Democratic Republic; and in the second sentence the words
“exchange of goods” should be amended to read “exchange of goods or services.”
33. Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration) said that
he too preferred the original text of paragraph (1).
34. Mr. ROEHRICH (France) supported the proposed Soviet Union amendment with the
exception of the addition of the words “whether contractual or not”; they were
unnecessary, because the commercial nature of the transaction was the deciding factor.
35. Mr. TANG Houzhi (China) said that he found the Soviet Union proposal acceptable in its
entirety. A further point was that it should be made clear that the paragraph was not
intended to affect State immunity.
36. The CHAIRMAN [Mr. LOEWE (Austria)] suggested that the report on the session should
make it clear that the Commission intended the model law to cover also parties other than
strictly commercial parties but that it did not affect State immunity.
37. Mr. MTANGO (United Republic of Tanzania) expressed support for the Soviet Union
proposal.
38. Mr. JARVIN (Observer, International Chamber of Commerce) said that the footnote to the
paragraph should make it clear that State enterprises could be considered commercial
parties for the purposes of the model law. No such clarification existed in the text at
present.
39. The CHAIRMAN noted that there was widespread support for the Soviet Union proposal.
Unless there was any objection, he would take it that the Commission wished to adopt it.
40. It was so agreed.
Paragraph (2)(c) (continued) and proposed new paragraphs (4) and (5)
(A/CN.9/XVIII/CRP.5)
[Editors' Note: Draft paragraph 2(c) became paragraph 3(c) in the final text. Draft paragraph
4 was a provision on lex specialis that was not included in the final text. Excerpted below are
those remarks that addressed draft paragraph 2(c). The complete discussion appears in the
subsection on paragraph 5 of Article 1, pp. 145–48 infra.]
41. Mr. GRIFFITH (Australia), introducing the proposal in document A/ CN.9/XVIII/CRP.5, (*)
said that it attempted to reconcile the various views expressed in the Working Group on
International Contract Practices and in the Commission. […]
P 91
P 92
[….]
44. Mr. BONELL (Italy) said that the proposal was acceptable. […]
45. Mr. SAWADA (Japan) […] With regard to the proposal for paragraph (2)(c), his delegation
wished to repeat the view it had expressed at the 307th meeting ([Summary Record,]
A/CN.9/SR.307, para. 44) that it was not desirable that the decision about the
internationality of an arbitration should lie with the parties.
[….]
48. Mr. KADI (Algeria) said that his delegation's only problems with the proposal concerned
paragraph (4), […].
49. Mr. BOGGIANO (Observer for Argentina) shared the view expressed by the
representative of Japan about paragraph (2)(c), which represented a fundamental
departure from the original text and would allow a dispute to be internationalized even if
in reality it was connected with only one State.
50. Mr. LAVINA (Philippines) said that his delegation also felt that concern about paragraph
(2)(c) and preferred the original version of the provision. A further point concerning the ad
hoc working party's version of subparagraph (c) was that it used the word “country” instead
of the normal term “State.” He could not see the reason for that.
51. Mr. SZURSKI (Observer for Poland) said that he fully supported the position taken by

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 Japan.
[….]
55. Mrs. VILUS (Yugoslavia) said that her delegation had been unhappy with the original
wording of paragraph (2)(c) and was even less happy with the new version because it gave
the parties unlimited autonomy, something which was far from desirable.
[….]
57. Mr. VOLKEN (Switzerland) said that he was not satisfied with paragraph (2)(c). Although
he was not against the idea of opting-in he would give preference to a solution which
introduced that idea in a direct and not only in an indirect manner. In short, he would
prefer the addition of a phrase to paragraph (1) to the effect that the model law also
applied to an international commercial arbitration if the parties expressly so agreed.
[….]
P 92
P 93
59. The CHAIRMAN said that a majority seemed to accept the proposal in document
A/CN.9/XVIII/CRP.5 [the Conference Room Paper noted in paragraph 41 supra] for paragraphs
(2)(c) and (5), subject to the possibility of drafting improvements. What had not been
accepted was paragraph (4). Since it had given rise to so much comment, he suggested that
a note should be included in the report to the effect that the purpose of the model law was
to cover the field of application otherwise covered by national law, but that it had been
left to the legislators in States accepting the model law to deal with the situation as they
understood it. He would take it that the Commission approved that suggestion along with
the proposal for paragraphs (2)(c) and (5).
60. It was so agreed.
[19 June 1985, 9:30 a.m., A/CN.9/SR.330]
[Editors' Note: The following discussion of headings in the Model Law occurred in the context
of a discussion concerning the heading of Chapter VIII and the territorial scope of application
of the Law. See pp. 128–29 infra.]
45. Mr. SZASZ (Hungary), supported by Mr. LEBEDEV (Union of Soviet Socialist Republics),
asked whether the footnote to the title of article 1 and the article headings generally would
be retained in the final version of the model law.
46. Mr. HERRMANN (International Trade Law Branch) explained that, since practice
differed, it had been thought useful in the model law to indicate that the headings did not
form part of the Commission's decision, but had been added for reference purposes only
and should not be used for purposes of interpretation. It was for each State to decide if it
wanted to indicate the purpose of the headings.
47. The CHAIRMAN [Mr. LOEWE (Austria)] said he took it that there was no objection to
keeping the footnote.
48. It was so agreed.
[20 June 1985, 3:00 p.m , A/CN.9/SR.332]
Article 1 [as revised by the Drafting Group]
1. Article 1 was adopted without change.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 1. Scope of application
17. The text of article 1 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
Substantive scope of application: international commercial arbitration
P 93 18. While some concern was expressed about restricting the substantive scope of
P 94 application to international commercial matters, the Commission was agreed that the
draft text should be geared to and cover only international commercial arbitration.
“commercial”
19. Divergent views were expressed as to the appropriateness of the footnote
accompanying paragraph (1) as regards its form as well as its content, although it was
generally agreed that the term “commercial” should be given a wide interpretation. Under
one view, the footnote should be deleted since in many legal systems, in particular those
which did not use the technique of a footnote, it would be without legal value. Instead, an
attempt should be made to define the term “commercial” in the body of the law itself.
Such a definition might, for example, be based on a shortened version of the text
contained in the footnote or by a reference in article 1(1) to disputes arising from trade or
commerce. An alternative suggestion was to present the guideline for interpretation,
contained in the footnote, in a commentary or in the report on the proceedings.
20. The prevailing view was that the footnote should be retained, though possibly with

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 certain modifications. It was realized that no generally acceptable definition had been
found to date and that any definition would entail certain risks. It was felt that the
footnote, despite its uncertain legal effect, could provide useful guidance in
interpretation, at least to the drafters of any national enactment of the model law.
21. A number of modifications were proposed to the text of the footnote, whether the text
would be retained in a footnote or incorporated into the body of the law itself. One
proposal was to clarify that, in line with article 7(1), non-contractual relationships were
included, since the term “transaction” might lead to the opposite result. Other proposals
were to add to the list of examples such commercial activities as services and processing
as well as agreements on international economic co-operation.
22. In view of the fact that certain national laws of civil law tradition drew the line between
commercial and civil transactions according to whether or not the parties involved were
commercial persons (merchants), there was support for the proposal to state in the
opening sentence that the qualification of a relationship as commercial did not depend on
the nature or character of the parties. That proposal was objected to on the ground that
such wording might be construed as touching upon the sensitive issue of State immunity.
The Commission was agreed that there was no intention to deal with that issue in the
model law and that, if the proposal were to be accepted, it would have to be made clear
that rules on State immunity were not affected. Another concern was that the illustrative
list of commercial relationships could be construed as meaning in positive terms that any
dispute arising therefrom would be capable of settlement by arbitration. As to a decision
relating to that concern, see below, para. 29.
23. The Commission established on ad hoc working party composed of the representatives
of China, Hungary and the United States and requested it to prepare, in the light of the
above discussion and proposals, a revised version of paragraph (1) and the accompanying
footnote for consideration by the Commission.
P 94
P 95
24. The ad hoc working party suggested replacing, in article 1(1), the words “international
commercial** arbitration” by the words “international arbitration in commercial**
matters, including services and other economic relations.” It also suggested revising the
opening part of the footnote as follows: “**The term ‘commercial’ should be given a wide
interpretation so as to include, but not be limited to, the following: any trade transaction
for the supply or exchange of goods or services; distribution agreement; ….”
25. It was noted that the proposed text did not use the term “international commercial
arbitration,” which had come to be a well-known term in the field. After discussion, the
Commission decided that, in spite of the acknowledged difficulties, it would be better to
retain the original text of article 1(1) and to revise the footnote as follows: “**The term
‘commercial’ should be given a wide interpretation so as to cover matters arising from all
relationships of a commercial nature, whether contractual or not. Relationships of a
commercial nature include, but are not limited to, the following transactions: any trade
transaction for the supply of goods or services; distribution agreement; ….”
26. The Commission was of the view that with the revision of the footnote it was sufficiently
clear that the qualification of a relationship as commercial did not depend on the nature
of the parties. Therefore, it was felt that it was not necessary to express it explicity in the
text either of article 1(1) or of the footnote: The Commission was also of the view that the
provision as drafted did not touch on any rule on sovereign immunity.
“international” (paragraph (2) [paragraph (3) in the final text])
27. The Commission adopted sub-paragraph (a) and was agreed that the provision would
cover the bulk of cases encountered in international commercial arbitration.
28. Divergent views were expressed as to the appropriateness of retaining sub-paragraph
(b)(i). Under one view, the provision should be deleted for essentially two reasons. One
reason was that there was no justification to qualify a purely domestic relationship as
international simply because a foreign place of arbitration was chosen. Party autonomy
was unacceptable here since it would enable parties to evade mandatory provisions of
law, including those providing for exclusive court jurisdiction, except where recognition or
enforcement of the “foreign” award was later sought in that State. The other reason was
that the provision covered not only the case where the place of arbitration was
determined in the arbitration agreement but also the case where it was determined only
later pursuant to the agreement, for example by an arbitral institution or the arbitral
tribunal. It was felt that the latter case created uncertainty as to what was the applicable
law and as to the availability of court services before the place of arbitration was
determined. Under another view, only the latter reason was convincing and, therefore, sub-
paragraph (b)(i) should be maintained without the words “or pursuant to.”
29. The prevailing view was to retain the entire provision of sub-paragraph (b)(i). It was
P 95 noted that the provision only addressed the question of internationality, i.e. whether the
P 96 (model) law for international cases or the same State's law for domestic cases applied.
It was thought that the principle of party autonomy should extend to that question. The
Commission, in adopting that view, was agreed, however, that the concern relating to non–
arbitrability, which had also been raised in a more general sense and in particular in the

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 discussion on paragraph (1) and the accompanying footnote (above, para. 22), should be
met by a clarifying statement in a separate paragraph of article 1 along the following lines:
“This Law does not affect any other law of this State which provides that a certain dispute
or subject–matter is not capable of settlement by arbitration.”
30. As regards sub-paragraphs (b)(ii) and (c), the Commission was agreed that their
respective scope was not easily determined in a clear manner. In particular, sub-
paragraph (c) was regarded as unworkable due to its vague ambit. While there was some
support for maintaining the provision, though possibly in some modified form, the
Commission, after deliberation, decided to delete sub-paragraph (c).
31. However, in order to balance the reduction in scope due to that deletion, it was
proposed to add an opting–in provision, either only to sub–paragraph (b)(ii) or as a
replacement for sub–paragraph (c). It was thought that such a provision provided a more
precise test than the one set forth in sub–paragraph (c). In response to that proposal, a
concern was expressed that such a subjective criterion would enable parties freely to label
as international a purely domestic case. Others, however, considered that any such
concern was outweighed by the advantages of a system that provided certainty to the
parties that their transaction would be recognized as international, a characterization that
should properly fall within the scope of party autonomy. In response to that consideration
the view was expressed that it was inconceivable that any State which deemed it
necessary to retain a special law for domestic cases would want to allow parties to evade
that system.
32. The Commission requested an ad hoc working party, composed of the representatives of
Australia, Finland, India, Union of Soviet Socialist Republics and United States, to prepare
a draft of an opting–in provision and of a provision to implement the proposal on non–
arbitrability. The working party was also requested to prepare, for consideration by the
Commission, a draft provision which would express the character of the model law as a lex
specialis with regard to all matters governed by the Law.
33. As to the opting-in provision, the ad hoc working party suggested replacing the wording
in sub-paragraph (c) by the following new provision: “(c) the parties have expressly agreed
that the subject-matter of the arbitration agreement relates to more than one country.”
While the concern previously expressed above in paragraph 31 was restated, it was pointed
out that courts were unlikely to give effect to such an agreement in a purely domestic case.
After discussion, the Commission adopted the suggested provision.
[Editors' Note: Paragraphs 34 and 35, dealing with the proposed provisions on arbitrability
and lex specialis, appear in the subsection on paragraph 5 of Article 1, p. 149 infra.]
P 96
P 97
Paragraph (3) [paragraph (4) in the final text]
36. The Commission adopted the provision, subject to the deletion of the word “relevant”
and to clarifying that the second sentence did not relate to the first sentence but to
paragraph (2).
[….]
Article headings
326. The Commission decided to retain the footnote annexed to the heading of article 1 in
order to inform the recipients of the model law about the understanding of the
Commission that article headings were for reference purposes only and were not to be
used purposes of interpretation.
ARTICLE 1, PARAGRAPH 2 TERRITORIAL SCOPE OF APPLICATION
[Editors' Note: The legislative history section on Article 1 is divided into three parts. The
materials that follow concern paragraph 2, which defines the territorial scope of application
of most Articles of the Model Law. Also included are materials on proposed rules to govern
conflicts of jurisdiction between the Model Law State and other States, which proposed rules
ultimately were not adopted. For materials on paragraphs 1, 3 and 4 of Article 1, see pages
40–97 supra. For materials on paragraph 5, see pages 133–49 infra.
The subject of the territorial scope of application of the Model Law and of whether the Law
should include rules on conflicts of jurisdiction was first raised in the First Secretariat Note in
connection with a discussion of how to define the term “international” for the purposes of
determining which arbitrations would be governed by the Model Law. The Secretariat noted
that “existing conflicts rules” provide that “the applicable procedural law is normally the law
of the place of arbitration, except where another law is validly chosen by the parties.” The
Note also briefly discussed potential conflict-of-jurisdiction problems raised by the proposed
definition under discussion. The discussion is best understood in context and appears in
paragraphs 35–38 on page 43 supra.
The topic of whether to include conflicts rules next arose in connection with the Working
Group's discussion of a draft Article to designate the court or other authority of the Model
Law State that would handle certain functions of judicial assistance to arbitrations, a topic
ultimately dealt with in Article 6 of the final text. This discussion is excerpted below. For the
draft proposal being discussed, see page 242 infra.]

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 SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
Article 17 [Art. 6 in the final text]
[….]
P 97 93. The question was raised as to the Authority of which State should exercise the functions
P 98 of an Authority under article 17 [Art. 6 in the final text]. In this connexion differing views
were expressed as to the nature of the rules which should be set forth in the model law.
94. Under one view it is not appropriate to set out special rules of international
competence of the Authority because such rules would have to be too detailed. According
to this view the question of international competence could be left to general rules on
international conflicts of competence.
95. Under another view the model law should have a system of rules on international
competence. Such a system should be based on the special functions of the Authority. In
this connexion it was suggested that the place of arbitration should be the primary
criterion. In case the place of arbitration had not been designated, the procedural law to
which the arbitral procedure was subjected might be the appropriate criterion. It was also
suggested that the party refusing to co-operate in the appointing procedure should be put
at risk that the other party could seize the Authority of this country.
96. Under a third view some rules on international competence would be useful and in this
context the place of arbitration should be the decisive factor. The Secretariat was
requested to draft provisions to this effect and to indicate that where the place of
arbitration had not been decided, reference should be made to the rules of private
international law.
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
Article V [Art. 6 in the final text]
[Editors' Note: In a footnote to the Second Draft, the Secretariat suggested that
consideration of the issues raised above be postponed:]
9. It is suggested that the question of the international jurisdiction or competence of this
Court be discussed at a later stage (probably in connexion with issues of conflict of laws)
when the exact and complete tasks of that Court are clear.
A/CN.9/WG.II/WP.42 (25 JANUARY 1983)
[Editors' Note: The Secretariat also touched briefly on the question of the territorial scope of
the Model Law in the portion of the Second Draft dealing with recognition, enforcement and
setting aside of the award. In an Introductory Note, the Secretariat pointed out that the draft
provisions on recognition and enforcement were divided into two sets of provisions, one set
for domestic awards, i.e., awards made in the territory of the recognizing or enforcing State,
and another for foreign awards. See page 1077 infra. The Secretariat's discussion continued as
follows:]
4. The above mentioned “territorial” demarcation line also means that no distinction is
made according to which procedural law applies. Thus, for example, the provision on
enforcement of foreign awards would apply to an award rendered abroad even if made
P 98 under the law of the State where enforcement is sought (i.e. under the model law). It may
P 99 be noted that such cases of awards made under a law of a State other than the country
of origin involve questions of policy which come up in a number of contexts (e.g. refusal of
recognition because of violation of procedural law, draft article 38(1)(d) [Art. 36(1) (a) (iv) in
the final text]; competence of court to set aside an award, draft article 40 [Art. 34]; and
recognition of such setting aside as reason against enforcement, draft article 38(1)(e) [Art.
36(1)(a)(v)]). While the answer to these questions may vary from one context to another, it is
submitted that the individual decisions are necessarily of a tentative nature and that at a
later stage an overall review of the policy would be desirable, possibly in connexion with
the consideration of questions of conflicts of procedural laws.
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
[Editors' Note: The question of the territorial scope of application of the Model Law next
arose in connection with the drafting of what became Articles 6 and 34 of the final text. For
the draft text being discussed in these excerpts, see pages 245–46 & 938 infra.]
III. Consideration of [Third Draft] (A/CN.9/WG.II/WP.46)
[….]
Article XXIX [Art. 34(1) in the final text]
[….]
148. The Working Group noted that both articles [XXIX and XXX (Art. 34(1) and Art. 34(2)-(4) in
the final text)] applied to arbitral awards “made under this Law” and that this scope of
application was different from the one used in articles XXV and XXVII [Arts. 35 & 36 in the
final text] where the territorial approach had been adopted (“awards made in the territory
of this State”). It was thought that this disparity could lead to conflicts and undesirable
results.

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 149. The Working Group was agreed to reconsider the matter at its next session in the light
of a general study by the Secretariat on the scope of application of the various provisions
of the model law, including the question of the choice of a procedural law of a country
other than the place of arbitration and some suggestions as to possible rules on conflict of
laws.
[….]
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[….]
Article V [Art. 6 in the final text]
[….]
191. [….] It was also noted that consideration may be given to the question which Court of
P 99 article V, i.e. the Court of which State, should render assistance in a given case, for
P 100 example assist in the appointment of an arbitrator where the place of arbitration had
not yet been determined. It was agreed that this and similar questions of scope of
application and international competence should be considered at the next session, on
the basis of a study by the Secretariat.
FIFTH SECRETARIAT NOTE TERRITORIAL SCOPE OF APPLICATION AND RELATED ISSUES
A/CN.9/WG.II/WP.49 (21 DECEMBER 1983)
Introductory Note
1. The model law, by providing in article 1 that it applies to international commercial
arbitration, defines its scope of application in substantive terms. However, it does not
define the territorial scope of its provisions. While the question of territorial scope was
tentatively discussed by the Working Group in respect of some articles, (1) it was agreed to
discuss the question in more detail and with regard to the complete set of draft provisions
at the seventh session of the Working Group. (2) [Editors' Note: The Working Group's report
of its seventh session is called the Fifth Working Group Report in this book, because the first
two sessions did not deal with the Model Law. The discussion referred to appears on pages
107–08 infra.]
2. The general assumption in the preparation of the model law has been that it essentially
applies to arbitrations taking place in the State of the model law. The Working Group may
wish to express this principle in the model law. However, it may need to be qualified in two
respects.
3. Firstly, it may be useful to decide whether the place of arbitration is the exclusive factor
in determining the applicability of the model law or whether the parties have a right to
agree on the procedural law applicable to the arbitration. This aspect is discussed under
A, below.
4. Secondly, there may be provisions in the model law which require a special delimitation
of their scope of application different from the general delimitation of the scope of
application of the model law. This aspect is discussed under B, below.
5. This note also discusses possible conflicts of procedural laws which may arise as a result
of a given delimitation of the scope of application of the model law. Possible ways of
dealing with such conflicts are discussed under C, below.
A. Possible criterion for delimiting the scope of application of provisions on arbitral
procedure
6. The basic criterion, common to all legal systems, for determining the applicability of
procedural law on arbitration is a territorial one. While it appears that in most legal
systems the territorial criterion is applied strictly, it is supplemented by an autonomy
criterion in some other systems.
P 100
P 101
7. Under the strict territorial criterion, the place of arbitration is the exclusive determining
factor for the applicability of the law of a State. Under this approach, a State (State A)
does not give effect to an agreement by the parties that an arbitration taking place in
State A is to be governed by the procedural law of another State (State B). State A also
does not give effect to an agreement by the parties that an arbitration taking place in
State B is to be governed by the procedural law of State A.
8. Under the territorial criterion supplemented by the autonomy criterion, the place of
arbitration determines the applicability of the law unless the parties have agreed
otherwise. Under this approach, the law of a State (State A) applies to an arbitration if the
arbitration takes place in State A provided that the parties have not agreed to subject the
arbitration to the procedural law of another State (State B), in which case State A considers
that the arbitration is governed by the procedural law of State B. The law of State A also
applies to an arbitration if the parties have agreed to subject the arbitration to the
procedural law of State A even if the arbitration does not take place in State A.
9. It may be noted in this connection that the 1958 New York Convention, while applying the
territorial criterion for its application, recognizes the possibility that a State may allow the

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 parties to subject an arbitration to a procedural law different from the law of the place of
arbitration. For legal systems which allow such an autonomy of parties, article I(1) of the
Convention provides that the Convention also applies to the awards made in the State of
recognition and enforcement but not considered as domestic in that State. Furthermore,
article V(1)(e) of the Convention envisages the situation where the competent authority of a
State sets aside an award, i.e. an award considered as domestic in that State, which was
made outside that State but under the procedural law of that State.
10. A reason in favour of the strict territorial criterion is the simplicity in its application
since in most cases it can easily be ascertained which procedural law governs an
arbitration. Furthermore, the court assistance or supervision is easily accessible to the
parties and to the arbitral tribunal since the place of arbitration determines the court
competence to provide such assistance or supervision.
11. On the other hand, there is an advantage is not preventing the parties from subjecting
an arbitration to a procedural law other than the law of the place of arbitration. The
parties may have an interest in being able to agree on the place of arbitration in State A,
for example, because of the convenience of participants, cost of proceedings or the
availability of evidence. Yet, the parties may prefer that the arbitration is governed by the
procedural law of State B rather than the law of State A.
12. It may be noted that, under the model law, the arbitral tribunal is not bound to conduct
the entire arbitral proceedings in the State of the place of arbitration. Under article 20(2),
the arbitral tribunal may decide to meet outside the State of the place of arbitration for
consultations, hearings or inspection of goods or documents.
P 101 13. In addition to the territorial criterion, whether or not supplemented by the autonomy
P 102 criterion, the Working Group may wish to provide a criterion for determining the
applicability of the model law in cases where the place of arbitration or the law governing
the arbitration has not been agreed upon or determined. The reason for this is that a party
may need court assistance before the competence of the court to grant such assistance has
been established by an agreement on the place of arbitration or on the governing
procedural law. The model law could provide, for example, that in the absence of a factor
determining the applicability of the model law, a party may rely on the model law,
including its provisions on the assistance of the Court specified in article 6, if his place of
business or residence is in the State of the model law. (For a discussion on the possibility
of a conflict created by such a provision see paras. 32 and 33, below).
B. Special considerations with regard to provisions on court assistance and supervision
14. It may be useful to consider which provisions of the model law dealing with court
assistance and supervision should have the same scope of application as the model law in
general and which provisions should have a special delimitation of the scope of
application. On the basis of such consideration the Working Group may wish to decide
whether in a particular case an express provision on the scope of application is needed.
1. Provisions on court assistance and supervision which should have the same scope of
application as the model law in general
15. It is submitted that the provisions dealing with the following instances of court
assistance and supervision are directed to the courts of the State of the model law and
relate to arbitrations which are governed by the procedural law of that State whose court
is to decide on the matter:
(a) control over the validity of an arbitration agreement (art. 17) [not included in the final
text; the materials on this draft provision appear in the section on Article 16, pp. 478-528
infra];
(b) review of a decision by an arbitral tribunal that it has jurisdiction (art. 16 (3));
(c) appointment of an arbitrator (art. 11);
(d) challenge of an arbitrator (art. 13);
(e) termination of the mandate of an arbitrator (art. 14);
(f) setting aside of an award (art. 34).
16. If the Working Group adopts the strict territorial criterion, the Court specified in article
6 would be competent to make a decision in a matter mentioned in the previous
paragraph if the place of arbitration is in the State of the model law.
17. If the Working Group adopts the territorial criterion supplemented by the autonomy
criterion, the Court specified in article 6 would be competent to make a decision in a
matter mentioned in paragraph 15 when the place of arbitration is in the State of the
model law, unless the parties have subjected the arbitration to a foreign procedural law.
P 102 The Court would also be competent to make such a decision if the parties have subjected
P 103 the arbitration to the procedural law of the State of the model law even if the
arbitration does not take place in that State.
2. Provisions on court assistance and supervision which should have a special
delimitation of scope of application
18. Some provisions in the model law dealing with court assistance and supervision are of
such a nature that they may require a different scope of application than the model law in

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 general. These provisions are discussed below.
(a) Referral of parties to arbitration because of existence of arbitration agreement (art. 8
(1))
19. Under article 8 (1), a court before which an action is brought in a matter which is the
subject of a valid arbitration agreement, refers the parties to arbitration. This provision is
directed to the courts of the State of the model law; however, it is submitted that the
arbitration agreement which is the ground for referral of the parties to arbitration may be
any arbitration agreement irrespective of the place of arbitration or the law governing the
arbitration. The reason for such universal recognition of arbitration agreements is that an
arbitration agreement can only be effective if it prevents the parties from bringing an
action before a court in any State.
(b) Granting of interim measure (art. 9)
20. Article 9 expresses the principle of compatibility of an arbitration agreement with a
request to a court for an interim measure. There are two aspects of this principle.
21. One aspect is that it applies to courts of the State of the model law requested to grant
an interim measure and provides that a court shall not refuse to grant such a measure on
the ground that there is an arbitration agreement. In this respect the scope of application
of the rule should be the same as the rule of article 8(1) mentioned in paragraph 19.
22. The other aspect is that the rule expresses the principle according to which a request
by a party for an interim measure should not be construed as a waiver of the arbitration
agreement. This principle should apply irrespective of whether such a request is made to a
court in the State of the model law or to a court in any other State.
(c) Assistance in taking evidence (art. 27)
23. Article 27 deals with the assistance of the courts of the model law to arbitrations, in
paragraphs (1) and (2) to arbitrations governed by the procedural law of that State and in
paragraph (3) to arbitrations not governed by that procedural law. [Editors' Note: Article 27
was considerably simplified by the Commission, and consists of only one paragraph in the
final text. See the section on that Article, pp. 734-62 infra.] In this respect the scope of
application of this article is wider than the general scope of application of the model law.
24. Assistance to arbitrations not governed by the procedural law of the State where the
P 103 assistance is to be given may be subject to stricter conditions than the assistance to
P 104 arbitrations governed by that law. The reason is that a foreign procedural law may be
different from the law of the State where assistance is to be given and that the courts of
that State do not have supervisory powers over such arbitrations. It is, therefore, suggested
that, for the purpose of assistance in taking evidence, the distinction between arbitrations
governed by the procedural law of the State where assistance is to be given and
arbitrations not governed by that procedural law should follow the general scope of
application of the model law.
(d) Recognition and enforcement of arbitral awards (arts. 35 and 36)
25. The prevailing view in the Working Group was that the model law should regulate
recognition and enforcement of awards governed by the procedural law of the State where
recognition and enforcement are sought, i.e. domestic awards, as well as recognition and
enforcement of awards not governed by that law, i.e. foreign awards. (3) In this respect the
scope of application of this article is wider than the general scope of application of the
model law.
26. The Working Group was also of the view that there was no convincing reason for
providing different rules for domestic and foreign awards and it was therefore decided
that a uniform regime should be adopted for both categories of awards. (4)
27. However, in view of the tentative nature of this decision, (5) it might be useful to discuss
a criterion for distinguishing between domestic and foreign awards, such as the criterion
consistent with the one to be adopted for the delimitation of the scope of application of
the model law. This would mean that an award made in a domestic arbitration, i.e.
arbitration governed by the model law of the State of recognition and enforcement, would
be recognized and enforced under procedures for domestic awards, and that an award
made in a foreign arbitration, i.e. arbitration not governed by the model law of the State of
recognition and enforcement, would be recognized and enforced under procedures for
foreign awards.
C. Conflict of Laws Issues
1. Conflict of laws created by a delimitation of scope of application of the model law
28. A conflict of procedural laws and the resulting conflict of court competence may arise if
the criterion for the delimitation of the scope of application of the model law adopted in a
State is different from the criterion for the delimitation of the scope of application of the
procedural law on arbitration adopted in another State.
P 104
P 105
29. For example, if a State does not permit the parties to subject an arbitration taking
place in that State to a foreign procedural law, while the State of the chosen procedural

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 law accepts the choice, the courts of both States might consider themselves competent to
supervise the arbitration (positive conflict of competence). In such a case it would also be
uncertain which procedural law the arbitral tribunal and the parties have to follow.
30. On the other hand, if a State permits the parties to subject an arbitration taking place
in that State to a foreign procedural law, while the State of the chosen procedural law does
not accept the choice, the courts of both States might decline to supervise the arbitration
(negative conflict of competence) and it would also be uncertain which is the governing
procedural law.
31. The Working Group may wish to consider whether it would be useful to include in the
model law a provision designed to mitigate the effects of positive and negative conflicts of
court competence.
32. The effects of a positive conflict of competence may be mitigated by authorizing the
court of the State of the model law to decline its competence in respect of an arbitration
when a foreign court may take up or has taken up an issue in respect of that arbitration.
The effects of negative conflicts of competence may be mitigated by giving a right to the
court of the State of the model law to assume the competence in respect of an arbitration
when a foreign court has declined to decide an issue in respect of that arbitration.
33. In paragraph 13, above, it has been suggested that a criterion for determining the
applicability of the model law may be provided for cases where the place of arbitration or
the law governing the arbitration has not been agreed upon or determined. The suggested
solution was that the model law should be applicable if a party has his place of business or
residence in the State of the model law. Under this solution it may happen that a party
relies on the model law in his State for the purpose of, for example, the appointment of the
sole arbitrator, while the other party relies for the same purpose on the law in his State
(which may or may not have adopted the model law). The consequence may be conflicting
court decisions or that the two different laws contain provisions which conflict in
substance.
34. A way of dealing with the problem may be to provide that the request by the claimant
or by the most diligent party pre-empts the rights of the other party to rely on his law. Such
a provision would eliminate conflicts where each party is from a State which has adopted
the model law. In situations where one of the two potentially applicable laws is not the
model law, such a provision may reduce the possibility of conflicting situations, without,
however, eliminating them.
2. Conflict of laws governing validity of arbitration agreement
[Editors' Note: The question discussed in the following part of this Note—conflict of laws
issues relating to the validity of the arbitration agreement—had earlier been touched upon in
connection with the drafting of what became Article 7 of the Model Law. The Working Group
P 105 had agreed to consider the question at a later stage. See First Secretariat Note, A/CN.9/207,
P 106 para. 24, p. 268 infra; Second Secretariat Note, A/CN.9/WG.II/WP.35, para. 17, question 2-4,
p. 274 infra; First Working Group Report, A/CN.9/216, para. 25, p. 276 infra.]
35. The model law provides in the procedure for setting aside an award and in the
procedure for recognition and enforcement of an award a rule on the law governing the
validity of arbitration agreements (arts. 34(2)(a)(i) and 36(1)(a)(i)). In both cases the chosen
law is primarily applicable, while if no choice is made, different solutions are given for
each of the cases just referred to. In setting aside, the applicable law is the law of the court
which is to decide the issue of setting aside, and in recognition and enforcement, it is the
law of the place of the making of the award.
36. Since these conflict rules might be regarded as applicable only in the context of
articles 34 and 36, the Working Group may wish to consider the usefulness of a general rule
which would also apply to the time before the making of the award or even before the
commencement of arbitral proceedings.
37. As to the content of the conflict rules in articles 34 and 36, it may be noted that both
rules would lead to the same result if the Working Group adopts the strict territorial
criterion in delimiting the scope of application of the model law. If in such a case a general
rule on the law governing the arbitration agreement were adopted, the governing law
should be the law to which the parties have subjected the arbitration agreement or, failing
any indication thereon, the law of the place of arbitration.
38. If, however, the Working Group decides that the parties should be allowed to subject
the arbitration to a law different from the law of the place of arbitration, a conflict
between the two rules might arise. If the parties have subjected the arbitration to a law
different from the law of the place of the making of the award, in the setting-aside
procedure the validity of the arbitration agreement would be governed by the law which
governs the arbitration and not by the law of the State where the award was made. In the
same arbitration, but in the recognition and enforcement procedure, the validity of the
arbitration agreement would be governed by the law of the State where the award was
made.
39. Therefore, if the parties were to be given the autonomy to subject their arbitration to a
procedural law different from the law of the place of arbitration, the Working Group may
wish to consider aligning the two conflict rules. To achieve the alignment, article 36(1)(a)(i)

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 would have to be modified to the effect that, if the award is not made in the State of the
law which governs the arbitration, the arbitration agreement would be governed by the law
governing the arbitration. If, at the same time, a general rule on the law governing the
validity of the arbitration agreement were to be adopted, it is submitted that the
governing law should be the law to which the parties have subjected the arbitration
agreement or, failing any indication thereon, the law which governs the arbitration.
40. Furthermore, it may be noted that no solution has been provided for cases where the
parties have not subjected the arbitration agreement to a law and it cannot be
P 106 ascertained where the award is to be made. Since the question of the validity of an
P 107 arbitration agreement may arise before these connecting factors are established, the
Working Group may wish to consider whether it would be useful to include in the conflict
rule a provision on a supplementary connecting factor.
41. As to the question which connecting factor might be included in the conflict rule, no
ideal solution has been found to date. However, it appears that it would not be contrary to
the expectation of the parties if, failing the first two connecting factors, the arbitration
agreement is governed by the law which governs the contract in relation to which the
dispute has arisen.
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[….]
Chapter I. General Provisions
Article I
[….]
Territorial scope of application of the model law
165. In the context of article 1, the Working Group discussed the question of territorial
scope of application of the model law on the basis of a note by the Secretariat ([Fifth
Secretariat Note,] A/CN.9/WG.II/WP.49), in particular the question whether the parties had
a right to exclude the applicability of the procedural law of the place of arbitration by
agreeing on a foreign procedural law. In discussing that question, it was understood that
the working assumption in the preparation of the model law had been that the model law
would govern arbitrations which took place in the State of the model law. However, that
assumption did not exclude the possibility of including in the model law a provision which
would give the parties an autonomy in choosing the procedural law governing the
arbitration.
166. Some support was expressed for the view that the parties should have the autonomy
to subject an arbitration to a procedural law other than the law of the place of arbitral
proceedings. It was pointed out that arbitral proceedings should not be linked exclusively
to the procedural law of the territory where such proceedings took place since the parties
might have a legitimate interest to subject an arbitration to a particular procedural law
while having equally legitimate interest in conducting arbitral proceedings in a State other
than the State of the governing procedural law.
167. However, the view prevailed that the place of arbitration should be the exclusive
determining factor for the applicability of the model law. It was stated in support of that
view that the exclusive territorial criterion provided a clearer answer to the question as to
which law governed an arbitration and which courts had the competence to intervene in
the arbitral proceedings. It was further stated that, if the parties had the autonomy to
choose a procedural law governing arbitration, a court of the place of arbitration might
P 107 nevertheless consider itself competent to intervene in arbitral proceedings and that, if the
P 108 intervening court would have to apply the chosen procedural law, this may lead to
difficulties where the remedies prescribed in the applicable procedural law were
essentially different from the remedies prescribed in the law of the place of arbitration.
168. The Working Group decided not to deal expressly in this article with a criterion for the
delimitation of the scope of application of the model law. The Working Group decided not
to review individual articles where this issue might be of particular relevance except for
article 34. [Editors' Note: See paragraphs 131, 169-70 of this document, appearing in the
section on Article 34, pp. 948, 950-51 infra].
[….]
B. Other issues
[….]
6. Conflict of laws issues
198. With reference to the conflict of laws issues discussed in [the Fifth Secretariat Note,]
document A/CN.9/WG.II/WP.49, paragraphs 28 to 41, the Working Group considered whether
any general conflict of laws rules should be prepared as part of the model law.
199. The Working Group was divided on whether such conflicts rules should be included in
the model law. Under one view, it was desirable to include rules on the law applicable to

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 the validity of the arbitration agreement in order to have a comprehensive law dealing
with all important aspects of arbitration. Under another view, it was desirable to include in
the model law rules on conflict of procedural laws since that issue was directly connected
with the subject-matter dealt with in the model law.
200. Under yet another view, it was not appropriate to include in a model law on
arbitration any conflicts rules. It was pointed out in support of that view that such rules
were normally contained in other laws of a State and that there was less need for such
rules in the model law in view of the decision of the Working Group not to include a
provision on the territorial scope of its application. It was further noted that the Hague
Conference on Private International Law was considering the preparation of a convention
on the law applicable to the validity of arbitration clauses.
201. The Working Group was agreed that harmonization of conflicts rules relating to
arbitration was desirable but that it was not appropriate to envisage inclusion of conflicts
rules in the model law, which the Commission was expected to adopt in 1985. It was
understood that the Commission may wish to consider the matter and decide on its
possible future course of action, in particular, as regards the co-ordination of work
between it and the Hague Conference on Private International Law. (*)
P 108
P 109
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[….]
Article 1. Scope of application
1. Territorial scope of application (14)
1. Finland and Norway support the prevailing view expressed in the Working Group that the
place of arbitration should be the exclusive determining factor for the applicability of the
model law. (15) Finland considers that this approach best corresponds to the practice of
most countries. Norway observes that this view is reflected in article 36(1)(a)(iv) where “the
law of the country where the arbitration took place” is referred to. This scope, which should
be expressed in a separate paragraph or article of the model law, would apply to the bulk
of the provisions of the model law, in particular to those in chapters III to VII, while some of
the provisions of the model law are intended to have a broader, in fact global, scope of
application (e.g. articles 8, 9, 35 and 36, and by implication also articles 1, 2, 4 and 7).
Norway emphasizes, however, that the issue of the territorial scope of application of the
model law needs a further, careful examination which should take into account all the
different aspects and related questions.
2. The German Democratic Republic notes that the model law does not give a conclusive
answer as to the possibility of the choice of procedural law. It is thought that the model
law, in conformity with the territorial principle, should not have an escape clause pursuant
to which the parties may preclude the law on arbitration existing in the respective
territory of the country in favour of the law of another State.
[….]
P 109
P 110
Article 6. Court for certain functions of arbitration assistance and supervision
Comments relating to the jurisdiction of the Court
1. Italy raises the question of how to determine, at least for the cases dealt with an articles
11(3), 11(4) and 13(3), the country whose courts are competent, where the parties have not
agreed on a place of arbitration. It proposes to consider a solution like the one contained
in article 810(2) of the Italian Code of Civil Procedure which provides for the competence of
the court of the place where the arbitration agreement or the contract containing the
arbitration clause has been concluded.
2. Poland supports the idea of specifying in article 6 the competence of a State court for
certain functions of arbitration assistance and supervision. It is pointed out, however, that
article 6 does not settle the competence of State courts in matters not governed by the
model law; Poland lists as example of such matters: arbitrability, capacity of parties to
conclude an arbitration agreement, jurisdictional immunity of foreign States, competence
of an arbitral tribunal to adapt contracts to changed circumstances, fixing of fees for
arbitrators or deposits for costs. It is thought that by limiting the scope of article 6 only to
matters governed by the model law, the advantage of this article is substantially
diminished.
[….]
5. It is proposed to clarify, in respect of all court functions mentioned in article 6 (German
Democratic Republic) or in respect of the functions under articles 11, 13 and 14 (Soviet
Union), whether the place of arbitration determines the jurisdiction of the Court specified
in article 6, or whether it is, for example, the court in the country of the claimant or the
country of the respondent. The Soviet Union notes that, in contrast to articles 27(1) and

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 34(1), no specific territorial or other criterion is provided for the jurisdiction of the organ
designated in article 6, apart from the very general provision of article 1 on the scope of
application of the model law; as a result, it is thought probable that a situation will arise
where the parties would address, for example, for the purpose of appointing an arbitrator,
the courts in different States both of which have adopted the model law, and where each
of the courts would consider itself competent to make the appointment. Since such
possibility of concurrent jurisdiction would create difficulties in the functioning of
international commercial arbitration, it is proposed by the Soviet Union that in providing
specific criteria for the competence of the body designated to perform the functions under
articles 11, 13 and 14, regard should be had, for example, to the case where the parties
agree that the arbitration be conducted under the model law or the case where the
arbitration is to be conducted in the territory of the State which has adopted the model
law and the parties have not agreed to submit the arbitration to the law of another State.
6. Czechoslovakia proposes that article 20 should provide that the place of arbitration is
decisive for the determination of the court having the jurisdiction to perform the functions
of arbitration assistance and supervision and to set aside the award.
[….]
P 110
P 111
C. Comments on additional points
[….]
2. Suggestions for new provisions on additional issues
[….]
Conflicts of law issues
12. The German Democratic Republic observes that the model law does not contain rules
on certain conflicts of laws, for example, rules on the law applicable to arbitration
agreements and on the law applicable to awards on the merits, and that the preliminary
drafts contained proposals for such rules which appeared to be appropriate to the nature
and purpose of the model law. It is suggested that the advisability of having such rules be
reconsidered.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[….]
Article 1. Scope of application
1. Territorial scope of application
1. AALCC [Asian-African Legal Consultative Committee], noting that the model law does not
contain any provision on the territorial scope of application, is of the view that the model
law should not incorporate territorial limits.
[….]
Article 6. Court for certain functions of arbitration assistance and supervision
1. Yugoslavia, noting that this article deals with the competence of the Court within a legal
system and not the question of its international jurisdiction, proposes formulating a
solution according to which, in the first place, international jurisdiction would be given, in
principle, to the Court of the State to whose procedural law the parties have agreed to
subject their arbitration, and, in the absence of such an agreement, the jurisdiction would
depend on the place of arbitration. It is noted that a problem would arise where the
parties have not reached such an agreement and where the place of arbitration has not
been determined, if there is a need for court intervention before the arbitral proceedings
have commenced.
A/CN.9/263/ADD.2 (21 MAY 1985) (UK COMMENTS)
Territorial scope of the law and jurisdiction of courts
6. It is necessary for the model law to adopt a stance on these separate but closely
connected issues.
P 111
P 112
7. The issue of jurisdiction arises in this way: suppose two parties with places of business in
two different States, A and B, choose to arbitrate in State B. (The model law does not at
present exclude an application to the courts of State A under Articles 11-14 (though it will
do so if it is described to limit its scope of application in a strictly territorial way) or where
the “matter” is not governed by the model law.) If the courts of A and B take divergent
views, then a conflict of jurisdiction arises.
8. The issue of territorial scope arises in particular when two parties in two different States,
C and D, which both have adopted the model law, choose to arbitrate in State D under the
arbitration law of State C. Should the model law allow for its “exportation” in this manner?

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 9. There are of course two possible approaches to the latter issue:
• To allow the parties to choose the arbitration law of another State adopting it. The
effect of Article 6 of the model law would mean, in the example given above, that the
courts of State D will be deprived of any jurisdiction over the arbitration taking place
within that State's territory. This is because the chosen curial law will give exclusive
jurisdiction to the courts of State C. This may be termed the “extraterritorial
approach.”
• To specify that the model law applies only to arbitrations within the territory of the
State adopting it, regardless of the choice of a foreign curial law of the parties. This
deprives the parties of their freedom of choice, but ensures that the court of the
arbitral forum has jurisdiction in all cases and since the model law is not
“exportable” then, in the example given above, the courts of State D will have
exclusive jurisdiction only in respect of arbitrations taking place within their territory.
10. A third approach, allowing the choice of a foreign curial law but giving the courts of
arbitral forum a concurrent jurisdiction, is precluded by the structure of the draft and in
particular Article 6. The other possibility, again like the third separating the issue of
territorial scope from the question of court jurisdiction, is to allow the parties to choose
the foreign curial law but override the resulting choice of the foreign court—but a fortiori
this is precluded by the draft as presently worded.
11. The United Kingdom prefers a territorial approach: the model law should apply only to
arbitrations within the territory of the State adopting it whose courts should have exclusive
jurisdiction over the arbitral proceedings and recourse actions under Article 34. It would
be unacceptable to have the jurisdiction of the local court completely ousted in respect of
arbitrations taking place within its territory. Difficulties will also arise under Article 36(1)(a)
(iv) (and also under the New York Convention) if the foreign procedural law differs from that
of the arbitral forum. The courts of the arbitral forum are the most logical choice as the
courts of recourse—they are best placed to enforce any orders made, are convenient for
the parties and and [sic] may be taken to be their choice (especially under a “territorial”
model law).
P 112
P 113
12. Difficulties do however arise where, in the example given above, State C has adopted
the law but State D has not. Under the territorial approach the model law is not exportable
and the courts of C can only control arbitrations within the territory of C (as a result of
Article 6). The courts of State D may not have jurisdiction under their own law because the
parties have chosen another. This problem may be more academic than real. Only if the
question of jurisdiction is separated from that of territorial scope can it be dealt with in a
satisfactory manner.
A/CN.9/263/ADD.3 (31 JULY 1985) (COMMENTS OF EGYPT)
I. General Comments
[….]
D. Territorial scope
10. Without prejudging the result of the debate which will take place in the Commission on
the problem of territoriality or extra territoriality of the model law which the Working
Group left for its consideration, Egypt would like to clarify its position on two questions
related to this problem.
11. The first question concerns the freedom of the parties to choose the rules of procedure
governing their arbitration. Whatever the result of the debate which takes place in the
Commission on this problem, Egypt insists that this freedom should be respected. Apart
from rules aimed at protecting justice, Egypt would be opposed to any solution restricting
this freedom, whether by obliging parties to apply the rules of procedure of the place of
arbitration or by limiting their right to seek rules of procedure in other sources of their
choice (for example a foreign law, an arbitration rule or even their own will).
12. [Editors' Note: The second question concerned the territorial scope of application of
Article 34. As to this question, Egypt favored a territorial approach, so as to avoid courts, in
setting aside proceedings, ruling on the validity or nullity of awards rendered outside their
territory. For the full text of Egypt's comments on this point, see the section on Article 34, p.
961 infra].
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
II. Territorial scope of application (not yet decided)
4. “This Law,” in its present form, does not generally state to which individual arbitrations
(of international commercial nature) it applies. One possibility would be to use as a
determining factor the place of arbitration, that is, to cover all arbitrations taking place in
“this State” (X). Another possibility would be to recognize the parties' freedom to select a
P 113 law other than that of the place of arbitration and to cover all arbitrations taking place in
P 114 State X, unless the parties have chosen the law of another State, as well as those
“foreign” arbitrations for which the parties have selected the law of “this State” (X).

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 5. The prevailing view in the Working Group was in favour of the first solution (i.e. strict
territorial criterion) but the decision was not to deal expressly in article 1 with this issue.
(14) The question was also left undecided in the context of article 34, as indicated by the
two variants placed between square brackets: “award made [in the territory of this State]
[under this Law].” (15) Similarly non-committal is the present wording of article 27 (“arbitral
proceedings held in this State or under this Law”) which would accommodate both of the
above possibilities. (16)
6. The question of the territorial scope of application, which remains to be solved by the
Commission, needs to be answered in respect of most but not all provisions of the model
law. The reason is that certain provisions, dealing with the role of the courts of State X in
respect of recognition of arbitration agreements (articles 8 and 9) (17) and recognition and
enforcement of awards (articles 35 and 36), are intended to cover arbitration agreements
or awards without regard to the place of arbitration or any choice of procedural law.
SUMMARY RECORD A/CN.9/SR.309, .310, .312, .314, .315, .330, .332
[5 June 1985, 9:30 a.m., A/CN.9/SR.309]
Article 6. Court for certain functions of arbitration assistance and supervision
[….]
44. Mr. STROHBACH (German Democratic Republic) said that article 6 should not be
interpreted as an indication of the competence of the court, particularly in cases of
multiple competence. The article was referred to in later articles and should be expanded
to include the criteria for assigning jurisdiction, such as the place of arbitration, the place
of business of the defendant or the habitual residence of the arbitrator.
45. Mr. SZASZ (Hungary) said that the issue really at stake was the territorial scope of the
model law, which should be decided by the Commission for the text as a whole rather than
for article 6 alone.
P 114
P 115
46. Mr. HERRMANN (International Trade Law Branch) said he felt that the Commission
should settle the various questions concerning the territorial scope of the model law
straight away. The Secretariat had summed the matter up in paragraphs 4 to 6 of its
comments on article 1 ([Seventh Secretariat Note,] A/CN.9/264, [Art. 1]). Most members of
the Working Group on International Contract Practices had been in favour of the strict
territorial criterion, but a minority had considered that the parties should be allowed
some freedom to select the law governing their arbitration. The 1958 Convention on the
Recognition and Enforcement of Foreign Arbitral Awards acknowledged the existence of
both criteria in national law, but in practice parties rarely took advantage of their
autonomy of choice of law where it existed.
[5 June 1985, 2:30 p.m , A/CN.9/SR.310]
Article 6. Court for certain functions of arbitration assistance and supervision (continued)
1. The CHAIRMAN [Mr. LOEWE (Austria)] said that the question of territoriality had been
raised by the Secretariat in connection with article 6. If it was the Commission's feeling
that there was an important problem in that connection a decision could perhaps be
reached and, if necessary, a text prepared.
2. Mr. HERRMANN (International Trade Law Branch) said that a number of difficulties arose
when arbitration proceedings were held in one country under the procedural law of
another: for example, in the taking of evidence or in applying for the annulment of an
award. The general feeling in the Working Group had been that in terms of the competent
court, the procedural law of the place of arbitration should prevail. The choice of any other
criterion could lead to unmanageable situations. It was felt that it would be appropriate to
state the principle explicitly in the model law, particularly since the 1958 Convention on
the Recognition and Enforcement of Foreign Arbitral Awards envisaged the existence of
both the territorial system and the party autonomy system.
3. Mr. HOLTZMANN (United States of America) said that the law of the United States
assumed that the procedural aspects of an arbitration, whether concerning the arbitrators
or judges in connection with the arbitration, would be the law of the seat of arbitration. He
recognized that in some States there were laws which, in the interests of party autonomy,
said that the parties could choose another procedural law, first in the procedures to be
followed by the arbitrators, and secondly, to some degree, in the procedure followed by
the courts. Nevertheless, there was an inherent limitation, even where States permitted
the parties to use the procedural law of their choice. They could not, for example, import
into one State from another State something which violated the second State's public
policy. As the Secretariat had noted, the simplest approach would be to have those States
which adopted the model law be in the same position as the vast majority of States, which
P 115 was that, if an arbitration was conducted in their territory, in so far as a procedural law
P 116 governing the subject of arbitration existed there, that law should be followed by the
arbitrators and by the courts. That would greatly simplify the task of drafting the model
law. If both territoriality and party autonomy were to apply, all the various circumstances
would have to be defined. That was why the Working Group had favoured a strict territorial
principle, and why his delegation continued to do so. He felt that it would be wise to state

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 the principle clearly in the model law at an early stage.
4. As far as article 6 was concerned, his delegation agreed with the remarks of the German
Democratic Republic and with the written comments of the Soviet Union pointing out the
problems that would arise in regard to the role of the courts in the appointment of
arbitrators or in dealing with challenges in the event that the commercial contract had not
specified the place of arbitration. It would be wise to provide specifically for one place
and one court in a situation of that kind, in which a defendant refused to facilitate the
arbitration by appointing an arbitrator. In such circumstances, where one of the parties
would not appoint an arbitrator and no place had been agreed on, the plaintiff should be
able to turn to his own court to appoint an arbitrator for the defaulting defendant. It could
logically be argued that either place would be appropriate in a situation of that kind, but
it would be simpler to pick the court of the plaintiff for dealing with such problems as
appointment and challenge. A provision to that effect should therefore be added to article
6. It was not essential to decide on the territorial question for the moment, but he agreed
with the Secretariat that it would be wise to reach a decision rapidly.
5. Mr. ROEHRICH (France) agreed largely with the United States position, but felt that it
might not be appropriate to have a general provision affirming strict territoriality. Room
should be left for party autonomy, and for recognition that, in a given State that had
adopted the model law, the parties could choose another law for the arbitration although,
as far as the assistance and supervision of the State court was concerned, territoriality
must apply. The Commission should examine the draft article by article to see if it was
necessary in each case to provide for territoriality. As he felt, that need existed in article 6,
and above all in article 34(1), where a choice would have to be made between the two
phrases left in square brackets, “in the territory of this State” and “under this law.” It was
clear that, for the court functions mentioned in article 6, the territorial criterion should be
specified and he therefore supported the proposal of the German Democratic Republic.
6. Mr. BONELL (Italy) said that his delegation's basic assumption was that the model law
was intended to apply only and exclusively to arbitral proceedings taking place within the
territory of the enacting State, i.e. the so-called territorial approach. It believed, therefore,
that article 6 should be understood as indicating that the court of the State in which the
arbitration took place was competent in the matters specified in the article. In his
delegation's written comments on the jurisdiction of the State court ([Sixth Secretariat Note
(Government Comments),] A/CN.9/263, [Art. 6,] para. 1) attention had been drawn to the still
P 116 open question of what would happen if cases of the kind envisaged in articles 11(3), 11(4)
P 117 and 13(3) arose before the place of arbitration had been determined. Accordingly, article 6
needed to be drafted so as to cover such hypothetical cases. A possible solution would be
a provision similar to that in the Italian Code of Civil Procedure, which provided in such
cases for the competence of the court of the place where the arbitration agreement or the
contract containing the arbitration clause had been concluded. His delegation attached
great importance to the inclusion of such a provision in article 6, since otherwise the whole
mechanism would not function satisfactorily.
7. A number of other interesting aspects had been raised in connection with article 6. It was
true that the 1958 New York Convention did not explicitly state the territorial criterion, or
the principle of party autonomy, but there was no reason why it should have done so since
its aim was simply to regulate the execution of foreign awards. Article 1 [sic—Article I is
intended] of the New York Convention was significant in that respect, since it recognized
that there was no uniformity as to the criteria for defining the nationality of arbitral
proceedings. It referred to the most common case, that of an arbitration taking place
abroad, but stated that the Convention also applied to “arbitral awards not considered as
domestic awards in the State where their recognition and enforcement are sought.” The
model law was more ambitious in seeking to cover not just the recognition and
enforcement of foreign awards but all possible international arbitral proceedings. It was
intended to go beyond procedural issues strictu sensu, where the parties should be
enabled to enjoy the greatest possible autonomy, and to act as a kind of constitutional law
for international commercial arbitration. It therefore had to clarify whether the principle
of party autonomy could still be admitted in so large an ambit. His delegation's view was
that it should not, and possibly could not. Accordingly, the territorial approach should be
adopted on an exclusive basis. The Commission could, however, show a certain flexibility
in adopting that approach. It could avoid laying down the principle in a general fashion,
and settle the matter only where it must inescapably be dealt with, as in article 34. His
delegation, therefore, was open-minded. It would not object if the territorial criterion was
not spelt out from the beginning, but, as far as substance was concerned, that should be
the only criterion in determining the application of the model law.
8. Mr. BROCHES (International Council for Commercial Arbitration) said that there seemed
to be a general feeling that the Commission should look at each instance separately and
that it was not yet time to formulate a general provision. While it was not necessary to do
so in the case of article 6, the discussion had awakened an awareness of the problems that
lay behind it. Opinions could be strong on some issues, for example in connection with
article 34, regarding the power of a court to set aside an award not made under its law on
the grounds that it was made within its territory. France, for example, held that an
international award could be annulled if it was made in France. From the practical point of
P 117 view, it was important for the parties to know where they could turn for judicial assistance,
P 118

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 P 118
or to lodge an appeal. A stage had been reached where the actual place of arbitration
was becoming more and more of a fiction. For instance, in a case involving a French
company and a Turkish company the International Chamber of Commerce had decided
that the place of arbitration should be Austria. Until an action for annulment was brought
in Austria, the whole proceedings has actually taken place in France. The Commission
would have to consider to what extent a distinction might have to be made between the
place of arbitration for purposes of enforcement or annulment, and for other stages of the
proceedings. All those complications would have to be kept in mind as the Commission
went through the draft.
9. Mr. MOELLER (Observer for Finland) agreed that it was time for the Commission to try to
decide whether it should have as its starting point a strictly territorial scope or the
approach that the parties should be free to subject their arbitration to a law other than the
law of the place of arbitration. Finland, for example, would like to change its current
procedure and accept the territorial criterion because of the extreme complications that
could arise under the other system. It would be helpful if the Commission could reach
agreement on whether or not to adhere to the territorial concept so as to avoid difficulties
at a later stage.
10. Mr. SZASZ (Hungary) said the Commission should consider the practical situation of a
judge in a country where the model law had been adopted as part of the national
legislation and the parties had selected the procedure of another country for their
arbitration proceedings. If that judge was approached by one of the parties, what should
his attitude be towards the mandatory rules of the model law? The Commission must take
up a position on the subject of territoriality and then see how it would apply in the various
articles. There would have to be exceptions, but there must be a clear-cut approach. His
delegation offered to adopt the concept of strict territoriality to start with.
11. Mrs. RATIB (Egypt) said that Egypt wished to make its position clear on two matters
connected with the problem of territorality. The first was the autonomy of the parties to
choose the rules of procedure for their arbitration. Exception made of public policy, Egypt
would oppose any restraint on that freedom which might oblige the parties to apply the
procedure of the place of arbitration or restrict their right to adopt rules of procedure from
other sources of their choice. In article 34, the question of territoriality was covered by two
phrases in square brackets. In that case, Egypt opted for territoriality, i.e. the maintenance
of the phrase “in the territory of this State” and the deletion of the other phrase “under this
law.” The latter phrase could in fact give national courts competence to rule on the validity
or otherwise of a decision made outside their territory. Such extraterritorial competence
was not acceptable for a number of countries unless it was on a reciprocal basis.
12. Mr. LAVINA (Philippines) endorsed the recommendation of the Working Group. He
believed that the principle of territoriality was both logical and practical. An eclectic
criterion would lead to confusion and delay in arbitration proceedings. The autonomy of
P 118 the parties was desirable but in the case under consideration, it had to be related to some
P 119 other basic issues such as public policy in the State of the place of arbitration. Opting
for the procedure of another State might cast doubts on the soundness of local procedural
law. There was also the question of sovereignty. Normally, legislation had an exclusively
territorial application.
13. Mr. KNOEPFLER (Observer for Switzerland) said that in cases where the parties had not
previously determined the place of arbitration, the United States proposal was interesting.
He was less favourable to the idea of selecting the place where the contract or arbitration
agreement had been concluded since it rarely had any link with the substance of the
contract. He favoured the principle of territoriality but did not wish it to be opposed to the
autonomy of the parties. They should not be prevented from choosing certain rules of
procedure of a country other than that of the place of arbitration. His delegation favoured
territoriality in order to avoid a positive conflict of jurisdiction.
14. Mr. SCHUMACHER (Federal Republic of Germany) said he shared the majority view that
the decisive factor should be the place of arbitration, because articles 27 and 34 of the
model law dealt with the role of the courts. They could only be the courts of the State in
which the arbitration took place and they would always apply their own procedural law.
That meant that the courts of a State in which the model law did not apply could not be
obliged to fulfil the functions envisaged in articles 27 and 34. Agreement of the parties to
apply the law of another State could relate only to the arbitral tribunal in so far as it kept
within its functions as such. For that reason, and in the interests of certainty, he favoured
the territorial criterion at least as far as the possible functions of national courts were
concerned. A decision on territoriality should be made immediately in respect of article 6.
15. The CHAIRMAN said that the majority appeared to favour strict, but somewhat toned
down, territoriality. Once the place of arbitration was determined, the courts of the State
in question were competent. The Commission must decide later who should be competent
to appoint arbitrators when the place of arbitration had not yet been determined. The
participants also seemed agreed that such a decision did not prevent the parties from
choosing the procedure of another State, at least as far as the arbitration proceedings
themselves were concerned.
16. Mr. HOLTZMANN (United States of America) said he must enter a reservation with
respect to the broad statement that the parties could agree to adopt the procedure of a

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 State other than that of the place of arbitration. For his delegation, that must be subject to
the proviso that the foreign procedure was not contrary to United States public policy and
did not violate United States laws. Possibly other delegations might share that view.
17. Mr. HJERNER (Observer, International Chamber of Commerce) said that territoriality was
a simple principle, but simplicity was not the only virtue. In international arbitration
where state agencies were often involved, both the parties and the arbitration procedures
were more sophisticated. The parties might choose the procedure of a State other than
that of the place of arbitration, or opt for general principles, or for some other
P 119 combination. The wishes of parties in that regard should be fully respected, not only in
P 120 respect of the arbitration proceedings themselves but also with regard to the
possibility of challenging those proceedings on the grounds that the arbitrators had not
complied with local law.
18. Mr. ROEHRICH (France) noted the Chairman's statement that the court designated by
the State of the place of arbitration was competent but that that did not prevent parties
from choosing a different procedure. He thought that statement should be supplemented
by the observation that it in no way prevented the courts of the State whose law had been
chosen by the parties for the arbitration proceedings from declaring that they were
competent. That might not be stated as a rule, but the formulation adopted should not
exclude that possibility.
19. The CHAIRMAN said he would be most reluctant to insert into the model law rules on the
subject of disputed jurisdiction. If that course was followed, the Commission would end up
attributing to each jurisdiction the competence it already possessed. He hoped that the
Commission would be able to agree upon a model law, it being understood that the
arbitrators would apply the rules the parties wished unless the rules conflicted with the
public policy of the State to which the parties would have to turn for the annulment or
enforcement of the award. Experience with the Geneva Convention showed how
undesirable it was to enter into very great detail.
20. Mr. HOLTZMANN (United States of America) said it seemed to be the view of some
speakers that the national law to be followed by the arbitrators could be selected by the
parties but that the law to be followed by the courts could not. In fact, an example would
show that there could be no such dichotomy. He would suppose that the parties wished to
designate Austria as the place of arbitration but selected United States procedural law.
The United States Arbitration Act provided that an arbitrator might administer an oath to a
witness and that he might also issue a subpoena. Consequently, the appropriate penalties
for perjury and contempt of court were also applicable. In many civil law countries, such
powers on the part of the arbitrator would violate national law.
21. Mr. BONELL (Italy) endorsed the Chairman's view that the model law should not include
rules about disputed jurisdiction. Obviously, the model law must contain criteria to
determine its territorial scope, which the majority had supported. However, within that
framework, much of the model law was not intended to be mandatory. The parties were
free to determine the procedure for the arbitration proceedings proper, as expressly
stated in article 19, and indeed in respect of other aspects of the arbitration.
22. Mr. SAMI (Iraq) said that freedom of the parties was an admirable concept but there
could be no freedom without some limitations. As the discussion had made clear, the
parties were free to choose their own procedure for the arbitration proceedings but they
could not impose a law on the national courts of their chosen place of arbitration.
23. The CHAIRMAN said that the discussion now centred on the extent to which parties had
the right to choose their own procedure. With regard to the point raised by the United
States delegation, he thought that Austria—or some other countries—would not admit
P 120 certain acts by arbitrators when they exceeded the powers attributed to arbitrators by
P 121 national legislation. On the other hand, although Austrian law did not recognize written
testimony, if arbitration proceedings were being conducted according to a foreign
procedure which did admit it, written testimony would probably be regarded as
admissible, since it was neither coercive nor contrary to public policy. Generally, it would
probably be possible to apply about 90 per cent of the foreign procedure chosen by the
parties concerned. The question of disputed jurisdiction, raised by the French
representative, was a current problem which the formulation of a rule was unlikely to
solve. As an illustration, he would take the case of an award in an arbitration held in the
Federal Republic of Germany but under Austrian procedural law. In Germany (where the
law chosen by the parties was the test) the award was deemed a foreign award and in
Austria (where the place of arbitration was the material element) it was also a foreign
award and could not be set aside. However, it would be enforced everywhere as a foreign
award.
24. He suggested that the Secretariat should be requested to draw up a memorandum on
the principles on which agreement had been reached, namely strict territoriality but with
the possibility of agreement to apply the legislation of some other State provided it did
not impinge on the functioning of the national courts and was not contrary to public policy
in the State of the place of arbitration. Such a memorandum would be useful when the
Commission considered other articles of the model law. Article 6 was perhaps not the
appropriate place to consider it since it had been designed for other purposes. He
therefore hoped that the Commission could agree to article 6 fixing the territorial

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 competence of each State which accepted the model law, taking account of the decision
on territoriality and extra-territoriality which had just been reached.
25. Mr. SAWADA (Japan) said that his delegation could accept the Chairman's summary as
just restated, namely that the choice by the parties of an arbitral procedure should not
derogate from the judicial powers of the State where the arbitration took place.
The discussion covered in the summary record was suspended at 4.55 p.m. and resumed at
5 p.m.
26. The CHAIRMAN made a drafting suggesting following what had been foreseen as a
memorandum by the Secretariat. It had been suggested that the system of territoriality
would operate with difficulty in certain situations where no place of arbitration had been
determined. Therefore, it was perhaps inappropriate to mention [in Article 6] articles 11(3),
(4), 13(3), 14 and 34(2). He suggested that the text should be amended to read “to perform
the functions referred to in this law,” and then in the articles in question an exception
would be introduced with the proviso that it was a real exception which did not contradict
the general rule stated in article 6.
27. Mr. HERRMANN (International Trade Law Branch) said that the idea of listing those
articles in article 6 together with the court functions envisaged was to make it clear that
the proposal to designate one or more special courts for that purpose only applied to
those functions and not to other court functions in the model law, such as those envisaged
P 121 in articles 8, 9, 27, 35 and 36. The purpose of article 6 was to centralize matters at a
P 122 specialized court; it would, for example permit certain urgent matters, such as
appointment and challenge, to be heard by only one person such as the President of the
court. Those considerations did not apply to other functions.
[….]
31. Mr. MTANGO (United Republic of Tanzania) said that he did not agree with the majority
view on the territorial scope of application. He supported the proposal that the functions
mentioned in article 6 should be assigned to the court or another competent organ.
[Editors' Note: Proposed rules to govern possible conflicts of court jurisdiction were also
briefly discussed in connection with Article 6. See paragraph 29 of this document and
paragraphs 1-2 of A/CN.9/SR.311, both appearing in the section on Article 6, pp. 251, 254
infra.]
[6 June 1985, 2:00 p.m., A/CN.9/SR.312]
Article 11. Appointment of arbitrators
[Editors' Note: For the text of Article 11 that was before the Commission, see pages 377-78
infra.]
[….]
64. Mr. HOLTZMANN (United States of America) said that the Commission must take a
decision on which court should be deemed the competent court under article 11(3) when
the parties had not yet agreed upon a place of arbitration. The choice lay between the
national courts in the countries where either the defendant or the claimant had his place
of business. He favoured that of the claimant since the defendant had failed to appoint an
arbitrator under article 11(3)(a).
65. The CHAIRMAN [Mr. LOEWE (Austria)] pointed out that under the 1961 European
Convention [on International Commercial Arbitration, 484 U.N. T.S. 349 (Geneva)], the country
of the defendant had been selected. It would consequently be hard for States which were
parties to the European Convention to agree to any different arrangement. Perhaps, if the
authority in the defendant's country failed to appoint an arbitrator, the duty might pass to
the authority in the claimant's country.
66. The CHAIRMAN suggested that the Secretariat, in consultation with the United States
representative, might propose suitable wording. The issue appeared to be settled in
respect of article 11(3)(a). As to article 11(3)(b), in cases where no place of arbitration had
been selected, the matter was perhaps rather more difficult and it had in fact been the
subject of a complete annex in the European Convention.
67. Mr. HERRMANN (International Trade Law Branch) pointed out that the situation, which
might be covered by the decision just adopted—namely that it would be the authority of
the defendant's country—would apply only until the place of arbitration was agreed or the
P 122 parties exercised their freedom to choose another procedural law. At that stage, the
P 123 problem would be solved and it was therefore questionable whether there was any
need to make a special provision in the model law. The parties were not left in a vacuum,
since there existed arbitration laws which would give similar assistance to that provided in
the model law itself.
68. Mr. EYZAGUIRRE (Observer, Inter-American Bar Association) said that the case
envisaged was a very remote possibility for which there was adequate provision in
institutional arbitration arrangements. It was not a matter of great importance whether the
decision was taken by the national court of the claimant or that of the defendant or by
some third party.

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 69. Mr. HOLTZMANN (United States of America) pointed out that under the UNCITRAL
Arbitration Rules application might be made to the Secretary–General of the Permanent
Court of Arbitration at the Hague to designate an appointing authority.
70. Mr. STALEV (Observer for Bulgaria) thought that, in view of the rarity of the case, it would
be reasonable to accept the national court of the country in which the defendant had his
place of business, i.e. the same solution as in article 11(3)(a).
71. Mr. HERRMANN (International Trade Law Branch) observed that the model law could
state only whether in the case of States which had adopted the model law, the court
specified under article 6 should perform that function or not. A provision might be
adopted along the following lines: “irrespective of whether this law in general applies,
before the place of arbitration or, if permitted, the procedural law is chosen, the court
specified under article 6 may render assistance under article 11, provided that the
defendant has his place of business in this territory.” With such a provision, it would be
difficult for the court to refuse to act.
72. The CHAIRMAN said that the court might have doubts as to the validity of the arbitration
agreement.
73. Mr. STALEV (Observer for Bulgaria) said that the court might take no action for a
considerable time.
74. The CHAIRMAN, noting that such cases were very rare and that the elaborate
arrangements in the 1961 European Convention had never been applied in practice,
proposed that the same rule should be adopted for paragraphs 3(a) and (b). Where no
place of arbitration had been agreed, the appointment of the sole arbitrator should rest
with the national court of the territory in which the defendant had his place of business, or
if that court refused to act, with the national court of the territory in which the claimant
had his place of business.
75. It was so decided.
Article 11(4)
76. Mr. HOLTZMANN (United States of America) observed there was another reference in
article 11(4) to the court specified in article 6.
77. The CHAIRMAN suggested that the same rules should be adopted as in article 11(3).
P 123
P 124
[7 June 1985, 2:00 p.m., A/CN.9/SR.314]
Article 13. Challenge procedure
[….]
34. Mr. HOLTZMANN (United States of America) said that the question of which court was
competent remained to be decided in cases in which the place of arbitration had not yet
been determined.
35. The CHAIRMAN [Mr. LOEWE (Austria)] understood that it had already been decided that
where the place of arbitration was known, it would be the court in the place of arbitration.
Otherwise, it would be the court of the country of the party nominating the challenged
arbitrator.
36. Mr. LEBEDEV (Union of Soviet Socialist Republics) had reservations concerning the use
of that formula in national legislation since he did not believe it was possible for that
legislation to lay down rules of jurisdiction for the court of another country. In his view, if
the place of arbitration were not known, then the competent court would be that of the
State adopting the model law.
37. Lord WILBERFORCE (Chartered Institute of Arbitrators) suggested that an alternative
might be to use the mechanisms contained in the UNCITRAL Arbitration Rules and ask the
Secretary-General of the Permanent Court of Arbitration to nominate a suitable
independent person.
38. The CHAIRMAN doubted whether the Secretary-General of the Permanent Court of
Arbitration would be willing to discharge that function.
39. Mr. HOLTZMANN (United States of America) said that he believed the Secretary-General
would do so and understood that there were precedents indicating that this had been
done.
40. Mr. ROEHRICH (France) said that under a model law, as opposed to a convention, it was
up to the individual countries incorporating the model law to designate, under their own
national legislation, which courts would be competent. It was not possible to deal with
matters of international jurisdiction in that context. The same problem applied to article
11, although the Commission had not objected when considering it, and to article 14 as
well. He felt that it was not the responsibility of the Commission to deal with the question
of which court had jurisdiction when the place of arbitration was not known.
41. Mr. SZASZ (Hungary) said that the model law should not be addressed to external
bodies, but should be confined to the courts of the State adopting the model law. With

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 regard to the court indicated in article 6, he felt that it would not be too difficult to specify
in what circumstances that court was to act.
42. Mr. BONELL (Italy) said that he shared the doubts already expressed. The model law
was to be incorporated in the legislation of each individual State and no State could be
expected to renounce its prerogatives in the matter of jurisdiction.
43. Mr. MOELLER (Observer for Finland) said that he agreed with the view that it would not
be appropriate in the context of a model law to specify the competence of international
bodies such as that suggested by the observer from the Chartered Institute of Arbitrators.
P 124
P 125
[10 June 1985, 9:30 a.m., A/CN.9/SR.315]
Article 15. Appointment of substitute arbitrator
[….]
18. Mr. HOLTZMANN (United States of America) drew attention to an anomalous situation
which could arise under article 15: if the claimant failed to nominate the substitute
arbitrator, the effect of the earlier part of the draft would be that he would be nominated
by the court in the respondent's country. He thought that article 15 should contain a
proviso to prevent that.
19. The CHAIRMAN [Mr. LOEWE (Austria)] suggested that the problem might be solved by
appropriately redrafting article 11, and that it should be left to a drafting committee.
20. It was so agreed.
[19 June 1985, 9:30 a.m., A/CN.9/SR.330]
Article 1. Scope of application (continued) (A/CN.9/XVIII/CRP.12)
14. Mr. HERRMANN (International Trade Law Branch), introducing the Secretariat proposal
on a new paragraph (1 bis) for article 1 (A/CN.9/XVIII/ CRP.12), (*) said that it gave
expression to the Commission's tentative decision to adopt a strict territorial scope of
application for the model law. It had been decided that the provisions of the model law
would apply where the place of arbitration was in the particular State which had adopted
it, except for articles 8, 9, 35 and 36, which would apply irrespective of the place of
arbitration. On another point, the Commission had not as yet decided whether the court
assistance referred to in articles 11, 13, and 14 should be made available even before the
place of arbitration had been determined; if it decided that issue in the negative, the
proposed new paragraph (1 bis) would take a much simpler form, which was presented as
an alternative in document A/CN.9/XVIII/CRP.12. (*)
15. Since article 1(1 bis) would thus explicitly state that articles 8, 9, 35 and 36 were
P 125 excepted from the strict territorial scope of application, there was a risk of
P 126 misinterpretation if the global scope of application in some of those articles were
explicitly restated. If the Commission wished to make the point clear in respect of articles
35 and 36, the heading of Chapter VIII of the model law could be amended to indicate that
the articles in that chapter covered recognition and enforcement of awards irrespective of
the countries in which they were made.
16. The CHAIRMAN [Mr. LOEWE (Austria)] said that the Commission had tentatively decided
to include a provision on the territorial application of the model law if it could agree on a
suitable text, and otherwise to keep the original text, despite the risk of varying
interpretations.
17. Mr. ROEHRICH (France) supported the inclusion of a provision on territorial scope of
application, and expressed a preference for the second, shorter version of the new
paragraph (1 bis). However, his delegation had doubts about the further criteria which had
been suggested for the court functions mentioned in articles 11, 13 and 14, namely the
place of business of the claimant or the respondent, and felt that a better definition was
needed of the court which would provide the assistance. The shorter version of the
proposed new paragraph (1 bis) would not allow for court assistance before the place of
arbitration had been determined, but that assistance was rarely requested at such an
early stage.
18. Mr. SZASZ (Hungary) endorsed the comments of the representative of France. It was
essential for the model law to include a rule on the territorial scope of application and he
supported the shorter of the two versions submitted. He welcomed the Secretariat's
submission of two drafts, since it would be important for those drafting national law to
read the discussion and understand the reasons that had led to the Commission's decision.
19. Mr. BONELL (Italy), while appreciating the arguments advanced in favour of the shorter
text, supported the longer version. In the first place, the words “except articles 8, 9, 35 and
36” in the shorter text could be misconstrued as meaning that those articles would apply
only if the place of arbitration were not in the territory of the State concerned. His main
reason, however, was that the longer version provided for cases where court assistance was
needed but the place of arbitration had not yet been determined. It was true that the
Commission had to decide whether to deal with such cases or not, but he felt that a
provision on the subject should, if possible, be included. The Secretariat's proposal was

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 realistic and could meet many, if not all, of the circumstances which might arise in
practice. There might be problems with the intervention of different courts in the same
arbitral proceedings, but they would not be avoided by ignoring them. It was not always
possible for the parties to determine the place of arbitration and in those cases the court
would have to decide. A further reason for preferring the longer version was its provision
that, in that context, the criterion should be the place of business of the respondent.
20. The CHAIRMAN suggested that the first point raised by the representative of Italy might
be solved if the longer version was taken and it was specified that the provisions of the law
should apply “only” if the place of arbitration was in the territory of the State.
21. It was so agreed.
P 126
P 127
22. Mr. PELICHET (Observer, The Hague Convention on Private International Law) said that,
for technical reasons of legislative drafting, he had serious doubts about the value of the
proposed paragraph. The model law would be incorporated into national law and, in that
context, to state that a law would apply in the country adopting it would be to state a
legally self- evident proposition. With the proposed paragraph, it might be argued by a
contrario reasoning that a legislator adopting the model law would, for example, not allow
parties abroad to use the model law for their arbitral proceedings. In his opinion, the
proposed article would not serve any useful purpose.
23. Mr. HOLTZMANN (United States of America) agreed with the representative of Italy that,
if possible, it would be useful if the model law could provide for cases where the parties
had not agreed on the place of arbitration. He had reluctantly concluded, however, that at
the present juncture — and without a working group to deal with the complexities of the
problem — it was not feasible to address that situation.
24. Among the problems that would have to be resolved was whether the court chosen to
provide assistance should be that of the claimant or that of the respondent, or some other
court. He could not agree to the choice of the respondent's court. For reasons which he
would not explain unless the longer version were adopted for the new paragraph, he felt
that its provisions were inconsistent with those of the existing article 1. He therefore
supported the shorter version, on the understanding that the Italian representative's
drafting point and the Chairman's solution, to which he agreed, would be referred to the
drafting committee.
25. He suggested that it should be noted in the report that questions of assistance in
situations covered by articles 11, 13 and 14 were clearly not matters governed by the model
law. It was up to the parties to solve that problem — a resolution that was possible if the
parties showed goodwill — otherwise they would be left only with any remedies available
under domestic laws.
26. It was so agreed.
27. Mr. STROHBACH (German Democratic Republic) said that he was in favour of having a
new paragraph and supported the shorter version, with the Italian drafting amendment.
28. Mr. BROCHES (Observer, International Council for Commercial Arbitration) supported
the idea of a general article and also preferred the shorter version. He agreed with the
territorial scope of application as defined elsewhere in the model law.
29. Mr. VOLKEN (Observer for Switzerland) said that he did not entirely agree with The
Hague Conference Observer, because national law could perfectly well contain a rule
governing its scope of application or restricting that scope; the latter would be a self-
limiting rule.
30. Regarding the Secretariat's proposal, he preferred the shorter version but suggested
that it should be couched in more general terms, without listing the articles, on the
P 127 following lines: “The provisions of this Law apply if the place of arbitration is in this State
P 128 or if a court of this State is called upon to solve a legal question concerning arbitration.”
That would cover all the cases where a court of the State in question was called upon to
settle an issue related to a case of international commercial arbitration.
31. The CHAIRMAN suggested that the proposed amendment, which was a matter of
presentation, should be left to the drafting committee.
32. It was so agreed.
33. Mr. MOELLER (Observer for Finland), while not disagreeing with The Hague Conference
Observer that the rule in the proposed new paragraph was self-evident, felt that it was
nevertheless a useful provision. He supported the shorter version, subject to drafting.
34. Mr. LOEFMARCK (Sweden) endorsed the views of the representative of Italy. While he
would prefer the longer version for the new paragraph, he would bow to the majority if it
was in favour of the shorter one. He regretted, however, that the latter would rule out the
possibility of using the court specified in the model law.
35. Mr. LEBEDEV (Union of Soviet Socialist Republics) expressed regret that so little time
was left to deal with a very important issue. In that regard, he drew attention to his
delegation's proposal in its comments under article 6 ([Sixth Secretariat Note (Government

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 Comments)] A/CN.9/263, [Art. 6,] para. 5). That proposal was close to the idea — mooted
during the discussion — of combining the territorial criterion and party agreement. In the
circumstances, however, he was prepared to join the majority in supporting the shorter
version for the new paragraph on the understanding, indicated by the United States
representative, that the case where the place of arbitration had not yet been agreed upon
should remain outside the scope of the model law.
36. Mr. MTANGO (United Republic of Tanzania) shared the Soviet Union representative's
regret that there was not sufficient time to study the implications of the present issue. He
therefore preferred the approach suggested by the United States representative and
elaborated upon by the Soviet Union representative.
37. Mr. SAWADA (Japan) also supported the shorter version but agreed with the Soviet Union
representative that if the place of arbitration were not yet decided, rather than declare
that court assistance was not available under articles 11, 13 and 14, it would be better to
leave the matter to the law of the State concerned.
38. The CHAIRMAN said he took it that the Commission agreed that the shorter version of
the new paragraph (1 bis), subject to drafting changes, should be referred to the drafting
committee.
39. It was so agreed.
[….]
Article 8. Arbitration agreement and substantive claim before court (continued)
[sic — Chapter VIII is meant]
P 128 43. Mr. BROCHES (Observer, International Council for Commercial Arbitration) supported
P 129 the Secretariat suggestion concerning the chapter heading relating to article 8. [Editors'
Note: Sic, Chapter VIII is meant. The Secretariat suggestion referred to is reported in
paragraph 15, pp. 125–26 supra.]
44. The CHAIRMAN said that he doubted whether any change was really necessary because
the new paragraph (1 bis) of article 1 [Article 1(2) in the final text] specified that the
territorial restriction did not apply to articles 35 and 36.
[20 June 1985, 3:00 p.m , A/CN.9/SR.3323]
Article 1 [as revised by the Drafting Group]
1. Article 1 was adopted without change.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 6. Court for certain functions of arbitration assistance and supervision
[….]
Discussion on territorial scope of application
72. Divergent views were expressed as to whether the model law should expressly state its
territorial scope of application and, if so, which connecting factor should be the
determining criterion. Under one view, it was inappropriate to determine that issue in the
model law since the territorial scope of application of the law as adopted in a given State
was either self–evident from the fact of its enactment or was to be determined by the
particular State in accordance with its general policies in that regard, including its stance
on conflict of laws and on court competence. The prevailing view, however, was that it was
desirable to determine that issue in the model law in order to achieve a greater degree of
harmony, thereby helping to reduce the conflict of laws as well as of court competence.
73. As regards the connecting factor which should determine the applicability of the
(model) law in a given State, there was wide support for the so-called strict territorial
criterion, according to which the law would apply where the place of arbitration was in that
State. In support of that view, it was pointed out that criterion was used by the great
majority of national laws and that, where national laws allowed parties to choose the
procedural law of a State other than that where the arbitration took place, experience
showed that parties in practice rarely made use of that faculty. The model law, by its
liberal contents, further reduced the need for such choice of a “foreign” law in lieu of the
(model) law of the place of arbitration; it was pointed out that the model law itself allowed
the parties wide freedom in shaping the rules of the arbitral proceedings, including the
faculty of agreeing on the procedural provisions of a “foreign” law so long as they did not
conflict with the mandatory provisions of the model law.
74. Another view was that the place of arbitration should not be exclusive in the sense that
P 129 parties would be precluded from choosing the law of another State as the law applicable
P 130 to the arbitration procedure. A State which adopted the model law might wish to apply
it also to those cases where parties had chosen the law of that State even though the place
of arbitration was in a different State. It was recognized that such choice might be subject
to certain restrictions, in particular as regards fundamental notions of justice, reasons of
public policy and rules of court competence intrinsic to the legal and judicial system of
each State.
75. The Commission was agreed that the basic criterion for the territorial scope of

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 application, whatever its precise final wording, would not govern the court functions
envisaged in articles 8(1), 9, 35 and 36, which were entrusted to the courts of the particular
State adopting the model law irrespective of where the place of arbitration was located or
under which law the arbitration was conducted.
76. As regards the court functions referred to in article 6, i.e. those envisaged in articles
11(3), 11(4), 13(3), 14 and 34(2), it was agreed that a decision should be made in the context
of the discussion on each of those articles whether the basic criterion would be
appropriate. In that connection, it was suggested that an extension of the territorial scope
of application might be desirable with regard to the court functions envisaged in articles
11, 13 and 14 so as to make available the assistance of the court specified in article 6 even
before the place of arbitration or other general connecting factor for the applicability of
the (model) law of a particular State had been established. Various suggestions were made
as to which should be the special connecting factor for that purpose: (a) dependant has
place of business in this State; (b) claimant has place of business in this State; (c) claimant
or defendant has place of business in this State; (d) arbitration agreement was concluded
in this State; (e) for certain instances: place of residence of arbitrator concerned is in this
State.
77. While some doubts were expressed as to the practical need for and feasibility of such
an extension, others felt that such a need existed in many cases. The Commission was
agreed that the question should be decided in the context of its discussion of the relevant
articles (i.e. articles 11, 13 and 14).
78. The Commission requested the Secretariat to prepare, on the basis of the above
discussion, draft provisions on the territorial scope of application of the model law in
general, including suggestions as to possible exceptions to the general scope.
79. The Secretariat prepared the following draft of a new paragraph (1 bis) of article 1 for
consideration by the Commission: [same as first proposal contained in Conference Room
Paper A/CN.9/XVIII/CRP.12, appearing in note * on page 125 supra.]
The Secretariat added the suggestion that, if the Commission were to decide that the court
assistance envisaged in articles 11, 13 and 14 need not be made available in those cases
where the place of arbitration was not yet determined, the following short version of
paragraph (1 bis) might be sufficient: [same as second proposal contained in Conference
Room Paper A/CN.9/XVIII/CRP.12, appearing in note * on page 125 supra.]
P 130
P 131
80. In discussing the above proposal, the Commission decided that, for reasons stated in
support of the strict territorial criterion (see above, para. 73), the applicability of the
model law should depend exclusively on the place of arbitration as defined in the model
law. As to the question of extending the applicability of articles 11, 13 and 14 to the time
before the place of arbitration was determined, some support was expressed for such an
extension since it was important to provide court assistance in the cases where parties
could not reach an agreement on the place of arbitration. However, the prevailing view was
that the model law should not deal with court assistance to be available before the
determination of the place of arbitration. In support of the prevailing view it was stated
that neither the place of business of the claimant nor the place of business of the
defendant provided an entirely satisfactory connecting factor for the purpose of
determining whether court assistance should be provided. Moreover, a provision of that
kind in the model law might interfere with other rules on court jurisdiction. It was also
pointed out that even without such an extension of the applicability of the model law a
party might be able to obtain court assistance under laws other than the model law.
Previous discussion as to whether the applicability of articles 11, 13 and 14 should be
extended to the time before the place of arbitration was determined is reported below,
paras. 107-110 (article 11), para. 133 (article 13), para. 143 (article 14) and para. 148 (article
15 with reference to article 11). [All of these paragraph appear immediately infra.]
81. The Commission agreed that a provision implementing that decision, which had to be
included in article 1, should be formulated along the following lines: “The provisions of this
Law, except articles 8, 9, 35 and 36, apply only if the place of arbitration is in the territory
of this State.”
[….]
Article 11. Appointment of arbitrators
[….]
107. As agreed in the context of the discussion on the territorial scope of application and
any possible exceptions thereto (see above, paras. 76-77), the Commission considered
whether court assistance in the appointment process, as provided for in article 11(3), 11(4)
and 11(5), should be made available even before the place of arbitration was determined,
since it was the determination of the place of arbitration which triggered the general
applicability of the (model) law in a State that had enacted it.
108. Under one view, the model law need not contain any such provision since it was
difficult to find an acceptable connecting factor and, above all, there was no pressing need
in view of the infrequency of cases where parties had agreed neither on a place of

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 arbitration nor on an appointing authority and since even in such rare cases the existing
applicable law or laws might come to their assistance with a coherent system.
109. The prevailing view, however, was that a practical problem existed and the model law
P 131 should provide for such assistance in order to facilitate international commercial
P 132 arbitration by enabling the diligent party to secure the constitution of the arbitral
tribunal. As to which should be the connecting factor, the following proposals were made:
(a) place of business of defendant, (b) place of business of claimant, (c) place of business
of either claimant or defendant.
110. The Commission, after deliberation, tentatively concluded that a State adopting the
model law should make available the services of its Court referred to in article 6 for
appointing an arbitrator under article 11 in those cases where the defendant had his place
of business in “this State” and, possibly, in those cases where the claimant had his place of
business in “this State,” provided that the court in the defendant's country did not perform
that function.
111. In the subsequent discussion concerning the territorial scope of application of the
model law, the Commission decided not to extend the applicability of articles 11, 13 and 14
to the time before the place of arbitration was determined. (That discussion is reported
above, paras. 79–81).
[….]
Article 13. Challenge procedure
[….]
133. The Commission discussed whether the model law should provide for Court assistance
for the functions envisaged in article 13(3) even before the place of arbitration had been
determined. The Commission was agreed that the model law could not effectively confer
international competence on the court of one State to the exclusion of the competence of
another State. What the model law could do was to describe those cases, by using
connecting factors such as the place of business of the defendant or of the claimant, in
which the particular State would render the Court assistance envisaged under article 13(3).
It was pointed out, however, that there might be less need for such assistance than in the
appointment process since court control on a challenge was either provided in the
applicable arbitration law or, once the model law applied in the case, could be exercised
in the setting aside proceedings under article 34.
134. In the subsequent discussion concerning the territorial scope of application of the
model law, the Commission decided not to extend the applicability of articles 11, 13 and 14
to the time before the place of arbitration was determined. (That discussion is reported
above, paras. 79-81).
[….]
Article 14. Failure or impossibility to act
[….]
143. In the subsequent discussion concerning the territorial scope of application of the
P 132 model law, the Commission decided not to extend the applicability of articles 11, 13 and 14
P 133 to the time before the place of arbitration was determined. (That discussion is reported
above, paras. 79-81.)
[….]
Article 15. Appointment of substitute arbitrator
[….]
148. With reference to the cases where the place of arbitration had not yet been
determined, it was observed that where it was for the claimant to appoint the substitute
arbitrator and the claimant failed to do so, the rule envisaged for article 11 (i.e.
competence of Court of State where defendant has place of business) might not be
appropriate for the appointment of the substitute arbitrator. It was suggested that a
possible solution might be to provide that assistance in the appointment of the substitute
arbitrator would be rendered by the Court of the State in which the party who failed to
appoint his arbitrator had his place of business, and only if the Court of that State did not
render such assistance could the appointment be sought from the Court in the State where
the other party had his place of business. However, according to a subsequent decision,
reported above in paragraph 111, the applicability of article 11 was not extended to the
time before the place of arbitration was determined.
[Editors' Note: See also paragraph 276 of this document, appearing in the section on Article
34, p. 998 infra, which states in part:
It was noted that the adoption of the so-called territorial criterion [defining the scope of
application of the Model Law] did not preclude parties from selecting the procedural law of
a State other than that of the place of arbitration, provided that the selected provisions were
not in conflict with the mandatory provisions of the (model) law in force at the place of
arbitration.

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 With respect to proposed conflict-of-jurisdiction rules, see also paragraph 70 of this
document, appearing in the section on Article 6, pp. 255-56 infra.]
ARTICLE 1, PARAGRAPH 5 ARBITRABILITY (AND LEX SPECIALIS)
[Editors' Note: The legislative history section on Article 1 is divided into three parts. The
materials that follow concern paragraph 5, which addresses certain questions of arbitrability
under the domestic law of the State adopting the Model Law. Also included here are materials
on proposals to stipulate that the Model Law is lex specialis, proposals that were not
ultimately adopted. For materials on paragraphs 1, 3 and 4, see pp. 40-97 supra. For materials
on paragraph 2, see pp. 97–133 supra.]
P 133
P 134
SECRETARIAT STUDY ON THE NEW YORK CONVENTION A/CN.9/168 (20 APRIL 1979)
IV. Grounds for refusing recognition and enforcement (Art. V [of the New York Convention])
[….]
E. Dispute not arbitrable under law of country where enforcement is sought (para. 2 (a))
44. According to article V, paragraph 2(a), recognition and enforcement may be refused if
the subject-matter of the difference is not capable of settlement by arbitration under the
law of the country where recognition and enforcement is sought. This and the other reason
contained in article V, i.e. enforcement “contrary to public policy,” paragraph 2(b), are to
be taken into account by the competent authority ex officio because they are within the
substantive domain of the country of enforcement and intended to serve its interests.
45. However, enforcement of awards has rarely been refused on the ground of non-
arbitrability. (66) That is in conformity with a recognizable trend to interpret the grounds
for refusal narrowly. Restrictive national laws are often applied in a more lenient way to
international agreements than to purely domestic transactions or even interpreted as
merely governing domestic affairs. (67)
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
A. Concerns and principles of a model law on international commercial arbitration
[….]
II. General principles and purposes
[….]
25. The principle of striving for completeness should be seen in connexion with another
idea which would strengthen the positive effect of assisting lawyers, arbitrators and
businessmen in their difficult task to find out about the legal rules of a foreign system. And
that is to envisage that the law on international commercial arbitration be accorded
priority (as lex specialis) over other laws except as otherwise stated in the (model)
arbitration law. For the same purpose, one could, for example, require the listing of certain
points which are often and for reasons of substance regulated in other laws, e.g. any non-
arbitrable subject-matters or any persons or bodies lacking the capacity to conclude
arbitration agreements. This would, at least, ensure easy access to the law although it
would not necessarily lead to uniformity since States may list different categories of such
exclusions.
[….]
P 134
P 135
B. Identification of issues possibly to be dealt with in the model law
[….]
II. Arbitration agreement [Art. 7 in the final text]
[….]
[Editors' Note: The question of including a provision on arbitrability was discussed by the
Working Group primarily in connection with the formal requirements of an arbitration
agreement, which were placed in Article 7 in the final text, and the requirement that courts
refer disputes that are the subject of an arbitration agreement to arbitration, Article 8 in the
final text.]
1. Form, validity and contents
[….]
46. [One question to be considered] is what the arbitration agreement should contain. As
pointed out earlier (para. 40 [appearing in the section on Article 7, p. 269 infra]), the
undertaking to submit to arbitration may relate to existing or to future disputes. It will
have to be considered whether the type of dispute should be more specifically described
and whether any other requirements as to the minimum contents of an arbitration
agreement should be included in the model law. For example, article II, para. 1 of the 1958
New York Convention refers to differences “in respect of a defined legal relationship,
whether contractual or not, concerning a subject matter capable of settlement of

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 arbitration.”
47. Accordingly, one may also in the model law require that the parties specify the relevant
contract or other relationship. On the other hand, the restriction as to arbitrability of the
subject matter need not be expressed in the arbitration agreement. However, one should
state this limitation in the model law, possibly together with a listing of non-arbitrable
subject matters, i.e. exclusions from the domain of arbitration dealt with below (paras. 55-
56). […]
[….]
3. Domain of arbitration
55. Most legal systems exclude from the domain of arbitration one or more subject matters,
often by establishing exclusive jurisdiction of certain courts. Commercial subject matters
of this kind relate, for example, to bankruptcy, anti-trust, securities, patents, trade-marks
and copyrights. However, as the survey of court decisions on the 1958 New York Convention
revealed, (21) restrictive national laws are increasingly applied in a more lenient way to
international transactions than to purely domestic ones or even interpreted as merely
governing domestic affairs.
56. It would be in line with this trend and beneficial to the practice of international
commercial arbitration if an attempt were made to limit, to the extent possible, the
number of non-arbitrable subject matters. As to the subject matters exclusion of which
P 135 appears necessary, e.g. concerning customs or foreign exchange control regulations, one
P 136 could envisage to request their listing by each State adopting the model law. This would
provide easy reference and certainty about that point and, thus, be of assistance to foreign
lawyers and businessmen.
57. Another question to be considered in the context of arbitrability is whether arbitration
of a dispute relating to a contract may extend to what is often called “filling of gaps.” When
discussing this controversial issue, a distinction should be drawn between the true filling of
gaps, i.e. of points that the parties intended to cover in their agreement but did not do so,
intentionally or not, and the adaptation of contracts due to changed circumstances, which
were unforeseeable and, thus, could not have been contemplated by the parties when
concluding the agreement. It will have to be discussed separately for each of these
functions whether arbitrators may perform that task without prior authorization by the
parties and, if not, whether there should be any limits to the legal effects of a prior
authorization.
[Editors' Note: The materials on “gap-filling” appear in the section on Matters Not Addressed
in the Final Text, pp. 1123–36 infra.]
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
3. Domain of arbitration
19. The main question relating to the domain of arbitration is whether a certain subject
matter is “arbitrable,” i.e. capable of being settled by arbitration. […]
[….]
Question 2-9: Should the model law set forth a list of non-arbitrable subject
matters, either as an exhaustive list or as an open list to be supplemented by
the respective State, or would it be sufficient to express the restrictions merely
by reference to “international public policy?”
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[….]
II. Arbitration agreement
1. Form, validity and contents
[….]
Question 2-5: What should be the minimum contents of an arbitration
agreement? For example, would a provision like article II, paragraph 1 of the
1958 New York Convention be appropriate and sufficient (see report [First
Secretariat Note], paras. 46-47)?
P 136
P 137
26. The Working Group was agreed that the model law should state the minimum contents
of an arbitration agreement along the lines of article II, paragraph 1 of the 1958 New York
Convention, since that provision was appropriate and sufficient. However, doubts were
expressed as to the appropriateness of adopting the last part of that provision (i.e.
“concerning a subject matter capable of settlement by arbitration”). It was noted that this
requirement related to the domain of arbitration, which was dealt with separately
(question 2-9). The Group decided to defer its decision on whether to retain that phrase

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 until after it had considered and decided the issue of the domain of arbitration.
[….]
3. Domain of arbitration
Question 2-9: Should the model law set forth a list of non-arbitrable subject
matters, either as an exhaustive list or as an open list to be supplemented by
the respective State, or would it be sufficient to express the restrictions merely
by reference to “international public policy”?
30. There was general agreement that the model law should not set forth a list of non-
arbitrable subject matters, either as an exhaustive list, or an open list to be supplemented
by the State concerned. It was felt that it would be impracticable to compile an exhaustive
list, and that provision for an open list would not further the cause of harmonization. It was
also agreed that it would not be appropriate and sufficient to merely refer to
“international public policy,” as that term was not sufficiently precise.
31. The prevailing view was that the model law should not contain a provision delimiting
non-arbitrable issues. However, it was noted that further thought could be given to the
possibility of devising a general formula to determine non-arbitrability along the following
lines — a subject matter is arbitrable if the issues in dispute can be settled by agreement
of the parties.
FIRST DRAFT A/CN.9/WG.II/WP.37 (15 JULY 1982)
II. Arbitration agreement
1.–3. Form, contents, parties, domain [footnote omitted]
Article 2 (9) [Art. 7 in the final text]
“Arbitration agreement” is an undertaking by [parties] [physical persons or legal persons of
private or public law] to submit to arbitration all or certain differences which have arisen
or which may arise between them in respect of a defined legal relationship, whether
contractural or not[, concerning a subject-matter which could be disposed of by agreement
of the parties under the applicable law].
P 137
P 138
SECOND WORKING GROUP REPORT A/CN.9/232 (NOVEMBER 1982)
II. Consideration of [First Draft]
[….]
Article 2 [Art. 7 in the final text]
[….]
40. It was also decided to delete the words “concerning a subject matter which could be
disposed of by agreement under the applicable law.” It was felt that there was no need to
refer to national law in this context. It was also noted that at a later stage the Working
Group would discuss the general question of choice of law.
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[….]
Article IV [Art. 8 in the final text]
[Editors' Note: For the text of the Third Draft that was being discussed, see the section on
Article 8, pp. 316–17 infra.]
[….]
187. In this connexion, a suggestion was made to include in article IV or another
appropriate article (e.g. article II [Art. 7 in the final text]) a reference to the arbitrability of
the subject-matter, as found in article II (1) of the 1958 New York Convention (“concerning a
subject matter capable of settlement by arbitration”) and recognized by the model law
only in the chapter on enforcement (article XXVIII(2)(a) [Art. 36(b)(i) in the final text]).
However, this suggestion was not adopted since article IV was not regarded as an
appropriate place for dealing with this issue and because an arbitration agreement
concerning a non arbitrable subject-matter would, at least in some jurisdictions, be
regarded as null and void.
FOURTH SECRETARIAT NOTE COMMENTS AND SUGGESTIONS ON THE FOURTH DRAFT
A/CN.9/WG.II/WP.50 (16 DECEMBER 1983)
A. Model law as “lex specialist” (articles 1, 5, 34, 36)
3. It seems to be clear and accepted that the model law is designed to establish a special
legal régime for international commercial arbitration which, in the States adopting it,
would prevail over any other municipal law on arbitration. The Working Group may wish to
consider whether this principle of lex specialis is sufficiently covered by the words, “This

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 Law applies to international commercial arbitration” (article 1(1)), or whether it should be
made more explicit.
P 138
P 139
4. If an explicit rule to that effect were envisaged, it could state that the application of
other national provisions of law dealing with arbitration is excluded by “the provisions of
this Law” or, preferably, “this Law in respect of all matters dealt with herein.” The latter
wording (or words of similar import) could help to clarify that the model law is not a self–
contained and self-sufficient legal system which would exclude the application of all other
national provisions of law dealing with arbitration.
5. The suggested qualification could help to draw attention to the fact that there are
certain matters or aspects of arbitration not governed by the Law. As an illustration, one
need only recall a number of issues which the Working Group decided not to settle in the
model law: arbitrability of subject-matter of dispute, capacity of parties to conclude
arbitration agreement, impact of State immunity, enforcement by courts of interim
measures granted by arbitral tribunal, competence of arbitral tribunal to adapt contracts,
fixing of fees and request for a deposit, time-limit for enforcement of award. However, as
these examples show, it would not always be an easy task to determine whether a certain
issue is governed by the model law, though possibly not expressly regulated, or whether it
is not dealt with therein and thus governed by another law.
6. It is submitted that similar considerations apply with regard to draft article 5, although
to a more limited extent, since the distinction between matters governed by the Law and
those not governed thereby is relevant there only in respect of possible court supervision
or assistance.
7. Finally, the recognition of the fact that certain provisions of a national law other than the
model law may be applicable might lead to a modification of article 34(2)(a)(iv). The
Working Group may wish to consider whether the reference in that sub-paragraph to “this
Law” is too narrow and whether it should be replaced by the words “law of this State.” It
may be noted that, in the parallel provision of article 36(1)(a)(iv), the reference is to “the
law of the country where the arbitration took place” (which, in the domestic setting, does
not restrict the test of compliance to the model law).
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[….]
Article 8
[Editors' Note: For the text of the Fourth Draft that was being discussed, see the section on
Article 8, p. 318 infra.]
[….]
23. The Working Group did not accept a suggestion to add at the end of paragraph (1) the
words “or that the dispute concerns a matter that is not capable of settlement by
P 139 arbitration.” While recognizing the importance of the requirement of arbitrability, the
P 140 prevailing view was that there was no need for an express provision as the one
suggested. It was noted that an arbitration agreement concerning a non-arbitrable subject-
matter would normally be regarded as null and void. It was also pointed out by some
representatives that the issue of non-arbitrability was adequately addressed in articles 34
and 36.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
A. General comments on the draft text
[….]
Form of model law
[….]
(d) The goal of harmonization should be particularly aided by the model law, as lex
specialis, which would prevail over any other municipal law on arbitration (United States).
[….]
Acceptability of underlying principles
[….]
(a) The leading underlying principles of the model law (i.e. party autonomy, equality,
completeness, compatibility of the model law with the 1958 New York Convention, lex
specialis rule) are a good foundation for international regulation (Poland).
[….]
B. Specific comments on individual articles
[….]

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 Article 1. Scope of application
[….]
2. Model law as “lex specialis”
3. The United States suggests expressing in the text the principle of lex specialis. This would
also help to make clear that there are special aspects of arbitration which are not
regulated in the model law. Such aspects include, inter alia, definitions of arbitrability, the
capacity of parties to conclude an arbitration agreement, concepts of sovereign immunity,
consolidation of arbitration proceedings, the enforcement of interim measures of
protection granted by arbitrators, and the manner in which arbitration awards are
enforced. Suitable wording in article 1(1) to the effect that the model law is not a self-
contained and self-sufficient system should also serve to clarify the parameters of article 5
dealing with the scope of court intervention.
P 140
P 141
[….]
4. Substantive scope of application: “international commercial arbitration”
[….]
9. The Soviet Union, noting that under paragraph (2) [paragraph (3) in the final text] the
model law may apply to arbitrations between parties having their places of business in the
same State, observes that paragraph (2) might be interpreted as enabling the parties to
submit their dispute to arbitration even if under the law of the State where the parties
have their places of business the dispute is within the exclusive competence of a judicial,
administrative or other authority. Such interpretation would mean, in effect, that the
parties could circumvent the rules on arbitrability of disputes. Accordingly, it is proposed
to provide in article 1 that the model law does not affect the legislation of that State which
may declare certain categories of disputes to be within the exclusive competence of a
judicial or other authority. It is remarked in this context that article II(1) of the 1958 New
York Convention solves the question of arbitrability in a general way and that, although a
similar consequence could obtain indirectly on the basis of article 34(2)(b)(i) of the model
law, it would be expedient to provide a clear answer to this question in the text of article 1.
[….]
(b) “Commercial”
12. Mexico and UNCTAD suggest restricting the scope of the term “commercial.” UNCTAD
notes that the term “commercial” could be interpreted to mean that one could submit to
arbitration matters which fall within the competence of governments and involve public
law issues and hence should not be submitted to arbitration. It is observed that the
statement in the text of the footnote that the term “commercial” should be given a wide
interpretation so as to cover matters arising from all relationships of a commercial nature
could lead a party to believe, for example, that there could be arbitration concerning
practices which may be forbidden under the law of one of the parties. Mexico makes
specific comments on how to restrict the scope of the model law. It proposes, firstly, to
exclude cases of direct foreign investments, which in Mexico are dealt with by specific
legislation. Secondly, it remarks that the financial transactions executed by the Mexican
Government, whether directly or by way of a guarantee, are considered to form part of
public debt and also should not be submitted to international arbitration. Thirdly, it is
observed that in the sphere of the international flow of capital the Mexican law
distinguishes transactions of a financial nature which are not subject to international
arbitration from transactions of a commercial nature. In making these comments Mexico
remarks that it made similar comments to the 13th session of the General Assembly of the
Organization of American States in November 1983 which discussed a draft Convention
having contents similar to the model law and containing a provision identical to the one
being commented on here.
P 141
P 142
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 1. Scope of application
[….]
III. The model law as “lex specialis”
7. Once the model law is enacted in State X, “this Law applies” as lex specialis, i.e. to the
exclusion of all other pertinent provisions of non-treaty law, (18) whether contained, for
example, in a code of civil procedure or in a separate law on arbitration. This priority,
while not expressly stated in the model law, follows from the legislative intent to establish
a special regime for international commercial arbitration.
8. It should be noted (and possibly should be expressed in article 1) that the model law
prevails over other provisions only in respect of those subject-matters and questions
covered by the model law. Therefore, other provisions of national law remain applicable if
they deal with issues which, though relevant to international commercial arbitration, have

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 been left outside the model law (e.g. capacity of parties to conclude arbitration
agreement, impact of State immunity, consolidation of arbitral proceedings, competence
of arbitral tribunal to adapt contracts, contractual relations between arbitrators and
parties or arbitration bodies, fixing of fees and requests for deposits, security for fees or
costs, period of time for enforcement of arbitral award).
[….]
Article 7. Definition and form of arbitration agreement
[….]
5. The model law provisions on the arbitration agreement do not retain the requirement,
expressed in article II(1) of the 1958 New York Convention, that the dispute concern “a
subject-matter capable of settlement by arbitration.” However, this does not mean that
the model law would give full effect to any arbitration agreement irrespective of whether
the subject- matter is arbitrable. The Working Group, when discussing pertinent proposals,
recognized the importance of the requirement of arbitrability but saw no need for an
express provision. (32) It was noted, for example, that an arbitration agreement covering a
non-arbitrable subject-matter would normally, or at least in some jurisdictions, be
regarded as null and void and that the issue of non-arbitrability was adequately
addressed in articles 34 and 36. (33) In this connection, it may be noted that the Working
Group decided at an early stage not to deal with the material validity of the arbitration
P 142 agreement and not to attempt to achieve unification or at least certainty as to which
P 143 subject-matters are non-arbitrable, either by listing them in the model law or calling
upon each State to list them exclusively in “this Law.” (34)
SUMMARY RECORD A/CN.9/SR.306-307, .319, .332
[Editors' Note: The issues of whether the Model Law should contain provisions excluding
nonarbitrable subject matters and specifying that the Law is lex specialis were initially raised
in the Commission during the discussion of the definition of “international commercial
arbitration.” Printed below are comments on arbitrability and lex specialis; the remainder of
the Summary Records of these meetings appears on pages 74-89 supra.]
[3 June 1985, 2:30 p.m., A/CN.9/SR.306]
35. [Mr. LEBEDEV (Union of Soviet Socialist Republics] The analytical commentary of the
Secretariat, and some of the previous speakers as well, had expressed the idea that the
model law did not touch on the question of arbitrability, but his delegation felt that it did.
Its reading of the model law was that it suggested that international commercial disputes
could be subject to arbitration. That belief had given rise to this delegation's comment
reproduced in paragraph 9 of [the Sixth Secretariat Note (Government Comments),]
A/CN.9/263, which coincided with the points made by Mexico and UNCTAD in paragraph 12.
If the model law was in fact intended to deal with that problem, it would be necessary to
add a reservation to the effect that the law would not cover those disputes which in the
State adopting the law were not capable of settlement by arbitration. The point was made
in paragraph 1(b) of article 36, but only in connection with the grounds for refusing
recognition and enforcement of an arbitral award. It should be stated in one of the opening
articles.
[….]
38. Mr. ROEHRICH (France) said that […] [h]e did not think that the issue of arbitrability
should be raised in the scope of application: it was sufficient to provide grounds for
refusing recognition or enforcement under article 36. […]
[4 June 1985, 9:30 a.m., A/CN.9/SR.307]
11. Mr. LEBEDEV (Union of Soviet Socialist Republics) […] The model law should include,
however, a provision to the effect that it did not apply to international commercial
disputes where another provision of the applicable national legislation precluded the
submission of such disputes to arbitration or assigned their settlement exclusively to a
specified judicial or other body. That point arose with regard to later provisions of the
draft as well.
P 143
P 144
[….]
32. Mr. LEBEDEV (Union of Soviet Socialist Republics) agreed with other speakers that
subparagraph (c) [of Article 1(2) in the Fifth Draft, p. 60 supra, not included in the final text]
was vague. It was important that the model law should be unambiguous, and therefore
desirable that it should include an explicit statement concerning the arbitrability of a
dispute. He proposed that a new subparagraph should be inserted between the present
paragraphs 2 and 3 [paragraph 3 and 4 in the final text] to the effect that the model law
should not affect the legislation of a State by virtue of which the dispute was assigned to
the exclusive jurisdiction of judicial, administrative or any other authorities, or
alternatively to the effect that it should not affect the legislation of a State by virtue of
which the dispute was not capable of settlement by arbitration. A provision of that kind
had appeared in many international instruments.
33. Mr. GRIFFITH (Australia) supported the Soviet Union proposal and said it would suitably

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 balance the opting–in provision which his delegation had proposed as a replacement for
subparagraph (c). [Editors' Note: See Summary Record, A/CN.9/SR.307, para. 31, p. 87 supra.
The discussion that followed concerned both this “opting-in” proposal, which eventually
became paragraph 3(c) of Article 1, and the proposal for a provision on arbitrability, which
became paragraph 2 of that Article. Printed below are comments relating to arbitrability; the
full discussion appears in the subsection on paragraphs 1, 3 and 4, pp. 87–89 supra.]
34. The CHAIRMAN [Mr. LOEWE (Austria)] asked the Commission whether it wished article 1
to contain a provision along the lines proposed by the Soviet Union representative.
35. It was so agreed.
[….]
38. Sir Michael MUSTILL (United Kingdom) said that he fully endorsed the views expressed
by the Soviet Union representative. He favoured the replacement of paragraph 2(c) by an
opting-in provision formulated along the lines proposed by the Australian delegation. A
provision of the kind suggested by the Soviet Union would be an essential safeguard if an
opting-in provision was included.
39. Mr. MAGNUSSON (Sweden) […] He had nothing against the addition proposed by the
Soviet Union.
40. Mr. BARRERA GRAF (Mexico) […] He reserved his position as to the precise way in which
the Soviet Union proposal should be given effect.
41. Mr. HOLTZMANN (United States of America) […] In regard to the Soviet Union proposal
he favoured the second alternative.
42. Mr. ROEHRICH (France) said that the addition proposed by the Soviet Union should be a
general provision in respect of the model law. […]
43. Mr. SZASZ (Hungary) said he strongly supported the idea of an arbitrability provision as
suggested by the Soviet Union representative. […]
[….]
P 144
P 145
45. The CHAIRMAN observed that the paragraph proposed by the Soviet Union
representative could restrict the effect of the proposed opting-in clause.
46. Mr. HJERNER (Observer, International Chamber of Commerce) asked whether the Soviet
Union would submit its proposal in writing, because it had important implications.
47. Mr. LAVINA (Philippines) supported the request.
48. The CHAIRMAN said that the Soviet Union representative had explained his proposal
sufficiently clearly for it to be dealt with first by a drafting committee.
49. Mr. de HOYOS GUTIERREZ (Cuba) said that his delegation firmly supported the Soviet
Union proposal.
[….]
51. The CHAIRMAN said that the Commission appeared to agree that subparagraph (c) of
paragraph 2 should be replaced by a paragraph embodying an opting-in clause. It had
already agreed that a paragraph on dispute arbitrability based on the Soviet Union
proposal should be added to article 1. He suggested that the task of drafting those
paragraphs should be entrusted to a committee composed of the Union of Soviet Socialist
Republics, Finland, Australia, India and the United States of America.
52. It was so decided.
[….]
57. Mr. HOLTZMANN (United States of America) drew attention to his Government's written
suggestion, mentioned in [the Sixth Secretariat Note (Government Comments),] document
A/CN.9/263 [Art. 1], para. 3) that the model law should express the principle of lex specialis.
He asked if the drafting committee might consider the matter in connection with the
Soviet Union proposal.
58. It was so agreed.
[12 June 1985, 9:30 a.m., A/CN.9/SR.319]
Paragraph (2)(c) (continued) and proposed new paragraphs (4) and (5)
(A/CN.9/XVIII/CRP.5)
[Editors' Note: Draft paragraph 2(c) became paragraph 3(c) in the final text. As discussed
below, draft paragraph 4 was a proposed provision on lex specialis that was not included in
the final text. For further materials on draft paragraph 2(c), which dealt with the definition of
the term “international,” see pages 80–89 and 96 supra.]
41. Mr. GRIFFITH (Australia), introducing the proposal in document A/CN.9/ XVIII/CRP.5, (*)
said that it attempted to reconcile the various views expressed in the Working Group on
International Contract Practices and in the Commission. The proposed new paragraph (4)

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 had been introduced as a lex specialis provision.
P 145
P 146
42. Mr. LEBEDEV (Union of Soviet Socialist Republics), explaining the proposed new
paragraph (5), said that the Commission had agreed that a provision of national legislation
forbidding arbitration on certain disputes should not be overruled by the model law. The
text of the paragraph was an adaptation of article 1(3) of the 1966 European Convention
Providing a Uniform Law on Arbitration [Europ. T.S. No. 56 (Strasbourg 1966)].
43. Mr. MTANGO (United Republic of Tanzania), referring to the proposed inclusion of the
new paragraph (4), said that it should be left to States to decide whether the model law
should overrule a national law.
44. Mr. BONELL (Italy) said that the proposal was acceptable. He understood the concern of
the Tanzanian representative about the lex specialis provision and wished to point out that
States could choose which provisions of the model law they would adopt.
45. Mr. SAWADA (Japan) said that the wording of the proposed paragraph (4) might be
brought into line with that of the suggested paragraph (5) by amending the words “other
provisions of law” to read “provisions of any other law.” With regard to the proposal for
paragraph (2)(c), his delegation wished to repeat the view it had expressed at the 307th
meeting ([Summary Record,] A/CN.9/SR.307, para. 44 [p. 88 supra]) that it was not desirable
that the decision about the international of an arbitration should lie with the parties.
46. Mrs. RATIB (Egypt) suggested that the proposed new paragraphs (4) and (5) should be
amalgamated.
47. Mr. HOLTZMANN (United States of America), supported by Mr. LEBEDEV (Union of Soviet
Socialist Republics), said that the ad hoc working party had decided that the matters dealt
with in the two paragraphs involved different scopes of application and should therefore
be treated in separate paragraphs.
48. Mr. KADI (Algeria) said that his delegation's only problem with the proposal concerned
paragraph (4), about which he shared the Tanzanian representative's view. He suggested
that the paragraph should be deleted.
P 146 49. Mr. BOGGIANO (Observer for Argentina) shared the view expressed by the
P 147 representative of Japan about paragraph (2)(c), which represented a fundamental
departure from the original text and would allow a dispute to be internationalized even if
in reality it was connected with only one State.
50. Mr. LAVINA (Philippines) said that his delegation also felt that concern about paragraph
(2)(c) and preferred the original version of the provision. A further point concerning the ad
hoc working party's version of subparagraph (c) was that it used the word “country” instead
of the normal term “State.” He could not see the reason for that.
51. Mr. SZURSKI (Observer for Poland) said that he fully supported the position taken by
Japan.
52. Mr. SCHUMACHER (Federal Republic of Germany) said that the content of the proposed
paragraph (4) was not appropriate for a model law. However, if it was adopted it would
conflict with paragraph (5) and would then need to contain the words “notwithstanding
paragraph (5).”
53. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that he too had
considerable doubts about paragraph (4). He had found no evidence in the summary
record of any discussion which might justify the insertion of such a provision into the model
law. It was true that at the 307th meeting ([Summary Record,] A/CN.9/SR.307, para. 57), the
Commission had agreed that the United States written suggestion in [the Sixth Secretariat
Note (Government Comments),] document A/CN.9/263 ([Art. 1], para. 3) that the model law
should express the principle of lex specialis — a valuable idea — should be considered by
the ad hoc working party in connection with the Soviet Union proposal about dispute
arbitrability. His view of the principle of lex specialis was that in matters not governed by
the model law, States should be free to include any provisions they wanted in the national
law. The proposed paragraph (4), however, seemed to reverse that principle completely,
by making the model law override the provisions of national law. Moreover, it employed
the controversial expression “matters governed by this law.” [Editors' Note: The
“controversy” referred to appears in the Summary Record of the discussion of Article 5, pp.
229–37 infra.]
54. Sir Michael MUSTILL (United Kingdom) endorsed the comments of the previous speaker.
55. Mrs. VILUS (Yugoslavia) said that her delegation had been unhappy with the original
wording of paragraph (2)(c) and was even less happy with the new version because it gave
the parties unlimited autonomy, something which was far from desirable.
56. Mr. HOLTZMANN (United States of America), referring to the observation made by the
Chartered Institute of Arbitrators, said that the question of lex specialis was discussed in a
Secretariat note ([Fourth Secretariat Note,] A/CN.9/WG.II/WP.50) prepared for the guidance
of the Working Group on International Contract Practices. The note stated ([…] para. 3): “It
seems to be clear and accepted that the model law is designed to establish a special legal
régime for international commercial arbitration which, in the States adopting it, would

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 prevail over any other municipal law on arbitration.” That was the concept which the ad
P 147 hoc working party had tried to make explicit. Perhaps the objection to paragraph (4) could
P 148 be overcome by the addition of the words “except as otherwise provided herein” at the
end of the provision.
57. Mr. VOLKEN (Switzerland) said that he was not satisfied with paragraph (2)(c). Although
he was not against the idea of opting-in he would give preference to a solution which
introduced that idea in a direct and not only in an indirect manner. In short, he would
prefer the addition of a phrase to paragraph (1) to the effect that the model law also
applied to an international commercial arbitration if the parties expressly so agreed.
58. He pointed out that, with the exception of the second sentence in paragraph (1), the
first three paragraphs of article 1 concerned the field of the substantial application of the
model law, whereas the proposed paragraphs (4) and (5) concerned the relationship of the
model law with national laws. It therefore seemed logical that the proviso, which dealt
with the relationship between the model law and international agreements, should be
removed from paragraph (1) and become a separate paragraph (3) bis.
59. The CHAIRMAN [Mr. LOEWE (Austria)] said that a majority seemed to accept the proposal
in document A/CN.9/XVIII/CRP.5 [the Conference Room Paper noted in paragraph 41 supra]
for paragraphs (2)(c) and (5), subject to the possibility of drafting improvements. What had
not been accepted was paragraph (4). Since it had given rise to so much comment, he
suggested that a note should be included in the report to the effect that the purpose of the
model law was to cover the field of application otherwise covered by national law, but that
it had been left to the legislators in States accepting the model law to deal with the
situation as they understood it. He would take it that the Commission approved that
suggestion along with the proposal for paragraphs (2)(c) and (5).
60. It was so agreed.
[20 June 1985, 3:00 p.m , A/CN.9/SR.332]
Article 1 [as revised by the Drafting Group]
1. Article 1 was adopted without change.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 1. Scope of application [footnote omitted]
[….]
Substantive scope of application: international commercial arbitration
[….]
“commercial”
[….]
P 148 22. […] Another concern was that the illustrative list of commercial relationships could be
P 149 construed as meaning in positive terms that any dispute arising therefrom would be
capable of settlement by arbitration. As to a decision relating to that concern, see below,
para. 29.
“international” (paragraph (2) [paragraph (3) in the final text])
[….]
29. The prevailing view was to retain the entire provision of sub-paragraph (b)(i). It was
noted that the provision only addressed the question of internationality, i.e. whether the
(model) law for international cases or the same State's law for domestic cases applied. It
was thought that the principle of party autonomy should extend to that question. (*) The
Commission, in adopting that view, was agreed, however, that the concern relating to non–
arbitrability, which had also been raised in a more general sense and in particular in the
discussion on paragraph (1) and the accompanying footnote (above, para. 22), should be
met by a clarifying statement in a separate paragraph of article 1 along the following lines:
“This Law does not affect any other law of this State which provides that a certain dispute
or subject- matter is not capable of settlement by arbitration.”
[….]
32. The Commission requested an ad hoc working party, composed of the representatives of
Australia, Finland, India, Union of Soviet Socialist Republics and United States, to prepare
a draft of an opting-in provision (*) and of a provision to implement the proposal on non-
arbitrability. The working party was also requested to prepare, for consideration by the
Commission, a draft provision which would express the character of the model law as a lex
specialis with regard to all matters governed by the Law.
34. As to the provision on non-arbitrability, the ad hoc working party suggested adding the
following new paragraph to article 1: “This 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.” The Commission
adopted the suggested paragraph.

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 35. As to the provision expressing the lex specialis character of the model law, the ad hoc
working party suggested adding the following new paragraph to article 1: “This Law prevails
over other provisions of law of this State as to matters governed by this Law.” The
Commission decided not to include the suggested formulation in article 1 because of a
concern that the proposed provision linked a somewhat imprecise delimitation of “matters
governed by this Law” with a categorical rule. However, it was understood that, since the
model law was designed to establish a special legal regime, in case of conflict its
provisions, rather than those applicable to arbitrations in general, would apply to
international commercial arbitrations.
P 149

References
*) Article headings are for reference purposes only and are not to be used for purposes of
interpretation.
**) The term “commercial” should be given a wide interpretation so as to cover matters
arising from all relationships of a commercial nature, whether contractual or not.
Relationships of a commercial nature include, but are not limited to, the following
transactions: any trade transaction for the supply or exchange of goods or services;
distribution agreement; commercial representation or agency; factoring; leasing;
construction of works; consulting; engineering; licensing; investment; financing;
banking; insurance; exploitation agreement or concession; joint venture and other
forms of industrial or business co-operation; carriage of goods or passengers by air,
sea, rail or road.
1) Article 5 places a further limitation on the substantive scope of application of the
Model Law. That Article provides that “[i]n matters governed by this Law,” a domestic
court may intervene in arbitration only where so provided in the Law. Thus, even in the
area of “international commercial arbitration,” the Model Law does not purport to
occupy the entire field. There are matters touching that field that are not “governed”
by the Law, and thus are left to other domestic legislation. See the section on Article 5,
pp. 216-38 infra.
2) In addition, this subsection collects the travaux préparatoires of the proviso in Article
1(1) that the application of the Law to an arbitration is “subject to any agreement in
force between this State and any other State or States.”
3) 1979 Commission Report, A/34/17, para. 79, p. 40 infra.
4) See Seventh Secretariat Note, A/CN.9/264, Art. 1, para. 22, pp. 71-72 infra.
5) E.g., Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 1, paras. 6, 7, pp.
60-61 infra; Summary Record, A/CN.9/SR.306, para. 16, p. 76 infra.
6) See Seventh Secretariat Note, A/CN.9/264, Art. 1, para. 22, pp. 71-72 infra; see also 1979
Commission Report, A/34/17, para. 79, p. 40 infra.
7) But see Sixth Secretariat Note (Comments of Egypt), A/CN.9/263/Add.3, para. 4, p. 67
infra (suggesting that certain provisions would be offensive to the public policy of
some States if applied to domestic arbitrations.)
8) Code of Civil Procedure of France, Art, 1492 (1981), quoted in Second Secretariat Note,
A/CN.9/WG.II/ WP.35, para. 14, p. 44 infra.
9) See Fourth Working Group Report, A/CN.9/245, paras. 167-68, p. 56 infra; see also First
Working Group Report, A/CN.9/216, para. 20, p. 46 infra.
10) Art. I(1)(a), 484 U.N.T.S. 349, quoted in Second Secretariat Note, A/CN.9/WG.II/WP.35,
para. 15, p. 45 infra.
11) Third Working Group Report, A/CN.9/233, para. 59, p. 52 infra. The Vienna Sales
Convention provides that the relevant place of business is the one with the closest
relationship to “the contract and its performance.” Art. 10(a), A/Conf.97/18 (Annex I).
The alternative adopted in the Model Law—”arbitration agreement”—was intended
merely as an adaptation of this language to the needs of arbitration of a wide variety
of transactions. Second Draft, A/CN.9/WG.II/WP.40, Art. 1(4), n. 6, p. 50 infra.
12) See Third Working Group Report, A/CN.9/233, para. 58, p. 52 infra.
13) Fourth Working Group Report, A/CN.9/245, para. 168, p. 56 infra; Fifth Working Group
Report, A/CN.9/246, para. 157, p. 57 infra.
14) See Article 20 of the Model Law.
15) See also Commission Report, A/40/17, paras. 28-29, pp. 95-96 infra (discussing whether
party autonomy was acceptable here).
16) Seventh Secretariat Note, A/CN.9/264, Art. 1, para. 28, p. 73 infra.
17) See Summary Record, A/CN.9/SR.306, paras. 46, 49-51, pp. 80, 81; see also Sixth
Secretariat Note (Government Comments), A/CN.9/263, Art. 1, para. 23, pp. 63-64 infra.
18) Commission Report, A/40/17, para. 28, p. 95 infra (emphasis added).
19) Fifth Working Group Report, A/CN.9/246, para. 161, p. 58 infra.
20) Fifth Draft, A/CN.9/246 (Annex), Art. 1(2)(c), p. 60 infra.
21) Commission Report, A/40/17, para. 30, p. 96 infra.
22) This formulation used the word “country” ratherthan “State,” the term used elsewhere
in the Model Law, in order to avoid any confusion that “State” might be taken to mean
the government of a State. See generally Summary Record, A/CN.9/SR.307, para. 18, pp.
85-86 infra (proposing a different solution to this problem).

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 23) The proposal, contained in the Third Draft of the Law, was as follows:
[(3) An arbitration shall also be regarded as international for the purpose of paragraph
(1) where the parties to an arbitration agreement have stipulated that this Law shall
apply in lieu of a national law on domestic arbitration, provided that [their
relationship involves international trade interests. A relationship is deemed to involve
international trade interests if] not all of the following places are situated in the same
State: the place where the offer for the contract containing the arbitration clause or for
the separate arbitration agreement was made; the place where the corresponding
acceptance was made; the place of performance of any contractual obligation or of
the location of the subject-matter; the place where each party is registered or
incorporated or where its central management and control is exercised; the place of
arbitration if determined in the arbitration agreement.]
A/CN.9/WG.II/WP.45, Art. I(3), p. 54 infra. (Brackets indicate language that was still
under consideration or offered as an alternative.) See also Second Draft,
A/CN.9/WG.II/WP.40, Art. I, n. 7, p. 50 infra. One representative suggested adding
substantial foreign ownership of a party to the list of international contacts. See Fourth
Working Group Report, A/CN.9/245, para. 166, pp. 55-56 infra.
24) See, e.g., Commission Report, A/40/17, para. 29, pp. 95-96 infra; Summary Record,
A/CN.9/SR.307, paras. 32-35, 38, 45, pp. 87-88 infra.
25) Cf Commission Report, A/40/17, para. 33, p. 96 infra (“it was pointed out that courts
were unlikely to give effect to such an agreement [to arbitrate in a foreign country] in a
purely domestic case”).
26) Id. para. 31, p. 96 infra.
27) First Working Group Report, A/CN.9/216, para. 19, pp. 45-46 infra.
28) Id.; Second Working Group Report, A/CN.9/232, para. 32, pp. 48-9 infra; see also First
Draft, A/CN.9/WG.II/WP.37, Art. 1(3), Alt. B, p. 47 infra (“commercial” refers to disputes
“arising in the context of any commercial transaction [or similar economic
relationship]”); Second Draft, A/CN.9/WG.II/WP.40, Art. 1(3), p. 50 infra (“any [defined
legal] relationship of a commercial [or economic] nature”). (Brackets indicate language
that was still under consideration or was offered as an alternative.)
29) Seventh Secretariat Note, A/CN.9/264, Art. 1, para. 16, p. 70 infra.
30) See First Secretariat Note, A/CN.9/207, para. 31, p. 41 infra.
31) First Draft, A/CN.9/WG.II/WP.37, Art. 1(3), Alt. B, p. 47 infra; Second Draft,
A/CN.9/WG.II/WP.40, Art. 1(3), p. 50 infra.
32) Third Working Group Report, A/CN.9/233, paras. 53, 56, pp. 51-52 infra.
33) See Conference Room Paper 1, A/CN.9/XVIII/CRP.1, and Summary Record,
A/CN.9/SR.319, para. 23, p. 89 infra.
34) Commission Report, A/40/17, paras. 24-25, p. 95 infra.
35) Fifth Working Group Report, A/CN.9/246, para. 159, p. 58 infra; Seventh Secretariat
Note, A/CN.9/ 264, Art. 1, para. 17, p. 70 infra; Commission Report, A/40/17, para. 20, p.
94 infra.
36) E.g., First Working Group Report, A/CN.9/216, para. 19, pp. 45-6 infra; Second Working
Group Report, A/CN.9/232, para. 30, p. 48 infra; Third Working Group Report,
A/CN.9/233, para. 52, p. 51 infra; Seventh Secretariat Note, A/CN.9/264, Art. 1, para. 18.
pp. 70-71 infra.
37) E.g., Commission Report, A/40/17, paras. 22, 26, pp. 94, 95 infra; Fifth Working Group
Report, A/CN.9/246, para. 158, p. 58 infra; Third Working Group Report, A/CN.9/233,
para. 52, p. 51 infra; First Working Group Report, A/CN.9/216, para. 19, pp. 45-46 infra;
see also Seventh Secretariat Note, A/CN.9/ 264, Art. 1, para. 19, p. 71 infra.
38) Article 1(3).
39) See First Secretariat Note, A/CN.9/207, para. 31 & n. 13, p. 41 infra.
40) See Third Working Group Report, A/CN.9/233, paras. 52, 56, pp. 51, 52 infra; Third Draft,
A/CN.9/ WG.II/WP.45, Art. I, n. *, p. 53 infra; Summary Record, A/CN.9/SR.306, para. 20,
pp. 76-77 infra.
41) See Fifth Working Group Report, A/CN.9/246, para. 158, p. 58 infra; Summary Record,
A/CN.9/ SR.306, paras. 31, 39, pp. 78, 80 infra; Commission Report, A/40/17, para. 22, p.
94 infra.
42) See the sources cited in the preceding footnote and Summary Record, A/CN.9/SR.319,
para. 36, p. 91 infra; Seventh Secretariat Note, A/CN.9/264, Art. 1, para. 20, p. 71 infra.
See also the commentary on Article 7, p. 259 & n. 5 infra, and sources cited therein;
Secretariat Comments on AALCC Proposal, A/CN.9/127/Add.1, paras. 10-13, p. 1165 infra;
1977 Commission Report, A/32/17, Annex II, paras. 32-33, p. 1169 infra.
43) Commission Report, A/40/17, paras. 5, 22, 26, pp. 94-95 infra.
44) Seventh Secretariat Note, A/CN.9/264, Art. 1, para. 18, pp. 70-71 infra.
45) Id.; Second Working Group Report, A/CN.9/232, para. 32, pp. 48-49 infra; see also First
Secretariat Note, A/CN.9/207, para. 31, p. 41 infra (family law matters also excluded).
46) Each of these exceptions is explained in greater detail in the Fifth Secretariat Note,
A/CN.9/WG.II/ WP.49, paras. 18-27, pp. 103-04 infra.
47) Id. paras. 23-24, pp. 103-04 infra.
48) See Fourth Draft, A/CN.9/WG.II/WP.48, Art. 27, appearing in the section on Article 27, pp.
747-48 infra.
49) For materials on these changes to Article 27, see the section on that Article, pp. 734-62
infra.

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 50) See Commission Report, A/40/17, para. 74, pp. 129-30 infra.
51) See Fifth Secretariat Note, A/CN.9/WG.II/WP.49, para. 9, p. 101 infra. Article V(1)(e) of
the New York Convention refers to an award having been set aside by an authority of
the country “in which, or under the law of which, that award was made.” Art. I(1) refers
to awards made in the territory of the State where recognition or enforcement is
sought but not considered domestic awards in that State. See generally A.J. van den
Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial
Interpretation 22-28, 350 (1981).
52) See, e.g., Commission Report, A/40/17, paras. 73, 80, p. 129, 131 infra.
53) Id.
54) Id. paras. 76, 109, pp. 130, 131-32 infra.
55) UNCITRAL Arbitration Rules Arts. 6(2), 7(2), 11, 12.
56) Summary Record, A/CN.9/SR.312, para. 69, p. 123 infra; id. SR.314, paras. 37-39, p. 124
infra.
57) Commission Report, A/40/17, para. 110, p. 132 infra.
58) Art. IV(3) & Annex, 484 U.N.T.S. 349; Summary Record, A/CN.9/SR.312, para. 66, p. 122
infra.
59) Commission Report, A/40/17, para. 80, p. 131 infra; Summary Record, A/CN.9/SR.330,
paras. 25-26, p. 127 infra.
60) One simple and workable solution, which was adopted in the UNCITRAL Arbitration
Rules, is noted above: if a party needed assistance in connection with the
appointment of, or challenge to arbitrators, or with their failure to act, the party could
request the Secretary-General of the Permanent Court of Arbitration at The Hague to
name an authority for that purpose. The Secretary-General is an internationally-
recognized and experienced neutral office.
61) See Fifth Secretariat Note, A/CN.9/WG.II/WP.49, paras. 29-31, p. 105 infra.
62) Id. para. 32, p. 105 infra.
63) See id. paras. 35-37, p. 106 infra.
64) Fifth Working Group Report, A/CN.9/246, paras. 200-01, p. 108 infra.
65) Id. para. 200.
66) Pp. 1123-36 infra.
67) First Secretariat Note, A/CN.9/207, para. 55, p. 135 infra.
68) Id. para. 56.
69) First Working Group Report, A/CN.9/216, para. 30, p. 137 infra.
70) See Second Working Group Report, A/CN.9/232, para. 40, p. 138 infra; Fourth Working
Group Report, A/CN.9/245, para. 187, p. 138 infra; Fifth Working Group Report,
A/CN.9/246, para. 23, pp. 139-40 infra; Seventh Secretariat Note, A/CN.9/264, Art. 7,
para. 5, p. 142 infra.
71) See generally Commission Report, A/40/17, paras. 22, 29, pp. 148-49 infra.
72) Fourth Secretariat Note, A/CN.9/WG.II/WP.50, para. 4, p. 139 infra; accord Sixth
Secretariat Note (Government Comments), A/CN.9/263, Art. 1, para. 3, p. 140 infra.
73) A/40/17, para. 35, p. 149 infra.
*) [Editors' Note: Paragraph 2 of this Note quoted the 1979 Commission Report, which is
excerpted supra.]
13) Cf. [Secretariat Study on the N.Y. Convention,] A/CN.9/168, para. 11. [Editors' Note: The
cited paragraph is not reprinted in this book. In that paragraph, the Secretariat discussed
the interpretation of Article I, paragraph 3, of the New York Convention, which permits
States to restrict the application of the Convention to “differences arising out of legal
relationships which are considered commercial under the national law of the State
making such declaration.” The cited paragraph noted that this reservation had been
rather narrowly interpreted by an Indian court:
“The Bombay High Court, while acknowledging the commercial nature of [a]
plant construction contract, held nevertheless that this transaction was not
covered by the reservation as embodied in section 3 of the Foreign Awards
(Recognition and Enforcement) Act of 1961 because there was no statutory
provision or operative legal principle in Indian Law which conferred the
commercial character upon the transaction at hand. (15)
15) “Bombay High Court, decision of 4 April 1977, YCA [Yearbook Commercial Arbitration] IV
(1979), p. 271.”]
14) Schmitthoff, The United Kingdom Arbitration Act 1979, YCA [Yearbook Commercial
Arbitration,] V-1980, p. 231, 234.
6) Décret no. 81-500 of 12 May 1981, Journal Officiel of 14 May 1981, p. 1402; repr. Dalloz-
Chronique 1981, p. 217.
7) E.g. Fouchard, Quand un arbitrage est-il international? Revue de l'arbitrage 1970, p. 59,
75.
8) Robert, L'arbitrage en matière internationale, Dalloz-Chronique 1981, p. 209.
1) Relevant discussion and conclusions of the Working Group in [First Working Group
Report,] A/CN.9/216, paras. 16-21. [Editors' Note: Paragraphs 19-21 appear immediately
above; paragraphs 16-18 appear in the section on Article 2, p. 157 infra.]
2) The main difference between alternative A and alternative B is one of structure and
drafting style; also, alternative B is more detailed and covers some aspects not dealt
with in alternative A (see art. 1(B)(2),(3)).

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 3) If the latter situation were to be accepted as an “international'' case, this extension
would probably have to be expressed in the context of the arbitration proceedings but
not the arbitration agreement, since at the time of the conclusion of that agreement it
may not be clear whether a dispute will arise relating to property.
4) The first mentioned factor (“the contract and its performance”) is the one adopted in
article 10(a) of the United Nations Convention on Contracts for the International Sale of
Goods. The second alternative (“the conclusion of the arbitration agreement”) is
submitted for consideration since it would allow a clear decision even in the case
where the contract, or a separate arbitration agreement, is negotiated and concluded
with one branch of a firm while another branch, in a different State, is in charge of the
performance.
5) This non-exhaustive list, still to be refined, is given here in order to stimulate
discussion on whether the general term “commercial” (or “economic”) should be
explained by way of example or be left undefined.
6) See foot-note 3.
7) See foot-note 4.
5) Inclusion of such or a similar illustrative list could help to underline the desirable
wide interpretation of the term “commercial” and, at least, make clear that the
transactions listed are covered by the model law. If the Working Group decides not to
retain such a list, some clarification might be achieved in a commentary, if one were
to be published; in that case examples should also be given of transactions not
covered by the model law, e.g. consumer sales.
6) The first alternative reflects the formula used in article 10 (a) of the 1980 Vienna Sales
Convention [A/Conf. 97/18,] but adjusted to arbitration. The second alternative is
submitted for consideration in view of its potential advantages: it provides a clearer
criterion and enhances the applicability of the model law. Adoption of the second
alternative would lessen the need for the provision dealt with in the following foot-
note.
7) In this context, the Working Group may wish to consider the suggestion (set forth in [the
Second Working Group Report,] A/CN.9/232, para. 167) to include an “opting in” —
provision according to which parties may stipulate the application of the model law
(in lieu of the law on domestic arbitration) by regarding their case as an international
one. Since a State is unlikely to grant such freedom of choice in strictly domestic
cases, it is submitted that some international element should be established. While it
will prove very difficult to define this element, one possible way might be to require
that not all of the following places are situated in the same State: (a) place of offer of
contract containing arbitration clause or of separate arbitration agreement; (b) place
of corresponding acceptance; (c) place of performance of contract or of location of
subject matter; (d) place of registration or incorporation (or nationality) of each party;
(e) place of arbitration.
2) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 48–60.
*) (The following explanations could be annexed to the model law in a footnote to the
term “commercial,” as envisaged by the Working Group at its fifth session; see [Third
Working Group Report,] A/CN.9/233, para. 56)
The term “commercial” should be given a wide interpretation so as to cover matters
arising from all relationships of a commercial [or economic] nature, irrespective of
whether the parties are “commercial persons” (merchants) under any given national
law. Relationships of a commercial nature include, but are not limited to, the following
transactions: any trade transaction for the supply or exchange of goods; distribution
agreement; commercial representation or agency; factoring; leasing; construction of
works; consulting; engineering; licensing; investment; financing; banking; insurance;
exploitation agreement or concession; joint venture and other forms of industrial or
business co–operation; carriage of goods or passengers by air, sea, rail or road.
3) The Working Group may wish to consider whether this proviso, which was felt to be a
principle of general application ([Third Working Group Report,] A/CN.9/233, para. 128),
should be expressed in this paragraph or in a separate article (following article I).
4) The Working Group may wish to consider whether the words placed between square
brackets are necessary in order to clarify the decisive point of time.
5) While it was suggested that the relevant connecting factor was not only the arbitration
agreement but also its implementation and, possibly, the subject-matter of the
dispute (see [Third Working Group Report,] A/CN.9/233, para. 59), it is submitted that
such additions might introduce an undesirable degree of uncertainty and that the first
criterion (i.e. implementation of the arbitration agreement) tends to relate to a third
(“neutral”) place which seems less appropriate for determining the link to the place of
business of one of the parties.
6) This draft provision would form a separate provision in addition to paragraph (2), if
accepted by the Working Group as an “opting-in” provision. Another possibility
suggested at the previous session ([Third Working Group Report,] A/CN.9/233, para. 60)
would be to replace the test laid down in paragraph (2) by a wider formula along the
lines of the proviso set forth in draft paragraph (3).

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 10) This draft provision, which is modelled on article 10(b) of the United Nations
Convention on Contracts for the International Sale of Goods. [A/Conf.97/18] (Vienna,
1980), might, if adopted, be incorporated in article I(2) unless the place of business is
referred to in other provisions as well (e.g. draft article on receipt of communications).
*) The term “commercial” should be given a wide interpretation so as to cover matters
arising from all relationships of a commercial nature, irrespective of whether the
parties are “commercial persons” (merchants) under any given national law.
Relationships of a commercial nature include, but are not limited to, the following
transactions: any trade transaction for the supply or exchange of goods; distribution
agreement; commercial representation or agency; factoring; leasing; construction of
works; consulting; engineering; licensing; investment; financing; banking; insurance;
exploitation agreement or concession; joint venture and other forms of industrial or
business co–operation; carriage of goods or passengers by air, sea, rail or road.
*) [Editors' Note: The headings had been proposed by the Secretariat in the early drafts of
the Model Law primarily for ease of reference. See, e.g., First Draft, A/CN.9/WG.II/WP.37,
para. 2, appearing in the section on Purposes and Procedures of the Commission, pp.
1203-04 infra.]
*) Article headings are for reference purposes only and are not to be used for purposes of
interpretation.
**) The term “commercial” should be given a wide interpretation so as to cover matters
arising from all relationships of a commercial nature. Relationships of a commercial
nature include, but are not limited to, the following transactions: any trade transaction
for the supply or exchange of goods; distribution agreement; commercial
representation or agency; factoring; leasing; construction of works; consulting;
engineering; licensing; investment; financing; banking; insurance; exploitation
agreement or concession; joint venture and other forms of industrial or business co–
operation; carriage of goods or passengers by air, sea, rail or road.
16) [Fourth Working Group Report,] A/CN.9/245, para. 163.
17) [Third Working Group Report,] A/CN.9/233, para. 60; [Forth Working Group Report,]
A/CN.9/245, para. 166; [Fifth Working Group Report,] A/CN.9/246, para. 162.
18) [Fifth Working Group Report,] A/CN.9/246, para. 157.
12) Report of the United Nations Commission on International Trade Law on the work of its
twelfth session, Official Records of the General Assembly, Thirty–fourth Session,
Supplement No. 17 [1979 Commission Report, p. 40 supra] (A/34/17), para. 81.
13) A State, when adopting the model law, may wish not to retain the expression “this
State” (found in articles 1(1), 27(1), 34(1), (2), 35(2), (3) and 36(1)) but, following its normal
legislative technique, either substitute appropriate wording (e.g. name of the State) or
regard the reference as unnecessary on the ground that it would be clear from the
context of the law and its promulgation.
19) Another important such treaty is the “Convention on the Decision by way of Arbitration
of Civil Litigations Resulting from Relations of Economic and Scientific-technological
Co-operation” [13 I.L.M. 5] (Moscow, 1972) which, however, deals primarily with
compulsory arbitration, while the model law is designed for consensual arbitration
only (see below, para. 15 [appearing in the section on Article 2, p. 170 infra]).
20) A/CONF.89/13, Annex I. See Official Records of the United Nations Conference on the
Carriage of Goods by Sea, United Nations Publication, Sales No. E.80. VIII. 1. Article
22(3), (5), (6) of the “Hamburg Rules” reads as follows:
“3. The arbitration proceedings shall, at the option of the claimant, be instituted at
one of the following places:
(a) a place in a State within whose territory is situated:
(i) the principal place of business of the defendant or, in the absence
thereof, the habitual residence of the defendant; or
(ii) the place where the contract was made, provided that the defendant
has there a place of business, branch or agency through which the
contract was made; or
(iii) the port of loading or port of discharge; or
(b) any place designated for that purpose in the arbitration clause or
agreement….
5. The provisions of paragraphs 3 and 4 of this article are deemed to be part of
every arbitration clause or agreement, and any term of such clause or agreement
which is inconsistent therewith is null and void.
6. Nothing in this article affects the validity of an agreement relating to arbitration
made by the parties after the claim under the contract of carriage by sea has
arisen.”
22) [Fifth Working Group Report,] A/CN.9/246, para. 158.
23) A/CONF.97/18, Annex I. See Official Records of the United Nations Conference on
Contracts for the International Sale of Goods, United Nations Publication, Sales No.
E.81.IV.3.

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 24) In particular with regard to sub-paragraph (i), it is noteworthy that “this Law” would
apply in full only if the place of arbitration is in State X, assuming that the strict
territorial criterion is adopted. The thrust of sub-paragraph (i) is thus to cover cases
where the parties have their places of business not in State X but in another State
(provided that the latter State does not prohibit these “domestic” parties to select a
foreign place of arbitration).
25) In this Convention the test serves two purposes which tend to balance overall the
effects of widening or narrowing the scope of application. One is, as in the model law,
to distinguish between strictly domestic cases and those of an international character;
the other one, foreign to the model law, is to distinguish between those international
cases where the parties have their places in Contracting States and those international
cases where one party has his place of business in a non-contracting State.
*) [Editors' Note: This Conference Room Paper, dated 4 June 1985, read as follows:
Article 1(1): “commercial”
PROPOSAL BY AD HOC WORKING PARTY (COMPOSED OF THE REPRESENTATIVES OF CHINA,
HUNGARY AND THE UNITED STATES)
Suggested modification of article 1, paragraph (1) and accompanying footnote:
(1) This Law applies to international arbitration in commercial (**) matters, including
services and other economic relations, subject to any multilateral or bilateral agreement
which has effect in this State.
**) The term “commercial” should be given a wide interpretation so as to include, but not be
limited to, the following: any trade transaction for the supply or exchange of goods or
services; distribution agreement; … ]
*) [Editors' Note: This Conference Room Paper, dated 7 June 1985, read as follows:
Article 1, paragraph 2(c) and new paragraphs (4) and (5)
PROPOSAL BY AD HOC WORKING PARTY (COMPOSED OF THE REPRESENTATIVES OF
AUSTRALIA, FINLAND, INDIA, USSR AND USA)
Suggested wording for paragraph 2(c) and new paragraphs (4) and (5):
(2) An arbitration is international if:
(a) …
(b) …
(c) the parties have expressly agreed that the subject-matter of the arbitration
agreement relates to more than one country.
(3) …
(4) This Law prevails over other provisions of law of this State as to matters governed
by this Law.
(5) This 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.]

1) E.g. arts. V and XXX, see Report of Working Group on International Contract Practices on
the work of its sixth session, [Fourth Working Group Report,] A/CN.9/245, paras. 148 and
191.
2) Ibid., paras. 149 and 191.
3) See Report of the Working Group on International Contract Practices on the work of its
sixth session, [Fourth Working Group Report,] A/CN.9/245, para. 129 [appearing in the
section on Article 35, pp. 1026-27 infra].
4) Ibid., paras. 135 and 139 [appearing in the sections on Articles 35 & 36, p. 1028 & 1091
infra].
5) Ibid., paras, 133 and 140 [same].
*) [Editors' Note: At the next session of the Commission in June and July 1984, it was urged
that the Commission clarify the territorial criterion for the applicability of the Model Law.
The Commission agreed to reserve this matter until the 1985 session. See Summary
Record, A/CN.9/SR.285, para. 12, and 1984 Commission Report, A/39/17, para. 99, both of
which appear in the section on the Purposes and Procedures of the Commission, pp. 1214,
1216 infra.]

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 14) Other comments concerning the territorial scope of application of the model law or of
particular provisions are reflected, in particular, in paragraphs 2–4 of the compilation
of comments on article 34, and also in paragraphs 2, 5 and 6 of the compilation of
comments on article 6, paragraph 11 of the compilation of comments on article 13,
paragraphs 1 and 3 of the compilation of comments on article 27, and paragraphs 2-8
of the compilation of comments on chapter VIII of the model law (Recognition and
enforcement of awards). [Editors' Note: The comments on Article 6 relate to the scope of
application of certain articles governing court assistance to an arbitration, a topic
ultimately addressed in Article 1, paragraph 2. Thus, these comments—along with a
comment regarding the scope of applicability of the Model Law when the place of
arbitration has not yet been chosen—appear infra in this subsection. The comments on
the remaining Articles mentioned in this footnote appear in the sections on those Articles,
or, in the case of the comments on Chapter VIII of the Model Law, in the section on Article
35. See also Sixth Secretariat Note (Government Comments), A/CN.9/263, “General
comments on the draft text,” para. 2, appearing in the section on Purposes and
Procedures of the Commission, p. 1221 infra (urging that the topic be discussed at the
outset of the Commission's session).]
15) Fifth Working Group Report, A/CN.9/246, para. 167.
14) [Fifth Working Group Report,] A/CN.9/246, paras. 165-168.
15) [Fifth Working Group Report,] A/CN.9/246, paras. 169-171. See also [the Secretariat]
commentary to article 34, para. 4 [in the Seventh Secretariat Note. Both of these sources
appear in the section on Article 34, pp. 950-51, 964-65 infra.].
16) [Fifth Working Group Report,] A/CN.9/246, paras. 92-97. See also [the Secretariat]
commentary to article 27, para. 3 [in the Seventh Secretariat Note. Both of these sources
appear in the section on Article 27, pp. 749-50, 754 infra].
17) As regards article 9, a distinction must be made between the right of a party to request
an interim measure of protection and the power of the court to grant such measure;
see [the Secretariat] commentary to article 9, paras. 2-3 [in the Seventh Secretariat
Note, which appears in the section on Article 9, p. 343 infra].
*) [Editors' Note: This Conference Room Paper, dated 13 June 1985, read as follows:
Territorial scope of application
PROPOSAL BY THE SECRETARIAT
Based on the decisions by the Commission on the basic criterion for the territorial scope
of application and on possible exceptions thereto, the following draft of a new paragraph
(1 bis) of article 1 is submitted for consideration by the Commission:
“(1 bis) The provisions of this Law apply if the place of arbitration is in the
territory of this State. However, those provisions on functions of courts of this
State set forth in articles 8, 9, 35 and 36 apply irrespective of whether the
place of arbitration is in the territory of this State; those provisions on
functions of courts of this State set forth in articles 11, 13 and 14 apply even
where the place of arbitration is not yet determined, provided that the
respondent [or the claimant] has his place of business in the territory of this
State.”
(If the Commission were to decide that the court assistance envisaged in articles 11, 13
and 14 need not be made available in those cases where the place of arbitration is not yet
determined, the following short version of paragraph (1 bis) may be sufficient:
“(1 bis) The provisions of this Law, except articles 8, 9, 35 and 36, apply if the
place of arbitration is in the territory of this State.”]

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 *) [Editors' Note: This Conference Room Paper, dated 13 June 1985, read as follows:
Territorial scope of application
PROPOSAL BY THE SECRETARIAT
Based on the decisions by the Commission on the basic criterion for the territorial scope
of application and on possible exceptions thereto, the following draft of a new paragraph
(1 bis) of article 1 is submitted for consideration by the Commission:
“(1 bis) The provisions of this Law apply if the place of arbitration is in the
territory of this State. However, those provisions on functions of courts of this
State set forth in articles 8, 9, 35 and 36 apply irrespective of whether the
place of arbitration is in the territory of this State; those provisions on
functions of courts of this State set forth in articles 11, 13 and 14 apply even
where the place of arbitration is not yet determined, provided that the
respondent [or the claimant] has his place of business in the territory of this
State.”
(If the Commission were to decide that the court assistance envisaged in articles 11, 13
and 14 need not be made available in those cases where the place of arbitration is not yet
determined, the following short version of paragraph (1 bis) may be sufficient:
“(1 bis) The provisions of this Law, except articles 8, 9, 35 and 36, apply if the
place of arbitration is in the territory of this State.”]
66) Cour d'appel de Liège (Belgium,), decision of 12 May 1977, YCA [Yearbook Commercial
Arbitration] IV (1979), p. 254.
67) E.g. United States Supreme Court, decision of 17 June 1974, YCA I (1976), p. 203.
21) [Secretariat Study on the N.Y. Convention,] A/CN.9/168, para. 45.
9) This draft provision is modelled on article II(1) of the 1958 New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (hereinafter referred to as
“1958 New York Convention”), with some alternatives or amendments based on
suggestions by the Working Group.
18) As to “treaty law,” which prevails over the model law, see below, paras. 9-11 [appearing
in the subsection on Article 1, paragraph 1, 3 and 4, pp. 69–70 supra].
32) [Fifth Working Group Report,] A/CN.9/246, para. 23; similarly [Fourth Working Group
Report,] A/CN.9/245, para. 187; cf. also [Second Working Group Report,] A/CN.9/232,
para. 40.
33) As regards article 34, where the inclusion of the non-arbitrability of the subject-matter
is controversial, see commentary [Seventh Secretariat Note,] to article 34, para. 12 [in
the section on Article 34, pp. 966–67 infra].
34) [First Working Group Report,] A/CN.9/216, paras. 25, 30-31.
*) [Editors' Note: This Confidence Room Paper, dated 7 June 1985, read as follows:
Article 1, paragraph 2(c) and new paragraphs (4) and (5)
PROPOSAL BY AD HOC WORKING PARTY (COMPOSED OF THE REPRESENTATIVES OF
AUSTRALIA, FINLAND, INDIA, USSR AND USA)
Suggested wording for paragraph 2(c) and new paragraphs (4) and (5):
(2) An arbitration is international if:
(a) ….
(b) ….
(c) The parties have expressly agreed that the subject-matter of the arbitration
agreement relates to more than one country.
(3) …
(4) This Law prevails over other provisions of law of this State as to matters governed
by this Law.
(5) This 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.]
*) [Editors' Note: See the subsection on Article 1, paragraphs 1, 3 and 4, pp. 80-89 & 95–96
supra for more on this decision.]
*) [Editors' Note: See the subsection on Article 1, paragraphs 1, 3 and 4, pp. 80–89 & 96
supra for more on this decision.]
[….]

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Document information
UNCITRAL Model Law, Chapter I, Article 1 – as amended
Publication [Scope of application]
A Guide to the 2006 [Editors' Note: The 2006 amendments to the Model Law amended Article 1(2). The text below
Amendments to the shows the changes to Article 1(2) (additions are double-underlined while deletions are crossed
UNCITRAL Model Law on out). For legislative history of, and commentary concerning, the prior version of Article 1, see
International Commercial Howard M. Holtzmann & Joseph E. Neuhaus, A Guide to the UNCITRAL Model Law on
Arbitration: Legislative International Commercial Arbitration: Legislative History and Commentary, pp. 25–149
History and Commentary (1989).]

Article 1 Scope of Application (*)

Organization
(1) This Law applies to international commercial (**) arbitration, subject to any agreement
United Nations Commission in force between this State and any other State or States.
on International Trade Law
(2) The provisions of this Law, except articles 8, 9, 17 H, 17 I, 17 J, 35 and 36, apply only if
the place of arbitration is in the territory of this State.
Promulgation (3) An arbitration is international if:
21 June 1985 (a) the parties to an arbitration agreement have, at the time of the conclusion of that
agreement, their places of business in different States; or
(b) one of the following places is situated outside the State in which the parties have
Legislation number their places of business:
United Nations Documents (i) the place of arbitration if determined in, or pursuant to, the arbitration
A/40/17, Annex I, and agreement;
A/61/17, Annex I (ii) any place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with which the subject-matter of
the dispute is most closely connected; or
Bibliographic reference (c) the parties have expressly agreed that the subject matter of the arbitration
agreement relates to more than one country.
'UNCITRAL Model Law,
Chapter I, Article 1 – as (4) For the purposes of paragraph (3) of this article:
amended [Scope of (a) if a party has more than one place of business, the place of business is that which
application]', in Howard M. has the closest relationship to the arbitration agreement;
Holtzmann , Joseph Neuhaus
, et al., A Guide to the 2006 (b) if a party does not have a place of business, reference is to be made to his habitual
Amendments to the residence.
UNCITRAL Model Law on (5) This Law shall not affect any other law of this State by virtue of which certain disputes
International Commercial may not be submitted to arbitration or may be submitted to arbitration only according to
Arbitration: Legislative provisions other than those of this Law.
History and Commentary, P 15
(© Kluwer Law International; P 16
Kluwer Law International
2015) pp. 15 - 23 Commentary
Article 1(2) specifies those international commercial arbitrations to which the Model Law
applies. The Model Law, like the great majority of existing national laws, has a territorial
rule, specifying that it applies if the place of arbitration is in the enacting State. In the
original Model Law, there were four exceptions to this territorial rule. Those exceptions
were Articles that apply to any international commercial arbitration regardless of the
place of arbitration. Each of these provisions directs the courts of the Model Law State to
provide assistance to arbitrations taking place either in the Model Law State or elsewhere.
The four original exceptions are: Article 8, providing for a court to refer parties to
arbitration when an action is brought in a matter governed by a valid arbitration
agreement; Article 9, which provides that a request to a court for interim measures is
compatible with an agreement submitting the underlying dispute to arbitration; and
Articles 35 and 36, which provide for recognition and enforcement of foreign arbitral
awards on the same terms as domestic awards. (1)
The 2006 amendments to the Model Law added three Articles to the list of exceptions to
the strictly territorial application of the Model Law. These three new Articles are Articles 17
H and 17 I, which provide for recognition and enforcement of interim measures ordered by
an arbitral tribunal, and 17 J, which provides for courts to issue interim measures “in
relation to arbitration proceedings, irrespective of whether their place is in the territory of
this State.”
Each of these categories of court jurisdiction involved policy choices that are addressed in
P 16 the materials on Article 17. See January 2000 Secretariat Note, A/CN.9/WG.II/WP.108, paras.
P 17 92–99, pp. 443–45 infra; April 2000 Working Group Report, A/CN.9/468, paras. 85–86, p.
548 infra. In broad outline, it was immediately recognized that if the Model Law was to
deal with enforcement of interim measures rendered by arbitral tribunals and with the
circumstances under which courts might issue interim measures in support of arbitration,

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 the territorial scope of the law would need to address that. This is because interim
measures might be needed (1) before the place of arbitration was known, or (2) in
jurisdictions connected to the parties or assets of the parties that were not located at the
place of arbitration. (2) The Working Group first drafted the provision on interim measures'
territorial scope as an exception to the new provision of Article 17 that provided for a court
to issue interim measures in aid of arbitration. (3) This was because of the view shared by
some members of the Working Group that the Commission had not requested the
amendment of Article 1(2) or the other articles that define the scope of the Model Law. (4)
The next Secretariat Note discarded this quibble and proposed incorporating the
exception to territorial scope into Article 1(2) where other exceptions were listed, (5) and
that is where the new exceptions stayed.
P 17
P 18

Legislative History
1985 Model Law Provision
Article 1. Scope of Application
[.…]
(2) The provisions of this Law, except articles 8, 9, 35 and 36, apply only if the place of
arbitration is in the territory of this State.
APRIL 1999 SECRETARIAT NOTE
POSSIBLE FUTURE WORK A/CN.9/460 (6 APRIL 1999)
II. Possible topics for consideration by the Commission
[.…]
L. Enforceability of interim measures of protection
[.…]
119. Some propose that arbitrating parties in need of interim measures should resort to the
judicial process, as is possible under many national laws. However, in response, it is
pointed out that this may pose certain difficulties. For example, obtaining a measure may
be a lengthy process, in particular, because the court may require arguments on the issue
or because the court decision is open to appeal. Furthermore, the courts of the place of
arbitration may not have effective jurisdiction over the parties or the assets; since
arbitrations are often conducted in a “neutral” territory that has little or nothing to do with
the subject-matter in dispute, a court in another jurisdiction may have to be approached
with a request to consider and issue a measure. Moreover, in some jurisdictions a party
may not be able to request the court to issue an interim measure of protection on the
ground that the parties, by concluding an arbitration agreement, are deemed to have
excluded the courts from intervening in the dispute.
JANUARY 2000 SECRETARIAT NOTE
POSSIBLE UNIFORM RULES A/CN.9/WG.II/WP.108 (14 JANUARY 2000)
II. Enforceability of interim measures of protection
[.…]
P 18
P 19
C. Arguments in favour of enforceability of interim measures ordered by arbitral tribunal
[.…]
74. In connection with arguments in favour of enforceability of interim measures of
protection, it has been pointed out that international arbitrations are often held in places
where neither party has assets or commercial operations (so called “neutral” places). This
often means that the action to be taken pursuant to an interim measure ordered by the
arbitral tribunal is to be taken outside of the jurisdiction where the arbitration takes
place. Therefore, to the extent it is possible to establish a regime for court assistance in
enforcing interim measures, there should be a possibility for enforcement by courts in both
the State of arbitration as well as outside that State.
[.…]
76. Some propose that arbitration parties in need of enforceable interim measures should
resort to the judicial process, as is possible under many national laws. However, in
response, it is pointed out that this may pose difficulties. For example, obtaining a court
measure may be a lengthy process, in particular, because the court may require arguments
on the issue or because the court decision is open to appeal. Furthermore, the courts of the
place of arbitration may not have effective jurisdiction over the parties or the assets. Since
arbitrations are often conducted in a State that has little or nothing to do with the subject-
matter in dispute, a court in another State may have to be approached with a request to
consider and issue a measure. Moreover, the law in some jurisdictions may not offer
parties the option of requesting the court to issue interim measures of protection, on the

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 ground that the parties, by agreeing to arbitrate, are deemed to have excluded the courts
from intervening in the dispute; even if the courts would have the jurisdiction to order an
interim measure, a court may be reluctant to order it on the ground that it is more
appropriate for the arbitral tribunal to do so.
[.…]
F. Possible harmonized solutions
(a) Domestic and foreign interim measures
92. As noted above in paragraph 74, the place of arbitration in international arbitral cases
is often chosen for reasons of convenience of the parties and the arbitrators and the
availability of certain services, rather than because of any connection with the subject-
matter of the dispute. In such circumstances, many measures issued in such arbitrations
may have to [sic] implemented outside the State where the arbitration takes place.
However, also where an international arbitration takes place in the State where the
subject-matter of the dispute is located, the arbitral tribunal may well issue measures that
would have to be carried out in other States. In light of that, the Working Group may
consider that it would be desirable to elaborate a system that would allow court
enforcement of measures issued in arbitrations taking place either in the State of the
enforcing court or outside that State. To the extent any different treatment for foreign
measures should be called for, this might be provided by way of specified exceptions.
P 19
P 20
APRIL 2000 WORKING GROUP REPORT A/CN.9/468 (10 APRIL 2000)
B. Enforceability of interim measures of protection
[.…]
2. Need for a uniform regime
67. There was general support in the Working Group for the proposition to prepare a
legislative regime governing the enforcement of interim measures of protection ordered by
arbitral tribunals ([January 2000 Secretariat Note, ] A/CN.9/WG.II/ WP.108, para. 76). It was
generally considered that that legislative regime should apply to enforcement of interim
measures issued in arbitrations taking place in the State where enforcement was sought as
well as outside that State (ibid., para. 92).
[.…]
D. Proposal for preparing uniform provisions on court-ordered interim measures of
protection in support of arbitration
85. In the context of the discussion of interim measures that might be issued by an arbitral
tribunal […], it was proposed that the Working Group consider preparing uniform rules for
situations in which a party to an arbitration agreement turned to a court with a request to
obtain an interim measure of protection. It was pointed out that it was particularly
important for parties to have effective access to such court assistance before the arbitral
tribunal was constituted, but that also after the constitution of the arbitral tribunal a party
might have good reason for requesting court assistance. It was added that such requests
might be made to courts in the State of the place of arbitration or in another State.
OCTOBER 2005 WORKING GROUP REPORT A/CN.9/589 (12 OCTOBER 2005)
V. Draft provision on court-ordered interim measures in support of arbitration (for
insertion as a new article of the UNCITRAL Model Law on International Commercial
Arbitration, tentatively numbered 17 ter)
[.…]
101. It was noted that article 1, paragraph (2), of the Arbitration Model Law provided that:
“The provisions of this Law, except articles 8, 9, 35 and 36, apply only if the place of
arbitration is in the territory of this State.” It was further noted that, given the intention
that article 17 ter [Art. 17 J in the final text] should apply to arbitrations occurring in a
jurisdiction different to that of the State court, article 17 ter should be added to the list
contained under article 1, paragraph (2). [Editors' Note: For the version of article 17 ter being
discussed, see August 2005 Secretariat Note, A/CN.9/WG.II/WP.138, para. 63, p. 576–77 infra.]
P 20 However, it was pointed out that article (1), paragraph (2), of the Arbitration Model Law
P 21 defined the scope of the Arbitration Model Law and the Working Group had not been
specifically requested by the Commission to work on revisions of that part of the
Arbitration Model Law. It was suggested that consistency between article 17 ter and article
1, paragraph (2), of the Arbitration Model Law could still be achieved by adding to the
opening words of article 17 ter the following words: “Notwithstanding article 1, paragraph
(2)”. That proposal was supported.
102. After discussion, the Working Group agreed to adopt, in substance, the following
revised version of article 17 ter: “The court shall have the same power of issuing interim
measures of protection for the purposes of and in relation to arbitration proceedings
taking place in the country of the court or in another country as it has for the purposes of
and in relation to proceedings in the courts, and shall exercise that power in accordance
with its own rules and procedures insofar as these are relevant to the specific features of

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 an international arbitration. This article shall apply notwithstanding the provisions of
article 1, paragraph (2).”
5 DECEMBER 2005 SECRETARIAT NOTE
INTERIM MEASURES A/CN.9/WG.II/WP.141 (5 DECEMBER 2005)
II. Notes on the form in which the legislative provisions on interim measures and
preliminary orders could be presented in the Model Law
[.…]
Reference to article 1, paragraph 2 of the Model Law
14. At its forty-third session, the Working Group noted that, given the intention that the
provision on court-ordered interim measure [sic] should apply irrespective of the country
where the arbitration takes place, that provision should be added to the list of articles
contained under article 1, paragraph (2). That article provides that, in respect of the listed
articles, the Model Law, as enacted in a given State, would apply even if the place of the
arbitration were not in the territory of that State ([October 2005 Working Group Report, ]
A/CN.9/589, paras. 101–103). It is also suggested that a reference to articles 17 novies [Art. 17
H in the final text] and 17 decies [Art. 17 I in the final text] (which deal with recognition and
enforcement of interim measures and the grounds for refusal thereof) be included within
the list of excepted articles so that article 1, paragraph (2) of the Model Law would read as
follows:
“The provisions of this Law, except articles 8, 9, 17 novies, 17 decies, 17 undecies
[Art. 17 J in the final text], 35 and 36, apply only if the place of arbitration is in
the territory of this State.”
15. Including all excepted articles within article 1, paragraph (2), which establishes the
territorial scope of application of the Model Law, appears to provide a simpler and more
user-friendly approach than including such an exception within each of the revised
articles. Taking that approach into account, the words “This article shall apply
P 21 notwithstanding the provisions of article 1, paragraph 2”, which appeared at the end of
P 22 article 17 ter [Art. 17 J in the final text] of the earlier draft (contained in the annex to [the
October 2005 Working Group Report, ] A/CN.9/589) have been deleted.
25 APRIL 2006 SECRETARIAT NOTE
INTERIM MEASURES
A/CN.9/605 (25 APRIL 2006)
III. Amendment to article 1, paragraph (2), of the Arbitration Model Law
23. At its forty-third session (Vienna, 3–7 October 2005), the Working Group noted that, given
the intention that the provision on court-ordered interim measures should apply
irrespective of the State where the arbitration took place, that provision should be added
to the list of articles contained under article 1, paragraph (2), of the Arbitration Model Law.
That article provides that, in respect of the listed articles, the Arbitration Model Law, as
enacted in a given State, applies even if the place of the arbitration is not in the territory
of that State. (43) It was also suggested that a reference to articles 17 novies [Art. 17 H in the
final text] and 17 decies [Art. 17 I in the final text] (which deal with recognition and
enforcement of interim measures and the grounds for refusal thereof, respectively) should
be included within the list of excepted articles so that article 1, paragraph (2), of the
Arbitration Model Law would read as follows:
“(2) The provisions of this Law, except articles 8, 9, 17 novies, 17 decies, 17
undecies [Art. 17 J in the final text], 35 and 36, apply only if the place of
arbitration is in the territory of this State.”
2006 COMMISSION REPORT A/61/17 (14 JULY 2006)
IV. Finalization and adoption of legislative provisions on interim measures and the form
of arbitration agreement and of a declaration regarding the interpretation of articles II (2)
and VII (1) of the 1958 New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards
[.…]
B. Consideration of the draft legislative provisions on interim measures
[.…]
3. Consideration of amendment to article 1, paragraph 2, of the Arbitration Model Law
144. The text of the draft amendment to article 1, paragraph 2, of the Arbitration Model Law
as considered by the Commission at the current session was as contained in [the 25 April
2006 Secretariat Note, ] A/CN.9/605, paragraph 23.
P 22
P 23
145. The proposed amendment to article 1, paragraph 2, which consisted in adding a
reference to articles 17 novies [Art. 17 H in the final text], 17 decies [Art. 17 I in the final text]

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 and 17 undecies [Art. 17 J in the final text] within the list of excepted articles was adopted
by the Commission.
P 23

References
*) Article headings are for reference purposes only and are not to be used for purposes of
interpretation.
**) The term “commercial” should be given a wide interpretation so as to cover matters
arising from all relationships of a commercial nature, whether contractual or not.
Relationships of a commercial nature include, but are not limited to, the following
transactions: any trade transaction for the supply or exchange of goods or services;
distribution agreement; commercial representation or agency; factoring; leasing;
construction of works; consulting; engineering; licensing; investment; financing;
banking; insurance; exploitation agreement or concession; joint venture and other
forms of industrial or business cooperation; carriage of goods or passengers by air, sea,
rail or road.
1) Each of these exceptions is explained in greater detail in the Fifth Secretariat Note,
A/CN.9/WG.II/WP.49, paras. 18–27, reprinted in Holtzmann & Neuhaus, supra, pp. 103–04.
2) January 2000 Secretariat Note, A/CN.9/WG.II/WP.108, para. 74, p. 19 infra; April 2000
Working Group Report, A/CN.9/468, paras. 67, 85, p. 20 infra.
3) October 2005 Working Group Report, A/CN.9/589, paras. 101–02, pp. 20–21 infra.
4) Id.
5) 5 December 2005 Secretariat Note, A/CN.9/WG.II/WP.141, paras. 14–15, p. 21–22 infra.
43) [October 2005 Working Group Report,] A/CN.9/589, paras. 101–103.

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Document information
UNCITRAL Model Law, Chapter I, Article 2 [Definitions and
Publication rules of interpretation]
A Guide to the UNCITRAL For the purposes of this Law:
Model Law on International
Commercial Arbitration: (a) “arbitration” means any arbitration whether or not administered by a permanent
Legislative History and arbitral institution;
Commentary (b) “arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
(c) “court” means a body or organ of the judicial system of a State;
(d) where a provision of this Law, except article 28, leaves the parties free to determine
Organization a certain issue, such freedom includes the right of the parties to authorize a third
United Nations Commission party, including an institution, to make that determination;
on International Trade Law (e) where a provision of this Law refers to the fact that the parties have agreed or that
they may agree or in any other way refers to an agreement of the parties, such
agreement includes any arbitration rules referred to in that agreement;
Promulgation (f) where a provision of this Law, other than in article 25(a) and 32(2)(a), refers to a
claim, it also applies to a counter–claim, and where it refers to a defence, it also
21 June 1985 applies to a defence to such counter–claim.

Commentary
Legislation number
Article 2 provides three “definitions” — actually points of clarification rather than
United Nations Document comprehensive explanations of meaning — and three rules of interpretation. These
A/40/17, Annex I provisions apply, with certain exceptions that are indicated in two of them, throughout the
Model Law. There are other definitions elsewhere in the Law, notably of the term
“arbitration agreement” in Article 7 and of the expression “international” in Article 1. The
Bibliographic reference present section provides the legislative history of the provisions that are included in
Article 2 of the final text, as well as of several defining provisions that ultimately were not
'UNCITRAL Model Law, included in the Model Law. The most important of these unincluded provisions was a
Chapter I, Article 2 proposed definition of the term “award.”
[Definitions and rules of
interpretation]', in Howard “Arbitration.” As noted, the definition of “arbitration” is not a definition at all, but rather
M. Holtzmann and Joseph simply a clarification that the Model Law covers both ad hoc and institutional arbitration.
Neuhaus , A Guide to the P 150 The First and Second Drafts of the Law (1) contained a fuller version of this provision, based
UNCITRAL Model Law on P 151 loosely on the scope–of–application article of the European Convention on
International Commercial International Commercial Arbitration (Geneva 1961). (2) That draft provision was also not a
Arbitration: Legislative definition per se, but essentially a “table of contents” that listed elements included in the
History and Commentary, term “arbitration”: arbitration agreements, the preparation and conduct of arbitration
(© Kluwer Law International; proceedings, and arbitral awards. The Working Group deleted the provision because it was
Kluwer Law International regarded as superfluous and because it was feared that any elements left out of the list
1989) pp. 150 - 182 might be regarded as outside the scope of the Law. (3) As the Secretariat noted, the term
“arbitration” is widely used in national statutes and international conventions, but
commonly is not defined. (4) In these circumstances, the Working Group and the
Commission felt that it was safest not to attempt to provide a comprehensive definition of
the term in the Model Law either.
Ultimately, all that was retained of the original proposals was the notation that the Model
Law covered both ad hoc and institutional arbitrations. This was initially placed in the
provision defining the arbitration agreement — Article 7(1) in the final text. The
Commission moved the provision to its present place in Article 2, presumably because it
logically related to the Law as a whole and not only to the arbitration agreement. (5)
Although the Working Group declined to include a fuller definition of the term
“arbitration,” its deliberations provide some useful guidance on the intended scope of the
term. The Working Group decided at the outset that the Model Law should have a wide
scope of application, and that it should cover all forms of arbitration. (6) At the same time,
the Working Group was agreed that certain nonjudicial mechanisms for third–party
resolution of disputes, mechanisms that are sometimes labeled “arbitration,” should not
be governed by the Model Law. In particular, it was felt that the Model Law was designed
for consensual arbitration — i.e., arbitration based on the voluntary agreement of the
parties — and that “compulsory arbitration” — required by statute — should fall outside its
scope. (7) In addition, the Working Group considered that the Model Law should not apply
to various types of “free arbitration” — such as the arbitrate irrituale in Italian law, the
Dutch bindend advies, and the German Schiedsgutachten — which, according to the
Secretariat, are procedures that often determine questions only of fact and not of law and
P 151 commonly result in decisions that are binding only as contractual provisions and not as
P 152 arbitral awards. (8)
The Working Group concluded, however, that such limitations need not be expressed in the
Law, apparently in part because it was thought to be difficult to draw a clear and
comprehensive distinction between various forms of “free arbitrations” and arbitrations
covered by the Law. (9) The Working Group noted, however, that States could incorporate

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 such limitations where necessary when adopting the Model Law. (10) This point was not
repeated in the Commission's deliberations or its Report, but it would seem that national
legislatures could exclude any nonarbitral procedures that are provided for by their law
and for which they considered the Model Law to be inappropriate. (11)
“Arbitral tribunal” and “court.” The definitions of “arbitral tribunal” and “court” were
included in the Model Law primarily to draw a clear distinction between the two different
types of dispute settlement organs. This was felt necessary in particular in order to include
in the term “court” judicial authorities that are not called “courts” in their home country,
but to exclude from that term various arbitral organizations that while not courts strictu
sensu nevertheless include the word “court” in their names. Examples of such arbitral
organizations are the Court of Arbitration of the International Chamber of Commerce and
the London Court of Arbitration. The definitional distinction between “court” and “arbitral
tribunal” was also intended to avoid misunderstanding in languages such as French and
Spanish that might otherwise use the term “tribunal” (the word for “court”) as an
abbreviated form of the term “tribunal” arbitral.” (12) The term “court” would include any
“competent authority” under the New York Convention. (13)
The draft text adopted by the Working Group used the term “country” rather than “State” in
the definition of “court” in order to ensure that in federal systems the term would not be
thought to refer to the judicial systems only of the states, and not of the federal
P 152 government. (14) The Drafting Group of the Commission decided to use the term “State” in
P 153 such situations throughout the Model Law for the sake of consistency. It appears that no
change in meaning was intended, and that all courts of a country are included in the
definition.
Rules of interpretation. The first two rules of interpretation — that the parties' power to
determine certain issues under the Model Law includes the right to authorize a third
person or institution to make that determination, and that the parties' agreement on any
matter under the Model Law includes any arbitration rules referred to in their agreement
— were first offered as drafting assumptions by the Secretariat in a preface to the Second
Draft. (15) The Working Group decided to incorporate these understandings into the text of
the Model Law itself. (16) The Commission added the important qualification that the
parties could not authorize a third party to determine the law applicable to the substance
of the dispute. (17) Rather, that was a choice that could be made only pursuant to Article 28
by the parties themselves or by the arbitral tribunal.
The provision in Article 2(f) that references to claims and defences should be read to
include counterclaims and defences thereto originally appeared in what became Article 16
and concerned only the timing of pleas that the arbitral tribunal lacks jurisdiction. It was
modeled on Article 21(3) of the UNCITRAL Arbitration Rules. (18) This proviso was then
deleted on the understanding that any provision anywhere in the Law that referred to a
claim would apply, mutatis mutandis, to a counterclaim. (19) The Commission made this
broader understanding explicit in Article 2(f), in part because the Law would otherwise
make no mention of counterclaims. (20) Two Articles are excluded from the general rule
regarding counterclaims: Article 25(a), regarding default for failure to communicate a
statement of claim, and Article 32(2)(a), regarding termination of the arbitral proceedings
upon withdrawal of claims. In both cases, it would be inappropriate to terminate
proceedings because of withdrawal of, or failure to plead, a counterclaim.
Definitions not included in Article 2. Both the Working Group and the Commission
considered at some length adding to Article 2 a definition of the term “award.” The
definition was considered of special relevance to Article 16, which at that time provided
for review of preliminary decisions on jurisdiction only in an action for setting aside the
P 153 “award,” and to Article 34, concerning setting aside of arbitral awards. (21) In both the
P 154 Working Group and the Commission, however, considerable difficulty was encountered
in finding an acceptable general definition that would have the effect of properly
regulating court control of arbitral decisions. The Working Group, for example, considered
the following proposal:
“award” means a final award which disposes of all issues submitted to the
arbitral tribunal and any other decision of the arbitral tribunal which finally
determine[s] any question of substance or the question of its competence or any
other question of procedure but, in the latter case, only if the arbitral tribunal
terms its decision an award. (22)
The first part of the proposed definition—up to the word “substance”—was widely
supported, but serious concerns were expressed with respect to the remainder,
particularly the language regarding decisions on questions of procedure. (23) In the end,
the Working Group declined to adopt the proposal.
Later, during the Commission's deliberations, a definition was proposed for the purposes
of Article 34 only that would read “any decision which contained a decision on substance.”
(24) Ultimately the Commission solved the problem of Article 16(3) as a by–product of
redrafting that provision to provide for immediate court review of preliminary
jurisdictional rulings. Noting that the New York Convention and many national laws also
contained no definition of “award,” (25) the Commission left the term undefined for the
purposes of other articles, such as Article 34 (setting aside), Article 31 (form and content of

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 the award), Article 33 (correction and interpretation of the award), and Articles 35 and 36
(recognition and enforcement).
The Commission also considered moving the definition of “arbitration agreement”
contained in Article 7 into Article 2, because the term is mentioned in a number of Articles
of the Model Law (i.e., Articles 1, 8, 9, 16, 34, 35 and 36). This proposal was not adopted,
evidently because the existing version of Articles 7 and 8 had the advantage of paralleling
the order of the similar provision in the New York Convention. (26)
Other definitions that were proposed but not adopted included provisions on the terms
“this State,” “party,” and “appointing authority,” (27) The need for a definition of the last
term was obviated by altering Article 11, which had been the only place it appeared. See
the section on that Article, pp. 384–86 infra.
P 154
P 155

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW
A/CN.9/207 (14 MAY 1981)
A. Concerns and principles of a model law on international commercial arbitration
[….]
II. General principles and purposes
[….]
23. In order to facilitate the smooth operation of international commercial arbitration, a
further drafting principle would be to strive for a set of rules which would be as
comprehensive and complete as possible. This would meet the above concern (para. 13
[appearing in the section of Materials on the Commission's Purposes and Procedures, p. 1194
infra]) that lack of a provision on a certain point may create uncertainty and controversy.
Completeness would also extend to matters possibly regulated in other branches of the
law since their inclusion into the model law would allow to adopt uniform answers adapted
to the international type of arbitration. Thus, one might even consider to include at least
some of the issues not included in the otherwise fairly extensive 1966 Strasbourg Uniform
Law on Arbitration [European Convention Providing a Uniform Law on Arbitration, Europ. T.S.
No. 56]: […] counter–claims […]. [Editors' Note: The full text of this paragraph appears at pp.
1196–97 infra.]
[….]
B. Identification of issues possibly to be dealt with in the model law I. Scope of
application
28. As decided by the Commission at its twelfth session, “the scope of application of the
draft uniform rules should be restricted to international commercial arbitration” (see
above, para. 2 [see p. 41 n.* supra]). It seems clear that this restriction, if finally maintained,
will have to be stated in the model law. It is less clear, though, whether the three elements
delimiting the scope of application, i.e. “arbitration,” “commercial” and “international,”
should be defined and, if so, in which way.
1. “Arbitration”
29. As to the first element, i.e. “arbitration,” it would seem desirable to define that term
since it expresses the “heart of the subject–matter” or activity governed by the model law.
Such definition would have to cover institutional and ad hoc arbitration. Also, it would in
some way have to indicate that arbitration is a dispute settlement procedure outside the
court system. Beyond that, however, a major difficulty will be to distinguish precisely
between arbitration as regulated in the model law and those procedures which, sometimes
even labeled arbitration, are similar to arbitration such as the Italian “arbitrato irrituale” t
h e Dutch “bindend advies” and the German “Schiedsgutachten.”
P 155 30. While certain common features of these three examples of “free arbitration can be
P 156 detected (e.g. determination of questions of fact rather than law and decision merely
binding like a contract provision), these procedures are not identical and there are yet
other such procedures in other legal systems. Thus it will not be an easy task to draw the
line in a sufficiently clear manner. At the very least, one should envisage an appeal to
States adopting the model law to list any procedure akin to arbitration but excluded from
its scope of application.
[Editors' Note: For discussion of the definitions of “commercial” and “international,” see the
subsection on Article 1, paragraphs 1, 3, and 4, pp. 41–43 supra.]
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION
A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
I. Scope of application
1. “Arbitration”

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 9. According to a decision by the Commission, the model law is to apply to “international
commercial arbitration” [citation omitted]. While this would be stated in the law, it is less
clear whether the three elements delimiting the scope of application, i.e. “arbitration,”
“commercial,” and “international,” should be defined and, if so, in what way.
10. As regards “arbitration” (see report [First Secretariat Note,], paras. 29–30), it should be
specified that institutional and ad hoc arbitration are covered. Whether the term
“arbitration” should be further defined seems rather doubtful, not merely because it would
involve the difficult task of drawing a clear line against the various types of “free
arbitration.” It may be noted that national statutes and international conventions usually
contain no definition of the term “arbitration.”
Question
1–1: Should the model law expressly state that it applies to institutional as well as ad hoc
arbitration? [Footnote omitted.]
Question
1–2: Apart from the clarification referred to in question 1–1, should the model law contain
a definition of the term “arbitration?”
[Editors' Note: The omitted footnote explained the numbering of questions in this Note. For
discussion of the definitions of “commercial” and “international,” see the subsection on Article
1, paragraphs 1, 3, and 4, pp. 44–45 supra.]
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[….]
I. Scope of application
1. “Arbitration”
Question
1–1: Should the model law expressly state that it applies to institutional as well as ad hoc
arbitration?
P 156
P 157
Question
1–2: Apart from the clarification referred to in question 1–1, should the model law contain
a definition of the term “arbitration”?
16. There was general agreement that the model law should apply to ad hoc and
institutional arbitration. However, it was felt that the terms ad hoc arbitration and
institutional arbitration were not easily defined, and that accordingly no attempt should
be made to give definitions of those terms in the model law. The Working Group concluded
that the model law should have a wide scope of application, and should indicate that it
covered all forms of arbitration.
17. It was agreed, however, that certain forms of arbitration should fall outside the scope of
the model law. For example, since the model law is designed for consensual arbitration,
i.e. arbitration based on voluntary agreement of the parties, it should not cover
compulsory arbitration. Furthermore, the various types of free arbitration, noted in
paragraph 29 of the report, [First Secretariat Note,] should not be covered. However, such
limitations in scope need not necessarily be expressed in the model law. An appeal could
be made to States to incorporate such limitations when adopting the model law. The
Group concluded that a definition of the term “arbitration” was unnecessary.
18. In the context of that discussion, it was observed that the answers to the questions
considered by the Group might depend on the final form of the draft text to be prepared
by the Working Group, e.g., model law or convention. The Working Group noted that the task
entrusted to it by the Commission was to prepare a draft model law, and decided that, if it
wished to make any recommendations as to the final form of the text prepared by it, it
would do so after having completed its consideration of the possible features of the model
law.
FIRST DRAFT
A/CN.9/WG.II/WP.37 (15 JULY 1982)
I. Scope of application (1)
[….]
Alternative B:
Article 1 (B) [Art. 1 in the final text]
[….]
(2) “Arbitration” covers arbitration agreements, the preparation and conduct of
arbitration proceedings based on such agreements whether or not administered by a
permanent arbitral institution, and the arbitral awards resulting therefrom.

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 [Editors' Note: Alternative A and the remaining paragraphs of Alternative B appear in the
subsection on Article 1, paragraphs 1, 3, and 4, pp. 46–48 supra.]
[….]
P 157
P 158
[Editors' Note: The first mention of counterclaims in a Secretariat draft occurred in the
following provision on objections to the jurisdiction of the arbitral tribunal:]
Article 28 [Art. 16 in the final text]
(1) [Subject to the provisions of paragraph (3) of this article] a plea that the arbitral
tribunal does not have jurisdiction, including any objections with respect to the
existence or validity of the arbitration agreement, may be raised only in the
arbitration proceedings and not later than in the statement of defence or, with
respect to a counter–claim, in the reply to the counter–claim. (13)
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[….]
26. The text of two alternative versions of article 1 as considered by the Working Group was
as follows:
[same as First Draft, supra].
In general
27. There was general agreement that the drafting technique used in alternative B was
more precise than that used in alternative A and that it should, therefore, be used in the
model law.
[….]
Alternative B:
Paragraph (2)
29. Under one view paragraph (2) was superfluous and could be deleted. Under another
view paragraph (2) was useful in that it gave a broad definition of “international
commercial arbitration” and made it clear that it applied both to ad hoc and to
institutional arbitrations. It was also noted that the definition was similar to that used in
respect of the scope of application of the 1961 Geneva Convention.
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
Introductory note
[….]
4. Finally, the revised draft has been prepared with the following two assumptions in mind
which might later be expressly stated in the model law, possibly together with other rules
P 158 of interpretation: (a) freedom of parties to determine a certain point includes freedom to
P 159 authorize a third person or institution to make that determination; (b) agreement by
parties includes reference to arbitration rules.
[….]
Revised draft articles of a model law on international commercial arbitration
A. Scope of application
Article I [Art. 1 in the final text]
[….]
(2) “Arbitration” includes [all matters of arbitration, in particular]
(a) arbitration agreements [as defined in article II, paragraph (1)]; (4)
(b) the preparation and conduct of arbitration proceedings based on such
agreements whether or not administered by a permanent arbitral institution;
and
(c) the arbitral awards resulting therefrom.
[….]
Article XIII [Art. 16 in the final text]
[….]
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later
than in the [statement of defence or, with respect to a counter–claim, in the reply to
the counter–claim] [rely to the claim or the counter–claim].

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 THIRD WORKING GROUP REPORT
A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft]
[….]
A. Scope of application
Article I [Art. 1 in the final text]
47. The text of article I as considered by the Working Group was as follows:
[same as Second Draft, supra].
[….]
Paragraph (2)
P 159 50. Some support was expressed for retaining paragraph (2) with some modifications. The
P 160 prevailing view, however, was that the provision should not be retained, except for the
useful clarification that the model law covered arbitration whether or not administered by
a permanent arbitral institution. It was thought that paragraph (2) did not contain a
definition of the term “arbitration” but merely a table of contents and was therefore
superfluous (since lex ipsa loquitur). In addition, it might even be harmful by not being
complete.
51. The Working Group, after deliberation, decided to delete paragraph (2) but to retain the
idea expressed by the words “whether or not administered by a permanent arbitral
institution” in subparagraph (b). It was suggested that those words might be inserted in
article II, paragraph (1) [Arts 7(1) in the final text], after the words “submit to arbitration.”
[….]
Article II [Art. 7 in the final text]
[….]
64. […] [I]t was noted that that provision [Art. II(1), Art. 7(1) in the final text] would be an
appropriate place for expressing the idea that the model law covered arbitration whether
or not administered by a permanent arbitral institution (see above para. 51).
[….]
Article IV [Art. 8 in the final text]
[….]
75. […] A drafting proposal of general relevance was to make clear in all languages that the
term “court” referred to the court of a State as distinguished from an arbitral tribunal.
[….]
New rule of interpretation
101. In connection with the discussion on article VIII [Art. 11 of the final text], the Working
Group considered a suggestion by the Secretariat (set forth in the introductory note to [the
Second Draft,] document A/CN.9/WG.II/WP.40, para. 4). The suggestion was to express in a
general rule of interpretation that (a) the freedom of the parties to determine a certain
point included the freedom to authorize a third person or institution to make that
determination; and (b) agreement by the parties included any reference to arbitration
rules.
102. The Working Group was agreed that such clarification was helpful in view of the
common practice of using arbitration rules and entrusting certain decisions to third
persons or institutions. It was also preferable to clarify that matter in a general rule rather
than in each of the many provisions, where that point was relevant.
P 160
P 161
THIRD DRAFT
A/CN.9/WG.II/WP.45 (13 JUNE 1983)
B. General provisions
New Article I bis [Art. 2 in the final text]
For the purposes of this Law:
(a) where a provision of this Law grants the parties freedom to determine a certain issue,
such freedom includes the right of the parties to authorize a third person or
institution to make that determination; (1)
(b) where a provision of this Law refers to the fact that the parties have agreed or that
they may agree or in any other way refers to an agreement of the parties, such
agreement includes any arbitration rules referred to in that agreement; (7)
(c) “arbitral tribunal” [refers to] [means] a sole arbitrator or a [panel] [plurality] of
arbitrators [, as the case may be]; (8)

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 (d) “court” means a body or organ of the judicial system of a country; (9)
[Editors' Note: For paragraph (e), see the subsection on Article 1, paragraphs 1, 3 & 4, p. 54
supra.]
[….]
Article II [Art. 7 in the final text] (13)
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration,
whether or not administered by a permanent arbitral institution, all or certain
disputes which have arisen or which may arise between them in respect of a defined
legal relationship, whether contractual or not. An arbitration agreement may be in
the form of an arbitration clause in a contract or in the form of a separate agreement.
P 161
P 162
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[….]
Article XIII [Art. 16 in the final text]
58. The text of article XIII as considered by the Working Group was as follows:
[same as Second Draft, supra].
[….]
Paragraph (2)
60. The Working Group adopted this paragraph, subject to the following modifications. In
the first sentence, the wording between the first square brackets was preferred to the
alternative wording between the second square brackets. […]
[….]
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[….]
New Article I bis [Art. 2 in the final text]
169. The text of new article I bis as considered by the Working Group was as follows:
[same as Third Draft, supra].
170. The Working Group adopted sub–paragraphs (a) and (b) of new article I bis.
171. As regards sub–paragraph (c), there was some support for deleting this provision since
it stated the obvious. The prevailing view, however, was to retain this provision since it
underlined the difference between arbitral tribunal and court, as defined in sub–
paragraph (d). Accordingly, sub–paragraph (c) was adopted as follows: (c) “arbitral
tribunal” means a sole arbitrator or a panel of arbitrators.
172. As regards sub–paragraph (d), there was some support for deleting this provision since
it was regarded as self–evident or as undesirable interference with national systems. There
was also some support for defining the term “court” as “judicial body established by the
law of a country, not including an arbitral tribunal.” However, the wording of sub–
paragraph (d) as drafted by the Secretariat received the widest support.
[….]
Article II [Article 7 in the final text]
176. The text of article II as considered by the Working Group was as follows:
[same as Third Draft, supra].
P 162
P 163
Paragraph (1)
180. The Working Group adopted paragraph (1).
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 2. Definitions and rules of interpretation
For the purposes of this Law:
(a) “arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
(b) “court” means a body or organ of the judicial system of a country;
(c) where a provision of this Law grants the parties freedom to determine a certain issue,
such freedom includes the right of the parties to authorize a third person or
institution to make that determination;

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 (d) where a provision of this Law refers to the fact that the parties have agreed or that
they may agree or in any other way refers to an agreement of the parties, such
agreement includes any arbitration rules referred to in that agreement;
[Editors' Note: For subparagraph (e) see the section on Article 3, p. 189 infra.]
[….]
Article 7. Definition and form of arbitration agreement
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration,
whether or not administered by a permanent arbitral institution, all or certain
disputes. […]
[….]
Article 16. Competence to rule on own jurisdiction
[….]
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later
than in the statement of defence or, with respect to a counter–claim, in the reply to
the counter–claim. […]
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[….]
Article 7
17. The text of Article 7 as considered by the Working Group was as follows:
[same as Fourth Draft, supra.]
P 163
P 164
18. The Working Group adopted that article.
[….]
Article 23
[….]
73. It was noted that the provision of paragraph (1) which referred to the “claim” [regarding
the timing and contents of the statement of claim], should also apply to a counter–claim. As
to whether this understanding should be expressed in that provision, it was agreed that the
same question arose in respect of a number of articles of the draft of the model law and
that it should therefore be considered at a later stage in a general manner. (7)
[….]
[…] Article 34
129. It was noted that article 34 regulated the recourse against an arbitral award without
defining the term “award” or specifying what types of awards would be covered. In order to
achieve the necessary clarification, the Working Group decided to include in the model law
a general definition of the term “award” or, at least, to specify what types of awards would
be subject to setting aside under article 34. A suggestion for later consideration was to
allow recourse against any award deciding on the substance of the dispute. (11)
[….]
Article 2
172. The text of Article 2 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
173. The Working Group adopted that article, [with an amendment to subparagraph (e),
which became Article 3 in the final text].
[….]
B. Other issues
[….]
2. “Award”
192. The Working Group was agreed that it was desirable for the model law to define the
term arbitral “award,” in particular for purposes of determining which kinds of decisions
would be subject to recourse under article 34. The Working Group considered the following
P 164
proposal: “award” means a final award which disposes of all issues submitted to the
P 165 arbitral tribunal and any other decision of the arbitral tribunal which finally determine
[sic] any question of substance or the question of its competence or any other question of
procedure but, in the latter case, only if the arbitral tribunal terms its decision an award.
193. While there was wide support for the first part of the proposed definition, i.e. up to the

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 word “substance,” serious concerns were expressed as regards the latter part, in particular
the last portion referring to decisions on questions of procedure.
194. The Working Group noted that a definition of “award” had important implications to a
number of provisions of the model law and was of special relevance to the issues dealt
with in articles 34 and 16. Since there was not sufficient time for considering in depth those
complex questions, the Working Group decided not to include a definition in the model law
to be adopted by it and to invite the Commission to consider the matter.
[….]
4. Counter–claim
196. The Working Group decided to delete, in article 16 (2), the words “or, with respect to a
counter–claim, in the reply to the counter–claim,” on the understanding that any provision
of the model law referring to the claim would apply, mutatis mutandis, to a counter–claim.
FIFTH DRAFT
A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 2. Definitions and rules of interpretation
For the purposes of this Law:
(a) “arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
(b) “court” means a body or organ of the judicial system of a country;
(c) where a provision of this Law leaves the parties free to determine a certain issue,
such freedom includes the right of the parties to authorize a third party, including an
institution, to make that determination;
(d) where a provision of this Law refers to the fact that the parties have agreed or that
they may agree or in any other way refers to an agreement of the parties, such
agreement includes any arbitration rules referred to in that agreement;
[Editors' Note: For paragraph (e), see the section on Article 3, p. 189 infra.]
[….]
Article 7. Definition and form of arbitration agreement
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration,
whether or not administered by a permanent arbitral institution, all or certain
disputes. […]
P 165
P 166
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[….]
Article 1. Scope of application
[….]
4. Substantive scope of application: “international commercial arbitration”
[….]
(a) “Arbitration”
11. Poland agrees with the approach that no definition of the term “arbitration” be
provided in the model law, and expresses its understanding that this indicates that the
model law covers ad hoc arbitrations as well as arbitrations administered by a permanent
arbitral institution regardless of the degree of “institutionalization.”
[….]
Article 2. Definitions and rules of interpretation
Article 2, sub–paragraph (a)
1. Czechoslovakia suggests that the text of this sub–paragraph should mention that the
parties may refer the dispute to a permanent arbitration institution or to an ad hoc
arbitral tribunal.
Article 2, sub–paragraph (b)
2. Cyprus expresses the view that the definition of “court” is wider than it should be since it
extends to bodies or organs which are not courts or courts of justice. It suggests a definition
according to which “court” means a body or organ which is a court according to the law of a
country.
Article 2, sub–paragraph (c)
3. Cyprus states that the meaning of the word “institution” in sub–paragraph (c) is limited

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 and that perhaps the intention of the draftmen was to include any association of persons.
[….]
Article 7. Definition and form of arbitration agreement
Article as a whole
1. As to the cases where the parties make use of a permanent arbitral institution which
administers arbitrations in accordance with its procedural rules, the Federal Republic of
Germany suggests making clear that these procedural rules take precedence over the
pertinent provisions of the model law unless a rule is in conflict with an imperative
provision of the model law in which case this imperative provision would prevail.
[….]
P 166
P 167
C. Comments on additional points
1. Suggestions to add certain definitions
Counter–claim
1. Norway and the United States note that there is no reference to counter– claims in the
model law and that the understanding of the Working Group was that any provision of the
model law referring to the claim would apply, mutatis mutandis, to a counter–claim. (42)
Nevertheless, Norway proposes, for clarity and information, to include in article 2 a
provision to the effect that, unless otherwise stated, any provision referring to claims shall
apply, mutatis mutandis, to counter–claims; it is pointed out, however, that it would be
necessary to make a careful examination as to exceptions to such principle equating the
counter– claim with the claim. The United States considers it desirable that an explicit
statement which permits and regulates counter–claims be included in the model law and
it proposes that this be done either by adding a reference to counter–claims in article 23(1)
and (2) (also in article 16(2)) or by the inclusion of a general provision in article 2 to the
effect that all references to claims and defences apply, mutatis mutandis, to counter–
claims.
2. Mexico proposes to add, after the first sentence of article 23(1) dealing with the
statement of defence in respect of particulars contained in the statement of claim, the
words “or, where appropriate, to state a counter–claim.”
3. Czechoslovakia suggests adding, at an appropriate place, the following provision:
“Until the end of the hearing the arbitral tribunal has the right to conduct the
proceedings also on counter–claims covered by the arbitration agreement and
on claims presented as set–offs in the form of a defence.”
This State
4. Mexico proposes to add to article 2 a definition of the expression “this State,” as used at
various places in the model law, indicating that it means the country that has adopted the
model law.
Party
5. India proposes that a sub–paragraph be added to article 2 defining “party” as a “natural
or juridical person who has entered into an arbitration agreement, irrespective of whether
that person is named or identified in the agreement.”
Appointing authority
6. The German Democratic Republic observes that the term “appointing authority” is used
in article 11 but not defined in the model law. It suggests that a definition of that term be
included in article 2.
Award
P 167 7. Mexico proposes to specify in article 2 the types of decisions of an arbitral tribunal
P 168 which are to be comprehended by the word “award” as used in article 34(1) and other
articles which may distinguish various kinds of awards (e.g. article 16(3)). (As to which types
of awards may be subject to setting aside under article 34, see comments by Austria,
Norway and Poland on article 16) and comments by Japan on article 34 (paragraph 7 of the
compilation of comments on article 34) [pp. 505–06 & 954 infra]).
2. Suggestions for new provisions on additional issues
Calculation of time–limits
8. Norway proposes to include a general provision on the calculation of time–limits, in
particular whether the first and/or the last day of the term should be counted and the
extension of the period where it would otherwise expire on a dies non juridicus (reference
is made to articles 28 and 29 of the Convention on the Limitation Period in the
International Sale of Goods (New York, 1974) (43) ).
[….]

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 3. Other comments
[….]
Drafting
17. The Soviet Union expresses its understanding that attention will be paid at the session
of the Commission to the need for establishing corresponding language versions of the
model law, to the uniform use of terminology (e.g. the terms “country” and “State,”
especially in articles 35 and 36), to the titles of individual chapters and articles, and
similar matters.
18. IBA suggests that the text should be reviewed to ascertain whether the words “territory,”
“country” and “State” are used appropriately in their respective contexts.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments an individual articles
[….]
Article 2. Definitions and rules of interpretation
Article as a whole
1. AALCC, noting that article 2 sets forth definitions of certain terms and rules of
interpretation, recommends that the definitional provisions and those provisions setting
forth rules of interpretation should be divided into two independent articles entitled
“Definitions” and “Rules of interpretation.” It would be appropriate to place the article
containing the rules of interpretation towards the end of the model law.
Article 2, sub–paragraph (c)
P 168 2. In the view of the Hague Conference, sub–paragraph (c) seems hardly compatible with
P 169 article 28 of the model law. The freedom of the parties to choose the law applicable to
the substance of the dispute constitutes a fundamental principle of private international
law. It seems not desirable to permit the parties, by a provision in the model law, to
entrust this choice to a third party or, even less desirable, to an institution such as the
International Chamber of Commerce (which, moreover, would have to declare itself not
competent in the matter). The possibilities should be limited in that either the parties
choose the applicable law, and this choice is to be respected by the arbitral tribunal, or,
failing any designation by the parties, the arbitral tribunal, and only it, determines the
applicable law according to article 28(2). (It is observed that it is not necessary, in this
context, to discuss whether an authorization given to an arbitral tribunal to choose freely
the law applicable to the substance of the dispute, without any reference to a conflicts
rule, is equivalent to an authorization, as dealt with in article 28(3), to decide as amiable
compositeur.) The provision of article 2(c) should therefore be modified by a reservation
concerning article z28.
[….]
C. Comments on additional points
Counter–claim
1. In the opinion of Canada, article 23 or another article of the model law should provide
for counter–claims and replies thereto.
A/CN.9/263/ADD.3 (31 JULY 1985)
(COMMENTS OF EGYPT)
I. General comments
[….]
D. Territorial scope [of application of the Model Law—Art. 1 in the final text]
[….]
14. In this connection Egypt would like to add that it is in favour of the insertion in article 2
of a general definition of the arbitral award. In the event of this definition proving difficult
to formulate, the Commission could simply specify in article 34 what kinds of award might
be set aside under this article, for it is in this context that the definition seems most
useful.
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1985)
Article 1. Scope of application
[….]
I. “Arbitration”
P 169 13. The model law, like most conventions and national laws on arbitration, does not define
P 170 the term “arbitration.” It merely clarifies, in its article 7(1), that it covers any arbitration
“whether or not administered by a permanent arbitral institution.” Thus, it applies to pure

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 ad hoc arbitration and to any type of administered or institutional arbitration.
14. Of course, the term “arbitration” is not to be construed as referring only to on–going
arbitrations, i.e. arbitral proceedings. It relates also to the time before and after such
proceedings, as is clear, for example, from the provisions on recognition of arbitration
agreements and, later, of arbitral awards.
15. While the model law is generally intended to cover all kinds of arbitration, two
qualifications should be mentioned here which are not immediately apparent from the
text but may be expressed by any State adopting the model law. (21) The model law is
designed for consensual arbitration, i.e. arbitration based on voluntary agreement of the
parties (as regulated in article 7(1)); thus, it does not cover compulsory arbitration. Also not
covered are the various types of so–called “free arbitration” such as the Dutch bindend
advies, the German Schiedsgutachten or the Italian arbitrato irrituale.
[….]
Article 2. Definitions and rules of interpretation
[….]
“Arbitral tribunal” and “court” defined, paragraphs (a) and (b)
1. The definition of the terms “arbitral tribunal” and “court” may be regarded as self–
evident and, thus, superfluous. However, they have been retained, in particular, for a
terminological reason. Their juxtaposition is intended to draw a clear distinction between
the two different types of dispute settlement organs. This is to avoid, for example, the
misunderstanding, possible in languages such as French and Spanish, that the word
“tribunal” is an abbreviated form of the term “tribunal arbitral” or that the term “court”
would include any arbitration body or administering institution bearing the name “court”
(e.g. ICC Court of Arbitration or London Court of International Arbitration).
2. Paragraph (b) simply refers to, without interfering with, the national judicial system,
which is not necessarily the system of State X (cf. articles 9, 35(3), 36(1)(a)(v), (2)). Taking
into account the varied nomenclature, the term “court” is not restricted to those organs
actually called “court” in a given country but would include any other “competent
authority” (such is the expression used in the 1958 New York Convention). The reference to
the judicial system of “a country” (instead of “a State”) has been used for the sole purpose
of avoiding the misconception, possible in a federation of states, that merely “state courts”
are covered but not “federal courts.” (26)
P 170
P 171
Interpretation of “parties' freedom” and “agreement,” paragraphs (c) and (d)
3. Paragraphs (c) and (d) are designed to prevent too literal an interpretation of the
references in the model law to the parties' freedom to determine an issue or to their
agreement. According to the reasonable interpretation laid down in paragraph (c), such
freedom covers the liberty of the parties not only to decide the issue themselves but also
to authorize a third person or institution to determine the issue on their behalf. Practical
examples of such issues would be the number of arbitrators, the place of arbitration and
other procedural points.
4. Paragraph (d) recognizes the common practice of parties to refer in their agreement to
arbitration rules (of institutions, associations or other bodies), instead of negotiating and
drafting a fully original and individual (“one–off”) arbitration agreement. A general rule of
interpretation seems preferable to including a clarification in each of the many provisions
of the model law where this matter may be relevant.
5. Paragraphs (c) and (d) are overlapping rules in that the freedom to determine an issue
(under (c)) is included in the notion that the parties may agree (under (d)) and in that the
authorization of a third party (under (c)) is often envisaged in arbitration rules (under (d)).
However, this is not so in all cases: an authorization may be added to the regime
established by arbitration rules (e.g. designation of an appointing authority), it may be
made to replace a provision in these rules, or it may be made in a “one–off” arbitration
agreement.
[….]
Article 16. Competence to rule on own jurisdiction
[….]
5. The respondent may not invoke lack of jurisdiction after submitting his statement of
defence (as referred to in article 23(1)), unless the arbitral tribunal admits a later plea
since it considers the delay justified. With respect to a counter–claim, which is no longer
dealt with expressly in the text, (54) the relevant cut–off point would be the time at which
the claimant submits his reply thereto.
[….]
Article 23. Statements of claim and defence
[….]

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 Analogous application to counter–claim and set–off
P 171 7. As noted earlier, (70) the model law no longer refers expressly to counter–claims but any
P 172 provision referring to the claim would apply, mutatis mutandis, to a counter–claim.
Thus, paragraph (1) [of Article 23, which deals with the contents of the statements of claim
and defence] would provide, by analogy, that the respondent shall state the facts
supporting his counter– claim, the points at issue and the relief or remedy sought, and that
he may annex all documents he considers to be relevant or may add a reference to the
documents or other evidence he will submit in support of his counter–claim. It is
submitted that the same would apply to a claim relied on by the respondent for the
purpose of a set–off.
8. As regards paragraph (2) [of Article 23, which deals with amendments to claims and
defences], the analogy takes two forms. The first is a true analogy with the claim, that is, the
respondent may amend or supplement his counter– claim unless the arbitral tribunal
considers it inappropriate to allow such amendment for any of the reasons listed in
paragraph (2). The second, and more fundamental, issue covered by analogy is whether the
respondent is allowed to “amend or supplement” his statement of defence by bringing at a
later stage a counter–claim or a claim for the purpose of a set–off. It may be noted that in
both cases the above restriction to the scope of the arbitration agreement applies.
SUMMARY RECORD
A/CN.9/SR.307–.308, .311, .322–.323, .327, .330–.333
[4 June 1985, 9:30 A.M., A/CN.9/SR.307]
Article 2
59. The CHAIRMAN [Mr. LOEWE (Austria)] invited the Commission to consider the definitions
and rules of interpretation.
60. Mr. STROHBACH (German Democratic Republic) proposed that the words “whether ad
hoc or in arbitration administration by an institution” should be added to subparagraph
(a).
61. Mr. HERRMANN (International Trade Law Branch) pointed out that article 7(1) used the
words “whether or not administered by a permanent arbitral institution” in order to make
the clarification which the representative of the German Democratic Republic sought to
add to subparagraph (a). He suggested that, in order to meet the suggestion of the German
Democratic Republic, the Commission might wish either to use the wording in article 7(1) or
simply make a reference to that article.
62. Mr. STROHBACH (German Democratic Republic) said that he felt the clarification should
be spelt out expressly in the definitions.
63. It was so agreed.
64. Mr. PELICHET (Observer, The Hague Conference on Private International Law) said that
his organization had made a written comment on subparagraph (c) to the effect that the
P 172 subparagraph could not be reconciled with article 28, on rules applicable to the substance
P 173 of a dispute. He reserved the right to raise the matter under that article and pointed
out that it might involve redrafting subparagraph (c).
65. Mrs. RATIB (Egypt) said that article 2 should include a general reference to arbitral
awards.
[4 June 1985, 2:30 P.M., A/CN.9/SR.308]
Article 2. Definitions and rules of interpretation (continued)
[….]
10. Mr. BARRERA GRAF (Mexico) suggested that article 2 should contain the definition of
arbitration agreement which at present appeared in article 7(1). It was also necessary to
include in article 2 some definition of the concept of “award,” which was used in article
16(3) and article 34(1).
11. Mrs. OLIVEROS (Argentina) […] supported […] the Mexican representative's suggestion to
incorporate in article 2 a definition of “award.”
[….]
13. [The CHAIRMAN (Mr. LOEWE (Austria)) noted that there had been] a proposal to add two
other definitions to article 2. Definitions of the terms in question did appear in the 1961
Geneva Convention [European Convention on International Commercial Arbitration, 484
U.N.T.S. 349,] but they now made rather strange reading.
14. Mr. HERRMANN (International Trade Law Branch) recalled that when the Working Group
had discussed article 7(1) it had had before it two draft versions, one in the form of a
definition, which had become the present text, and the other closer to article II(1) of the
1958 New York Convention. There were advantages in leaving article 7(1) in its present form.
The provisions in article 7, paragraphs 1 and 2, and in article 8(1) would appear in the same
order as in the New York Convention.

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 15. Mr. TORNARITIS (Cyprus) enquired whether the intention was that States should adopt
the model law as it stood, or adapt it to their municipal legal systems. He observed that
definitions in a legal text usually related to the specific meanings which should be
attributed to particular words for purposes of that text and which they did not have in
ordinary language. As for subparagraph (e) of article 2 [Article 3 in the final text], it should
constitute a separate article; it was not a definition.
16. The CHAIRMAN observed that the model law would be used according to the
requirements of the country concerned. States which did not have rules on international
arbitration might take the model law as it stood; others would modify it in conformity with
their general rules of law. Article 2 contained definitions in subparagraphs (a) and (b), and
rules of interpretation in the remaining subparagraphs. The proposal to incorporate the
definition of arbitration agreement in article 2 did not appear to have attracted much
support. As to the question of defining “award,” he felt that such a definition would be
useful, but doubted whether it would be practical in view of the range of concepts which it
covered.
P 173
P 174
17. Mr. HERRMANN (International Trade Law Branch) said that the Working Group had at
various times attempted to define arbitral award but it had not been satisfied with the
results. In that connection he read out the definition contained in the report of the Working
Group on its 7th Session ([Fifth Working Group Report,] A/CN.9/246, paragraphs 192 and 193
[pp. 164–65 supra]). He himself would venture to caution against the inclusion of a
definition as such, which would be intended to apply to all the instances in which the term
was used in the model law. The only matter that should be regulated was that of what
decisions could be set aside under article 34. Following the example of the 1958 New York
Convention, which also did not define an arbitral award, no attempt should be made to
define it for the purposes of articles 35 and 36. The definition of the type of decision that
could be set aside under article 34 might be “any decision which contained a decision on
substance.” Any decision which was strictly on a procedural matter, including the
competence of the arbitral tribunal, would not be covered by article 34. However, it would
be seen that for those procedural matters where court assistance or supervision was
deemed appropriate (as in articles 11, 13 and 14) the model law provided for special court
intervention, the object of which was, unlike in article 34, the matter itself, namely
appointment of arbitrator, justification of challenge or of termination of mandate due to
failure to act. There remained the issue of article 16(3). There would probably be a
discussion on whether to retain that text in its present form, according to which a court
review on the decision of the arbitral tribunal which affirmed its competence was
envisaged only in an action for setting aside the arbitral award and the intention was that
it would be available in conjunction with the procedure set out in article 34(2).
18. Mr. de HOYOS GUTIERREZ (Cuba) pointed out that in Spanish the word “tribunal” referred
to an ordinary court whereas an arbitral tribunal was called a “corte.” Similarly, there were
several words for award, including “auto” to refer to a decision which did not settle a
question of substance.
19. Sir Michael MUSTILL (United Kingdom) said that if definitions were to be omitted the
inconsistencies of terminology in the existing draft must be eliminated. For example,
article 16(3) referred to “rule,” whereas article 20(1) and article 22(1) had “determine” and
article 24(1) and article 25 mentioned “decision.” It was necessary to go through the text to
see where, if anywhere, differences in language were required in order to indicate
differences in concept. Furthermore, the phrase “final award,” used in article 32, was
nowhere defined. Article 34 was the prime location for the term “award” but consideration
would have to be given to the meaning of that word in article 31. Should a procedural
decision take that form? Was it to be a reasoned decision and need it be in writing?
Another point was whether article 33 was applicable to awards other than the final award
which constituted the subject matter of article 36. A further unresolved issue was the
question of interim awards. Some confusion had arisen because there were two
connotations of the term. The first was an award made before the final award dealing, for
P 174 example, with procedure and not with merits. The second was an award dealing with the
P 175 merits but only with part thereof. It was very common in international arbitration,
particularly in cases in which a decision had first to be taken on liability, before
proceeding to an assessment of the damages. If the decision was negative, the interim
award might well constitute the only award. In that case, did it fall within the scope of
article 34? Perhaps that question, which must be solved, would be better dealt with when
considering article 34.
20. Mr. BONELL (Italy) reminded the Commission of the difficulties faced by the Working
Group in attempting to define “arbitral award.” He agreed with the proposal that there
should be no initial general definition. Where the need for a specific definition was
identified in the text, a decision could be taken at that time.
21. Mr. HOLTZMANN (United States of America), referring to article 32(1), said that it would
be necessary to consider the matter of various kinds of awards in addition to final awards.
A distinction might have to be made between interlocutory awards whereby the tribunal
ruled on such preliminary matters as jurisdiction or the finding of liability, and partial
awards where damages were awarded on one part of a claim but other issues remained to

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 be decided. The term “interim award” referred to an award on such matters as interim
measures of relief. All of these terms were found in article 32 of the UNCITRAL Arbitration
Rules. [Further materials on this question appear in the section on Article 32, see pp. 867–69
infra.]
22. Mrs. RATIB (Egypt) said that the Commission really needed to specify in article 34 which
types of award could be set aside.
23. Mr. BROCHES (Observer, International Council for Commercial Arbitration) said that the
reason for defining “award” would be to facilitate the identification of measures which
were subject to review or enforcement. The approach suggested by the Secretariat,
however, was more promising. If “award” were not defined, then there would be no need to
define interlocutory, partial and other awards.
24. Mr. SEKHON (India) said that there was no need to define “award.”
25. The CHAIRMAN said that subparagraph (e) of article 2 [Article 3 in the final text] would be
redrafted by the small drafting group he had suggested earlier. That concluded the
discussion of article 2 for the time being but if there were a need to define terminology
arising in the course of consideration of the text of the draft model law, it would be
possible to make additions to article 2. If there were no objections, he would take that the
Commission agreed to adopt those suggestions on article 2.
26. It was so agreed.
[6 June 1985, 9:30 A.M., A/CN.9/SR.311]
Article 7. Definition and form of arbitration agreement
[….]
7. Mr. GRIFFITH (Australia) said that paragraph (1) contained a definition, which properly
belonged in article 2.
P 175
P 176
8. The CHAIRMAN [Mr. LOEWE (Austria)] said that a suggestion to transfer the definition to
article 2 had been made by Mexico in the discussion on that article ([Summary Record,]
A/CN.9/SR.308, para. 10) but had not met with support.
[13 June 1985, 2 P.M., A/CN.9/SR.322]
Article 23. Statements of claim and defence
[….]
39. Mr. BARRERA GRAF (Mexico) said that the provisions in article 23(1) were essential since
they constituted the basis of the dispute submitted to arbitration. There could be no claim
without a defence. He would go further and, as his Government had suggested in its written
comments ([Sixth Secretariat Note (Government Comments),] A/CN.9/263, [Comments on
additional points,] para. 2), he urged that the text should also refer to the possibility of the
respondent presenting a counter–claim. […]
[14 June 1985, 9:30 A.M., A/CN.9/SR.323]
Article 23. Statements of claim and defence (continued)
[….]
32. Mr. HOLTZMANN (United States of America) recalled that, at the previous meeting, the
Mexican representative had raised the question of counter–claims and that it had been
agreed that the Commission should consider it after completing article 23. He understood
the Working Group's view to be that a counter–claim was a form of claim and was therefore
covered by the right to make a claim. The same applied to defence. He suggested that a
sentence should be included in article 23, or wherever else it was relevant, to the effect
that “claim” and “defence” included counter–claim and defence to a counter–claim,
respectively.
33. THE CHAIRMAN [Mr. SZASZ (Hungary)] suggested that the matter should be left until the
Commission had reached the end of the model law, in case a separate provision were
needed.
34. Mr. BARRERA GRAF (Mexico), referring to his Government's proposal in its comments
([Sixth Secretariat Note (Government Comments),] A/CN.9/ 263, [Comments on additional
points], para. 2), said that he would prefer a reference to counter–claims to be added at
the end of article 23(1). If necessary, however, he would not raise any objection to the
matter being dealt with at the end of the model law, or to an appropriate reference being
included in the report.
35. The CHAIRMAN said that the Mexican representative's point would be noted. It would
be better to leave the matter until the end of the model law, to see whether it applied to
other articles.
36. It was so decided.
P 176 37. Mr. RUZICKA (Czechoslovakia) said that his Government also had made a proposal
P 177

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 P 177
([Sixth Secretariat Note (Government Comments),] A/CN.9/263, [Comments on additional
points], para. 3). He was in favour of drafting a separate article, in which it should also be
pointed out that such claims could be made only within the scope of the arbitration
agreement.
[17 June 1985, 7 P.M., A/CN.9/SR.327]
Article 28. Rules applicable to substance of dispute (continued)
[….]
30. Mr. PELICHET (Observer, The Hague Conference on Private International Law) said there
was a contradiction between article 28 and article 2(c), which permitted parties, when
allowed to do so by “this Law,” to decide on such matters as giving decision–making
authority to a third party or institution. First, it was certainly not the intention of the
Working Group to allow a body such as the International Chamber of Commerce to decide
on which law to apply to a substantive dispute. Secondly, even if the parties allowed the
arbitrators to do so, that would conflict with the provisions of article 28, whereunder the
arbitral tribunal was bound to decide the dispute in accordance with the law chosen by
the parties. If the two provisions remained as they stood, the arbitrators would not know
whether they had freedom of choice or were bound instead by article 28. His organization
had therefore proposed the inclusion in article 2(c) of a reservation concerning article 28
([Sixth Secretariat Note (Government Comments),] A/CN.9/263/Add. 1, [Art. 2,] para. 2 in fine).
31. Mr. VOLKEN (Observer for Switzerland) said he agreed with the Observer for The Hague
Conference. Article 2(c) was intended to deal with technical aspects and not with choice of
the applicable substantive law.
32. Mr. BOGGIANO (Observer for Argentina) supported the view expressed by the Observer
for The Hague Conference.
33. Mr. AYLING (United Kingdom) said that he could not accept the proposition that a
dispute concerning the applicable law was not capable of being determined by an arbitral
tribunal, since it was no different from any other dispute.
34. Mr. ROEHRICH (France) said that the provisions of article 2(c) related only to the
functional matters involved in the constitution of an arbitral tribunal. They did not extend
to the substantive matters referred to in article 28(2).
35. Mr. MATHANJUKI (Kenya) was opposed, at that late stage, to reopening discussion of the
definitions contained in article 2(c).
36. Mr. STROHBACH (German Democratic Republic) said that a solution would be to state in
article 2(c), where, in the model law, the parties were free to decide certain issues.
37. The CHAIRMAN [Mr. LOEWE (Austria)] suggested that that was a drafting problem and
invited the Observer for The Hague Conference and the representative of the German
Democratic Republic to submit a draft for consideration by the Commission.
[….]
P 177
P 178
39. It was so agreed.
[19 June 1985, 9:30 A.M., A/CN.9/SR.330]
Article 2. Definitions and rules of interpretation (continued)
(A/CN.9/XVIII/CRP.13)
49. The CHAIRMAN [Mr. LOEWE (Austria)] said that, since there were no comments, he would
take it that the Commission agreed to adopt the proposal by the delegation of the German
Democratic Republic and the Observer of The Hague Conference on Private International
Law (A/CN.9/ XVIII/CRP.13). (*)
50. It was so agreed.
[19 June 1985, 2 P.M., A/CN.9/SR.331]
Additional points suggested for inclusion in the model law
Counter–claim
10. Mr. HOLTZMANN (United States of America) said that he supported the written proposal
made by the Government of Mexico ([Sixth Secretariat Note (Government Comments),]
A/CN.9/263, [Comments on additional points], para. 1) for the inclusion in the model law of
an express reference to counter–claims and defences to counter–claims. Although those
steps were intended to be covered mutatis mutandis wherever the text spoke of claims and
defences, they were often a very important part of arbitral procedure and should be
mentioned specifically. That was proved by experience with the UNCITRAL Arbitration
Rules, which did make an explicit reference to them. The matter was a question of suitable
drafting.
11. Mr. RUZICKA (Czechoslovakia) endorsed the view expressed by the representative of the
United States and drew attention to his own Government's written observations, which also

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 contained a proposal for dealing with the matter ([Sixth Secretariat Note (Government
Comments),] A/CN.9/263, [Comments on additional points], para. 3).
12. Mr. SEKHON (India) said that he too supported the view expressed by the
representative of the United States. In the Indian legal system a clear distinction was
made between the procedural steps in question.
13. The CHAIRMAN [Mr. LOEWE (Austria)] said that the Commission seemed to favour the
P 178 idea of including an express reference to counter–claims and defences to counter–claims
P 179 in the model law. He suggested that all interested delegations should participate in
drafting a form of words suitable for the purpose.
14. It was so agreed.
[20 June 1985, 3 P.M., A/CN.9/SR.332]
Article 2
2. Mr. HOLTZMANN (United States of America) said that, pursuant to the Commission's
decision at the previous meeting to include in the model law an express reference to
counter–claims and defences to counter–claims ([Summary Record,] A/CN.9/SR.331, para.
14), his delegation and the delegation of Czechoslovakia had prepared a written proposal
for the incorporation of a provision on the matter in article 2. The proposal would be
submitted to the Commission for consideration.
3. The CHAIRMAN [Mr. LOEWE Austria)] suggested that the Commission should adopt the
article as worded by the drafting group, (*) subject to consideration of that proposal.
4. It was so decided.
[21 June 1985, 10 A.M., A/CN.9/SR.333]
Article 2
1. Mr. RICKFORD (United Kingdom) raised the question of interconnection between chapter
VI of the model law and the version of article 2(d) which the Commission had adopted at its
previous meeting. In order to take account of a particular concern in relation to article
28(1), article 2(d) had been amended so that it did not apply to any of chapter VI which
contained, however, a series of references to agreement between the parties and the
choice of parties. Perhaps the Commission had made the wrong amendment to article 2(d).
2. Mr. HERRMANN (International Trade Law Branch) said that the amendment had been
made because concern had been expressed that it was inappropriate to recognize the
freedom of the parties to authorize third parties or institutions to make decisions as to the
law applicable to disputes. Perhaps the amendment had gone too far. He suggested that a
more appropriate wording for the opening phrase of article 2(d) would be: “where a
provision of this Law, except article 28, leaves the parties …”
3. Mr. GRIFFITH (Australia) supported the Secretariat proposal.
4. The CHAIRMAN [Mr. LOEWE (Austria)] said that, if he saw no objection, he would take it
that the Commission wished to amend the text of article 2(d) in the manner just proposed
by the Secretariat.
5. It was so decided.
[….]
P 179
P 180
Proposal for a new provision on counter–claims
42. The CHAIRMAN recalled that the representatives of the United States and
Czechoslovakia had drafted a new provision for article 2 which would become article 2(f),
and which was contained in document A/CN.9/XVIII/CRP.15. (*)
43. Mr. de HOYOS GUTIERREZ (Cuba) suggested a drafting change in the Spanish version.
44. Mr. ROEHRICH (France) suggested a drafting change in the French version.
45. Mr. LAVINA (Philippines) pointed out a typographical error: “article” should be
amended to read “articles.”
46. The CHAIRMAN said that the Secretariat would take those comments into accounts.
47. Mr. SAWADA (Japan) said that his delegation did not oppose the inclusion of a provision
on counter–claims but felt that such a provision should contain a more exhaustive
definition of counter–claims than did the proposal before the Commission.
48. The CHAIRMAN said that, in its decision to include a provision on counter–claims, the
Commission had recognized that it was necessary to be brief and to indicate merely which
rules should apply to counter–claims.
49. Mr. VOLKEN (Observer for Switzerland) suggested that, since the proposed provision was
not a definition but rather an extension of the scope of the model law, it should be
included in article 1 rather than in article 2.
50. The CHAIRMAN pointed out that the heading of article 2 was not simply “Definitions” but

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 “Definitions and rules of interpretation” and that the provision in question was in fact a
rule of interpretation.
51. Mr. HOLTZMANN (United States of America) suggested that the provision be revised by
the insertion, after “article,” of “7(2) and.”
52. Mr. HERRMANN (International Trade Law Branch) said that he had doubts whether it was
appropriate to mention article 7(2) in that context.
53. Mr. HOLTZMANN (United States of America) said that his delegation would not insist on
the revision.
54. Mr. RICKFORD (United Kingdom) said that the representative of the International Trade
Law Branch had a good point, but that unless article 7(2) was included among the list of
exceptions to article 2(f), an agreement made in respect of the subject–matter of a
counter–claim could result in the closing of the entire dispute. Under English law, contracts
would have to state expressly that article 2(f) applied mutatis mutandis.
P 180
P 181
55. The CHAIRMAN said that, if he heard no objection, he would take it that the Commission
wished to adopt the text of article 2(f) contained in document A/CN.9/XVIII/CRP.15.
COMMISSION REPORT
A/40/17 (21 AUGUST 1985)
C. Discussion on individual articles of the draft text
[….]
Article 2. Definitions and rules of interpretation
37. The text of article 2 as considered by the Commission was as follows:
[same as Fifth Draft, supra.]
Sub–paragraphs (a), (b) and (d)
38. The Commission adopted sub–paragraphs (a), (b) and (d) of the article.
Sub–paragraph (c)
39. During the discussion on sub–paragraph (c), a suggestion was made to express by an
appropriate reservation that the freedom of the parties to authorize a third person to
make a certain determination did not extend to the determination of the rules of law
applicable to the substance of the dispute, as referred to in article 28(1). The Commission
postponed consideration of the suggestion until the discussion of article 28.
40. In accordance with the view of the Commission expressed during the subsequent
discussion on article 28 that the model law should not deal with the possibility that parties
might authorize a third person to determine rules of law applicable to the substance of the
dispute (see below, para. 242) [appearing in the section on Art. 28, p. 807 infra], the
Commission decided to modify sub–paragraph (c) along the following lines: “(c) where a
provision of this Law, except article 28, leaves the parties free to determine a certain
issue, such freedom includes the right of the parties to authorize a third party, including an
institution, to make that determination.”
[….]
Suggestions for additional definitions
46. The Commission adopted the proposal to express in article 2, possibly before the
definition of “arbitral tribunal” in subparagraph (a), that the term “arbitration” meant any
arbitration whether or not administered by a permanent arbitral institution.
47. The Commission did not accept a proposal to move the definition of “arbitration
agreement,” set forth in article 7(1), to article 2.
48. It was suggested that the term “award” should be defined in the model law. Such a
definition, which would be useful for all provisions where the term was used, could also
clarify the various possible types of awards, such as final, partial, interim or interlocutory
awards.
P 181
P 182
49. The Commission was agreed that, while a definition was desirable, a more modest
approach should be taken in view of the considerable difficulty of finding an acceptable
definition and in view of the fact that other legal texts on arbitration, e.g. the 1958 New
York Convention and many national laws, did not define the term. It was agreed to
determine in the context of article 34 and any other provision where such determination
was needed (e.g. articles 31 and 33) which types of decisions were covered by those
articles.
50. As to a decision to add a new subparagraph (f) in respect of counter–claims, see below,
paragraph 327.
[….]

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 Article 23. Statements of claim and defence
[….]
Counter–claim
201. A suggestion was made to add a provision, either in article 23 or in another
appropriate place, that any provision of the model law referring to the claim would apply,
mutatis mutandis, to a counter–claim. It was agreed that the Commission would consider
the matter after it had completed its consideration of the entire draft model law. The
subsequent decision in respect of counter–claims is reflected below in paragraph 327.
[….]
D. Discussion of other matters
[….]
Counter–claim
327. The Commission recalled a suggestion made in the context of article 23 for adding a
new provision that any provision of the model law referring to the claim would apply,
mutatis mutandis, to a counter–claim (see above, para. 201). On the basis of a proposal
prepared by the representatives of Czechoslovakia and the United States, the Commission
decided to add the following provision to article 2 as new subparagraph (f):
“(f) where a provision of this Law, other than in articles 25(a) and 32(2)(a), refers
to a claim, it also applies to a counter–claim, and where it refers to a defence, it
also applies to a defence to such counter–claim.”
P 182

References
1) First Draft, A/CN.9/WG.II/WP.37, Art. 1(B)(2), p. 157 infra, and Second Draft,
A/CN.9/WG.II/WP.40, Art. 1(2), p. 159 infra.
2) 484 U.N.T.S. 349, Art. I(1) of that Convention provides that the Convention applies to
certain defined types of arbitration agreements in international trade and to “arbitral
procedures and awards based on [such] agreements.”
3) Third Working Group Report, A/CN.9/233, paras. 50–51, pp. 159–60 infra.
4) Second Secretariat Note, A/CN.9/WG.II/WP.35, para. 10, p. 156 infra.
5) See Summary Record, A/CN.9/SR.307, paras. 59–62, p. 172 infra; Commission Report,
A/40/17, para, 46, p. 181 infra.
6) First Working Group Report, A/CN.9/216, para. 16, p. 157 infra.
7) Id. para. 17, p. 157 infra. See also First Secretariat Note, A/CN.9/207, para. 39, appearing
in the section on Article 7, pp. 268–69 infra (suggesting that arbitration that is
compelled by statute be explicitly excluded from the Model Law).
8) See First Working Group Report, A/CN.9/216, para. 17, p. 157 infra; First Secretariat Note,
A/CN.9/207, para. 29, p. 155 infra.
9) See Second Secretariat Note, A/CN.9/WG.II/WP.35, para. 10, p. 156 infra.
10) First Working Group Report, A/CN.9/216, para, 17, p. 157 infra.
11) A related question that was discussed by the Working Group was whether the
assistance of third parties in adapting or supplementing contracts — the so–called
“gap–filling” functions — constituted arbitration, and if so, whether they should be
dealt with in the Model Law. The materials on these discussions appear in the section
on Matters Not Addressed in the Final Text, pp. 1123–36 infra.
12) Third Draft, A/CN.9/WG.II/WP.45, New Art. I bis, nn. 8 & 9, p. 161 infra; Seventh
Secretariat Note, A/CN.9/264, Art. 2, paras. 1–2, p. 170 infra.
13) Seventh Secretariat Note, A/CN.9/264, Art. 2, para. 2, p. 170 infra.
14) Id. para. 2 & n. 26, p. 170 infra. See also Sixth Secretariat Note (Government Comments),
A/CN.9/263, Comments on additional points, paras, 17, 18, p. 168 infra.
15) A/CN.9/WG.II/WP.40, para. 4, pp. 158–59 infra.
16) Third Working Group Report, A/CN.9/233, paras. 101–02, p. 160 infra.
17) See Commission Report, A/40/17, paras. 39–40, p. 181 infra; Summary Record,
A/CN.9/SR.307, para. 64, SR.327, paras. 30–39, SR.333, paras. 1–5, pp. 172–73, 177–78, 179
infra.
18) First Draft, A/CN.9/WG.II/WP.37, Art. 28 & n. 13, p. 158 infra.
19) Fifth Working Group Report, A/CN.9/246, para. 196, p. 165 infra.
20) Commission Report, A/40/17, para. 327, p. 182 infra; Summary Record, A/CN.9/SR.331,
paras. 10–14, SR.332, para. 2, p. 178–79 infra.
21) Fifth Working Group Report, A/CN.9/246, para. 194, p. 165 infra.
22) Id, para. 192, pp. 164–65 infra.
23) Id., para. 193, p. 165 infra.
24) Summary Record, A/CN.9/SR.308, para. 17, p. 174 infra.
25) Commission Report, A/40/17, para. 49, p. 182 infra.
26) Summary Record, A/CN.9/SR.308, para. 14, p. 173 infra.

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 27) Sixth Secretariat Note (Government Comments), A/CN.9/263, Comments on additional
points, paras. 4, 5, 6, p. 167 infra. See also Summary Record, A/CN.9/SR.308, para. 21, p.
175 infra (suggesting definition of the terms “interlocutory,” “interim,” and “partial”
awards). (Further materials on this last question — regarding the various types of
awards — are included in the section on Article 32, see pp. 867–69 infra.)
1) Relevant discussion and conclusions of the Working Group in [the First Working Group
Report,] A/CN.9/216, paras. 16–21. [Editors' Note: Paragraphs 19–21 appear on pages 45–
46 supra.]
13) This sentence is modeled on article 21(3) of the UNCITRAL Arbitration Rules.
4) The reference to only paragraph (1) of article II [Art. 7(1) of the final text] would, apart
from its general value, help to clarify that the requirement of written form as laid down
in article II, paragraph (2) [Art. 7(2) of the final text], is not a question of scope of
application. Thus, a non–written agreement would be covered by this Law but would
not be valid because of article II, paragraph (2).
1) The draft provisions under lit. (a) and (b) are designed to implement the decision of
the Working Group reported in [the Third Working Group Report,] A/CN.9/233, paras.
101–102.
7) The draft provisions under lit. (a) and (b) are designed to implement the decision of
the Working Group reported in [the Third Working Group Report,] A/CN.9/233, paras.
101–102.
8) This draft provision might be deemed useful not only in view of the clarification
expressed therein but also as an aid in emphasizing the distinction between arbitral
tribunal and “court” as defined in the following provision.
9) This draft provision attempts to define, for two different reasons, the term “court” as
used in the model law. One reason is to clarify that “court” includes any competent
“judicial authority” even if not called court in the respective country. The other reason
is to emphasize the distinction between arbitral tribunal and court which seems
particularly desirable in languages other than English since, for example, in French
and Spanish the term “tribunal” could otherwise be misunderstood as an abbreviated
reference to “tribunal arbitral.”
13) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 62–68. [Editors' Note: For the full text of the cited
paragraphs, see pp. 281–82 infra.]
7) See decision below, para. 196.
11) See discussion below, paras. 192–194.
42) [Fifth Working Group Report,] A/CN.9/246, paras. 73 and 196.
43) United Nations document A/CONF.63/15.
21) [First Working Group Report,] A/CN.9/216, para. 17 [p. 157 supra].
26) The Commission may wish to examine the appropriateness of the term “country,” used
also in articles 35(1), (3) and 36(1), with a view to achieving consistency throughout the
model law by using exclusively the expression “State.”
54) The Working Group, at its seventh session, decided to delete, at the end of the first
sentence of article 16(2), the words “or, with respect to a counter–claim, in the reply to
the counter–claim,” on the the understanding that any provisions of the model law
referring to the claim would apply, mutatis mutandis, to a counter–claim ([Fifth
Working Group Report,] A/CN.9/246, para. 196 [p. 165 supra]).
70) [Secretariat] Commentary to article 16, para. 5, and footnote 54.
*) [Editors' Note: This Conference Room Paper, dated 18 June 1985, read as follows:
Proposal by the delegation of the German Democratic Republic and the
Observer of the Hague Conference on Private International Law
Article 2
(a) …
(b) …
(c) Where a provision of chapter III, IV or V of this Law leaves the parties free to
determine a certain issue, such freedom includes the right of the parties to
authorize a third party, including an institution, to make that determination;]
*) [Editors' Note: The drafting group's wording was identical to the final text of Article 2,
subparagraphs (a) through (e), except that the text of subparagraph (d) was the slightly
different text proposed in A/CN.9/XVIII/CRP.13, quoted in the preceding footnote.]
*) [Editors' Note: The proposal read as follows:
(f) where a provision of this Law, other than in article 25(a) and 32(2)(a), refers to a claim,
it also applies to a counter–claim, and where it refers to a defence, it also applies to a
defence to such counter–claim.]

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Document information
UNCITRAL Model Law, Chapter I, Article 2A – as added
Publication [International origin and general principles]
A Guide to the 2006 [Editors' Note: Article 2 A was added to the Model Law by the Commission in 2006.]
Amendments to the
UNCITRAL Model Law on
International Commercial Article 2 A International Origin And General Principles
Arbitration: Legislative (1) In the interpretation of this Law, regard is to be had to its international origin and to
History and Commentary the need to promote uniformity in its application and the observance of good faith.
(2) Questions concerning matters governed by this Law which are not expressly settled in
it are to be settled in conformity with the general principles on which this Law is based.
Organization
United Nations Commission Commentary
on International Trade Law
The Model Law as initially adopted in 1985 did not contain any version of Article 2 A. The
Commission added the provision in the course of the final adoption of the 2006
amendments to the Law. The Commission based the provision—word-for-word—on Article 3
Promulgation of the UNCITRAL Model Law on Electronic Commerce, adopted in 1996, and on a closely
21 June 1985 parallel provision in the 1980 United Nations Convention on Contracts for the International
Sale of Goods.
The Working Group first discussed the concept of drafting a provision on interpretive
Legislation number principles in connection not with the drafting of the Model Law as such, but in connection
with drafting what ultimately became the UNCITRAL “Recommendation regarding the
United Nations Documents interpretation of article II, paragraph 2, and article VII, paragraph 1” of the New York
A/40/17, Annex I, and Convention, which deals with the form of the arbitration agreement. See pages 603–12 infra.
A/61/17, Annex I The Working Group Report briefly notes the language of Article 3 of the Model Law on
Electronic Commerce. (6) Ultimately, the “Recommendation” did not contain any such
provision. In adopting the amendments to the Model Law in 2006, the Commission
Bibliographic reference returned to the idea and “agreed that the inclusion of such a provision would be useful and
desirable because it would promote a more uniform understanding of the Arbitration
'UNCITRAL Model Law, Model Law.” (7)
Chapter I, Article 2A – as
added [International origin P 24 The legislative history provides no guidance on the meaning of the terms in the article as
and general principles]', in P 25 drafted, beyond the notation in the 2006 Commission Report that the provision “was
Howard M. Holtzmann , designed to facilitate interpretation by reference to internationally accepted principles.”
Joseph Neuhaus , et al., A (8) Paragraph 1 of Article 2 A, which calls for the provisions of the Model Law to be
Guide to the 2006 interpreted with “regard … to its international origin and to the need to promote
Amendments to the uniformity in its application,” presumably should be read to encourage courts and
UNCITRAL Model Law on arbitrators to look beyond the local jurisdiction to see how courts, commentators and
International Commercial aribtrators may have interpreted the provisions in question around the world. Further, to
Arbitration: Legislative the extent drafting history is seen as a permissible source of guidance to the meaning of a
History and Commentary, statute in the adopting jurisdiction, it may be ventured that Paragraph 1 authorizes taking
(© Kluwer Law International; into account the drafting history of the Model Law set forth in this book and in the
Kluwer Law International companion volume, Howard M. Holtzmann & Joseph E. Neuhaus, A Guide to the UNCITRAL
2015) pp. 24 - 27 Model Law on International Commercial Arbitration: Legislative History and Commentary
(1989).
Paragraph 2 of Article 2 A calls for applying the Law, where a matter is not “expressly
settled” by its text, “in conformity with the general principles on which this Law is based.”
Those principles can be gleaned from the text of the Law and the drafting history. It is
submitted that among those principles are a broad realm of party autonomy (see, e.g.,
Articles 3, 10, 11, 13(1), 15, 17, 19(1), 20–26); subject to party control, a similarly broad
freedom for the arbitral tribunal to structure arbitral proceedings as it considers
appropriate (see, e.g., Articles 18, 19(2)); and limited scope for court intervention in the
arbitral process and review of arbitral decisions (see, e.g., Articles 5, 6, 35 and 36).
P 25
P 26

Legislative History
1985 Model Law Provision
[NONE]
December 2000 Working Group Report A/CN.9/485 (20 December 2000)
[Editors' Note: The proposal for this amendment arose in the context of drafting an
interpretive instrument with respect to Article II(2) of the New York Convention. See pages
603–12 infra.]
III. Interpretative instrument regarding article II(2) of the New York Convention
[.…]
D. Relationship to revision of article 7 of the Model Law on Arbitration

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 70. In the course of discussing the form of the instrument, it became clear to the Working
Group that the relationship between the proposed instrument and the amendment of
article 7 of the Model Law on Arbitration needed to be considered. It was acknowledged
that while promoting adoption of an amendment of article 7 of the Model Law on
Arbitration would be an effective means of achieving a broad interpretation of the form
requirement, although only in countries adopting the Model Law on Arbitration, it could
not address the issue of the New York Convention. It was observed that pursuing the
interpretative instrument and the amendment to the Model Law on Arbitration at the same
time would likely prove a more effective means of achieving of the desired objective. A
concern was expressed that basing the operative text of an interpretative declaration on
the proposed draft revision of article 7 of the Model Law on Arbitration might be thought
by some to go beyond the scope of the written form specified in article II(2) of the New
York Convention and in that regard it was suggested that the Working Group would need to
consider whether the amendment that the Working Group would decide upon for article 7
of the Model Law on Arbitration should be included in exactly the same form in the
interpretative instrument.
E. General remarks on content
71. The view was expressed that the interpretative declaration should include explicit
statements to the effect that article II(2) should be broadly interpreted and the basis for
that interpretation; that technology had advanced since the New York Convention was
drafted in 1958, and that subsequent instruments recognized other forms of writing,
particularly in the area of electronic commerce. It was suggested that the operative part of
the text (paragraph 12) should be explicitly phrased in terms of a statement of consensus,
P 26 in order to lessen any potential misunderstanding that the declaration reflected a change,
P 27 rather than a clarification, of existing interpretations. It was further noted that it would
be useful to include within the body of the declaration a justification along the lines of
article 3 of the UNCITRAL Model Law on Electronic Commerce. (12)
2006 Commission Report A/61/17 (15 July 2006)
IV. Finalization and adoption of legislative provisions on interim measures and the form
of arbitration agreement and of a declaration regarding the interpretation of articles II (2)
and VII (1) of the 1958 New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards
[.…]
C. Consideration of the draft legislative provision on the form of arbitration agreement
[.…]
6. Additional provision
174. The Commission considered whether the Arbitration Model Law should include a
provision along the lines of article 7 of the United Nations Convention on Contracts for the
International Sale of Goods (Vienna, 1980) (7) (the “United Nations Sales Convention”),
which was designed to facilitate interpretation by reference to internationally accepted
principles. (*) The Commission observed that similar provisions were included in other
model laws prepared by the Commission, including article 3 of the UNCITRAL Model Law on
Electronic Commerce.
“(1) In the interpretation of this Convention, regard is to be had to its international
character and to the need to promote uniformity in its application and the
observance of good faith in international trade.
“(2) Questions concerning matters governed by this Convention which are not
expressly settled in it are to be settled in conformity with the general principles on
which it is based or, in the absence of such principles, in conformity with the law
applicable by virtue of the rules of private international law”.]
175. The Commission agreed that the inclusion of such a provision would be useful and
desirable because it would promote a more uniform understanding of the Arbitration
Model Law. The Commission agreed that the provision should read as follows: [ text of
Article 2 A].
P 27

References
6) December 2000 Working Group Report, A/CN.9/485, para. 71 & n.12, pp. 26–27 infra.
7) 2006 Commission Report, A/61/17, para. 175, p. 27 infra.
8) Id. para. 174.

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 12) Article 3 states:
“(1) In the interpretation of this Law, regard is to be had to its international
origin and to the need to promote uniformity in its application and the
observance of good faith.
(2) Questions concerning matters governed by this Law which are not
expressly settled in it are to be settled in conformity with the general
principles on which this Law is based.”
7) United Nations, Treaty Series, vol. 1489, No. 25567, and United Nations publication,
Sales No. E.95.V.12.
*) [Editors' Note: Article 7 of the Convention on Contracts for the International Sale of
Goods provides:

126
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Document information
UNCITRAL Model Law, Chapter I, Article 3 [Receipt of written
Publication communications]
A Guide to the UNCITRAL (1) Unless otherwise agreed by the parties:
Model Law on International
Commercial Arbitration: (a) any written communication is deemed to have been received if it is delivered
Legislative History and to the addressee personally or if it is delivered at his place of business,
Commentary habitual residence or mailing address; if none of these can be found after
making a reasonable inquiry, a written communication is deemed to have been
received if it is sent to the addressee's last–known place of business, habitual
residence or mailing address by registered letter or any other means which
Organization provides a record of the attempt to deliver it;
United Nations Commission (b) the communication is deemed to have been received on the day it is so
on International Trade Law delivered.
(2) The provisions of this article do not apply to communications in court proceedings.
Promulgation Commentary
21 June 1985 Every arbitration proceeding necessarily requires the delivery of various written
communications. Article 3 is designed to resolve the practical and legal questions that
arise concerning how to deliver such communications and to determine when they have
Legislation number been received. Parties may agree on how this will be regulated—for example, by selecting
arbitration rules that contain provisions on the subject—but when they have not so agreed
United Nations Document Article 3 will govern the matter.
A/40/17, Annex I
Article 3 is modeled on Article 2(1) of the UNCITRAL Arbitration Rules. It provides three
alternative methods of delivering written communications: (1) delivery to the addressee
Bibliographic reference personally; (2) delivery to his place of business, habitual residence, or mailing address; (3)
if none of these can be found after reasonable inquiry, sending the communication to the
'UNCITRAL Model Law, addressee's last–known place of business, habitual residence, or mailing address by
Chapter I, Article 3 [Receipt registered letter or other means providing a record of the attempt to deliver. With respect
of written communications]', to this last method, the Commission intended “last–known” to refer to the knowledge of the
in Howard M. Holtzmann and sender. (1) If one of these three methods is followed, the communication will be treated as
Joseph Neuhaus , A Guide to received on the day of delivery.
the UNCITRAL Model Law on
International Commercial Article 3 does not provide criteria for determining what constitutes “reasonable inquiry” in
Arbitration: Legislative attempting to determine the addressee's current place of business, habitual residence, or
History and Commentary, P 184 mailing address. It also does not provide for advertising or other more elaborate
(© Kluwer Law International; P 185 procedures such as are provided in some national procedural codes. It was felt that
Kluwer Law International excessive detail might hinder adoption of the Article by national legislatures and that the
1989) pp. 184 - 195 Model Law should do no more than to ensure that reasonable attempts are made to inform
the addressee so that he has an opportunity to exercise his rights. (2)
Article 3 does not override national procedural codes that apply outside of arbitration. It
applies only to the arbitral proceedings and not to documents sent in court proceedings,
which would continue to be governed by the national procedural rules. Thus, it presumably
would apply, for example, to the request that a dispute be referred to arbitration (Article
21 of the Model Law), to written communications by a party, an arbitrator, or an appointing
authority in the process of appointing arbitrators prior to any court involvement (Article
11), to service of the statements of claim and defence (Article 23), and to delivery of the
arbitral award (Article 31(4)). Examples of communications to which Article 3 would
presumably not apply are documents filed in courts under the challenge procedures of the
Model Law (Article 13(3)), requests to courts to decide on the arbitral tribunal's jurisdiction
(Article 16(3)), proceedings to seek court assistance in taking evidence (Article 27), or
proceedings to set aside or enforce the arbitral award through the courts (Articles 34–36).
A question may arise whether the notice provisions of Article 3 apply when a State has
designated an authority other than a court to exercise the functions listed in Article 6. For
example, the State might provide that a Chamber of Commerce act as appointing authority
under the Law (Article 11(4)). It would seem that Article 3 should apply in such cases since
only “court proceedings” are exempted; the term “court” is defined in Article 2(c). The
Commission Report supports this view: it states that Article 3 was intended to apply “only
to the arbitral proceedings proper, including any steps in the appointment process by a
party, an arbitrator or an appointing authority.” (3)
P 185 As noted, Article 3 is modeled on Article 2(1) of the UNCITRAL Arbitration Rules. (4) The
P 186 wording of Article 3 differs in several details from that of the Rules, although none of the
changes alters the basic approach. First, the Model Law refers to “any written
communication” and to “physical” delivery to the addressee, while the Rules refer to “any
notice, including a notification, communication or proposal” and to delivery to the
addressee “personally.” These changes would not appear to be substantive ones. Second,
Article 3 of the Model Law refers to the addressee's “place of business, habitual residence
or mailing address,” an alteration of the order used in the Rules, which place “habitual
residence” first. Although the legislative history does not explain this minor change, (5) it

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 presumably was thought appropriate to list “place of business” first in a provision
intended to govern commercial arbitration, in which the parties are likely to have business
offices. In any event, it is submitted that the change should not be read to suggest a
substantive difference from the UNCITRAL Rules: “place of business” and “habitual
residence” are alternatives and there is no indication that the order of their listing was
meant to suggest that notices be sent first to the place of business and only if that is
impossible to the habitual residence.
A third difference between the Model Law and the Rules is that where the addressee or his
current addresses cannot be found, the Rules provide for notices to be sent only to the
addressee's last–known residence or place of business. The Model Law includes the last–
known mailing address as an alternative. This slight change ensures that the situation in
which the parties communicated during their commercial relations only by mail is fully
covered; it, too, is probably an appropriate rule in a law aimed at international
commercial dealings. (6)
Fourth, the Model Law specifically provides that registered mail or a method providing a
record of the attempt to deliver be used in case of delivery to a last–known location of the
addressee. (7) This proviso, which is probably implicit in the Rules, ensures that the sender
may use registered mail, as opposed to personal delivery by an agent, and at the same
time provides that the arbitral tribunal and any reviewing court will have evidence of the
attempt to deliver. It is submitted that insertion of “registered mail” in the case of delivery
to a last–known location does not mean that registered mail may not be used for personal
delivery to the addressee himself or delivery to his current business, residence, or address.
P 186 The registered–mail proviso merely sets a minimum standard for cases in which the Law
P 187 deems that a delivery has been made to the addressee by delivery to a last–known
address. It does not speak to cases in which delivery is actuallymade to the addressee or
to his current address. It seems clear that if registered mail is sufficient for deemed
delivery, it is sufficient for actual delivery. (8)

Legislative History
THIRD SECRETARIAT NOTE POSSIBLE FURTHER FEATURES OF A MODEL LAW
A/CN.9/WG.II/WP.41 (12 JANUARY 1983)
B. Commencement of arbitral proceedings and cessation of running of limitation period
[footnote deleted]
[….]
15. Furthermore, with regard to the question as to how the model law should provide a
supplementary rule for cases where the parties have failed to make provision for the
manner of commencing arbitral proceedings, paragraph 2 of Article 14 of the Prescription
Convention [Convention on the Limitation Period in the International Sale of Goods,
A/Conf.63/15 (New York 1974)] suggests an approach:
“In the absence of any such provision, arbitral proceedings shall be deemed to
commence on the date on which a request that the claim in dispute be referred
to arbitration is delivered at the habitual residence or place of business of the
other party or, if he has no such residence or place of business, then at his last
known residence or place of business.”
16. This provision may also be regarded as an indication of a preferred approach for
arbitration rules. Thus, Article 3 of the UNCITRAL Arbitration Rules adopts a similar
approach but in a more elaborated manner. The apparent difference in the degree of
detail in the provision between paragraph 2 of Article 14 of the Prescription Convention
and Article 3 of the UNCITRAL Arbitration Rules may be partly due to the fact that the
former is a rule of general applicability to all arbitral proceedings while the latter is a part
of a concrete set of rules which will be applied to a particular arbitration by the
agreement of parties.
17. The following draft provisions may form a basis for discussion:
Article B [Art. 21 in the final text]
[… ]
(2) In the absence of any such agreement, the arbitral proceedings shall be deemed to
P 187 commence on the date on which a request that the claim in dispute be referred to
P 188 arbitration is delivered at the habitual residence or place of business of the other
party or, if he has no such residence or place of business, then at his last known
residence or place of business [provided that such a request sufficiently identifies
the claim.] (4)
THIRD DRAFT A/CN.9/WG.II/WP.44 (5 JULY 1983)
B. Commencement of arbitral proceedings [footnote deleted]
Article B [Art. 21 in the final text]
Unless otherwise agreed by the parties, the arbitral proceedings shall be deemed to
commence on the date at which a request that a dispute be referred to arbitration is

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 received (6) by the respondent provided that such a request [sufficiently] identifies the
claim.
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
I. Consideration of [Third Draft] (A/CN.9/WG.II/WP.44)
B. Commencement of arbitral proceedings
24. The text of article B as considered by the Working Group was as follows:
[same as Third Draft, supra].
[….]
28. The prevailing view in the Working Group was that a general rule, modeled on article
2(1) of the UNCITRAL Arbitration Rules, on the date when a notice or other communication
is deemed to have been received was useful and should be included in the model law.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 2. Definitions and rules of interpretation
P 188
P 189 [Editors' Note: Subparagraphs (a)–(d) of this draft Article were incorporated into Article 2
of the final text; see the section on that Article, p. 163 supra. Subparagraph (e) became Article
3 of the final text.]
For the purposes of this Law:
[….]
(e) any written communication is deemed to have been received if it is physically
delivered to the addressee or if it is delivered at his place of business, habitual
residence or mailing address, or, if none of these can be found after making
reasonable inquiry, then at the addressee's last–known place of business or
residence. The communication shall be deemed to have been received on the day it
is so delivered.
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A.Consideration of [Fourth Draft]
[….]
Article 12 [Arts. 2 & 3 in the final text]
172. The text of article 2 as considered by the Working Group was as follows: [same as Fourth
Draft, supra].
173. The Working Group adopted that article, subject to the replacement of the words “or
residence,” at the end of the first sentence of subparagraph (e), by the words “habitual
residence or mailing address.”
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 2. Definitions and rules of interpretation [Arts. 2 &3 in the final text]
For the purposes of this Law:
[….]
(e) [Art. 3 in the final text] unless otherwise agreed by the parties, any written
communication is deemed to have been received if it is delivered to the addressee
personally or if it is delivered at his place of business, habitual residence or mailing
address, or, if none of these can be found after making reasonable inquiry, then at the
addressee's last–known place of business, habitual residence or mailing address. The
communication shall be deemed to have been received on the day it is so delivered.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[….]
Article 2. sub–paragraph (e) [Art. 3 in the final text]
4. Czechoslovakia proposes to add the following text at the end of the first sentence of
sub–paragraph (e): “in such a case the mailing by registered letter is sufficient.”
P 189
P 190
5. The German Democratic Republic proposes to make clear that the last–known place of
business, habitual residence or mailing address is the one last–known to the sender.
6. Norway observes that according to sub–paragraph (e) a written communication would in
some cases be deemed to have been received if it has been delivered to the addressee's
last–known place of business, habitual residence or mailing address even if the
communication has never reached the addressee. While recognizing the need for such a
provision, it is also observed that articles 11(3)(a), 11(4)(a) and 25 create the possibility of

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 an arbitral award being rendered against a defendant who has not been aware of the
proceedings. On the basis of these observations, it is suggested that the defendant be
given a right of recourse or appeal which could be exercised in such cases, or that the
defendant be allowed to challenge the award on the merits of the case as a defence to an
action of recognition or enforcement. In the opinion of Norway, these questions need closer
examination.
A/CN.9/263/ADD.1 (31 JULY 1985)
B. Specific comments on individual articles
[….]
Article 2. sub–paragraph (e) [Art. 3 in the final text]
3. Canada expresses the view that the modalities of delivery by each system described in
sub–paragraph (e) will have to be considered by each State, having regard to the rules of
delivery it accepts in the case of judicial procedures and to local circumstances. For
example, Rules of Court may deem service to take place within a certain number of days
following the date of posting.
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 2. Definitions and rules of interpretation. [Arts. 2 & 3 in the final text]
[….]
“Receipt of communication” defined, paragraph (e) [Art. 3 in the final text]
6. Paragraph (e), which is modeled on article 2(1) of the UNCITRAL Arbitration Rules, lists a
variety of instances in which a written communication, by a party or the arbitral tribunal,
“is deemed to have been received.” Despite this latter wording, the list starts with
instances of actual (i.e. non–fictional) receipt and then enters into the realm of legal
fiction. The last sentence makes it clear that any such instance is not only conclusive of the
fact of receipt but also determines the date or receipt.
P 190
P 191
SUMMARY RECORD A/CN.9/SR.307–.308, .313, .319, .332
[4 June 1985, 9:30A.M., A/CN.9/SR.307]
Article 2
59. The CHAIRMAN [Mr. LOEWE (Austria)] invited the Commission to consider the definitions
and rules of interpretation.
[….]
66. Mr. RUZICKA (Czechoslovakia) referred to his Government's written proposal on
subparagraph (e) [Art. 3 in the final text], mentioned in [the Sixth Secretariat Note
(Government Comments),] document A/CN.9/263 ([Art. 2,], para. 4), and suggested that
wording should be added at the end of the subparagraph to the effect that mailing by
registered letter was sufficient to ensure that arbitration could being.
67. Mr. GRIFFITH (Australia) expressed concern about subparagraph (e) in the light of
Norway's written comments on it, mentioned in [the Sixth Secretariat Note (Government
Comments),] document A/CN.9/263 ([Art. 2,] para. 6). He suggested that the subparagraph
should include provision for advertising if no address was found after reasonable enquiry
and stipulate that communications were to be deemed to be received on the day on which
they were delivered. He also suggested that consideration should be given to Norway's
written proposal for the model law to provide a right of recourse or appeal for a party to an
arbitration who, through no fault of his own, had not received notice.
[4 June 1985, 2:30 P.M., A/CN.9/SR.308]
Article 2. Definitions and rules of interpretation (continued)
1. Mr. GRIFFITH (Australia) said his delegation had felt that subsection (e) should perhaps
deal with the question of a substitute service when it was known that the addressee was
not at his last known business address or habitual residence. However, on reflection, he
considered it more appropriate to raise that issue in connection with article 11(4).
2. Mr. STROHBACH (German Democratic Republic) supported the Czechoslovak proposal
that subparagraph (e) should state that written communication could be made by
registered letter. It was also not clear to whom the addressee's place of business, habitual
residence or mailing address was supposed to be known: was it to the other party or to the
arbitrator? If it was the latter, was it incumbent on him to contact the police, the business
registration office or some other authority? In his view, the intention had been to refer to
the last address known to the other party. If so, it should be clearly stated in subparagraph
(e).
P 191 3. Mr. de HOYOS GUTIERREZ (Cuba) agreed that some clarification was required in the
P 192 wording of subparagraph (e). In particular, the phrase “after making reasonable inquiry”
seemed inappropriate. He would suggest a phrase along the following lines: “after having

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 established that reasonable enquiries had been made,” so that if there was an appeal by
the addressee, evidence could be produced that a real effort had been made to contact
him.
4. The CHAIRMAN [Mr. LOEWE (Austria)] said he did not feel it necessary in a model law on
arbitration to enter into details about notification, which was a subject more appropriate
for a code of civil procedure. If it was desired to expand subparagraph (e), perhaps it
would be better to convert it into a separate article on notification.
5. Mr. STALEV (Observer for Bulgaria) thought that the matter was important since it was
closely connected with the right of parties to be heard. He therefore strongly supported
proposals which went to guarantee that the addressee actually received the
communication. He endorsed the Chairman's suggestion of a separate article on
notification.
6. Mr. ROEHRICH (France) noted that a model law should deal with basic principles. It
should not go into too many details, which could give rise to difficulties with national
legislations on procedure. The point of substance was that reasonable attempts should
have been made to inform the addressee so that he had an opportunity to exercise his
rights. Language to that effect appeared in a number of international conventions. It would
be difficult to go any further and try to obtain agreement on precise rules.
7. Sir Michael MUSTILL (United Kingdom) supported the comments of the French
representative.
8. Mr. SAMI (Iraq) agreed that the procedure under subparagraph (e) might have important
legal implications in view of the fact that arbitration on international commercial disputes
often involved considerable sums of money. It was therefore difficult to accept the present
text: the mere dispatch of a communication was insufficient. The communication should be
made by registered mail and a certain period of time should elapse before the addressee
could be taken to have received it.
9. Mr. SCHUETZ (Austria) agreed with the views expressed by the French representative. The
present text took into account the interests of both parties and was not prejudicial to the
addressee.
[….]
12. The CHAIRMAN said that subparagraph (e) should achieve a balance between the
interests of the party sending the communication and the party receiving it and also a
balance in the text, so that it was neither too detailed nor too brief. He therefore
suggested that a small drafting group should be set up to reword subparagraph (e),
composed of the representatives of Czechoslovakia, France, Iraq and Mexico.
[….]
15. Mr. TORNARITIS (Cyprus) […] observed that definitions in a legal text usually related to
P 192 the specific meanings which should be attributed to particular words for purposes of that
P 193 text and which they did not have in ordinary language. As for subparagraph (e) of article
2, it should constitute a separate article; it was not a definition.
[….]
25. The CHAIRMAN said that subparagraph (e) of article 2 would be redrafted by the small
drafting group he had suggested earlier. […] If there were no objections, he would take that
the Commission agreed to adopt those suggestions on article 2.
26. It was so agreed.
[7 June 1985, 9:30 A.M., A/CN.9/SR.313]
Article 11. Appointment of arbitrators (continued)
Paragraph (4) (continued)
1. Mr. ROGERS (Australia) said that during the discussion of article 2(e) his delegation had
referred to the possibility of substituted service in cases in which it was known that the
addressee was not at his last known business address or habitual residence. The problem
was that the provision on receipt of communications in article 2(e) was so carefully worded
that a court might think the provision barred it from ordering substituted service. He
proposed that the Commission should insert a provision in article 11 to make it clear that
such an effect was not intended.
2. The CHAIRMAN said that in his view service under article 2(e) was confined to service
effected in the course of arbitral proceedings, including notification of choice of
arbitrators and service of the award, and excluded service ordered by a court. It might be
better to make that point clear in article 2(e).
3. Mr. HOLTZMANN (United States of America) supported the Chairman's suggestion.
4. Mr. ROGERS (Australia) accepted the suggestion.
[12 June 1985, 9:30 A.M., A/CN.9/SR.319]
61. Mr. RUZICKA (Czechoslovakia) introduced document A/CN.9/XVIII/CRP.3. (*) He

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 explained that the provisions on receipt of communications had been drafted as a new
article because they seemed out of place in article 2.
P 193
P 194
62. THE CHAIRMAN [Mr. LOEWE (Austria)] said that, unless he heard any objection, he would
take it that the Commission approved the proposal in document A/CN.9/XVIII/CRP.3.
63. It was so agreed.
[20 June 1985, 3:00 P.M., A/CN.9/SR.332]
Articles 3 to 5 [as revised by the Drafting Group]
5. Articles 3 to 5 were adopted without change.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 2. Definitions and rules of interpretation
37. The text of article 2 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
Sub–paragraph (e)
41. In respect of sub–paragraph (e), several suggestions were made for adding certain
procedural rules, in particular as regards the case where the addressee's place of business,
habitual residence or mailing address was not to be found. One suggestion, which the
Commission adopted, was to clarify that in such case the mailing by registered letter
sufficed. The Commission did not accept a suggestion to lay down certain criteria for
determining what constituted a reasonable inquiry. Another submission, with which the
Commission agreed, was that the expression “last–known” referred to the knowledge of the
sender.
42. In order to reduce the risk that the provision might operate to the detriment of a party
who was unaware of any proceedings against him, it was suggested that some sort of
advertising should be required, a certain period of time should be established for the
fictitious receipt to become effective or that some possibility for the respondent to resort
to a court should be envisaged. Another suggestion was not to retain the provision and to
rely solely on the requirements and safeguards of the applicable procedural law. Yet
another suggestion was that the provision, since it went clearly beyond a mere definition
or rule of interpretation, should be placed in a separate article of the model law.
43. The Commission, after deliberation, was agreed that the provision should not set forth
excessively detailed procedural requirements which could prove to be an obstacle to
incorporating the model law in national legal systems. The Commission entrusted an ad
hoc working party, composed of the representatives of Czechoslovakia, Iraq and Mexico, to
prepare a modified version of the provision in the light of the above discussion.
44. The ad hoc working party suggested placing the provision in a new article 3 in the
following modified form: [same as A/CN.9/XVIII/CRP.3, p. 193 n. * supra].
P 194
P 195
45. The Commission adopted the suggested provision as new article 3. It was noted that the
reason for placing the provision in a separate article was that it contained a rule of
procedure and neither a definition nor a rule of interpretation. It was also noted that the
reason for placing the last sentence in a separate paragraph was to make clear that the
sentence referred to the entire provision. As to the understanding of the Commission that
new article 3 on receipt of communications did not apply to court proceedings or
measures but only to the arbitral proceedings proper, see below, para. 106.
[….]
Article 11. Appointment of arbitrators.
[….]
106. In respect of the functions of the Court envisaged under paragraphs (3), (4) and (5), an
observation was made based on the concern which had earlier been expressed in the
context of article 2(e) (see above, para. 42). It was observed that the provisions of article 11
dealing with the functions of the Court, in particular if read together with the provisions of
the model law on receipt of written communications, could be interpreted as precluding
the Court from applying domestic procedural rules which, by requiring, for instance, a
certain form of service or advertising, would help to reduce the risk of a party being caught
in arbitral proceedings without his knowledge. The Commission decided to clarify that the
provision on receipt of communications did not apply to court proceedings or measures
but only to the arbitral proceedings proper, including any steps in the appointment
process by a party, an arbitrator or an appointing authority.
P 195

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 References
1) Commission Report, A/40/17, para. 41, p. 194 infra.
2) Summary Record, A/CN.9/SR.308, paras. 6, 12 p. 192 infra; Commission Report, A/40/17,
paras, 41–43, p. 194 infra.
3) Commission Report, A/40/17, para. 106, p. 195 infra (emphasis added).
4) See Third Draft, A/CN.9/WG.II/WP.44, Art. B, n. 6 p. 188 infra; Fourth Working Group
Report, A/CN.9/245, para. 28, p. 188 infra. Prior to drafting a general rule on receipt of
written communications, the Secretariat had proposed a rule governing receipt of the
request that a claim be referred to arbitration (this request is required by Article 21 of
the final text of the Model Law). The proposal was based on Article 14(2) of the
Convention on the Limitation Period in the International Sale of Goods, A/Conf.63/15
(New York 1974), which was drafted under the auspices of UNCITRAL. See Third
Secretariat Note, A/CN.9/WG.II/ WP.41, paras. 15, 17, pp. 187–88 infra.
The text of the general rule that became Article 3 was initially drafted as subparagraph
(e) of Article 2, which includes definitions and rules of interpretation. The Commission
moved the provision into a separate Article because it was “a rule of procedure and
neither a definition nor a rule of interpretation.” Commission Report, A/40/17, para. 45,
p. 195 infra; see also Summary Record, A/CN.9/SR.308, paras. 4, 15, pp. 192–93 infra;
SR.319, paras, 61–63, pp. 193–94 infra.
5) Both this change and the one mentioned earlier in this paragraph were made in the
Secretariat's original draft of the provision. See Third Draft, A/CN.9/WG.II/WP.44, Art, B,
n. 6, p. 188 infra.
6) The Working Group made this change. See Fifth Working Group Report, A/CN.9/246, para.
173, p. 189 infra.
7) This change was made during the Commission's deliberations of the provision. See
Summary Record, A/CN.9/SR.307, para. 66, p. 191 infra; SR.308, paras. 8, 12, p. 192 infra;
SR.319, paras. 61–63, pp. 193–94 infra; Commission Report, A/40/17, paras. 41, 44–45, pp.
194–95 infra.
8) The distinction between deemed and actual delivery is noted in the Seventh
Secretariat Note, A/CN.9/ 264, Art. 2, para. 6, p. 190 infra.
4) The reference to the residence or places of business could be left out if a general rule
on delivery of notices, notifications, communications or proposals were included in the
model law.
6) It may be desirable to include in the model law a general rule on the date when any
notice or other communication is deemed to have been received. Such a rule, modeled
on article 2(1) of the UNCITRAL Arbitration Rules, might read as follows: “For the
purposes of this Law, any written communication is deemed to have been received if it
is physically delivered to the addressee or if it is delivered at his place of business,
habitual residence or mailing address, or, if none of these can be found after making
reasonable inquiry, then at the addressee's last–known place of business or residence.
Communication [sic] shall be deemed to have been received on the day it is so
delivered.” [Editors' Note: Another reference to a possible general rule on receipt of
communications appears in footnote 10 of A/CN.9/WG.45, another part of the Third Draft,
which appears in the subsection on Article 1, paragraphs 1, 3 & 4, p. 54 supra.]
*) [Editors' Note: This Conference Room Paper, dated 5 June 1985, read:
Article 2(e)
PROPOSAL BY AD HOC WORKING PARTY (COMPOSED OF THE REPRESENTATIVES OF
CZECHOSLOVAKIA, IRAQ AND MEXICO)
It is suggested to replace article 2(e) by the following new article 3:
Article 3. Receipt of Written Communications
(1) Unless otherwise agreed by the parties, any written communication is deemed to
have been received if it is delivered to the addressee personally or if it is delivered at
his place of business, habitual residence or mailing address; if none of these can be
found after making reasonable inquiry, a written communication is deemed to have
been received if it is sent to the addressee's last–known place of business, habitual
residence or mailing address by registered letter or any other means which provides
a record of the attempt to deliver it.
(2) The communication is deemed to have been received on the day it is so delivered.]

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Document information
UNCITRAL Model Law, Chapter I, Article 4 [Waiver of right to
Publication object]
A Guide to the UNCITRAL A party who knows that any provision of this Law from which the parties may derogate or
Model Law on International any requirement under the arbitration agreement has not been complied with and yet
Commercial Arbitration: proceeds with the arbitration without stating his objection to such non–compliance
Legislative History and without undue delay or, if a time–limit is provided therefor, within such period of time,
Commentary shall be deemed to have waived his right to object.

Commentary
Organization
Article 4 provides for an implied waiver of the right to object to any noncompliance with
United Nations Commission certain procedural requirements if an objection is not made “without undue delay.” This
on International Trade Law provision is based on a general principal known by a variety of names in various legal
systems (e.g., waiver or estoppel, venire contra factum proprium). (1) In fact, it might well
have been implicit in the Model Law even if it were not stated explicitly. During the
Promulgation Commission's deliberations it was noted that the importance of Article 4 lay in part in the
fact that it served to inform lay arbitrators of this legal principle of waiver. (2) In any event,
21 June 1985 the Commission was of the view that Article 4 was useful to help the arbitral process
function efficiently and in good faith and that it would further uniformity of national laws
on the matter.
Legislation number Article 4 is modeled on Article 30 of the UNCITRAL Arbitration Rules. The UNCITRAL rule has
United Nations Document been significantly “softened,” however, so that the Model Law provision is a relatively
A/40/17, Annex I narrow and flexible rule. A waiver will be implied only if the following basic conditions are
met:
(i) Non–compliance with arbitration agreement or non–mandatory provision of the
Bibliographic reference Model Law. The procedural default at issue must be a breach of a stipulation in the
'UNCITRAL Model Law, arbitration agreement or a non–mandatory requirement of the Law. The Secretariat's
Chapter I, Article 4 [Waiver of commentary on Article 4 makes clear that, in the case of a requirement of the
right to object]', in Howard arbitration agreement, the stipulation must be valid, and, in particular, not in
M. Holtzmann and Joseph conflict with mandatory provisions of the Model Law. (3) Furthermore, such a
Neuhaus , A Guide to the stipulation must be contained in the “arbitration agreement,” as that term is defined
UNCITRAL Model Law on in Article 7.
International Commercial In a Note commenting on the Fourth Draft, the Secretariat raised the question of
Arbitration: Legislative P 196 whether all the requirements of the definition of the term “arbitration agreement” in
History and Commentary, P 197 Article 7 must be met in order for Article 4 to apply. (4) The Note pointed out that
(© Kluwer Law International; parties commonly reach agreement on procedural issues long after the “arbitration
Kluwer Law International agreement” envisioned by Article 7 has been made and that such procedural
1989) pp. 196 - 215 agreements may not always be in writing. The Working Group did not take up this
point.
Nevertheless, it would appear that the problems envisioned can be satisfactorily
solved by appropriate exercise of the arbitral tribunal's power to conduct the
arbitration as it deems fit. First, it is submitted that where a separate procedural
stipulation is in writing, it should be considered part of the “arbitration agreement”
for purposes of the waiver provisions of Article 4. That is, subsequent written
agreements on arbitral procedure should be deemed to be amendments of the initial
arbitration agreement for this purpose. Otherwise, it would appear that the aim of
Article 4 would be defeated in those cases where the parties happened to
memorialize agreements on procedure in a document separate from the original
submission to arbitration.
A slightly different problem arises where the parties have agreed on a procedural
matter orally rather than in writing. Here it appears that failure to object when such
an oral agreement is not complied with would not give rise to a waiver under Article
4, because the procedure agreed upon orally probably could not be considered to be
a “requirement under the arbitration agreement.” It would seem anomalous, however,
to allow a party to invoke an oral agreement on a procedural issue at a point in time
when that party could no longer invoke the same agreement if it had been in writing.
The solution may be that, in view of the arbitral tribunal's general power under
Article 19(2) to “conduct the arbitration in such manner as it considers appropriate,”
it could recognize such an oral agreement only to the extent that the agreement is
invoked in a timely manner. In order words, failure to mention the oral agreement
when it is contravened would be deemed to be consent to a new oral or implied
agreement on whatever procedure was followed.
Where there is no agreement on a procedural point, the procedural provisions of the
Model Law take effect. Under Article 4, a party's right to insist on these provisions will
be waived by failure to make a timely objection. A waiver under Article 4, however,
applies only to the non–mandatory provisions of the Law, that is, those provisions
upon which the parties may agree to the contrary. This qualification — which was not
P 197 part of the initial draft of the provision (5) — was specifically included to “soften” its
P 198
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 P 198 effect. (6) It was proposed at one point to provide a list in the Law of such
mandatory provisions; (7) however, the Working Group decided not to include such a
list because it was viewed as unnecessary and subject to certain drafting difficulties.
(8) Nevertheless, a number of provisions clearly indicate their non–mandatory
character, either by providing an explicit freedom to the parties (9) or by providing a
rule of procedure but stipulating that the parties may agree otherwise. (10)
Examples of provisions that appear to be mandatory and therefore cannot be waived
under Article 4 are the following: the requirement that the arbitration agreement be
in writing (Article 7(2)); the requirement that the parties be treated with equality and
that each party be given a full opportunity of presenting his case (Article 18); the
requirement that a party be given notice of any hearing and be sent any materials
supplied to the arbitral tribunal by the other party (Article 24(2), (3)); the requirement
that an award — including an award on agreement terms — be in writing, that it state
its date and place, and that it be delivered to the parties (Article 30(2), 31(1), (3), (4)).
(11)
It should be noted that certain mandatory provisions provide for a kind of waiver in
the event of failure to object. Thus, Article 7 provides that a written arbitration
agreement will arise “in an exchange of statements of claim and defence in which the
existence of an agreement is alleged by one party and not denied by another.” Article
16(2) provides that pleas that the arbitral tribunal lacks jurisdiction or that it is
exceeding its authority must be raised at a certain time — respectively, in the
statement of defence, and as soon as the matter is raised during the proceedings —
though a later plea may be admitted if the delay is justified. (12)
P 198 (ii) Knowledge. A second condition for waiver under Article 4 is that the waiving party
P 199 knew of the non–compliance. The Fifth Draft as adopted by the Working Group
provided for waiver where a party “knows or ought to have known” of the non–
compliance. (13) The commission deleted the words “or ought to have known” in order
to align the provision with Article 30 of the UNCITRAL Arbitration Rules and because it
was thought that the deleted phrase might create more problems — in the form of
ambiguity — than it solved. (14) The deletion of the words probably did not greatly
alter the practical effect of the knowledge requirement. Presumably, the existence of
knowledge, like any other fact, would not have to be proved directly in all cases.
Rather, knowledge may often be proved by proof of circumstances from which such
knowledge may be inferred. Moreover, even before the language was deleted, a
report of the Secretariat suggested that the now–deleted words should be given a
“restrictive interpretation” so as to mean that “a party could not have been unaware
of the defect.” (15)
(iii) Undue delay. For a waiver to arise under Article 4 the party must fail to object within
any time limit provided for such objection in the Model Law or the arbitration
agreement, as the case may be, or otherwise fail to object without undue delay. There
are only a few Articles in the Model Law that provide explicit time limits for objecting
to a failure to comply with non–mandatory provisions of arbitral procedure: Article 13
provides a time limit for raising challenges to arbitrators, and some grounds for
challenge — those provided for in the arbitration agreement — are waivable; as
noted above, Article 16 provides that jurisdictional objections must be raised at a
certain time, and it is conceivable that some agreed–upon limitations on the
tribunal's jurisdiction could be deemed to be waivable. (16) Arbitration agreements
will commonly include time limits if they refer to a set of arbitration rules (which,
incidentally, themselves often contain waiver provisions). Otherwise, the applicable
time limit will be the requirement of “without undue delay.”
Article 30 of the UNCITRAL Arbitration Rules provides that such objections must be
raised “promptly.” The Working Group substituted the words “without delay” with the
explicit aim of softening the statutory provision. (17) The Commission for the same
reason further modified the provision to “without undue delay,” a phrase used in the
P 199 United Nations Convention on Contracts for the International Sale of Goods (Vienna
P 200 1980). (18)
(iv) Proceeding with the arbitration. The Secretariat's commentary on the Fifth Draft of
the Model Law commented on this requirement as follows:
There is yet another condition which should not be overlooked. A party
loses his right to object only if, without stating his objection, he proceeds
with the arbitration. Acts of such “proceeding” would include, for example,
appearance at a hearing or a communication to the arbitral tribunal or
the other party. Therefore, a party would not be deemed to have waived
his right if, for instance, a postal strike or similar impediment prevented
him for an extended period of time from sending any communication at
all. (19)
At the same time, a party presumably should not be permitted to manipulate the
arbitral proceedings. Thus, if a party does not proceed with the arbitration but rather
declines to participate, Article 25(c) provides that the arbitral tribunal may, unless
the parties have agreed to the contrary, continue the proceedings and make an
award on the evidence before it.

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 Effect of the waiver. The Commission was agreed that any waiver under Article 4 would
extend not only to subsequent phases of the arbitral proceedings but also to court
proceedings, such as those to set aside the award under Article 34 and to recognize or
enforce it under Article 36. (20) The reviewing court is empowered, however, to come to a
different conclusion as to whether a waiver properly arose, as, for example, whether the
delay was “undue.” (21) In doing so, however, the court presumbly can be expected to give
a healthy respect to the judgment of the arbitrator who knew all the facts and
circumstances of the delay and of the non–compliance with the procedural stipulation.
P 200
P 201

Legislative History
SECOND DRAFT A/CN.9/WG.II/WP.42 (25 JANUARY 1983)
[Editors' Note: In connection with draft Article 41, which became Article 34 in the final text and
concerned the grounds for setting aside the arbitral award, the Secretariat included a
footnote that touched on the subject matter of Article 4. The footnote was appended to a
provision that would have provided that an award could be set aside if “[t]he composition of
the arbitral tribunal or the arbitral procedure was not in accordance with the mandatory
provisions of this Law, or the agreement by the parties, unless in conflict with any mandatory
provision of this Law, or failing such agreement, the non–mandatory provisions of this Law.”
(For the full text of the proposal, see the sections on Articles 34 and 36, pp. 932, 1078 infra.)
The Secretariat's footnote discussed several issues regarding this ground for setting aside,
including the following:]
28 [….] It should also be noted that the generality of the above ground, if interpreted
literally, would lead to setting aside in cases of procedural mistakes or defects where such
legal consequence may be regarded as unjustified. The Working Group may, thus, wish to
consider the appropriateness of somehow qualifying the reason under sub–paragraph (d)
by one of the various approaches found in national laws. One possible way is to use the
idea of estoppel or implied waiver and to preclude reliance on a ground which the party
had knowledge of during the arbitration proceedings and did not invoke then; it may be
added that the same idea might be incorporated in a provision on the arbitral procedure
as such (as, e.g., article 30 of the UNCITRAL Arbitration Rules) and not merely as a
restriction of the grounds for setting aside. Another possible way would be to qualify the
procedural defect (e.g. “serious” or “gross” violation, non–compliance with mandatory
provision). Yet another way, also used in some national laws, could be to qualify the causal
connexion between the procedural mistake and the award (e.g. non–compliance affected
the award or is likely to have influenced the decision).
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[….]
B. Arbitration agreement
[….]
Article II [Art. 7 in the final text]
[Editors' Note: For the text of the Second Draft that was being discussed, see the section on
Article 7, p. 280 infra.]
[….]
66. There was some support for expressing the idea that the model law should not
invalidate arbitration agreements which did not comply with the requirement of written
form. Oral agreements which were common in some places and trades should not be
P 201 covered by the model law, thus leaving open their regulation and recognition under
P 202 another law. The prevailing view, however, was that the model law should govern all
international commercial arbitration agreements and, as provided in paragraph (2),
require that they be in writing. It was noted in that context that the model law, in its
present form, did not fully specify the legal consequences of non–compliance with that
form requirement. A suggestion was made to envisage the possibility of parties curing such
defect by participating in the arbitration proceedings — an idea, which might be
embodied in a waiver rule of more general application (e.g., article 30 of the UNCITRAL
Arbitration Rules).
[….]
III. Consideration of [Second Draft] (A/CN.9/WG.II/WP.42)*
[….]
Recourse against arbitral award
[….]
Article 41 [Art. 34 in the final text]
[Editors' Note: For the text of the Second Draft that was being discussed, see the sections on

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 Articles 34 and 36, pp. 932, 1078 infra.]
[….]
188. As regards the reason [for setting aside an award] set forth in subparagraph (d) of
article V(1) [of the New York Convention, which provides grounds similar to Art. 41(2) of the
Second Draft], there was wide support for providing for a certain qualification (as suggested
in footnote 28 of [the Second Draft,] WP.42), by adopting a general rule of “estoppel” or
implied waiver and, possibly, by excluding minor defects which had no influence on the
award. Subject to such possible addition, which would also apply to articles 37 and 38 [Art.
36 in the final text], the Working Group adopted paragraph (2).
THIRD DRAFT A/CN.9/WG.II/WP.45 (13 JUNE 1983)
B. General provisions
[….]
New Article I quarter [Art. 4 in the final text]
A party who knows that any provision of, or requirement under, this Law has not been
complied with and yet proceeds with the arbitration without stating his objection to such
non–compliance promptly or, it a time–limit is provided therefor in this Law, within such
period of time shall be deemed to have waived his right to object.
12 This draft provision, which is modeled on article 30 of the UNCITRAL Arbitration Rules, is
designed to implement a suggestion made in various contexts (e.g. [Third Working Group
Report,] A/CN.9/233, paras. 66, 188).
P 202
P 203
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[….]
Article XIII [Art. 16 in the final text]
Paragraph (2)
[Editors' Note: The following paragraph primarily deals with Article 16 of the final text, but
briefly touches upon the effect of a waiver under Article 4 of the final text. For further
discussion of the effect of failure to raise an objection to jurisdiction within the time period
stipulated by Article 16(2), see the section on that Article, pp. 482–84 infra.]
61. In this connexion, a question was raised as to the legal consequences of the failure of a
party to invoke lack of jurisdiction in accordance with paragraph (2) [of Article XIII]. If the
legal consequence was that such party was precluded from later invoking lack of
jurisdiction, it was doubted whether such solution was compatible with paragraph (1)(a) of
article XXVII or XXVIII [both of these were incorporated into Art. 36 of the final text] and
article XXX(1) [Art. 34 in the final text] under which lack of a valid arbitration agreement
could be relied on, although it was recognized that such reliance might be limited by
operation of the waiver rule embodied in draft article I quater [Art. 4]. It was felt that this
question could appropriately be dealt with in an over–all review of the various provisions
of the model law relating to jurisdiction and validity of arbitration agreement.
[….]
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[….]
New Article I quater [Art. 4 in the final text]
176. The text of the new article I quater as considered by the Working Group was as follows:
[same as Third Draft, supra].
177. There was some support for deleting this draft article since such a provision was not
appropriate for a law, though suitable for arbitration rules, and because it made a drastic
legal consequence dependent on the knowledge of a party. The prevailing view, however,
was to retain a waiver rule but in a less rigid form in order to exclude its operation in cases
of fundamental violations of procedural provisions.
178. Two suggestions were made for “softening” the provision. One proposal was to replace
the word “promptly” by less strict wording such as “without delay.” Another suggestion was
P 203 to limit the waiver rule to non–compliance with non–mandatory provisions. The Working
P 204 Group adopted this suggestion subject to possible refinement at the next session when
deciding in the context of article I ter (*) which provisions of the model law should be
mandatory.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 4. Waiver of right to object

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 A party who knows [or ought to have known] that any provision of this Law [from which the
parties may derogate] or any requirement under the arbitration agreement has not been
complied with and yet proceeds with the arbitration without stating his objection to such
non–compliance without delay or, if a time–limit is provided therefor, within such period
of time shall be deemed to have waived his right to object.
FOURTH SECRETARIAT NOTE COMMENTS AND SUGGESTIONS ON THE FOURTH DRAFT
A/CN.9/WG.II/WP.50 (16 DECEMBER 1983)
C. Scope and effect of waiver rule (articles 4, 34, 36)
10. The Working Group may wish to consider, in the light of its decision on which provisions
of the model law are to be mandatory, whether the present restriction of the operation of
the waiver rule to non–mandatory requirements of the law should be maintained. If only
the provisions mentioned above (in para. 9 (*) ) were to be non–mandatory, the restriction
might be regarded as too narrow. A wider operation of the waiver rule could, for example,
be achieved by excluding from its scope only any fundamental procedural defects such as
violations of public policy, including arbitrability of the subject–matter of the dispute.
P 204 11. The Working Group may also wish to consider clarifying the effect of a waiver by virtue of
P 205 article 4. While it is obvious that a party would be precluded from raising his objection
during the further stages of the arbitral proceedings, it is not immediately clear whether
that party is also precluded from invoking the non–compliance in an application for
setting aside or for refusing recognition or enforcement of the award. It is submitted that a
waiver under article 4 should have such extensive effect and that this interpretation may
be expressed either in article 4 or in articles 34 and 36. It may be noted, however, that in
the latter case the effect of the waiver rule would be further extended in that its inclusion
in article 36 would also apply to foreign arbitral awards made under a procedural law
other than the model law.
D. Arbitration agreement and agreements by the parties on arbitral procedure (articles 4,
7, 19)
12. The Working Group may wish to consider the relationship between the term “arbitration
agreement” and the various references in the model law to agreements by the parties
relating to the composition of the arbitral tribunal or to the arbitral procedure. While
arbitration agreements frequently contain such procedural stipulations, in particular by
reference to standard arbitration rules, it is not uncommon to agree on most or at least
some procedural issues only when a dispute arises, or even during the arbitral
proceedings, that is, long after the conclusion of the agreement to submit future disputes
to arbitration. This varied practice leads to two suggestions for consideration by the
Working Group.
13. The first idea is to use the term “arbitration agreement” as defined in article 7(1) in its
literal and rather narrow sense, i.e. agreement to submit disputes to arbitration. This basic
agreement would be the foundation of the arbitral tribunal's jurisdiction, to the exclusion
of court jurisdiction, irrespective of whether it is accompanied by any agreement on the
procedure. The term “arbitration agreement” should then not be used when the emphasis
is on the procedural stipulations (as, e.g., in article 4). An important practical consequence
of such interpretation would be that article 7(2) would require written form only for that
basic agreement, including any later determination or modification of the claims or
dispute submitted, but not for any procedural agreements by the parties.
14. The second idea would be to require that the parties conclude any agreement on the
arbitral procedure, if not already included in the arbitration agreement, before the first or
sole arbitrator is appointed. The reason for such time–limit would be that the rules of
procedure should be clear when that procedure starts and that any arbitrator should know
from the beginning under what rules he is expected to perform his function. It may be
recalled that this very reason led the Working Group to include this time–limit in article
26(1). (*) The suggestion here would be to adopt the same limit on a more general level, for
example, in the basic provision of article 19(1), possibly with the proviso “unless otherwise
provided in this Law.”
P 205
P 206
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[….]
Article 4
178. The text of article 4 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
179. The Working Group adopted that article, including all the words which had been
placed between square brackets.
180. Some support was expressed for deleting the article since it was too rigid and because
the determination of a waiver or estoppel situation was better left to arbitrators and
judges who, under the model law, were generally accorded discretion. The prevailing view,

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 however, was to retain the provision.
181. Divergent views were expressed as to the scope of the effect of a waiver. Under one
view, the rule in article 4 would have effect only for and during the arbitral proceedings.
The prevailing view, however, was that its effect extended to the post–award stage, i.e.
setting aside proceedings and recognition or enforcement (arts. 34 and 36).
182. As regards the wording of the article, divergent views were expressed on the limitation
contained in the words “from which the parties may derogate.” Under one view, the waiver
rule should operate in respect of non–compliance of any provision of law, whether
mandatory or not. Under another view, only fundamental procedural defects should be
excluded from its operation (e.g., violation of public policy or non–arbitrability). The
prevailing view, however, was to retain in article 4 the demarcation line between non–
mandatory and mandatory provisions.
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 4. Waiver of right to object
A party who knows or ought to have known that any provision of this Law from which the
parties may derogate or any requirement under the arbitration agreement has not been
complied with and yet proceeds with the arbitration without stating his objection to such
non–compliance without delay or, if a time–limit is provided therefor, within such period
of time, shall be deemed to have waived his right to object.
P 206
P 207
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[….]
Article 4. Waiver of right to object
1. Cyprus states that, as this article is drafted, waiver of the right to object is restricted to
non–compliance with a requirement under the arbitration agreement, although it is
apparent that the intention was to extend it to failure to derogate from any provision of
the law from which a party knows or ought to know that he may derogate.
2. India and Sweden are of the opinion that the waiver rule contained in this article should
not be restricted to the non–compliance with non–mandatory provisions of the model law.
By way of example, Sweden remarks that it does not appear appropriate to allow a party
who has taken part in the arbitral proceedings without objecting to a deficiency in the form
of the arbitration agreement to raise such objection later when the award is made against
him.
3. Sweden, while agreeing with the view adopted by the Working Group that it is desirable
to express the non–mandatory character in all provisions of the final text which are
intended to be non–mandatory, (19) suggests that it is hardly possible fully to determine in
the model law such character in respect of each rule. In the view of Sweden there are rules
of arbitral procedure from which the parties should not be able to derogate before the
commencement or before a certain stage of the arbitral proceedings, or should be able to
do so only under special conditions, whereas at a later stage the derogation should be
possible. As a consequence, Sweden proposes that, to some extent, the question whether a
provision of the model law is mandatory or non–mandatory should be left to the decision
of the arbitral tribunal or a court.
4. Poland supports the restriction of the waiver rule to the non–compliance with non–
mandatory rules; however, for reasons of easier application of this rule, it is considered
useful to provide a clearer distinction between mandatory and non–mandatory provisions
of the model law.
5. Finland is of the view that it should be made clear that the rule has effect not only
during the arbitration proceedings but also in the post–award stage, i. e. in the setting
aside and recognition or enforcement proceedings. Similarly, Japan expresses the view
that the effect of a waiver of the right to object (under article 4) should extend to
subsequent judicial proceedings.
6. UNCTAD is of the view that the expression “without delay” may give rise to ambiguity or
different interpretations as to the time limit for stating an objection.
P 207
P 208
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[….]
Article 4. Waiver of right to object
1. In the view of Yugoslavia, the general rule on presumed waiver of the right to object can
constitute an unjust and heavy sanction which, at the same time, gives considerable power

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 to the arbitral tribunal. The requirement “without delay” is too strict, particularly when the
party is from a developing country, since it results in an extremely unfavourable position
for a party which has failed to object. It is suggested that, instead of having a general rule
on a party's failure to object, the failure of a party should be assessed in each specific case
taking into account all relevant circumstances.
2. AALCC expresses the view that the term “without delay” is vague and that it would be
appropriate if some time–limit were indicated.
3. Canada observes that the English language version of this article seems less than clear to
the reader. The question is whether it means non–compliance with the law or with the
agreed upon derogation. If it means the former, then the question is whether the clause
should not read “from which the parties may not derogate” rather than “from which the
parties may derogate.” However, the French language version would appear to indicate
that it is the latter which is intended; if this is true, the ambiguity in the English language
version could be removed by adding, after the word “non–compliance,” the words “with the
agreed upon derogation or requirement under the arbitration agreement.”
A/CN.9/263/ADD.3 (31 JULY 1985) (COMMENTS OF EGYPT)
II. Comments on the articles
21. Article 4: We approve this article, substance and form. The text has the merit of
correcting the rigour of the presumption which it establishes by giving the judge discretion
with respect to the component elements.
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 4. Waiver of right to object
[….]
1. Where a procedural requirement, whether laid down in the model law or in the
P 208 arbitration agreement, is not complied with, any party has a right to object with a view to
P 209 getting the procedural defect cured. Article 4 implies a waiver of this right under
certain conditions, based on general principles such as “estoppel” or “venire contra factum
proprium.”
2. The first condition is that the procedural requirement, which has not been complied
with, is contained either in a non–mandatory provision of the model law or in the
arbitration agreement. The restriction of this rule to provisions of law from which the
parties may derogate was adopted on the ground that an estoppel rule which also covered
fundamental procedural defects would be too rigid. It may be mentioned, however, that
the model law contains specific rules concerning objections with regard to certain
fundamental defects such as lack of a valid arbitration agreement or the arbitral tribunal's
exceeding its mandate (article 16(2)). As regards non–compliance with a requirement under
the arbitration agreement, it may be noted that the procedural stipulation by the parties
must be valid and, in particular, not be in conflict with a mandatory provision of “this Law.”
3. The second condition is that the party knew or ought to have known of the non–
compliance. It is submitted that the expression “ought to have known'' should not be
construed as covering every kind of negligent ignorance but merely those instances where
a party could not have been unaware of the defect. This restrictive interpretation, which
might be expressed in the article, seems appropriate in view of the principle which
justifies statutory impliance of a waiver.
4. The third condition is that the party does not state his objection without delay or, if a
time–limit is provided therefor, within such period of time. This latter reference to time is,
logically speaking, the first one to be examined since a time–limit, whether provided for in
the model law or the arbitration agreement, has priority over the general formula “without
delay.”
5. There is yet another condition which should not be overlooked. A party loses his right to
object only if, without stating his objection, he proceeds with the arbitration. Acts of such
“proceeding” would include, for example, appearance at a hearing or a communication to
the arbitral tribunal or the other party. Therefore, a party would not be deemed to have
waived his right if, for instance, a postal strike or similar impediment prevented him for an
extended period of time from sending any communication at all.
6. Where, by virtue of article 4, a party is deemed to have waived his right to object, he is
precluded from raising the objection during the subsequent phases of the arbitral
proceedings and, what may be of greater practical relevance, after the award is rendered.
In particular, he may not then invoke the non–compliance as a ground for setting aside the
award or as a reason for refusing its recognition or enforcement. Of course, a waiver has
this latter effect only in cases where article 4 is applicable, i.e. with regard to those awards
which are made “under this Law” (whatever criterion may be adopted for the territorial
scope of application). It is submitted that a court from which recognition or enforcement of
any other award is sought could also disregard late objections of a party by applying any
similar rule of the applicable procedural law or the general idea of estoppel.
P 209
P 210

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 SUMMARY RECORD A/CN.9/SR.308, .332
[4 June 1985, 2:30 p.m., A/CN.9/SR.308]
Article 4. Waiver of right to object
27. Mr. SEKHON (India) wished to make two points. First, article 4 took away a valuable
right. Secondly, the words “ought to have known” and “without delay” were too vague and
likely to give rise to controversy. He suggested that the former phrase should be
elaborated by adding: “by use of ordinary diligence” and that a time limit should be
specified to replace the latter.
28. Mr. SAMI (Iraq) said that article 4 was ambiguous and contained a number of
difficulties. In Iraq, for example, substantive matters in arbitration agreements could
always be the subject of objection without any time limit. In arbitration, which was the
amicable settlement of a dispute, it was necessary to guarantee the freedom of the parties
and not introduce differences stemming from ignorance of the law, the arbitration
agreement or other matters on the part of one or other of the parties. While the parties
undertook to use arbitration in accordance with the arbitration agreement, future
imponderables would be outside their contemplation and they could therefore not set
fixed deadlines. As to the expression “without delay,” it was unduly vague. The addition of
the references to diligence and timely objection would still leave full latitude to the
parties. For those reasons among others, his delegation proposed that article 4 should be
deleted.
29. Mr. HJERNER (Observer, International Chamber of Commerce) said that an article of that
type was useful. Parties wishing to object should do so in proper time. However, he thought
that the scope was too wide; the concept of constructional knowledge reflected in the
words “ought to have known” went too far. To apply that rule to non–mandatory provisions
was too strict. With regard to mandatory provisions, it was not well founded, since if a party
wished to object, he should do so at the beginning of the proceedings.
30. Mr. ROEHRICH (France) said that article 4 as drafted could not be transferred into
certain national legislations. Since many national judicial systems contained rules
relevant to the matter, it might be sufficient to indicate that existing civil procedures
should be used. Perhaps it might be possible to identify those articles in respect of which
the right to object could be exercised, and define the procedure there.
31. Mr. MATHANJUKI (Kenya) said his delegation had reservations relating to article 4
arising in particular from the dispatch and receipt of communications referred to in article
2 [Art. 3 in the final text] which might affect the knowledge of a party. He did not see any
provisions relating to instances when an appellate court could reopen all or certain
questions settled by a tribunal, provisions which might be affected by those in article 4.
His delegation wished to see article 4 qualified to take account of those matters and could
not accept it as it stood.
P 210
P 211
32. Mr. MOELLER (Observer for Finland) said it was useful to provide for a general waiver. A
party could not wait until a later stage, such as after the award, in order to object.
33. Mr. HOELLERING (United States of America) said his delegation supported the policy of
including a general provision, since it was difficult to define every instance within the
model law. Although the words “without delay” were vague, it was difficult to set a time
limit in advance; that matter could be decided by the arbitral tribunal or court in each
case. He felt the rule should relate only to non–mandatory provisions, otherwise it might
be too severe. The words “knows or ought to have known” should be included and he
supported the addition of wording such as “using ordinary diligence.” In his view, the
waiver extended to subsequent judicial proceedings.
34. Mr. BONELL (Italy) said that the basic principle in article 4 was unimpeachable since it
was a well–known general principle of law. However, he was uncertain as to the ultimate
usefulness of the provision, since there were already several exceptions to it in the draft
model law, such as article 16(2). Other exceptions might already be contained in national
procedural laws. He suggested that the Commission should adopt a functional approach,
and consider independently each specific occasion where failure to object might preclude
a party from raising objections at a later stage.
35. Mr. STALEV (Observer for Bulgaria) said he was in favour of article 4 in principle, subject
to possible minor corrections, since the main principle was already contained in the
UNCITRAL Arbitration Rules. There was a need in international commercial relations for
good faith, timeliness and stability.
36. Mrs. RATIB (Egypt) said that she approved the article in both substance and form. The
text corrected the severity of the presumption it established, leaving the judge the ability
to appreciate the elements composing it.
37. Mr. BROCHES (Observer, International Council for Commercial Arbitration) said that the
same principle was contained in the UNCITRAL Arbitration Rules, article 30; it was also
widespread in national legislations, but there would be advantage in achieving uniformity
by retaining article 4, which he strongly supported.

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 38. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that the
theoretical principle underlying article 4 was an aspect of consent. It provided that the
parties might consent to waive their right to object. Arbitration was a consent procedure
and it was therefore right that such an article should be included. It was also important to
tell a lay arbitrator, who was not a lawyer, that parties who had not objected in due time
had waived their right to do so. Greater uniformity would be achieved by retaining article
4, since national legislations were likely to introduce more technicality and diversity. He
also suggested, for the sake of uniformity, that the words “ought to have known” should be
omitted in order to bring the article into line with the relevant UNCITRAL Arbitration Rule.
P 211
P 212
39. Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration) said that
article 4 reflected sound existing principles; he therefore supported its retention but felt
that further clarification was required in order to avoid ambiguity.
40. Mr. SZASZ (Hungary) reminded the Commission that the terms of reference of the
Working Group were to refer to the UNCITRAL Arbitration Rules and the 1958 [New York]
Convention and there was therefore no reason for a radical departure from them. He also
suggested that the wording of the model law should be reviewed with a view to achieving
closer uniformity with the UNCITRAL rules.
41. Mr. SEKHON (India), in answer to those opposed to the retention of article 4, suggested
that some of the severity of the article could be mitigated by giving power to the court or
arbitral tribunal to exercise discretion, where there had been unreasonable delay, in
deciding whether there were sufficient reasons for that delay.
42. Mr. LAVINA (Philippines) said he supported the retention of article 4, which was based
on an established and valid concept in law, subject to the refinement of certain sentences.
43. Mr. GRIFFITH (Australia) said his delegation supported the retention of article 4.
44. The CHAIRMAN [Mr. LOEWE (Austria)] said that the majority view was clearly in favour of
retaining article 4 in some form. He invited the Commission to consider possible
amendments to the drafting. He recalled that objections had been made to the phrase
“ought to have known.”
45. Mr. HJERNER (Observer, International Chamber of Commerce) said that the rule in
article 4 should apply to objections to any provision of the model law.
46. The CHAIRMAN said that the general feeling in the Commission was in favour of
specifying those provisions of the law from which the parties might derogate. It had been
suggested that the phrase “ought to have known” should be deleted.
47. Mr. HUNTER (Observer, International Bar Association) said that the wording used in the
UNCITRAL Arbitration Rules was preferable; the words “or ought to have known” should be
deleted.
48. The CHAIRMAN took it that there was general agreement that the phrase should be
deleted. He invited the Commission to consider next the phrase “without delay,” in the
French text “promptement”. The Indian delegation had suggested that the arbitrators
should be given discretion to condone a delay for sufficient reasons. He pointed out,
however, that if the rule in article 4 were to hold good for later judicial proceedings, the
State courts would be bound by the discretion of the arbitrators.
49. Mr. HERRMANN (International Trade Law Branch) said that the idea in the Working
P 212 Group had been that the waiver should go beyond the arbitral proceedings proper,
P 213 although that was not expressly stated in the article. The question of raising an
objection later than “without delay,” as in the Indian suggestion, would still come within
the arbitral proceedings.
50. The CHAIRMAN pointed out that if the arbitrators used their discretion to refuse to
extend the time period, the State court concerned in the setting–aside proceedings would
lose the power of control and supervision referred to in article 6.
51. Sir Michael MUSTILL (United Kingdom) said he could find no provision in the model law
requiring objections to be made within a specific time. Article 33, which set a time limit,
was not concerned with procedural objections. If there was no time limit, the phrase had
no purpose.
52. Mr. HERRMANN (International Trade Law Branch) said that when article 4 was drafted it
had been assumed that it would refer to non–compliance with the arbitration agreement
or the arbitration rules, which often contained such time limits.
53. Sir Michael MUSTILL (United Kingdom) said that, in English law at least, such indefinite
expressions as “without delay” and “promptly” introduced an element of flexibility. It
could be, therefore, that discretion was not really needed.
54. The CHAIRMAN suggested that it would be sufficient to say “without unreasonable
delay,” on the understanding that the phrase would be interpreted first by the arbitrators
and then by the State court which might be asked to set aside any award.
55. Mr. SZASZ (Hungary) said that imprecise words such as “unreasonable” caused problems
and that the words “without delay” sufficed.

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 56. Mr. BONELL (Italy) suggested that the word “undue,” as used in the 1980 Vienna
Convention [on Contracts for the International Sale of Goods, Art. 19(2), A/Conf.97/18 (Annex
I)], would give the desired flexibility.
57. Mr. GRIFFITH (Australia) said that two relevant time periods were involved. There was no
provision in article 4 for extending the time limit provided for in the arbitration
agreement. Perhaps the article should pick up the provision in article 23 of the UNCITRAL
Arbitration Rules and provide for the extension of the time limits if justified.
58. Mr. HERRMANN (International Trade Law Branch) said that there were few exact time
limits set in the draft as the Working Group had thought it appropriate to give the arbitral
tribunal wide discretion, as expressed in article 19(2). He believed that article 4 was not as
rigid as it seemed.
59. Mr. ROEHRICH (France) said that as he read article 4, it left it to national legislation to
set a time limit for stating an objection. Clearly, some time limit must be fixed. That was a
minor point, however. The most important point in respect of article 4 related to its
application before the State courts which were the subject of article 6. He found it hard to
accept that a court seized under article 34 with an application for setting aside an award
should be bound by a time limit for making objections to a procedural defect in the
arbitration proceedings.
P 213
P 214
60. It ought, perhaps, to be made clear, for those who believed that the provisions of
article should apply to post–award proceedings in the State courts, that the fact that an
objection had not been made within a certain time limit would have no consequence. It
should, in fact, be clearly stated that article 4 applied only to the arbitral proceedings. In
other words, it was unnecessary to envisage sanctions at the State level, given that the
main purpose of State court intervention was to control the application of the mandatory
provisions of the model law.
61. The CHAIRMAN said he could not agree that all the provisions of article 34(2) applied to
the violation of mandatory provisions of the law. For example, the State court had a margin
of judgement in considering whether the arbitral tribunal had fully respected the right of
the party making the application to present his case. He agreed, however, that if
mandatory provisions only were involved, article 4 would have no effect in the setting
aside proceedings. Without having the Commission go into the question of determining
which provisions of the model law were mandatory and which non–mandatory—a task that
would be infinitely time–consuming—he noted that, if the time limit was made flexible by
using a term such as “undue delay” the State court would be able to determine for itself
the time limit that should have been respected. Then, even if the arbitrators ruled that the
normal time had been exceeded and the court then found that, in the circumstances, a
normal time had not been exceeded, it would be able to control the regularity of the
arbitral procedure, as provided for in article 34.
62. Mr. SAWADA (Japan) wished to repeat his Government's comment that the effect of a
waiver of the right to object (under article 4) should extend to subsequent judicial
proceedings.
63. Mr. BONELL (Italy) said that the representative of France had drawn attention to an
important shortcoming of article 4, in that it failed to state which provisions were non–
mandatory and which mandatory. Regarding the relationship between article 4 and article
34 and 36, he agreed with the comment by Japan that if article 4 was accepted, the effect
of the waiver should rule in any later proceedings. It would be appropriate, therefore,
when the Commission arrived at the consideration of articles 34 and 36, to establish a link
with the provisions of article 4.
64. The CHAIRMAN took it that the Australian representative did not wish to press his
proposal, as that would mean a complete reworking of the text. If so, the Commission had
completed its deliberations on article 4. It would be unnecessary to appoint a drafting
group for the other changes which had been suggested and had been noted by the
Secretariat. If there were not objections he would take it that the Commission agreed to
approve article 4 with those changes.
65. It was so agreed.
[20 June 1985, 3:00 p.m., A/CN.9/SR.332]
Articles 3 to 5 [as revised by the Drafting Group]
5. Articles 3 to 5 were adopted without change.
P 214
P 215
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 4. Waiver of right to object
51. The text of article 4 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
52. Divergent views were expressed as to whether article 4 should be retained. Under one

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 view, the provision was too vague and possibly in conflict with relevant provisions of
national law and, as regards its effect, too rigid in that it might operate unfairly against a
party. For those reasons, the question of waiver or estoppel should either be left entirely to
the applicable national law or, if it was deemed absolutely necessary to have a waiver rule
in regard to certain provisions, the question should be addressed only in the individual
articles of the model law concerning those provisions.
53. The prevailing view, which the Commission adopted, was that a general waiver rule
along the lines of article 4 should be maintained, since such a rule would help the arbitral
process function efficiently and in good faith and would help achieve greater uniformity in
the matter.
54. As regards the contents of article 4, various suggestions were made. It was suggested
that, as to the imputed knowledge of a party, the wording “or ought to have known” should
either be deleted or be made more precise and less rigid by requiring ordinary care or
reasonable diligence. Noting that those words were not contained in the corresponding
provision in the UNCITRAL Arbitration Rules (article 30), the Commission decided to delete
them since they might create more problems than they solved.
55. A suggestion was made to delete the reference to the non–mandatory provisions of law
and the arbitration agreement. The Commission did not adopt the proposal since the
remaining provision would be too vague and, since it would also cover non–compliance
with mandatory provisions of law, it would be too rigid.
56. The view was expressed that the words “without delay” were too vague and too rigid. It
was, therefore, proposed to establish instead a period of time or to soften the requirement
by using wording such as “within reasonable time. “It was noted, in that context, that the
time element was important in view of the fact that a period of time as referred to in
article 4 was not contained in any provision of the model law and was rarely contained in
arbitration agreements. The Commission, after deliberation, decided to use the wording
“without undue delay” instead of fixing a period of time, since no period of time could be
appropriate in all cases.
57. As regards the effect of a waiver under article 4, the Commission was agreed that it was
not limited to the arbitral proceedings but extended to subsequent court proceedings in
the context of articles 34 and 36. It was noted, however, that where an arbitral tribunal had
ruled that a party was deemed to have waived his right to object, the court could come to
a different conclusion in its review of the arbitral procedure under article 34 or, provided
the proceedings were conducted under the model law, article 36.
P 215

References
1) See Seventh Secretariat Note, A/CN.9/264, Art. 4, para. 1, pp. 208–09 infra.
2) Summary Record, A/CN.9/SR.308, para. 38, p. 211 infra.
3) See Seventh Secretariat Note, A/CN.9/264, Art. 4, para. 2, p. 209 infra.
4) See Fourth Secretariat Note, A/CN.9/WG.II/WP.50, paras, 12–13, p. 205 infra.
5) See Third Draft, A/CN.9/WG.II/WP.45, Art. I quater, p. 202 infra. This draft was based on
the UNCITRAL Arbitration Rule provision, which lacks the “non–mandatory” proviso. The
effect of the Rules provision is essentially the same as that of the final text of the
Model Law, however, because all of the Rules are “non–mandatory,” that is, the parties
may agree to alter them.
6) See Fourth Working Group Report, A/CN.9/245, para. 178, pp. 203–04 infra.
7) See, e.g., Second Working Group Report, A/CN.9/232, para. 77, p. 1150 infra. The
legislative history of this proposal is separately set forth in the section on Matters Not
Addressed in the Final Text, pp. 1150–53 infra.
8) See Fourth Secretariat Note, A/CN.9/WG.II/WP.50, para. 9, pp. 1151–52 infra; Fifth
Working Group Report, A/CN.9/246, para. 176, p. 1152 infra.
9) E.g., Article 10(1): “The parties are free to determine the number of arbitrators.”
10) E.g., Article 21: “Unless otherwise agreed by the parties, the arbitral proceedings in
respect of a particular dispute commence on the date on which a request for that
dispute to be referred to arbitration is received by the respondent.”
11) This is not intended to be an exhaustive list of mandatory provisions of the Law. The
Secretariat provided a slightly longer list of mandatory provisions in discussing Article
19(1) of the Model Law, which concerns the parties' freedom to agree on the procedure
to the followed by the arbitral tribunal. The Secretariat listed those mandatory
provisions that concern “the conduct of the proceedings or the making of the award.” In
addition to Article 18 and parts of Articles 24, 30, and 31, which are mentioned in the
text, the Secretariat also included several Articles that are “mandatory” but do not
concern matters that are susceptible to waiver by omission: Article 27, regarding the
power of the arbitral tribunal a party to seek court assistance in taking evidence;
Article 32, concerning the termination of the proceedings; and parts of Article 33,
regarding correction and interpretation of the award. See Seventh Secretariat Note,
A/CN.9/264, Art. 19, para. 3, p. 583 infra.

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 12) For a discussion of the effect of failure to raise a timely objection under Article 16, see
the Commentary on that Article, pp. 482–84 infra.
13) A/CN.9/246 (Annex), Art. 4, p. 206 infra.
14) Commission Report, A/40/17, para. 54, p. 215 infra.
15) Seventh Secretariat Note, A/CN.9/264, Art. 4, para. 3, p. 209 infra.
16) See generally the Commentary on Article 16, pp. 483–84 infra.
17) Fourth Working Group Report, A/CN.9/245, para. 178, pp. 203–04 infra.
18) Commission Report, A/40/17, para. 56, p. 215 infra; see Summary Record,
A/CN.9/SR.308, para. 56, p. 213 infra. The phrase appears in Article 19(2) of the Vienna
Convention, which provides that a contract can be formed even if the acceptance
contains nonmaterial terms different from those of the offer unless the offeror objects
“without undue delay.” Art. 19(2), A/Conf.97/18 (Annex I).
19) Seventh Secretariat Note, A/CN.9/264, Art. 4, para. 5, p. 209 infra.
20) Commission Report, A/40/17, para. 57, p. 215 infra; Seventh Secretariat Note,
A/CN.9/264, Art. 4, para. 6, p. 209 infra; Fifth Working Group Report, A/CN.9/246, para.
181, p. 206 infra; Fourth Secretariat Note, A/CN.9/WG.II/WP.50, para. 11, pp. 204-05 infra.
21) Commission Report, A/40/17, para. 57, p. 215 infra; Summary Record, A/CN.9/SR.308,
para. 61, p. 214 infra.
*) [Editors' Note: ArticleI ter was not included in the final text. As proposed in the Third
Draft it read as follows:
[New Article I ter
The parties may not derogate from the following provisions of this Law:
articles…. (to be listed here: all mandatory provisions.]
See the section on Matters Not Addressed in the Final Text, pp. 1151 infra.]
*) [Editors' Note: Paragraph 9 discussed what was then labeled Article 3, which was to be a
list of the mandatory provisions of the Model Law. This Article ultimately was not
included in the Law. Paragraph 9 listed the Articles of the Fourth Draft that were non–
mandatory as follows:
[I]t is suggested that, in addition to the provisions already decided to be non–
mandatory and drafted accordingly, i.e. articles 11(1), 15, 18, [Art. 17 in the
final text], 20(2), 21, 24(1), 25, 26(1) [Art. 26(1)(a) on the final text], 29, 33(2) [Art.
33(3) in the final text], there are only fewer further provisions which may be
regarded as non–mandatory and, if so, could be easily marked as such by
adding the words “unless otherwise agreed by the parties”: articles 2(e) [Art. 3
in the final text], 23(2), and possibly article 26(2), (3) [Arts. 26(1)(b) & 26(2) in
the final text].
See the section on Matters Not Addressed in the Final Text, pp. 1150–53 infra.]
*) [Editors' Note: This time limit would have required the aprties to make any agreements
limiting the arbitrators' power to appoint to experts before the appointment of the first
arbitrator. It was deleted from the final text of Article 26. See the section on that Article,
pp. 727-28 infra.]
19) [Fifth Working Group Report,] A/CN.9/246, paras. 176–177 [appearing in the section on
Matters Not Addressed in the Final Text, pp. 1152–53 infra].

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Document information
UNCITRAL Model Law, Chapter I, Article 5 [Extent of court
Publication intervention]
A Guide to the UNCITRAL In matters governed by this Law, no court shall intervene except where so provided in this
Model Law on International Law.
Commercial Arbitration:
Legislative History and
Commentary Commentary
Article 5 states a simple, but very important, principle. Its purpose is to oblige the
draftsmen of the Law to state any instances in which court control is envisioned, in order to
Organization increase certainty for parties and arbitrators and further the cause of uniformity. As noted
by the Secretariat the effect of the provision is to “exclude any general or residual powers”
United Nations Commission given to a court of the enacting State in statutes other than the Model Law. (1) The
on International Trade Law Commission made clear that the term “intervene” in Article 5 included court action that
might be categorized as “assistance” to the arbitration rather than intervention in it. (2)
Article 5 should not be taken to express hostility to court intervention or assistance in
Promulgation appropriate circumstances, but only to satisfy the need for certainty as to when court
action is permissible. The Model Law provides for or envisages court involvement in the
21 June 1985 following Articles: 8 (arbitration agreement and substantive claim before court), 9 (interim
measures), 11 (appointment of arbitrators), 13 (challenge procedure), 14 (failure or
impossibility to act), 16 (competence of arbitral tribunal to rule on its jurisdiction), 27
Legislation number (court assistance in taking evidence), 34 (setting aside an award) and 35 and 36
(recognition and enforcement of awards).
United Nations Document
A/40/17, Annex I Article 5 occasioned debate in the Commission primarily because of the phrase “matters
governed by this Law.” This phrase determines whether a court's power to intervene is
governed by the Model Law, or by other provisions of domestic law, including, possibly,
Bibliographic reference general or residual powers to supervise arbitral procedure. During the debates in both the
Working Group and the Commission, it was pointed out, primarily by the delegation of the
'UNCITRAL Model Law, United Kingdom, (3) that it will be difficult to determine, especially without reference to
Chapter I, Article 5 [Extent of the travaux préparatories, the meaning and effect of the Model Law's silence with respect
court intervention]', in to court control in a given situation. It was said that such silence could imply any of three
Howard M. Holtzmann and P 216 results: it could mean that the subject was not a “matter governed” by the Model Law and
Joseph Neuhaus , A Guide to P 217 therefore court intervention was governed by other provisions of domestic law; it could
the UNCITRAL Model Law on mean that the drafters considered the situation—and decided it was a “matter governed
International Commercial by this Law”—but determined to exclude court control; or it could mean that the drafters
Arbitration: Legislative had not considered the situation at all, the effect of which was thought to be unclear. (4)
History and Commentary,
(© Kluwer Law International; The answer advanced to these points—and the view taken by the majority of the
Kluwer Law International Commission—was that such problems of defining the boundary between a uniform law and
1989) pp. 216 - 239 the remainder of domestic law were common to any lex specialis and to all texts for
unification of law, which generally did not cover every aspect of a subject matter. (5) In any
event, it was said, in most cases the answer could be found by normal rules of statutory
interpretation; thus, Article 5 served to delineate the extent of permissible intervention in
the great majority of cases, and difficulties would arise only in the marginal case. (6)
Finally, it was noted that the fact that the area governed by the Law was not defined
precisely gave arbitrators and judges a certain amount of discretion, mitigating the effects
of a provision that might seem inflexible or categorical. (7)
Moreover, the debates and deliberations of Article 5 provided a number of guidelines that
may be of use in interpreting the phrase “matters governed by this Law.” The Working
Group noted that the term is narrower than the term “international commercial
arbitration” in Article 1, which defines the scope of the Model Law, because Article 5 was
intended to refer to those matters that were “in fact governed by or regulated in” the
Model Law. (8) As discussed below, there are quite a few questions that arise in
international commercial arbitration that are not governed by the Model Law.
The Secretariat noted that a matter could be governed or regulated by the Model Law
either “expressly or impliedly.” (9) It acknowledged, however, that deciding whether a
matter is impliedly governed by the Model Law will not always be easy. (10) As an example
of a matter that was impliedly governed by the Law, the Secretariat suggested that the
parties' freedom under Article 11(2) to agree on a procedure for appointing arbitrators
P 217 impliedly excluded any court power to confirm the appointment, such as is provided in
P 218 some domestic laws. (11) The power to agree to appoint implies a power to appoint, and
therefore the matter is fully regulated by the Law. (12) On the other hand, the stipulation in
Article 17 that an arbitral tribunal has the power to order interim measures of protection
(unless the parties agree otherwise) does not mean that a party is precluded from making
use of mechanisms for court enforcement of such orders as may be provided by domestic
law. (13) The question of enforcement of such measures is not dealt with by the Law.
The Working Group and the Secretariat provided nonexhaustive lists of matters not
governed by the Model Law. (14) These lists included the following areas: capacity of
parties to conclude the arbitration agreement; (15) the impact of State immunity; (16) the
contractual or other relations between the parties and the arbitrators or arbitral

146
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 institution; fixing of fees and costs and requests for deposits or security; (17) consolidation
of arbitral proceedings; (18) competence of arbitral tribunal to adapt contracts; (19)
enforcement by courts of interim measures of protection ordered by the arbitral tribunal;
and the period of time for enforcement of arbitral awards. (20) To these might be added
the role of the courts prior to selection of the place of arbitration; (21) the liability of
arbitrators for misconduct or error; (22) the competence of a court to execute a request to
assist in the taking of evidence and the rules according to which it does so; (23) and the
question of what disputes are and are not arbitrable. (24)
P 218 The Commission considered a proposal to allow parties to agree on a wider scope of court
P 219 intervention. It was questioned, however, whether parties could be expected to deal
adequately with this complex problem. (25) It may be added that allowing parties in this
fashion to regulate the competence of courts is a question that deeply involves public
issues such as docket control and the desirability of providing complete relief in a single
action. These matters are normally reserved for decision by legislatures or the courts
themselves.

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
A. Concerns and principles of a model law on international commercial arbitration
II. General principles and purposes
[Editors' Note: For the full text of this part of the Secretariat's Note, see the section of
materials on the Purposes and Procedures of the Commission, pp. 1195–98 infra.]
[….]
21. […] [I]t will be one of the more delicate and complex problems of the preparation of a
model law to strike a balance between the interest of the parties to freely determine the
procedure to be followed and the interests of the legal system expected to give
recognition and effect thereto. This involves, above all, a precise demarcation of the scope
of possible intervention and supervision by courts and, in particular, of the substantive
criteria for reviewing and reasons for setting aside an award. It is submitted that the result
of this endeavour will have a considerable influence on the success of the whole project.
Yet, the task is somewhat eased by the fact that transnational transactions tend to be
subject to less strict standards than purely domestic transactions. This recent trend can be
discerned, for example, from the increasingly made distinction between international
public order and domestic public order of a State where recognition and enforcement of a
foreign award is sought. (11)
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
C. Arbitration and the courts
[Article III [Art. 5 in the final text]
In matters governed by this Law, no court shall intervene except where so provided in this
Law.] (8)
P 219
P 220
THIRD WORKING GROUP REPORT
A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[….]
Article III [Art. 5 in the final text]
69. The text of article III as considered by the Working Group was as follows:
[same as second Draft, supra].
70. Divergent views were expressed as to the appropriateness of including in the model law
a provision along the lines of article III. Under one view, such a provision was unacceptable
for a number of reasons:
(a) Its scope and effect could not be determined in view of the disparity between
national laws as regards instances of court intervention;
(b) It created the impression that court intervention was something negative and to be
limited to the utmost;
(c) It could adversely affect the positive and helpful attitude of courts towards
arbitration.
71. Under another view, however, article III should be retained since it provided certainty
as to when a court might intervene in arbitration matters and obliged the drafters of the
model law to enumerate all such instances. It was also pointed out that the model law, in
its present form, already covered most of the cases where control or assistance by courts

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 seemed justified and that in international commercial arbitration control by courts should
be kept to a minimum.
72. Under yet another view, it was premature to take a decision on article III since it was
not clear at this point what the model law would cover in its final form. It was more
important to clarify in model law instances where court intervention was appropriate.
73. That view was adopted by the Working Group after deliberation. Accordingly, the
decision on article III was postponed and its underlying policy accepted as an intention of
the Working Group to clarify, in the course of the preparation of the draft model law,
instances of court intervention.
P 220
P 221
THIRD DRAFT A/CN.9/WG.II/WP.45 (13 JUNE 1983)
C. Arbitration agreement and the courts
[….]
Article III [Art. 5 in the final text]
In matters governed by this Law, no court shall intervene except where so provided in this
Law. (14)
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[….]
Article III [Art. 5 in the final text]
183. The text of article III as considered by the Working Group was as follows:
[same as Third Draft, supra].
184. The Working Group decided to postpone its final decision on this article to a later
stage when it was clear which instances of court intervention or assistance would be dealt
with in the model law.
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (28 NOVEMBER 1983)
Article 5. Scope of court intervention
In matters governed by this Law concerning the arbitral proceedings or the composition of
the arbitral tribunal, courts may exercise supervisory or assisting functions only if, no court
shall intervene except where so provided in this Law.
FOURTH SECRETARIAT NOTE COMMENTS AND SUGGESTIONS ON THE FOURTH DRAFT
A/CN.9/WG.II/WP.50 (16 DECEMBER 1983)
A. Model law as “lex specialis” (articles 1, 5, 34, 36)
[….]
5. The suggested qualification (*) could help to draw attention to the fact that there are
P 221
P 222
certain matters or aspects of arbitration not governed by the Law. As an illustration, one
need only recall a number of issues which the Working Group decided not to settle in the
model law: arbitrability of subject–matter of dispute, capacity of parties to conclude
arbitration agreement, impact of State immunity, enforcement by courts of interim
measures granted by arbitral tribunal, competence of arbitral tribunal to adapt contracts,
fixing of fees and request for a deposit, time–limit for enforcement of award. However, as
these examples show, it would not always be an easy task to determine whether a certain
issue is governed by the model law, though possibly not expressly regulated, or whether it
is not dealt with therein and thus governed by another law.
6. It is submitted that similar considerations apply with regard to draft article 5, although
to a more limited extent, since the distinction between matters governed by the Law and
those not governed thereby is relevant there only in respect of possible court supervision
or assistance.
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[….]
Article 5
183. The text of article 5 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].

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 184. The Working Group adopted that article in the following modified form: “In matters
governed by this Law, no court shall intervene except where so provided in this Law.”
185. Divergent views were expressed as to whether that article should be retained. Under
one view, the article should be deleted since it unduly limited the supervision and
assistance by courts and infringed on the sovereign policy decision of a State as to the
extent of control exercised by its courts. The prevailing view, however, was to retain that
article since it was beneficial to international commercial arbitration by providing
certainty to the parties and the arbitrators about the instances in which court supervision
or assistance was to be expected.
186. The Working Group, after deliberation, adopted the latter view, but was agreed that
that decision was a tentative one which the Commission was invited to reconsider in the
light of the comments by Governments and international organizations.
P 222
P 223 187. It was noted that article 5 did not itself take a stand on the extent of court
supervision but merely required that any instance of court involvement be expressed in
the model law. It was, thus, possible to include, in addition to the various provisions
already now envisaging court involvement, yet another provision for certain instances if
the Commission saw a need therefor.
188. It was further understood that the introductory words of article 5, “In matters governed
by this Law,” had a meaning which was narrower than the term “international commercial
arbitration” used in article 1(1) in that it limited the scope of application of article 5 to
those matters which were in fact governed by or regulated in the model law. Article 5
would, for example, not exclude court control or assistance in those matters which the
Working Group had decided not to deal with in the law (e.g., capacity of parties to
conclude arbitration agreement; impact of State immunity; competence of arbitral
tribunal to adapt contracts; enforcement by courts of interim measures of protection
ordered by arbitral tribunal; fixing of fees or request for deposit, including security for fees
or costs; time—limit for enforcement of awards).
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 5. Scope of court intervention
In matters governed by this Law, no court shall intervene except where so provided in this
Law.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[….]
Article 5. Scope of court intervention
1. Norway is strongly in favour of the principle that the model law itself positively and
exhaustively mentions the instances in which the courts may intervene. Furthermore, it is
important to limit the possibility of intervention by the courts to a minimum.
2. The Republic of Korea points out that the wording of this article is too narrow in that it
does not cover those matters of international commercial arbitration which are not
governed by the model law. It is proposed to broaden the scope of the article by redrafting
it as follows:
“Article 5. Co—operation of the Court
(1) The Court shall extend co—operation for arbitral proceedings in
accordance with the provisions of this Law.
P 223 (2) When the arbitral tribunal is incapable to perform an act which it deems
P 224 essential to the arbitration, the Court may extend co—operation at the
request of the tribunal, in accordance with the provisions of the Civil
Procedure Code, mutatis mutandis.”
[Editors' Note: For a comment suggesting that a provision stipulating that the Model Law
constitutes lex specialis might help to clarify Article 5, see paragraph 3 of the comments in
this document on Article 1, p. 140 supra.]
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[….]
Article 5. Scope of court intervention
AALCC suggests modifying the heading of article 5 so that it would read “Limitation of court
intervention.”
A/CN.9/263/ADD.2 (21 MAY 1985) (UK COMMENTS)
Judicial Intervention: Article 5
19. Although Article 5 was introduced at a comparatively late stage in the deliberations of

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 the Working Group, it has rightly been regarded as a valuable attempt to reflect the
philosophy underlying the model law. The United Kingdom recognises the desirability of a
clear statement which will enable the draftsman of any resulting legislation, and any party
to an arbitration conducted under such legislation, to know whether or not in any given
situation recourse to the court is permissible. Accordingly, no objection is taken to the
introduction of a provision on the lines of Article 5. It is, however, suggested that important
aspects of the article remain to be thoroughly explored, before the form of the article can
be finalised. Four questions are raised for consideration:—
1. What matters are “governed by the model law”?
2. At what stages of the arbitral process does the model law permit the court to
intervene?
3. In what circumstances may a court properly intervene, when it is proved that the
award is the result of a procedural injustice?
4. Should the parties be enabled to vary by consent the incidence of judicial
intervention?
What matters are governed by the model law
20. The general intent of Article 5 has been explained by those responsible for introducing
it as follows: The model law does not embody a complete code of judicial intervention. The
model law is addressed only to certain types of situation in which the question of judicial
P 224 intervention may arise. Where a party seeks judicial intervention in one of those situations,
P 225 the court is permitted to intervene only in the manner expressly prescribed by the
model law, and in the absence of any express provision the court must not intervene at all.
By contrast, where the situation is not of a type to which the model law is addressed, the
court may intervene or decline to intervene in accordance with the provisions of the
relevant domestic arbitration law.
21. Whilst the general intent is well understood, the United Kingdom feels obliged to
observe that there are objections to the present form of Article 5 which could make it
unworkable in practice. The problem may be illustrated as follows. Assume that a factual
situation “X” developed in the course of an arbitration, and that the situation causes one of
the parties to seek the intervention of the court. Plainly, the court must ask itself the
question whether it has jurisdiction to intervene. The first step is to see whether the
situation is covered by the express words of the model law. (Strictly speaking the words in
question will be those of the domestic legislation enacting the model law, but for brevity
we shall continue to refer to the model law). If the court finds that there are words which
cover the situation, it need look no further. The remedies prescribed for that situation, and
no others, may properly be applied. But what if the court finds that the situation is not
covered by any express words? The court could surmise that there might be any one of
three reasons for this omission:—
1. Those who framed the model law had considered situation X, and had decided that
the situation should not be dealt with by the model law.
2. Those who framed the model law had considered situation X, and had decided that
there should be no power of judicial intervention in that situation.
3. Those who framed the model law had not considered situation X at all.
22. The court will then be faced with three problems. First, how is the court to know which
of these alternatives provides the true explanation for the omission to mention situation
X? Recourse to the travaux préparatories will not necessarily provide the answer. The
commentaries cannot, in the nature of things, record every aspect of the debates in the
Working Group and the Commission. Moreover, the list of subjects not intended to be
governed by the model law, which can be found in [the Fifth Working Group Report,]
document A/CN.9/246 (para. 188) [pp.222–23 supra] and [the Seventh Secretariat Note,]
document A/CN.9/264 (commentary to article 1, para. 8, and to article 5, para. 5) [pp.142–43
supra and p. 229 infra, respectively], is plainly given for illustration only.
23. The second problem will arise if the court finds that situation X can be said to be of the
same general type as situations which are expressly dealt with by the model law. We
believe that the framers of Article 5 might answer that all situations of that type are
“governed by” the model law, and that the absence of any reference to situation X shows
that the framers of the model law intended that the court should have no power to
intervene in that situation. Whilst we see the force of this in principle, we can envisage
P 225 serious procedural difficulties in deciding whether or not a situation is of a type dealt with
P 226 by the model law. Is one to consider whether situation X would, if it had been
specifically dealt with in the model law, have fallen within one of the individual chapters?
If so, this is to attribute great weight to what is only a matter of arrangement, and which
has never been fully debated. The article headings cannot be relied upon to establish the
“type”: see the footnote to Article 1. We are not at present clear in what way the court is to
know whether situation X is close enough to other situations expressly dealt with in the
model law to entail that it is governed by the model law.
24. (In this respect it may be helpful to draw attention to the description of the principle of
Article 5 contained in paragraph 4 of the commentary on that Article 5 in [the Seventh
Secretariat Note,] A/CN.9/264, [p.229 infra,] where it is stated that the Article “is limited to
those issues which are in fact regulated, whether expressly or impliedly, in the model law.”

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 The crucial words here are “or impliedly.” The United Kingdom submits that the
Commission could usefully discuss the meaning of these words, and consider whether there
is any way in which that meaning could be embodied in the text of the law itself.)
25. The third problem will arise if the situation in question is one which the framers of the
model law had never considered at all. In paragraph 188 of [the Fifth Working Group
Report,] A/CN.9/246 [pp.222–23 supra,] it is stated that Article 5 would not exclude court
control or assistance in those matters “which the Working Group had decided not to deal
with in the law.” This would seem to suggest that in situations not foreseen by the Working
Group, where accordingly the Working Group did not decide anything about them, Article 5
does operate to exclude judicial control. Is this really the intention of the model law?
26. The United Kingdom wishes to emphasise that these are not theoretical objections
raised out of hostility to the principle of Article 5, but reflect genuine uncertainties
expressed by those users of the arbitral process consulted by the Government of the
United Kingdom as a preliminary to the meeting of the Commission. It is of particular
importance that these uncertainties should be resolved because, quite apart from the
position of any court confronted with a request to intervene in a case not expressly dealt
with in the model law, any legislature contemplating the enactment of the model law
would need to have a clear idea of the extent to which the law would affect the existing
rules, whether statutory or otherwise, governing judicial intervention.
The stage at which judicial control is permissible
27. This problem may be dealt with more briefly. Circumstances may arise during the
reference in which the arbitration is being conducted in a manner which is an abuse of the
defendant's rights, and which the arbitrators cannot or will not correct. In such
circumstances, it would appear proper that the court, as being the only body in a position
to protect the defendant, should have a residual power to intervene. Is it the intention that
this power should entirely be taken away?
P 226 28. This question illustrates the problems previously discussed. The model law does
P 227 contain, in Articles 9 and 27, provisions enabling the court to give supportive assistance
during the reference; and Articles 11, 14 and 15 give the court a limited role in relation to
the constitution and reconstitution of the arbitral tribunal. These are, however, powers of a
quite different kind from those now under discussion. Moreover, although Article 34 confers
certain powers to intervene where the reference has been conducted in contravention of
the defendant's rights, these are only to be exercised by recourse against the award. The
model law therefore does not deal with recourse during the reference. Does this mean that
such recourse is not “governed by” the model law, and is therefore not within the scope of
Article 5?
Intervention on the ground of procedural injustice
[Editors' Note: In this section, the United Kingdom discussed the extent of intervention
permitted by Article 34(2) “in cases where it is proved that the award has resulted from serious
procedural injustice.” It offered examples of such situations and “venture[d] to doubt”
whether a court would be permitted to set the award aside unless it was found to be in
conflict with “public policy.” Because these comments concerned primarily Article 34, and
were discussed by the Commission in connection with that Article, they appear in the section
on that Article, pp. 959–61 infra.]
The consent of the parties in relation to judicial control
36. It has repeatedly been emphasised that the basis principle of the model law is that of
“party autonomy.” Arbitration is a consensual process, and the health of the process is best
ensured by enabling commercial men to have their arbitrations conducted in whatever
way they have agreed to be suitable subject only to certain exceptions designed to ensure
that the courts of a State are not required to countenance procedures and awards in
circumstances which render them objectionable. The United Kingdom wholeheartedly
supports this approach.
37. The question therefore arises whether and to what extent the principle of party
autonomy should be applied in the field of judicial control. It is believed to be universally
accepted that there must at some stage be some degree of judicial control, although there
may be differences as to the appropriate stage and the appropriate degree. Thus the
model law must set a minimum of judicial control. It does not follow, however, that the
model law should set a maximum, eliminating even those means of judicial control which
the parties themselves desire to retain. Would not the principle of party autonomy
demand that if the parties have agreed to avail themselves of measures available under
the local law, the court should be able to give effect to their agreement?
38. The United Kingdom has raised this question because the recent consultations on the
draft of the model law had disclosed a substantial (although of course far from unanimous)
body of opinion amongst the businessmen who use the arbitral process in the United
Kingdom which favours to retain a possibility of recourse to the court on questions of law.
P 227 Whilst thoroughly understanding the point of view undoubtedly held by the majority of
P 228 participants in the Working Group — that the parties should not be compelled to submit
to recourse on questions of law — the United Kingdom suggests that the logical
consequence of party autonomy is that they should be allowed to have recourse, if that is

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 what they have agreed. The same conclusion applies to other measures of judicial
assistance to the arbitral process, also excluded by the draft model law. The United
Kingdom invites a reconsideration of the mandatory nature of Article 5.
A/CN.9/263/ADD.3 (31 JULY 1985) (COMMENTS OF EGYPT)
II. Comments on the articles
[….]
22. Article 5: Although it touches on a delicate matter, control of arbitration by the courts,
we are in favour of retaining this article for, by limiting this control to instances provided
by the model law, it brings order to the disparity of national legislations on this subject
and frees the arbitral proceedings from a yoke which, in some legislations, is too
burdensome.
23. We also approve the restriction of the scope of article 5 to the matters regulated by the
model law, for the exclusion of other questions, particularly those deleted by the Working
Group, sets a balance which may help to assuage the sensitivity of some States in this area.
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 5. Scope of court intervention
[….]
1. This article relates to the crucial and complex issue of the role of courts with regard to
arbitrations. The Working Group adopted it on a tentative basis and invited the
Commission to reconsider that decision in the light of comments by Governments and
international organizations. (28) In assessing the desirability and appropriateness of this
provision the following considerations should be taken into account.
2. Although the provision, due to its categorical wording, (29) may create the impression
that court intervention is something negative and to be limited to the utmost, it does not
itself take a stand on what is the proper role of courts. It merely requires that any instance
of court involvement be listed in the model law. Its effect would, thus, be to exclude any
general or residual powers given to the courts in a domestic system which are not listed in
the model law. The resulting certainty of the parties and the arbitrators about the
instances in which court supervision or assistance is to be expected seems beneficial to
international commercial arbitration.
P 228
P 229
3. Consequently, the desired balance between the independence of the arbitral process
and the intervention by courts should be sought by expressing all instances of court
involvement in the model law but cannot be obtained within article 5 or by its deletion.
The Commission may, thus, wish to consider whether any further such instance need be
included, in addition to the various instances already covered in the present text. These
are not only the functions entrusted to the Court specified in article 6, i.e. the functions
referred to in articles 11(3), (4), 13(3), 14 and 34(2), but also those instances of court
involvement envisaged in articles 9 (interim measures of protection), 27 (assistance in
taking evidence), 35 and 36 (recognition and enforcement of awards).
4. Another important consideration in judging the impact of article 5 is that the above
necessity to list all instances of court involvement in the model law applies only to the
“matters governed by this Law.” The scope of article 5 is, thus, narrower than the
substantive scope of application of the model law, i.e. “international commercial
arbitration” (article 1), in that it is limited to those issues which are in fact regulated,
whether expressly or impliedly, in the model law.
5. Article 5 would, therefore, not exclude court intervention in any matter not regulated in
the model law. Examples of such matters include the impact of State immunity, the
contractual relations between the parties and the arbitrators or arbitral institution, the
fees and other costs, including security therefor, as well as other issues mentioned above
in the discussion on the character of the model law as “lex specialist where the same
distinction has to be made. (30)
6. It is submitted that the distinction is reasonable, even necessary, although it is not in all
cases easily made. For example, article 18 [Art. 17 in the final text] governs the arbitral
tribunal's ordering of interim measures of protection, by implying an otherwise doubtful
power, but it does not regulate the possible enforcement of these orders. A State would,
thus, not be precluded (by article 5) from either empowering the arbitral tribunal to take
itself certain measures of compulsion (as known in some legal systems) or providing for
enforcement by courts (as known in other systems). (31) On the other hand, where the
model law, for example, grants the parties freedom to agree on a certain point (e.g.
appointment of arbitrator, article 11(2)), the matter is thereby fully regulated, to the
exclusion of court intervention (e.g. any court confirmation, as required under some laws
even in the case of a party—appointed arbitrator).
P 229
P 230
SUMMARY RECORD

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 A/CN.9/SR.309, .332
[5 June 1985, 9:30 a.m., A/CN.9/SR.309]
Article 5. Scope of court intervention
1. Sir Michael MUSTILL (United Kingdom) said that judicial control of the arbitral process
was a topic of prime importance. The United Kingdom's position on the subject was set
forth in its written comments, reproduced in [the Sixth Secretariat Note (UK Comments),]
document A/CN.9/263/Add.2, and he did not propose to restate it. Everyone would agree
that some measure of judicial intervention was inevitable in the field of arbitration and
that the concept of a model law would be meaningless without courts to enforce its
provisions. Differences of opinion on the matter in the Commission were concerned more
with the timing of judicial intervention than with whether it should exist at all. The only
purpose of the model law was to help the businessman, who might need a court to help
him remedy the occasional injustice that inevitably occurred in any dispute—resolving
mechanism. It was essential that the businessman, the arbitrator and the lawyer should
know exactly what article 5 meant, but as it had pointed out in its written comments, the
United Kingdom did not.
2. The first problem arose from the opening words of article 5: “In matters governed by this
Law,” which were intended to convey the meaning that the model law did not regulate all
the circumstances in which the courts and the arbitral process might come into contact. In
practice, therefore, what matters did the model law govern? As he understood it, it was not
the intention of the draftsmen that article 5 should be interpreted as stating that the
remedies the model law provided were exclusive only for matters it dealt with expressly,
or that where the model law did not deal expressly with a particular matter, the court
should have a free hand or there should be no possibility of a remedy.
3. He drew the Commission's attention to the example given in paragraph 21 of [the Sixth
Secretariat Note (UK Comments),] document A/CN.9/263/Add. 2, [pp.224–25 supra,] of a
factual situation not expressly covered by the model law. The first possibility referred to in
that paragraph was that the draftsmen of the model law had decided that the situation
should not be dealt with by the model law and could therefore be redressed through
domestic law. The second possibility was that they had decided that there should be no
power of judicial intervention in the situation concerned. The third was that the situation
had not been considered at all. He did not see how a reader of article 5 who did not have
access to the travaux préparatoires could ascertain what his position might be under the
article. If the provision was not clear to persons other than those who had drafted it, it was
a failure. The United Kingdom had not proposed an amendment to article 5 because it
believed that the meaning of the provision had never been fully debated. He had raised
the problem for discussion by anyone interested. He would like to hear from the
Secretariat, on whose initiative the article had been introduced, what the first phrase of
P 230 article 5 meant. He had noted with interest the Secretariat's comment ([Seventh
P 231 Secretariat Note,] A/CN.9/264, [Art. 5], para. 4 [p.229 supra]) that the words in question
were intended to refer to matters “expressly or impliedly” regulated by the model law, but
he was uncertain as to how that interpretation would operate in practice.
4. A second question was how to deal with abuse of the arbitral process. The model law
appeared to contain no provision for intervention during the actual arbitration: article 34
dealt with intervention after the award and article 36 with defensive intervention at the
stage of execution, but the model law was silent on the possibility of the court intervening
before the award. The Commission should consider whether the omission of a reference to
judicial intervention during arbitration meant that the subject was not covered by the
model law, or that such intervention was implied, or that it was excluded; and whether it
wished the model law to deal with the questions at all.
5. He also wished to raise the question of contracting out of article 5. The fundamental
principle of the model law was to recognize the autonomy of the parties. The parties could
choose the procedures they wanted — and he had learned from the previous day's debate
that they could choose to apply the model law even in a field where there was no
international commercial dispute. (*) It was a misconception that the businessman wanted
to rule out all judicial control. The United Kingdom was not in favour of deleting article 5,
but it was not for the Commission to tell the businessman what he wanted: the Commission
was there to serve him.
6. Mr. HERRMANN (International Trade Law Branch) said that the United Kingdom
representative, in referring to the difficulties which arose in deciding whether a particular
situation fell within the scope of article 5, had brought out the clear distinction which
existed between two related but separate problems: namely, what matters were and were
not governed by the model law; and the extent of judicial control envisaged in it. On the
second point there had been a slight divergence of opinion in the Working Group on
International Contract Practices. There seemed to have been a clear understanding that
the purpose of article 5 was not to deal with the extent of judicial control but to oblige the
draftsmen of the model law, or at a later stage the national legislator, to decide what
would be the situations in which court control should be provided. Regarding the words “In
matters governed by this Law,” problems of interpretation and application were not
unique to article 5; even without it the question would arise as to which of the three
possible interpretations mentioned by the United Kingdom was the correct guide to the

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 application of the model law.
7. In regard to the question of express or implied provisions, it was impossible for the
model law to deal expressly with every procedural instance that might arise in arbitral
P 231 proceedings. Article 19(2), for example, gave arbitrators a certain discretion in the conduct
P 232 of arbitral proceedings, and was meant to cover, without spelling them out, a wide
range of procedural circumstances that might occur. Again, the model law contained a
provision allowing the parties to agree on a procedure for appointing arbitrators, but
under a certain domestic law there was a rule that even arbitrators appointed by the
parties had to be confirmed by the local court; that question of confirmation was not dealt
with expressly in the model law, but in his opinion the provision that the parties were free
to agree on the arbitrators clearly implied that they could actually appoint them.
8. The United Kingdom had dwelt on the difficulties which might arise in deciding how to
read article 5 in a situation concerning which nothing was found in the model law. There
might of course be nothing in the model law about a specific situation, but in that case it
would be necessary to look at the provisions of the model law dealing with the area out of
which the situation had arisen. He agreed that decisions on individual cases would be very
difficult to make, but he doubted whether the model law could go beyond using the words
“In matters governed by this Law.”
9. The United Kingdom's written comments included the question ([Sixth Secretariat Note
(UK Comments),] A/CN.9/263/Add.2, para. 25 [p. 226 supra]) whether it was really the
intention of the model law that article 5 should operate to exclude judicial control in
situations not foreseen by the Working Group on International Contract Practices. That was
obviously not its intention because the list of matters which the Working Group had
decided not to deal with in the model law was clearly given by way of example only ([Fifth
Working Group Report,] A/CN.9/246, para. 188 [pp. 222–23 supra]).
10. Mr. LAVINA (Philippines) said that his delegation supported the principle underlying
article 5 because it would prefer that court intervention in arbitral proceedings should be
avoided as far as possible. The article nevertheless raised problems. For example, if the
model law was enacted in national legislation, it would be a lex specialis and therefore
take precedence over other domestic law. An awkward situation would then arise if article
5 conflicted with provisions of national constitutions or fundamental laws in regard to
areas of jurisdiction.
11. Mr. SEKHON (India) said that his delegation endorsed the United Kingdom's objections
to article 5 but would not like to see it deleted. It was important that the model law should
find wide acceptance in different countries. In India, for example, judicial control of
arbitration was sometimes exercised by the Supreme Court. In the states, the High Courts
under article 227 exercised superintendence and control over various tribunals, including
arbitral tribunals. Those controls should not be removed. His delegation could accept
article 5 if it was modified to enable parties to opt out of it.
12. Mr. GOH (Singapore) said that his delegation was not happy with article 5. There should
be some judicial control over the conduct of arbitration proceedings and over the parties
to an arbitration, to prevent abuse of the arbitration process. In his opinion article 5
should either be deleted or be amended to reflect that principle.
P 232
P 233
13. Mr. SCHUETZ (Austria) said that he found fewer problems with article 5 than the United
Kingdom representative. Its purpose was not to imply that court intervention was
undesirable or should be kept to a minimum, but to make it clear that there should be no
court intervention except in the cases provided under the model law. In order to allay the
doubts that had been voiced about the meaning of the words “In matters governed by this
Law,” he suggested that they should be deleted; that would not harm the article. The
correct place to strike a balance between the independence of the arbitral process and
the need for judicial intervention in it was in the special provisions. The Commission might
usefully consider whether to increase the possibilities for court intervention in special
fields in the knowledge that the purpose of article 5 was to make it clear that no court
should intervene in the arbitral process except as provided in the model law.
14. Mr. STALEV (Observer for Bulgaria) said that article 5 should remain as it stood because
it reflected the need for speedy international arbitration. To date over 7,000 arbitration
cases had been decided by the Bulgarian Chamber of Commerce and Industry's Arbitration
Court and as yet no need had been felt for judicial control over the conduct of its
proceedings. In his opinion, extensive judicial control might delay arbitral proceedings
and go against the interests of international trade.
15. Mr. KIM (Observer for the Republic of Korea) drew attention to the wording proposed by
his Government for article 5 in its written comments ([Sixth Secretariat Note (Government
Comment),] A/CN.9/263, [Art. 5,], para. 2 [p. 223 supra]). The present working of the article
was insufficiently broad to cover matters of international commercial arbitration not
governed by the model law.
16. Mr. BONELL (Italy) said that he appreciated the points made by the United Kingdom
representative. His delegation was nevertheless strongly in favour of retaining the present
article 5, because court intervention in the arbitral process, particularly if it was

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 international, should be kept to a minimum. More important, the cases where it was
permitted should be stated clearly, so that the position was known to those concerned
from the outset. The provision in article 5 would not be binding on States and they would
be able to interpret it when incorporating it into their national legislation.
17. He noted the written comment of the United Kingdom ([Sixth Secretariat Note (UK
Comments),] A/CN.9/263/Add.2, para. 37 [p. 227 supra]) that the model law should set a
minimum of judicial control, whereas he had always understood that the purpose of article
5 was to set a maximum. Perhaps the Commission should consider that question.
18. Mr. SZASZ (Hungary) said that the underlying issue was the unification not merely of
procedural law but of all kinds of law. There was, therefore, no simple answer as to what
matters were covered by article 5. The members of the Council for Mutual Economic
Assistance, for example, followed the rule that when their unified law did not cover a
P 233 particular point, the domestic law of the seller's country would apply. The Commission
P 234 could do no more than recognize that article 5 raised the whole issue of the problems of
unification. The article did not deal with the question of how broad court control should be
and it should not be attacked on that ground. If the Commission wanted some degree of
unification, then article 5 was acceptable; if not, the article was open to criticism. His
delegation favoured the retention of the article, for the model law must make it clear to
the reader exactly where the limits of court control lay. He agreed with the observation
made by the United Kingdom about the view which the Secretariat had expressed in its
commentary with regard to the scope of the article ([Seventh Secretariat Note,] A/CN.9/264,
[Art. 5], para. 4 [p.229 supra]); there again, the problem was one affecting all matters of
unification.
19. Mr. HOLTZMANN (United States of America) said that the United Kingdom had raised the
question of what matters were covered by the model law. He was not sure that the wording
of article 5 could be improved in that respect. It was his country's general policy that court
intervention during arbitration proceedings should take place only in rare cases since it
could cause great delay. As to the United Kingdom suggestion that parties have the right to
opt out of article 5, should they be able to opt out of it in regard to the entire arbitration
process or only part of it? In any case, it would be difficult for the parties to state exactly
what they were opting out of. The Commission would not be helping businessmen by
adding a further complication to an already complicated process.
20. Mr. MOELLER (Observer for Finland) said that the principle underlying article 5 must be
supported: the model law must try to prevent abusive court intervention, especially during
arbitration proceedings, and be clear as to the cases in which court intervention was
permitted. It might be better to replace the words “In matters governed by this Law” with
the admittedly narrower provision “During the course of the arbitration proceedings.”
21. Mr. HJERNER (Observer, International Chamber of Commerce) agreed that the principle
underlying article 5 was a very important element of the model law. The possibility and
extent of court intervention had a great influence on the choice of the place of arbitration.
Mr. Hermann [sic] had implied that the circumstances of court intervention should be
spelled out in national law, but if that allowed broader intervention than the model law,
the aim of the latter — to assure potential users that its procedures were adequate —
would be frustrated. States should therefore try to avoid changing the model law in that
respect.
22. It might be possible for the wording of article 5 to be improved. The meaning of
intervention, for example, was not clear; a distinction must be made between intervention
and assistance. If, during the proceedings, an arbitral tribunal requested court assistance,
for instance with respect to the production of a witness, that did not amount to
intervention. The question of intervention also concerned article 18 [Art. 17 in the final text]
which should not be interpreted to mean that the ordinary courts could not order interim
measures.
P 234 23. Mrs. RATIB (Egypt) said that her delegation favoured the retention of article 5 despite
P 237 the difficulties inherent in the question of court control. By limiting such control to the
cases covered by the model law the Commission would bring some order to the disparity of
national legislations and make arbitration proceedings less complicated. The exclusion of
matters not covered by the model law established a balance whereby the difficulties
mentioned by some States might be overcome.
24. Mr. ROEHRICH (France) said that the merit of the United Kingdom submission was that it
made the Commission think about the extent of the unification achievable through a
model law. The model law must have a clear policy with respect to court intervention,
which must be limited to the essential matters which it covered. The Commission's
ambitions with regard to unification must be modest, for article 5 would not prevent courts
from intervening in matters not covered by the model law.
25. The Observer for the International Chamber of Commerce had drawn attention to the
need to distinguish between intervention and assistance. It was clear to his delegation that
article 5 covered all acts in national courts, whether mere requests for assistance or
applications for decisions directly affecting the arbitration proceedings. With regard to the
idea of allowing the parties to opt out of article 5, his country did not think that national
legislation should allow the parties to waive recourse to national jurisdiction or even agree

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 to it. If the national law provided such recourse, it should remain available regardless of
the wishes of the parties.
26. The existing wording might be the best that could be formulated for article 5. His
objection to the Austrian suggestion to delete the words “In matters governed by this Law”
was that their retention would leave the position clearer. The version of the article
proposed by the Observer for the Republic of Korea was interesting but might create more
problems than it solved. It might be useful for the draft to include a provision to the effect
that the model law did not prejudice the right of States to provide remedies in their
national legislation which were not in the model law.
27. Mr. TORNARITIS (Cyprus) said that some countries, including his own, might have
constitutional difficulties with respect to article 5. In Cyprus the judicial power was
exercised by the courts under the jurisdiction of the Supreme Court. The establishment
under the model law of an arbitral tribunal involving curtailment of the rights of local
courts might be found unconstitutional.
28. Mr. SAMI (Iraq) said that his delegation supported article 5 because the courts should
be available as a last resort to safeguard the rights of the parties. Article 5 guaranteed the
parties equality by giving them the right to go to court in the specific cases provided in the
model law. That provision would be very important if an arbitral tribunal could not resolve
a dispute or if one of the parties could not accept its decision. Recourse to a local court
would then be quite normal. He agreed with the representative of France that the article
covered requests for a court's assistance. If the Commission decided to delete article 5 it
would leave the door wide open to court intervention under national legislation. The merit
of the article was to define the sphere of such intervention clearly and in a way which
made it unnecessary to reword it.
P 237
P 236
29. Mr. BROCHES (Observer, International Council for Commercial Arbitration) said that the
attitudes of delegations to article 5 were determined by their view of what the users of the
model law wanted. Some users were more afraid of abuses by other parties than of court
intervention, while others feared abuses by arbitrators. Article 5 could not solve that
problem. The Commission had to decide how broadly such matters ought to be dealt with
in the model law. A solution might lie in the use of wording such as “unless otherwise
agreed” or “if the parties so agree.”
30. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that the problems which had
arisen during the discussion of article 5 revealed the different concepts of arbitration
which existed in different countries. All delegations were convinced of the importance of
party autonomy, but some considered that the authority of the court should be preserved
in order to avoid injustice, whereas others felt that the parties to an arbitration must
accept the unavoidable risks which it involved that adjudication by a court did not. His
delegation did not share the opinion that the article set a minimum judicial control over
arbitration and would prefer to see an even lower degree of judicial control provided for;
however, the status of the text as a model law would leave each State free to decide that
matter for itself. It was important to consider what relationship the model law would have
with existing national legislation on judicial intervention after its adoption.
31. The present wording of article 5 was acceptable and followed that of many other
international instruments. The Asian—African Legal Consultative Committee had suggested
in its written comments ([Sixth Secretariat Note (Government Comments),]
A/CN.9/263/Add.1, [Art. 5] [p.223 supra]) that the title of the article should be changed to
“Limitation of court intervention.” His delegation would prefer it to read “Limits of court
intervention.” The question could be discussed further in connection with other articles,
especially article 34.
32. Mr. PAES de BARROS LEAES (Brazil) said that court intervention in an arbitration should
be kept to a minimum. Article 5 adequately expressed that valuable principle in its
present form.
33. Mr. TANG Houzhi (China) said that court intervention could be understood to mean
assistance, which should be provided as fully as possible, or control, which should be kept
to a reasonable minimum. Article 5 should be retained, although the wording might be
improved in the light of the written comments of the United Kingdom.
34. Mr. de HOYOS GUTIERREZ (Cuba) said that parties to an arbitration had expressly
chosen to come before expert arbitrators rather than before the courts and that
consequently courts should not have the right to intervene in arbitration cases. Article 5
should be retained.
35. Mr. JEWETT (Observer for Canada) said that in that part of Canada in which civil law
operated, article 5 would not be necessary, and in the part governed by common law, it
would be difficult to enforce. Measures to prevent court intervention had often failed
because of the power wielded by the court. However, his delegation could support article 5
if it was amended to make it clear when judicial intervention was permissible.
P 236
P 237
36. Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration)

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 expressed support for article 5 in its existing form. A change in the wording would be
acceptable if it did not alter the meaning of the text.
37. Mr. BONELL (Italy) said that it had been proposed that the opening words of the article
“In matters governed by this Law” should be deleted; there was also the suggestion that
they should be replaced by the words “During the course of the arbitration proceedings.”
Neither formulation was acceptable to his delegation. A further suggestion had been that
the words “unless otherwise agreed,” referring to agreement between the parties, should
be added at the end of the article. That too would cause his delegation difficulties.
38. Sir Michael MUSTILL (United Kingdom) said that the problems which arose in
connection with article 5 could not be solved merely by drafting changes. His delegation
considered that the present version of the article, while not perfect, was the best which
could be hoped for.
39. Mr. HOLTZMANN (United States America) said he felt that a drafting group consisting of
experts, including perhaps the United Kingdom representative himself, might be able to
improve the article.
40. The CHAIRMAN said that although the article might seem inflexible, States when
enacting the model law were not obliged to follow it to the letter. The fact that the area
which it governed was not defined precisely gave arbitrators and judges a certain amount
of discretion. Most delegations had agreed with the French representative that it should be
understood to cover assistance from the courts as well as judicial intervention proper. The
article had found general approval and he therefore felt that the Commission would wish it
to be maintained in its existing form.
41. It was so agreed.
[13 June 1985, 2 p.m., A/CN.9/SR.332]
Articles 3 to 5 [as revised by the Drafting Group]
5. Articles 3 to 5 were adopted without change.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 5. Scope of court intervention
58. The text of article 5 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
59. Divergent views were expressed as to the appropriateness of the provision. The
discussion focused on two objections. The first objection was that the provision, which
addressed an issue of fundamental practical importance, did not give a clear answer to
P 237 the question whether in a given situation court intervention was available or excluded. The
P 238 second objection was that the provision, read together with the few provisions of the
model law which provided for court intervention, presented an unacceptably restrictive
scope of judicial control and assistance.
60. In advancing the first objection, it was pointed out that in many cases it was not
possible to know whether a matter was governed by the law. If a particular matter was not
expressly mentioned in the law, it was possible that the drafters had considered the
matter and decided that the law should not cover it, that the drafters had considered the
matter and decided not to give the court authority to intervene or that the drafters had
failed to consider the matter at all. Especially since the parties, arbitral tribunals and
courts who would be called upon to apply the law in the future would not have easy access
to the drafting history, they would often not know into which category a particular matter
fell.
61. In response to that objection, it was pointed out that the problem was common to any
lex specialis and, in fact, all texts for the unification of law. Since no such text was
complete in every respect, what was not governed by it must be governed by the other
rules of domestic law. Therefore, it was necessary, though admittedly often difficult, to
determine the scope of coverage of the particular text. Yet, in the great majority of cases in
which the question of court intervention became relevant, the answer could be found by
using the normal rules of statutory interpretation, taking into account the principles
underlying the text of the model law.
62. In advancing the second objection, it was emphasized that article 5 expressed an
excessively restrictive view as to the desirability and appropriateness of court
intervention during an arbitration. It was to the advantage of businessmen who engaged in
international commercial arbitration to have access to the courts while the arbitration was
still in process in order to stop an abuse of the arbitral procedure. Furthermore, a
limitation of the authority of the courts to intervene in arbitral proceedings might
constitute an unwarranted interference in the prerogatives of the judicial power, and might
even be contrary to the constitution in some States. Finally, even if the authority of the
court to intervene in supervision of an arbitration might have to be limited, the court
should have a broader power to act in aid of the arbitration. It was suggested, as a possible
means of softening the extremely rigid character of article 5, to give the parties to an
arbitration the authority to agree on a more extensive degree of court supervision and
assistance in their arbitration than was furnished by the model law.

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 63. In response to that second objection, it was pointed out that resort to intervention by a
court during the arbitral proceedings was often used only as a delaying tactic and was
more often a source of abuse of the arbitral proceedings than it was a protection against
abuse. The purpose of article 5 was to achieve certainty as to the maximum extent of
judicial intervention, including assistance, in international commercial arbitrations, by
compelling the drafters to list in the (model) law on international commercial arbitration
all instances of court intervention. Thus, if a need was felt for adding another such
P 238 situation, it should be expressed in the model law. It was also recognized that, although
P 239 the Commission might hope that States would adopt the law as it was drafted, since it
was a model law and not a convention, any State which might have constitutional
problems could extend the scope of judicial intervention when it adopted the law without
violating any international obligation.
64. As regards the suggestion to enable parties to agree on a wider scope of court
intervention, the question was raised as to whether the parties could be expected to draft
an agreement on the point that would adequately deal with the problems. Moreover, the
concern was expressed that institutional arbitration rules might include a provision
extending the right of court intervention and that some parties who had agreed to the use
of those rules might be subject to court intervention they had not expected.
65. The Commission, after deliberation, adopted the article in its current form.
P 239

References
1) Seventh Secretariat Note, A/CN.9/264, para. 2, p. 228 infra.
2) Summary Record, A/CN.9/309, para. 40, p. 237 infra.
3) See Sixth Secretariat Note (UK Comments), A/CN.9/263/Add.2, paras. 19–38, pp. 224–27
infra.
4) Id. para. 21, pp. 224–25 infra.
5) Commission Report, A/40/17, para. 61, p. 238 infra. For the Commission's consideration
of the Model Law's status as lex specialis, see the subsection on Article 1, paragraph 5,
pp. 133–49 supra.
6) Commission Report, A/4/17, para. 61, p. 238 infra.
7) See Summary Record, A/CN.9/SR.309, para. 40, p. 237 infra.
8) Fifth Working Group Report, A/CN.9/246, para. 188, pp. 223–24 infra.
9) Seventh Secretariat Note, A/CN.9/264, para. 4, p. 229 infra.
10) Id. para. 6.
11) Id.; see also Summary Record, A/CN.9/SR.309, para. 7, p. 231 infra.
12) Another example of a matter impliedly governed by the Model Law is the
enforceability of oral arbitration agreements. Article 7(2) requires that an arbitration
agreement be in writing. Does this mean that oral arbitration agreements might be
govered by a different national law on arbitration? The Working Group stipulated that
the Model Law “was intended to govern all international commercial arbitration
agreements.” Second Working Group Report, A/CN.9/232, para. 46, p. 280 infra, and
Third Working Goup Report, A/CN.9/233, para. 66, p. 281 infra, both of which appear in
the section on Article 7. Any oral arbitration agreement falling within the scope of
“international commercial arbitration” thus is unenforceable under the law of any
State that adopts the Model Law.
13) See Seventh Secretariat Note, A/CN.9/264, para. 6, p. 229 infra; Fifth Working Group
Report, A/CN.9/246, para. 188, pp. 222–23 infra; see also Article 9 of the Model Law.
14) Fifth Working Group Report, A/CN.9/246, para. 188, pp. 222–23 infra; Seventh
Secretariat Note, A/CN.9/264, para. 5 n. 30, p. 229 infra.
15) See also First Working Group Report, A/CN.9/216, para. 28, appearing in the section on
Article 7, p. 277 infra.
16) See also id. para. 29; commentary on Article 1, p. 34 supra, and sources cited therein.
17) See the subsection on Fees and Costs of the Arbitration in the section on Matters Not
Addressed in the Final Text, pp. 1145–48 infra; see also Second Working Group Report,
A/CN.9/232, para. 185, in the section on Article 31, p. 851 infra, stating that the Model
Law should not preclude arbitrators from withholding the award until the parties have
paid the fees and expenses of the arbitration.
18) See the commentary on Article 8, p. 307 infra, and sources cited therein.
19) See the subsection on Adaptation and Supplementation of Contracts in the section on
Matters Not Addressed in the Final Text, pp. 1123–36 infra.
20) See the subsection on Period for Enforcement of Award in the section on Matters Not
Addressed in the Final Text, pp. 1153–57 infra.
21) See the commentary on Article 1, paragraph 2, pp. 36–37 supra, and sources cited
therein.
22) See the subsection on the Liability of Arbitrators in the section on Matters Not
Addressed in the Final Text, pp. 1148—53 infra.
23) See Article 27 of the Model Law.

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 24) See Article 1(5) of the Model Law. For other topics that were raised during the
consideration of the Model Law but ultimately not explicitly addressed in the final
text, see pp. 1121—23 infra.
25) Commission Report, A/40/17, para. 64, p. 238 infra.
11) See [Secretariat Study on the N.Y. Convention,] A/CN.9/168, para. 46 [which appears in
the section on Article 36, p. 1069 supra].
8) This novel draft provision is intended to express a principle underlying the discussions
in the Working Group. While its acceptability may be assessed only after the contents
of (i.e. “the matters governed by”) the model law are clear, it would compel the
drafters to express in the Law any instance of possible court control.
14) The Working Group, at its fifth session, postponed the decision on this tentative draft
article to a later stage but accepted its underlying policy as an intention to clarify, in
the course of the preparation of the draft model law, instances of court intervention
([Third Working Group Report,] A/CN.9/233, para. 73).
*) [Editors' Note: The “suggested qualification” was a proposed rule—ultimately not
adopted—to the effect that the Model Law is lex specialis and prevails over other
provisions of national law “with respect to matters dealt with herein.” See the subsection
on Article 1, para. 5, p. 139 supra.]
28) [Fifth Working Group Report,] A/CN.9/246, para. 186.
29) A less categorical wording was suggested at the seventh session of the Working Group
but was not adopted: “In matters governed by this Law concerning the arbitral
proceedings or the composition of the arbitral tribunal, courts may exercise
supervisory or assisting functions only if so provided in this Law” ([Fifth Working Group
Report,] A/CN.9/246, paras. 183–184).
30) See commentary to article 1, para. 8 [in the subsection on Article 1, paragraph 5, p. 142
supra.].
31) See commentary to article 18, para. 4 [in the section on Article 17, p. 543 infra.]
*) [Editors' Note: This is apparently a reference to the Commission's decision adopting
subparagraph 3(c) of Article 1, which provides that an arbitration shall be considered to
be “international” for purposes of the Model Law if “the parties have expressly agreed
that the subject–matter of the arbitration agreement relates to more than one country.”
See Summary Record, A/CN.9/SR.307, paras. 31–52, pp. 87–89 supra.]

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Document information
UNCITRAL Model Law, Chapter I, Article 6 [Court or other
Publication authority for certain functions of arbitration assistance
A Guide to the UNCITRAL and supervision]
Model Law on International
Commercial Arbitration: The functions referred to in articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2) shall be performed
Legislative History and by… [Each State enacting this model law specifies the court, courts or, where referred to
Commentary therein, other authority competent to perform these functions.]

Commentary
Organization Article 6 enables the legislature of a State enacting the Model Law to designate which
United Nations Commission court or authority in the State is to perform certain functions under the Law. Although it
on International Trade Law may serve to confer competence on certain courts in a domestic system, its primary
purpose is to aid foreign parties in locating the competent court or authority and obtaining
information on its procedures and practices. (1) In addition, designation of a single court or
Promulgation authority would enable it to gain experience in arbitration. (2) The Article makes clear,
however, that more than one court or authority may be designated. (3) Thus, it does not
21 June 1985 necessarily require any change in the organization of the court system in, for example,
large or federal States. It was expected that the court or authority will use its existing rules
of procedure, if any, except as modified in the Model Law. (4)
Legislation number Not all court functions under the Law are included in the designation under Article 6. The
United Nations Document functions included are appointment of arbitrators under Article 11, deciding challenges
A/40/17, Annex I under Article 13, deciding on the termination of the mandate of an arbitrator under Article
14, ruling on the jurisdiction of the arbitral tribunal under Article 16, and deciding on an
application for setting aside an arbitral award under Article 34. Each of these functions is
logically assigned to a court connected in some way to the arbitration. Article 6 does not
Bibliographic reference mention Article 27 — court assistance in taking evidence — nor Articles 35 and 36 —
'UNCITRAL Model Law, recognition and enforcement of the arbitral award — because these functions must
Chapter I, Article 6 [Court or necessarily be assigned according to criteria such as the location of evidence or witnesses,
other authority for certain or the location of property of the losing party. Article 6 also does not mention Article 8 —
functions of arbitration regarding referral of matters to arbitration — or Article 9 — interim measures requests —
assistance and supervision]', because these are addressed to all courts of the Model Law State.
in Howard M. Holtzmann and P 240
Joseph Neuhaus , A Guide to P 241
the UNCITRAL Model Law on It should be noted that the functions listed in Article 6 may only be performed with respect
International Commercial to arbitrations to which the relevant Articles of the Law apply, that is, to international
Arbitration: Legislative commercial arbitrations where the place of arbitration is in the enacting State. (5) The
History and Commentary, appointment of arbitrators and challenges to them in arbitrations in which the place of
(© Kluwer Law International; arbitration has not yet been selected are matters that are not governed by the Model Law
Kluwer Law International and therefore are not referred to in Article 6. (6)
1989) pp. 240 - 256 Article 6 specifies that a nonjudicial authority may be designated to perform functions
under those Articles in which such an authority is mentioned. These Articles are 11
(appointment of arbitrators), 13 (challenges), and 14 (termination of mandate). It was
intended that only a “court,” as defined in Article 2(c), could decide on the jurisdiction of
the arbitral tribunal (Article 16(3)) and on applications for setting aside the award (Article
34(2)). The proviso permitting designation of a nonjudicial “authority” was added by the
Commission to the Working Group's draft. The primary reason was that in some countries
these appointment, challenge, and termination procedures are performed by specialized
bodies such as chambers of commerce or national arbitral institutions, and there was a
sense that these bodies may be able to perform the functions more efficiently than some
courts. In addition, it was noted that the UNCITRAL Arbitration Rules envision appointment
of any competent body or organ as the appointing authority. (7) In order further to
streamline these procedures, the Secretariat suggested that a State assign these
appointment, challenge, and termination functions, as to which speed is often required, to
a specific official such as the president of the court or chamber. (8)
Each of the Articles listed in Article 6 contains certain provisions regulating the procedure
before the designated court or authority. In particular, all of the mentioned Articles except
Article 34 provide that there shall be no appeal from the decision of the court or authority,
and each article indicates who may make an application to the court (i.e., one particular
party or any party). In an early draft of Article 6, these procedural issues of appealability
and standing (ius standi) were dealt with in a general rule that stipulated that, unless
otherwise stated, the court could act upon the request of either a party or the arbitral
tribunal and the decisions of the court would be final. (9) The Working Group decided,
P 241 however, to address such question in the context of the individual Articles listed in
P 242 Article 6. (10) Further details on these provisions may be found in the sections on the
relevant Articles, infra.

Legislative History

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 [Editors' Note: The initial draft of Article 6 grew out of the Working Group's discussion of the
procedures for appointing arbitrators. The Working Group agreed that the Law should provide
“supplementary rules” for appointing arbitrators where the parties had not agreed upon an
appointment procedure. The Working Group Report noted that an alternative favored by
some would be for the Law merely to state “that the appointment was to be made by an
appointing authority (which would be designated by each State when adopting the model
law).” Others thought more elaborate procedures, such as those in Articles 6-8 of the
UNCITRAL Arbitration Rules, would be necessary. These comments are the sole direct mention
in the Report of the designation of an appointing authority or court, the topic of Article 6. The
full discussion appears in the section on Article 11. See First Working Group Report,
A/CN.9/216, para. 50, p. 366 infra.]
FIRST DRAFT A/CN.9/WG.II/WP.37 (15 JULY 1982)
III. Arbitrators
[….]
3.-4. Number and appointment of arbitrators (25)
[….]
Article 17 [Arts, 6 & 11 in the final text]
(1) The Authority, referred to in articles 9(2)(c), 10, 11(b), 15(2), 16(1)(a), (d), (2) [Arts. 11, 13 and
14 in the final text] and…, shall be the… (e.g. specific chamber of a given court, president of
a specified court, to be determined by each State when enacting the model law.) (29)
(2) The Authority shall act upon request by any of the parties or by the arbitral tribunal,
unless otherwise provided for in a provision of this Law.
[Editors' Note: Paragraph 3 concerned procedures for appointing arbitrators. See the section
on Article 11, p. 368 infra.]
P 242
P 243
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[….]
Article 17 [Arts. 6 & 11 in the final text]
89. The text of article 17 as considered by the Working Group was as follows:
[same as First Draft, supra].
90. It was agreed that the name of the Authority would be left blank in the model law and
that each State which adopted the model law would have the option of designating that
Authority it thought most appropriate. It was agreed that in doing so the State should
name a judicial organ. A view was expressed that the Authority should possess experience
in the field of arbitration and, therefore, that it would be useful if its competence would be
centralized to the extent possible.
91. It was noted that the procedure to be used by the Authority would be determined by
the rules of civil procedure governing that court.
92. The general view was that the procedure before the Authority should be as expeditious
as possible. For this purpose it was suggested that there should be no appeal against the
decisions of the Authority. Under another view any provision in respect of appeal against
the decisions of the Authority should not be contrary to the basic principles of court
control of arbitration. The proponents of this view suggested that a final decision on this
question should be taken only after an analysis had been made of all cases which the
Authority may be called upon to decide.
93. The question was raised as to the Authority of which State should exercise the functions
of an Authority under article 17. In this connexion differing views were expressed as to the
nature of the rules which should be set forth in the model law.
94. Under one view it is not appropriate to set out special rules of international
competence of the Authority because such rules would have to be too detailed. According
to this view the question of international competence could be left to general rules on
international conflicts of competence.
95. Under another view the model law should have a system of rules on international
competence. Such a system should be based on the special functions of the Authority. In
this connexion it was suggested that the place of arbitration should be the primary
criterion. In case the place of arbitration had not been designated, the procedural law to
which the arbitral procedure was subjected might be the appropriate criterion. It was also
suggested that the party refusing to co-operate in the appointing procedure should be put
at risk that the other party could seize the Authority of his country.
P 243
P 244
96. Under a third view some rules on international competence would be useful and in this

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 context the place of arbitration should be the decisive factor. The Secretariat was
requested to draft provisions to this effect and to indicate that where the place of
arbitration had not been decided, reference should be made to the rules of private
international law. [Editors' Note: Further materials on the question of the “international
competence” of the Model Law are included in the subsection on Article 1, paragraph 2, pp.
97-133 infra.]
97. In respect of paragraph (2) of this article it was suggested that individual arbitrators
could apply to the Authority in cases in which not all the members of the arbitral tribunal
were appointed and therefore the arbitral tribunal could not be constituted. It was also
suggested that arbitrators should be authorized to apply to the Authority only for
appointment of other arbitrators and not in other cases in which the parties could apply to
the Authority.
98. It was suggested that it would be useful to authorize the Authority to consult an arbitral
institution in the fulfillment of its tasks. In response it was observed that the Authority was
free to consult institutions of its choice and that a special provision to this effect was
unnecessary.
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
C. Arbitration and the courts
[….]
Article V [Art. 6 in the final text]
(1) The special Court entrusted by this Law with functions of arbitration assistance and
control [under articles VIII (2), (3), X(2)/(3), XI(2), XIII(3), XIV, XXV, XXVI…] [Arts. 11, 13, 14, 16, 17
and 35 in the final text] shall be the… (blanks to be filled by each State when enacting the
model law). (9)
(2) Unless otherwise provided in this Law,
(a) this Court shall act upon request by any party or the arbitral tribunal; (10) and
(b) the decisions of this Court shall be final. (11)
P 244
P 245
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[….]
Article V [Art. 6 in the final text]
82. The text of article V as considered by the Working Group was as follows:
[same as Second Draft, supra.]
Paragraph (1)
83. The Working Group decided to delete the word “special” and requested the Secretariat
to redraft the provision without using the term “control.”
Paragraph (2)
84. Divergent views were expressed as to the appropriateness of a provision along the lines
of paragraph (2). Under one view, the provision use useful in that it regulated some basic
features of the procedure to be followed by the Court, with the possibility of making
exceptions thereto in the model law itself. In support of subparagraph (b), it was pointed
out that it would serve the purpose of expediting the proceedings which was of special
importance in international commercial arbitration.
85. Under the prevailing view, however, the provision should not be retained. It was
pointed out that paragraph (2), in particular its subparagraph (b), infringed upon
fundamental concepts and rules of court procedure. Nevertheless, its procedural features
(right to request and finality of decision) might be included in individual provisions of the
model law entrusting the Court with certain functions.
86. The Working Group, after deliberation, decided not to retain paragraph (2) and to
consider settling the procedural questions in the context of the individual provisions
referring to the Court specified in article V.
THIRD DRAFT A/CN.9/WG.II/WP.45 (13 JUNE 1983)
C. Arbitration agreement and the courts
[….]
Article V [Art. 6 in the final text] (18)
The Court [with jurisdiction] [entrusted] to perform the functions referred to in articles
VIII(2), (3), X(3), XI(2), XIII(3), XIV, XXVI and XXX [Arts. 11, 13, 14, 16, 17, 34 and 35 in the final
text] shall be the… (blanks to be filled by each State when enacting the model law). (19)
P 245
P 246

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 FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[….]
Article V [Art. 6 in the final text]
190. The text of article V as considered by the Working Group was as follows:
[same as Third Draft, supra].
191. There was wide support for retaining this article, with the words placed between the
first square brackets. It was agreed that the reference to the individual articles entrusting
the Court with certain functions would have to be revised and finalized at a later stage. It
was also noted that consideration may be given to the question which Court of article V, i.e.
the Court of which State, should render assistance in a given case, for example assist in the
appointment of an arbitrator where the place of arbitration had not yet been determined.
It was agreed that this and similar questions of scope of application and international
competence should be considered at the next session, on the basis of a study by the
Secretariat. [Editors' Note: See the subsection on Article 1, paragraph 2, pp. 97-133 supra.]
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 6. Special court for certain functions of arbitration assistance and supervision
The Court, with jurisdiction to perform the functions referred to in articles 11(3), (4), 13(3),
14, 17(1), (*) [32(2) Variant A] and 34(3) shall be the… (blanks to be filled by each State when
enacting the model law).
P 246
P 247
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[….]
Article 6
189. The text of article 6 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
190. The Working Group adopted that article, subject to the deletion of the word “Special”
in the heading to that article and the replacement of the words “17(1), [32(2) Variant A] and
34(3)” by the words “and 34(2).”
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 6. Court for certain functions of arbitration assistance and supervision
The Court with jurisdiction to perform the functions referred to in articles 11(3), (4), 13(3), 14
and 34(2) shall be the… (blanks to be filled by each State when enacting the model law).
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[….]
Article 6. Court for certain functions of arbitration assistance and supervision
Comments relating to the jurisdiction of the Court
[Editors' Note: Some of these comments related to the territorial jurisdiction of the Model
Law, a topic that was ultimately dealt with in Article 1(2) of the final text. Such comments are
included in the subsection on that paragraph, pp. 109-10, 111 supra.]
3. Qatar considers that article 6 may be construed as conferring an original jurisdiction of
first instance to the Court specified in this article and that it could induce parties to select
the law of a State they consider advantageous to them by agreeing on the Court of that
State even if that State has no connection with the subject–matter of the arbitration. To
P 247 avoid this undesirable “forum shopping,” Qatar proposes the following formulation of the
P 248 introductory words:
“In the event that international legal jurisdiction of the courts of this State is
established, the court with jurisdiction to perform the functions referred to….”
4. Sweden considers that a clarification may be useful as to whether the intention of article
6 is that a single court in each State shall be competent or whether a State can decide, for
example, that the competent court shall be the court of the place where either party is
domiciled. Another question in need of clarification is whether there is a recourse against
the court decision on an application for setting aside an award under article 34.
[….]
Comments relating to the designation of organs entrusted with functions of assistance

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 and supervision
7. Mexico observes that the Court specified in article 6 is one of the courts defined in
article 2(b), and that the model law (for example in article 9) makes reference to other
courts which may be different from the Court specified in article 6. It is suggested that this
difference be made clear in article 6.
8. Japan suggests that the determination of the Court which is to perform the functions of
arbitration assistance and supervision should be within the discretion of each State. A
national law may provide, for instance, that the Court which performs such functions shall
be the Court of the place of arbitration. Furthermore, the various functions enumerated in
article 6 do not necessarily have to be performed by the same Court.
9. The Soviet Union raises the question whether it is obligatory to assign in all cases the
functions of arbitration assistance and supervision to judicial organs to the exclusion of
organs which are not part of the judicial system of the country. It is observed that not in all
countries are such functions reserved only to judicial organs and that, from the practical
point of view, it seems that a court is not necessarily the most appropriate organ to
appoint most efficiently an arbitrator, as compared, for example, with a chamber of
commerce that is in a better position in this respect since the matter relates to an
international business relation. Although in the case of the challenge of an arbitrator or the
termination of the arbitrator's mandate somewhat different considerations may apply, it is
suggested that it would not be possible to consider the judicial procedure to be the most
appropriate one for these purposes, taking into account particularly that arbitration
proceedings are based on the will of the parties. Where a State by law assigns the functions
dealt with in articles 11, 13 and 14 to an institution other than the State court, the State
would guarantee proper performance of these functions. Accordingly, it is proposed to give
the States adopting the model law a broader choice in assigning the functions mentioned
in article 6, by referring to “the Court or another competent organ” rather than the Court
only.
P 248
P 249
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[….]
Article 6. Court for certain functions of arbitration assistance and supervision
[….]
2. AALCC [Asian-African Legal Consultative Committee] expresses the view that it should be
made clear that the courts designated by the national authority should have the
jurisdiction to deal with matters concerning the model law. It is suggested modifying this
article as follows:
“Article 6. Courts with jurisdiction to perform the functions provided in the
Model Law
The courts with jurisdiction to perform the functions provided in the Model Law
shall be ….”
A/CN.9/263/ADD.3 (31 JULY 1985) (COMMENTS OF EGYPT)
II. Comments on the articles
[….]
24. Article 6: Comment on the form: instead of referring to the numbers of articles and
paragraphs relating to the functions of the court in question, we propose the use of a
general formula such as:
“The court competent to undertake the functions set out in this Law is …” it
should be noted that the form “in this Law” has been used on many occasions.
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 6. Court for certain functions of arbitration assistance and supervision
[….]
1. Article 6 calls upon each State adopting the model law to designate a particular Court
which would perform certain functions of arbitration assistance and supervision. The
functions referred to in this article relate to the appointment of an arbitrator (article 11(3),
(4)), the challenge of an arbitrator (article 13(3)), the termination of the mandate of an
arbitrator because of his failure to act (article 14) and the setting aside of an arbitral
award (article 34(2)).
P 249 2. To concentrate these arbitration-related functions in a specific Court is expected to
P 250 result in the following advantages. It would help parties, in particular foreign ones,
more easily to locate the competent court and obtain information on any relevant features

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 of that “Court,” including its policies adopted in previous decisions. Even more beneficial
to the functioning of international commercial arbitration would be the expected
specialization of that Court.
3. Although these two advantages would best be achieved by a full centralization, the
designation of a Court does not necessarily mean that it will in fact be only one individual
court in each State. In particular larger countries may wish to designate one type or
category of courts, for example, any commercial courts or commercial chambers of district
courts.
4. The designated Court need not necessarily be a full court or a chamber thereof. It may
well be, for example, the president of a court or the presiding judge of a chamber for those
functions which are of a more administrative nature and where speed and finality are
particularly desirable (i.e. articles 11, 13 and 14). To what extent this further expected
advantage will materialize depends on each State's provisions on court organization or
procedure, whether they already exist or are adopted together with “this Law.” It is
submitted that a State may entrust these administrative functions even to a body outside
its court system, for example, a national arbitration commission or institution handling
international cases.
SUMMARY RECORD A/CN.9/SR.309-.311, .332
[5 June 1985, 9:30 A.M., A/CN.9/SR.309]
Article 6. Court for certain functions of arbitration assistance and supervision
42. Mrs. RATIB (Egypt) proposed that article 6 should be amended to read “The Court with
jurisdiction to perform the functions referred to in this Law….”
43. The CHAIRMAN [Mr. LOEWE (Austria)] observed that the text of the article should
properly begin “The Court or Courts….”
[Editors' Note: The Commission then entered upon an extended discussion of the territorial
scope of application of the Model Law. This matter was eventually dealt with in Article 1(2) of
the Law and the Summary Record of the discussion therefore appears in the subsection on
that paragraph, pp. 114-22 supra.]
[5 June 1985, 2:30 P.M., A/CN.9/SR.310]
26. THE CHAIRMAN [Mr. LOEWE (Austria)] made a drafting suggestion [….] It had been
suggested [in the discussion referred to above] that the system of territoriality would
operate with difficulty in certain situations where no place of arbitration had been
determined. Therefore, it was perhaps inappropriate to mention articles 11(3), (4), 13(3), 14
and 32(2) [in Article 6]. He suggested that the text should be amended to read “to perform
P 250 the functions referred to in this law” and then in the articles in question an exception
P 251 would be introduced [with respect to those situations where the place of arbitration had
not been selected] with the proviso that it was a real exception which did not contradict the
general rule stated in article 6.
27. Mr. HERRMANN (International Trade Law Branch) said that the idea of listing those
articles in article 6 together with the court functions envisaged was to make it clear that
the proposal to designate one or more special courts for that purpose only applied to
those functions and not to other court functions in the model law, such as those envisaged
in articles 8, 9, 27, 35 and 36. The purpose of article 6 was to centralize matters at a
specialized court; it would, for example permit certain urgent matters, such as
appointment and challenge, to be heard by only one person such as the President of the
court. Those considerations did not apply to other functions.
28. Mr. LEBEDEV (Union of Soviet Socialist Republics) raised the question of which bodies
should perform the functions of assistance and supervision under article 6. He felt that
those functions should not be restricted to a court. More flexibility would be achieved by
envisaging that some functions — such as appointment, removal or challenge of arbitrators
— might be attributed to bodies other than a court, such as a chamber of commerce or
trade association as appropriate under the national legislation of each State. In that
context, the UNCITRAL Arbitration Rules permitted the designation of any competent body
or authority. His delegation proposed that article 6 should contain in indication that a
court or other competent body could be given jurisdiction in respect of those functions, as
it had already suggested in its written submissions.
29. Mr. PARK (Observer for the Republic of Korea) said that his delegation accepted the
provisions of article 6 in principle but foresaw two problems. First, there were doubts as to
whether article 6 was mandatory, since where there was an agreement between the parties
as to the competent authority, that agreement should be respected. Where there was no
such agreement, the court should be designated by the enacting country. The draft model
law did not make that point clear and it should therefore be clarified. Secondly, where
there were several competent courts agreed between the parties or designated by the
State, it was not clear which court would exercise the functions under article 6. He
proposed the addition of a second paragraph to establish that where more than one court
had jurisdiction under the first paragraph, jurisdiction should be exercised by the first
court with which the parties or the arbitrator had dealt.
30. The CHAIRMAN invited the Commission to consider first the USSR delegation's proposal

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 to give the States adopting the model law a broader choice in assigning the functions
mentioned in article 6 by amending the opening words “The Court” to read: “The Court or
another competent organ” ([Sixth Secretariat Note (Government Comments),] A/CN.9/263,
[Art. 6], para. 9).
31. Mr. MTANGO (United Republic of Tanzania) […] supported the proposal that the
functions mentioned in article 6 should be assigned to the court or another competent
organ.
P 251
P 252
32. Mr. SAMI (Iraq) said that he supported the proposal to assign the functions mentioned
in article 6 to the court or another competent organ, since that would allow more flexibility
to States in designating the competent institutions.
33. Mr. de HOYOS GUTIERREZ (Cuba) said he supported the USSR proposal to give the States
adopting the model law a broad choice in assigning the functions mentioned in article 6,
because that would accord with the situation in Cuba, where the law on arbitration
assigned those functions to the international arbitral tribunal attached to the Chamber of
Commerce. He suggested that the text of the proposal should be more precisely
elaborated.
34. Mr. HJERNER (Observer, International Chamber of Commerce) said that the proposal to
allow the designation of courts or any other competent organs to exercise the functions set
out in article 6 would make the model law somewhat more realistic. A State adhering to
the model law was unlikely to accept the ideal that only one court could be designated,
particularly where there were several legal systems as occurred in federal States. It was
realistic to attribute those functions, which were mainly directed to the appointment and
challenge of arbitrators, to bodies such as a chamber of commerce. It was less likely,
however, for a chamber of commerce to be empowered to set aside an award. With regard
to article 13, the International Chamber of Commerce was concerned that where the
parties agreed upon a challenging procedure before an arbitral institution such as, for
example, that of the International Chamber of Commerce, then the decision of that
institution should be final and there should be no further recourse, e.g. to a local court.
35. Mr. MAGNUSSON (Sweden) said that it was convenient to attribute the functions set out
in article 6 to institutions other than courts and he therefore had no objection to the
proposal under consideration. However, it did not necessarily follow from article 6 that
only one court could be designated. According to the commentary, countries were free to
designate several courts. It was also open to individual countries to decide whether
appeal to a higher court would be allowed from decisions of the court or tribunal of first
instance.
36. The CHAIRMAN invited the Commission to consider whether in situations where the
parties agreed that the challenge should be decided upon by another body such as a
chamber of commerce, the decision of that body was binding or whether appeal to a court
should be allowed.
37. Mr. MAGNUSSON (Sweden) said that if the parties designated a particular body then
there could be no appeal, since the choice would have been made by the parties' own will.
However, if the challenge were made within the normal judicial system of the country, such
as in a district court, then the decision should be subject to appeal to a higher court.
38. Mr. ROEHRICH (France) said that the proposal to give States a broader choice in
assigning the functions mentioned in article 6 was acceptable, since it gave flexibility in
P 252 the face of differences in national legislative bodies. However, he preferred the phrase
P 253 “competent authority” to “organ” in order to reflect the relationship with the legislation
of the State. The effect of the proposal on article 13 could be discussed when that article
was considered. However, although courts or other bodies might be appointed by States to
exercise the functions in article 6, that did not perhaps mean that other bodies had the
same status as courts, and that their decisions should therefore be subject to appeal to a
higher court. He also felt that to increase flexibility in article 6 might result in further
complications in interpreting later articles.
39. He explained that if the principle of allowing the designation of a body other than a
court was extended to the remainder of the model law, there would be no reason to make
a distinction between courts and other authorities provided that they were permitted to
act under the relevant national legislation. He suggested that it should be expressly stated
in article 6 that designations made under that article should be in accordance with
national law.
40. Mr. MOELLER (Observer for Finland) said that he supported the proposal that article 6
should refer to the court or another competent organ; if that organ, however, was not part
of the judicial system, then that fact should be mentioned in the article. The question
raised in connection with article 13 as to whether the parties could agree to exclude the
court by designating a body outside the judicial system was something that should be
discussed when that article was reached.
41. Mr. STALEV (Observer for Bulgaria) asked if the proposal to authorize institutions other
than courts to perform the functions set out in article 6 would also apply to the setting
aside of an award, since he felt that such was not the intention of the proposal under

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 consideration.
42. Mr. LEBEDEV (Union of Soviet Socialist Republics) reminded the Commission that full
details of his delegation's proposal were set out in their written submission ([Sixth
Secretariat Note (Government Comments),] A/ CN.9/263, [Art. 6], para. 9). The proposal
related specifically to the functions set out in articles 11, 13 and 14 concerning the
appointment, challenge and substitution of arbitrators. Clearly, it was within the
competence of each State to appoint an appropriate authority to fulfil those functions.
However, it would be useful to state that fact in the law, thus stressing the element of
flexibility and thereby making the draft model law more attractive to States.
43. Mr. SEKHON (India) supported the proposal to give States a broader choice in assigning
the functions mentioned in article 6. He also supported the view that where a court was not
designated, the body appointed should be a competent authority.
44. The CHAIRMAN said that if there were no further comments, he would take it that the
Commission agreed to adopt the proposal that States should be given a broader choice in
assigning the functions mentioned in article 6; care should be taken to word the relevant
passage on the basis of the USSR written proposal ([Sixth Secretariat Note (Government
Comments),] A/CN.9/263, [Art. 6], para. 9).
P 253
P 254
45. It was so agreed.
[6 June 1985, 9:30 A.M., A/CN.9/SR.311]
1. Mr. PARK (Observer for the Republic of Korea) referred to the remarks he had made at
the previous meeting with regard to the court authorized to exercise the functions
mentioned in article 6 ([Summary Record,] A/CN.9/ SR.310, para. 29). He wished to
emphasize his point that it should in the first place be the court agreed upon by the
parties.
2. The CHAIRMAN [Mr. LOEWE (Austria)] observed that both the suggestions made by the
previous speaker at the 310th meeting could, if they were not already covered adequately
in national legislations, be taken into account by States when adopting the model law.
3. Mr. TORNARITIS (Cyprus) expressed support for the Soviet Union proposal.
4. The CHAIRMAN noted that considerable enthusiasm had been displayed for that
proposal. He suggested that the Soviet Union representative might be invited to assist the
Secretariat in incorporating it into the draft text.
5. It was so agreed.
[20 June 1985, 3:00 P.M., A/CN.9/SR.332]
Article 6 [as revised by the Drafting Group]
[Editors' Note: Article 6, as revised by the Drafting Group, read:
Article 6. Court or other authority for certain functions of assistance and supervision
The functions referred to in articles 11(3), (4), 13(3), 14 and 34(2) shall be performed by… [Each
State enacting this model law specifies the court, courts or other authority competent to
perform these functions.]]
6. Mr. GRIFFITH (Australia) said that article 16(3) as proposed by the drafting group
included a reference to the court or other authority specified in article 6, and should
therefore be added to the list of provisions given.
7. Mr. HERRMANN (International Trade Law Branch) observed that the court functions
referred to in articles 16(3) and 34(2) could, in fact, only be performed by a court and not
by another authority.
8. The CHAIRMAN [Mr. LOEWE (Austria)] asked the Commission whether it considered that to
be the case.
9. Mr. ROEHRICH (France) said that those delegations which had wished to include in the
article a reference to an authority other than a court had had in mind articles 11(3), 11(4),
13(3) and 14 only.
10. Mr. LEBEDEV (Union of Soviet Socialist Republics) proposed that the words “the court,
courts or other authority” should be amended to read “the court, courts or, where so
indicated herein, another authority.”
P 254
P 255 11. Mr. HOLTZMANN (United States of America) said that his delegation could accept the
Soviet Union's proposal but would suggest rewording it to read “… or, where referred to
therein,….”
12. Mr. GRIFFITH (Australia) proposed that the first comma in article 6 should be replaced
by the word “and.”
13. The CHAIRMAN said that, if there were no objections, he would take it that the
Commission wished to replace the first comma in article 6 by the word “and” and to amend
the words “the court, courts or other authority” to read “the court, courts or, where referred

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 to therein, another authority.”
14. It was so decided.
15. Article 6, as amended, was adopted.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 6. Court for certain functions of arbitration assistance and supervision
66. The text of article 6 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
67. The Commission was agreed that article 6, by calling upon each State to designate a
court for performing the functions of arbitration assistance and supervision referred to in
the article, was useful and beneficial to international commercial arbitration. As a result of
a subsequent decision to provide for instant court control over an arbitral tribunal's ruling
that it had jurisdiction (see below, para. 161 [included in the section on Article 16, p. 528
infra]), a reference to article 16(3) was included in article 6.
68. It was understood that a State was not compelled to designate merely one single court
but was free to entrust a number of its courts or a certain category of its courts with
performing those functions. That point could be made clear by adding to the words “the
Court” the words “or the Courts.”
69. It was also agreed that a State should not be compelled to designate a court in the
terms of article (2)(b) [Article 2(c) in final text] for all the functions referred to in article 6
but should be free to entrust the functions envisaged in articles 11, 13 and 14 to an organ or
authority outside its judicial system such as a chamber of commerce or an arbitral
institution.
70. A suggestion was made to recognize party autonomy as regards the choice of the forum
in those cases where more than one court was competent to perform the functions of
arbitration assistance and supervision. Another suggestion was to resolve any possible
positive conflict of court competence by according priority to the court first seized with
the matter. The Commission did not accept those suggestions since, insofar as the choice of
forum within a given State was concerned, the issue fell in the national domain of
regulating the organization of and access to its courts and, insofar as the issue and
possible conflict of the competence of courts in different States was concerned, it could
not effectively be settled by a model law.
P 255
P 256
71. The Commission was agreed, however, that it was desirable to determine the instances
in which the court or courts of a particular State which had adopted the model law would
be competent to perform the functions referred to in article 6. It was noted that the
question was directly related to the general matter of the territorial scope of application
of the model law. The Commission, therefore, embarked on a discussion of that general
matter. [The report of this discussion is included in the subsection on Article 1, paragraph 2,
pp. 129-31 supra.]
P 256

References
1) Seventh Secretariat Note, A/CN.9/264, para. 2, p. 249 infra.
2) Id.
3) See also Commission Report, A/40/17, para. 68, p. 255 infra.
4) Second Working Group Report, A/CN.9/232, para. 91, p. 243 infra.
5) See Article 1(2) of the Model Law.
6) See the commentary on Article 1, para. 2, pp. 35-36 supra and sources cited therein.
7) See Commission Report, A/40/17, para. 69 p. 255 infra; Summary Record, A/CN.9/SR.310,
paras. 28, 42, pp. 251, 253 infra; Sixth Secretariat Note (Government Comments),
A/CN.9/263, Art. 6, para. 9, p. 248 infra. See also Article 1 n. * and Article 6 of the
UNCITRAL Arbitration Rules.
8) Third Draft, A/CN.9/WG.II/WP.45, Art. V n. 19, p. 246 infra; Seventh Secretariat Note,
A/CN.9/264, Art. 6, para. 4, p. 250 infra.
9) Second Draft, A/CN.9/WG.II/WP.40, Art. V(2), p. 244 infra; see also First Draft,
A/CN.9/WG.II/WP.37, Art. 17(2), p. 242 infra; Second Working Group Report, A/CN.9/232,
para. 97, p. 244 infra.
10) Third Working Group Report, A/CN.9/233, paras. 84-86, p. 245 infra; Third Draft,
A/CN.9/WG.II/ WP.45, Art. V, n. 18, p. 246 infra.
25) Discussions and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, paras. 46-50 [appearing in the sections on Articles 10 and 11, pp. 350-51, 365
infra.]
29) The Authority envisaged in this provision would be a judicial body specializing in
arbitration matters and assisting in a variety of ways specified in the model law.

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 9) It is suggested that the question of the international jurisdiction or competence of this
Court be discussed at a later stage (probably in connexion with issues of conflict of
laws) when the exact and complete tasks of that Court are clear.
10) Provisions which “provide otherwise” may either restrict the rule under (a), e.g. article
X(3) [Art. 13(3) in the final text] which entitles only a party to resort to this Court, or
widen the rule by entitling others, such as individual arbitrators, e.g. article VIII (3) [Art.
14(1)] or XI(2) [Art. 14(1)].
11) Provisions which “provide otherwise,” i.e. allow an appeal, might, for example, be
envisaged in respect of decisions on setting aside, or on recognition and enforcement,
of arbitral awards (to be dealt with in [Second Draft,] A/CN.9/WG.II/WP.42) [in the
section on Article 34, pp. 931–34 infra.]).
18) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 83–86. It may be recalled here that, according to a decision
by the Group, the procedural issues previously dealt with in (now deleted) paragraph
(2), i.e. right to request the Court to act and finality of the Court's decision, should be
considered in the context of the individual provisions entrusting certain functions to
the Court.
19) The “Court” to be designated by each State may be a court or part of a court (e.g.
special chamber), whether already existing (e.g. commercial court) or established for
that purpose; certain functions of a more administrative nature and where speed is
required (e.g. appointment, challenge) may be assigned to a specific person (e.g.
president of court or chamber).
*) [Editors' Note: Article 17 was not included in the final text. The draft language referred to
appears in the section on Article 16, p. 500 infra.]

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Document information
UNCITRAL Model Law, Chapter II, Article 7 – original version
Publication [Definition and form of arbitration agreement]
A Guide to the UNCITRAL (1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all
Model Law on International or certain disputes which have arisen or which may arise between them in respect of
Commercial Arbitration: a defined legal relationship, whether contractual or not. An arbitration agreement
Legislative History and may be in the form of an arbitration clause in a contract or in the form of a separate
Commentary agreement.
(2) The arbitration agreement shall be in writing. An agreement is in writing if it is
contained in a document signed by the parties or in an exchange of letters, telex,
Organization telegrams or other means of telecommunication which provide a record of the
United Nations Commission agreement, or in an exchange of statements of claim and defence in which the
on International Trade Law existence of an agreement is alleged by one party and not denied by another. The
reference in a contract to a document containing an arbitration clause constitutes
an arbitration agreement provided that the contract is in writing and the reference
is such as to make that clause part of the contract.
Promulgation
21 June 1985 Commentary
Any effort at unifying law has its greatest potential effect not in the court or hearing room
but at the point where it meets the everyday transactions of life. For arbitration statutes,
Legislation number that point is the rule that sets down the requirement for drafting a valid arbitration
United Nations Document agreement, for it is that law that will influence most directly the ease with which business
A/40/17, Annex I people and their lawyers are able to use arbitration as a system for resolving international
commercial disputes. Thus, Article 7 of the Model Law, which defines the term “arbitration
agreement,” is as a practical matter one of the most important parts of UNCITRAL's
attempt to unify national arbitration statutes. It is here that States should resist most
Bibliographic reference strongly any temptation to impose more onerous or peculiarly local requirements.
'UNCITRAL Model Law, The two main features of Article 7 are: (i) that it permits an arbitration agreement to relate
Chapter II, Article 7 – original to existing or future disputes, eliminating the distinction still subsisting in some countries
version [Definition and form between a compromis and a clause compromissoire; and (ii) that it requires that an
of arbitration agreement]', in arbitration agreement be in writing and defines what will constitute a writing for this
Howard M. Holtzmann and purpose. These two provisions, one loosening the requirements for an arbitration
Joseph Neuhaus , A Guide to
the UNCITRAL Model Law on P 258 agreement in the affected legal systems and the other making them more rigid for certain
International Commercial P 259 countries, were regarded as something of a compromise. (1) The two points correspond
roughly to the contents of paragraph 1 and 2 of the Article.
Arbitration: Legislative
History and Commentary, Paragraph 1. Paragraph 1 is primarily permissive in nature. An arbitration agreement can
(© Kluwer Law International; relate to existing or future disputes, the disputes may arise out of a contractual or
Kluwer Law International noncontractual relationship, the agreement may be in the form of a clause in a contract or
1989) pp. 258 - 301 a separate agreement. Even the test of a “defined legal relationship” should be given, as
suggested by the Secretariat, “a wide interpretation so as to cover all non-contractual
commercial cases occurring in practice.” (2) None of the strict formalities of the special
compromis — such as a public deed or recording in court — are required. (3) Moreover,
under the terms of Article 16(1) of the Model Law, an arbitration clause is separable from
the contract in which it appears, so the clause may be valid even though the contract is
found to be null and void.
Nevertheless, a number of restrictions on the scope of permissible arbitration agreements
may still be found in the otherwise applicable law. First, the Working Group was agreed
that the question of the legal capacity of parties to enter into arbitration agreements was
not governed by the Model Law. (4) Second, the Model Law does not deal with questions of
sovereign immunity — i.e., whether a State waives immunity by signing an arbitration
agreement or engaging in commercial activities. (5) Third, the Working Group agreed that
the Model Law would not preempt other provisions of domestic law that might regulate the
material validity of the arbitration agreement itself, both as to issues relating directly to
arbitration — e.g., provisions giving a privileged position to one party with respect to
P 259 appointment of arbitrators — and as to issues relevant to any agreement or contract — e.g.,
P 260 mistake. (6) Thus, to take a common example, the extent, if any, to which a valid
arbitration agreement was formed when each party sent the other a printed form that
would submit the dispute to arbitration but under different terms would presumably be
governed by the generally applicable contract law. (7) Fourth, the Model Law does not
touch upon the question of what disputes are arbitrable. Article 1(5) of the Law makes this
point explicit:
This 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. (8)
Paragraph 2. Paragraph 2 of Article 7 requires that an arbitration agreement be in writing.
This is not merely a requirement that there be written evidence of an agreement; the
agreement itself must be in writing. (9) One reason for this requirement is that it was

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 agreed at the outset that the Model Law should not conflict with the New York Convention,
and in fact, as noted, Article 7 was modeled on that text. (10) In addition, a survey of
national laws undertaken by the Secretariat revealed that most legal systems require a
writing. (11) Furthermore, even in those States that permit oral agreements it was found
that this form is rarely used or difficult to rely upon because of strict standards of proof.
(12) The Working Group was agreed that the requirement of a writing applied to all
purported arbitration agreements within the scope of the Model Law (i.e., international
commercial arbitration). Thus, oral agreements are not a matter left to national rules
outside the Model Law, but rather are enforceable only to the extent that the Model Law
provides for a waiver of the requirement (see below). (13)
The basic test for a written agreement is that each party have declared in writing its
P 260 consent to arbitration. (14) Thus, a common example of an impermissible nonwritten
P 261 arbitration agreement is one in which there is a written offer and an oral (or otherwise
nonwritten) acceptance, or an oral offer and a written confirmation. (15) Considerable
concern was expressed in the Commission about arbitration agreements in bills of lading,
which often are not signed by the shipper and therefore are probably not written
agreements for the purposes of the Model Law. (16) Two amendments were considered by
the Commission that would bring such bills of lading clearly within the ambit of the Model
Law. Neither was adopted, however, primarily, it appears, because it was not considered
possible to stretch the New York Convention's requirement of a writing that far. (17)
Nevertheless, two factors mitigate to some extent the difficulties of this result. First, some
bill-of-lading problems may ultimately be covered by treaty, particularly the United
Nations Convention on the Carriage of Goods by Sea (Hamburg 1978). (18) Second, any
objections to an oral agreement may be waived by failure to raise them early in the
arbitral proceedings. See Articles 7(2) (discussed further below) and 16(2). (19)
The writing requirement extends to any agreement to submit a dispute to arbitration. Thus,
it probably extends to amendments to the original agreement by which additional
disputes are submitted to the arbitral tribunal, even if this is done, as is sometimes the
case, during the arbitral proceedings. (20) Again, however, the provisions of Article 7(2) and
16(2) might validate an otherwise oral agreement in this situation. A more difficult question
is whether separate agreements on procedural questions concerning the arbitration must
be in writing. There is nothing in Article 7 that suggests this, since it does not require that
P 261 the parties describe every feature of the future arbitration in their arbitration agreement.
P 262 Article 4, however, provides for a waiver by a failure to object in certain circumstances
to requirements contained in the “arbitration agreement.” As a result, the consequences of
a written agreement on procedure may be different from those of such an agreement made
orally. This point is discussed in the commentary on Article 4. (21)
Prior to the start of work on the Model Law, the Secretariat completed a study of the
application and interpretation of the New York Convention by courts in a variety of
countries. That study noted a number of points of uncertainty in the interpretation of the
writing requirement for arbitration agreements under the New York Convention. (22) The
Working Group decided to clarify two of these points: whether the writing requirement is
satisfied by use of modern means of telecommunications, and whether it is met by
references in contracts to general conditions in separate documents. (23) In addition, the
Commission sought to clarify that a written arbitration agreement could be created by an
exchange of statements of claim and defence in which one party alleged and the other did
not deny the existence of an arbitration agreement. (24) This was intended to encompass
the situation in which the parties submitted to and participated in the arbitration despite
formal flaws in their arbitration agreement. The Commission was of the view that these
modifications to the wording of the New York Convention were merely elaborations of that
wording and that any award that satisfied the requirements of Article 7 would be
enforceable under the Convention. (25)
In the end, Article 7 came to provide four sometimes overlapping ways of meeting the
writing requirement:
1. Signed document. This is the classic contractual form and is expressly mentioned in
the New York Convention.
P 262
P 263 2. Exchange of letters, telexes, telegrams, or other means of telecommunications that
provide a record of the agreement. The New York Convention refers to “an exchange of
letters or telegrams.” The intention of the Model Law provision is to cover modern
and future means of communications. (26) The requirement of a “record” is to ensure
that there is some writing involved. Thus, for example, an ordinary telephone
conversation would not suffice. It is submitted, however, that a written record is
provided even if no paper copy was produced; data appearing on a computer screen,
or in its memory disks, should be sufficient. (27) It should be noted that the
“exchange” of letters, telexes, etc. does not require that both mention the arbitration
agreement, or even that one or both letters be signed. What is sought is a written
form of assent from each party. (28)
3. Exchange of statements of claim and defence in which the existence of an agreement is
alleged by one party and not denied by another. While it was said that an exchange of
arbitral pleadings would probably constitute an “exchange of letters” under the
above provision, (29) the Commission considered it best to clarify the point explicitly.
An alternative that was proposed but not adopted was to deem an extract from the

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 record prepared by the arbitral tribunal to be an arbitration agreement. It was felt
that in cases where the record or minutes of the proceedings were not signed by the
parties, they would not constitute a written agreement, but merely evidence of an
oral one. (30) The draft adopted avoids that problem because the statements of
claim and defence are prepared and exchanged by the parties in writing, and not
merely drawn up by the arbitral tribunal.
Article 35(2) of the Model Law requires a party seeking recognition or enforcement of
an award from a court to supply “the original arbitration agreement referred to in
Article 7 or a duly certified copy thereof.” In the case of agreements formulated by an
exchange of either letters, telexes, etc. or arbitral pleadings, the documents
exchanged presumably are to be submitted. (31)
4. Reference in a written contract to a document containing an arbitration clause, if the
reference makes the clause part of the contract. This sentence was added to make
P 263 clear that when an arbitration clause is not contained in a written contract but rather
P 264 in a document referred to therein — such as general conditions of contract or
another contract — the arbitration agreement may be deemed to be “in writing.” (32)
The contract containing the reference must be in writing. This probably means that it
must meet the requirements contained in the second sentence of the paragraph. (33)
That is, the contract probably must be either signed or contained in an exchange of
letters, telexes, etc. Otherwise, as already noted, the parties could, merely by placing
the arbitration clause in a separate document, avoid the requirement of a written
assent from each party.
The meaning of the requirement that “the reference [be] such as to make [the arbitration]
clause a part of the contract” may raise questions. The Working Group made clear that it
did not mean the contract had to make explicit reference to the arbitration clause itself.
(34) The requirement was adopted as a middle ground between two positions: one view
was that the text of the arbitration agreement had to “be before both parties” in order to
bind them; another view was that only a “reference” in the contract to general conditions
or other documents containing the arbitration clause was enough. (35) The language
adopted appears to mean that the general conditions, prior contract or other document
must have been intended to be incorporated into the contract, and not merely referred to
in, for example, a “whereas” clause or as background to the agreement.

Legislative History
SECRETARIAT STUDY ON THE NEW YORK CONVENTION A/CN.9/168 (20 APRIL 1979)
II. Valid arbitration agreement in writing (Art. II and Art. V, para. 1(a) [of the New York
Convention])
[… .]
B. Requirement as to form of agreement (“in writing”)
19. Article II, paragraph 1, requires an arbitration “agreement in writing” which is defined in
P 264 paragraph 2 as “an arbitral clause in a contract or an arbitration agreement, signed by the
P 265 parties or contained in an exchange of letters or telegrams.” This form requirement,
which is also relevant in the context of article V, paragraph 1(a), has given rise to a number
of varying court decisions. The least problematic of the rather varied circumstances may
be the case where parties agreed by telex to arbitration. Here, the Austrian Supreme Court,
in contrast to the Lower Court, regarded this as equal to an exchange of telegrams (and
added that the formal requirements for the arbitration agreement must not be judged by
national law but exclusively by article II, paragraph 2 of the 1958 Convention). (21)
20. Less clear are the cases in which only one party signed the arbitration agreement and
the other kept it without objecting. In one such case, where the other party protested
against the arbitral clause only two months after the delivery of goods, a Dutch court
interpreted article II rather extensively by holding that the form requirement was met
because the parties had been aware of the existence of the arbitral clause. (22) On the
other hand, a very restrictive interpretation was adopted by the Italian Supreme Court in a
similar case where, however, the other party had produced the contract in court, signed
another copy, and appointed an arbitrator. (23) The ruling was based on the view that the
admission of the existence of an arbitration agreement was not equal to a written
document which under article II must clearly express the intent of both parties.
21. Yet, according to another Italian court the intention of the parties need not be
expressed in the same document, as the agreement may under article II, paragraph 2, be
contained in an exchange of letters or telegrams. Thus, an arbitral clause in purchase
orders, not signed or returned by the seller, was held to be valid in view of the fact that
invoices referring to the purchase orders were signed by him. (24) A similar reasoning
underlies two decisions which held that a written manifestation of the will of the parties
suffices as the 1958 Convention does not require the signature of both parties in case of an
exchange of letters. (25) Thus, if not both parties have signed, at least an exchange of
written communications would be required.
22. The requirement is rarely met in the case of a sales confirmation, a rather common
trade practice. Where, as is often the case, the confirmation of sale was not returned to the

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 other party, the arbitration agreement was held not to be valid under article II of the
P 265
Convention, regardless of the lex loci which may not require the written form, (26) even
P 266 where the parties had followed the same procedure before without objection. (27) It should
be noted, however, that this result excludes recognition and enforcement of the
arbitration agreement only under the 1958 Convention; as provided for under article VII,
the Convention does not deprive parties from rights to enforcement under other legal
instruments, for example, a national arbitration law, (28) a bilateral treaty (29) or another
Convention (e.g. the European Convention of 1961). (30)
23. Additional problems arise where third persons such as agents or brokers are involved.
In one case, for example, a broker had sent a note containing an arbitration clause to the
parties who, without signing it, acknowledged receipt. He had also sent them sales
confirmations which were signed and returned to the broker but not forwarded to the other
party. The confirmation of the sales terms by both parties was held to be sufficient on the
ground that the applicable national law authorized the broker to receive the written
declarations of the will of the parties. (31) In a similar case, the signing of an agreement by
brokers was held to be sufficient as such signing was equal to party signatures under the
applicable national law. (32)
24. The applicable national law was also relied on in answering the related question
whether the power of attorney must be in writing, as required for the conclusion of the
arbitration agreement under article II. The Italian Supreme Court held that under French
law (in contrast to Italian law) a power of attorney may be granted orally (and proven by
testimony). (33) Yet, other courts decided that the form requirement of article II should
also be applied to the power of attorney, (34) because otherwise the purpose of article II
would be defeated. (35)
25. A different problem arises in the rather common fact situation that the contract does
not contain an arbitral clause as a result of express agreement but that the parties refer to
general conditions, or use a standard form, containing an arbitral clause. Here, one could
hesitate to recognize such reference as a valid arbitration agreement in view of the
P 266 purpose of the form requirement under article II. Most courts, however, have regarded the
P 267 incorporation as sufficient, for example, with regard to general conditions, (36) to
standard forms of contract, (37) and charter parties referred to in bills of lading. (38)
26. The same result was reached by Italian courts in regarding article II as a uniform rule
which supersedes domestic law and, therefore, not applying provisions of Italian law which
require specific approval in writing of the arbitral clause if contained in general conditions
or model contracts. (39) However, the Italian Supreme Court held that a mere reference is
not sufficient, (40) even where the arbitral clause is contained in the contract form signed
by the parties. (41) Following the rationale of the domestic law rule, i.e. to ensure
awareness of the parties, the Supreme Court has made an exception where the contract
was the result of specific negotiations which made the parties aware of the consequences
agreed to. (42) Another obvious exception would be where the Italian law is not applicable,
for example, to a contract concluded in another State. (43)
[….]
Conclusions
48. The survey reveals that there are wide areas within the realm of the 1958 Convention
which have not given rise to any noteworthy problems. The same can be said about the
articles which have not been specifically dealt with here. Certain difficulties and
divergencies have been discovered in the application and interpretation of articles II and
V […]. (*)
P 267
P 268
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
A. Concerns and Principles of a Model Law on International Commercial Arbitration
I. General concerns and problems
9. The ultimate goal of a model law would be to facilitate international commercial
arbitration and to ensure its proper functioning and recognition. Its practical value would,
in particular, depend on the extent to which it provides answers to the manifold problems
and difficulties encountered in practice. Thus, in preparing the model law an attempt
should be made to meet the concerns which have repeatedly been expressed in recent
years, sometimes even labelled as “defects” or “pitfalls” in international commercial
arbitration.
10. A major complaint in this respect is that the expectations of parties as expressed in
their agreements on arbitration procedure are often frustrated by conflicting mandatory
provisions of the applicable law. To give only a few examples, such provisions may relate
to, and be deemed to unduly restrict, the freedom of the parties to submit future disputes
to arbitration […].
[Editors' Note: For the full text of this part of the Secretariat's Note, see the section of
materials on the Purposes and Procedures of the Commission, pp. 1193–95 infra.]
[….]

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 II. General principles and purposes
[….]
24. Other issues usefully to be included are those that have given rise to difficulties due to
divergent interpretations, or gaps, of the 1958 New York Convention as identified in the
study of the Secretary-General (A/CN.9/ 168). Thus, clarification could be sought, for
example, of the exact meaning of the requirement that the arbitration be “in writing.” One
could also attempt to reach agreement on the law applicable to the arbitration
agreement. […]
[….]
B. Identification of Issues Possibly to be Dealt with in the Model Law
[….]
II. Arbitration agreement
39. In contrast to court litigation, arbitration proceedings usually take place only if the
parties have so agreed. Therefore, the model law should contain provisions on this basic
agreement. It should be mentioned, however, that there are exceptions to this rule where
no such agreement is needed since submission to arbitration is by operation of a law. The
P 268 most prominent example [sic] are disputes between enterprises of the member States of
P 269 the Council for Mutual Economic Assistance which, under the 1972 Moscow Convention
[on the Decision by way of Arbitration of Civil Litigations Resulting from Relations of
Economic and Scientific-technological Cooperation, 13 I.L.M. 5] or the General Conditions of
Delivery of Goods [Between Organizations of the Member Countries of the Council for Mutual
Economic Assistance, E.71.V.3, p. 72], 1968 (sect. 90, 91), are referred to the arbitration courts
attached to the Chambers of Foreign Trade, Commerce or Industry. For the sake of
complete information, one might consider to envisage in the model law inclusion of a
reference to the respective exceptions in a given legal system.
40. Returning now to the cases where an agreement is needed, the discussion of what
constitutes an arbitration agreement, what form and contents should be required, and of
other related points to be dealt with in the model law should be based on the pertinent
provisions of the 1958 New York Convention:
Article II
“1. Each Contracting State shall recognize an agreement in writing under
which the parties undertake to submit to arbitration all or any differences
which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not, concerning a
subject-matter capable of settlement by arbitration.
2. The term “agreement in writing” shall include an arbitral clause in a
contract or an arbitration agreement, signed by the parties or contained
in an exchange of letters or telegrams.
Article V
1. Recognition and enforcement of the award may be refused, at the request
of the party against whom it is invoked, only if that party furnishes to the
competent authority where the recognition and enforcement is sought
proof that:
(a) the parties to the agreement referred to in article II were, under the
law applicable to them, under some incapacity, or the said
agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law of the
country where the award was made; …”
For the sake of consistency between major legal texts governing international arbitration
practice, it would be desirable not to include provisions in the model law which would be
in conflict with any of the above rules.
1. Form, validity and contents
41. It may be considered to adopt in the model law the requirement that the arbitration
agreement be in writing, as envisaged under art. II, para. 1 of the 1958 New York
Convention. A survey of national laws reveals that this is the form required under most
legal systems. Where this is not so, it has been reported that, nevertheless, in practice
P 269 almost all agreements are concluded in writing or that oral agreements may not easily be
P 270 relied on due to strict standards of proof. In some other (Latin—American) States
written form is dispensed with only for an agreement to arbitrate future disputes which,
however, is of lesser practical value since at any rate a formal submission is required there
once the dispute has arisen.
42. In view of this latter situation, it may be suggested here already that the model law not
retain the classic distinction between “compromis” and “clause compromissoire.” Rather,
in conformity with modern arbitration principles, an arbitration agreement could relate to
existing or to future disputes, as envisaged under art. II, para. 1 of the 1958 New York

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 Convention. Such undertaking, whether in an arbitral clause or a separate agreement,
constitutes a final and sufficient commitment by the parties. No additional submission
would be necessary and, thus, its often strict formalities (e.g. public deed, recording in
court) would no longer have to be observed. In view of the relaxation under the systems
affected, the above proposal as to written form could be regarded as an acceptable
compromise.
43. If the requirement of written form were to be adopted, it may further be suggested to
include in the model law a clear and detailed definition of what “in writing” means. Such
definition could help to achieve uniform interpretation which would be highly desirable
not only for purposes of the model law itself but also for other legal texts such as the 1958
New York Convention (art. II) or the United Nations Convention on the Carriage of Goods by
Sea, 1978 [A/Conf.89/5] (art. 22). One might even consider to state expressly in the model
law that the definition given there would be applicable to relevant provisions in other
legal texts, too. As to the possible shape of such a definition, it may be based on the
definition set forth in the 1958 New York Convention (art. II, para. 2). However, in view of the
difficulties encountered in practice, as reported in the study of the Secretary–General [on
the New York Convention] (A/CN.9/168, paras. 19–26), the definition in the model law should
be more precise and detailed. In particular, it should attempt to tackle these problems
which relate, for example, to the involvement of intermediaries, to the commercial
practice of sales confirmations, or to the use of standard forms or references to general
conditions.
44. Turning to the matter of validity of the arbitration agreement, it seems doubtful
whether the model law should attempt to provide an exhaustive list of reasons of
invalidity. Probably the best approach would be to include only those reasons which relate
directly to arbitration and to leave out the other reasons relevant to any agreement or
contract (e.g. mistake). An example of the first type is provided in article 3 of the
Strasbourg Uniform Law [see European Convention Providing Uniform Law on Arbitration,
Europ. T.S. No. 56 (Strasbourg 1966)]: “An arbitration agreement shall not be valid if it gives
one of the parties thereto a privileged position with regard to the appointment of the
arbitrator or arbitrators.”
45. The less matters of validity are regulated in the model law, the greater would be the
need for a provision determining the law applicable to the validity of the arbitration
P 270 agreement. The rule of the 1958 New York Convention (art. V, para. 1(a)) cannot simply be
P 271 adopted. Its first alternative (“the law to which the parties have subjected it”) creates
difficulties where the parties' freedom of choosing a law is limited and, more importantly,
the supplementary alternative (“the law of the country where the award was made”) is not
sufficient since, as pointed out earlier (para. 33 (*) ), the issue may be relevant already at a
time when the place of the arbitration or the award is not yet determined. Thus, additional
criteria (e.g. place of conclusion of agreement, law governing substance of dispute) would
have to be considered if one were to tackle this controversial issue at all in the model law.
46. A related question is what the arbitration agreement should contain. As pointed out
earlier (para. 40), the undertaking to submit to arbitration may relate to existing or to
future disputes. It will have to be considered whether the type of dispute should be more
specifically described and whether any other requirements as to the minimum contents of
an arbitration agreement should be included in the model law. For example, article II,
para. 1 of the 1958 New York Convention refers to differences “in respect of a defined legal
relationship, whether contractual or not, concerning a subject matter capable of
settlement by arbitration.”
47. Accordingly, one may also in the model law require that the parties specify the relevant
contract or other relationship. On the other hand, the restriction as to arbitrability of the
subject matter need not be expressed in the arbitration agreement. However, one should
state this limitation in the model law, possibly together with a listing of non-arbitrable
subject matters, i.e. exclusions from the domain of arbitration dealt with below (paras. 55-
56 [appearing in the subsection on Article 1, paragraph 5, pp. 135–36 supra]). Another
requirement found in some national laws would be that the agreement already name the
arbitrator(s) or at least set forth the appointment procedure. While parties may be
recommended to do so, a strict requirement to that effect does not seem to be warranted.
In this context, mention should be made of a later suggestion that the model law provide
supplementary rules on the appointment procedure for cases where such procedure has
not been agreed upon by the parties or does not operate as expected (below, para. 69
[appearing in the section on Article 11, p. 364 infra]).
2. Parties to the agreement
48. In order to provide wide access to arbitration, in accordance with a clearly discernible
trend in modern dispute settlement practice, an attempt should be made to allow all
(physical or legal) persons to conclude an arbitration agreement. (*) The idea of envisaging
no restrictions in that regard relates, of course, only to the specific capacity to submit to
P 271 arbitration but not to the general capacity to conclude agreements (as, e.g., restricted for
P 272 minors). Also, it is not intended to prevent, for example, a trade association from
providing access to its arbitration facilities exclusively to its members. What is intended,
is merely that no category of persons or corporations or organs would be per se excluded
by law.

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 49. The attempt to abolish any existing restrictions in order to grant full access to
arbitration may prove to be difficult with regard to governmental agencies or similar
entities of public law since important State interests are at stake here, including the
competence of internal organization and division of authority. Nevertheless, the
difficulties could possibly be overcome in view of the specific field of application, i.e.
international commercial arbitration. As to the commercial aspect of the transactions
concerned, a liberal rule on the capacity to arbitrate may be less objectionable since
arbitration is a common procedure of dispute settlement in this field and this type of
activity is not closely connected with the State's interest in shaping its policy and
conducting its public affairs as it wishes. As to the international aspect, a State may adopt
a more liberal attitude with regard to international transactions and disputes than to
purely domestic affairs; such a distinction is, for example, clearly drawn in France. (15)
50. In view of the above, one might consider adopting a rule along the lines of article II(1) of
the 1961 European Convention on International Commercial Arbitration [, 484 U.N.T.S. 349
(Geneva),] according to which “legal persons considered by the law which is applicable to
them as ‘legal persons of public law’ have the right to conclude valid arbitration
agreements.” Paragraph 2 of that article permits a Contracting State “to declare that it
limits the above faculty to such conditions as may be stated in its declaration.” One could
envisage to include in the model law a similar “reservation” by requesting States to list any
exclusions if such exclusions are deemed necessary.
51. In this context of State participation in arbitration, the Commission may wish to
consider whether the model law should deal with pertinent aspects of State immunity. It
may be recalled that one of the recommendations of the AALCC [Asian-African Legal
Consultative Committee], considered by the Commission at its tenth session, (16) was the
following point: “Where a governmental agency is a party to a commercial transaction in
which it has entered into an arbitration agreement, it should not be able to invoke
sovereign immunity in respect of an arbitration pursuant to that agreement.” (17) As
specified by the Sub-Committee on Trade Law of the AALCC, the intention of that proposal
P 272 is to prevent a governmental agency which had entered into a valid arbitration agreement
P 273 in a commercial transaction from invoking sovereign immunity, at all stages of
arbitration, including the stage of recognition and enforcement of the arbitral award. (18)
52. It may be thought that the issue of sovereign immunity in the context of arbitration is
but a part of a more general and complex problem having an obviously political and
public international law character. (19) Nevertheless, it is suggested not to exclude the
issue without prior discussion from the preparatory work on the model law. It may even be
possible to find an acceptable solution in view of the fact that it would be limited to
commercial activities of States and its organs which are widely perceived, as reflected in
most laws, (20) not as an exercise of sovereign power warranting special privileges (“acta
jure imperii”) but as being on equal footing with the activities of private corporations or
persons (“acta jure gestionis”).
53. Another encouraging consideration could be that, since arbitration depends on a
commitment to arbitrate, any restrictions as to sovereign immunity would apply in
practice only if a governmental agency concludes an arbitration agreement. If, in fact, a
governmental agency or similar body chooses to enter into an arbitration agreement, it
would seem to be appropriate that it honour its commitment to the other party reasonably
relying thereon.
54. Therefore, thought may be given to including in the model law a provision on some kind
of waiver of the plea or defense of sovereign immunity, either an implied waiver or, at
least, a recommendation to expressly agree not to invoke sovereign immunity. In either
case, one would have to study in detail the feasibility and the legal effects of such
approach, both with regard to the arbitration proceedings proper, including jurisdiction of
the courts to whose control the arbitration is subject, and to the recognition and
enforcement of the award.
P 273
P 274
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
II. Arbitration agreement
1. Form, validity and contents
16. The issues and possible features relating to form, validity and contents of the
arbitration agreement are discussed in some detail in the report [First Secretariat Note,
supra] (paras. 41-47). Supplementary information should be given here, in particular to the
reference to Latin-American States (para. 41-42). The Fifth Conference of Ministers of
Justice of the Hispanic–Portuguese–American Countries (Lima, 13-17 July 1981) adopted a
model law of arbitration and recommended to the Governments of its Member States to
take it into consideration when reforming their domestic law. (9)
17. Article 4 of that model law requires for every arbitration a written agreement; and it is
this arbitration agreement (“convenio arbitral”) which precludes resort to courts as laid
down in article 6. Article 5, then, speaks of a submission (“compromiso”) which is to be
formalized in writing at the same time as or subsequent to the arbitration agreement; it

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 must set forth certain information on the act of submission and the parties thereto, the
matters submitted to arbitration, the appointment of the arbitrators and whether the
arbitration is de jure or ex aequo et bono, and it may contain other points agreed on by the
parties.
Question
2–1: Is it sufficient to require (as, e.g., art. II of the 1958 New York Convention) only one
arbitration agreement irrespective of whether it concerns existing or future disputes
or should some additional act be envisaged in certain cases?
(The following questions are based on the assumption that no additional act is
envisaged)
Question
2–2: Should the model law specify the required form of the arbitration agreement and, if
so, require that it be “in writing”?
Question
2–3: If writing were required, should the term “in writing” be defined, for example, as
article II of the 1958 New York Convention (“agreement signed by the parties or
contained in an exchange of letters or telegrams”) or should a more extensive and
refined definition be sought which should reduce the difficulties encountered in
practice with the above definition (see report, para. 43)?
Question
2–4: Which points relating to the validity of the arbitration agreement should be included
in the model law? For example, should a provision be included guaranteeing equality
of the parties as regards the appointment of arbitrators (see report, para. 44)?
P 274
P 275
(In this connexion, it may be suggested that the question as to which law governs the
validity of the arbitration agreement be considered, together with other conflicts
questions, at a later stage when it will have to be decided whether the model law
should include conflicts rules at all)
Question
2–5: What should be the minimum contents of an arbitration agreement? For example,
would a provision like art. II, para. 1 of the 1958 New York Convention be appropriate
and sufficient (see report, paras. 46-47)?
2. Parties to the agreement
18. The question who may be a party to an arbitration agreement is discussed in the report
(paras. 48-50), including the difficult issue whether any restrictions should apply, or be
recognized, to the capacity to arbitrate in the case of governmental agencies or other
public entities. In this connexion, the even more difficult question of State immunity is
also submitted for consideration (see report, paras. 51–54).
Question
2–6: Should the model law contain a provision on who may be a party to an arbitration
agreement?
Question
2–7: If so, should the model law state, for example, that it applies to “arbitration
agreements concluded by physical or legal persons of private or public law” or
should a provision be added according to which even “legal persons of public law
have the right to conclude valid arbitration agreements” (as, e.g., art. II, para. 1 of the
1961 Geneva Convention [European Convention on International Commercial
Arbitration, 484 U.N.T.S. 349])?
Question
2–8: Should an attempt be made to deal in the model law with certain aspects of State
immunity in the area of international commercial arbitration? For example, to
mention only one out of many possibilities, should the model law construe the
commitment to arbitrate by a Government or a State organ as containing an implied
waiver of any right to invoke State immunity in the arbitration proceedings or
arbitration–related court proceedings?
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[….]
II. Arbitration agreement
1. Form, validity and contents
Question 2–1: Is it sufficient to require (as, e.g., article II of the 1958 New York Convention)
only one arbitration agreement irrespective of whether it concerns existing or future
disputes or should some additional act be envisaged in certain cases?
P 275
P 276
22. There was general agreement that the model law should require only one arbitration
agreement irrespective of whether it concerned existing or future disputes. This solution is

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 in conformity with that adopted in article II, paragraph 1, of the 1958 New York Convention.
Question
2–2: Should the model law specify the required form of the arbitration agreement and, if
so, require that it be “in writing”?
Question
2–3: If writing were required, should the term “in writing” be defined, for example, as in
article II of the 1958 New York Convention (“agreement signed by the parties or
contained in an exchange of letters or telegrams”) or should a more extensive and
refined definition be sought which should reduce the difficulties encountered in
practice with the above definition (see report, para. 43)?
23. The Working Group was agreed that the model law should require the arbitration
agreement to be in writing, and that this formal requirement should be defined along the
lines of article II, paragraph 2 of the 1958 New York Convention. It was suggested that the
model law give a more detailed definition than the one in article II, paragraph 2 of the
1958 New York Convention, so as to make clear that it encompasses, for example, modern
means of communication and frequently used contract practices, e.g., use of standard form
contracts or reference to general conditions. In the preparation of such a detailed
definition, it was suggested that article I, paragraph 2(a) of the European Convention [on
International Commercial Arbitration, 484 U.N.T.S. 349] (Geneva 1961) might be taken into
account.
24. In this connexion, the question was raised whether a party which had appeared before
an arbitral tribunal without contesting its jurisdiction, may later invoke the lack of a
written arbitration agreement. The prevailing view was that such a party could not in those
circumstances invoke the lack of a written agreement. However, it was agreed that the
question should not be dealt with in the model law, as it was a question which could be
adequately dealt with by domestic law.
Question 2–4: Which points relating to the validity of the arbitration agreement should be
included in the model law? For example, should a provision be included guaranteeing
equality of the parties as regards the appointment of arbitrators (see report, para. 44)?
25. There was general agreement that the model law should not set forth grounds for the
invalidity of an arbitration agreement, including grounds specially directed to arbitration
agreements. It was noted that the formulation of an exhaustive list of clearly defined
grounds was extremely difficult. Consequently, the question of validity should be left to the
applicable law. The Group noted that, in view of this decision, the question whether the
model law should include rules to determine which law was applicable assumed greater
importance. The Group decided to consider this question, together with other questions as
to the conflict of laws, at a later stage. (*)
P 276
P 277
Question 2–5: What should be the minimum contents of an arbitration agreement? For
example, would a provision like article II, paragraph 1 of the 1958 New York Convention be
appropriate and sufficient (see report, paras. 46-47)?
26. The Working Group was agreed that the model law should state the minimum contents
of an arbitration agreement along the lines of article II, paragraph 1 of the 1958 New York
Convention, since that provision was appropriate and sufficient. However, doubts were
expressed as to the appropriateness of adopting the last part of that provision (i.e.
“concerning a subject matter capable of settlement by arbitration”). It was noted that this
requirement related to the domain of arbitration, which was dealt with separately
(question 2-9 [, appearing in the subsection on Article 1, paragraph 5, p. 136 supra]). The
Group decided to defer its decision on whether to retain that phrase until after it had
considered and decided the issue of the domain of arbitration.
2. Parties to the agreement
Question
2–6: Should the model law contain a provision on who may be a party to an arbitration
agreement?
Question
2–7: If so, should the model law state, for example, that it applies to “arbitration
agreements concluded by physical or legal persons of private or public law” or
should a provision be added according to which even “legal persons of public law
have the right to conclude valid arbitration agreements” (as, e.g., article II, paragraph
1 of the 1961 Geneva Convention)?
27. There was general agreement that access to arbitration should be unrestricted.
However, divergent views were expressed as to how to achieve this end. Under one view,
this purpose would best be served by not incorporating in the model law any provision on
who might be party to an arbitration agreement. Under another view, it was preferable to
state expressly in the model law that it applied to arbitration agreements concluded by
physical persons or legal persons of private or public law. The Working Group decided to
reconsider the matter in the light of a draft provision to be prepared by the Secretariat.
28. The Working Group noted that this question was to be clearly distinguished from the

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 question whether a given person had the legal capacity to conclude an arbitration
agreement. The Group decided that the question of capacity fell outside the scope of the
model law, and that therefore no provision as, for example, article II, paragraph 1 of the
1961 Geneva Convention should be included.
Question 2–8: Should an attempt be made to deal in the model law with certain aspects of
State immunity in the area of international commercial arbitration? For example, to
mention only one out of many possibilities, should the model law construe the
commitment to arbitrate by a Government or a State organ as containing an implied
waiver of any right to invoke State immunity in the arbitration proceedings or arbitration-
related court proceedings?
P 277
P 278
29. There was general agreement that the model law should not deal with questions of
State immunity. The reason for this decision was that the issue of State immunity in the
context of arbitration was regarded as but a part of a more general and complex problem
having an obviously political and public international law character.
FIRST DRAFT A/CN.9/WG.II/WP.37 (15 JULY 1982)
II. Arbitration agreement
1.-3. Form, contents, parties, domain (8)
Article 2 [Art. 7 in the final text] (9)
“Arbitration agreement” is an undertaking by [parties] [physical persons or legal persons of
private or public law] to submit to arbitration all or certain differences which have arisen
or which may arise between them in respect of a defined legal relationship, whether
contractual or not [, concerning a subject-matter which could be disposed of by agreement
of the parties under the applicable law].
Article 3 [Art. 7 in the final text]
(1) The arbitration agreement, whether an arbitration clause in a contract or a separate
agreement, shall be [concluded or evidenced] in writing.
(2) “Agreement in writing” includes an agreement contained in a document signed by the
parties or contained in an exchange of letters, telegrammes or communications in another,
[visible and] sufficiently permanent form. (10) The reference in a contract to general
conditions containing an arbitration clause constitutes an arbitration agreement provided
that the contract is in writing. [However, an arbitration agreement also exists where one
party to a contract refers in its written offer, counter-offer or contract confirmation to
general conditions, or uses a contract form or standard contract, containing an arbitration
clause and the other party does not object, provided that the applicable law recognizes
formation of contracts in such manner.] (11)
P 278
P 279
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[….]
Arbitration agreement
Form, contents, parties, domain
Article 2 [Art. 7 in the final text]
37. The text of article 2 as considered by the Working Group was as follows:
[same as First Draft, supra].
38. It was agreed that an “arbitration agreement” should be defined as an “agreement”
rather than as an “undertaking” so as not to raise doubts as to the difference between an
agreement and an undertaking.
39. The prevailing view was that the term “parties” was preferable to “physical persons or
legal persons of private or public law.” It was observed that the term “parties” was
sufficiently clear and its use did not lead the Working Group to deal with questions of
capacity, which it had decided at its previous session not to consider in the model law.
40. It was also decided to delete the words “concerning a subject matter which could be
disposed of by agreement under the applicable law.” It was felt that there was no need to
refer to national law in this context. It was also noted that at a later stage the Working
Group would discuss the general question of choice of law. [Editors' Note: The question of
arbitrability is dealt with in Article 1(5).]
Article 3 [Art. 7 in the final text]
41. The text of article 3 as considered by the Working Group was as follows:
[same as First Draft, supra].
42. The prevailing view was to delete the words “concluded or evidenced.” It was felt that

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 they did not add any significant meaning to the provision. On the other hand it was noted
that the word “evidenced” could be interpreted to mean that an oral agreement evidenced
in writing would be considered to be a written arbitration agreement.
43. There was general agreement that the model law should contain a broad definition of
that which constituted a writing, possibly broader than existing texts on international
commercial arbitration. In this connexion it was agreed that the words “in another visible
P 279 and sufficiently permanent form” were useful in that they referred to new technological
P 280 means of communicating and storing data, including arbitration agreements. On the
other hand it was noted that the provision itself was unclear and it was not certain what
technological means would fall within its scope.
44. The idea of the second sentence of paragraph (2) referring to arbitration agreements
contained in general conditions was approved in principle. However, the Working Group
thought that the term “reference” expressing the manner in which an arbitration
agreement became a part of the contract was too vague. In this connexion several
approaches were suggested. Under one view the text of the arbitration agreement has to
be before both parties in order to bind them. Under another view a reference in the
contract between the parties to general conditions or other documents containing the
arbitration clause was sufficient. As a middle ground between these positions, it was
suggested that the document containing the arbitration agreement must be referred to in
the contract in such a way that it becomes a part of the contract. The view was also
expressed that in the resolution of this problem account must be taken of the fact that
general conditions are usually prepared by the economically stronger party.
45. In respect of the last sentence of paragraph (2), it was noted that the problem it
considers frequently arises in practice. However, the Working Group decided to delete this
provision since it raised difficult problems of interpretation.
46. The Working Group considered whether national rules outside this model law would
govern an oral arbitration agreement. The prevailing view was that this model law was
intended to govern all international commercial arbitration agreements.
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
B. Arbitration agreement
Article II [Art. 7 in the final text]
(1) [“Arbitration agreement” is an agreement by parties to] [In an “arbitration agreement”
parties may] submit to arbitration all or certain disputes which have arisen or which may
arise between them in respect of a defined legal relationship, whether contractual or not.
(2) The arbitration agreement, whether an arbitration clause in a contract or a separate
agreement, shall be in writing [, i.e.] [. An agreement is in writing if it is] contained in a
document signed by the parties or in an exchange of letters, telegrammes or other
communications [in sufficiently permanent form] [of equal evidential value]. The reference
in a contract to general conditions, or similar legal texts, containing an arbitration clause
constitutes an arbitration agreement provided that the contract is in writing and the
reference is such as to make that clause a part of the contract.
P 280
P 281
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[….]
B. Arbitration agreement
Article II [Art. 7 in the final text]
61. The text of article II as considered by the Working Group was as follows:
[same as Second Draft, supra].
Paragraph (1)
62. The Working Group was agreed that a provision along the lines of paragraph (1) should
be retained in the model law. As to the text placed between square brackets, some
support was expressed for the second alternative. The prevailing view, however, was in
favour of the first alternative since it was deemed useful to cast the provision in the form
of a definition.
63. Some support was also expressed in favour of deleting the words “defined legal” since
they might lead to an undesirable restriction. However, the prevailing view was to retain
those words which were also found in the 1958 New York Convention (art. II(1)).
64. Accordingly, the Working Group decided to retain paragraph (1) with the first
alternative. In that context, it was noted that that provision would be an appropriate place
for expressing the idea that the model law covered arbitration whether or not
administered by a permanent arbitral institution (see above, para. 51 [appearing in the
section on Article 2, p. 160 supra]).

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 Paragraph (2)
65. The Working Group was agreed that a provision along the lines of paragraph (2) should
be included in the model law.
66. There was some support for expressing the idea that the model law should not
invalidate arbitration agreements which did not comply with the requirement of written
form. Oral agreements which were common in some places and trades should not be
covered by the model law, thus leaving open their regulation and recognition under
another law. The prevailing view, however, was that the model law should govern all
international commercial arbitration agreements and, as provided in paragraph (2),
require that they be in writing. It was noted in that context that the model law, in its
P 281 present form, did not fully specify the legal consequences of non-compliance with that
P 282 form requirement. A suggestion was made to envisage the possibility of parties curing
such defect by participating in the arbitration proceedings — an idea, which might be
embodied in a waiver rule of more general application (e.g., article 30 of the UNCITRAL
Arbitration Rules).
[Editors' Note: A general waiver rule was ultimately included as Article 4 of the Model Law.]
67. As regards the first two alternatives in square brackets, some support was expressed for
each of them and additional drafting proposals were made. As regards the second set of
alternatives attempting to qualify “the other communications,” some support was also
expressed for each of them. However, the prevailing view was that neither of those
attempts was fully satisfactory. It was, therefore, suggested to adopt the first sentence
without any of the alternatives unless the Secretariat could find a more satisfactory
wording to express the idea, supported by all, that modern means of communication
should be included.
68. As regards the last sentence, some doubts were expressed as to its clarity. The Working
Group adopted a suggestion to redraft the sentence as follows: “The reference in a contract
to an arbitration clause contained in another legal text constitutes an arbitration
agreement provided that the contract is in writing and the reference is such as to make
that clause a term of the contract.”
THIRD DRAFT A/CN.9/WG.II/WP.45 (13 JUNE 1983)
C. Arbitration agreement and the courts Article II
[Art. 7 in the final text] (13)
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration,
whether or not administered by a permanent arbitral institution, all or certain disputes
which have arisen or which may arise between them in respect of a defined legal
relationship, whether contractual or not. An arbitration agreement may be in the form of
an arbitration clause in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing [whether] [. An agreement is in writing if it
is] contained in a document signed by the parties or in an exchange of letters, telex,
telegrammes or other means of telecommunication which would [preserve a record of the
agreement] [produce a record on paper automatically or at the option of the recipient].
The reference in a contract to an arbitration clause contained in another legal text
constitutes an arbitration agreement provided that the contract is in writing and the
reference is such as to make that clause a term of the contract.
P 282
P 283
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[….]
Article II [Art. 7 in the final text]
179. The text of article II as considererd by the Working Group was as follows:
[same as Third Draft, supra].
Paragraph (1)
180. The Working Group adopted paragraph (1).
Paragraph (2)
181. The Working Group adopted paragraph (2) subject to the following modifications. The
word “whether” was deleted and the wording between the following square brackets
retained. As regards the alternatives qualifying other means of tele-communication, the
Working Group adopted the wording “which provide a record of the agreement.” While
some concern was expressed about giving the provision contained in the last sentence too
wide a scope, the Working Group adopted this rule with the following wording: “The
reference in a contract to a document containing an arbitration clause constitutes an
arbitration agreement provided that the contract is in writing and the reference is such as
to make that clause a term of the contract.”

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 182. One representative expressed the concern that paragraph (2), if understood as a
mandatory provision, was too strict in requiring written form for the arbitration agreement
and any later modification of that agreement, for example in the not uncommon case
where the parties during arbitration proceedings agreed orally to submit a further issue,
not included in the original agreement, to the arbitral tribunal for decision.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Chapter II. Arbitration Agreement
Article 7. Definition and form of arbitration agreement
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration,
whether or not administered by a permanent arbitral institution, all or certain disputes
which have arisen or which may arise between them in respect of a defined legal
relationship, whether contractual or not. An arbitration agreement may be in the form of
an arbitration clause in a contract or in the form of a separate agreement.
P 283 (2) The arbitration agreement shall be in writing. An agreement is in writing if it is
P 284 contained in a document signed by the parties or in an exchange of letters, telex,
telegrammes or other means of telecommunication which provide a record of the
agreement. The reference in a contract to a document containing an arbitration clause
constitutes an arbitration agreement provided that the contract is in writing and the
reference is such as to make that clause a term of the contract.
FOURTH SECRETARIAT NOTE COMMENTS AND SUGGESTIONS ON THE FOURTH DRAFT
A/CN.9/WG.II/WP.50 (16 DECEMBER 1983)
D. Arbitration agreement and agreements by the parties on arbitral procedure (articles 4,
7, 19)
12. The Working Group may wish to consider the relationship between the term “arbitration
agreement” and the various references in the model law to agreements by the parties
relating to the composition of the arbitral tribunal or to the arbitral procedure. While
arbitration agreements frequently contain such procedural stipulations, in particular by
reference to standard arbitration rules, it is not uncommon to agree on most or at least
some procedural issues only when a dispute arises, or even during the arbitral
proceedings, that is, long after the conclusion of the agreement to submit future disputes
to arbitration. This varied practice leads to two suggestions for consideration by the
Working Group.
13. The first idea is to use the term “arbitration agreement” as defined in article 7(1) in its
literal and rather narrow sense, i.e. agreement to submit disputes to arbitration. This basic
agreement would be the foundation of the arbitral tribunal's jurisdiction, to the exclusion
of court jurisdiction, irrespective of whether it is accompanied by any agreement on the
procedure. The term “arbitration agreement” should then not be used when the emphasis
is on the procedural stipulations (as, e.g., in article 4). An important practical consequence
of such interpretation would be that article 7(2) would require written form only for that
basic agreement, including any later determination or modification of the claims or
dispute submitted, but not for any procedural agreements by the parties.
14. The second idea would be to require that the parties conclude any agreement on the
arbitral procedure, if not already included in the arbitration agreement, before the first or
sole arbitrator is appointed. The reason for such time-limit would be that the rules of
procedure should be clear when that procedure starts and that any arbitrator should know
from the beginning under what rules he is expected to perform his function. It may be
recalled that this very reason led the Working Group to include this time-limit in article
26(1). (*) The suggestion here would be to adopt the same limit on a more general level, for
example, in the basic provision of article 19(1), possibly with the proviso “unless otherwise
provided in this Law.”
P 284
P 285
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[….]
Chapter II. Arbitration Agreement
Article 7
17. The text of article 7 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
18. The Working Group adopted that article.
19. The Working Group was agreed that the last part of the last sentence of paragraph (2)
should not be understood as requiring an explicit reference to the arbitration clause
contained in a document referred to.
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)

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 Chapter II. Arbitration Agreement
Article 7. Definition and form of arbitration agreement
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration,
whether or not administered by a permanent arbitral institution, all or certain disputes
which have arisen or which may arise between them in respect of a defined legal
relationship, whether contractual or not. An arbitration agreement may be in the form of
an arbitration clause in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing. An agreement is in writing if it is
contained in a document signed by the parties or in an exchange of letters, telex,
telegrams or other means of telecommunication which provide a record of the agreement.
The reference in a contract to a document containing an arbitration clause constitutes an
arbitration agreement provided that the contract is in writing and the reference is such as
to make that clause part of the contract.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[….]
Article 7. Definition and form of arbitration agreement
Article as a whole
P 285 1. As to the cases where the parties make use of a permanent arbitral institution which
P 286 administers arbitrations in accordance with its procedural rules, the Federal Republic
of Germany suggests making clear that these procedural rules take precedence over the
pertinent provisions of the model law unless a rule is in conflict with an imperative
provision of the model law in which case this imperative provision would prevail.
2. Norway, raising the question of whether an arbitration agreement is binding upon the
estate in case of bankruptcy or a similar status arising from insolvency, presumes that it
has not been the intention of the model law to deal with this question and that the answer
will depend upon the legal system of the place where the bankruptcy or similar
proceedings take place.
3. Poland, approving of the provisions of article 7, notes that the model law does not deal
with the cases where a contract is concluded by an exchange of printed forms containing
different arbitration clauses (the so called “battle of forms”). To avoid uncertainty in these
cases, Poland suggests including in the model law a provision giving effect to the
arbitration clauses proposed by the parties in so far as the clauses coincide. Normally it
would follow from both clauses that any dispute should be settled by an arbitral tribunal
to the exclusion of State courts. In such cases, it is suggested, the questions not agreed
upon by the parties should be governed by the model law.
Article 7, paragraph (2)
4. The United States supports the provisions of article 7, particularly the definition that “an
agreement is in writing if it is contained in a document signed by the parties or in an
exchange of letters, telex, telegrams or other means of telecommunication which provide a
record of the agreement,” believing that this definition has the necessary flexibility to take
into account the wide variety of ways business in different trades is conducted and the
modern means of communication utilized – now and in the future. The United States
interprets the phrase “other means of telecommunication” to include all forms of
electronic and computer techniques that provide a written record. While it is noted that
the wording of the draft text is not identical to the definition in the 1958 New York
Convention, it is believed that it is consistent with and expresses the purpose of the
Convention.
5. Norway, while observing that paragraph (2) of this article suggests that an arbitration
clause in a contract contained in a document signed by only one of the parties will not be
recognized as binding, notes that arbitration clauses are frequently found in bills of lading
which are usually not signed by the shipper. Nevertheless, such clauses are generally
considered binding on the shipper and subsequent holders of the bill of lading, although
the situation is somewhat more complicated if the bill of lading refers in general to
conditions set out in a charter-party (e.g. article 22(2) of the United Nations Convention on
the Carriage of Goods by Sea, 1978 (Hamburg Rules). (20) It is suggested that some, but not
all, such cases where the signature of one of the parties should suffice will be taken care of
by the general provision of article 1(1) of the model law providing that the model law
applies subject to any multilateral or bilateral agreement. Nevertheless, Norway proposes
to add the following sentence at the end of paragraph (2):

P 286 “If a bill of lading or another document, signed by only one of the parties, gives
P 287 sufficient evidence of a contract, an arbitration clause in the document, or a
reference in the document to another document containing an arbitration
clause, shall be considered to be an agreement in writing.”
6. Argentina is of the view that the last sentence of paragraph (2) according to which a

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 reference to a document containing an arbitration clause should be such as to make that
clause part of the contract, should contain a requirement, or at least be interpreted as
containing a requirement, that the party against whom the arbitration clause is invoked
has or ought to have been aware of the incorporation of the clause in the contract. The
objective of this requirement or interpretation would be to protect the party from the
application of an arbitration clause which is not usual in a particular trade if that party
could not be expected to know the content of the document being referred to.
7. UNCTAD [United Nations Conference on Trade and Development] expresses concern that
paragraph (2) of this article, by making possible the incorporation of an arbitration clause
in a contract by reference to a document containing the clause, could give rise to
difficulties in practice.
8. Austria considers that, in paragraph (2), there could be a provision according to which an
arbitration clause providing for the dispute to be settled by a court of arbitration of a
commodity exchange is also valid if the contract (letter) containing the arbitration clause
has not been rejected.
9. The Republic of Korea proposes to redraft the second sentence of paragraph (2) as
follows:
“The reference in a contract to a document containing an arbitration clause as a
part of the contract constitutes an arbitration agreement provided that the
contract is in writing.”
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[….]
Article 7. Definition and form of arbitration agreement
Article as a whole
1. AALCC [Asian-African Legal Consultative Committee] recommends splitting this article into
two articles, one dealing with the definition of arbitration agreement and the other with
the form of the arbitration agreement.
Article 7, paragraph (1)
2. In the opinion of Canada, the word “defined” in connection with the words “legal
P 287 relationship” appears to raise a question. The expression “defined legal relationship” does
P 288 not convey any particular concept in common law, and it raises a question as to where
the legal relationship was defined — in a statute, a contract or elsewhere. It is, therefore,
asked whether this word is necessary.
3. AALCC recommends replacing in paragraph (1) the expression “defined legal
relationship” by the expression “defined legal issues” or “defined legal disputes.”
Article 7, paragraph (2)
4. In the opinion of Canada, paragraph (2) should provide for paperless transactions, i.e.
automatic data processing in international trade.
5. Canada observes that where a contract incorporates the terms of another contract and
that other contract contains an arbitration clause, there has in practice been uncertainty
as to whether the arbitration clause has been incorporated in the first contract. It is
assumed that this incorporation by reference is now covered by the language contained in
paragraphs (1) and (2), but if there is any doubt, it should be made explicit that it is so
covered by the article. One way to do this might be to add language to paragraph (2) to the
effect that where a contract incorporates the terms of another contract and the other
contract contains an arbitration clause, the arbitration clause shall be deemed to be
incorporated in the first contract.
6. AALCC, regarding the question whether a signature on a document should be handwritten
or could be effected by mechanical means, recommends that the mode of signature should
be left to the national laws.
7. Yugoslavia suggests supplementing this article so as to enable the parties, in spite of non
—compliance with the requirement of written form, to validate the arbitration agreement
(e.g. by taking part in a hearing on the substance of the dispute without objecting, or by a
statement of the defendant, entered in the record of the arbitration, that he submits to the
jurisdiction of the arbitral tribunal). The provision on the written form contained in this
article should make clear that it should not be interpreted as a provision aimed at
protecting public interests but as one aimed at protecting private interests. It is observed
that the rules requiring evidence of the arbitration agreement in the exequatur
proceedings (article 35) can be softened by providing that the party requesting recognition
or enforcement must give evidence of a valid submission of the other party to arbitration,
which does not necessarily mean that a written arbitration agreement has to be presented
as evidence.
Proposed addition to article 7

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 8. ICC, noting that the model law is intended to be enacted in countries with different
judicial systems and rules of interpretation, expresses the view that the jurisdiction of
arbitral institutions ought to be preserved in the clearest possible terms, and that there
should be a provision on the possible conflict between the rules of the model law and the
rules of the institution. It is proposed adding the following paragraph to article 7:

P 288 “(1 bis) Where the parties have agreed to refer all or any of the disputes
P 289 specified in article 7(1) to arbitration administered by a permanent arbitral
institution, the arbitration shall be conducted in accordanc with, and be
governed by, the rules of such arbitral institution in so far as these are not
contrary to, or inconsistent with, the mandatory provisions of this Law, which, in
case of conflict, shall prevail.”
A/CN.9/263/ADD.2 (21 MAY 1985) (UK COMMENTS)
The form of the arbitration agreement
16. Article 7(2), in requiring a document signed by the parties or an exchange of letters or
telecommunications recorded in a tangible form, is not sufficient to encompass trade
practice. A number of valid arbitration agreements are evidenced in documents not signed
by the parties. Perhaps the most important of these are bills of lading. The United Kingdom
prefers the approach adopted in Article 17 of the Brussels Convention of 1968 on
Jurisdiction and the Enforcement of [Civil and Commercial] Judgments, as amended, [O.J.
Eur. Comm. 1978, L 304/77,] which refers to agreements which are “in writing or, in
international trade or commerce, in a form which accords with practices in that trade or
commerce of which the parties are or ought to have been aware.”
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 7. Definition and form of arbitration agreement
[….]
Definition (and recognition), paragraph (1)
1. Paragraph (1) describes the important legal instrument which forms the basis and
justification of an arbitration. The term “arbitration agreement” is defined along the lines
of article II(1) of the 1958 New York Convention; as more clearly expressed in that
Convention, there is an implied guarantee of recognition which goes beyond a mere
definition.
2. The model law recognizes not only an agreement concerning an existing dispute
(“compromise”) but also an agreement concerning any future dispute (“clause
compromissoire”). Inclusion of this latter type of agreement seems imperative in view of its
frequent use in international arbitration practice and will, it is hoped, contribute to global
unification in view of the fact that at present some national laws do not give full effect to
this type.
3. The model law recognizes an arbitration agreement irrespective of whether it is in the
form of an arbitration clause contained in a contract or in the form of a separate
agreement. Thus, any existing national requirement that the agreement be in a separate
document would be abolished. By the nature of things, an arbitration clause in a contract
would be appropriate for future disputes, while a separate agreement is suitable not only
for an existing dispute but also for any future disputes.
P 289
P 290
4. The model law recognizes an arbitration agreement if the existing or future dispute
relates to a “defined legal relationship, whether contractual or not.” It is submitted that
the expression “defined legal relationship” should be given a wide interpretation so as to
cover all non-contractual commercial cases occurring in practice (e.g. third party
interfering with contractual relations; infringement of trade mark or other unfair
competition).
5. The model law provisions on the arbitration agreement do not retain the requirement,
expressed in article II(1) of the 1958 New York Convention, that the dispute concern “a
subject-matter capable of settlement by arbitration.” However, this does not mean that
the model law would give full effect to any arbitration agreement irrespective of whether
the subject-matter is arbitrable. The Working Group, when discussing pertinent proposals,
recognized the importance of the requirement of arbitrability but saw no need for an
express provision. (32) It was noted, for example, that an arbitration agreement covering a
non-arbitrable subject-matter would normally, or at least in some jurisdictions, be
regarded as null and void and that the issue of non-arbitrability was adequately
addressed in articles 34 and 36. (33) In this connection, it may be noted that the Working
Group decided at an early stage not to deal with the material validity of the arbitration
agreement and not to attempt to achieve unification or at least certainty as to which
subject-matters are non-arbitrable, either by listing them in the model law or calling upon
each State to list them exclusively in “this Law.” (34)
Requirement of written form, paragraph (2)

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 6. The model law follows the 1958 New York Convention in requiring written form, although,
in commercial arbitration, oral agreements are not unknown in practice and are
recognized by some national laws. In a way, the model law is even stricter than that
Convention in that it disallows reliance on a “more favourable provision” in the subsidiary
national law (on domestic arbitration), as would be possible under that Convention by
virtue of its article VII(1). The model law is intended to govern all international commercial
arbitration agreements and, as provided in article 7(2), requires that they be in writing. (35)
However, non-compliance with that requirement may be cured by submission to the
arbitral proceedings, i.e. participation without raising the plea referred to in article 16(2).
(36)
P 290
P 291
7. The definition of written form is modeled on article II(2) of the 1958 New York Convention
but with two useful additions. It widens and clarifies the range of means which constitute a
writing by adding “telex or other means of telecommunication which provide a record of
the agreement,” in order to cover modern and future means of communication.
8. The second addition, contained in the last sentence, is intended to clarify a matter,
which, in the context of the 1958 New York Convention, has led to problems and divergent
court decisions. It deals with the not infrequent case where parties, instead of including an
arbitration clause in their contract, refer to a document (e.g. general conditions or another
contract) which contains an arbitration clause. The reference constitutes an arbitration
agreement if it is such as to make that clause part of the contract and, of course, if the
contract itself meets the requirement of written form as defined in the first sentence of
paragraph (2). As the text clearly states, the reference need only be to the document; thus,
no explicit reference to the arbitration clause contained therein is required. (37)
SUMMARY RECORD A/CN.9/SR.307–.308, .311, .320, .332
[4 June 1985, 9:30 A.M., A/CN.9/SR.307]
Article 2
[….]
60. Mr. STROHBACH (German Democratic Republic) proposed that the words “whether ad
hoc or in arbitration administration by an institution” should be added to subparagraph
(a).
61. Mr. HERRMANN (International Trade Law Branch) pointed out that article 7(1) used the
words “whether or not administered by a permanent arbitral institution” in order to make
the clarification which the representative of the German Democratic Republic sought to
add to subparagraph (a). He suggested that, in order to meet the suggestion of the German
Democratic Republic, the Commission might wish either to use the wording in article 7(1) or
simply make a reference to that article.
62. Mr. STROHBACH (German Democratic Republic) said that he felt the clarification should
be spelt out expressly in the definitions.
63. It was so agreed.
[4 June 1985, 2:30 P.M., A/CN.9/SR. 308]
Article 2. Definitions and rules of interpretation (continued)
[….]
10. Mr. BARRERA GRAF (Mexico) suggested that article 2 should contain the definition of
arbitration agreement which at present appeared in article 7(1). It was also necessary to
include in article 2 some definition of the concept of “award,” which was used in article
16(3) and article 34(1).
P 291
P 292
[….]
13. [The CHAIRMAN (Mr. LOEWE (Austria)) noted that there had been] a proposal to add two
other definitions to article 2. Definitions of the terms in question did appear in the 1961
Geneva Convention [European Convention on International Commercial Arbitration, 484
U.N.T.S. 349,] but they now made rather strange reading.
14. Mr. HERRMANN (International Trade Law Branch) recalled that when the Working Group
had discussed article 7(1) it had had before it two draft versions, one in the form of a
definition, which had become the present text, and the other closer to article II(1) of the
1958 New York Convention. There were advantages in leaving article 7(1) in its present form.
The provisions in article 7, paragraphs 1 and 2, and in article 8(1) would appear in the same
order as in the New York Convention.
[….]
16. THE CHAIRMAN observed that […. the] proposal to incorporate the definition of
arbitration agreement in article 2 did not appear to have attracted much support. […]
[6 June 1985, 9:30 a.m., A/CN.9/SR. 311]

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 Article 7. Definition and form of arbitration agreement
6. Mr. SEKHON (India) proposed a drafting change, to the effect that article 7(1) should read
“… all or any existing or future disputes between them.…”
7. Mr. GRIFFITH (Australia) said that paragraph (1) contained a definition, which properly
belonged in article 2.
8. The CHAIRMAN [Mr. LOEWE (Austria)] said that a suggestion to transfer the definition to
article 2 had been made by Mexico in the discussion on that article [Summary Record,]
A/CN.9/SR.308, para. 10), but had not met with support.
9. Mr. STALEV (Observer for Bulgaria) asked whether a statement of claim and the reply to
that claim submitted to an arbitral tribunal would constitute an exchange of letters under
article 7(2) and thus prove the parties' willingness to refer their dispute to arbitration. He
proposed that the description of an agreement in writing given in article 7(2) should be
extended to cover an extract from the record of an arbitral tribunal. Such a provision
might assist States in a liberal interpretation of the 1958 New York Convention in regard to
the question of what constituted an agreement in writing.
10. The CHAIRMAN said that he did not think such an extract would constitute an agreement
in writing unless it was signed by the parties.
11. Mr. HERRMANN (International Trade Law Branch) said that in his view a statement of
claim and the reply to that claim would constitute an exchange of letters for the purposes
P 292 of the article. He agreed that an extract from the record of an arbitral tribunal would be an
P 293 agreement in writing if it was signed by the parties. If the parties had made no specific
arbitration agreement, either of them would be entitled to challenge the jurisdiction of the
arbitral tribunal under article 16(2), and failure to do so would indicate acceptance of the
arbitral tribunal's authority.
12. Mrs. VILUS (Yugoslavia) reiterated her Government's written suggestion ([Sixth
Secretariat Note (Government Comments),] A/CN.9/263/ Add.1, [Art. 7,] para. 7) that the
model law should allow a party to validate an arbitration agreement by certain acts which
were not in writing. If that suggestion was adopted, it would be necessary to include in
article 35 a provision that a party must prove that the other party had accepted the
authority of the arbitral tribunal.
13. The Government of Argentina had expressed the written view ([Sixth Secretariat Note
(Government Comments),] A/CN.9/263, [Art. 7,] para. 6) that the incorporation of an
arbitration clause into a contract by reference, provided for in paragraph (2), should be
made subject to the requirement that the party against whom the arbitration clause was
invoked should be aware that it had been incorporated into the contract. That was
especially relevant to contracts for the sale of commodities. Her delegation considered
that the contract itself should inform the parties of the incorporation of the clause.
14. Mr. ILLESCAS ORTIZ (Spain) said that the Commission had two separate problems before
it: the form of the arbitration agreement and the proof of its existence before the arbitral
tribunal, and it was important not to confuse the two.
15. Mr. NEMOTO (Observer, Asian—African Legal Consultative Committee) said that a written
document was not sufficient proof of an act under some legal systems; in Japan, for
instance, the document must bear an official seal. In his view, the matter was best left to
national legislation.
16. Mr. BONELL (Italy) said that the model law could only provide general guidelines about
what constituted an agreement in writing. He supported the United Kingdom's written
proposal ([Sixth Secretariat Note (UK Comments),] A/CN.9/263[/Add.2, Art. 7,] para. 16) that
the paragraph should use the formulation employed in article 17 of the 1968 Brussels
Convention on Jurisdiction and the Enforcement of [Civil and Commercial] Judgements, as
amended [O.J. Eur. Comm. 1978, L 304/77].
17. Mr. HOLTZMANN (United States of America) supported the Bulgarian proposal. It gave
expression to the legal concept that certain conduct — in the present case participation in
the proceedings — constituted evidence of agreement. He agreed with the view expressed
by the Italian representative.
18. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that Norway had
made a written proposal for paragraph (2) ([Sixth Secretariat Note (Government
Comments),] A/CN.9/263, [Art. 7,] para. 5); it might deal adequately with bills of lading, but
P 293 a more general clause was needed. The best possibility seemed to be offered by article 17
P 294 of the 1968 Brussels Convention, as amended. It was important to establish that
contracts effected by the parties in a manner acceptable in trade usage should constitute
sufficient agreement in writing for the purpose of the paragraph (2). He urged the
Commission to give serious consideration to that point and reflect it in the paragraph.
19. Mr. RUZ1CKA (Czechoslovakia) said he supported the Bulgarian proposal which had
practical merits.
20. Mr. HUNTER (Observer, International Bar Association) said he fully agreed with the idea
of extending the scope of what could constitute an arbitration agreement. He would
nevertheless caution the Commission against going too far in that direction, because a

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 problem might arise if an arbitration took place in a country which had adopted the model
law and a party sought to enforce it under the 1958 New York Convention in a country which
had not.
21. Mr. AYLING (United Kingdom) said that article 17 of the 1968 Brussels Convention, as
amended, solved a problem common in international trade and, as far as his delegation
was aware, was the only example of its kind. There might, of course, be better ways of
solving it.
22. Mr. HOLTZMANN (United States of America) endorsed the comments made by the
observer for the Chartered Institute of Arbitrators. He appreciated the words of caution
voiced by the Observer for the International Bar Association about the problem which
might arise with enforcement under the New York Convention. That problem might be less
serious than it seemed, however, since the definition of an agreement in writing in that
Convention (article II(2)) stated that it should “include,” not that it should “be,” the kinds of
agreement there specified.
23. Mr. SCHUETZ (Austria) said that he shared the cautious approach recommended by the
observer for the International Bar Association. The need for caution was in no way
diminished by what the United States representative had said, particularly since the
German version of article II(2) of the New York Convention had a very mandatory form. The
adoption of the Bulgarian proposal would remove the need for written agreement, a
requirement which protected the parties, and he could not accept it unless there was a
corresponding requirement that the parties to an arbitration should be informed in
advance by the arbitral tribunal that either of them could insist on a written agreement if
he wished.
24. Mr. BONELL (Italy), speaking on the Bulgarian proposal, said that there was no need for
the model law to include a specific requirement of express agreement before or during the
arbitration procedure, particularly if, once the procedure had started, the parties behaved
in a way that unequivocally led to the conclusion that they agreed to arbitration. He
thought the model law should perhaps lay down that principle explicitly. He did not think
that the adoption of the Bulgarian proposal would create any difficulties in regard to the
operation of the New York Convention.
25. With regard to the idea of using the wording of the 1968 Brussels Convention, as
amended, he thought that consideration should be given to the possibility of establishing
P 294 some uniformity among the various provisions concerning written-form requirements for
P 295 jurisdiction and arbitration clauses. Article 17 of the revised version of the Brussels
Convention was the most advanced and developed way of addressing a very complex
problem.
26. Mr. ROEHRICH (France) said that he agreed with the remarks of the Austrian
representative about the requirement of written form. It was true that as far as
international trade agreements were concerned the 1968 Brussels Convention, as
amended, dispensed with it in favour of the form sanctioned by trade practice, but it did
so in connection with choice of jurisdiction. The Commission, however, was dealing with the
more important question of proof of the parties' agreement to withdraw their dispute from
the jurisdiction of a particular State and to have it settled instead by a conventional
procedure. The comment made by the United States representative with regard to the
English text of article II(2) of the 1958 New York Convention did not apply to the French
version, which had the same formulation as the German version. His delegation favoured a
conservative approach, based on the need for written agreement, to the way in which the
model law should deal with the question of proof of the existence of an arbitration
agreement. In any case it would prefer to see the Bulgarian proposal in writing. It could not
support either the Norwegian or the Austrian written suggestions ([Sixth Secretariat Note
(Government Comments),] A/CN.9/263, [Art. 7,] para. 5 and […] para. 8 respectively).
27. Mr. MOELLER (Observer for Finland) said that if the parties agreed to arbitration, the
arbitrator would have no difficulty in obtaining their consent in writing. An extract of the
record of the arbitral proceedings would not provide the same proof and he would prefer
the model law not to mention it.
28. Mr. STALEV (Observer for Bulgaria) said that since means of telecommunication were
acceptable forms of proof he saw no reason why records of the arbitral proceedings should
not be acceptable as well.
29. Mr. HJERNER (Observer, International Chamber of Commerce) supported the Bulgarian
proposal but said that the Yugoslav proposal had merits as well. The basic philosophy of
the two proposals was the same, namely that a party should not be able to object to the
tribunal's jurisdiction if he had taken part in arbitral proceedings for a long time without
objecting to them.
30. Mr. LEBEDEV (Union of Soviet Socialist Republics) also supported the Bulgarian
proposal, which he found sound in ideas and substance.
31. The CHAIRMAN said that there appeared to be widespread support for the Bulgarian
proposal. Unless he heard any objections, he would take it that the Commission approved
it. He suggested that the Yugoslav proposal should be taken up under article 16.
32. It was so agreed.

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 33. Mr. MOELLER (Observer for Finland) said that if the notion of an agreement in writing
was broadened, situations might arise in which an award could not be enforced under the
New York Convention, but the notion should at least be widened to include a reference to
P 295 bills of lading. It would not be a good idea to go as far as using the wording of article 17 of
P 296 the 1968 Brussels Convention, as amended, since that would produce differing
interpretations of the model law in different States.
34. Mr. MTANGO (United Republic of Tanzania) said that, while he appreciated the aim of
expanding the notion of written agreement to include agreements in a form established by
trade practice, the Commission ought to recognize that such practices were not necessarily
established universally. It was doubtful in fact whether in many developing countries there
would be sufficient awareness of such forms of trade practices which were established
primarily in developed countries. The model law should be easy to adopt in most countries
if its provisions included only those notions which were familiar and uncontested. Article 7
should be as clear as possible. He therefore favoured the existing, narrower formulation of
the notion.
35. Mr. MAGNUSSON (Sweden) said that the notion of an agreement in writing should be
broadened, but he too had doubts about that being done by the use of the wording from
the Brussels Convention, which went too far. The Norwegian proposal might provide the
best solution and he suggested that a drafting group should consider it.
36. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that the interpretation of the
provision in the last sentence of paragraph (2) was not touched on in the Secretariat's
commentary ([Seventh Secretariat Note,] A/ CN.9/264). Was he correct in thinking that only
a written form of contract, not signed by both parties, was sufficient for the application of
that sentence? If that was the case, the sentence might justify the view that an arbitration
clause in a bill of lading signed only by the carrier was binding on the receiver of the goods
as well.
37. Mr. HERRMANN (International Trade Law Branch) said that, as far as he knew, the point
had not been considered by the Working Group.
38. Mr. ROEHRICH (France) said that he thought the Working Group on International
Contract Practices had intended the last sentence of paragraph (2) to refer only to model
contracts and general conditions. The Norwegian proposal went too far: a reference in a
bill of lading to an arbitration agreement should not constitute a valid arbitration
agreement unless signed by both parties. If certainty as to the existence of an arbitration
agreement was desired, there was no obstacle to concluding one. The present text was
reasonable and should remain as it was.
39. Mr. TORNARITIS (Cyprus) said that there was unanimity on one point: there could be no
arbitration without the agreement of the parties. But how was that agreement to appear? If
in writing, would that mean that without the writing there was no agreement or that the
purpose of the writing was simply to prove the agreement? Without departing from the
idea of a writing, the Commission might provide that in certain cases a writing might be
presumed to have existed, along the lines of the theory of the “lost grant” in English law. If
at an arbitral tribunal the parties raised no objection to arbitration, it could be argued
that they agreed to it by recourse. If the Working Group's intention had been that certain
presumptions of the existence of the writing might be provided, his suggestion would meet
the situation.
P 296
P 297
40. Mrs. DASCALOPOULOU-LIVADA (Observer for Greece) said that she shared the misgivings
voiced about using the wording of the Brussels Convention. It used the words “or ought to
have been aware,” which were particularly dangerous for an instrument that was intended
to have as wide an application as possible. The text should remain unchanged.
41. Mr. ILLESCAS ORTIZ (Spain) said that arbitral proceedings should be conducted on the
basis of an agreement between the parties with regard to the settlement of their disputes.
A unilateral statement stemming from a pre—existing contract should not be accepted as a
basis for arbitration because of the awkward consequences that would arise if one of the
parties rejected the statement. His delegation favoured the text as already expanded.
42. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that the problem
was not that of deciding what constituted an agreement or even an agreement in writing,
but of determining whether the agreement was signed by both parties within the meaning
of article 7. In present—day trade there were many contracts, even in writing, that were not
signed by both parties. To draft the model law so narrowly as to exclude them from
arbitration under the model law would be far too backward looking. The representative of
the Soviet Union had suggested that they might come under the third sentence of
paragraph (2), but the fact remained that the second sentence called for signature by both
parties. One way of meeting that requirement might be to expand the last sentence of
paragraph (2) along the lines of the Norwegian suggestion.
43. The CHAIRMAN said that the Norwegian proposal implied that acceptance of a bill of
lading amounted to an agreement on arbitration. That was not merely a question of
drafting.
44. Mr. SAMI (Iraq) said that his delegation hesitated to see paragraph (2) amended unless

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 answers could be found to several questions. A document signed by one party and
indicating his willingness to resort to arbitration amounted to an offer that lay open for
acceptance. Was the second party to indicate acceptance in writing or could acceptance
be tacit? And what legal interpretation would be put on his silence? An arbitration
agreement implied the consent of the parties to settle disputes amicably. Such an
agreement must be explicit and in writing.
45. Mr. RUZICKA (Czechoslovakia) said that article 7 should state the principle that an
arbitral tribunal might settle disputes only on the basis of, and within the framework of, an
arbitration agreement. That principle was implicit in article 34, which dealt with the
consequences of applying of [sic] the principle.
46. The CHAIRMAN suggested that the Commission should consider that principle in
connection with arbitral procedure. It could subsequently decide to insert the principle in
article 7 if it wished. He noted that the Commission had been unable to reach agreement
on changing the draft text of the article, apart from accepting the Bulgarian proposal. He
P 297 suggested that the representative of Bulgaria and the Secretariat should meet to redraft
P 298 the second sentence of paragraph (2) and also incorporate the drafting suggestion made
by India with regard to paragraph (1).
47. It was so agreed.
48. Mr. HJERNER (Observer, International Chamber of Commerce) noted that, although no
agreement had been reached on the Norwegian proposal, a substantial number of
speakers had commented favourably on it.
[12 June 1985, 2:00 p.m., A/CN.9/SR.320]
Article 7. Definition and form of arbitration agreement (continued)
Article 7(2) (A/CN.9/XVIII/CRP.7) (*)
5. Mr. PENKOV (Observer for Bulgaria), introducing the proposed amendment to the second
sentence of article 7(2), said, in all logic, an exchange of statements in which neither party
denied the existence of an agreement had to be regarded as constituting an agreement in
writing. Moreover, in some countries that was one of the rules of arbitration, so that
difficulties would arise if the model law did not refer to the point. He had the impression
that the majority favoured that approach.
6. Mr. GRIFFITH (Australia) suggested that the concluding phrase should be recorded to
read: “or in an exchange of statements of claim and defence one party alleges and the
other party does not deny the existence of an agreement.”
7. Mr. SZURSKI (Observer for Poland) said that the intention of the proponents of the
amendment would be made clearer if the concluding phrase read: “or if in an exchange of
statements of claim and defence neither party has denied the existence of an agreement.”
8. Mr. SEKHON (India) supported the Australian suggestion.
9. Mr. HOLTZMANN (United States of America) said that he could accept either the Polish or
the Australian formulation.
10. The CHAIRMAN [Mr. LOEWE (Austria)] suggested that the proposal in document
A/CN.9/XVIII/CRP.7 should be sent to the drafting committee for amendment along the
lines suggested by the Australian representative.
11. It was so agreed.
P 298
P 299
[20 June 1985, 3:00 p.m., A/CN.9/SR.332]
Article 7 [as revised by the Drafting Group (*) ]
16. Mr. BOGGIANO (Observer for Argentina) said that in the second sentence of the Spanish
version of paragraph (2), the word “combatida” should be replaced by the word “negada.”
17. Mr. GRIFFITH (Australia) said that the word “another” at the end of the second sentence
of the English version of paragraph (2) suggested that the text provided for the existence of
more than two parties; that was not so with the French version, however, which used the
words “l'autre.”
18. Mr. HOLTZMANN (United States of America) said that the drafting group had intended to
allow for the involvement of a third party. For the sake of clarity, the English version should
be amended to read “another party.”
19. The CHAIRMAN [Mr. LOEWE (Austria)] said that the model law had been conceived on the
basis of the involvement of two parties.
20. Mr. RICKFORD (United Kingdom) suggested that the text should be amended to read
“the other or others” in order to provide for the possibility that more than two parties
would be involved.
21. Mr. ROEHRICH (France) said that the French version correctly reflected what the
Chairman had said. He noted that other articles spoke of “a party” or “the other party.” It
would be unwise for the Commission to enter into the complex area of multiparty

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 arbitration. In any case the present text did not exclude the possibility of there being
several parties on one side and several on the other.
22. The CHAIRMAN said that there did not seem to be any difference of opinion as to the
substance of the provision and he therefore suggested that the text should remain
unchanged.
23. Article 7 was adopted without change, subject to the correction in the Spanish version
requested by the Observer for Argentina.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 2. Definitions and rules of interpretation
[….]
Suggestions for additional definitions
46. The Commission adopted the proposal to express in article 2, possibly before the
definition of “arbitral tribunal” in subparagraph (a), that the term “arbitration” meant any
arbitration whether or not administered by a permanent arbitral institution.
P 299
P 300
47. The Commission did not accept a proposal to move the definition of “arbitration
agreement,” set forth in article 7(1), to article 2.
[….]
Article 7. Definition and form of arbitration agreement
82. The text of article 7 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
Paragraph (1)
83. The Commission adopted the paragraph; it referred to its Drafting Group a suggestion to
replace the words “all or certain disputes which have arisen or which may arise” by the
words “any existing or future dispute.”
Paragraph (2)
84. The Commission noted that paragraph (2) did not cover cases, encountered in practice,
where one of the parties did not declare in writing his consent to arbitration. Practical
examples, which were recognized by some national laws as constituting valid arbitration
agreements, included the arbitration clause in a bill of lading, in certain commodity
contracts and reinsurance contracts which customarily become binding on a party by oral
acceptance, and in other contracts which were concluded by a written offer and an oral
acceptance or by an oral offer and a written confirmation.
85. Various suggestions were made with a view to expanding the scope of paragraph (2) in
order to accommodate all or at least some such cases. One suggestion was to adopt the
solution found in the 1978 version of article 17 of the 1968 Brussels Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, [O.J. Eur.
Comm. 1978, L 304/77,] which referred to agreements “in writing or, in international trade or
commerce, in a form which accords with practices in that trade or commerce of which the
parties are or ought to have been aware.” While there was considerable support for that
suggestion, which was said to reflect the current trend towards a more liberal approach to
the question of form, the Commission, after deliberation, did not accept it. It was felt that
a more modest approach was appropriate in the different context of validity as to form of
arbitration agreements, because the reference to trade usages was too vague to ensure
uniform interpretation and entailed the possible risk that a consent to arbitration would
be imposed upon a party unfamiliar with the customs prevailing in certain trades or
regions.
86. Another suggestion was to add at the end of paragraph (2) the following sentence: “If a
bill of lading or another document, signed by only one of the parties, gives sufficient
evidence of a contract, an arbitration clause in the document, or a reference in the
document to another document containing an arbitration clause, shall be considered to be
an agreement in writing.” While considerable support was expressed for the suggestion, the
Commission, after deliberation, did not adopt the additional wording because it appeared
P 300 unlikely that many States would be prepared to accept the concept of an arbitration
P 301 agreement which, although contained in a document, was not signed or at least
consented to in writing by both of the parties. It was also pointed out that there might be
difficulties with regard to the recognition and enforcement under the 1958 New York
Convention of awards based on such agreements.
87. A more limited suggestion was to include those cases where parties who had not
concluded an arbitration agreement in the form required under paragraph (2) nonetheless
participated in arbitral proceedings and where that fact, whether viewed as a submission
or as the conclusion of an oral agreement, was recorded in the minutes of the arbitral
tribunal, even though the signatures of the parties might be lacking. It was pointed out in
support of the suggested extension that, although awards made pursuant to arbitration
agreements evidenced in that manner would possibly be denied enforcement under the

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 1958 New York Convention, adoption of that extension in the model law might eventually
lead to an interpretation of article II(2) of that Convention whereby arbitration agreements
evidenced in the minutes of arbitral tribunals would be acceptable. It was noted that, if
the suggestion were adopted, the condition of recognition and enforcement laid down in
article 35(2) of the model law, i.e. supply of original or certified copy of the arbitration
agreement referred to in article 7, might have to be modified to accommodate that
instance of submission (cf. [the Seventh Secretariat Note,] document A/CN.9/264, note 91
[appearing in the section on Article 35, p. 1040 infra]). The Commission, after deliberation,
decided to extend the scope of paragraph (2) along the lines of the suggestion.
88. To implement that decision the Commission decided to add to the end of the second
sentence of article 7(2) such wording as “or in an exchange of statements of claim and
defence in which one party has alleged and the other party has not denied the existence of
an agreement.”
P 301

References
1) See First Secretariat Note, A/CN.9/207, para. 42, p. 270 infra.
2) Seventh Secretariat Note, A/CN.9/264, Art. 7, para. 4, p. 290 infra. The Secretariat gave
the following examples: “third party interfering with contractual relations;
infringement of trade mark or other unfair competition.” A number of delegations
suggested removing the words “defined legal,” but they were retained because they
were found in the New York Convention, on which Article 7 was consciously based. Third
Working Group Report, A/CN.9/233, para. 63, p. 281 infra; see Sixth Secretariat Note
(Government Comments), A/CN.9/263/Add.1, Art. 7, para. 2, pp. 287-88 infra.
3) First Secretariat Note, A/CN.9/207, para. 42, p. 270 infra.
4) First Working Group Report, A/CN.9/216, para. 28, p. 277 infra; Second Working Group
Report, A/CN.9/232, para. 39, p. 279 infra.
5) First Working Group Report, A/CN.9/216, para. 29, p. 278 infra; cf. First Secretariat Note,
A/CN.9/207, paras. 51–54, pp. 272–73 infra (suggesting that the Model Law address
sovereign immunity). See also Fifth Working Group Report A/CN.9/246, para. 158, p. 58
supra, and Seventh Secretariat Note, A/CN.9/264, Art. 1, para. 20, p. 71 supra, both of
which appear in the subsection on Article 1, paras. 1, 3, and 4.
6) First Working Group Report, A/CN.9/216, para. 25, p. 276 infra; First Secretariat Note,
A/CN.9/207, para. 44, p. 270 infra. The privileged-position example was taken from
Article 3 of the Strasbourg Uniform Law, see European Convention Providing a Uniform
Law on Arbitration, Europ. T.S. 56 (Strasbourg 1966). First Secretariat Note, A/CN.9/207,
para. 44, p. 270 infra. The question of the invalidity of the arbitration agreement
because of an invalid appointment procedure is distinct from the question of
challenging an arbitrator chosen by means of that procedure. The latter question is a
matter governed by the Model Law. See the commentaries on Articles 11 and 12, pp.
359-61, 388-89 infra.
As to the choice of law governing the validity of arbitration agreements, see Articles
34(2)(a)(i) and 36(1)(a)(i), which provide that the governing law for purposes of setting
aside, recognition and enforcement of arbitral awards is the law to which the parties
have subjected the agreement, or failing any such choice, the law of the State where
the award was made. See also the commentary on Article 8, p. 303 infra.
7) This is the so-called “battle of forms.” Cf. Sixth Secretariat Note (Government
Comments), A/CN.9/ 263, Art. 7, para. 3, p. 286 infra (suggesting that the Model Law
should address this question).
8) See generally the subsection on Article 1, paragraph 5, pp. 133—49 supra. As noted,
paragraph 1 of Article 7 was modeled on Article II(1) of the New York Convention. The
latter provision includes in its definition of an arbitration agreement a requirement
that the agreement “concern a subject-matter capable of settlement by arbitration.”
The Working Group deleted this proviso from Article 7, apparently because it was
thought better to refer to the matter of arbitrability elsewhere and to avoid any
possible inference that the arbitration agreement must state that it concerns an
arbitrable subject matter. See First Secretariat Note, A/CN.9/207, paras. 46–7, p. 271
infra; First Working Group Report, A/CN.9/216, para. 26, p. 277 infra; Second Working
Group Report, A/CN.9/232, para. 40, p. 279 infra. As Article 1(5) makes clear, the
elimination of the phrase was not intended to affect domestic law on arbitrability, or
to suggest that that law did not apply to arbitration agreements under the Model Law.
9) See Second Working Group Report, A/CN.9/232, para. 42, p. 279 infra.
10) See generally, e.g., First Secretariat Note, A/CN.9/207, para. 40, p. 269 infra; First
Working Group Report, A/CN.9/216, paras. 22, 23, p. 276 infra.
11) First Secretariat Note, A/CN.9/207, paras. 40-41, p. 279 infra.
12) Id.
13) Third Working Group Report, A/CN.9/233, para. 66, pp. 281-82 infra; Second Working
Group Report, A/CN.9/232, para. 46, p. 280 infra.
14) See Commission Report, A/40/17, para. 84, p. 300 infra.

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 15) The Commission Report notes that such agreements are common in certain kinds of
commodities and reinsurance trades. Id.
16) See, e.g., Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 7. para. 5, p.
286 infra; id., A/CN.9/263/Add.2, para. 16, p. 289 infra; Summary Record, A/CN.9/SR.311,
paras. 18–48, pp. 293–98 infra.
17) See Commission Report, A/40/17, paras. 85-86, pp. 300-301 infra, and sources cited in
preceding footnote.
18) A/Conf.89/13 (Annex I), 17 I.L.M. 608 (not in force); see Sixth Secretariat Note
(Government Comments), A/CN.9/263, Art. 7, para. 5, pp. 286-87 infra. Article 22 of this
convention addresses arbitration. Article 1(1) of the Model Law provides that the Law is
“subject to any agreement in force between this State and any other State or States.”
19) Furthermore, one representative suggested an interpretation of the last sentence of
paragraph 2 that would bring many bills of lading within the scope of the writing
requirement. That sentence states that the reference in a contract to a document
containing an arbitration clause constitutes an arbitration agreement if the contract is
in writing and the reference makes the clause part of the contract. The representative
noted that this sentence does not require that the “contract” be signed, only that it be
in writing. Summary Record, A/CN.9/SR.311, para. 36, p. 296 infra. See also Sixth
Secretariat Note (Government Comments), A/CN.9/263, Art. 7, para. 5, pp. 286-87 infra.
While bills of lading are frequently unsigned, they often incorporate the terms and
conditions of related charter-parties, which include arbitration clauses. Thus, under
this interpretation such bills of lading could be said to meet the requirements of
Article 7 even though they are unsigned because they are “contracts” that incorporate
other documents containing arbitration clauses. Some resistance was expressed to
this view in the Commission. See Summary Record, A/CN.9/SR.311, paras. 38, 42, pp.
296–97 infra; see also Seventh Secretariat Note, A/CN.9/264, Art. 7, para. 8, p. 290 infra.
It would seem odd to allow parties to avoid the requirement of a written assent by
each party merely by placing the arbitration agreement in a separate document.
20) See Fourth Working Group Report, A/CN.9/245, para. 182, p. 283 infra.
21) P. 197 supra.
22) Secretariat Study on the N.Y. Convention, A/CN.9/168, paras. 19-26, pp. 264-67 infra.
23) See First Working Group Report, A/CN.9/216, para. 23, p. 276 infra; Second Working
Group Report, A/CN.9/232, paras. 43, 44, pp. 279-80 infra.
24) See Commission Report, A/40/17, para. 88, p. 301 infra.
25) See, e.g., First Working Group Report, A/CN.9/216, para. 23, p. 276 infra; Sixth
Secretariat Note (Government Comments), A/CN.9/263, Art. 7, para. 4, p. 286 infra;
Seventh Secretariat Note, A/CN.9/264, Art. 7, paras. 7–8, p. 291 infra; Summary Record,
A/CN.9/SR.311, paras. 11, 24, pp. 292, 294 infra. Article II(2) of the New York Convention
states:
The term “agreement in writing” shall include an arbitral clause in a
contract or an arbitration agreement, signed by the parties or contained in
an exchange of letters or telegrams.
During the Commission's deliberations, it was noted that the English text of this
provision appears to provide a nonexhaustive list of what constitutes an “agreement in
writing,” because it uses the term “shall include.” Summary Record, A/CN.9/SR.311,
para. 22, p. 294 infra. There are five equally authentic texts of the Convention: Chinese,
English, French, Russian, and Spanish. It was also noted that the French text — which
uses the phrase “[o]n entend par ‘convention écrite’” — as well as an unofficial German
translation, have a more mandatory and exhaustive meaning. Id., paras. 23, 26, pp. 294
—95 infra. The official Spanish and Chinese texts use the terms “denotará” and “wei,”
respectively, both of which convey the same suggestion as the French text. The Russian
text, on the other hand, uses the term “vklyuchaet,” which is closer to the English
meaning. Van den Berg concludes, primarily from the wording of the French and
Spanish texts, as well as an examination of the sparse drafting history, that the
definition is intended to be exhaustive, and that other forms of written arbitration
agreements are not included. A.J. van den Berg, The New York Arbitration Convention:
Towards a Uniform Judicial Interpretation 178–80 (1981).
26) First Working Group Report, A/CN.9/216, para. 23, p. 282–76 infra; Second Working
Group Report,
A/CN.9/232, para. 43, pp. 279–80 infra; Third Working Group Report, A/CN.9/233, para.
67, p. 282 infra;
Seventh Secretariat Note, A/CN.9/264, Art. 7, para. 7, p. 291 infra.

27) Cf. Fourth Working Group Report, A/CN.9/245, para. 181, p. 283 infra (without
explanation, the Working Group declined to accept an alternative that required that
the means of telecommunications “produce a record on paper automatically or at the
option of the recipient”).
28) See Secretariat Study on the N.Y. Convention, A/CN.9/168, para. 21, p. 265 infra
(canvassing court interpretation of the New York Convention).
29) Summary Record, A/CN.9/SR.311, para. 11, pp. 292-93 infra.

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 30) See Commission Report, A/40/17, para. 87, p. 301 infra; Summary Record,
A/CN.9/SR.311, paras. 10-11, pp. 292-93 infra.
31) Accord Summary Record, A/CN.9/SR.320, paras. 78-79, appearing in the section on
Article 35, p. 1047 infra. Cf. Commission Report, A/40/17, para. 87, p. 301 infra (noting
suggestion that Article 35 would have to be modified to accommodate changes in
Article 7; Article 35 was not, however, modified).
32) There is, of course, no doubt in such a case that there is both a written agreement and
a written arbitration clause; the question addressed by this sentence is whether the
two are closely enough connected or, put another way, whether the parties have
manifested in writing their agreement to the clause. The written manifestation of
consent by each party is the sine qua non of the writing requirement.
Under the New York Convention, most courts had reached the result provided in the
Model Law. At least one court, however, had held that merely referring to a standard
form contract was insufficient; the contract must have been the result of specific
negotiations that made the parties aware of the consequences of the agreement. See
Secretariat Study on the N.Y. Convention, A/CN.9/168, para. 26, p. 267 infra.
33) Seventh Secretariat Note, A/CN.9/264, Art. 7, para. 8, p. 291 infra. But seenote 19supra.
34) Fifth Working Group Report, A/CN.9/246, para. 19, p. 285 infra; see also Seventh
Secretariat Note, A/CN.9/264, Art. 7, para. 8, p. 291 infra.
35) Second Working Group Report, A/CN.9/232, para. 44, p. 280 infra.
21) Oberster Gerichtshof, decision of 17 November 1971, YCA I (1976), p. 183. [Editors' Note:
Throughout this section, “YCA” refers to the Yearbook Commercial Arbitration.]
22) Rechtbank Rotterdam, decision of 26 June 1970, YCA I (1976), p. 195.
23) Corte di Cassazione, decision of 18 September 1978, No. 4167, YCA IV (1979), pp. 296,
300.
24) Corte di Appello di Firenze, decision of 8 October 1977, YCA IV (1979), p. 289.
25) Obergericht of Basle, decision of 3 June 1971, YCA IV (1979), pp. 309, 310; Landgericht
Zweibrücken, 11 January 1978, YCA IV (1979), pp. 262, 263.
26) Corte di Appello di Napoli, decision of 13 December 1974, YCA I (1976), p. 193; Tribunal
du canton de Genève, decision of 6 June 1967, YCA I (1976), p. 199.
27) Oberlandesgericht Düsseldorf, decision of 8 November, 1971, YCA II (1977), p. 237.
28) E.g. decision above, foot-note 27.
29) E.g. Bundesgerichtshof, Federal Republic of Germany, decision of 9 March 1978, YCA IV
(1979), p. 264.
30) E.g. Bundesgerichtshof, Federal Republic of Germany, decision of 25 May 1970, YCA II
(1977), p. 237.
31) Landgericht Hamburg, decision of 19 December 1967, YCA II (1977), p. 235.
32) Corte di Cassazione (Sez. Un.), decision of 8 April 1975, No. 1269, YCA II (1977), p. 247. The
court added that the arbitration clause was binding since this document made
express reference to the clause contained in the charter party.
33) Corte di Cassazione (Sez. Un.), decision of 25 January 1977, No. 361, YCA IV (1979), p. 284.
34) Supreme Court of Greece, decision of 14 January 1977, No. 88/1977, YCA IV (1979), p. 269.
35) Landgericht Hamburg, decision of 16 March 1977, YCA III (1978), p. 274.
36) Tribunal de Strasbourg, decision of 9 October 1970, YCA II (1977), p. 244;
Bundesgerichtshof, decision of 12 February 1976, YCA II (1977), p. 242 (with the
requirement that the general conditions be inserted in the contract or attached to it).
37) E.g. United States District Court of the Southern District of New York, decision of 2
December 1977, YCA IV (1979), p. 331.
38) Queen's Bench Division (admiralty court), decision of 13 January 1978, YCA IV (1979), p.
323; United States District Court of the Southern District of New York, decision of 18
August 1977, YCA IV (1979), p. 329.
39) Corte di Appello di Firenze, decision of 8 October 1977, YCA IV (1979), p. 289; Corte di
Appello di Napoli, decision of 20 February 1975, YCA IV (1979), p. 275; Corte di Appello di
Torino, decision of 30 March 1973, YCA I (1976), p. 191.
40) Corte di Cassazione (Sez. Un.), decision of 22 April 1976, No. 1439, YCA II (1977), p. 249.
41) Corte di Cassazione (Sez. Un.), decision of 25 May 1976, No. 1877, YCA III (1978), p. 279.
42) Corte di Cassazione (Sez. Un.), decisions of 18 April 1978, No. 1842, YCA IV (1979), p. 282,
and of 12 May 1977, No. 3989, YCA IV (1979), p. 286; also Tribunale di Napoli, decision of
30 June 1976, YCA IV (1979), p. 277.
43) Corte di Cassazione (Sez. Un.), decision of 8 November 1976, No. 4082, YCA IV (1979), p.
280.
*) [Editors' Note: The Secretariat also suggested that the problems encountered were
sometimes due to the fact that the Convention does not stipulate its scope of application
with respect to arbitration agreements, which has led to “uncertainty about the
applicable law” and different results. For the Secretariat's discussion of the Convention's
scope of application in this regard, see the section on Article 8, pp. 307–09 infra.]
*) [Editors' Note: Sic. Paragraph 34 is meant. As an example of a situation in which the
validity of the arbitration agreement is relevant before the place of arbitration is
determined, that paragraph notes that the issue arises in the context of referral to
arbitration. Paragraph 34 appears in the subsection on Article 1, paragraphs 1, 3, and 4,
pp. 42–43 supra.]

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 *) [Editors' Note: With respect to whether the Model Law should address the capacity of
parties to conclude arbitration agreements, see also the brief references in paragraphs 23
and 25 of this Note, appearing in the section on Purposes and Procedures of the
Commission, pp. 1196–97 infra.]
15) The Supreme Court decided, on 2 May 1966, that Art. 2060 Code Civil, according to
which neither the State nor public entities may enter into an arbitration agreement,
does not apply to international contracts (Cass. Civ. 1, Dalloz 1966, 575).
16) Report of the United Nations Commission on International Trade Law on the work of its
tenth session, Official Records of the General Assembly, Thirty—second Session,
Supplement No. 17 (A/32/17), Annex II, paras. 27—37. [1977 Commission Report,
appearing in the section of materials on the Purposes and Procedures of the Commission,
pp. 1168-70 infra.]
17) [Secretariat Note Reporting AALCC Decision,] A/CN.9/127, Annex, under 3.(c) [p. 1162 infra.
Editors' Note: In 1976, the AALCC made several suggestions to UNCITRAL regarding ways
to improve arbitration. These suggestions ultimately led to the decision to draft the
Model Law. For more on the AALCC proposals, see pages 9–10 supra and pages 1161–89
infra.]
18) [Secretariat Comments on AALCC Proposal,] A/CN.9/127/Add.1, paras. 11, 12 [p. 1165
infra].
19) Cf. reservations expressed with regard to States and Governments during discussions
at the Commission's tenth session, ibid. (FN 16), para. 33 [p. 1169 infra.]
20) Cf. e.g. collection of articles on various national systems in 10 Neth. Yearb. Int. Law
1979, p. 3 et seq.
9) Resolution No. 5, point 6.c; Member States are, in addition to the Latin American
countries, the Philippines, Portugal and Spain.
*) [Editors' Note: For further materials on whether the Model Law should include a
provision on the law governing the validity of the arbitration agreement, see the
subsection on Article 1, paragraph 2, pp. 97–133 supra, particularly the Fifth Secretariat
Note, paras. 35–41, pp. 106–07 supra, and the Fifth Working Group Report, A/CN.9/246,
paras. 198–201, p. 108 supra.]
8) Discussion and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, paras. 22-31 [paras. 30-31 of the First Working Group Report appear in the
subsection on Article 1, paragraph 5, p. 137 supra].
9) This draft provision is modeled on article II (1) of the 1958 New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (hereinafter referred to as
“1958 New York Convention”), with some alternatives or amendments based on
suggestions by the Working Group.
10) The last words of this sentence are submitted to invite discussion by the Working
Group on which modern means of communication should be recognized and which
elements should be required, in particular in cases of electronic transmission.
11) It may be noted that this latter provision deviates from the requirement of written
form by recognizing a writing by only one party, but that it deviates considerably less
than, for example, article I(2)(a) of the European Convention on International
Commercial Arbitration [484 U.N.T.S. 349] (Geneva, 1961) which recognizes, “in relations
between States whose laws do not require that an arbitration agreement be made in
writing, any arbitration agreement concluded in the form authorized by these laws.”'
13) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 62–68.
*) [Editors' Note: This time limit would have required that any agreement by the parties
limiting the arbitrators' power to appoint experts be made prior to the appointment of
the first arbitrator. It was deleted from the final text of Article 26. See the section on that
Article, p. 727 infra.]
20) United Nations document A/CONF.89/13, annex I.
32) [Fifth Working Group Report,] A/CN.9/246, para. 23; similarly [Fourth Working Group
Report,] A/CN.9/245, para. 187; cf. also [Second Working Group Report,] A/CN.9/232,
para. 40.
[All of these sources appear in the subsection on Article 1, para. 5, pp. 138–40 supra].
33) As regards article 34, where the inclusion of the non-arbitrability of the subject-matter
is controversial, see [the Secretariat's] commentary to article 34, para. 12 [Seventh
Secretariat Note, appearing in the section on Article 34, pp. 966–67 infra.]
34) [First Working Group Report,] A/CN.9/216, paras. 25, 30-31. [Paragraph 25 appears on
page 276 supra; paragraphs 30-31 appear in the subsection on Article 1, para. 5, p. 137
supra.]
35) [Third Working Group Report,] A/CN.9/233, para. 66 [p. 281 supra]; [Second Working
Group Report,] A/CN.9/232, para. 46 [p. 280 supra].
36) As to the possible need for modifying article 35(2) in order to accommodate the
situation of a cured defect of form, see footnote 91 [appearing in the section on Article
35, p. 1040 infra].
37) Cf. [Fifth Working Group Report,] A/CN.9/246, para. 19 [p. 285 supra].

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 *) [Editors' Note: This Conference Room Paper, dated 10 June 1985, read as follows:
Article 7(2)
PROPOSAL BY THE REPRESENTATIVES OF BULGARIA AND UNITED STATES
Suggested modification of the second sentence of article 7(2):
An agreement is in writing if it is contained in a document signed by the parties, in an
exchange of letters, telex, telegrams or other means of telecommunication which provide
a record of the agreement, or in an exchange of statements of claim and defence in
which neither party has denied the existence of an agreement.]
*) [Editors' Note: The English text of the Drafting Group's revision was the same as the final
text of Article 7.]

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Document information
UNCITRAL Model Law, Chapter II, Article 7 – as amended
Publication [Definition and form of arbitration agreement]
A Guide to the 2006 [Editors' Note: The 2006 amendments to the Model Law amended Article 7(2) and added
Amendments to the Articles 7(3), 7(4), 7(5) and 7(6) and Option II. The text below shows the changes to Article 7
UNCITRAL Model Law on (additions are doubled-underlined while deletions are crossed out). For legislative history of,
International Commercial and commentary concerning, the prior version of Article 7, see Howard M. Holtzmann &
Arbitration: Legislative Joseph E. Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial
History and Commentary Arbitration: Legislative History And Commentary, pp. 258–301 (1989).]
Option I
Organization
Article 7 Definition and form of Arbitration Agreement
United Nations Commission
on International Trade Law (1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not. An arbitration agreement may be
in the form of an arbitration clause in a contract or in the form of a separate agreement.
Promulgation
(2) The arbitration agreement shall be in writing.
21 June 1985
(3) An arbitration agreement is in writing if its content is recorded in any form, whether or
not the arbitration agreement or contract has been concluded orally, by conduct, or by
Legislation number other means.
United Nations Documents (4) The requirement that an arbitration agreement be in writing is met by an electronic
A/40/17, Annex I, and communication if the information contained therein is accessible so as to be useable for
A/61/17, Annex I subsequent reference; “electronic communication” means any communication that the
parties make by means of data messages; “data message” means information generated,
sent, received or stored by electronic, magnetic, optical or similar means, including, but
not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or
Bibliographic reference telecopy.
'UNCITRAL Model Law, (5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange of
Chapter II, Article 7 – as statements of claim and defence in which the existence of an agreement is alleged by
amended [Definition and one party and not denied by the other.
form of arbitration P 29
agreement]', in Howard M. P 30
Holtzmann , Joseph Neuhaus (6) The reference in a contract to any document containing an arbitration clause
, et al., A Guide to the 2006 constitutes an arbitration agreement in writing, provided that the reference is such as to
Amendments to the make that clause part of the contract.
UNCITRAL Model Law on
International Commercial Option II
Arbitration: Legislative
History and Commentary, Article 7 Definition of Arbitration Agreement
(© Kluwer Law International;
Kluwer Law International “Arbitration agreement” is an agreement by the parties to submit to arbitration all or
2015) pp. 29 - 157 certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not.

Commentary
The two main features of Article 7 of the original Model Law are: (i) that it permits an
arbitration agreement to relate to existing or future disputes, eliminating the distinction
then still subsisting in some countries between a compromis and a clause compromissoire;
and (ii) that it requires that an arbitration agreement be in writing and defines what will
constitute a writing for this purpose, using a definition modeled on the writing requirement
of Article II(2) of the New York Convention. These two provisions, one loosening the
requirements for an arbitration agreement in the affected legal systems and the other
making them more rigid for certain countries, were regarded as something of a
compromise. (1) The two points correspond roughly to the contents of paragraphs 1 and 2 of
the original Article.
The 2006 amendments to the Model Law did three things: (1) modernized the definition of
a “writing” to include electronic means of communication; (2) broadened the definition of
P 30 when an “arbitration agreement” is “in writing” to include circumstances in which the
P 31 parties' agreement as such is created not in writing, but orally or by performance in
accordance with a written offer, as long as the content of the arbitration provisions are in
writing; and, most radically, (3) offered enacting States an option of dispensing with the
writing requirement entirely. The Commission expressed no preference for Option I—the
broadened writing requirement—or Option II—the non-writing requirement.
The genesis of the 2006 amendments was a perception, as reported by the Secretariat, that
the writing requirements of the New York Convention and the original Article 7(2) were
overly restrictive. (2) The Secretariat reported that practitioners had repeatedly observed

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 “that there are a number of situations where the parties have agreed to arbitrate (and
there is evidence in writing about the agreement), but where, nevertheless, the validity of
the agreement is called into question because of the overly restrictive form requirement.”
(3) The Secretariat suggested that, while some national laws and court decisions had
broadened the definition of a writing, the solutions were not uniform. (4) With these issues
in mind, the Working Group sought to modify the original Article 7(2) to, as the Commission
later reported, “reflect a broad and liberal understanding of the form requirement” that
would “update domestic laws on the question of the writing requirement for the arbitration
agreement, while preserving enforceability of such agreements as foreseen in the New York
Convention.” (5) In the end, after six years of effort, the Working Group went well beyond
these initial aims, proposing in Option II a solution that discards entirely the requirement
of a writing and provides for enforcement of arbitration agreements (and resulting awards)
that would not be required to be enforced under the New York Convention.

Option I
Paragraph 1. Paragraph 1 was in the 1985 Model Law and was not amended by the 2006
amendments. (6)
P 31
P 32
Paragraph 2. Paragraph 2 of Article 7 requires that an arbitration agreement be in writing.
Paragraph 2 reproduces the first sentence of Article 7(2) of the original Model Law, which in
turn was based on the provision of Article II(1) of the New York Convention that “[e]ach
Contracting State shall recognize an [arbitration] agreement in writing.” (7) After the 2006
amendments, this sentence was intended to be a “bridge” between the Model Law and the
Convention that, it was hoped, would ensure that arbitration agreements concluded under
the more liberal form requirements of Option I of the 2006 Model Law would be considered
valid writings under the Convention. (8) The Commission also sought to promote this broad
interpretation of the Convention's writing requirement through passage of its
“Recommendation on interpretation of article II, paragraph 2, and article VII, paragraph 1”
of the New York Convention. See pp. 603–12 infra.
The requirement of a writing in paragraph 2 extends to any purported arbitration
agreements within the scope of the Model Law (i.e., international commercial arbitration).
Thus, agreements that are not in written form, as defined or clarified in the subsequent
provisions of both the original Article 7 and Option I of the amended Article, are not a
matter left to national rules outside the Model Law, but rather are enforceable only to the
extent that the Model Law provides for a waiver of the requirement (see below). (9)
The writing requirement extends to any agreement to submit a dispute to arbitration. Thus,
it probably extends to amendments to the original agreement by which additional
disputes are submitted to the arbitral tribunal, even if this is done, as is sometimes the
case, during the arbitral proceedings. (10) This will likely only be a formality even under
the original Model Law, because under Article 16(2) any objections to an oral agreement
P 32 may be waived by failure to raise them early in the arbitral proceedings. Similarly, under
P 33 both the original and amended Model Law, an exchange of statements of claim and
defence in which the existence of an agreement is alleged by one party and not denied by
another itself constitutes a written arbitration agreement. A more difficult question is
whether separate agreements on procedural questions concerning the arbitration must be
in writing. There is nothing in Article 7 that suggests this, since it does not require that the
parties describe every feature of the future arbitration in their arbitration agreement.
Article 4, however, provides for a waiver by a failure to object in certain circumstances to
requirements contained in the “arbitration agreement.” As a result, the consequences of a
written agreement on procedure may be different from those of such an agreement made
orally. (11)
Paragraph 3. Paragraph 3 of the amended Article 7 defines the forms of arbitration
agreements that fulfill the writing requirement established in paragraph 2. The most
significant aspect of paragraph 3 is that it requires that only “the content” of an arbitration
agreement, and not the consent of the parties to that arbitration agreement, be recorded.
(12) The Working Group and later the Commission left to other national legislation the
question of whether the alleged parties to an agreement to arbitrate actually reached an
agreement. (13) Thus, if a contract under the applicable law can be formed orally, by
performance in accordance with a written offer or by other unwritten means, so can an
arbitration agreement— as long as the “content” of the arbitration agreement is recorded
somewhere. This was a fundamental departure from the writing requirement of the original
Article 7(2), discussed immediately below.
The recorded consent aspect of Article 7(2) of the 1985 Model Law. The basic test for a written
P 33 agreement under the 1985 Model Law is that each party has declared in writing its consent
P 34 to arbitration. (14) The writing requirement of the 1985 Model Law is not merely a
requirement that there be written evidence of the parties' consent to arbitration; the
consent itself must be in writing. (15) One reason for that requirement was the view of the
original Working Group that the New York Convention required that the consent of the
parties be recorded in writing. (16) It was agreed at the outset of the drafting of the 1985
Model Law that the Law should not conflict with the New York Convention, and in fact, as
noted, the writing requirement of Article 7 was modeled on that text. (17) In addition, a

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 survey of national laws undertaken by the Secretariat prior to the drafting of the 1985
Model Law revealed that most legal systems required consent to be in writing. (18)
Furthermore, even in those States that permitted oral agreements, the Secretariat found in
1981 that this form was rarely used or difficult to rely upon because of strict standards of
proof. (19)
In drafting the original Model Law, the Working Group considered several typical examples
of agreements to the content of an arbitration agreement where the agreement might not
be considered a valid writing under Article 7. (20) Paras 11-12 could be found on pages 143-
144 and 662, para 11 could also be found on page 597] These examples included a written
offer and an oral (or otherwise nonwritten) acceptance, an oral offer and a written
confirmation, and bills of lading, which often are not signed by the shipper. (21) The
Commission in 1985 concluded that Article 7(2) of the original Model Law “did not cover”
each of these examples, “because one of the parties did not declare in writing his consent
to arbitration.” (22)
P 34
P 35
Drafting history of the recorded content aspect of Article 7(3) of the 2006 Model Law. Under
the 2006 Model Law, each of the scenarios discussed above may create a valid writing if
the content of the arbitration agreement is recorded in some form. In drafting the
amendments to Article 7, the Working Group concluded that, though oral arbitration
agreements were still rarely used, national law provisions that permitted such agreements
had not given rise to significant disputes as to their validity. (23) More significantly, there
were many forms of acceptance by performance or course of dealing that were common in
international trade and that might not pass muster under a strict interpretation of the
writing requirement. (24) It was also suggested that, “because the development of
arbitration practice between 1958 [when the New York Convention was adopted] and the
current time made arbitration the preferred or usual method for international commercial
dispute resolution,” the “warning function” of requiring a writing—to alert parties as to the
importance of renouncing rights of recourse to the courts—was “no longer as important as
formerly.” (25)
The basic test for a written agreement under paragraph 3 of the amended Model Law is
that the parties have recorded the content of their agreement to arbitrate. The Working
Group chose to define a writing in broad terms rather than give examples of circumstances
that qualify as a writing, because of a general concern that a list of such examples might be
misinterpreted as exhausting the forms that qualify as a writing instead of being
illustrative of a writing. (26)
What is meant by the “content” of an arbitration agreement is open to interpretation;
Article 7 does not define the “content” requirement. The Commission considered using the
word “content” or the word “terms” to describe what elements of the arbitration agreement
must be recorded. (27) The word “content” was selected because it was considered a more
P 35 “generic” word and because of concerns, among other things, that the word “terms” could
P 36 be interpreted to refer to the details of the arbitral procedure contained in arbitration
rules or even in background national arbitration law. (28)
There was widespread agreement that the “content” requirement of paragraph 3 would be
satisfied by the various examples noted above in which one party created or issued a
writing that recorded the content of the arbitration agreement but the actual agreement
was formed orally or by conduct (if such an agreement would otherwise be recognized
under the law governing the contract generally). (29) In addition, there was considerable
discussion over several years of situations in which the parties concluded an agreement
orally or by conduct that referred to standard conditions in the industry, a standard set of
procedural rules or even simply to the national law (including the arbitration law) of a
particular country. (30) The Working Group, and ultimately the Commission, reached
different conclusions on references to industry-standard clauses on the one hand—which
were intended to be covered by paragraph 3—and references to procedural rules and
national arbitration laws—which were not.
In April 2002, the Working Group considered two examples of industry standard forms:
“(a) the case where a maritime salvage contract was concluded orally through
radio with a reference to a preexisting standard contract form containing an
arbitration clause, such as the Lloyd's Open Form; (b) contracts concluded by
performance or by conduct (for example a sale of goods under article 18 of the
United Nations Convention on Contracts for the International Sale of Goods),
with reference to a standard form containing an arbitration clause, such as
documents established by the Grain and Food Trade Association (GAFTA) .…” (31)
P 36
P 37 The Working Group at that meeting concluded that in these cases “the reference or
other link to a written contractual document containing an arbitration clause should be
sufficient to establish the formal validity of the arbitration agreement.” (32) The
Secretariat repeated this conclusion in its April 2006 note on the form of the arbitration
agreement in anticipation of the Commission session at which the 2006 amendments were
adopted, (33) and the Commission Report contains nothing that contradicts this
conclusion.

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 By contrast, the problem (undoubtedly quite rare) of an oral agreement that made
reference only to a set of arbitration rules or a national law containing default rules on
conduct of the arbitration was discussed at a number of points during the drafting. Early
on, in June 2001, the “prevailing view” in the Working Group was that “in an oral agreement
to arbitrate, a reference … to a standard set of arbitration rules should be taken as
satisfying the written form requirement because it expressed in a sufficiently specific way
how the arbitration was to be conducted.” (34) Ten months later, the Working Group
reconsidered, noting that “it was observed by a number of delegations that the mere
reference in an oral contract to a set of arbitration rules should not be regarded as
sufficient to meet the written form requirement, since a set of procedural rules should not
be regarded, in and of itself, as equivalent to a contractual document containing an
arbitration clause.” (35) Ultimately this view prevailed. In adopting the Model Law, the
Commission took pains to “confirm[] that a mere reference in an oral contract to a set of
arbitration rules or to a law governing the arbitral procedure were cases that were not
intended to be covered by paragraph 3.” (36)
One implication of inserting paragraph 3 into Article 7 was that the final sentence of the
former Article 7(2) would need to be changed. That sentence had provided that a clause in
a contract that incorporated a separate document containing an arbitration clause
P 37 constituted an arbitration agreement “provided that the contract is in writing.” (37) With
P 38 the 2006 amendment to paragraph 3, which explicitly contemplates that the actual
arbitration agreement or contract may be “concluded orally, by conduct, or by other
means,” the proviso in that sentence was necessarily eliminated. That change is reflected
in the final text of paragraph 6 of Article 7.
Paragraphs 4, 5 and 6. While paragraph 3 of the amended Article 7 of the Model Law is
brand new and revolutionary, paragraphs 4, 5 and 6 carry forward concepts that appeared
in the 1985 Model Law. The genesis of all three provisions was a study of the application
and interpretation of the New York Convention by courts in a variety of countries that the
Secretariat completed prior to the start of work on the original Model Law. That study
noted a number of points of uncertainty in the interpretation of the writing requirement for
arbitration agreements under the New York Convention. (38) In the original Article 7(2), the
Working Group decided to clarify two of these points: whether the writing requirement is
satisfied by use of modern means of telecommunications, and whether it is met by
references in contracts to general conditions in separate documents. (39) In addition, the
Commission sought in the original Article 7(2) to clarify that a written arbitration
agreement could be created by an exchange of statements of claim and defence in which
one party alleged and the other did not deny the existence of an arbitration agreement.
(40) This was intended to encompass the situation in which the parties submitted to and
participated in the arbitration despite formal flaws in their arbitration agreement. The
Commission was of the view that these modifications to the wording of the New York
Convention were merely elaborations of that wording and that any award that satisfied the
requirements of Article 7 would be enforceable under the Convention. (41)
P 38
P 39 In the amendments to the Model Law, the Working Group discussed eliminating the
explicit provisions for the formation of arbitration agreements through the exchange of
statements of claim and defense or through references in a contract. It was suggested that
those situations were covered by the new paragraph 3 of Article 7 in the 2006 Law, so the
express references would be redundant. (42) The Working Group and the Commission
concluded, however, that it was best to clarify these points explicitly, because deleting
them from the amended Model Law might be misinterpreted as intending a substantive
change. (43) The result forms paragraphs 5 and 6 of the amended Article 7.
The predecessor to paragraph 4 of Article 7 in the 2006 Model Law is Article 7(2) of the 1985
Law, which provided that the writing requirement was met by “an exchange of letters,
telex, telegrams or other means of telecommunication which provide a record of the
agreement.” (44) This provision of the 1985 Law was based on the reference in the New York
Convention to “an exchange of letters or telegrams.” (The requirement of a “record” was to
ensure that there is some writing involved. Thus, for example, an ordinary telephone
conversation would not suffice.)
The Secretariat concluded at the outset of the amendment process that the language of
the original provision that validated the use of any “other means of telecommunication
which provide a record of the agreement” was broad enough to cover “most common uses
of electronic mail or electronic data interchange (EDI) messaging.” (45) Indeed, the
intention of this provision of the 1985 Model Law was to cover modern and future means of
communications. (46) Nevertheless, the Secretariat encouraged the addition of Article 7(4)
P 39 to the Model Law as part of a broader UNCITRAL effort to address electronic commerce (47)
P 40 and to forestall unforeseen issues that might otherwise arise in regard to the formation
of valid arbitration agreements in electronic commerce. (48)
The language adopted in Article 7(4) was modeled on Article 9(2) of the United Nations
Convention on the Use of Electronic Communications in International Contracts (the
“Convention on Electronic Communications”) and reproduces the definitions of “electronic
communication” and “data message” contained in subparagraphs (b) and (c) of Article 4 of
that Convention. (49) The Convention on Electronic Communications, which was concluded
during the amendment of the Model Law, addresses the compatibility of electronic
commerce with the legal regimes established in a number of international conventions,

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 including the New York Convention. Members of the Working Group observed that to the
extent that the Model Law might be used to assist in the interpretation of the New York
Convention, it would be important to ensure that the three instruments were compatible.
(50)
In relation to Article 7(4), the Working Group considered at length the conceptual
distinction between a “record” and a “data message.” (51) Intermediary drafts of Option I
provided that the requirement that an arbitration agreement be in writing was met by a
“record” and a “data message.” (52) Some members of the Working Group were of the view
P 40 that the term “record” was broad enough to include “data messages.” (53) The prevailing
P 41 view in the Working Group, however, was that it was important to combine the
traditional notion of a “record” with the more innovative notion of a “data message” so as
to make it clear that records other than traditional paper documents are included among
the acceptable forms of recording an arbitration agreement. (54) This was achieved in
Option I by the provision in Article 7(3) that an arbitration agreement qualifies as a writing
if the content of the agreement is “recorded” in any form and the explanation in 7(4) that a
“data message” qualifies as a writing if the message may be retrieved for subsequent
reference.
In the end, Article 7, Option I, came to provide five sometimes overlapping ways of meeting
the writing requirement:
1. Signed document. This is the classic contractual form and is expressly mentioned in
the New York Convention.
2. Agreement concluded orally, by conduct, or by other means where the “content” of the
arbitration agreement is “recorded in any form.” This is the signal change that the 2006
amendments worked to the formal requirements of the Model Law. The most common
examples are where a party accepts a written offer containing an arbitration clause
orally or by performance, and various writings that confirm the terms of a contract
reached orally or by conduct. (55) But, as noted above, the Working Group considered
that contracts concluded orally or otherwise that incorporated industry-specific
forms with arbitration clauses also met the writing requirement. (56)
3. Electronic communication if the information contained therein is accessible so as to be
useable for subsequent reference. This provision in Article 7(4) of the 2006 Model Law
clarifies that arbitration agreements may be validly recorded in a form other than
paper-based documents. (57) Under Article 7(4), any “electronic communication” of
an arbitration agreement may qualify as a writing if the content of the arbitration
agreement may be retrieved for subsequent reference.
P 41
P 42
As noted above, the parallel provision in Article 7(2) of the 1985 Law requires an
“exchange of letters, telex, telegrams or other means of telecommunication which
provide a record of the agreement.” See page 39 supra.
4. Exchange of statements of claim and defence in which the existence of an agreement is
alleged by one party and not denied by another. This provision in Article 7(5) of the
2006 Model Law was carried forward virtually unchanged from Article 7(2) of the 1985
Model Law. While it was said that an exchange of arbitral pleadings would probably
constitute an “exchange of letters” under paragraph 2 of Article 7 in the 1985 Model
Law, (58) the Commission considered it best to clarify the point explicitly in the 1985
Law. (59)
In the course of the preparation of the 2006 amendments, several arguments were
made for eliminating this provision. First, it was said that the provision was too
narrow, because it did not cover references to the existence of an arbitration
agreement before the statement of claim, such as in the notice of arbitration under
Article 3 of the UNCITRAL Arbitration Rules. (60) It was also argued that paragraph 5
was not necessary because an exchange of statements of claim and defence would
have the effect of an arbitration agreement pursuant to Articles 4 and 16(2) of the
Model Law. Those provisions require that an objection to the tribunal's jurisdiction be
raised no later than the statement of defence and that certain objections are waived
if not timely raised. (61)
The Working Group decided to retain the provision. It was noted that the terms
“statement of claim” and “statement of defence” had “well established and broad
meaning in arbitral and litigation practice.” (62) In addition, it was said that a
P 42 specific reference was useful and that Articles 4 and 16(2) address only objections to
P 43 the jurisdiction of the arbitration tribunal, and did not provide for “a positive
presumption of the existence of an arbitration agreement.” (63)
Article 35(2) of the 1985 Model Law required a party seeking recognition or
enforcement of an award from a court to supply “the original arbitration agreement
referred to in article 7 or a duly certified copy thereof.” In the case of agreements
formulated by an exchange of either letters, telex, etc. or arbitral pleadings, the
documents exchanged presumably are to be submitted. (64) The 2006 amendment of
Article 35(2) eliminated this requirement entirely. See page 595 infra.
5. Reference in a contract to any document containing an arbitration clause, provided
that the reference makes the clause part of the contract. This sentence makes clear
that when an arbitration clause is not contained in a contract but rather in a

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 document referred to therein—such as general conditions of contract or another
contract—the arbitration agreement may be deemed to be “in writing.” (65) The same
is true of this provision in the 1985 Law, but under the original Model Law the contract
containing the reference must be in writing. Under the 2006 Model Law, the content
of the arbitration agreement must be in writing, though pursuant to Article 7(3), the
contract referencing the arbitration agreement may be oral, and the contract and the
arbitration agreement itself may be concluded orally, by conduct or by other means
(if such an agreement would otherwise be recognized under the law governing the
contract generally). (66)
The meaning of the requirement that “the reference [be] such as to make [the arbitration]
P 43 clause part of the contract” may raise questions. It was noted during the discussion of the
P 44 2006 amendments that the law governing the contract that refers to the arbitration
agreement determines what linkage between the reference and the arbitration agreement
is necessary to incorporate the agreement into the contract. (67) In drafting the 1985 Model
Law, however, the Working Group expressed the view that a contract need not make
explicit reference to the arbitration clause itself in order to meet the requirement of the
1985 Model Law that the arbitration agreement be assented to in writing. (68) Two
alternative approaches had been suggested: one view was that the text of the arbitration
agreement had to “be before both parties” in order to bind them; another view was that
only a “reference” in the contract to general conditions or other documents containing the
arbitration clause was enough. (69) The language adopted, requiring that the reference be
sufficient to make the arbitration clause part of the contract as determined by other law,
presumably means under most concepts of contract that the general conditions, prior
contract or other document must have been intended to be incorporated into the contract,
and not merely referred to in, for example, a “whereas” clause or as background to the
agreement.

Option II
As noted above, Option II defines an arbitration agreement and omits any requirements
regarding the form of the agreement. See page 31 supra. The definition of an arbitration
agreement provided in Option II is identical to the definition in the first sentence of
paragraph 1 of Option I. Thus, the commentary on the first sentence of paragraph 1 of
Option I is equally applicable to Option II. See page 31 supra. Due to the omission from
Option II of any requirements on the form of an arbitration agreement, the conclusion and
content of an arbitration agreement will be determined by the law governing the contract
generally. Arbitration agreements in any form, including oral agreements, may therefore be
recognized as valid under Option II if the law governing the agreement so allows. (70)
P 44
P 45
The text of Option II was proposed by the Government of Mexico in February 2005 for
consideration by the Working Group as a revision of the then draft amendment of Article
7(2). (71) Mexico's proposal reasoned that the written form requirement “is no longer
justified” because arbitration is “more widely accepted” now than when the New York
Convention and 1985 Law were prepared and, as a result, the formality of a writing
requirement “may frustrate the legitimate expectations of the other parties” to an
arbitration agreement. (72) The written form of an arbitration agreement, the Mexico
proposal noted, is inconsistent with “the freedom of form” that is said to apply to
commercial contracts generally. (73) It was also said that a number of countries have
reformed their arbitration laws to eliminate a form requirement or have defined the
permissible form so broadly that the requirement has in practice disappeared. (74)
It was suggested that the proposal and the draft amendment of Article 7 could be
reconciled (75) or that Mexico's proposal could be inserted as a footnote to the amended
Article 7. (76) The Working Group declined to eliminate the form requirement in its entirety.
There was concern that Mexico's proposal might depart too radically from traditional
legislation, including the New York Convention, to be readily acceptable in many countries.
(77) The view was also expressed in the Working Group that the draft amendment of Article
7 would be more apt than Mexico's proposal to achieve the purpose of the 2006
amendments to harmonize the existing domestic laws on the form of an arbitration
agreement. (78)
Questions were raised in the Working Group as to whether the absence of any form
requirement may lead to awards that would be unenforceable under the New York
P 45 Convention. (79) In particular, Working Group members were concerned that oral
P 46 arbitration agreements under which arbitration awards were rendered might not fulfill
the written form requirement of Article II(2) of the Convention. (80) The general view of the
Working Group, however, was that arbitration awards rendered pursuant to arbitration
agreements formed under laws adopting Option II would be enforceable under the New
York Convention. (81) The Working Group observed that State courts tend to interpret
Article II(2) of the New York Convention in light of the provisions of the Model Law and that
Option II would indicate to State courts that the Article II(2) writing requirement should be
interpreted more liberally. (82) Moreover, pursuant to Article V(1)(a) of the Convention, the
validity of an arbitration agreement in enforcement proceedings is (in the absence of the
designation of another governing law) governed by the law of the place where the award
was made. Therefore, if the arbitration agreement is valid under the law of the place of

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 arbitration, it was observed that the award should be enforceable in the States that are
parties to the Convention. (83) Members of the Working Group also noted that in the
jurisdictions that have removed the written form requirement, the elimination of that
requirement has not given rise to significant disputes as to the validity of arbitration
agreements. (84) Ultimately, the Working Group and the Commission decided to offer
States Option I and Option II as alternative texts, (85) with Option II “providing a solution
for the future.” (86)
P 46
P 47

Legislative History
1985 MODEL LAW PROVISION
ARTICLE 7. DEFINITION AND FORM OF ARBITRATION AGREEMENT
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not. An arbitration agreement may be
in the form of an arbitration clause in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing. An agreement is in writing if it is
contained in a document signed by the parties or in an exchange of letters, telex,
telegrams or other means of telecommunication which provide a record of the agreement,
or in an exchange of statements of claim and defence in which the existence of an
agreement is alleged by one party and not denied by another. The reference in a contract
to a document containing an arbitration clause constitutes an arbitration agreement
provided that the contract is in writing and the reference is such as to make that clause
part of the contract.
APRIL 1999 SECRETARIAT NOTE POSSIBLE FUTURE WORK A/CN.9/460 (6 APRIL 1999)
B. Requirement of written form for arbitration agreement
20. Article II(2) of the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards states as follows:
“The term ‘agreement in writing’ shall include an arbitral clause in a contract or
an arbitration agreement, signed by the parties or contained in an exchange of
letters or telegrams.”
Article 7(2) of the UNCITRAL Model Law on International Commercial Arbitration (1985)
provides that:
“The arbitration agreement shall be in writing. An agreement is in writing if it is
contained in a document signed by the parties or in an exchange of letters,
telex, telegrams or other means of telecommunication which provide a record
of the agreement, or in an exchange of statements of claim and defence in
which the existence of an agreement is alleged by one party and not denied by
another. The reference in a contract to a document containing an arbitration
clause constitutes an arbitration agreement provided that the contract is in
writing and the reference is such as to make that clause part of the contract.”
P 47
P 48
21. Problems arising from the requirement that arbitration agreements be in written form
have often been described as difficult and frustrating. It is at the stage of recognition or
denial of an effective agreement to arbitrate that tensions can still be seen between the
courts and the arbitral process. It has also been said that the harmonization of
interpretation of article II(2) of the Convention should have priority for a better functioning
of the Convention. However, before discussing this issue, this note will consider first the
issue of the requirement of “written form” for an arbitration agreement and its
compatibility with the increased use of electronic commerce.
1. Arbitration agreement “in writing” and electronic commerce
22. The question as to whether electronic commerce is an acceptable means of concluding
valid arbitration agreements should pose no more problems than have been created by
the increased use of telex and telecopy or facsimile. The above-cited article 7(2) of the
UNCITRAL Model Law expressly validates the use of any means of telecommunication
“which provides a record of the agreement”, a wording which would cover most common
uses of electronic mail or electronic data interchange (EDI) messaging.
23. As to the New York Convention, it is generally accepted that the expression in article
II(2) “contained in an exchange of letters or telegrams” should be interpreted broadly to
include other means of communication, particularly telex (to which facsimile could
nowadays be added). The same teleological interpretation (3) could be extended to cover
electronic commerce. Such an extension would also be in line with the decision taken by
the Commission when it adopted the UNCITRAL Model Law on Electronic Commerce
together with its Guide to Enactment in 1996. (4) However, further study might be needed
to determine whether interpretation of article II(2) of the New York Convention by

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 reference to either the UNCITRAL Model Law on Arbitration or the UNCITRAL Model Law on
Electronic Commerce would be likely to gain wide international consensus and should be
recommended by the Commission as a workable solution in respect of this issue and also
for dealing with the more general issues of form requirements. (5)
P 48
P 49
2. “Exchange of letters or telegrams” as form requirement
24. The problem arises from the combination of the question of form and the way the
arbitration agreement comes about (i.e. its formation), expressed by the expression
“exchange of letters or telegrams”, which is found both in the Convention and in the Model
Law. This expression lends itself to an overly literal interpretation in the sense of a mutual
exchange of writings. A tacit acceptance would be, in principle, not sufficient. Neither
would be a purely oral agreement.
25. Fact situations that have posed serious problems under the Convention, and require at
least very extensive, teleological interpretation of the Model Law include the following:
tacit or oral acceptance of a written purchase order or of a written sales confirmation; an
orally concluded contract referring to written general conditions (e.g., oral reference to a
form of salvage); or, certain brokers' notes, bills of lading and other instruments or
contracts transferring rights or obligations to non-signing third parties (i.e., third parties
who were not party to the original agreement). Examples of such transfers to third parties
include the following: universal transfer of assets (successions, mergers, demergers and
acquisitions of companies); specific transfer of assets (transfer of contract or assignment of
receivables or debts, novation, subrogation, stipulation in favour of a third party
(stipulation pour autrui)); or, in the case of multiple parties, or groups of contracts or groups
of companies, implicit extension of the application of the arbitration agreement to
persons who were not expressly parties thereto. (6)
26. Courts have reached rather disparate decisions in those situations, often reflective of
their general attitude towards arbitration. In the great majority of cases, they have been
able to hold the parties to their agreement. However, under existing case law, it has been
noted, for example, that an arbitration clause in a sales or purchase confirmation will
meet the written form requirement of article II(2) of the Convention only if: (a) the
confirmation is signed by both parties; or (b) a duplicate is returned, whether signed or
not; or possibly (c) the confirmation is subsequently accepted by means of another
communication in writing from the party who received the confirmation to the party who
dispatched it. Conditions such as these are no longer in accord with international trade
practice.
27. Various means of solving the abovementioned problems might be envisaged at the
legislative level. One possible solution, on which the Commission might wish to request
further study, would rely on the UNCITRAL Model Law on Arbitration as a tool for
interpreting the New York Convention. Such a solution might require possible amendments
or additions to the current text of the Model Law; should it be amended, a range of
alternative approaches might be considered.
P 49
P 50 28. One possible approach, in line with recent legislative developments in a number of
countries, would be to include a list of instruments or factual situations where arbitration
agreements would be validated despite the lack of an exchange of documents. Such a list
might include, for example, the use of bills of lading or other instruments and situations
listed above.
29. A broader solution would be to validate arbitration agreements entered into in the
absence of an exchange of documents where the applicable law did not impose any form
requirement on the main contract. Language might be considered along the lines of a
proposal made during the preparation of article 7(2) of the Model Law as follows: “An
arbitration agreement also exists when one party to a contract refers in its written offer,
counter-offer or contract confirmation to general conditions, or uses a contract form or
standard contract, containing an arbitration clause and the other party does not object,
provided that the applicable law recognizes formation of contracts in such manner”. (7)
That proposal had been rejected “since it raised difficult problems of interpretation.” (8)
However, in support of such an approach, it has been suggested on several occasions, as
well as at the “New York Convention Day” in 1998, that article II(2) should be amended so as
to widen the definition of writing (for example to cover situations when parties conclude a
contract on the basis of one party's standard conditions with an arbitration clause that is
not signed by one party nor is there any exchange of documents which could bring the
arbitration clause within the definition of writing). (9) It might be objected that there may
be specific reasons why a party would wish to refuse a specific provision, particularly a
stipulation as important as a waiver of the right to go to court. However, that objection
might sufficiently be taken care of through the possibility granted to the refusing party to
object to the arbitration clause. In order to find a suitable rule for universal use, more
discussion and study is needed of proposals made during the preparation of the Model
Law and especially of the various solutions developed in recent national laws.
30. The most radical solution might be to amend the Model Law to establish total freedom
with respect to the form of the arbitration agreement. Such freedom would even validate
oral arbitration agreements. It might be objected, however, that allowing oral agreements

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 would lead to uncertainty and litigation.
31. The solution of relying on a possibly amended version of the Model Law as a tool for
interpreting article II(2) of the New York Convention (without amending or revising that
Convention) might not bring about a sufficient level of certainty and uniformity,
particularly as regards oral agreements, which courts would, in all likelihood, be reluctant
to accept in a number of countries. A second solution could be to rely on the more-
P 50 favourable-law provision of article VII of the Convention. That solution could be pursued
P 51 only if article II(2) were no longer to be interpreted as a uniform rule establishing the
minimum requirement of writing but would instead be understood as establishing the
maximum requirement of form. If article II(2) were to be interpreted as establishing a
uniform rule, a reference to article VII for the purpose of alleviating the form requirement
would be possible only where the national law provides a full enforcement mechanism
since the Convention becomes inapplicable in toto. (10) In that case, possible additions to
the Model Law might need to include express provisions for recognition and enforcement
of arbitral awards based on agreements meeting the more liberal form requirement—a
solution which would have to be dealt with in the wider context of a possible chapter on
enforcement. Further study of the two possible interpretations of article 11(2) may be found
appropriate by the Commission.
1999 COMMISSION REPORT A/54/17 (ADOPTED 4 JUNE 1999)
VI. International commercial arbitration: possible future work
[.…]
C. Discussion of specific items
[.…]
b. Requirement of written form for arbitration agreement
344. It was widely considered that article II (2) of the 1958 Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (the New York Convention) (which required the
arbitration agreement to be in written form “in a contract or an arbitration agreement,
signed by the parties or contained in an exchange of letters or telegrams”), and subsequent
uniform provisions modelled on that article, were often regarded as outdated. The
discussion thus focused on the extent to which modernization of the New York Convention
was needed in respect of the formation of the arbitration agreement, as well as the nature
and the urgency of any work that might be undertaken by the Commission for such
modernization. The view was expressed that, in the majority of cases, parties had no
difficulty in complying with the current form requirements, that those requirements
compelled the parties to consider carefully the exclusion of court jurisdiction and that,
therefore, if any work should be undertaken, it should be limited to the formulation of a
practice guide. While that view received some support, the Commission decided that
future work was necessary with respect to matters arising in connection with article II (2) of
the New York Convention, and that legislative work was among the options to be
considered.
345. As regards the scope of future work with respect to article II (2) of the New York
P 51 Convention, it was widely felt that work might be needed in connection with the two
P 52 general issues addressed in the note by the Secretariat [April 1999 Secretariat Note,]
A/CN.9/460, paras. 22–31), namely: the issue of the written form requirement and its
implications with respect to modern means of communication and electronic commerce;
and the more substantial issues of consent by the parties to an arbitration agreement
where the arbitration agreement was not embodied in an exchange of letters or telegrams.
346. In addition to those two general issues, it was pointed out that special attention might
need to be given to specific fact situations that posed serious problems under the New
York Convention, including the following: tacit or oral acceptance of a written purchase
order or of a written sales confirmation; an orally concluded contract referring to written
general conditions (e.g. oral reference to a form of salvage); or, certain brokers' notes, bills
of lading and other instruments or contracts transferring rights or obligations to non-
signing third parties (i.e. third parties who were not party to the original agreement).
Examples of such transfers to third parties included the following: universal transfer of
assets (successions, mergers, demergers and acquisitions of companies); specific transfer
of assets (transfer of contract or assignment of receivables or debts, novation, subrogation,
stipulation in favour of a third party (stipulation pour autrui)); or, in the case of multiple
parties, or groups of contracts or groups of companies, implicit extension of the
application of the arbitration agreement to persons who were not expressly parties thereto
([April 1999 Secretariat Note,] A/CN.9/460, para. 25).
347. Various views were expressed as to the means through which modernization of the New
York Convention could be sought. One view was that the issues related to the formation of
the arbitration clause should be dealt with by way of an additional protocol to the New
York Convention. It was explained that redrafting, or promoting uniform interpretation of,
article II (2) could only be achieved with the required level of authority through treaty
provisions similar in nature to those of the New York Convention. While support was
expressed for that view, concern was expressed that any attempt to revise the New York
Convention might jeopardize the excellent results reached over 40 years of international

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 recognition and enforcement of foreign arbitral awards through worldwide acceptance of
that Convention. In response to that concern, however, it was pointed out that the very
success of the New York Convention and its establishment as a world standard should
make it possible for UNCITRAL to undertake a limited overhaul of the text if such work was
needed to adapt its provisions to changing business realities, and to maintain or restore
its central status in the field of international commercial arbitration.
348. Another view was that, while no attempt should be made to revise the New York
Convention directly, the desired result with respect to article II (2) might be achieved
through model legislation. This could be prepared for the benefit of national legislators
with a view to superseding the outdated provisions of article II (2) by relying on the more-
favourable-law provision of article VII of the Convention. While support was expressed in
favour of that view, it was noted that such a solution could be pursued only if article II (2)
were no longer to be interpreted as a uniform rule establishing the minimum requirement
P 52 of writing, but would instead be understood as establishing the maximum requirement of
P 53 form. It was pointed out that the worldwide acceptance of such an interpretation was
currently doubtful and could only become established as the result of a lengthy
harmonization process based on case law. However, it was suggested that the Commission
could usefully contribute to speeding up that process by elaborating (in addition to model
legislation) guidelines or other non-binding material to be used by courts as guidance from
the international community above in the application of the New York Convention. It was
also suggested that any model legislation that might be prepared with respect to the
formation of the arbitration agreement might include a provision along the lines of article
7 of the United Nations Convention on Contracts for the International Sale of Goods to
facilitate interpretation by reference to internationally accepted principles.
349. Yet another view was that an intermediary solution should be sought to avoid both the
alleged dangers of revisiting the New York Convention and the possible inconvenience of
relying merely on progressive harmonization through model legislation and case law
interpretation. It was thus suggested that consideration might be given to preparing a
convention separate from the New York Convention to deal with those situations which
arose outside the sphere of application of the New York Convention, including (but not
necessarily limited to) situations where the arbitration agreement failed to meet the form
requirement established in article II (2). Some support was expressed in favour of that
suggestion. Another view, however, was that experience indicated that the process of
adopting and securing widespread ratification of a new convention could take many years,
and that meanwhile there would be an undesirable lack of uniformity. It was stated that
the suggested approach might be particularly suitable to deal with a number of the above-
mentioned specific fact situations that posed serious problems under the New York
Convention (see above, para. 346). However, with respect to a number of those situations
(e.g. transfer of rights or obligations to non-signing third parties), it was widely felt that the
issues at stake went to general questions regarding the substance and validity of the
underlying transaction. Accordingly, doubts were expressed as to whether it would be
desirable and feasible to attempt to deal with those issues in the context of a set of
provisions geared primarily to the formation of the arbitration agreement.
350. With respect to the establishment of priorities, it was stated that, unless it could be
envisaged to amend the New York Convention through a protocol or otherwise to prepare
provisions in the nature of a treaty, work on the issues arising from article II (2) of the New
York Convention should not constitute a priority, since no satisfactory solution was to be
expected regarding those issues. Some support was expressed in favour of that view. The
widely prevailing view, however, was that the Commission, at the current stage, should
recognize that issues of formation of the arbitration agreement should be given a high
priority on the programme of future work, and that none of the above-suggested
approaches should be ruled out until they had been considered carefully by the Working
Group to which the issue would be entrusted (see below, para. 380).
P 53 [Editors' Note: Paragraph 380 reported the Commission's decision that the requirement of
P 54 written form for the arbitration agreement was a “priority item” and the assignment of the
item to a working group.]
JANUARY 2000 SECRETARIAT NOTE POSSIBLE UNIFORM RULES A/CN.9/WG.II/WP.108/ADD.1
(26 JANUARY 2000)
III. REQUIREMENT OF WRITTEN FORM FOR ARBITRATION AGREEMENT
A. Introductory remarks
1. Many national laws require an arbitration agreement to be in writing for it to be
enforceable. Such form requirements have been included also in international legislative
texts on commercial arbitration.
2. Article II(2) of the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (New York, 1958) defines the writing requirement in the following way:
“The term ‘agreement in writing’ shall include an arbitral clause in a contract or
an arbitration agreement, signed by the parties or contained in an exchange of
letters or telegrams.”
3. The European Convention on International Commercial Arbitration (Geneva, 1961),

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 modeled on article II of the New York Convention, provides in article I(2):
“2. For the purpose of this Convention,
“(a) the term ‘arbitration agreement’ shall mean either an arbitral clause in a
contract or an arbitration agreement, the contract or arbitration agreement
being signed by the parties, or contained in an exchange of letters, telegrams,
or in a communication by teleprinter and, in relation between States whose
laws do not require that an arbitration agreement be made in writing, any
arbitration agreement concluded in the form authorized by these laws”.
4. That substance of the form requirement has been incorporated also in the Inter-
American Convention on International Commercial Arbitration (Panama, 1975), which
provides in article 1:
“An agreement in which the parties undertake to submit to arbitral decision any
differences that may arise or have arisen between them with respect to a
commercial transaction is valid. The agreement shall be set forth in an
instrument signed by the parties, or in the form of an exchange of letters,
telegrams, or telex communications.”
5. Article 7(2) of the UNCITRAL Model Law on International Commercial Arbitration (1985)
provides that:
“The arbitration agreement shall be in writing. An agreement is in writing if it is
contained in a document signed by the parties or in an exchange of letters,
P 54 telex, telegrams or other means of telecommunication which provide a record
P 55 of the agreement, or in an exchange of statements of claim and defence in
which the existence of an agreement is alleged by one party and not denied by
another. The reference in a contract to a document containing an arbitration
clause constitutes an arbitration agreement provided that the contract is in
writing and the reference is such as to make that clause part of the contract.”
6. If the parties have agreed to arbitrate, but the form the parties used for entering into
the arbitration agreement does not meet the legislative requirement of form, a party may
be able to object to the jurisdiction of the arbitral tribunal. A party may be able to raise
that objection, for example: (a) when court proceedings are initiated and the respondent
requests that the parties be referred to arbitration, and the claimant in court proceedings
counters that request with an assertion that the arbitration agreement is null and void (e.g.
art. 8 of the UNCITRAL Model Law; art. III(3) of the New York Convention); (b) when the
arbitral proceedings have commenced and a party in arbitral proceedings raises a plea
that the arbitral tribunal does not have jurisdiction (e.g. art. 16(2) of the Model Law; art. V
of the 1961 European Convention on International Commercial Arbitration); (c) when the
award has been issued and a party applies for setting aside of the award (e.g., art. 34(2)(a)
(i) together with art. 16(2) of the Model Law); (d) when a party applies for recognition or
enforcement of the award and the respondent opposes the application (e.g. art. 36(1)(a)(i)
together with art. 16(2) of the Model Law; art. V(1)(a) of the New York Convention).
7. It has been repeatedly pointed out by practitioners that there are a number of situations
where the parties have agreed to arbitrate (and there is evidence in writing about the
agreement), but where, nevertheless, the validity of the agreement is called into question
because of the overly restrictive form requirement. The conclusion frequently drawn from
those situations is that the definition of writing, as contained in the above-mentioned
international legislative texts, is not in conformity with international contract practices
and is detrimental to the legal certainty and predictability of commitments entered into
in international trade.
8. Some national laws (as indicated in more detail below in paras. 29–32) have addressed
the problem and broadened the definition of writing. While the problem of the outdated
form requirement is thereby being dealt with, the fact that these laws contain different
solutions creates other difficulties, caused by the disparity of laws. The Working Group may
wish to consider that this disparity, which may grow in the future, increases the desirability
of finding internationally harmonized solutions. Meanwhile, because the definition in
international legislative texts as well as in many national laws has remained unchanged,
undesirable consequences continue to arise. They are, for example, that parties may
expect to be able to initiate arbitral proceedings, but their expectations are frustrated.
Furthermore, courts, in order to reach results they consider appropriate under the
circumstances, have to resort to expansive and even strained interpretations of the
definition of writing. In addition, difficulties may arise when awards are rendered relying
on laws providing a broader definition of writing but are brought for enforcement to a
jurisdiction which has a narrower definition.
P 55
P 56 9. In light of the above, suggestions have been made that solutions should be sought
which would, on the one hand, respect the notion that disputes may be settled by
arbitration only if the parties have so agreed, and, on the other hand, validate legitimate
contract practices and avoid problems and uncertainties in the practice of arbitration.
10. The following section B first considers typical fact situations in which the requirement

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 that an arbitration agreement be “signed” by both parties or “contained in an exchange of
letters” may cause problems and uncertainties. In the subsequent section C, which is
related to the work of the Commission in the area of electronic commerce, the discussion is
on how the requirement of writing is to be interpreted when the parties use electronic
means of communication for agreeing to arbitrate.
B. “Document signed” or “exchange of documents”
11. Several fact situations may be given as typical examples of where the parties have
agreed on the content of a contract containing an arbitration agreement and where there
is written evidence of the contract, but where, nevertheless, current law (as contained in
international texts referred to above in paras. 2 to 5) may be construed as invalidating or
calling into question the validity of the arbitration agreement. This will happen where (a)
the parties have not signed a document containing the arbitration agreement (which
regularly occurs when the parties are not at the same place when concluding the contract)
and where (b) the procedure used by the parties for concluding the contract does not meet
the test of “exchange of letters or telegrams” (art. II(2) of the New York Convention), if that
test is interpreted literally.
12. These fact situations include the following:
(a) A contract containing an arbitration clause is formed by one party sending written
terms to the other, which performs its bargain under the contract without returning or
making any other “exchange” in writing in relation to the terms of the contract;
(b) A contract containing an arbitration clause is formed on the basis of the contract text
proposed by one party, which is not explicitly accepted in writing by the other party,
but the other party refers in writing to that contract in subsequent correspondence,
invoice or letter of credit by mentioning, for example, its date or contract number;
(c) A contract is concluded through a broker who issues the text evidencing what the
parties have agreed upon, including the arbitration clause, without there being any
direct written communications between the parties;
(d) Reference in an oral agreement to a written set of terms, which may be in standard
form, that contain an arbitration agreement;
(e) Bills of lading which incorporate the terms of the underlying charterparty by
reference;
(f) A series of contracts entered into between the same parties in a course of dealing,
P 56 where previous contracts have included valid arbitration agreements but the
P 57 contract in question has not been evidenced by a signed writing or there has been
no exchange of writings for the contract;
(g) The original contract contains a validly concluded arbitration clause, but there is no
arbitration clause in an addendum to the contract, an extension of the contract, a
contract novation or a settlement agreement relating to the contract (such a “further”
contract may have been concluded orally or in writing);
(h) A bill of lading containing an arbitration clause that is not signed by the shipper or
the subsequent holder;
(i) Third party rights and obligations under arbitration agreements in contracts which
bestow benefits on third party beneficiaries or stipulation in favour of a third party
(stipulation pour autrui);
(j) Third party rights and obligations under arbitration agreements following the
assignment or novation of the underlying contract to the third party;
(k) Third party rights and obligations under arbitration agreements where the third party
exercises subrogated rights;
(l) Rights and obligations under arbitration agreements where interests in contracts are
asserted by successors to parties, following the merger or demerger of companies, so
that the corporate entity is no longer the same;
(m) Where a claimant seeks to initiate an arbitration against an entity not originally party
to the arbitration agreement, or where an entity not originally party to the arbitration
agreement seeks to rely on it to initiate an arbitration, for example, by relying on the
“group of companies” theory. (1)
13. Courts have reached disparate decisions in those situations, often reflective of their
general attitude towards arbitration. In many cases, courts have been able to hold the
parties to their agreement, in some cases by using creative interpretations to achieve that
result. For example, some courts have adopted a construction of article II of the New York
Convention according to which the expression “an arbitral clause in a contract” should be
read separately from the expression “arbitration agreements, signed by the parties or
contained in an exchange of letters or telegrams”. By parsing the provision in two limbs,
the courts were able to liberalize the requirements of article II to enforce arbitration
clauses contained in contracts that were not signed by both parties or were not contained
in an exchange of letters or telegrams.
P 57 14. Apart from differing and not widely accepted interpretations of article II, it has been
P 58 noted that, under existing case law, an arbitration clause that is contained in a writing
(e.g. in a contract offer or in a sales or purchase confirmation) will meet the form
requirement of article II(2) of the New York Convention only if: (a) the writing is signed by

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 both parties; (b) a duplicate of the writing is returned, whether signed or not; or (c) the
writing is accepted by means of returning another written communication to the party who
sent the first writing. It has been frequently observed that these requirements are too
restrictive and no longer in accord with international trade practices. There have been
various cases where arbitration agreements were denied effect in court proceedings
because the facts of the case could not be brought within the confines of article II(2) of the
Convention. Furthermore, it could be imagined that in many cases arbitration was not even
attempted because of the narrowness of the definition.
15. The factual situations set out above in paragraph 12 may be viewed, on analysis, as
deriving from different underlying issues. The situations (a) to (h) are those where the
parties have entered into a contract containing an arbitration clause but the form of that
clause does not meet the statutory requirement. To the extent these situations give rise to
undesirable results they should be addressed by broadening the statutory form
requirement.
16. The situations in (i) to (m) are different in that in those situations it may be assumed
that the arbitration agreement has been validly entered into by one set of parties, and the
question is whether that arbitration agreement has become binding on a third party who
later becomes party to the contract or assumes certain rights and obligations arising out of
the contract. Jurisdictions have taken different approaches to third party rights and to the
devolution of rights and interests in contracts and may reach different results. For
example, whilst some jurisdictions are moving towards an acceptance of the group of
companies theory, others have rejected it. These differences, rooted in the law of
contracts, suggest that, if situations referred to in (i) to (m) require a modification of
legislative provisions, the solutions should not interfere with the law governing the transfer
of contractual rights and obligations to third parties.
Possible legislative approaches
17. One possible means of solving the above-mentioned difficulties would be to modernize
the New York Convention in respect of the form of the arbitration agreement. When the
Commission discussed this issue, various views were expressed as to the means through
which modernization of the New York Convention could be sought ([1999 Commission
Report,] A/54/17, paras. 344 and 347). One view was that the issues related to the form of
the arbitration clause should be dealt with by way of an additional protocol to the New
York Convention. It was explained that redrafting, or promoting uniform interpretation of,
article II (2) could only be achieved with the required level of authority through treaty
provisions similar in nature to those of the New York Convention. While support was
expressed for that view, concern was expressed that any attempt to revise the New York
Convention might jeopardize the excellent results reached over 40 years of international
recognition and enforcement of foreign arbitral awards through worldwide acceptance of
P 58 that Convention. In response to that concern, however, it was pointed out that the very
P 59 success of the New York Convention and its establishment as a world standard should
make it possible for UNCITRAL to undertake a limited overhaul of the text if such work was
needed to adapt its provisions to changing business realities, and to maintain or restore
its central status in the field of international commercial arbitration.
18. Another possibility might be to prepare a convention separate from the New York
Convention to deal with those situations which arise outside the sphere of application of
the New York Convention, including situations where the arbitration agreement fails to
meet the form requirement established in article II. When the Commission discussed this
possibility ([1999 Commission Report,] A/54/17, para. 349), some support was expressed for
it. Another view, however, was that experience indicated that the process of adopting and
securing widespread ratification of a new convention could take many years, and that
meanwhile there would be an undesirable lack of uniformity. It was also stated that the
suggested approach might be particularly suitable to deal with a number of the above-
mentioned specific fact situations that posed serious problems under the New York
Convention. However, with respect to some of those situations (e.g. transfer of rights or
obligations to non-signing third parties), it was widely felt that the issues at stake went to
general questions regarding the substance and validity of the underlying transaction.
Accordingly, doubts were expressed as to whether it would be desirable and feasible to
attempt to deal with those issues in the context of a set of provisions geared primarily to
the form of the arbitration agreement.
19. A further possibility would be to rely on the UNCITRAL Model Law on International
Commercial Arbitration as a tool for interpreting the New York Convention. Such a solution
would improve the situation in that, for example, article 7(2) of the Model Law would be
used to clarify the effect of a reference in a contract to a document containing an
arbitration clause and to recognize the effect of using electronic means of
telecommunication for the conclusion of an arbitration agreement. However, the
requirement that the arbitration agreement be contained “in an exchange of” messages,
which has caused difficulties in practice, would require amendments to the current text of
the Model Law. Should the Model Law be amended, a range of possible approaches might
be considered (see below, paras. 29–32).
20. In considering the possibility of amending the Model Law as a tool for interpreting
article II(2) of the New York Convention (without amending the Convention), the Working

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 Group may wish to consider also that national legislation may operate in the context of the
more-favourable-law provision of article VII of the Convention. According to article VII(1),
“1. The provisions of the present Convention shall not […] deprive any interested
party of any right he may have to avail himself of an arbitral award in the
manner and to the extent allowed by the law or the treaties of the country
where such award is sought to be relied upon”.
21. Pursuant to this article, it may be considered that, if the law of the country where the
P 59 award is to be enforced (or the law applicable to the arbitration agreement) contains a
P 60 less stringent form requirement than the Convention, the interested party may rely on
that national law. That understanding would be in line with the purpose of the Convention,
which is to facilitate recognition and enforcement of foreign awards. That purpose is
achieved by removing conditions for recognition and enforcement in national laws that are
more stringent than the conditions in the Convention, while leaving to operate any national
provisions that give special or more favourable rights to a party seeking to avail itself of an
award.
22. It should be noted, however, that the acceptability of allowing less restrictive form
requirements to operate through article VII(1) of the Convention would depend on whether
article II(2) of the Convention is regarded as establishing a maximum requirement of form
(thus leaving States free to adopt a less stringent requirement) or whether the Convention
is interpreted as providing a unified form requirement with which arbitration agreements
must comply with under the Convention. Furthermore, it should be noted, that according to
some views, article VII(1) may be invoked to recognize more favourable national provisions
on form only if the enforcement mechanism of the New York Convention is replaced by the
national law on enforcement of foreign arbitral awards (whether provided by a statute or
developed by case law). It is said that only if such a national enforcement regime exists,
that regime can, through article VII(1), be used in lieu of the regime of the Convention. The
Working Group may wish to discuss the validity and implications if these considerations. It
may also wish to discuss whether these considerations relating to article VII should be
taken into account in drafting possible amendments to the Model Law so as to establish a
regime that will operate in harmony with the New York Convention.
23. When the Commission considered the possibility of preparing model legislation with a
view to superseding article II of the New York Convention by relying on article VII of the
Convention ([1999 Commission Report,] A/54/17, para. 348), it was suggested to establish (in
addition to model legislation) guidelines or other non-binding material to be used by
courts as guidance from the international community in the application of the New York
Convention. It was also suggested that any model legislation that might be prepared with
respect to the form of the arbitration agreement might include a provision along the lines
of article 7 of the United Nations Convention on Contracts for the International Sale of
Goods, which is designed to facilitate interpretation by reference to internationally
accepted principles. Similar provisions were included in the UNCITRAL Model Law on
Electronic Commerce (2) and the UNCITRAL Model Law on Cross-Border Insolvency. (3) Such
a non-binding commentary formulated by the Commission along with the model legislative
provision could speed up the process of harmonization of law and its interpretation.
P 60
P 61
Possible content of uniform provisions
24. In considering the content of uniform legislative provisions, one possible approach, in
line with recent legislative developments in a number of countries, would be to include a
list of instruments or factual situations where arbitration agreements would be validated
despite the lack of an exchange of documents. Such a list might be formulated so as to
encompass the use of instruments and situations listed above in paragraph 12. While such
a specific approach has the advantage of providing a clear and specific solution to the
identified problems, it runs the risk that the provisions would not cover all situations that
should be covered and may not adequately address developing business needs and
practice.
25. A somewhat broader solution would be to validate written arbitration agreements even
if they were not entered into by an exchange of documents. Language might be considered
along the lines of a proposal made during the preparation of article 7(2) of the Model Law.
The proposed language was as follows:
“However, an arbitration agreement also exists where one party to a contract
refers in its written offer, counter-offer or contract confirmation to general
conditions, or uses a contract form or standard contract, containing an
arbitration clause and the other party does not object, provided that the
applicable law recognizes formation of contracts in such manner”. (4)
While the proposal was at that time rejected “since it raised difficult problems of
interpretation”, (5) it may be considered that the idea underlying it remains valid.
26. During the preparation of the Model Law, in the written comments by Governments on
the draft Model Law, a proposal was made (by Norway) in which it was observed that
arbitration clauses are frequently found in bills of lading, which are usually not signed by

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 the shipper. Nevertheless, it was said, such clauses are generally considered binding on
the shipper and subsequent holders of the bill of lading. In order to clarify the status of
such arbitration agreements a wording was proposed which addressed bills of lading as
well as other written arbitration agreements signed by one party only. The proposal was to
add to article 7 of the Model Law the following:
“If a bill of lading or another document, signed by only one of the parties, gives
sufficient evidence of a contract, an arbitration clause in the document, or a
reference in the document to another document containing an arbitration
clause, shall be considered to be an agreement in writing.” (6)
P 61
P 62
27. The proposal was considered during the eighteenth session of the Commission in 1985,
at which the Model Law was finalized. (7) While the proposal was ultimately not adopted, it
was noted in the discussion that a substantial number of speakers had commented
favourably on it. (8)
28. Various recently enacted national laws have provided for a wider definition than that
included in the UNCITRAL Model Law. They are reproduced here as examples in order to
stimulate discussion and possibly to be used as an inspiration in finding acceptable
harmonized solutions.
29. In Switzerland, article 178 of the Federal Act of Private International Law takes a general
approach:
“1. As regards its form, the arbitration agreement shall be valid if made in
writing, by telegram, telex, telecopier or any other means of
communication which permits it to be evidenced by a text.
“2. As regards its substance, the arbitration agreement shall be valid if it
conforms either to the law chosen by the parties, or to the law governing
the subject-matter of the dispute, in particular the law governing the main
contract, or if it conforms to Swiss law.”
30. In the Netherlands, article 1021 of the Arbitration Act 1986 provides:
“The arbitration agreement shall be proven by an instrument in writing. For this
purpose an instrument in writing which provides for arbitration or which refers
to standard conditions providing for arbitration is sufficient, provided that this
instrument is expressly or impliedly accepted by or on behalf of the other
party.”
31. A somewhat more detailed approach has been taken by the German Arbitration Law of
1997; section 1031 provides:
“(1) The arbitration agreement shall be contained either in a document signed
by the parties or in an exchange of letters, telefaxes, telegrams or other
means of telecommunication which provide a record of the agreement.
“(2) The form requirement of subsection 1 shall be deemed to have been
complied with if the arbitration agreement is contained in a document
transmitted from one party to the other party or by a third party to both
parties and—if no objection was raised in good time—the contents of such
document are considered to be part of the contract in accordance with
common usage.
P 62
P 63
“(3) The reference in a contract complying with the form requirements of
subsection 1 or 2 to a document containing an arbitration clause
constitutes an arbitration agreement provided that the reference is such
as to make that clause part of the contract.
“(4) An arbitration agreement is also concluded by the issuance of a bill of
lading, if the latter contains an express reference to an arbitration clause
in a charter party.
“(5) Arbitration agreements to which a consumer is a party must be contained
in a document which has been personally signed by the parties. No
agreements other than those referring to the arbitral proceedings may be
contained in such a document; this shall not apply in the case of a notarial
certification. A consumer is a natural person who, in respect of the
transaction in dispute, is acting for a purpose which can be regarded as
being outside his trade or self-employed profession (‘gewerbliche oder
selbständige berufliche Tätigkeit’).
“(6) Any non-compliance with the form requirements is cured by entering into
argument on the substance of the dispute in the arbitral proceedings.”
32. A detailed approach has been taken in England, where Section 5 of the Arbitration Act
1996 provides:

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 “[…]
“(2) There is an agreement in writing—
(a) if the agreement is made in writing (whether or not it is signed by the
parties),
(b) if the agreement is made by exchange of communications in writing,
or
(c) if the agreement is evidenced in writing.
“(3) Where parties agree otherwise than in writing by reference to terms which
are in writing, they make an agreement in writing.
“(4) An agreement is evidenced in writing if an agreement made otherwise
than in writing is recorded by one of the parties, or by a third party, with
the authority of the parties to the agreement.
“(5) An exchange of written submissions in arbitral or legal proceedings in
which the existence of an agreement otherwise than in writing is alleged
by one party against another party and not denied by the other party in
his response constitutes as between those parties an agreement in writing
to the effect alleged.
“(6) References in this Part to anything being written or in writing include its
being recorded by any means.”
P 63
P 64
A non-legislative approach
33. Bearing in mind the various considerations underlying the preparation of a treaty or
model legislation, including the long process of the legislative implementation of any
solution that may be agreed upon, the Working Group may wish to discuss the advisability
of preparing a non-legislative text. When the Commission discussed the question of the
degree to which the current statutory provisions are regarded as outdated ([1999
Commission Report,] A/54/17, para. 344), the view was expressed that, in the majority of
cases, parties had no difficulty in complying with the current form requirements for
arbitration agreements. It was also said that those requirements compelled the parties to
consider carefully the exclusion of court jurisdiction. Therefore, it was suggested that if any
work should be undertaken, it should be limited to the formulation of a practice guide.
However, while that view received some support, the Commission decided that future work
was necessary with respect to matters arising in connection with article II(2) of the New
York Convention, and that legislative work was among the options to be considered.
34. In light of those considerations, the Working Group may wish to discuss the advisability
of preparing practice guidelines or notes to alert parties in international transactions that
in certain factual circumstances (such as those referred to above in para. 12) form
problems might arise that might adversely affect the application of the New York
Convention with respect to recognition of agreements to arbitrate and enforcement of
arbitral awards. Such guidelines might be useful, for example, to warn trade organizations
that sponsor standard forms that those forms may not meet the written form requirements,
and the guidelines might propose changes in wording or practices to avoid such
difficulties. In addition, such guidelines or notes might be useful to parties and judges of
national courts in analysing whether the written form requirement has or has not been met
by various types of business conduct. The Working Group might consider whether such
guidelines or notes could be useful to international business as an interim or separate
solution, while consideration is being given to the more time-consuming and complex
process of drafting and implementing legislative solutions.
C. Arbitration agreement “in writing” and electronic commerce
35. The question as to whether electronic commerce is an acceptable means of concluding
valid arbitration agreements should pose no more problems than have been created by
the increased use of telex and subsequently of telecopy or facsimile. The above-cited
article 7(2) of the UNCITRAL Model Law expressly validates the use of any means of
telecommunication “which provides a record of the agreement”, a wording which would
cover telecopy or facsimile messages as well as most common uses of electronic mail or
electronic data interchange (EDI) messaging.
36. As to the New York Convention, it is generally accepted that the expression in article
II(2) “contained in an exchange of letters or telegrams” should be interpreted broadly to
P 64 include other means of communication, particularly telex (to which facsimile could
P 65 nowadays be added). The same teleological interpretation (9) could be extended to
cover electronic commerce. Such an extension of article II to cover certain means of
communication that were not contemplated at the time the Convention was drafted would
be in line with the decision taken by the Commission when it adopted the UNCITRAL Model
Law on Electronic Commerce with its Guide to Enactment in 1996. The Guide, which was
drafted with the New York Convention and other international instruments in mind,
provides that
“the Model Law [on Electronic Commerce] may be useful in certain cases as a
tool for interpreting existing international conventions and other international

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 instruments that create legal obstacles to the use of electronic commerce for
example by prescribing that certain documents or contractual clauses be made
in written form. As between those States parties to such international
instruments, the adoption of the Model Law as a rule of interpretation might
provide the means to recognize the use of electronic commerce and obviate the
need to negotiate a protocol to the international instrument involved.” (Guide
to Enactment of the UNCITRAL Model Law on Electronic Commerce, para. 6).
37. The Working Group may wish to discuss whether the interpretation of article II(2) of the
New York Convention as covering also contracts and arbitration agreements entered into in
the context of electronic commerce (either by reference to article 7(2) of the UNCITRAL
Model Law on Arbitration or to the UNCITRAL Model Law on Electronic Commerce) can
count on wide international consensus and whether it should be recommended by the
Commission as a workable solution.
38. The Working Group, when it considers how legislation on modern means of
communication influences the interpretation of article II(2) of the New York Convention,
may wish to bear in mind the general issue of compatibility of electronic commerce with
the legal regime established by a series of international conventions, governing different
areas of trade, that contain mandatory requirements for the use of written documents.
Repeated observations have been made that many treaties governing international trade
do not satisfactorily accommodate the reality of electronic commerce and that under
those treaties electronic messages remain potentially unacceptable as legal means of
communication. An inventory of such treaties has been prepared by the United Nations
Economic Commission for Europe (document Trade/WP.4/R.1096, 1994, as revised in 1999).
In connection with that inventory, the Centre for the Facilitation of Procedures and
Practices for Administration, Commerce and Transport (CEFACT) of the United Nations
Economic Commission for Europe adopted the “Recommendation to UNCITRAL regarding
implementing electronic equivalents to ‘writing’, ‘signature’ and ‘document’ in conventions
P 65 and agreements relating to international trade”. (10) In the Recommendation, the Centre,
P 66
“Being aware of the need to avoid disadvantage to electronic commerce and
support efforts to achieve global parity in law between manual and electronic
commerce,
“Recommends that UNCITRAL consider the actions necessary to ensure that
references to ‘writing’, ‘signature’ and ‘document’ in conventions and
agreements relating to international trade allow for electronic equivalents.”
39. The Recommendation was noted by the Commission during its thirty-second session,
together with some other issues in electronic commerce that might be put on the agenda
([1999 Commission Report,] A/54/17, paras. 315–318 [not reprinted]). In connection with the
Recommendation, support was expressed for the preparation of an omnibus protocol to
amend multilateral treaty regimes to facilitate the increased use of electronic commerce
(ibid., para. 316 [not reprinted]). It was decided that, upon completing its current task,
namely, the preparation of draft uniform rules on electronic signatures, the Working Group
on Electronic Commerce would be expected, in the context of its general advisory function
regarding the issues of electronic commerce, to examine some or all of the possible items
for future work, with a view to making more specific proposals for future work by the
Commission (ibid., para. 318). In the light of that, it is suggested that considerations of the
Working Group on Arbitration concerning the treatment of electronic messages in the
context of the New York Convention will be helpful to the Working Group on Electronic
Commerce and the Commission when they consider and take decisions on the general
issue of compatibility of electronic commerce with international conventions; it is further
suggested that any decisions taken in the Working Group on Arbitration on this matter
should be in line with decisions taken on the general issue by the Working Group on
Electronic Commerce and the Commission.
40. Finally, the Working Group may wish to note that, assuming that electronic messages
are to be treated as written messages in the context of article II of the New York
Convention, some of the practices developing in electronic commerce (over the Internet or
otherwise) may lead to difficulties that are connected with the requirement, discussed
earlier, that an arbitration agreement be contained “in an exchange of” messages. Namely,
it has been observed that electronic commerce may make it less likely for there to be an
exchange of messages containing (or referring to) an arbitration agreement. The
computerized connections between suppliers and buyers, which are being increasingly
used, may lead to purchase orders being generated automatically (e.g. when the stocks of
goods fall below a certain level). If these purchase orders are treated as “call-off” contracts
that fall within an underlying agreement, no problem will arise since the arbitration
agreement applicable to all the contracts will have been formed at the time of the
underlying agreement, which will be regarded as performed whenever goods are shipped
or services provided. If, however, these individual purchase orders are regarded on their
P 66 facts as leading to a series of separate contracts, there may be no exchange of
P 67 messages in relation to the arbitration agreement for each contract, with the consequent
problems as set out above for any such contract. Such developments in electronic
commerce may be regarded as one more argument underscoring the desirability of

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 preparing modern rules on the form of arbitration agreements.
APRIL 2000 WORKING GROUP REPORT A/CN.9/468 (10 APRIL 2000)
E. Requirement of written form for arbitration agreement
88. It was generally observed that there was a need for provisions which conformed to
current practice in international trade with regard to requirements for written form. It was
noted that the practice in some respects was no longer reflected by the position set forth
in article II(2) of the 1958 New York Convention (and other international legislative texts
modelled on that article) if interpreted narrowly. It was also noted that national courts
increasingly adopted a liberal interpretation of those provisions in accordance with
international practice and the expectations of parties in international trade; nevertheless,
it was observed, some doubts remained or views differed as to their proper interpretation.
The existence of those doubts and a lack of uniformity of interpretation was a problem in
international trade in that it reduced the predictability and certainty of international
contractual commitments. It was further noted that current arbitration practice was
different from what it was in 1958 in that arbitration was now widely accepted for
resolution of international commercial disputes and could be regarded as usual rather
than as an exception that required careful consideration by the parties before choosing
something other than litigation before the courts.
89. It was observed that in many countries the arbitration agreement was required to be in
writing to serve certain functions which included: providing evidence as to the conclusion
of the agreement; enabling the parties to that agreement to be identified; and providing a
warning as to the importance of renouncing rights of recourse to the courts. The view was
expressed that, given the importance of those functions, the requirement for a strict
interpretation of what constituted a writing should be preserved. In reply, it was suggested
that, because the development of arbitration practice between 1958 and the current time
made arbitration the preferred or the usual method for international commercial dispute
resolution, the warning function was no longer as important as formerly.
90. It was also observed that a number of countries had no requirement for arbitration
agreements to be concluded in writing in order to be valid, a situation which did not
create problems with respect to proving an arbitration agreement since evidence of the
existence of an agreement could be produced in any way that would suffice to prove the
existence of a contract under general law. In order to accommodate not only those current
developments in arbitration practice, but also likely future developments, the view was
expressed that it might be appropriate to consider removing the writing requirement and
P 67 aligning the practice with respect to arbitration agreements with that of contracts more
P 68 generally. Another suggestion was that it might be possible to focus on the
circumstances in which an agreement might be considered to have been concluded. Those
circumstances could include where there was an agreement in writing; where an agreement
was evidenced by any other means as set forth in article 6 of the UNCITRAL Model Law on
Electronic Commerce; where the agreement was concluded in accordance with usage
recognized by the parties; or where the agreement was concluded in accordance with a
usage of which the parties were aware or should have been aware because it pertained to
the particular trade in which the parties were engaged.
91. As to the way in which an updated and uniform interpretation of the writing
requirement could be achieved, a number of suggestions were made. One approach was to
develop a model legislative provision, based upon article 7 of the UNCITRAL Model Law on
International Commercial Arbitration, to clarify for the avoidance of doubt the
interpretation of the requirement for writing since that provision represented a widely
accepted international standard on which considerable practice had developed.
Suggestions were made that the model legislative provision might possibly follow a more
general approach such as the one in article 178(1) of the Swiss Federal Act of Private
International Law, in article 1021 of the Arbitration Act of the Netherlands, or the somewhat
more detailed approach in section 1031 of the German Arbitration Law of 1997 or section 5
of the English Arbitration Act of 1996 (those national legislative provisions are reproduced
in paras. 29–31 of [the January 2000 Secretariat Note,] A/CN.9/WG.II/WP.108/Add.1). Another
suggestion, which addressed the issue in terms of the impact of electronic commerce, was
to promote the adoption of the UNCITRAL Model Law on Electronic Commerce, which would
have the advantage of addressing the writing issue at a broader level than that related
simply to arbitration agreements (for the discussion of this topic, see below, paras. 100–
106). An alternative view was that no new provisions were needed, as article 7 of the
UNCITRAL Model Law on International Commercial Arbitration itself was sufficient for the
purpose of providing an updated standard. Promoting wider adoption and uniform
interpretation of the Model Law would lead, in time, to the required level of international
uniformity.
92. Noting that there was a need for article II(2) of the New York Convention to be
interpreted in accordance with a desired updated standard as to the form requirement,
the Working Group discussed the question of how that objective could best be achieved. A
number of different views were expressed on the issue. One view was that a protocol
amending the terms of article II of the New York Convention was required. Another view was
that amending the New York Convention in that way was a course of action likely to
exacerbate the existing lack of harmony. It was observed that the Convention was widely

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 adopted and extremely successful; that discussing changes to the writing requirement of
the Convention could lead to suggestions for changes to other provisions which should not
be reopened; and that adoption of a protocol by a number of countries was likely to take a
significant number of years and, in the interim, to create more uncertainty as two different
regimes would potentially apply.
P 68
P 69 93. An alternative suggestion was for the adoption of a declaration, resolution or
statement addressing the interpretation of the Convention and providing that, for the
avoidance of doubt, article II(2) of the Convention was intended to cover certain situations
or to have a certain effect. It was observed that although that instrument would not be
formally adopted as a treaty by States members of the Convention, it would potentially
have persuasive force and could be considered as material assisting with the
interpretation of the Convention within the terms of the Vienna Convention on the Law of
Treaties. It was noted that a similar approach had been adopted in relation to other
conventions, such as the Convention on the Law applicable to Contractual Obligations
(Rome, 1980) and the Convention on the Law applicable to International Sales of Goods
(The Hague, 1955). As to the body to adopt such a statement or declaration, it was
suggested that UNCITRAL, the core legal body in the United Nations system for the
development of international trade law and a body whose work in the area of arbitration
had gained universal recognition, was the appropriate body to take such an action.
Alternatively, States members of the New York Convention might take that action. Concerns
were expressed that that approach might create uncertainty as to the status of those
States not accepting the instrument and as to the possible application of reciprocity
between States. It was also suggested that a declaration or recommendation was not
binding on national courts and there was therefore no certainty that it would be
universally followed, even if promoted by UNCITRAL.
94. As a further alternative, it was suggested that a liberal interpretation of the New York
Convention should be encouraged by following the approach of some courts as noted in
[the January 2000 Secretariat Note,] A/CN.9/WG.II/WP.108/Add.1 at footnote 9, according to
which the writing requirement in the New York Convention should be interpreted in the
light of the subsequent UNCITRAL Model Law, whose authors wished to adapt the regime of
the Convention to current needs without modifying the Convention. Another possibility
suggested was to prepare practice guidelines or notes which could set out the use of
article 7 of the Model Law as an interpretation tool to clarify the application of article II(2),
along the lines discussed in paragraphs 33 and 34 of [the January 2000 Secreatriat Note,]
A/CN.9/WG.II/WP.108/Add.1.
95. The Working Group exchanged views as to whether the cases listed at paragraph 12 of
[the January 2000 Secretariat Note,] A/CN.9/WG.II/WP.108/ Add.1 would be covered by
national law provisions addressing form requirements for the arbitration agreements,
particularly in States that had not enacted the Model Law. A number of different views
were expressed and it was clear that there was no common position for all States. It was
also noted that the answer might differ if the question related to enforcement of a
domestic award or a foreign award, where the terms of the New York Convention would be
relevant. Cases (a) to (h), which related to issues of writing and exchange, and thus to the
manifestation of the will of the parties, were said to be distinguishable from cases (i) to (l),
which were considered to relate to matters outside the form requirement and were
covered by the law governing the way in which rights and obligations that were validly
assumed by a party (including those arising from an arbitration agreement) were
transferred from that party to third parties or were extended to include third parties. The
P 69 discussion showed that in some States cases (a) to (h) would generally be covered by
P 70 the requirements of national law relating to the form of arbitration agreements, while in
others it was said that certain cases would not be covered or that it was doubtful whether
they were covered. Cases (a) and (d), for example, were not covered in some States with a
more restrictive interpretation of the writing requirement. In some cases, the question of
coverage depended upon what was intended by the parties and no clear general answer
could be given. Case (c) was said to be covered in some cases if the broker was deemed to
represent both parties to the agreement, but was not covered if it was not representing
both parties. As to bills of lading (which were typically signed by the master of the ship
only), it was said that they were generally regarded by the participants in the shipping
industry as evidence of valid and binding agreements to arbitrate or that, despite certain
doubts, they were regarded as valid as cases sui generis. It was suggested that cases (i) to
(l), which raised issues of assignment, subrogation, incorporation by reference and third
party rights, should not be addressed by the Working Group. Case (m) was widely
considered to raise difficult issues and had not gained wide acceptance.
96. The Working Group also considered whether article II(2) of the New York Convention
could be interpreted to cover all of the cases listed in paragraph 12. As in the case of
national law provisions, the views expressed in the Working Group differed as to the
various cases and whether or not the Convention would be interpreted to cover all of them.
It was noted that the views were somewhat tentative because the cases considered were
described too generally to allow definitive answers; nevertheless, the discussion showed
that it was either doubtful or that there was no general agreement as to whether or not
article II(2) of the New York Convention should be interpreted to cover all of the cases in
paragraph 12. In addition, it was not clear how frequently the issues set forth in paragraph
12 arose in practice and how urgent they might therefore be considered to be.

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 97. The Working Group heard statements showing that there existed in court practice a
trend towards a more liberal and updating interpretation of article II(2) of the Convention.
One example that was discussed was that of England where the expression “The term
‘agreement in writing’ shall include” (emphasis added) in article II(2) of the Convention
indicated that the list of forms mentioned therein was not exhaustive and could be
extended to cover a wider variety of circumstances. Such an interpretation would mean, it
was suggested, that most of the cases set forth in paragraph 12 would be covered by the
Convention. The scope of the provision, however, was not unlimited. As a minimum form
requirement, the English Arbitration Act 1996 did contain a requirement for some writing in
connection with the arbitration agreement—the terms of the arbitration agreement must
be set out in writing even if the party expressed consent to those terms in some way other
than by writing such as by oral agreement or by part performance of the contract. The view
was expressed that what the Working Group should consider was not whether the cases set
out in paragraph 12 were covered by the Convention or not, but whether article II(2) could
be regarded as an exhaustive provision and, if not, what the minimum form requirement
P 70 for an arbitration agreement to be covered by the Convention should be. A different view
P 71 of article II(2) was that it provided a uniform rule on the types of situations which were
intended to be covered by the Convention and that (while requirements more restrictive
than the ones specified in article II(2) were not permitted by the Convention) less
restrictive requirements than the ones in article II(2) were not covered by the Convention.
On that view, not all of the cases in paragraph 12 would be covered by article II(2). It was
noted at the end of the discussion that the question of whether article II(2) established a
uniform rule or a minimum standard remained controversial.
98. After discussion, no agreement was reached as to whether article II(2) of the New York
Convention would be interpreted to cover the particular cases set forth in paragraph 12.
However, the Working Group considered the question of whether those cases should be
covered by the writing requirement and how that could be achieved. There was general
support for the view that contract practices and the role of international commercial
arbitration in international trade required that in principle all cases mentioned in
paragraph 12 (with the possible exception of the case of “group of companies” mentioned
under (m)) should be included as meeting the written form requirement, provided that
there was an agreement in substance between the parties (or that a party subsequently
became bound by an arbitration agreement), together with written evidence of that
agreement, which, however, did not amount to requiring a document signed by both
parties or an exchange of messages between the parties. It was felt that that approach
would comply with two considerations underlying the form requirement for the arbitration
agreement: (a) that there was sufficient evidence of the mutual will to arbitrate and thus to
exclude court jurisdiction and (b) that there was some writing with respect to arbitration
and thus the parties were on notice (or were warned) that they were excluding court
jurisdiction. In that connection an observation was made that the purpose of parties when
they agreed to arbitration was to avoid all courts and that in most multinational cases it
would be difficult to determine which was the court whose jurisdiction was being excluded;
therefore, it was said, the warning function in international trade, in light of the growing
importance of arbitration, was losing its importance.
99. After discussion, the view was adopted by the Working Group that the objective of
ensuring a uniform interpretation of the form requirement that responded to the needs of
international trade could be achieved by: preparing a model legislative provision
clarifying, for avoidance of doubt, the scope of article 7(2) of the UNCITRAL Model Law on
International Commercial Arbitration; preparing a guide explaining the background and
purpose of the model legislative provision; and adopting a declaration, resolution or
statement addressing the interpretation of the New York Convention that would reflect a
broad understanding of the form requirement. As to the substance of the model legislative
provision and the interpretative instrument to be prepared, the Working Group adopted
the view that, for a valid arbitration agreement to be concluded, it had to be established
that an agreement to arbitrate had been reached and that there existed some written
evidence of that agreement. It was noted that the issue of how best to achieve uniform
interpretation of the New York Convention through a declaration, resolution or statement
should be further studied, including the public international law implications, to
determine which was the optimal approach.
P 71
P 72
F. Arbitration agreement “in writing” and electronic commerce
100. The Working Group considered the question of whether article II(2) of the New York
Convention should be interpreted broadly to include communications by electronic means
as defined by the UNCITRAL Model Law on Electronic Commerce in article 2. It was recalled
that the Guide to Enactment to the Model Law, an instrument adopted by the Commission,
was drafted with a view to clarifying the relationship between the Model Law on Electronic
Commerce and international instruments such as the New York Convention and other trade
law instruments. The Guide, at paragraph 6, suggested that the Model Law on Electronic
Commerce “may be useful in certain cases as a tool for interpreting existing international
conventions and other international instruments that create legal obstacles to the use of
electronic commerce for example by prescribing that certain documents or contractual
clauses be made in written form”. It was also noted that article 7(2) of the Model Law on

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 International Commercial Arbitration expressly validated the use of any means of
telecommunication “which provides a record of the agreement”, a wording which would
cover telecopy or facsimile messages as well as most common uses of electronic mail or
electronic data interchange (EDI) messaging.
101. There was general agreement in the Working Group that, in order to promote the use of
electronic commerce for international trade and leave the parties free to agree to the use
of arbitration in the electronic commerce sphere, article II(2) of the New York Convention
should be interpreted to cover the use of electronic means of communication as defined in
article 2 of the Model Law on Electronic Commerce and that it required no amendment to
do that. It was also considered that, in addition to the New York Convention, other
conventions relevant to international arbitration such as the European Convention on
International Commercial Arbitration (Geneva, 1961) and the Inter-American Convention on
International Commercial Arbitration (Panama, 1975), should also be interpreted in the
same way. As doubts were raised as to whether UNCITRAL was the appropriate forum to
address that issue in respect of all of those Conventions, it was agreed that the issue
should be studied and the optimal solution found in consultation with the organizations
that sponsored the preparation of those conventions.
102. On the question of how the desired updating interpretation could be achieved, the
Working Group made a number of proposals. One proposal was that the Model Law on
Electronic Commerce could be used as an interpretative instrument as noted in the Guide
to Enactment. Concern was expressed that that approach might have limited effect. While
the Model Law was being applied in an increasing number of countries, it was not
universally adopted. Furthermore it was noted that, because of the flexibility of the model
law form, the Model Law might be enacted in different ways and that, therefore, the
desired uniform interpretation would not be achieved.
103. A second proposal was for a declaration confirming the desired interpretation to be
P 72 adopted by UNCITRAL or perhaps by the States members of the Conventions. In support of
P 73 the use of a declaration, it was recalled that the Working Group had already considered
and identified that form of instrument as a potentially useful way of addressing the
interpretation of the writing requirement in article II(2) (see above, para. 93). It was
proposed that the same measure should apply to electronic communications, although
questions were raised as to whether the two declarations should be linked together. For
the same reasons as discussed in the context of the writing requirement, it was suggested
that any such declaration should be drafted on the basis that the UNCITRAL Model Law on
Electronic Commerce can be used, by itself, as a tool to interpret the Conventions and that
therefore the declaration should be framed in terms of “For the avoidance of doubt …” (see
above, para. 91).
104. A third proposal was to seek a solution in the context of a broader idea (which had
been raised and discussed by the Commission at its thirty-second session ([1999
Commission Report,] A/54/17, para. 316 [not reprinted])) of preparing an “omnibus” protocol
to amend multilateral treaty regimes to facilitate the increased use of electronic
commerce, as noted in paragraph 39 of [the January 2000 Secretariat Note,]
A/CN.9/WG.II/WP.108/Add.1. Little support was expressed in favour of that proposal. The
Working Group was of the view that more studies were needed before a decision could be
made on the nature of such instrument to be adopted and the possibility of drafting a
commentary was also voiced.
105. Having concluded the discussion on the desirability of ensuring that article II(2) of the
New York Convention (and the relevant provisions in other Conventions that followed that
model) would validate electronic communications, concerns were expressed as to possible
implications of limiting the proposed interpretative instrument to the requirement of
writing for the arbitration agreement. It was noted that other provisions in the New York
Convention (as well as in other Conventions on international commercial arbitration)
contained additional requirements of writing which, if not interpreted to include
electronic means of communication, might potentially operate as barriers to the
facilitation of electronic commerce. Included among those were the requirements to
provide originals of the arbitration agreement and the award in article IV of the New York
Convention. The view was expressed that the issue of electronic commerce should be
approached from a perspective broader than the writing requirement for the arbitration
agreement and that, in considering steps to be taken with respect to the writing
requirement for arbitration agreements, other form requirements in instruments governing
international commercial arbitration should also be studied. It was also suggested that
treating these issues as separate had the potential to encourage a proliferation of
interpretative declarations on points that may be regarded, in the future, as requiring
clarification.
106. After discussion, the Working Group requested the Secretariat to prepare a draft
instrument that would confirm that article II(2) of the New York Convention should be
interpreted to include electronic communications as defined by article 2 of the Model Law
on Electronic Commerce. In drafting that instrument, the Secretariat should study the
P 73 other form requirements in the New York Convention and prepare appropriate drafts to
P 74 facilitate discussion in the Working Group as to the treatment of other writing
requirements.

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 SEPTEMBER 2000 SECRETARIAT NOTE POSSIBLE UNIFORM RULES A/CN.9/WG.II/WP.110 (22
SEPTEMBER 2000)
I. Requirement of written form for the arbitration agreement
A. Introductory remarks
10. When the Working Group at its thirty-second session considered the issue of the
requirement of written form for an arbitration agreement, it was generally observed that
there was a need for provisions which conformed to current practice in international trade
with regard to requirements for written form. It was noted that the practice in some
respects was no longer reflected by the position set forth in article II(2) of the New York
Convention (and other international legislative texts modelled on that article) if
interpreted narrowly. It was also noted that national courts increasingly adopted a liberal
interpretation of those provisions in accordance with international practice and the
expectations of parties in international trade; nevertheless, it was observed, some doubts
remained or views differed as to their proper interpretation. The existence of those doubts
and a lack of uniformity of interpretation was a problem in international trade in that it
reduced the predictability and certainty of international contractual commitments. It was
further noted that current arbitration practice was different from what it was at the time
the New York Convention was adopted in that arbitration was now widely accepted for
resolution of international commercial disputes and could be regarded as usual rather
than as an exception that required careful consideration by the parties before choosing
something other than litigation before the courts ([April 2000 Working Group Report,]
A/CN.9/468, para. 88; further discussion is reflected in paras. 89 to 99 of that document).
11. After discussion, the view was adopted by the Working Group that the objective of
ensuring a uniform interpretation of the form requirement that responded to the needs of
international trade could be achieved by: preparing a model legislative provision
clarifying, for avoidance of doubt, the scope of article 7(2) of the UNCITRAL Model Law on
International Commercial Arbitration; preparing a guide explaining the background and
purpose of the model legislative provision; and adopting a declaration, resolution or
statement addressing the interpretation of the New York Convention that would reflect a
broad understanding of the form requirement. As to the substance of the model legislative
provision and the interpretative instrument to be prepared, the Working Group adopted
the view that, for a valid arbitration agreement to be concluded, it had to be established
that an agreement to arbitrate had been reached and that there existed some written
evidence of that agreement ([April 2000 Working Group Report,] A/CN.9/468, para. 99).
[.…]
P 74
P 75
B. Model legislative provision on written form for an arbitration agreement
15. In accordance with the decision of the Working Group, the Secretariat has prepared a
model legislative text revising article 7(2) of the UNCITRAL Model Law on International
Commercial Arbitration. (10)
Article 7. Definition and form of arbitration agreement
[Unchanged paragraph (1) of the Model Law:]
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not. An arbitration agreement may
be in the form of an arbitration clause in a contract or in the form of a separate
agreement.
Draft paragraph (2) of article 7:
(2) The arbitration agreement shall be in writing. For the purposes of this Law, “writing”
includes any form [alternative 1:] provided that the [text] [content] of the arbitration
agreement is accessible so as to be usable for subsequent reference, whether or not
it is signed by the parties [alternative 2:] which [provides] [preserves] a record of the
agreement, (11) whether or not it is signed by the parties.
(3) An arbitration agreement meets the requirement in paragraph (2) if:
(a) it is contained in a document established jointly by the parties;
(b) it is made by an exchange of written communications;
(c) it is contained in one party's written offer or counter-offer, provided that the
contract has been [validly] concluded by acceptance, or an act constituting
acceptance such as performance or a failure to object, by the other party;
(d) it is contained in a contract confirmation, provided that the terms of the
contract confirmation have been [validly] accepted by the other party, either
[expressly] [by express reference to the confirmation or its terms] or, to the
extent provided by law or usage, by a failure to object;
(e) it is contained in a written communication by a third party to both parties and
the content of the communication is considered to be part of the contract;
(f) it is contained in an exchange of statements [of claim and defence] [on the
substance of the dispute] in which the existence of an agreement is alleged by

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 one party and not denied by the other;
P 75 (g) [it is contained in a text to which reference is made in a contract concluded
P 76 orally, provided that such conclusion of the contract is customary, [that
arbitration agreements in such contracts are customary] and that the reference
is such as to make that clause part of the contract.]
(4) The reference in a contract to a text containing an arbitration clause constitutes an
arbitration agreement provided that the contract is in writing and the reference is
such as to make that clause part of the contract.
Notes
16. Draft paragraph (3) sets out in some detail the situations in which an arbitration
agreement meets the requirement in paragraph (2). The Working Group may wish to
consider whether the broad purpose of paragraph (3) might be achieved by a shorter and
more general formulation along the lines of:
(3) An arbitration agreement meets the requirement in paragraph (2) if it is
contained in a document transmitted from one party to the other party or by a
third party to both parties, provided that the content of the document is
considered to be part of the contract in accordance with law or usage.
17. The Working Group considered at its thirty-second session several typical examples of
situations where the parties have agreed on the content of a contract containing an
arbitration agreement and where there is written evidence of the contract, but where,
nevertheless, current law, if interpreted narrowly, may be construed as invalidating or
calling into question the validity of the arbitration agreement. This may happen where (a)
the parties have not signed a document containing the arbitration agreement (which
regularly occurs when the parties are not at the same place when concluding the contract)
and where (b) the procedure used by the parties for concluding the contract does not meet
the test of “exchange of letters or telegrams” (art. II(2) of the New York Convention), if that
test is interpreted literally. These fact situations include the following:
(a) A contract containing an arbitration clause is formed by one party sending written
terms to the other, which performs its bargain under the contract without returning or
making any other “exchange” in writing in relation to the terms of the contract;
(b) A contract containing an arbitration clause is formed on the basis of the contract text
proposed by one party, which is not explicitly accepted in writing by the other party,
but the other party refers in writing to that contract in subsequent correspondence,
invoice or letter of credit by mentioning, for example, its date or contract number;
(c) A contract is concluded through a broker who issues the text evidencing what the
parties have agreed upon, including the arbitration clause, without there being any
direct written communications between the parties;
(d) Reference in an oral agreement to a written set of terms, which may be in standard
form, that contain an arbitration agreement;
P 76
P 77
(e) Bills of lading which incorporate the terms of the underlying charterparty by
reference;
(f) A series of contracts entered into between the same parties in a course of dealing,
where previous contracts have included valid arbitration agreements but the
contract in question has not been evidenced by a signed writing or there has been no
exchange of writings for the contract;
(g) The original contract contains a validly concluded arbitration clause, but there is no
arbitration clause in an addendum to the contract, an extension of the contract, a
contract novation or a settlement agreement relating to the contract (such a “further”
contract may have been concluded orally or in writing);
(h) A bill of lading containing an arbitration clause that is not signed by the shipper or
the subsequent holder;
(i) Third party rights and obligations under arbitration agreements in contracts which
bestow benefits on third party beneficiaries or stipulation in favour of a third party
(stipulation pour autrui);
(j) Third party rights and obligations under arbitration agreements following the
assignment or novation of the underlying contract to the third party;
(k) Third party rights and obligations under arbitration agreements where the third party
exercises subrogated rights;
(l) Rights and obligations under arbitration agreements where interests in contracts are
asserted by successors to parties, following the merger or demerger of companies, so
that the corporate entity is no longer the same. (12)
18. The Working Group may wish to discuss the draft model provision in the light of these
factual situations with a view to determining whether the draft adequately covers them, to
the extent the Working Group intends them to be covered.
19. Case (a) (conclusion of the contract other than by sending a message) is intended to be
dealt with by draft paragraph (3)(c) and (d) of the draft. Case (b) (reference to the contract

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 terms in subsequent correspondence) may be regarded as resolved in that draft paragraph
(3) does not require a written acceptance of the contract terms containing an arbitration
clause (moreover, many courts have interpreted the current text of article II of the New
York Convention so that a reference in subsequent correspondence to the contract text
proposed by the other party constitutes acceptance of those terms including the
arbitration clause). Case (c) (broker) is covered by draft paragraph (3)(e). Case (d) (oral
reference to written terms) is addressed in draft paragraph (3)(g).
P 77
P 78
20. As to cases (f) and (g) (a contract with an arbitration agreement is followed by an
another contract, an addendum, an extension, a novation or settlement), it appears that
conclusions reached by the courts to a large extent depended on the facts of the case. In
particular, the courts have sought solutions by interpreting the original contract and the
subsequent agreements and establishing whether the parties intended that some terms in
the original contract, including the arbitration agreement, were to be carried over into the
subsequent agreement. Nevertheless, it appears that, in addition to the facts of the case,
courts have been guided by their view of arbitration and whether the writing requirement
should be interpreted broadly or narrowly. For example, when considering whether a
subsequent oral agreement fell within the scope of the arbitration clause in the original
contract, one court said that in view of the strong policy in favour of arbitration only in
those cases where it can be said with absolute certainty that the parties did not intend to
submit the dispute to arbitration will the dispute not be referred. In a similar case in
which the original written contract was followed by another related contract, another court
took the view that even if the court were to construe the agreement narrowly, the evidence
was insufficient to prove conclusively that the parties did not intend to arbitrate the
dispute so the court felt required to refer the dispute to arbitration. On the other hand, in
considering whether a protocol to a contract was covered by the arbitration clause in the
original contract, the court held that the clause did not extend to the protocol because, in
order for the clause to be binding, the parties would have to indicate that intention with
utmost precision. The additional question whether, where a dispute on a contract is settled
and a further dispute concerning the settlement agreement arises, the arbitration clause
in the original contract covers the subsequent dispute has also not been resolved by courts
in a uniform manner.
21. The indicated lack of uniformity of approaches to situations (f) and (g) may be regarded
as a problem in international trade. However, since the outcome of these situations
appears to depend heavily on the facts of each case and the interpretation of the will of
the parties, it may be difficult to devise a legislative solution that would be meaningful
and generally acceptable. Nevertheless, the draft model provision may help resolve some
of those issues, in particular where the parties have intended to subject the subsequent
contract to the earlier contract containing an arbitration agreement, but the subsequent
contract has not been signed by both parties or is not contained in an exchange of writings.
22. In considering cases (i) to (l) it is assumed that the arbitration agreement has been
validly concluded by one pair of parties (or a set of multiple parties) and the issue is
whether a third person who later becomes party to the contract, or becomes entitled to
rely on the contract term, also becomes party to the arbitration agreement. A third person
may become party to the contract, or may assume rights and obligations therefrom, by
agreement between the original parties to the contract (such as when a contract confers a
benefit to a third party, where a contract or certain contractual rights are assigned to a
third party, where a new person becomes party to a contract as a result of novation, or
where as a result of a merger or demerger of legal persons a new legal person is in a
P 78 position to exercise rights and obligations). A third person may also become party to the
P 79 contract by the operation of law, such as, for example, where an insurer, by way of
subrogation, becomes entitled to exercise rights of the insured party. Such cases have
been dealt with by courts, and solutions have been reached by interpreting the law
governing the transfers of contractual rights and obligations.
23. When the Working Group discussed the cases (i) to (l), it was suggested that they should
not be addressed by a model legislative provision ([April 2000 Working Group Report,]
A/CN.9/468, para. 95). The Working Group may wish to agree with the suggestion.
Alternatively, it may wish to study the matter further with a view to deciding whether it
would be useful to express the principle to the effect that where a person who is not a
party to a contract becomes (by agreement of the contract parties or by the operation of
law) a party to the contract, or may in its own right invoke or enforce a term of the contract,
any arbitration agreement in the contract is binding on that person.
Bill of lading (cases (e) and (h))
24. The use of bills of lading raises various issues regarding the validity of an arbitration
agreement. One issue depends on whether the bill of lading itself contains an arbitration
clause or whether the bill of lading is issued under a charterparty, which typically means
that the bill does not contain an arbitration clause but rather refers, in varying terms, to
the clauses contained in the charter-party and among them an arbitration clause. The law
(including case law) is not well settled as to what kind of reference is necessary for the
arbitration clause to be validly incorporated into the bill of lading. For example, a general
reference such as “all terms and conditions as per charter-party” is sometimes considered

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 sufficient to incorporate the arbitration clause, but not always. It has been, for instance,
regarded as an insufficient reference if the arbitration clause in the charter-party is
worded as covering “disputes arising under the charter-party” without expressly referring
to disputes under the bill of lading; in such a case, a more specific reference has been
required in order for the wording of the arbitration clause to be “manipulated” to cover
also disputes under the bill of lading. On the other hand, a general reference has been
regarded as sufficient if the arbitration clause in the charter-party is worded to cover
disputes under the charter-party and under the bill of lading issued under the charter-
party. Some national laws have adopted a specific provision on this issue. The Working
Group may wish to consider that this matter is appropriately dealt with by draft paragraph
(4), which leaves the question of what constitutes a valid reference to the law governing the
incorporation by reference generally or to any special provisions on the incorporation of
arbitration clauses contained in charter-parties into bills of lading.
25. Another issue might arise from the practice according to which bills of lading are signed
by the carrier only and not by the other contracting party (the consignor/shipper). Under
current law this issue has been solved in different ways such as that arbitration clauses in
bills of lading are binding on the shipper, because they are regarded as cases sui generis
that do not require a written message or signature of the shipper; because the writing
requirement is interpreted broadly to cover the practices of issuance of bills of lading; or
P 79 because the shipper (by preparing and giving to the carrier certain written information to
P 80 be included in the bill of lading, in particular regarding the description of the goods, or
filling out the blank form of a bill which contains an arbitration clause) is considered as
having conveyed a written communication to the carrier who in turn signs the bill and gives
it to the shipper. In any case, the Working Group may consider that this issue is adequately
addressed by draft paragraph (3)(c).
26. A further issue concerning bills of lading is whether the consignee (who is not the
contracting party at the time the bill of lading is issued) becomes bound by the arbitration
clause in the bill of lading upon a valid transfer or endorsement of the bill. (13) Although
many courts have reached the conclusion (some supported by specific legislation and
others not) that the consignee is bound by the arbitration agreement in the bill of lading,
there are some that would not reach that conclusion. Even if the consignee becomes bound
by the arbitration agreement in the bill of lading, uncertainties may exist as to the exact
moment when the consignee becomes so bound (e.g. as of when it has taken or demanded
delivery of the goods from the carrier). The Working Group may wish to regard this issue as
a specific issue similar to those discussed above in paragraphs 22 and 23, which is rooted
in the law of transport and that, if any solution should be adopted, it should not interfere
with the law governing the transfer of contractual rights and obligations to third parties.
DECEMBER 2000 WORKING GROUP REPORT A/CN.9/485 (20 DECEMBER 2000)
II. Requirement of written form for the arbitration agreement
A. General remarks
21. The Working Group commenced its considerations by noting that the provisions on the
form of arbitration agreements (as set out in particular in article II(2) of the New York
Convention and article 7(2) of the Model Law on Arbitration) did not conform to current
practices and expectations of the parties if they were interpreted narrowly. It was noted
that, while national courts increasingly adopted a liberal interpretation of those
provisions, views differed as to their proper interpretation. Those differences and the lack
of uniformity of interpretation were a problem in international trade which reduced the
predictability and certainty of international contractual commitments.
22. The Working Group recalled the decision taken at its thirty-second session that, in order
to ensure a uniform interpretation of the form requirement that responded to the needs of
international trade, it was necessary to prepare a modification of article 7(2) of the Model
Law on Arbitration with an accompanying guide to enactment and to formulate a
declaration, resolution or statement addressing the interpretation of article II(2) of the
P 80 New York Convention that would reflect a broad and liberal understanding of the form
P 81 requirement. As to the substance of the model provisions and the interpretative
instrument to be prepared, the Working Group, recalling its considerations at its previous
session ([April 2000 Working Group Report,] A/CN.9/468, para. 99), confirmed the view that,
for a valid arbitration agreement to be concluded, it had to be established that an
agreement to arbitrate had been reached and that there existed some written evidence of
the terms and conditions of that agreement.
B. Proposed text to revise article 7(2) of Model Law on Arbitration
23. The Working Group proceeded to consider a revision of article 7(2) of the Model Law on
Arbitration as presented and commented upon in [the September 2000 Secretariat Note,]
A/CN.9/WG.II/WP.110, paragraphs 15 to 26. The draft text discussed by the Working Group
was as follows:
[reprinted supra.]
Paragraph (1)
24. The Working Group agreed to leave paragraph (1) unchanged.

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 Paragraph (2)
25. Some support was expressed for alternative 2 since it was concise and well understood
and tested on account of being included in article 7(2) of the Model Law on Arbitration.
However, the widely prevailing view was to prepare a provision based on alternative 1,
which was modelled on articles 2(a) and 6(1) of the UNCITRAL Model Law on Electronic
Commerce. The reasons for the view were: that the UNCITRAL Model Law on Electronic
Commerce expressed the most recent view of the Commission on how to deal with issues of
electronic commerce; that it was desirable to maintain as much as possible harmony
between that Model Law and the Model Law on Arbitration; and that alternative 1 provided
more guidance than alternative 2. Having taken that decision, there was no doubt in the
Working Group that alternatives 1 and 2 were in substance based on the same policy and
that, by adopting alternative 1, the Working Group did not intend to produce a result that
would be different from the result obtained under alternative 2.
26. As to the alternative words “text” and “content” in alternative 1, under one view the
word “text” was to be preferred since it was more neutral (in that it did not imply the
awareness of a party about the content of the terms of the agreement to arbitrate) and
since it was more usual in legislative drafting. Under another view, however, the word
“content” was preferable because it better expressed the idea of deformalization of the
process of concluding an arbitration agreement and included electronic form. Recognizing
that neither word was fully satisfactory, the Working Group explored various ideas. One was
to replace the notion of text/content with the concept of “information”, which was used in
the UNCITRAL Model Law on Electronic Commerce. Another idea was to delete in
alternative 1 the words “provided that the [text] [content] of the arbitration agreement is”
A further idea was to leave in paragraph (2) its first sentence and to move the substance of
P 81 the second sentence to paragraph (3) to read along the lines of “an arbitration agreement
P 82 meets the requirement in paragraph (2) if it is in any form accessible so as to be usable
for subsequent reference”. An alternative idea of how to amalgamate the second sentence
of paragraph (2) and paragraph (3) was to use the expression “any form which provides a
record of the agreement [accessible for subsequent reference] whether or not signed by
the parties”. Those ideas of combining the second modified sentence of paragraph (2) with
paragraph (3) were criticized. It was said that paragraph (2) defined the form of the
arbitration agreement in general and therefore it did not fit in paragraph (3), which dealt
with examples of specific types of contract practices. In addition, it was said that the
notion of “record” (which did not imply an exchange of messages) did not adequately
reflect the fact that arbitration agreements were often concluded by sending messages.
The UNCITRAL Model Law on Electronic Commerce, in order to avoid that narrow meaning
of “record”, used in article 6 the concept of “data message”, which was defined in article
2(a) of that Model Law as “information generated, sent, received or stored by electronic,
optical or similar means including, but not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy”. It was said that those considerations and the
terminology used by the UNCITRAL Model Law on Electronic Commerce spoke in favour of
using the term “information”. Yet another idea was to use the expression along the lines of
“any form of communication which allows the arbitration agreement to be evidenced by an
[electronic or other] record”. After discussion, a consensus developed supporting the idea
of avoiding the terms “text” and “content” altogether.
27. It was also suggested that the draft provision should be formulated in terms of “for the
avoidance of doubt” so as to make it clear that the provision was not intended to modify
article 7 of the Model Law on Arbitration but only to clarify it so as to reflect current
practice and the interpretation given by many courts to the current wording of article 7 of
that Model Law.
Paragraph (3)
28. The Working Group engaged in a general discussion as to the desirability of listing in
paragraph (3) situations in which an arbitration agreement met the requirement of
paragraph (2). According to one view, it was not desirable to list those situations since they
might prove to be too limiting and may leave uncertain the situations that were not
specifically mentioned. Therefore, it was preferable to retain in the model provision the
general principle in paragraph (2) and to list situations intended to be covered in a guide
to enactment. The opposing view was that, in order to harmonize the interpretations given
to the current text of article II(2) of the New York Convention and 7(2) of the Model Law on
Arbitration, it was desirable to provide more concrete guidance to judges and arbitrators
and that, for that reason, the current concept of paragraph (3) was preferable.
29. Without resolving the approach to the structure and level of generality of paragraphs (2)
and (3) at that stage of the discussion, the Working Group embarked on a consideration of
the subparagraphs in paragraph (3) in order to take a position as to whether the situations
dealt with therein should be covered by the model legislative provision to be drafted.
P 82
P 83
Subparagraphs (a) and (b)
30. It was noted that the situations dealt with in subparagraphs (a) and (b) were expressly
covered by article 7(2) of the Model Law on Arbitration and there was no doubt that those
situations should be encompassed in the model provision. It was agreed that in the

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 situation dealt with in subparagraph (a) the signatures of the parties were not required; to
make that clearer, a suggestion was made to state that expressly in subparagraph (a). The
expression “document established jointly” was criticized as unclear in that it raised
questions as to how a document was to be established and what were the implications of
the term “joint”. An alternative expression suggested was “document agreed upon”.
Subparagraph (c)
31. It was agreed that where the contract was concluded tacitly in a manner described in
subparagraph (c), an arbitration clause contained in that contract should be binding.
32. It was suggested to include in subparagraph (c) words along the lines of “to the extent
permitted by law or usage” (which appeared in subparagraph (d)) in order to indicate that
national laws provided conditions under which performance and a failure to object to a
contract offer led to a valid contract and that those conditions and usages were not
uniform.
33. It was suggested to delete the word “validly” because it was unnecessary or because it
raised factual and legal issues that were not related to the form requirement and because
it might give rise to unnecessary argument. After discussion, it was decided to delete that
word and it was suggested to add a qualification along the lines of “to the extent permitted
by law or usage”.
34. Observations were made that the draft provision attempted to deal with both the form
required for a valid arbitration agreement and with the issue of whether substantive
requirements for the conclusion of the contract and the arbitration agreement were met. It
was generally considered that the purpose of the provision was to resolve the issue of form
and that the provision should refrain to the extent possible from touching upon the
question of the substantive requirements for the validity of agreements.
Subparagraph (d)
35. In response to questions, it was explained that the concept of contract confirmation
referred to a situation in which the parties negotiated a contract orally, whereupon one of
the parties communicated in writing to the other party the terms of the contract and those
terms became binding on the parties if the written terms were not objected to. By relying
on that concept it was possible under some legal systems that a contract term contained
in a contract confirmation became binding even if the contract confirmation was not in all
details the same as the terms agreed upon orally. It was observed that the concept of
contract confirmation was not known in many legal systems, that it was ambiguous as
regards the fact situations covered and that, if it was to be included in the model
P 83 provision, it should be clarified. It was suggested that, to the extent that such conclusion of
P 84 a contract was possible under some national laws, there should be no objection in
principle against considering an arbitration clause contained in a contract confirmation as
valid. Replacing the term “contract confirmation” by the expression “a communication
confirming the terms of the contract” was proposed.
36. As to the expression “law or usage”, the relationship between the two notions was found
to be unclear. Also unclear was said to be the way in which the usage was to be
demonstrated. It was therefore suggested that the reference to “usage” should be deleted.
Without taking a decision on whether to retain those expressions, the Working Group
considered that, if the reference to the applicable law (or usage) be retained in
subparagraph (d), it should also be included in subparagraph (c).
Subparagraph (e)
37. It was agreed that the situation where the written communication containing an
arbitration agreement was issued only by a third party (such as a broker) should lead to a
valid arbitration agreement and should be covered by the model provision.
Subparagraph (f)
38. Agreement was expressed with the broad policy underlying subparagraph (f). As to the
alternative wordings in square brackets, one view favoured the words “statements on the
substance of the dispute” because they recognized that allegations of the existence of an
arbitration agreement may be contained not only in a statement of claim and defence but
also in other procedural submissions such as a notice of arbitration. The opposing view
favoured the words “statements of claim and defence”. It was said that an arbitration
agreement should be deemed to have been concluded only where it could reasonably be
expected that the addressee of a procedural submission could be expected to carefully
review it and reply to it; and that such an expectation existed with respect to statements
of claim and defence but not necessarily with respect to other procedural submissions.
Subparagraph (g)
39. Views were expressed that to recognize an oral reference to a text containing an
arbitration clause as an arbitration agreement in writing (as provided in subparagraph (g))
would be excessive because the nexus between the reference and the written terms of the
arbitration agreement was too tenuous. Therefore it was suggested that the subparagraph
should be deleted.
40. However, the widely prevailing view was that the model legislative provision should

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 recognize the existence of various contract practices in accordance with which oral
arbitration agreements were concluded with reference to written terms of an agreement to
arbitrate and that in those cases the parties had a legitimate expectation of a binding
agreement to arbitrate. On the basis of that view, broad support was expressed for the
concept of subparagraph (g).
41. A suggestion was made to make the operation of the provision conditional upon
P 84 whether the oral form of conclusion of an arbitration agreement was customary in
P 85 international trade, in much the same manner as with respect to clauses for the
prorogation of jurisdiction in article 17 of the Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters (Brussels, 1968). However, the
widely prevailing view was that references to “customary” in the draft provision should be
deleted. It was considered that the reply to the question of what was customary was
uncertain, invited argument and went against the trend of deformalizing arbitration
agreements. Furthermore, requirements that the oral conclusion of certain types of
contracts be customary or that arbitration agreements in certain types of contracts be
customary had more to do with substantive conditions for finding that an agreement to
arbitrate had been reached than with its form; since it was desirable that the model
provision limit itself to issues of form and not deal with substantive conditions for the
validity of arbitration agreements, the question of what was customary and how agreement
between the parties was reached fell outside the model provision. To the extent the guide
to enactment would clarify that any such conditions regarding custom were governed by
the law outside the model provision, it was suggested that the guide should recommend to
States that it was not necessary for the law to include such conditions.
Paragraph (4) (and its relation to paragraph (3)(g))
42. Agreement was expressed with the concept of paragraph (4). It was noted that
paragraphs (3)(g) and (4) dealt with two similar situations, the difference being that in
paragraph (3)(g) the reference to the written terms of an agreement to arbitrate (or to a
writing containing those written terms) was oral whereas in paragraph (4) the reference was
required to be in writing. Having adopted the substance of paragraph (3)(g) and paragraph
(4), suggestions were made to merge the two provisions along the following lines: the
reference in a contract concluded in any form to a text containing an arbitration clause
constitutes an arbitration agreement provided that the reference is such as to make that
clause part of the contract.
43. By way of a reservation to those suggestions, it was observed that paragraph (4) stated
a general principle (applicable when the parties concluded a contract in writing), which
merely clarified the writing requirement in article 7(2) of the Model Law on Arbitration,
whereas paragraph (3)(g) referred to a particular situation (such as a marine salvage
contract) where the parties, in concluding a binding oral contract, referred orally to a text
that contained an arbitration clause; thus, it was said, by merging the two provisions, the
particular situation dealt with in paragraph (3)(g) became a principle applicable generally.
In the light of that observation, it was suggested that the two provisions should be kept
separate.
44. The widely prevailing view, however, was that the purpose of adopting the substance of
paragraph (3)(g) was to deal with a broad spectrum of contract practices where the parties
orally referred to written terms of an agreement to arbitrate (either directly or indirectly
by referring to writings containing such written terms) and that therefore the two provisions
should be merged.
1. Related issues
P 85 45. Having concluded consideration of the draft provision, the Working Group discussed
P 86 cases described in paragraph 17 of [the September 2000 Secretariat Note,]
A/CN.9/WG.II/WP.110 which were not covered by the draft model provision as it was taking
shape in the discussion. The purpose of the discussion was to assess whether with respect
to those cases any action by the Working Group was called for.
46. The situations considered were those described in subparagraphs (f) and (g) of
paragraph 17:
“(f) A series of contracts entered into between the same parties in a course of
dealing, where previous contracts have included valid arbitration
agreements but the contract in question has not been evidenced by a
signed writing or there has been no exchange of writings for the contract;
(g) The original contract contains a validly concluded arbitration clause, but
there is no arbitration clause in an addendum to the contract, an
extension of the contract, a contract novation or a settlement agreement
relating to the contract (such a “further” contract may have been
concluded orally or in writing);”
47. Observations were made that, in the situations described in subparagraphs (f) and (g) of
paragraph 17 of [the September 2000 Secretariat Note,] A/CN.9/WG.II/WP.110 the courts had
sought solutions by interpreting the original contract and the subsequent agreements and
establishing whether the parties intended that some terms in the original contract,
including the arbitration agreement, were to be carried over into the subsequent or

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 related agreement. However, the general assessment of the Working Group was that the
outcome in those situations depended on the facts of each case and the interpretation of
the will of the parties and that a general legislative solution was not feasible.
Nevertheless, it was suggested that it might be useful to include in a guide to enactment a
statement to the effect that the circumstances of the case, usages, practices and the
expectations of the parties should be taken into account in interpreting particular cases
and discerning the will of the parties. It was also noted that the liberalization of the form
requirement as contemplated by the Working Group would help resolve some of the
uncertainties arising in those cases.
48. The Working Group then turned to the situations described in subparagraphs (i) and (l)
of paragraph 17:
“(i) Third party rights and obligations under arbitration agreements in
contracts which bestow benefits on third party beneficiaries or stipulation
in favour of a third party (stipulation pour autrui);
…
(l) Rights and obligations under arbitration agreements where interests in
contracts are asserted by successors to parties, following the merger or
demerger of companies, so that the corporate entity is no longer the
same.”
49. In that connection the Working Group also considered the situation where a bill of
lading was assigned to a subsequent holder and the question was whether that holder
P 86 became bound by the arbitration clause contained in the bill of lading. It was noted that in
P 87 many States the passing of contractual rights and obligations from one party to another
in principle also meant that the arbitration agreement covering those rights and
obligations passed. Nevertheless, it was said that a narrow reading of a provision such as
article II(2) of the New York Convention could be an obstacle to the principle that the
arbitration agreement should follow the contract of which it forms part. Some support was
expressed in favour of formulating a model legislative provision that would deal in a
general way with those cases (see para. 23 in [the September 2000 Secretariat Note,]
A/CN.9/WG.II/WP.110). The Working Group, however, was hesitant and decided to consider
the matter at a later stage.
2. Preparation of a draft on the basis of considerations in the Working Group
50. Having concluded its consideration of the draft provision as presented by the
Secretariat, the Working Group requested an informal drafting group composed of
interested delegates to prepare, on the basis of the considerations in the Working Group, a
draft that would serve as a basis for subsequent discussions.
51. The drafting group was requested to prepare a short version and a long version, each of
which would cover all of the circumstances referred to in paragraphs (2) and (3) of article 7
as set forth in paragraph 15 of [the September 2000 Secretariat Note,] A/CN.9/WG.II/WP.110.
It was reported that eight States and one nongovernmental organization participated in
the work of the drafting group. The drafting group prepared not only a short version and a
long version, but also a middle version. It was reported that each of those three versions
was intended to be identical in substance but with varying degrees of detail.
52. The text prepared by the drafting group was as follows:
Article 7. Definition and form of arbitration agreement
Short Version
“(1) ‘Arbitration agreement’ is an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether
contractual or not. An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing. A writing includes any form
accessible so as to be usable for subsequent reference.
(3) For the avoidance of doubt, in cases where under the applicable law or
rules of law an arbitration agreement or contract can be concluded other
than in writing, the writing requirement is met when an arbitration
agreement or contract so concluded refers to written arbitration terms
and conditions.
(4) Furthermore, an agreement is in writing if it is contained in an exchange of
written statements of claim and defence in which the existence of an
agreement is alleged by one party and not denied by the other.
(5) For purposes of article 35, the written arbitration terms and conditions,
P 87 together with any writing incorporating by reference or containing those
P 88 terms and conditions, constitute the arbitration agreement.”
Middle Version
“(1) ‘Arbitration agreement’ is an agreement by the parties to submit to

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 arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether
contractual or not. An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing. A writing includes any form
that provides a record of the agreement or is otherwise accessible so as to
be usable for subsequent reference, including electronic, optical or other
data messages.
(3) For the avoidance of doubt, in cases where under the applicable law or
rules of law a contract or arbitration agreement referred to in paragraph
(1) can be concluded orally, by conduct or by other means not in writing,
the writing requirement is met when the arbitration terms and conditions
are in writing, notwithstanding that the contract or arbitration agreement
has been so concluded or has not been signed by the parties.
(4) Furthermore, an arbitration agreement is in writing if it is contained in an
exchange of statements of claim and defence in which the existence of an
agreement is alleged by one party and not denied by the other.
(5) The reference in a contract to an arbitration clause not contained in the
contract constitutes an arbitration agreement provided that the reference
is such as to make that clause part of the contract.
(6) For purposes of article 35, the written arbitration terms and conditions,
together with any writing incorporating by reference or containing those
terms and conditions, constitute the arbitration agreement.”
Long Version
“(1) ‘Arbitration agreement’ is an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether
contractual or not. An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing. A writing includes any form
that provides a record of the agreement or is otherwise accessible so as to
be usable for subsequent reference, including electronic, optical or other
data messages.
(3) For the avoidance of doubt, in cases where under the applicable law or
rules of law a contract or arbitration agreement referred to in paragraph
(1) can be concluded orally, by conduct or by other means not in writing,
the writing requirement is met when the arbitration terms and conditions
P 88 are in writing, notwithstanding that the contract or arbitration agreement
P 89 has been so concluded or has not been signed by the parties.
(4) Furthermore, an arbitration agreement is in writing if it is contained in an
exchange of statements of claim and defence in which the existence of an
agreement is alleged by one party and not denied by the other.
(5) The reference in a contract to an arbitration clause not contained in the
contract constitutes an arbitration agreement provided that the reference
is such as to make that clause part of the contract.
(6) For purposes of article 35, the written arbitration terms and conditions,
together with any writing incorporating by reference or containing those
terms and conditions, constitute the arbitration agreement.
(7) Examples of circumstances that meet the requirement that an arbitration
agreement be in writing as set forth in this article include, but are not
limited to, the following illustrations: [Secretariat asked to prepare a text
based on Working Group's discussions].”
53. It was noted that the purpose of the draft provision was to clarify that the requirement
of writing was met if the arbitration terms and conditions (as distinguished from the acts
constituting the agreement of the parties to arbitrate) were in writing even if the contract
of which the arbitration agreement was a part or the arbitration agreement itself was
concluded, to the extent permitted under the applicable law or rules of law, in any form
other than writing, including orally or by conduct. It was also noted that (except as to
paragraph (4), which had served a specific purpose in the context of an arbitration
proceeding) the purpose of the draft model provision was to deal with issues of form and
not with the substantive issues of how contracts and agreements to arbitrate were entered
into. It was noted that those provisions covered all of the circumstances referred to in
paragraphs (2) and (3), except those that the Working Group had not approved.
54. Some support was expressed for the level of detail in the middle version. However, the
Working Group did not engage in a full consideration of the preferable version or
combination of versions or examples of circumstances that met the requirements set forth
in the draft provision or the question whether the model provision should include such
examples as envisaged in paragraph (7) of the long version.
55. It was observed that the situation dealt with in paragraph (5) in the middle and long

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 versions was covered by paragraph (3); it was explained that it was included in the draft
because its substance was contained in article 7 of the Model Law on Arbitration and its
exclusion might raise questions as to the implications of such exclusion.
56. As to draft paragraph (2), it was suggested that, as much as possible, the wording in the
UNCITRAL Model Law on Electronic Commerce should be followed.
P 89 57. Views were expressed that the drafting of paragraph (3) was unclear. In addition, it was
P 90 suggested that the expression “for the avoidance of doubt” was unusual in a number of
legal systems, that it was not needed and that it might be included in the guide to
enactment. It was explained that the expression was included in the draft to make clear
that the text was not intended to modify the existing requirements of article 7 of the Model
Law on Arbitration (or article II of the New York Convention) but only to clarify those
requirements. As to the expression “applicable law or rules of law”, it was suggested that,
while the distinction between “law” and “rules of law” was properly made with respect to
the law governing the substance of the dispute (e.g. in article 28 of the Model Law on
Arbitration), it was doubtful whether the distinction was appropriate in the context of the
provision on the form in which a contract or an agreement to arbitrate might be concluded.
58. A suggestion was made to delete draft paragraph (5) in the middle and long versions as
unnecessary. Another suggestion was that the model provision should refer to usages and
possibly also to the course of dealing between the parties, in the same manner as in article
17 of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters (Brussels, 1968).
59. The Secretariat was requested to prepare draft texts, possibly with alternatives, for
consideration at the next session, based on the discussion in the Working Group.
[Editors' Note: During discussion of an interpretive instrument regarding article II(2) of the
New York Convention, the following was also noted:]
D. Relationship to revision of article 7 of the Model Law on Arbitration
70. In the course of discussing the form of the instrument, it became clear to the Working
Group that the relationship between the proposed instrument and the amendment of
article 7 of the Model Law on Arbitration needed to be considered. It was acknowledged
that while promoting adoption of an amendment of article 7 of the Model Law on
Arbitration would be an effective means of achieving a broad interpretation of the form
requirement, although only in countries adopting the Model Law on Arbitration, it could
not address the issue of the New York Convention. It was observed that pursuing the
interpretative instrument and the amendment to the Model Law on Arbitration at the same
time would likely prove a more effective means of achieving of the desired objective. A
concern was expressed that basing the operative text of an interpretative declaration on
the proposed draft revision of article 7 of the Model Law on Arbitration might be thought
by some to go beyond the scope of the written form specified in article II(2) of the New
York Convention and in that regard it was suggested that the Working Group would need to
consider whether the amendment that the Working Group would decide upon for article 7
of the Model Law on Arbitration should be included in exactly the same form in the
interpretative instrument.
P 90
P 91
MARCH 2001 SECRETARIAT NOTE PREPARATION OF UNIFORM PROVISIONS
A/CN.9/WG.II/WP.113 (23 MARCH 2001)
I. Requirement of written form for the arbitration agreement
[.…]
A. Model legislative provisions on written form for the arbitration agreement
[Editors' Note: In summarizing the Working Group's prior discussions, the Secretariat
reproduced the Second Draft of the Revised Article 7 from the December 2000 Working Group
Report, A/CN.9/485, para. 52, with the addition of the following footnote at the end of
paragraph (7) of the “Long Version”:]
10. The examples may be the cases in draft article 7(3) reproduced in [the December 2000
Working Group Report,] A/CN.9/485, paragraph 23, as rewritten pursuant to the discussion
in the Working Group ([December 2000 Working Group Report,] A/CN.9/485, paragraphs 24–
44):
An arbitration agreement meets the requirement in paragraph (2) if [[December 2000
Working Group Report, A/CN.9/485,] paragraphs 28 and 29]:
(a) it is contained in a document agreed upon by the parties whether or not it is signed
by the parties; [[December 2000 Working Group Report, A/CN.9/485,]paragraph 30]
(b) it is made by an exchange of written communications; [[December 2000 Working
Group Report,] A/CN.9/485, paragraph 30]
(c) it is contained in one party's written offer or counter-offer, provided that [to the
extent permitted by law of usage] the contract has been concluded by acceptance, or
an act constituting acceptance such as performance or a failure to object, by the
other party; [[December 2000 Working Group Report, A/CN.9/485,] paragraphs 31–34]

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 (d) it is contained in a [contract confirmation] [communication confirming the terms of
the contract], provided that, to the extent permitted by law or usage, the terms of the
confirmation have been accepted by the other party, either [expressly] [by express
reference to the confirmation or its terms] or by a failure to object; [[December 2000
Working Group Report, A/CN.9/485,] paragraphs 35–36]
(e) it is contained in a written communication by a third party to both parties and the
content of the communication is considered to be part of the contract; [[December
2000 Working Group Report,] A/CN.9/485, paragraph 37]
(f) it is contained in an exchange of statements [of claim and defence] [on the substance
of the dispute] in which the existence of an agreement is alleged by one party and
not denied by the other; [[December 2000 Working Group Report,] A/CN.9/485,
paragraph 38]
(g) a contract concluded [in any form][orally] refers to an [arbitration clause][or
arbitration terms and conditions] provided that the reference is such as to make
[that clause][those terms and conditions] part of the contract. [[December 2000
Working Group Report,] A/CN.9/485, paragraphs 39–41].
[.…]
13. The Working Group briefly discussed the text prepared by the informal drafting group
(that discussion is reflected in [the December 2000 Working Group Report,] A/CN.9/485,
paragraphs 53–58). At the close of that discussion, the Secretariat was requested to
prepare draft texts, possibly with alternatives, for consideration at the next session, based
on the discussion in the Working Group ([December 2000 Working Group Report,]
A/CN.9/485, paragraph 59). The following text has been prepared pursuant to that request:
P 91
P 92
Article 7. Definition and form of arbitration agreement
[Unchanged paragraph (1) of the UNCITRAL Model Law on Arbitration:]
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not. An arbitration agreement may
be in the form of an arbitration clause in a contract or in the form of a separate
agreement.
(2) The arbitration agreement shall be in writing. [For the avoidance of doubt], “writing”
includes any form that provides a record of the agreement or is otherwise accessible
so as to be usable for subsequent reference, including electronic, optical or other
data messages.
(3) [For the avoidance of doubt, the writing requirement in paragraph (2) is met] [The
arbitration agreement is in writing] if the [arbitration clause or arbitration terms and
conditions or any arbitration rules referred to by the arbitration agreement are] [the
arbitration clause, whether signed or not, is] in writing, [variant 1:] notwithstanding
that the contract or the separate arbitration agreement has been concluded [other
than in writing] [orally, by conduct or by other means not in writing] [variant 2:]
irrespective of the form in which the parties have agreed to submit to arbitration.
14. The Working Group may wish to add to the above text any of the provisions contained in
draft paragraphs (4) and (5) (“short version”), paragraphs (4) to (6) (“middle version”) or
paragraphs (4) to (7) (“long version”) reproduced above in paragraph 12.
JUNE 2001 WORKING GROUP REPORT A/CN.9/487 (15 JUNE 2001)
III. Requirement of written form for the arbitration agreement
A. Model legislative provision on written form for the arbitration agreement
22. The Working Group based its deliberations on the draft text prepared by the
Secretariat pursuant to the request made by the Working Group at its thirty-third session
([December 2000 Working Group Report,] A/CN.9/485, para. 59). That text read as follows
([March 2001 Secretariat Note,] A/CN.9/WG.II/WP.113, para. 14):
[reprinted supra].
P 92
P 93
Paragraph (1)
23. There was general agreement as to the form and substance of paragraph (1), which
merely replicated article 7(1) of the Model Law.
Paragraph (2)
24. While there was general agreement as to the substance of the provision, the discussion
focused on the appropriateness of maintaining the words between square brackets (“for
the avoidance of doubt”) and the final words (“including electronic, optical or other data
messages”).
“[for the avoidance of doubt]”
25. The view was expressed that those words were essential to make it clear that the

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 substantial rule embodied in paragraph (2) was not intended to alter any liberal
interpretation that might be given readily, through case law or otherwise, to the notion of
“writing” under either the Model Law or the New York Convention. It was stated that
clarification as to the preservation of existing interpretations of the notion of “writing” was
particularly important for those countries that would not adopt the revised version of
article 7 of the Model Law, or during the transitional period before the enactment of that
revised provision. In response, it was pointed out that a formulation along the lines of “for
the avoidance of doubt” was familiar to some legal systems but foreign to legal drafting
traditions in many countries. In those countries, such wording might create difficult
problems of interpretation as to the nature of the doubt to be avoided. A suggestion was
made that the words between square brackets might be replaced by wording along the
lines of “without limiting the generality of this requirement”. It was widely felt, however,
that such wording would equally be faced with the above-mentioned objection.
26. The prevailing view was that appropriate explanations should be given in the guide to
enactment as to the intent that lay behind paragraph (2) not to conflict with existing
interpretations given to the notion of “writing”. It was also felt that the inclusion of such
explanatory wording might be reconsidered in the context of paragraph (3) and of the
interpretative instrument regarding article II (2) of the New York Convention. Subject to
those considerations, the Working Group decided that the words “[for the avoidance of
doubt]” should be deleted from paragraph (2).
“including electronic, optical or other data message”
27. Various concerns were expressed regarding the reference to “electronic, optical or other
data messages”. One concern was that any such list introduced by the word “including”
might raise difficult issues of interpretation as to whether the listing was intended to be
exhaustive or merely descriptive and open-ended. Should it be read as an exhaustive list,
it might unduly limit the generality of the rule embodied in paragraph (2). Another concern
was that, while the reference to “electronic, optical or other data messages” was clearly
inspired by article 2 (a) of the UNCITRAL Model Law on Electronic Commerce, it deviated
slightly from the formulation of that provision and might thus create difficulties of
P 93 interpretation. Yet another concern was that notions such as “electronic” and “optical”
P 94 means of communication might run the risk of becoming rapidly obsolete, thus raising
the same difficulties as references to “telegram and telex” in existing international
instruments, or to “letters or telegrams” in article II (2) of the New York Convention. In
response to that concern, it was explained that the high level of generality of notions such
as “electronic or optical messages” made it difficult to foresee rapid technological
development that would make such notions obsolete.
28. With a view to alleviating some of the other concerns that had been expressed, while
maintaining explicit reference to electronic commerce techniques, it was suggested that
wording such as “inter alia”, “including but not limited to” or “such as, for example” should
be added to make it abundantly clear that the list was merely illustrative and served an
educational purpose. It was also suggested that any such change should take into account
the use of the word “includes” earlier in paragraph (2) which was likewise intended to be
non-exclusive. After discussion, the Working Group adopted those suggestions and
requested the Secretariat to prepare appropriate wording.
Paragraph (3)
29. The Working Group recalled that paragraph (3) was based on the widely prevailing view
expressed at the thirty-third session of the Working Group that the model legislative
provision should recognize the existence of various contract practices by which oral
arbitration agreements were concluded with reference to written terms of an agreement to
arbitrate, and that in those cases the parties had a legitimate expectation of a binding
agreement to arbitrate (see [December 2000 Working Group Report,] A/CN.9/485, para. 40).
30. In reviewing the draft, there was general agreement expressed in the Working Group
that an oral reference to a written arbitration clause expressing an agreement to arbitrate
should be regarded as meeting the written form requirement. Differing views, however,
were expressed regarding whether a mere reference to arbitration terms and conditions or
to a standard set of arbitration rules would satisfy the written form requirement. One view
expressed was that this should not be taken as satisfying the form requirement. The reason
for this view was that the written text referred to was not the actual agreement to arbitrate
but rather a set of procedural rules for carrying out the arbitration. According to that view,
the procedures for carrying out the arbitration should be distinguished from the parties'
agreement to arbitrate. It was also considered that that solution would have the effect of
discriminating against arbitrations where the parties had agreed to arbitrate but had not
agreed on a set of arbitration rules or on specific terms and conditions for the arbitration.
For that reason, it was suggested that the writing requirement was only met if the
arbitration clause, whether signed or not, was in writing. The prevailing view, however, was
that, in an oral agreement to arbitrate, a reference to arbitration terms and conditions or
to a standard set of arbitration rules should be taken as satisfying the written form
requirement because it expressed in a sufficiently specific way how the arbitration was to
be conducted. It was also considered that that approach would not discriminate against
cases where the parties had agreed to arbitrate, without agreeing on a set of arbitration
P 94 rules, if the law applicable to the arbitration procedure (such as a law based on the
P 95

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 P 95
UNCITRAL Model Law on International Commercial Arbitration) contained sufficiently
specific procedures for carrying out the arbitration. The contrary view was that it was not
sufficient if arbitration terms and conditions were in writing, but it was preferable to
require the agreement to arbitrate to be in writing. In accordance with that view, it was
suggested to adopt the words “[the arbitration clause, whether signed or not]”. It was
stated in reply that, in the case of contracts, to the extent that they were required to be in
writing, the interpretation of when that requirement was met was interpreted in such a way
that an oral agreement that standard written agreements applied was taken as meeting
the form requirement. However, the widely prevailing view was that it was sufficient if the
arbitration terms and conditions were in writing, irrespective of whether the arbitration
clause was in writing. Consequently, the words “[arbitration clause or arbitration terms and
conditions or any arbitration rules referred to by the arbitration agreement are]” were to
be preferred to “[the arbitration clause, whether signed or not, is]”.
31. Noting the prevailing view that oral agreements to arbitrate that could be linked to
written terms and conditions for arbitration (even if those terms and conditions did not
actually express the agreement to arbitrate) should be regarded as satisfying the form
requirement, it was pointed out that it would be more appropriate to expressly state that
oral agreements satisfied the form requirement or that an agreement to arbitrate might be
concluded under form requirements that might, or might not, rely on the use of a written
document. In opposition to that opinion, it was stated that it was still preferable to
declare oral agreements referring to written terms and conditions for arbitration as written
agreements because article II of the New York Convention required the arbitration
agreement to be in writing and because it was necessary to reflect that the wording was
included to confirm existing interpretations of the writing requirement under that article
rather than to create a new legal regime. For that very reason, it was also necessary to
retain the phrase “for the avoidance of doubt”; that phrase was necessary in order to
clarify that liberal interpretations of the written form requirement were within the
meaning of the notion of “writing” as expressed in article II of the New York Convention. On
that basis, the phrase “[For the avoidance of doubt, the writing requirement in paragraph
(2) is met]” was to be preferred to “[The arbitration agreement is in writing]”.
32. Views were expressed that paragraph (3) created a legal fiction by declaring what was
effectively an oral agreement as meeting the writing requirement. It was pointed out that
the effect of such a provision was far-reaching and its consequences needed to be carefully
considered. It was noted that creating such a fiction was an unorthodox drafting technique
which might make it more difficult to convince legislative bodies that they should enact
the new provision. It was pointed out that some courts might require that the existence of
an oral agreement to arbitrate had to be proved, which might lead to increased
uncertainty. With a view to alleviating some of the concerns that might stem from the
creation of the above-mentioned legal fiction, it was widely felt that the wording of
paragraph (3) should be as descriptive as possible. Accordingly, the words set out in
variant 1 were preferred (namely “notwithstanding that the contract or the separate
P 95 arbitration agreement has been concluded orally, by conduct or by other means not in
P 96 writing”). It was considered that the use of these words would counter the criticism that the
draft was not sufficiently transparent. The Working Group, after discussion, adopted the
text of variant 1.
Additional paragraphs for inclusion in a revision of article 7
33. Having completed its deliberations regarding paragraphs (1) to (3), the Working Group
discussed whether paragraphs (4) to (7) of the “long version” considered at the end of its
thirty-third session (reproduced in [the December 2000 Working Group Report,] A/CN.9/485,
para. 52) should be added to the revised text of article 7. The text of those paragraphs read
as follows:
“(4) Furthermore, an arbitration agreement is in writing if it is contained in an
exchange of statements of claim and defence in which the existence of an
agreement is alleged by one party and not denied by the other.
“(5) The reference in a contract to an arbitration clause not contained in the
contract constitutes an arbitration agreement provided that the reference
is such as to make that clause part of the contract.
“(6) For purposes of article 35, the written arbitration terms and conditions,
together with any writing incorporating by reference or containing those
terms and conditions, constitute the arbitration agreement.
“(7) Examples of circumstances that meet the requirement that an arbitration
agreement be in writing as set forth in this article include, but are not
limited to, the following illustrations: [Secretariat asked to prepare a text
based on Working Group's discussions].”
Paragraph (4)
34. The view was expressed that the substance of paragraph (4) did not, in fact, deal with
the question of whether the arbitration agreement met the writing requirement under
paragraph (1), but with the existence and validity of an arbitration agreement formed by
way of a statement of claim and defence in which the existence of an agreement was
alleged by one party and not denied by the other. Under that view, the substance of

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 paragraph (4) should be placed elsewhere in the Model Law.
35. Doubts were expressed as to the usefulness of the rule contained in paragraph (4), in
view of the infrequent occurrence of situations where questions about the existence of the
arbitration agreement were not raised prior to the exchange of statements of claim and
defence.
36. It was widely felt, however, that the substance of paragraph (4) was useful, that it was
contained in the current text of article 7(2) of the Model Law, that its deletion might result
in uncertainty, and that it should also appear in the revised text. After discussion, the
Working Group adopted the text of paragraph (4) unchanged.
Paragraph (5)
P 96
P 97 37. It was widely felt that the substance of paragraph (5) was useful, particularly in the
context of electronic commerce, which relied heavily on the notion of incorporation by
reference. It was recalled that the origin of paragraph (5) was in the current text of article
7(2) of the Model Law, and that it should also appear in the revised text. After discussion,
the Working Group adopted the text of paragraph (5). As a matter of drafting, the
Secretariat was requested to ensure full consistency between the text of paragraphs (3)
and (5).
Paragraph (6)
38. Consistent with the views expressed in the context of the discussion regarding
paragraph (3), concerns were raised as to the notion of “arbitration terms and conditions”.
In view of the decision made by the Working Group as to paragraph (3), it was agreed,
however, that the text of paragraph (6), should it be retained, should be consistent with
that of paragraph (3).
39. The discussion focused on whether the substance of paragraph (6) should appear in
article 7 or whether it should be included in a possible revision of article 35 of the Model
Law. The view was expressed that the requirement contained in article 35 (2) that “the
original arbitration agreement referred to in article 7 or a duly certified copy thereof”
should be supplied by the party applying for the enforcement of an award was inconsistent
with the definition of “writing” considered by the Working Group. It was recalled that the
Working Group, by adopting a definition of “writing” that encompassed an oral agreement,
had made the notions of “original” and “copy” of that agreement irrelevant in practice.
Examples were given of countries where the arbitration law had done away with that
requirement of article 35.
40. While the proposal to amend article 35 was met with considerable interest and
received support from a number of delegations, the prevailing view was that it would be
premature for the Working Group to make a decision that the substance of paragraph 6
should be included in article 7, or rather should be included in an amendment to article
35. The Secretariat was requested to study the implications of the proposed revision of
article 35 for continuation of the discussion by the Working Group at a future session.
Pending that discussion, it was decided that the text of paragraph (6) should be placed
within square brackets.
Paragraph (7)
41. The view was expressed that paragraph (7) played a useful role and should be retained
for educational purposes. The prevailing view, however, was that providing in the text of
the Model Law examples of circumstances (9) where the writing requirement was met
would be unnecessarily cumbersome and potentially dangerous, as it might create
difficulties in interpreting whether the list of examples should be treated as exhaustive or
illustrative. After discussion, the Working Group decided that paragraph (7) should not
appear in the text of article 7 but that its contents might be taken into consideration when
preparing the guide to enactment or any explanatory material that might accompany the
model legislative provision.
P 97
P 98
[Editors' Note: During discussion of the Interpretive Instrument, Article 7 of the Model Law
was again mentioned:]
61. As to the text of the operative provision, a view shared by a number of delegations was
that it was necessary to avoid any implication that the declaration was seeking to impose
a new interpretation of the New York Convention or that it was declaring what the meaning
of the provision as incorporated into national laws was. A contrary view was that, to the
extent that the declaration was intended to promote an interpretation of article II(2) of the
New York Convention in line with the revised draft article 7 of the Model Law, it would be
regarded in a number of countries as bringing forward an innovative or revolutionary
interpretation of the form requirement under article II(2) of the New York Convention.
While no consensus was achieved on that point, there was general agreement within the
Working Group that the effect of the declaration would not be binding on the Governments,
national judiciaries or arbitrators to whom it was addressed. It was acknowledged that the
text merely reflected a considered conviction or view of the Commission, which was
suggested for consideration by persons engaged in interpreting article II(2), in particular
judges and arbitrators.

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 FEBRUARY 2002 SECRETARIAT NOTE PREPARATION OF UNIFORM PROVISIONS
A/CN.9/WG.II/WP.118 (6 FEBRUARY 2002)
I. Model legislative provisions on written form for the arbitration agreement
[.…]
A. Revised text of the model legislative provision
9. The Working Group may wish to use the following revised text as a basis for its
deliberations:
Article 7. Definition and form of arbitration agreement
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not. An arbitration agreement may
be in the form of an arbitration clause in a contract or in the form of a separate
agreement.
(2) The arbitration agreement shall be in writing. “Writing” includes any form that
provides a [tangible] record of the agreement or is [otherwise] accessible as a data
message so as to be usable for subsequent reference.
[(3) “Data message” means information generated, sent, received or stored by electronic,
optical or similar means including, but not limited to, electronic data interchange
(EDI), electronic mail, telegram, telex or telecopy.]
(4) For the avoidance of doubt, the writing requirement in paragraph (2) is met if the
P 98 arbitration clause or arbitration terms and conditions or any arbitration rules
P 99 referred to by the arbitration agreement are in writing, notwithstanding that the
contract or the separate arbitration agreement has been concluded orally, by
conduct or by other means not in writing.
(5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange
of statements of claim and defence in which the existence of an agreement is alleged
by one party and not denied by the other.
(6) The reference in a contract to a text containing an arbitration clause constitutes an
arbitration agreement provided that the reference is such as to make that clause
part of the contract.
[(7) For purposes of article 35, the written arbitration terms and conditions, together with
any writing incorporating by reference or containing those terms and conditions,
constitute the arbitration agreement.]
B. Remarks on the revised text of the model legislative provision
Paragraph (1)
10. Paragraph (1) reproduces the unchanged text of paragraph (1) of the UNCITRAL Model
Law on International Commercial Arbitration.
Paragraph (2)
Existing interpretations of the notion of “writing”
11. In the course of its deliberations at its thirty-fourth session, the Working Group decided
that appropriate explanations should be given in the guide to enactment of the draft
model legislative provision as to the intent that lay behind paragraph (2) not to conflict
with existing interpretations given to the notion of “writing”, in particular where a liberal
interpretation might be given readily, through case law or otherwise, to the notion of
“writing” under either the Model Law or the New York Convention. Clarification as to the
preservation of existing interpretations of the notion of “writing” may be particularly
important for those countries that would not adopt the revised version of article 7 of the
Model Law, or during the transitional period before the enactment of that revised
provision. ([June 2001 Working Group Report,] A/CN.9/487, paras. 25–26).
“provides a record of the agreement or is otherwise accessible”
12. The text of draft paragraph (2) as considered by the Working Group at its previous
session has been drafted on the basis of two recent UNCITRAL texts, the combination of
which in a single provision may need to be further examined by the Working Group from
the perspectives of substance and drafting. On the one hand, article 7(2) of the United
Nations Convention on Independent Guarantees and Standby Letters of Credit provides
that “An undertaking may be issued in any form which preserves a complete record of the
text of the undertaking …”. On the other hand, article 6(1) of the UNCITRAL Model Law on
Electronic Commerce provides that “Where the law requires information to be in writing,
that requirement is met by a data message if the information contained therein is
P 99 accessible so as to be usable for subsequent reference”. That provision is inseparable from
P 100 the definition of “data message” contained in article 2(a) of that instrument, which
reads as follows: “‘Data message’ means information generated, sent, received or stored by
electronic, optical or similar means including, but not limited to, electronic data
interchange (EDI), electronic mail, telegram, telex or telecopy”. The notion of “record” does
not appear in the text of the UNCITRAL Model Law on Electronic Commerce but electronic
records are clearly intended to be covered under the broadly defined notion of “data

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 message”. The only reason for combining in the draft provision the traditional notion of
“record” with the more innovative notion of “data message” is thus apparently to make it
abundantly clear that the traditional paper document is included among the acceptable
forms of recording an arbitration agreement. That matter did not need to be dealt with in
the UNCITRAL Model Law on Electronic Commerce and may need to be addressed in the
draft revision of article 7 of the UNCITRAL Model Law on International Commercial
Arbitration. However, in the absence of additional explanations, the notion of “record” may
raise issues of translation in the various official languages and create difficulties in those
legal systems where such notions as “record” or “business record” are not heavily relied
upon in commercial law. Further clarification in the text might be needed, for example to
indicate that the provision is intended to address “tangible” records.
13. To the extent that the text would use the notion of “record” to refer to a paper
document recording the text or otherwise demonstrating the existence of the arbitration
agreement, the conceptual distinction between “record” on the one hand and “data
message” on the other hand would probably lead to the deletion of the word “otherwise”.
The guide to enactment might need to elaborate on the reasons for which, contrary to
article 7(2) of the United Nations Convention on Independent Guarantees and Stand-by
Letters of Credit, the draft provision does not refer to “a complete record of the text of the”
agreement.
Paragraph (3)
“Data message”
14. To the extent the model provision intends to refer to the notion of “data message”, it is
submitted that it should reproduce the definition contained in article 2(a) of the UNCITRAL
Model Law on Electronic Commerce. That is the purpose of paragraph (3).
Paragraph (4)
15. Paragraph (4) is based on the understanding reached by the Working Group at its thirty-
third and thirty-fourth sessions that the model legislative provision should recognize the
existence of various contract practices by which oral arbitration agreements may be
concluded with reference to written terms of an agreement to arbitrate, and that in those
cases the parties may have a legitimate expectation of a binding agreement to arbitrate
(see [December 2000 Working Group Report,] A/CN.9/485, para. 40 and [June 2001 Working
Group Report,] A/CN.9/487, para. 29).
P 100 16. The text of paragraph (4) reflects the reasoning reached by the Working Group at the
P 101 end of its thirty-fourth session (see [June 2001 Working Group Report,] A/CN.9/487, paras.
29–32). The effect of such a provision would be that the allegation of a party that an
arbitration agreement had been concluded orally with reference to a pre-existing set of
arbitration rules (presumably available in written form) or to procedures set out in the law
applicable to the arbitration could result in the other party being drawn into arbitral
proceedings irrespective of the absence of any evidence as to the existence and contents
of the alleged arbitration agreement. The working Group may wish to further discuss the
consequences of such a rule.
17. In the course of its deliberations, the Working Group may also wish to take into
consideration the concerns expressed by the Director of the General Legal Division of the
United Nations Office of Legal Affairs in a letter to the Secretariat dated 23 May 2001.
Those concerns are expressed on behalf of the United Nations as a potential party to
arbitration proceedings. The following are excerpts from that letter:
“5. By virtue of its immunity from legal process, the UN cannot be sued in
court. However, pursuant to Article VIII, section 29, of the Convention on
the Privileges and Immunities of the United Nations (the “General
Convention”), the United Nations “shall make provisions for appropriate
modes of settlement of [inter alia] disputes arising out of contracts of
disputes of a private law character to which the UN is a party”. […]
Pursuant to this provision, it has been the practice of the UN to make
provision in its commercial agreements (e.g., contract and lease
agreements) for recourse to arbitration in the event of disputes that
cannot be settled by direct negotiations or other amicable means (see
A/C.5/49/65). With respect to disputes of a private law character that do
not arise out of commercial agreements, except for particular situations in
which other means of settling such disputes are provided, the practice of
the Organization has been to submit such disputes to arbitration where
they cannot be settled by these or other amicable means (see
A/C.5/49/65). For such cases, the Organization enters into separate
arbitration agreements. Both the arbitration clauses in contracts and the
separate arbitration agreements provide that the arbitration proceedings
are to be conducted under the UNCITRAL Arbitration Rules. Also, in both
cases, the UN agrees to be bound by the award of the arbitral tribunal as
the final adjudication of the dispute.
“6. In essence, under the draft revision of Article 7(2) of the UNCITRAL Model
Law, the requirement in the existing Article 7(2) that an arbitration
agreement be “in writing” would be satisfied even where a contract

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 containing an arbitration clause, or a separate arbitration agreement,
were concluded other than in writing, for example, orally or by virtue of
the “conduct” of a party, if the arbitration clause, arbitration terms and
conditions, or arbitration rules referred to by the agreement, are in
writing. Moreover, such a “writing” would include “non-traditional” forms,
such as electronic or data messages.
“7. The UN may be subjected to such arbitration, the results of which it
accepts as binding, only to the extent that it has expressly agreed to do
so. As noted above, agreements by the UN to submit to arbitration are
contained in arbitration clauses contained in written contracts signed by
P 101 the UN, or in written arbitration agreements signed by the UN. In both
P 102 cases, the requirement of a written document signed by the UN ensures
that the UN has agreed to submit to arbitration. Moreover, in its separate
arbitration agreements, the UN typically includes various provisions to
protect its legitimate interests, depending on the circumstances of the
particular case, such as provisions clearly defining and circumscribing the
issues to be adjudicated, provisions specifying that the arbitrators are to
apply internationally accepted principles of international commercial law
rather than the law of a particular national legal system, provisions
regulating the scope of discovery that may be ordered by the arbitrators
and provisions preserving the UN's privileges and immunities.
“8. Under the text under consideration within the Working Group, the
requirement of a “written” arbitration agreement would be met if an oral
contract or agreement referred, for example, to written arbitration terms
and conditions. This requirement would be satisfied even if there existed
only partial written arbitration terms and conditions, i.e., terms and
conditions dealing with some issues but not others that the UN would want
to regulate the arbitration, such as those referred to above.
“9. The writing requirement would also be satisfied merely by a reference in
an oral contract or agreement to written arbitration rules. However, a
reference to such rules, such as the UNCITRAL Arbitration Rules, would not
cover other issues, such as those mentioned above, that the UN typically
regulates in its arbitration agreements.
“10. In addition, I point out that a provision of this nature would enable a
claimant to convene an arbitral tribunal, which, pursuant to its
“compétence/compétence”, would have authority to decide is own
jurisdiction. Under the contemplated provision, this would require a
respondent to submit to complex evidentiary hearings which would be
necessary in order for the arbitral tribunal to determine the existence of a
contract or arbitration agreement by “conduct” or “orally” and, if it finds
such a contract or agreement, the existence and content of a “written”
arbitration clause, arbitration terms and conditions or arbitration rules.
While, as noted above, a contract entered into by the UN must be in
writing, we would be concerned that an arbitral tribunal thus convened
might seek to establish that the UN had entered into an arbitration
agreement orally or “by conduct”. If it did, […] it might find that the UN is
subject to arbitration proceedings on terms and conditions that do not
deal with issues which the UN would have regulated in an arbitration
agreement, and, thus, which do not fully protect its interests. The UN
would not wish such issues to be left to be resolved by the Arbitral
Tribunal itself. This is precisely why the UN regulates such issues in its
arbitration agreements”.
While the specific context of arbitration cases where the United Nations are a party does
not need to be addressed in the draft provision, the general policy concerns underlying the
above-mentioned letter may need to be addressed in the more general context of
international commercial arbitration.
P 102
P 103
Paragraph (5)
18. Paragraph (5) reproduces language contained in the current text of article 7(2) of the
UNCITRAL Model Law on International Commercial Arbitration. It was adopted unchanged
by the Working Group at its thirty-fourth session ([June 2001 Working Group Report,]
A/CN.9/487, para. 36).
Paragraph (6)
19. The text of paragraph (6) was adopted in substance by the Working Group at its thirty-
fourth (ibid., para. 37) and thirty-third ([December 2000 Working Group Report,] A/CN.9/485,
para. 42) sessions. It has been slightly reworded so as to refer to any “text containing an
arbitration clause” and not to restrict the scope of the paragraph to cases where the
reference would be to an “arbitration clause” not contained in the contract.
Paragraph (7)

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 20. The Working Group decided that paragraph (7) should be placed between square
brackets until further discussion had taken place as to whether the substance of the
provision should be included in article 7 or in an amendment to article 35. The Secretariat
was requested to study the implications of a possible revision of article 35 for continuation
of the discussion by the Working Group (ibid., para. 40) [Editors' Note: The reference should
be to the June 2001 Working Group Report, A/CN.9/487].
21. It should be noted that article 35(2) of the Model Law mirrors article IV of the New York
Convention. Any deviation from the existing text of article 35 would therefore require
additional work towards amending the New York Convention or providing means to secure
a uniform yet innovative interpretation of article IV of the New York Convention.
22. More fundamentally, the question raised by the form requirements that may be
imposed at the level of recognition and enforcement of an award refer back to the central
issue raised by the proposed text of paragraph (4). If the purpose of paragraph (4) is simply
to facilitate the use of modern means of communication in the context of international
commercial arbitration and to alleviate the burden resulting from the requirement that an
arbitration agreement be in the form of an original document, it is probably possible to
deal with the entire issue of form within a revised version of article 7 of the Model Law. To
address the issue of the “original arbitration agreement” under article 35, the revised text
of article 7 would probably need to establish additional rules as to how the functional
equivalent of an “original” document may be provided in an electronic environment.
Articles 7 and 8 of the UNCITRAL Model Law on Electronic Commerce may provide useful
guidance as to how such additional rules might be drafted.
23. However, if the purpose of paragraph (4) is to establish that evidence as to the
existence and substance of the arbitration agreement could be replaced by a mere
reference to terms and conditions of the arbitral procedure as set out in a set of
P 103 arbitration rules or a law on arbitration, with no further written evidence being produced
P 104 as to the existence or contents of the agreement, it is doubtful that such a fundamental
change could be introduced without a complete overhaul of article 35 of the Model Law.
Examples of circumstances where the writing requirement is met
24. The previous version of the draft text considered by the Working Group contained an
additional paragraph that read as follows: “(7) Examples of circumstances that meet the
requirement that an arbitration agreement be in writing as set forth in this article include,
but are not limited to, the following illustrations: [Secretariat asked to prepare a text based
on Working Group's discussions].” At its thirty-fourth session, the Working Group decided
that such illustrations played a useful role and should be retained for educational
purposes. However, they should not appear in the text of article 7 but might be taken into
consideration when preparing the guide to enactment or any explanatory material that
might accompany the model legislative provision. The Working Group might wish to further
discuss the practical examples that might be given as illustrations in the guide to
enactment.
[Editors' Note: During discussion of the Interpretive Instrument, Article 7 of the Model Law
was again mentioned:]
29. However, depending on the contents of the revised version of article 7 of the Model Law,
in particular paragraph (4), further discussion may be required as to whether the technique
of a declaration encouraging interpretation of article II(2) of the New York Convention by
reference to article 7 of the Model Law is an appropriate way of promoting uniform
interpretation of the Convention. At the thirty-fourth session of the Working Group, the view
was expressed that, to the extent that the declaration was intended to promote an
interpretation of article II(2) of the New York Convention in line with the revised draft
article 7 of the Model Law, it would be regarded in a number of countries as bringing
forward an innovative or revolutionary interpretation of the form requirement under
article II(2) of the New York Convention ([June 2001 Working Group Report,] A/CN.9/487,
para. 61). In a significant number of countries, such a “revolutionary” interpretation might
be regarded as an unwelcome development.
2001 COMMISSION REPORT A/56/17 (27 JULY 2001)
Chapter VII
Settlement of commercial disputes
[.…]
313. With regard to the requirement of written form for the arbitration agreement, the
Commission noted that the Working Group had considered the draft model legislative
provision revising article 7, paragraph 2, of the UNCITRAL Model Law on International
Commercial Arbitration (see [March 2001 Secretariat Note,] A/CN.9/WG.II/WP.113, paras. 13
P 104 and 14) and a draft interpretative instrument regarding article II, paragraph 2, of the New
P 105 York Convention (para. 16 [p. ____ infra]). Consistent with a view expressed in the
context of the thirty-fourth session of the Working Group ([June 2001 Working Group Report,]
A/CN.9/487, para. 30), concern was expressed as to whether a mere reference to arbitration
terms and conditions or to a standard set of arbitration rules available in written form
could satisfy the written form requirement. It was stated that such a reference should not
be taken as satisfying the form requirement since the written text being referred to was not

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 the actual agreement to arbitrate but rather a set of procedural rules for carrying out the
arbitration (i.e. a text that would most often exist prior to the agreement and result from
the action of persons that were not parties to the actual agreement to arbitrate). It was
pointed out that, in most practical circumstances, it was the agreement of the parties to
arbitrate that should be required to be made in a form that was apt to facilitate
subsequent evidence of the intent of the parties. In response to that concern, it was
generally felt that, while the Working Group should not lose sight of the importance of
providing certainty as to the intent of the parties to arbitrate, it was also important to work
towards facilitating a more flexible interpretation of the strict form requirement contained
in the New York Convention, so as not to frustrate the expectations of the parties when they
agreed to arbitrate. In that respect, the Commission took note of the possibility that the
Working Group examine further the meaning and effect of the more-favourable-right
provision of article VII of the New York Convention.
APRIL 2002 WORKING GROUP REPORT A/CN.9/508 (12 APRIL 2002)
Introduction
[.…]
6. With regard to the requirement of written form for the arbitration agreement, the
Commission noted that the Working Group had considered the draft model legislative
provision revising article 7, paragraph 2, of the UNCITRAL Model Law on International
Commercial Arbitration (see [March 2001 Secretariat Note,] A/CN.9/WG.II/WP.113, paras. 13
and 14) and a draft interpretative instrument regarding article II, paragraph 2, of the New
York Convention (ibid., para. 16[, reprinted in the Legislative History of the Interpretive
Instrument, pp. __ infra]). Consistent with a view expressed in the context of the thirty-
fourth session of the Working Group ([June 2001 Working Group Report,] A/CN.9/487, para.
30), concern was expressed as to whether a mere reference to arbitration terms and
conditions or to a standard set of arbitration rules available in written form could satisfy
the written form requirement. It was stated that such a reference should not be taken as
satisfying the form requirement since the written text being referred to was not the actual
agreement to arbitrate but rather a set of procedural rules for carrying out the arbitration
(i.e. a text that would most often exist prior to the agreement and result from the action of
persons that were not parties to the actual agreement to arbitrate). It was pointed out
that, in most practical circumstances, it was the agreement of the parties to arbitrate that
P 105 should be required to be made in a form that was apt to facilitate subsequent evidence of
P 106 the intent of the parties. In response to that concern, it was generally felt that, while the
Working Group should not lose sight of the importance of providing certainty as to the
intent of the parties to arbitrate, it was also important to work towards facilitating a more
flexible interpretation of the strict form requirement contained in the New York
Convention, so as not to frustrate the expectations of the parties when they agreed to
arbitrate. In that respect, the Commission took note of the possibility that the Working
Group examine further the meaning and effect of the more-favourable right provision of
article VII of the New York Convention.
[.…]
I. Deliberations and decisions
[.…]
15. With regard to the requirement of written form for the arbitration agreement, the
Working Group considered the draft model legislative provision revising article 7(2) of the
Model Law on Arbitration ([February 2002 Secretariat Note,] A/CN.9/WG.II/WP.118, para. 9).
The Secretariat was requested to prepare a revised draft provision, based on the
discussion in the Working Group, for consideration at a future session. The Working Group
also discussed a draft interpretative instrument regarding article II(2) of the New York
Convention (ibid., paras. 25–26 [reprinted in the Legislative History of the Interpretive
Instrument, pp. __ infra]). The Working Group acknowledged that it could not, at the present
stage, reach a consensus on whether to prepare an amending protocol or an interpretative
instrument to the New York Convention and that both options should be kept open for
consideration by the Working Group or the Commission at a later stage. In the meantime,
the Working Group was agreed that it would be useful to offer guidance on interpretation
and application of the writing requirements in the New York Convention with a view to
achieving a higher degree of uniformity. A valuable contribution to that end could be made
in the guide to enactment of the draft new article 7 of the UNCITRAL Model Law on
Arbitration, which the Secretariat was requested to prepare for future consideration by the
Working Group, by establishing a “friendly bridge” between the new provisions and the New
York Convention, pending a final decision by the Working Group on how best to deal with
the application of article II(2) of the Convention.
[.…]
III. Requirement of written form for the arbitration agreement
A. Model legislative provision on written form for the arbitration agreement
18. The draft model provision was as follows:
[same as February 2002 Secretariat Note, supra, para. 9].

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 Paragraph (1)
19. It was pointed out that paragraph (1), which reproduced the unchanged text of
P 106 paragraph (1) of the UNCITRAL Model Law on International Commercial Arbitration (“the
P 107 UNCITRAL Model Law on Arbitration”) encompassed, in its second sentence, two types of
arbitration agreements: an agreement in the form of an arbitration clause in a contract or
as a separate agreement. The provision itself was not felt to create controversy.
Nevertheless, it was suggested that the Working Group might need to review and, if
required, revise the current formulation of the second sentence so as to align it with the
substance of paragraph (4). It was said, in particular, that paragraph (4) implicitly made a
distinction between an arbitration agreement, on the one hand, and the terms and
conditions of the arbitration or its governing rules, on the other hand. Paragraph (4) thus
appeared to cover situations that did not fall strictly under either of the types of
arbitration agreement mentioned in paragraph (1).
20. The Working Group approved the substance of paragraph (1) and, having taken note of
the comments made thereon, decided to revert to them after it had considered paragraph
(4).
Paragraph (2)
21. The Working Group considered various comments and proposals, of both substance and
form, in connection with paragraph (2). The substantive comments raised by the provision
were essentially concerned with the relationship between the notions of “record” and
“data message” and the interplay among paragraphs (2), (3) and (4). Drafting comments
were essentially concerned with refining the provision to make it unambiguously clear that
arbitration agreements could be validly concluded by means other than in the form of
paper-based documents, for example, by electronic communications.
22. The Working Group noted that the notion of “record”, as used in article 7, paragraph 2 of
the UNCITRAL Model Law on Arbitration, was not specifically concerned with facilitating
the use of electronic means of communication. The text of draft paragraph (2) had
therefore been drafted on the basis of provisions of two more recent UNCITRAL texts:
article 7(2) of the United Nations Convention on Independent Guarantees and Standby
Letters of Credit, which provides that “[a]n undertaking may be issued in any form which
preserves a complete record of the text of the undertaking […]”; and article 6(1) of the
UNCITRAL Model Law on Electronic Commerce, which provides that “[w]here the law
requires information to be in writing, that requirement is met by a data message if the
information contained therein is accessible so as to be usable for subsequent reference”.
23. The Working Group then considered at length the conceptual distinction between
“record” and “data message” and the desirability of combining them in a single provision.
The Working Group agreed that the notion of “record” as used in article 7, paragraph (2) of
the UNCITRAL Model Law on Arbitration should be retained without being limited to
“tangible” records. Some of the speakers were of the view that the term “record” alone
might suffice, since it was broad enough to cover “data messages”, particularly if it was
linked with the definition of a form which “is otherwise accessible so as to be usable for
subsequent reference”. Other speakers, however, expressed the view that the term “record”
P 107
might raise issues of translation in the various official languages and create difficulties in
P 108 those legal systems where such notions as “record” or “business record” were not heavily
relied upon in commercial law. The prevailing view was that it was important to combine
the traditional notion of “record” with the more innovative notion of “data message” so as
to make it clear that records other than traditional paper documents were included among
the acceptable forms of recording an arbitration agreement.
24. The qualifying phrase “accessible so as to be usable for subsequent reference”, was felt
by some speakers to be unnecessary. The prevailing view was that it was essential in the
context of paragraph (2), since it set forth the conditions whereby any message, including
data messages, might meet writing requirements established by the law.
25. Having agreed to the need for making reference in paragraph (2) to both “record” and of
“data messages”, the Working Group proceeded to consider various drafting proposals. One
proposal was that the second sentence of paragraph (2) should be redrafted along the
following lines: “‘writing’ or ‘in writing’ includes any form being recorded by any means [, so
as to be usable for subsequent reference]”. The Working Group eventually agreed to
reformulate the second sentence of paragraph (2) along the following lines: “Writing' [sic]
means any form, including without limitation a data message, that provides a record of the
agreement or is otherwise accessible so as to be usable for subsequent reference.”
Paragraph (3)
26. The Working Group considered that a definition of “data message” was needed since
that expression was used in paragraph (2) and decided to retain the provision without the
square brackets.
Paragraphs (4) and (6)
27. There was general agreement that one of the main purposes of a revision of article 7 of
the UNCITRAL Model Law on Arbitration should be to recognize the formal validity of
arbitration agreements that came into existence in certain factual situations as to which
courts or commentators had differing views on whether the form requirement set forth in

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 the current text of article 7, paragraph (2), of the Model Law was met. Among such factual
situations, the Working Group focused its attention on the following: (a) the case where a
maritime salvage contract was concluded orally through radio with a reference to a
preexisting standard contract form containing an arbitration clause, such as the Lloyd's
Open Form; (b) contracts concluded by performance or by conduct (for example a sale of
goods under article 18 of the United Nations Convention on Contracts for the International
Sale of Goods), with reference to a standard form containing an arbitration clause, such as
documents established by the Grain and Food Trade Association (GAFTA); (c) contracts
concluded orally but subsequently confirmed in writing or otherwise linked to a written
document containing an arbitration clause, such as the general sale or purchase conditions
established unilaterally by a party and communicated to the other; and (d) purely oral
contracts. As a matter of general policy, it was widely agreed that in cases (a) to (c) the
reference or other link to a written contractual document containing an arbitration clause
should be sufficient to establish the formal validity of the arbitration agreement. It was
P 108 also agreed that a purely oral arbitration agreement should not be regarded as formally
P 109 valid under the Model Law. In that context, it was observed by a number of delegations
that the mere reference in an oral contract to a set of arbitration rules should not be
regarded as sufficient to meet the written form requirement, since a set of procedural rules
should not be regarded, in and of itself, as equivalent to a contractual document
containing an arbitration clause. However, some delegations expressed the view that such
a reference in an oral contract to a set of arbitration rules should be accepted as
expressing sufficiently the existence and contents of the arbitration agreement,
particularly when the set of rules includes a model arbitration clause.
28. Doubts were expressed as to whether draft paragraph (4) adequately expressed the
above-mentioned general policy. It was pointed out that stating that “the writing
requirement […] is met if the arbitration clause […] [is] in writing” was tautological. In
addition, a concern was expressed that the reference to “the arbitration terms and
conditions” was unclear and created the risk of an inconsistency between draft paragraph
(4) and draft paragraph (1). As to the reference to “any arbitration rules referred to by the
arbitration agreement”, a further concern was that it did not take into account the need for
the arbitration agreement to be sufficiently manifest to minimize the risk that a party
would be drawn into arbitration against its will. Doubts were also expressed as to whether
paragraph (4) could reasonably be read as consistent with the provisions of the New York
Convention.
29. With a view to alleviating the above-mentioned concerns, a proposal was made that
paragraph (4) should be redrafted along the following lines: “For the avoidance of doubt,
the writing requirement in paragraph (2) is met if: (a) the arbitration agreement, taken per
se, is made in writing; or (b) a valid contract has been concluded between the parties and
such contract includes within its contents, whether directly or by reference, a clause in
writing providing for arbitration”. Another proposal was that paragraph (4) should be
redrafted as follows: “For the avoidance of doubt, the writing requirement in paragraph (2)
is met if the arbitration clause is in writing, notwithstanding that the contract has been
concluded orally, by conduct or by other means not in writing”.
30. However, it was generally felt that, instead of draft paragraph (4), draft paragraph (6)
should be used to support the above-mentioned policy. A note of caution was struck about
revising the text of draft paragraph (6), which was already contained in article 7 of the
Model Law, and was generally interpreted as covering the situation where the underlying
contract did not mention arbitration but incorporated by reference another document,
such as a standard form, which contained an arbitration clause. It was stated that the last
sentence of paragraph (2) of article 7 of the UNCITRAL Model Law on Arbitration, on which
paragraph (6) was based, was generally not interpreted as interfering with the writing
requirement established in respect of the arbitration agreement.
31. After discussion, the Working Group agreed that paragraph (4) should be deleted and
paragraph (6) should be redrafted along the following lines: “For the avoidance of doubt,
P 109 the reference in a contract or a separate arbitration agreement to a writing containing an
P 110 arbitration clause constitutes an arbitration agreement in writing provided that the
reference is such as to make that clause part of the contract or the separate arbitration
agreement, notwithstanding that the contract or the separate arbitration agreement has
been concluded orally, by conduct or by other means not in writing”. It was also agreed
that the guide to enactment of the model legislative provision should contain detailed
explanations regarding the meaning and recommended interpretation of the revised text
of paragraph (6).
Paragraph (5)
32. The suggestion was made that the draft paragraph should be deleted for a number of
reasons. Firstly, the reference to an “exchange of statements of claim and defence” was
seen to be vague and potentially misleading since, for example, reference to the existence
of an arbitration agreement was often made at an earlier stage of arbitral proceedings,
such as in a notice of arbitration within the meaning of article 3 of the UNCITRAL
Arbitration Rules. Secondly, the subject matter addressed in the draft paragraph was said
to be already covered by articles 4 and 16(2) of the UNCITRAL Model Law on Arbitration, so
that no further provision was needed. Lastly, it was suggested that the draft paragraph was
excessively narrow in that it dealt only with the case where a party specifically alleged the

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 existence of an arbitration agreement and did not cover frequent situations where the
party merely stated its claim to the arbitral tribunal without an express allegation that an
arbitration agreement existed.
33. In support to the deletion of the draft paragraph it was also stated that the subject
matter covered therein was essentially concerned with the waiver of a party's right to
object to the jurisdiction of the arbitral tribunal, rather than with the formation of the
arbitration agreement itself. As such, the substance of the draft paragraph was not
appropriately placed in draft article 7. In any event, if the provision was to be retained, it
was suggested that it should at least be amended along the following lines: “It is deemed
that the parties have concluded a valid arbitration agreement if no objection to the
jurisdiction of the arbitral tribunal is raised in due time”.
34. The prevailing view, however, was in favour of retaining the draft paragraph. It was said
that article 4 of the UNCITRAL Model Law on Arbitration dealt with a different situation
from the one contemplated in the draft paragraph, which was said to constitute a useful
addition to the Model Law. Article 4 of the Model Law did not deal with the existence of
the arbitration agreement, but only with the waiver of a party's right to raise objections
based on alleged non-compliance with provisions of the Law from which the parties may
derogate or any requirement under the arbitration agreement if that party proceeded with
the arbitration without stating its objection to such non-compliance without undue delay,
or, if a time-limit was provided therefore, within such period of time. Draft paragraph (5)
was needed, since the narrow scope of article 4 of the Model Law did not allow it to be
construed as a positive presumption of the existence of an arbitration agreement, in the
absence of material evidence thereof, by virtue of the exchange of statements of claim and
defense.
P 110
P 111
35. It was also pointed out that the draft paragraph had a precedent in the application of
article 25 of the Convention on the Settlement of Investment Disputes between States and
Nationals of other States[, Oct. 15, 1966, 17 U.S.T. 1270, 575 U.N.T.S. 159] (“the Washington
Convention”), which, in practice, had been construed to the effect that the notice of
arbitration submitted by a foreign investor to the International Centre for the Settlement
of Investment Disputes under certain circumstances dispensed with the need for a special
arbitration agreement.
Paragraph (7)
36. It was recalled that paragraph (7) had been placed between square brackets until
further discussion had taken place as to whether the substance of the provision should be
included in article 7 or in an amendment to article 35. It was also recalled that article 35(2)
of the Model Law mirrored article IV of the New York Convention. Any deviation from the
existing text of article 35 would therefore require additional work towards amending the
New York Convention or providing means to secure a uniform yet innovative interpretation
of article IV of the New York Convention.
37. The view was expressed that the issue dealt with under draft paragraph (7) would more
appropriately be addressed under a revised version of both article 35 of the Model Law
and article IV of the New York Convention. It was stated that the governing principle
regarding that issue was that the party seeking enforcement of an award should bear the
burden of proof regarding the existence and contents of the arbitration agreement. That
principle would remain unchanged even if the formal requirement regarding the
submission of the arbitration agreement as a written original document was abandoned. It
was thus suggested that in paragraph (2) of article 35 every reference to the arbitration
agreement should be deleted. Article IV of the New York Convention should be modified
accordingly.
38. Support was expressed in favour of the above-mentioned principle. In addition, it was
pointed out that the suggested redraft of article 35 would present the advantage of
avoiding the need for the party seeking enforcement to produce the “arbitration terms and
conditions”, or any other document that might encourage courts to discuss the existence of
the arbitration agreement in the absence of a challenge to the tribunal's findings, which
could needlessly delay enforcement.
39. However, the proposed redraft of article 35 was objected to on the grounds that
amending that article could result in the need to revise article IV of the New York
Convention, thereby pre-empting the result of the future discussion regarding the
advisability of entering into the preparation of a protocol to the New York Convention (see
below, paras. 42–50). As an alternative to the above-suggested redraft of article 35 of the
Model Law, it was proposed that paragraph (7) should be deleted and a sentence should
be added at the end of paragraph (6) along the following lines: “In such a case, the writing
containing the arbitration clause constitutes the arbitration agreement for purposes of
article 35”. It was stated by its proponents that such a sentence was consistent with the
New York Convention. After discussion, that proposal was adopted by the Working Group.
P 111
P 112
[In the context of the Interpretive Instrument, Article 7 was discussed further:]
42. In view of the progress that had been made at the current session in connection with

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 draft new article 7 of the UNCITRAL Model Law on Arbitration, the Working Group decided
that it would be useful to re-examine the various options available to deal with difficulties
that had arisen in the practical application of article II(2) of the New York Convention
before considering the revised draft interpretative instrument. In that respect, the views
within the Working Group were divided into essentially two propositions, as summarized
below.
[Editors' Note: For the omitted paragraphs, see the Legislative History of the Interpretive
Instrument, pp. __ infra.]
45. Another argument in favour of an amending protocol underscored the distinction
between modification of an existing text and clarification of its interpretation. It was said
that it was not appropriate to use an interpretative instrument to declare that article II(2)
of the Convention should be interpreted as having the meaning of article 7 of the Model
Law in the wording being prepared by the Working Group. It was stated that the draft
legislative provisions being considered by the Working Group differed significantly from
article II(2) in that, for example, under the draft legislative provision an oral agreement
that referred to written arbitration terms and conditions would be regarded as valid,
whereas under article II(2) of the New York Convention, as interpreted in many legal
systems, it would not be so regarded. In that connection, some speakers expressed the
view that reliance on the provision of article VII of the New York Convention, which allowed,
in practice, for the application, in a Contracting State of the Convention, of more
favourable provisions of its own laws or treaty obligations in support of an arbitration
agreement or arbitral award was not an effective tool for ensuring uniformity in the respect
of the application of the written form requirement of article II(2) of the Convention.
46. The countervailing view, which also received strong support, was that formally
amending or creating a protocol to the New York Convention was likely to exacerbate the
existing lack of harmony in interpretation, because the adoption of such a protocol or
amendment by a number of countries would take a significant number of years and in the
interim create more uncertainty. For that reason, that approach was described by a
number of delegations as essentially impractical. Given its evident success, shown by the
unparalleled number of ratifications, the New York Convention could be rightly regarded
as the foundation of international commercial arbitration, and that fact by itself
demanded that utmost caution be used in considering any changes to its text. Caution was
said to be even more important in view of the sovereign character of any diplomatic
conference that might be called upon to consider any proposed amendments to the text,
which would not be bound by the narrow scope of amendments currently under
consideration by the Working Group. The expected positive result of enhancing certainty in
the relatively narrow area of article II(2) of the New York Convention should be carefully
weighed against the imponderable risk of having the entirety of the Convention re-opened
for discussion
P 112
P 113
47. An additional problem impending upon the preparation of an amending protocol to the
New York Convention, it was said, might be the risk of upsetting the liberal interpretation
that article II(2) of the New York Convention already enjoyed in some jurisdictions. The view
was expressed that starting work on a modification of the New York Convention might
imply that the text could not be readily understood as allowing the interpretation that was
essentially consistent with draft new article 7 of the UNCITRAL Model Law on Arbitration
currently being formulated by the Working Group. A clarification by way of an
interpretative instrument, on the other hand, was said to constitute an appropriate
recognition of the fact that there were differing possible interpretations of article II(2) of
the New York Convention and that the Commission, which might be regarded as persuasive
authority in many jurisdictions, could recommend a liberal interpretation of that text.
48. It was further pointed out that the difficulties attendant upon amendment of the New
York Convention or the development of a protocol had been extensively considered at
earlier sessions of the Working Group and that in view of those difficulties the Working
Group had instead decided to focus on the preparation of an interpretative instrument.
49. The Working Group considered at length the various arguments that were put forward in
support of both propositions. The Working Group acknowledged that it could not, at the
present stage, reach a consensus on whether to prepare an amending protocol or an
interpretative instrument to the New York Convention and that both options should be
kept open for consideration by the Working Group or the Commission at a later stage. In
the meantime, the Working Group was agreed that it would be useful to offer guidance on
interpretation and application of the writing requirements in the New York Convention with
a view to achieving a higher degree of uniformity. A valuable contribution to that end could
be made in the guide to enactment of the draft new article 7 of the UNCITRAL Model Law on
Arbitration, which the Secretariat was requested to prepare for future consideration by the
Working Group, by establishing a “friendly bridge” between the new provisions and the New
York Convention, pending a final decision by the Working Group on how to best deal with
the application of article II(2) of the Convention.
50. While no objections were raised to that course of action, the view was expressed that
the mere fact of attempting to address the matter in a guide to enactment of the new draft
article 7 of the UNCITRAL Model Law on Arbitration appeared to prejudice the

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 consideration of a possible amending protocol to the New York Convention. Raising issues
related to the New York Convention in a guide to enactment, i.e., an ancillary text of
questionable legal value, appended to a new provision of the Model Law, which itself was
not a mandatory instrument, was said to be a counterproductive exercise. It was stated
that it would be preferable not to attempt to address in any way the issues raised by the
interpretation of the writing requirements under the New York Convention. The Working
Group took note of those comments.
P 113
P 114
2002 COMMISSION REPORT A/57/17 (18 JULY 2002)
IV. Arbitration
[.…]
183. With regard to the requirement of written form for the arbitration agreement, the
Commission noted that the Working Group had considered the draft model legislative
provision revising article 7, paragraph (2) of the Model Law on Arbitration ([February 2002
Secretariat Note,] A/CN.9/WG.II/WP.118, para. 9) and discussed a draft interpretative
instrument regarding article II(2) of the New York Convention (paras. 25–26 [pp. ______
infra]). The Commission noted that the Working Group had not reached consensus on
whether to prepare an amending protocol or an interpretative instrument to the New York
Convention and that both options should be kept open for consideration by the Working
Group or the Commission at a later stage. The Commission noted the decision of the
Working Group to offer guidance on interpretation and application of the writing
requirements in the New York Convention with a view to achieving a higher degree of
uniformity. A valuable contribution to that end could be made in the guide to enactment
of the draft new article 7 of the UNCITRAL Model Law on Arbitration, which the secretariat
was requested to prepare for future consideration by the Working Group, by establishing a
“friendly bridge” between the new provisions and the New York Convention, pending a final
decision by the Working Group on how best to deal with the application of article II(2) of
the Convention ([April 2002 Working Group Report,] A/CN.9/508, para. 15). The Commission
was of the view that member and observer States participating in the Working Group's
deliberations should have ample time for consultations on those important issues,
including the possibility of examining further the meaning and effect of the more-
favourable-right provision of article VII of the New York Convention, as noted by the
Commission at its thirty-fourth session. (9) For that purpose, the Commission considered
that it might be preferable for the Working Group to postpone its discussions regarding the
requirement of written form for the arbitration agreement and the New York Convention
until its thirty-eighth session, in 2003.
OCTOBER 2003 SECRETARIAT NOTE INTERIM MEASURESA/CN.9/WG.II/WP.125 (2 OCTOBER
2003)
[Editors' Note: The following legislative history is in the context of Article 17 bis, which
became Articles 17 H and 17 I in the final text]
10. The words “in writing” have been placed in square brackets. When finalizing the text of
article 17 bis(1) [Art. 17 H(1) in the final text], the Working Group may wish to keep in mind
P 114 that the term “in writing” is included in a number of provisions in the UNCITRAL Model Law,
P 115 being articles 7(2), article 31(1) and 35(1). As there is no general definition of the term in
the UNCITRAL Model Law, and given that the Working Group is yet to finalize a decision
revising article 7(2) of the UNCITRAL Model Law, the Working Group may wish to either
avoid a reference to the term unless it is essential, or consider the inclusion of a global
definition that would be electronic commerce friendly, in the interest of uniform
interpretation.
[Editors' Note: The following legislative history relates to Option II of Article 7.]
APRIL 2005 SECRETARIAT NOTE MEXICAN PROPOSAL A/CN.9/WG.II/WP.137 (20 APRIL 2005)
In preparation for the forty-third session of Working Group II (Arbitration and Conciliation),
during which the Working Group is expected to proceed with its review of a revised draft
article 7 of the UNCITRAL Model Law on International Commercial Arbitration (see [January
2005 Working Group Report,], A/CN.9/573, para. 98 [not reprinted]), the Government of
Mexico, on 15 February 2005, submitted the text of a proposed revised version of article 7
for consideration by the Working Group. The text of that proposal is reproduced as an
annex to this note in the form in which it was received by the Secretariat.
[Mexico's proposal read as follows:]
I. Introduction
I.1. The United Nations Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (New York Convention) requires arbitration agreements to be in
writing.
I.2. Written form is required for a number of purposes:
(i) For the validity of the arbitration agreement (New York Convention, article II (1)
and (2);
(ii) To request a court before which an action has been brought relating to a dispute

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 forming the subject of an arbitration agreement to refer the parties to
arbitration (New York Convention, article II(3)); and
(iii) To comply with the essential requirement that the arbitration agreement be
supplied when application is made to a court or competent authority for
recognition and enforcement of an award (New York Convention, article IV(1)).
I.3. Articles 7, 8(1) and 35 of the UNCITRAL Model Law on International Commercial
Arbitration (MAL) contain provisions similar to those of the New York Convention. They
differ only in that the MAL gives a broader definition of what is meant by “in writing”.
P 115 I.4. UNCITRAL has identified various contemporary practices that do not correspond to
P 116 the literal definition of “writing” either in the New York Convention or in the MAL
(see [January 2000 Secretariat Note,] A/CN.9/WG.II/WP.108/ Add.1)
I.5. In addition to the above, the practice exists whereby arbitration agreements are
concluded by electronic means.
I.6. Some courts have interpreted the New York Convention and the MAL flexibly, holding
such cases that the written form requirement has been met. Others—apparently a
minority—have ruled to the contrary.
I.7. UNCITRAL tasked the Working Group on Arbitration with examining the possibility of
resolving the problems created by these practices, which give rise to uncertainty. The
literal application of the New York Convention and the MAL may, because of a
formality, frustrate the legitimate expectations of the parties.
I.8. The view prevailing within the Working Group is that it is not recommendable to make
any amendment to the New York Convention, since this would create more problems
than benefits:
(i) Uncertainty would arise regarding agreements in which there is doubt as to
whether the written form requirement has been met;
(ii) It would take a great deal of time to incorporate the amendment and even
longer for countries to ratify or accede to it (there are currently 134 parties to
the New York Convention).
I.9. The Working Group prepared a draft declaration calling upon courts and authorities
to interpret the New York Convention flexibly ([June 2001 Working Group Report,]
A/CN.9/487, paragraph 63).
I.10. The Working Group drafted an amendment to article 7 of the MAL ([June 2001 Working
Group Report,] A/CN.9/487, paragraphs 22–41).
I.11. However, there is a widely held view in the Working Group that neither draft is
satisfactory. The interpretative declaration of the New York Convention is not
considered to have binding force. As regards the MAL, some believe that the draft
definition takes the written form into consideration, which it plainly does not.
I.12. The Working Group suspended its deliberations in order to complete the UNCITRAL
Model Law on International Commercial Conciliation and the draft provisions relating
to interim measures in arbitration. The Working Group is expected to re-examine the
question of written form at its next session, provisionally scheduled for October 2005
in Vienna.
II. Reasons for the proposal
II.1. Arbitration is now more widely accepted than when the New York Convention and the
MAL were negotiated. The written form requirement is for many a formality that is no
longer justified. This formality may frustrate the legitimate expectations of the other
parties. The form of the arbitration agreement is more restrictive than the freedom of
form in commercial contracts; a contract involving a transaction worth a hundred
P 116 million dollars may be concluded verbally, but the arbitration agreement relating to
P 117 that contract must be in writing. There are some countries in which the arbitration
agreement is no longer required to be in writing. (1) In others, the definition is so
broad that the requirement has practically disappeared. (2)
II.2. Consequently, the Government of Mexico proposes that the written form requirement
for arbitration agreements be omitted from the MAL. If this amendment were
adopted, the question of the conclusion of the arbitration agreement and its content
would become a problem of proof.
II.3. The problem of the legal validity of the arbitration agreement would disappear in
countries adopting the amendment to the MAL. With regard to recognition and
enforcement, since there would be no requirement to submit the arbitration
agreement, by application of the principle of most favourable regime as provided for
in article VII of the New York Convention the problem in that Convention would be
resolved.
III. Proposal
A. Article 7. Definition of arbitration agreement (3)
It is proposed that the references to written form be omitted. The article would read as
follows:
“An arbitration agreement is an agreement by the parties to submit to

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 arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether contractual or
not. [An arbitration agreement may be in the form of an arbitration clause in a
contract or in the form of a separate agreement.]” (4)
B. Article 35. Recognition and enforcement
It is proposed that article 35(2) be amended to omit the requirement to supply the
arbitration agreement. The proposed text would read as follows:
“(2) The party relying on an award or applying for its enforcement shall supply
the duly authenticated original award or a certified copy thereof. If the award is
not made in Spanish, the party relying on it shall supply a translation thereof
into such language done by an official expert.”
P 117
P 118
JULY 2005 SECRETARIAT NOTE FORM OF THE ARBITRATION AGREEMENT A/CN.9/WG.II/WP.136
(19 JULY 2005)
I. Draft text of model legislative provision on written form for the arbitration agreement,
revising article 7 of the UNCITRAL Model Law on International Commercial Arbitration
4. The Working Group may wish to use the following revised text as a basis for its
deliberations:
“Article 7. Definition and form of the arbitration agreement
“(1) ‘Arbitration agreement’ is an agreement by the parties to submit to
arbitration all or certain disputes which have arisen or which may arise
between them in respect of a defined legal relationship, whether
contractual or not. An arbitration agreement may be in the form of an
arbitration clause in a contract or in the form of a separate agreement.
“(2) The arbitration agreement shall be in writing. ‘Writing’ means any form,
including, without limitation, a data message, that provides a record of
the arbitration agreement or is otherwise accessible so as to be useable
for subsequent reference.
“(3) ‘Data message’ means information generated, sent, received or stored by
electronic, optical or similar means, including, but not limited to,
electronic data interchange (EDI), electronic mail, telegram, telex or
telecopy.
“(4) Furthermore, an arbitration agreement is in writing if it is contained in an
exchange of statements of claim and defence in which the existence of an
agreement is alleged by one party and not denied by the other.
“(5) For the avoidance of doubt, the reference in a contract or a separate
arbitration agreement to a writing containing an arbitration clause
constitutes an arbitration agreement in writing, provided that the
reference is such as to make that clause part of the contract or the
separate arbitration agreement, notwithstanding that the contract or the
separate arbitration agreement has been concluded orally, by conduct or
by other means not in writing. In such a case, the writing containing the
arbitration clause constitutes the arbitration agreement for the purposes
of article 35.”
II. Remarks on the draft text of model legislative provision on written form for the
arbitration agreement, revising article 7 of the UNCITRAL Model Law on International
Commercial Arbitration
Paragraph (1)
5. Paragraph (1) reproduces the unchanged text of article 7, paragraph (1), of the Model
Law. The Working Group approved the substance of paragraph (1), noting that the provision
itself was not controversial ([April 2002 Working Group Report,] A/CN.9/508, para. 20).
P 118
P 119
Paragraph (2)
6. Drafting comments were essentially concerned with refining the provision to make it
unambiguously clear that arbitration agreements could be validly concluded by means
other than in the form of paper-based documents, for example, by electronic
communications ([April 2002 Working Group Report,] A/CN.9/508, para. 21). A prevailing
view held in the Working Group was that it was important to combine the traditional notion
of “record” with the newer concept of “data message” (as defined in article 2 (a) of the
UNCITRAL Model Law on Electronic Commerce) in order to clarify that records other than
traditional paper documents were included among the acceptable forms of recording an
arbitration agreement ([April 2002 Working Group Report,] A/CN.9/508, para. 23).
7. The Working Group also agreed that it was necessary to retain the qualifying phrase,
“accessible so as to be usable for subsequent reference” (inspired from article 6,

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 paragraph (1), of the UNCITRAL Model Law on Electronic Commerce) in order to set out the
conditions whereby any message, including data messages, might meet writing
requirements established by the law ([April 2002 Working Group Report,] A/CN.9/508, para.
24).
8. Paragraph (2) has been redrafted along the lines agreed to by the Working Group ([April
2002 Working Group Report,] A/CN.9/508, para. 25).
Paragraph (3)
9. Given that the term “data message” is used in paragraph (2), the Working Group agreed
to retain that definition ([April 2002 Working Group Report,] A/CN.9/508, para. 26), which
reproduces article 2 (a) of the UNCITRAL Model Law on Electronic Commerce.
Paragraph (4) (formerly paragraph (5) of the draft model legislative provision contained
in[the April 2002 Working Group Report,]A/CN.9/508, para. 18)
10. The Working Group agreed to retain paragraph (4) notwithstanding some reservations
that it appeared to be misleading and already covered by articles 4 and 16 (2) of the
Model Law ([April 2002 Working Group Report,] A/CN.9/508, paras. 32 and 33). It was said
that draft paragraph (4) was needed, since the narrow scope of article 4 of the Model Law
did not allow it to be construed as a positive presumption of the existence of an
arbitration agreement, in the absence of material evidence thereof, by virtue of the
exchange of statements of claim and defence ([April 2002 Working Group Report,]
A/CN.9/508, para. 34).
Paragraph (5) (formerly paragraph (6) of the draft model legislative provision contained
in [the April 2002 Working Group Report,]A/CN.9/508, para. 18)
11. It is recalled that one of the main purposes of a revision of article 7 of the Model Law is
to recognize the formal validity of arbitration agreements that come into existence in
certain factual situations as to which courts or commentators have differing views on
whether the form requirement set forth in the current text of article 7, paragraph (2), of the
P 119 Model Law was met. The Working Group agreed that a purely oral arbitration agreement
P 120 should not be regarded as formally valid under the Model Law ([April 2002 Working
Group Report,] A/CN.9/508, para. 27). However, it was also agreed that, as a matter of
general policy, the reference or other link to a written contractual document containing an
arbitration clause should be sufficient to establish the formal validity of the arbitration
agreement (ibid.). Examples were given of situations where such a reference in an oral
contract to a set of arbitration rules should be accepted as expressing sufficiently the
existence and contents of the arbitration agreement, particularly when the set of rules
includes a model arbitration clause (ibid.). To accommodate the objection that the mere
reference in an oral contract to a set of arbitration rules should not always be regarded as
sufficient to meet the written form requirement, since a set of procedural rules should not
be regarded, in and of itself, as equivalent to a contractual document containing an
arbitration clause (ibid.), the Working Group agreed to the insertion of a proviso, the effect
of which is to rely on domestic or other applicable law to determine whether the reference
is such as to make that clause part of the contract or the separate arbitration agreement,
notwithstanding that the contract or the separate arbitration agreement has been
concluded orally, by conduct or by other means not in writing.
12. In that context, the Working Group agreed to delete paragraph (4) of the draft model
legislative provision contained in [April 2002 Working Group Report,] A/CN.9/508, para. 18,
and to redraft paragraph (5) so as to better reflect the above-mentioned general policy
([April 2002 Working Group Report,] A/CN.9/508, para. 31).
13. It is recalled that the Working Group agreed to delete paragraph (7) of the draft model
legislative provision contained in [April 2002 Working Group Report,] A/CN.9/508, para. 18,
and, instead, include an extra sentence at the end of paragraph (5) in order to clarify that
the writing referred to under paragraph (5), containing the arbitration clause, constitutes
the arbitration agreement for the purposes of article 35 of the Model Law. It was stated as
well that this sentence was consistent with the New York Convention ([April 2002 Working
Group Report,] A/CN.9/508, para. 39).
OCTOBER 2005 WORKING GROUP REPORT A/CN.9/589 (12 OCTOBER 2005)
VIII. Preparation of a model legislative provision on written form for the arbitration
agreement
[.…]
109. The proposed new text [the “Mexican Proposal” reported in the April 2005 Secretariat
Note, supra] suggested that the writing requirement for arbitration agreements be omitted
from article 7 (2). It was said that, if the proposed new text were adopted, the question of
the conclusion of the arbitration agreement and its content would be solely a matter of
proof. It was suggested that the proposed new text established a more favourable regime
P 120 for recognition and enforcement of arbitral awards than was provided for under the New
P 121 York Convention. It was said that, therefore, by virtue of the “more favourable law
provision” contained in article VII of the New York Convention, the Arbitration Model Law
would apply instead of article II of the New York Convention. It was noted that, in several
jurisdictions that had removed the written form requirement for arbitration agreements,

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 oral arbitration agreements were rarely used and had not given rise to significant disputes
as to their validity.
110. While the proposed new text was considered useful to highlight the problems raised
by the written form requirements, it was said that removal of the form requirement and of
every reference to “writing” could create uncertainty. It was said that the revised draft
article 7 reflected the Working Group's understanding of the minimum requirements that
should apply in respect of the form of an arbitration agreement, whereas the proposed
new text went much further including recognition of the validity of oral arbitration
agreements.
111. It was suggested that promoting or recognizing oral agreements too broadly could lead
to the generation of awards that would not be capable of being recognized and enforced
under the New York Convention for the reason that the arbitration agreement in respect of
which the award was made would not fulfil the written form required under article II (2) of
that Convention. Another argument was that article VII of the New York Convention
expressly referred to “arbitral awards” and, therefore, it was uncertain whether article VII
would universally be interpreted as applying in respect of arbitration agreements. It was
also suggested that retention of a very flexible type of form requirement mirrored similar
provisions that existed in respect of litigation, for example, article 3 (c) of the Convention
on Choice of Court Agreements [, 44 I.L.M. 1294 ](adopted 30 June 2005) which provided that
“an exclusive choice of court agreement is required to be concluded or documented in
writing or by any other means of communication which renders information accessible so
as to be usable for subsequent reference”. As well, it was recalled that the Commission had
recently agreed to include the New York Convention in a list of international instruments to
which the Convention on the Use of Electronic Communications in International Contracting
would apply.
112. Views were expressed that both the proposed new text and the revised draft article 7
provided useful options to address concerns relating to the writing requirement. It was
suggested that both options might be presented to the Commission as alternative variants.
However, it was said that, since both alternatives had the same function to relax the form
requirements, it might be possible to reconcile them. One way to achieve that purpose was
to amend paragraph (2) of the revised draft by restricting the form requirement to the
question of proof rather than validity. That proposal was to include text along the following
lines: “The arbitration agreement may be evidenced in writing”. Another proposal was
made to amend the revised draft article 7 so that it reflected the wording used in the
Convention on Choice of Court Agreements as set out above.
P 121
P 123
14 DECEMBER 2005 SECRETARIAT NOTE ARTICLE II(2) OF THE NEW YORK CONVENTION
A/CN.9/WG.II/WP.139 (14 DECEMBER 2005)
10. Exploring how courts have defined what constitutes an agreement in writing in the New
York Convention may assist in identifying divergent court interpretations regarding the
form of an arbitration agreement. This note considers how State courts have interpreted
the form requirements in article II(2) and explores the extent to which article VII(1) of the
New York Convention might assist in modernising the form requirement for arbitration
agreements.
I. Interpretation of article II(2) of the New York Convention by State courts
A. Interpretation of the terms “signature”, “exchange of documents”
General remark
11. Article II(2) provides a definition of a term included in article II(1) of the New York
Convention, which requires that Contracting States recognize “an agreement in writing”.
Article II(2) provides for two possible ways of satisfying the requirement of “writing”, also
known as the “form requirement”. The first is where an arbitration clause in a contract or an
arbitration agreement is signed by the parties. The second is where an arbitration clause
in a contract or an arbitration agreement is contained in an exchange of letters or
telegrams. By requiring either a signature or an exchange of documents, the form
requirement ensures that the parties' assent to arbitration is expressly recorded.
Signature or exchange of documents strictly required
12. In a number of cases, State courts strictly applied the requirements defined under
article II(2) and granted enforcement of arbitral awards only when either the contract
containing the arbitration clause or the arbitration agreement was signed by the parties
(20) or was contained in an exchange of letters or telegrams. (21) In a series of cases, State
courts strictly required express acceptance, either by signature or exchange of documents
by both parties. (22) However, the principle did not appear to require that the arbitration
clause be separately approved in writing (23) or be specifically discussed by the parties.
(24) At least one court concluded that the form requirement must not be derogated from,
even in situations where a finding that an arbitration agreement did not satisfy the form
requirement of article II(2) would be contrary to principles of good faith. (25) These
requirements prevailed over more or less demanding requirements of national laws (see
below, paragraph 32). (26)
P 123

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 P 123
P 124
Combination of alternative form requirements
13. Besides situations where both parties had signed the same document, (27) State courts
have also concluded there to be a signature where there was a combination of alternative
form requirements, recognizing the validity of an arbitration agreement when both parties
had fulfilled either the signature or the exchange requirement but not to be met where
only one party complied with the writing requirement. (28) Based on the notion that there
must be a mutual agreement to arbitrate, either by signature or by exchange of
documents, courts generally ruled out oral arbitration agreements, (29) even if confirmed
by the other party in writing, or even if there was subsequent appearance by both parties
before the arbitrator, (30) tacit acceptance (31) or performance of the contract. (32) As well,
it did not allow for recognition of an arbitration agreement by regular prior use of general
conditions of trade. (33)
Diverging interpretations of the signature requirement
14. The requirement of signatures under article II(2) has not been interpreted consistently
P 124 by State courts. Diverging interpretations in that respect may be found in decisions of
P 126 State courts in the United States, which considered, in certain cases, that the
requirement for signature or exchange, contained in article II(2), applied only to an
arbitration agreement as distinct from the contract and not to an arbitration clause in a
contract. (34) According to that interpretation, article II(2) would consist of two separate
regimes, one being “an arbitration clause in a contract” and the other “an arbitration
agreement (a) signed by the parties or (b) contained in an exchange of letters or
telegrams”. That reasoning had been subsequently followed in a first instance judgement,
where the court considered that unsigned purchase orders represented an “arbitral clause
in a contract” and as such, were not caught by the requirements of signature or exchange.
(35) However, it should be noted that that interpretation was reversed on appeal, (36) and
had not been widely followed in the United States, or by courts of other States. In other
cases, State courts affirmed that the definition of “agreement in writing” required that such
an agreement, whether it was an arbitration clause or agreement contained in a contract,
be signed by the parties or contained in a series of letters or telegrams exchanged by the
parties. (37)
Diverging interpretations of the exchange of documents requirement
15. The requirement of exchange of documents between the parties has not been
interpreted consistently by State courts. Certain State courts interpreted strictly the word
“exchange” to mean that the document containing the arbitration clause or agreement
should be returned by the party to which it was sent to the party, which sent it initially. (38)
According to that trend of case law, the requirement that there be an “exchange”, and
therefore a written offer of a contract containing an arbitration clause, or of an arbitration
agreement and a written acceptance excluded a wide range of fact situations. (39) In other
cases, a reference to the arbitration clause or agreement in subsequent correspondence
emanating from the party to which the arbitration clause or agreement was sent was
considered as sufficient to meet the form requirement of article II(2). (40)
B. Application of other legal principles where the form requirements are otherwise not
satisfied
Reliance on the conduct of the parties (“estoppel”)
16. The question arose whether, in the case where a party acted specifically in respect of
an arbitration agreement, without objection, that party was subsequently barred, for
reasons of good faith, from invoking non-compliance of the arbitration agreement with the
written form, as required by article II(2). No leading approach is evident from the case law.
17. In a number of decisions, State courts have recognised an arbitration agreement in the
absence of writing, based on the conduct of the parties, either by reference to domestic
contract law principles, (41) or by considering that the permissive language in article V(1)
“may be refused” allowed the courts some flexibility in the determination of whether an
arbitration agreement has been validly concluded. (42) As well, a court found that the lack
P 126 of written form was cured by participation in arbitration without objection. (43) The limits
P 127 of the application of this principle were however less clear with some court decisions
suggesting that the acts of performance must refer directly to the arbitration agreement or
allow a court to deduce that a party wished to accept the arbitration agreement. (44)
Incorporation of arbitration clause or agreement by mere reference or usual commercial
relations
18. The New York Convention did not address the issue of recognition of an arbitration
clause or agreement that, whilst not satisfying the form requirement, was found to be
incorporated into a contract or exchange of letters or telegrams by mere reference.
19. In respect of incorporation by reference, State courts found that article II(2) required
that the arbitration agreement must be referred to in the main contract, (45) unless the
parties had an ongoing business relation. (46) In the case of an ongoing relation, an
arbitration clause was considered to be incorporated by reference even if the other party
did not receive the actual term on the basis that the party was presumed to have

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 knowledge of the arbitration clause. (47)
P 127
P 128
20. A number of cases have taken an even broader approach finding that incorporation by
reference might be found even if the arbitration clause was not in the main contract,
provided there was some written reference to the document containing that clause and
that the party against whom it was invoked was aware of the contents of the document
when concluding the contract and accepted the incorporation of the document in the
contract. (48) In another case, noting that the New New [sic] York Convention reinforced a
strong policy in favour of arbitration over litigation and that this policy applied with
special force in the field of international commerce, the court stated that, despite the fact
that the parties did not sign an arbitration agreement, the incorporation of the arbitration
clause by reference in letters exchanged between the parties was sufficient. (49)
P 128
P 129
21. In other cases, State courts held that the reference need not to relate specifically to the
arbitration clause but rather to the contract as a whole provided that the parties had the
possibility to examine the general terms, i.e. when they were printed on the back side or
were known due to the regular business contact between the parties or where the parties
should have known about the document due to trade usages. (50) In some cases,
incorporation by reference had not been accepted because the reference was not explicit
or was ambiguous according to usual practice of trade. According to other cases, if an
arbitration agreement was incorporated in a document and if it was proven that the
parties were bound by a contract, which included the terms of that document, no further
proof of the arbitration agreement was required. (51)
C. New means of communication
P 129 22. The express reference to “letter or telegram” in article II(2) raised the issue of whether
P 130 new means of generating and recording communications would (in addition to letters
and telegrams) be considered as meeting the form requirements of article II(2). This
question was answered in the affirmative by most of the State courts in respect of telexes
(52) and telefaxes. (53) One court stated that article II(2) could not have intended to
exclude all other forms of written communications regularly utilized to conduct commerce.
(54) In some cases, State courts found that, even though the form requirement meant that
the arbitration agreement must exist in written form, it sufficed that the agreement was
contained in a document allowing for a written proof and confirmation of the common
intent of the parties. (55)
23. In another case, a State court found that article II(2) should be interpreted and applied
in the light of the less restrictive requirements of article 7(2) of the UNCITRAL Arbitration
Model Law and article178 of the Swiss Private International Law Act. (56) That court stated
that, in the light of modern means of communication, unsigned writings play an
increasingly important role and signature requirements are becoming less important and,
in particular cases, specific conduct might, by virtue of the rules of good faith, substitute
the form requirement. However, that interpretation was not universally accepted, and at
least one court considered that an exchange of e-mail messages did not satisfy the form
requirement of article II(2). (57)
P 130
P 131
[Editors' Note: Paragraphs 24–34, reprinted in the Legislative History of the Interpretive
Instrument, pp. __ infra, discuss State court treatment of Article VII of the New York
Convention in connection with arbitration agreements that were deemed not to meet the
form requirements of Article II.]
III. Concluding remarks
A. General remarks
35. There remains a wide divergence of interpretation by State courts on the form
requirement defined under article II(2). In particular, what is meant by the term
“signature”, whether the signature requirement applies to both the arbitration clause in a
contract as well as the arbitration agreement and what is required by an “exchange of
letters or telegrams” are all matters on which there have been different and sometimes
conflicting interpretations. Different judicial interpretations of the form requirement and a
trend to avoid the form requirement by reference to other legal doctrines may undermine
the principles of the New York Convention and the harmonisation of the law regarding
recognition and enforcement of arbitration agreements.
36. Courts, in many States, have established a clear position as to the circumstances in
which article VII(1) may be applied to uphold arbitration agreements where the form
requirement set out in article II(2) would otherwise not be met, but those positions diverge
from one State to another. The advantage of applying article VII(1) would be to avoid the
application of article II(2) and, as States would enact more favourable provisions on the
form requirement for arbitration agreements, would allow the development of rules
favouring the validity of arbitration agreements in a wider variety of situations.
Encouraging the wide adoption by States of article 7(2) of the UNCITRAL Arbitration Model
Law, currently being revised by the Working Group, could provide a useful means of

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 achieving greater uniformity as to the form requirement, which was more responsive to the
needs of modern arbitration.
NOVEMBER 2005 PROVISIONAL AGENDA A/CN.9/WG.II/WP.140 (14 NOVEMBER 2005)
15. With regard to the writing requirement, the Commission noted that the Working Group
had considered the draft model legislative provision revising article 7, paragraph (2), of the
Model Law ([February 2002 Secretariat Note,] A/CN.9/WG.II/WP.118, para. 9) and discussed a
draft interpretative instrument regarding article II, paragraph (2), of the New York
Convention (ibid., paras. 25–26 [reprinted in the Legislative History of the Interpretive
Instrument, p. ___ infra]). The Commission noted that the Working Group had not reached
consensus on whether to prepare an amending protocol or an interpretative instrument to
the New York Convention and that both options should be kept open for consideration by
the Working Group or the Commission at a later stage. The Commission noted the decision
of the Working Group to offer guidance on interpretation and application of the writing
P 131 requirement contained in article II, paragraph (2), of the New York Convention with a
P 132 view to achieving a higher degree of uniformity. It was said that a valuable contribution to
that end could be made in the guide to enactment of the draft new article 7 of the Model
Law, which the Secretariat was requested to prepare for future consideration by the
Working Group, by establishing a “friendly bridge” between the new provisions and the New
York Convention, pending a final decision by the Working Group on how best to deal with
the application of article II, paragraph (2), of the New York Convention ([April 2002 Working
Group Report,] A/CN.9/508, para. 15). The Commission was of the view that member and
observer States participating in the Working Group's deliberations should have ample time
for consultations on those important issues, including the possibility of examining further
the meaning and effect of the more-favourable-right provision of article VII of the New York
Convention, as noted by the Commission at its thirty-fourth session. For that purpose, the
Commission considered that it might be preferable for the Working Group to postpone its
discussions regarding the writing requirement and the New York Convention.
FEBRUARY 2006 WORKING GROUP REPORT A/CN.9/592 (27 FEBRUARY 2006)
V. Draft legislative provisions on the form of arbitration agreement
46. The Working Group recalled that, at its forty-third session, it had resumed discussions
on a draft model legislative provision revising article 7 of the Arbitration Model Law on the
basis of a text prepared by the Secretariat (“the revised draft article 7”) following
discussions in the Working Group held at its thirty-sixth session (New York, 4–8 March 2002)
([April 2002 Working Group Report,] A/CN.9/508, paras. 18–39) and had also considered a
proposal by the Mexican delegation regarding that issue reproduced in [the April 2005
Secretariat Note,] A/CN.9/WG.II/WP.137, as modified by A/CN.9/WG.II/WP.137/Add.1
[reprinted in the Legislative History of Article 35, pp. ___ infra] (“the alternative proposal”)
([the October 2005 Working Group Report,] A/CN.9/589, paras. 108–112 [paras. 109–112
reprinted; para. 108 not reprinted]). It was further recalled that the Working Group had
considered that both texts provided useful options to address concerns relating to the
form of arbitration agreement. The Working Group agreed to further consider both options.
The alternative proposal
47. It was noted that the alternative proposal omitted entirely the writing requirement. It
was said that, if that text were adopted, the question of the conclusion of the arbitration
agreement and its content would be solely a matter of proof rather than of validity. It was
said that the revised draft article 7 established the minimum requirements that should
apply in respect of the form of arbitration agreement, whereas the alternative proposal
went much further and did away with all form requirements to recognize, for example, oral
arbitration agreements. In support of the alternative proposal, it was said that many
P 132 national laws contained requirements as to form for arbitration agreements that could be
P 133 regarded as outdated. While the alternative proposal was met with considerable
interest, the view was expressed that it might depart too radically from traditional
legislation, including the New York Convention, to be readily acceptable in many countries.
It was also stated that the purpose of the revision of paragraph (2) of article 7 of the
Arbitration Model Law was to harmonise existing domestic laws in that respect and it was
suggested that that purpose would be better achieved by the revised draft article 7 than
the alternative proposal (for discussion on the alternative proposal, see also below,
paragraphs 74 and 75).
48. The Working Group continued its discussion based on the revised draft article 7, as
contained in [the July 2005 Secretariat Note,] A/CN.9/WG.II/WP.136. The Working Group was
reminded that, whatever formulation was accepted in relation to paragraph (2) of article 7
of the Arbitration Model Law, it would be necessary to consider the impact of that
provision upon article 35, given that that article included a cross-reference to article 7 in
its requirement in paragraph (2), which provided that the party relying on an award or
applying for its enforcement “supply the original arbitration agreement referred to in
article 7 or a duly certified copy thereof” (for discussion on that matter, see below,
paragraphs 76 to 80[, reprinted in the legislative history of amended Article 35, pp. __ infra]).
Revised draft article 7
Paragraph (1) of the revised draft article 7

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 49. The substance of paragraph (1) was adopted without modification.
Paragraphs (2) and (3) of the revised draft article 7
50. Support was expressed for retaining the substance of paragraph (2) as it gave a clear
indication, consistent with article II, paragraph (2), of the New York Convention, that
arbitration agreements had to be in writing and provided examples regarding the meaning
of the writing requirement. However, it was noted that paragraph (2) of the revised draft
article 7 sought by way of a definition to clarify that the term “writing” covered modern
means of communications that might not be considered, in some countries, as meeting the
writing requirement. A concern was expressed that this approach would be inconsistent
with the approach taken in UNCITRAL texts on electronic commerce, which relied not on a
definition but on a functional equivalence approach to “writing”.
Compliance of paragraph (2) of the revised draft article 7 with the UN Convention on the
Use of Electronic Communications in International Contracts (“the Convention on
Electronic Contracts”)
51. It was observed that the revised draft article 7 had been prepared before the UNCITRAL
Working Group on Electronic Commerce finalized its work on the Convention on Electronic
Contracts and that it should be revised to ensure consistency with that Convention. In
addition, it was observed that article 20 of that Convention included the New York
Convention in the list of international instruments to which it applied and that, to the
extent the Arbitration Model Law might be used to assist with the interpretation of the New
York Convention, it would be important to ensure compatibility between the three
instruments.
P 133
P 134
52. It was suggested that the formulation in paragraph (2) of article 9 of the Convention on
Electronic Contracts, which provided that an electronic communication met a requirement
under law that it be in writing “if the information contained therein is accessible so as to
be useable for subsequent reference” could be used in the revised draft article 7 as
follows: “A data message satisfies the requirement for writing if the information contained
therein is accessible so as to be useable for subsequent reference.” That proposal received
some support.
“concluded or documented”
53. With a view to achieving the required level of flexibility, it was said that the form
requirement for arbitration agreements should mirror similar provisions that existed in
respect of litigation in national courts, for example, article 3 (c) of the Convention on
Exclusive Choice of Court Agreements prepared by the Hague Conference on Private
International Law and adopted on 30 June 2005, which provided that “an exclusive choice
of court agreement is required to be concluded or documented in writing or by any other
means of communication which renders information accessible so as to be useable for
subsequent reference”. It was also said that a similar reference to “concluded or
documented in writing” was reflected in article 76 of the draft convention on the carriage
of goods [wholly or partly] [by sea] currently being developed by the UNCITRAL Working
Group on Transport Law (see, A/CN.9/WG.II/WP.140/Add.1, annex [not reprinted in this
volume]).
54. It was suggested that the words “concluded or documented” be considered for insertion
under paragraph (2) of the revised draft article 7, as these words would clarify that the form
requirement applied not necessarily at the stage of the formation of the arbitration
agreement, but could also apply at the subsequent stage of evidencing the existence of the
arbitration agreement. In support of that proposal, it was said that these words would be
useful to encourage a liberal interpretation of the form requirement under article II,
paragraph (2), of the New York Convention. A proposal was made that paragraph (2) of the
revised draft article 7 should read: “The arbitration agreement shall be in writing. ‘An
agreement in writing’ means an agreement concluded or documented in any form,
including, without limitation, a data message, that provides a record of the arbitration
agreement or is otherwise accessible so as to be useable for subsequent reference.” That
proposal received some support. A proposal was made to simplify that text, as follows:
“The arbitration agreement shall be in writing. An agreement is ‘in writing’ if it is concluded
or documented in any form or is accessible so as to be useable for subsequent reference,
including in the form of a data message.” In support of that proposal, it was stated that it
would cover both situations where writing was required for validity or for evidentiary
purposes.
55. Questions were raised as to whether the terms “concluded” and “documented” were
both needed as it was widely felt that the term “documented” encompassed the term
“concluded”. In response, it was said that if only the term “documented” were used, that
provision might be interpreted in a very restrictive way as only applying where an
agreement was concluded in writing. For that reason, it was suggested that both terms were
needed.
P 134
P 135
56. Objections were raised on the ground that inclusion of those terms introduced issues
related to proving the existence of an arbitration agreement that fell outside the intended

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 purpose of paragraph (2) of the revised draft article 7, which related to the requirement
that an arbitration agreement be in writing. A proposal was made to delete any reference
to those words so that the revised paragraph would read: “The arbitration agreement shall
be in writing. An agreement is “in writing” if it is in any form or is accessible so as to be
useable for subsequent reference, including in the form of a data message”. The Working
Group took note of that proposal.
Proposals for restructuring paragraphs (2) and (3) the revised draft article 7
57. It was observed that paragraph (2) of the revised draft article 7 sought to deal with
different issues, namely:
• To state the principle that an arbitration agreement shall be in writing;
• To determine whether the purpose of the writing requirement was to provide
certainty as to the consent of the parties to arbitrate or as to the contents of the
arbitration agreement; and
• To clarify how the writing requirement could be fulfilled.
58. A proposal was made to address each of these issues by including text along the
following lines: “The arbitration agreement shall be in writing. An arbitration agreement is
in writing if it can be evidenced in writing. A data message meets the requirement of a
writing if the information contained therein is accessible so as to be useable for
subsequent reference. ‘Data message’ means information generated, sent, received or
stored by electronic, magnetic, optical or similar means, including but not limited to,
electronic data interchange (EDI), electronic mail, telegram, telex or telecopy.” That
proposal received some support.
59. A related proposal was made to replace paragraphs (2) and (3) of the revised draft
article 7 by the following restructured provision: “(2) The arbitration agreement shall be in
writing. (3) An arbitration agreement is in writing if its terms are recorded in any form,
whether or not the arbitration agreement or contract has been concluded orally, by
conduct, or by other means. (4) The requirement that an arbitration agreement be in
writing is met by an electronic communication if the information contained therein is
accessible so as to be useable for subsequent reference.” It was explained that the latter
proposal had the following advantages:
• The language used in paragraph (2) of that proposal was consistent with article II,
paragraph (2), of the New York Convention and therefore, that sentence maintained
“the friendly bridge” between the texts;
• Paragraph (3) of that proposal by referring to “its terms are recorded” made it clear
that only the terms of the arbitration agreement were required to be recorded and
not the actual will of the parties to enter into the arbitration agreement. In that
context, it was pointed out that the question whether the parties actually reached an
agreement to arbitrate should be left to national legislation;
P 135
P 136
• The language used in paragraph (4) of the proposal was consistent with that used in
paragraph (2) of article 9 of the Convention on Electronic Contracts.
60. That proposal was widely supported. However, clarification was sought on a number of
aspects thereof.
61. Questions were raised as to whether the words “its terms” in paragraph (3) of the above
proposal (see above, paragraph 59) were necessary given that the existence of an
agreement to arbitrate assumed the existence of terms relating thereto. After discussion,
the Working Group was generally of the view that some reference to the contents of the
arbitration agreement should be retained to make it clear that what was to be recorded
was the content or terms of the arbitration agreement as opposed to the meeting of the
minds of the parties or any other information regarding the formation of the agreement. In
response to questions regarding the scope of the words “its terms”, divergent views were
expressed. One view was that the reference to the “terms” of the contract could be
interpreted as covering all of the contractual stipulations applying between the parties.
Another view was that the “terms” of the agreement could be read more broadly to
encompass, for example, the arbitration rules agreed upon by the parties or the law
governing the arbitral procedure to the extent the parties did not agree on any procedural
rules. It was also explained that “its terms” was not restricted to terms agreed by the
parties expressly but could also cover agreements concluded by conduct, for example
where one party sent an offer to conclude a contract to the other party which contained an
arbitration agreement and the other party, without expressly accepting the offer,
performed its part of the bargain (for example, it shipped the goods and paid the price).
62. To avoid a possible unclear or overly broad interpretation that could flow from the use
of the word “terms”, a proposal was made to replace that word with a more generic one
such as “content”. That proposal received some support. However, it was suggested that
the phrase “its content is” might be improved upon. In order to provide a better
formulation, it was proposed to redraft paragraph (3) of the above proposal (see above,
paragraph 59) to read as follows: “an arbitration agreement is in writing if there is a record
of the agreement in any form whether or not the arbitration agreement or contract has
been concluded orally, by conduct, or by any other means”. It was suggested that that text

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 should be accompanied by explanatory material in a guide to enactment and use. Another
proposal was made that paragraph (3) be redrafted as follows: “an arbitration agreement is
in writing if the rules applicable thereto are embodied in a recorded text”. The Working
Group did not agree that either of these formulations should be adopted but agreed that
further clarification might be needed to be included in a guide to enactment and use in
respect to the factual situations that were intended to be covered by paragraph (3), such
as those listed in [the September 2000 Secretariat Note,] A/CN.9/WG.II/WP.110, paras. 16 to
26. The Working Group requested the Secretariat to revise the text taking account of those
suggestions, with appropriate explanations being provided in a guide to enactment and
use of article 7.
P 136 63. In response to a question, it was explained that the words “or contract” in paragraph (3)
P 137 of the above proposal (see above, paragraph 59) were intended to address the issue of
incorporation by reference in a contract of an arbitration agreement. It was noted that the
question of incorporation by reference was a matter to be further considered when
discussing paragraph (5) of the revised draft article 7 (see below, paragraphs 69 to 73).
64. A suggestion was made that the words “electronic communication” contained in
paragraph (4) of the above proposal (see above, paragraph 59) should be replaced by the
words “electronic means” for the reason that the latter formulation was broader and
covered a wider range of factual situations. After discussion, the Working Group agreed to
retain the words “electronic communication” and to include under paragraph (4) of the
above proposal the definition of “electronic communication” and “data message” as
contained in paragraphs (b) and (c) of article 4 of the Convention on electronic Contracts.
Paragraph (4) of the revised draft article 7
65. A proposal was made that, in order to meet the variety of submissions that were used in
modern arbitration practice in addition to the statement of claim and defence, paragraph
(4) of the revised draft article 7 should be redrafted as follows: “Furthermore, an
arbitration agreement is in writing if it is contained in an exchange of written submissions
in arbitral or legal proceedings in which the existence of an agreement is alleged by one
party and not denied by the other party in such submissions”. In response, it was stated
that the term “submission” might be too vague and a source of ambiguity. As well, it was
said that the terms “statement of claim” and “statement of defence” had well established
and broad meaning in arbitral and litigation practice. Doubts were also expressed as to
whether the reference to “written” submissions was appropriate and whether the words
“arbitral or legal” sufficiently differentiated arbitral practice from court litigation.
66. Questions were raised whether paragraph (4) should be maintained, given that
paragraph (3) of the above proposal (see above, paragraph 59), already included
arbitration agreements concluded by conduct. In support of its retention, it was said that
paragraph (4) provided an illustration of a specific situation, namely where the arbitration
agreement was alleged by one party and not denied by the other. The view was expressed
that at least the situation where an exchange of statements would evidence an arbitration
agreement concluded elsewhere was not covered by paragraph (3) of the above proposal
(see above, paragraph 59).
67. A suggestion was made that paragraph (4) should include more generic language to
cover situations where parties communicated on the merits of the dispute. It was
suggested that paragraph (4) should be redrafted in order to cover cases where no
arbitration agreement existed but a party nevertheless submitted a claim to arbitrate
which was not opposed by the other party.
68. After discussion, the Working Group agreed to retain paragraph (4) of the revised draft
article 7 without modification notwithstanding some reservations that it might cover some
of the situations dealt with under articles 4 and 16, paragraph (2) of the Arbitration Model
P 137 Law as well as paragraph (3) of the above proposal (see above, paragraph 59). It was said
P 138 that paragraph (4) was useful, since the narrow scope of article 4 of the Arbitration
Model Law did not allow it to be construed as a positive presumption of the existence of
an arbitration agreement, in the absence of material evidence merely by virtue of the
exchange of statements of claim and defence and since paragraph (4) was more specific
than article 16, paragraph (2) of the Arbitration Model Law.
Paragraph (5) of the revised draft article 7
69. The Working Group recalled that one of the main purposes of paragraph (5) was to
address factual situations such as the case where a maritime salvage contract was
concluded orally by radio with reference to a pre-existing standard contract form
containing an arbitration clause, such as the Lloyd's Open Form or a contract concluded
orally but subsequently confirmed in writing or otherwise linked to a written document
containing an arbitration clause, such as the general sale or purchase conditions or
reference to existing rules of arbitration proposed unilaterally by a party and
communicated to the other. The Working Group agreed to maintain the provision on the
basis that it corresponded to modern practices.
70. Taking account of the decision of the Working Group to amend paragraph (2) of the
revised draft article 7 (see above, paragraphs 50 to 64), which addressed a number of
situations already covered by paragraph (5) of the revised draft article 7, a proposal was
made to simplify the drafting of paragraph (5) to deal only with the issue of incorporation

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 by reference as follows: “The reference in a contract to any document containing an
arbitration clause constitutes an arbitration agreement in writing, if the reference
incorporates that clause into the contract.” That proposal received some support.
71. A comment was made that the words “if the reference incorporates that clause into the
contract” might be understood as requiring stricter conditions for a valid conclusion of an
arbitration agreement than the 1985 text of the Arbitration Model Law and that therefore
the existing language on that point should be maintained. To that end, the following text
was proposed: “provided that the reference is such as to make that clause part of the
contract”. It was said that it was preferable to avoid departure from the wording of the
Arbitration Model Law, which was widely understood as deferring to applicable law to
determine what linkage between the reference and the clause was needed to incorporate
the clause into the contract. After discussion, the Working Group agreed to maintain the
original wording of the 1985 text of the Arbitration Model Law.
72. It was said that the scope of application of paragraph (5) should be limited. To that end,
a proposal was made to add at the end of paragraph (5) the words “and if arbitration
agreements are customary for such contracts”. That proposal was objected to on the basis
that it was too restrictive and created different categories of contracts, which might be
unfamiliar in certain jurisdictions. The use of the word “customary” was considered to be
vague and open to potentially diverging interpretations. It was recalled that the
Arbitration Model Law did not provide a substantive rule as to the application of
incorporation by reference but rather left its determination to national laws.
P 138
P 139
73. After discussion, the Working Group agreed that paragraph (5) would read as follows:
“The reference in a contract to any document containing an arbitration clause constitutes
an arbitration agreement in writing, provided that the reference is such as to make that
clause part of the contract.”
Reconciling the conflicting approaches on the form of arbitration agreement
74. It was recalled that the Working Group's intention in revising article 7 of the Arbitration
Model Law had been to update domestic laws on the question of the writing requirement
for the arbitration agreement, while ensuring access to enforcement under the New York
Convention. To achieve that purpose, two options had been presented, the first gave a
detailed description of how the writing requirement could be satisfied (the revised draft
article 7) and the other deleted the writing requirement altogether (the alternative
proposal, see above, paragraph 47). A suggestion was made and adopted that both the
revised draft article 7, as amended by the Working Group, and the alternative proposal
would be offered to States as alternative texts.
75. The Working Group agreed to further consider the drafting of the alternative proposal,
based on the text contained in [the April 2005 Secretariat Note,] A/CN.9/WG.II/WP.137 and
A/CN.9/WG.II/WP.137/Add.1 [reprinted in the Legislative History of Article 35, pp. ___ infra]. It
was said that the main purpose of the alternative proposal was to delete paragraph (2) and
only retain paragraph (1) of article 7 of the Model Law. The Working Group agreed that the
last sentence of paragraph (1) which read: “[An arbitration agreement may be in the form of
an arbitration clause in a contract or in the form of a separate agreement.]” should be
deleted and the alternative proposal would read as follows: “‘An arbitration agreement’ is
an agreement by the parties to submit to arbitration all or certain disputes which have
arisen or which may arise between them in respect of a defined legal relationship, whether
contractual or not.”
[.…]
Annex II
Revised legislative provisions on the form of arbitration agreement
(1) Revised draft article 7
Article 7. Definition and form of arbitration agreement
(1) ‘Arbitration agreement’ is an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not. An arbitration agreement may
be in the form of an arbitration clause in a contract or in the form of a separate
agreement.
(2) The arbitration agreement shall be in writing.
(3) An arbitration agreement is in writing if its [terms are] [content is] recorded in any
form, whether or not the arbitration agreement or contract has been concluded
orally, by conduct, or by other means.
P 139
P 140
(4) The requirement that an arbitration agreement be in writing is met by an electronic
communication if the information contained therein is accessible so as to be useable
for subsequent reference; “Electronic communication” means any communication
that the parties make by means of data messages; “Data message” means information
generated, sent, received or stored by electronic, magnetic, optical or similar means,

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 including, but not limited to, electronic data interchange (EDI), electronic mail,
telegram, telex or telecopy.
(5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange
of statements of claim and defence in which the existence of an agreement is alleged
by one party and not denied by the other.
(6) The reference in a contract to any document containing an arbitration clause
constitutes an arbitration agreement in writing, provided that the reference is such
as to make that clause part of the contract
(2) Alternative proposal
Article 7. Definition of arbitration agreement
‘Arbitration agreement’ is an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not.
13 APRIL 2006 SECRETARIAT NOTE FORM OF ARBITRATION AGREEMENT A/CN.9/606 (13 APRIL
2006)
Introduction
1. At its thirty-second session (Vienna, 17 May–4 June 1999), the Commission decided that
one of the priority items for the Working Group should be the requirement of written form
for the arbitration agreement contained in article 7, paragraph (2), of the UNCITRAL Model
Law on International Commercial Arbitration (“the Arbitration Model Law”). (1) The Working
Group considered the possible preparation of a harmonized text on the writing
requirement at its thirty-second (Vienna, 20–31 March 2000), (2) thirty-third (Vienna, 20
November–1 December 2000), (3) thirty-fourth (New York, 21 May–1 June 2001), (4) thirty-
sixth (New York, 4–8 March 2002), (5) forty-third (Vienna, 3–7 October 2005), (6) and forty-
fourth (New York, 23–27 January 2006) (7) sessions.
P 140
P 141
2. When the Working Group considered the issue of the requirement of written form for the
arbitration agreement at its thirty-second session, it was generally observed that there was
a need for provisions which conformed to current practice in international trade. It was
also noted that national courts increasingly adopted a liberal interpretation of those
provisions in accordance with international practice and the expectations of parties in
international trade. (8)
3. It is recalled as well that the Working Group's intention in revising article 7 of the
Arbitration Model Law has been to update domestic laws on the question of the writing
requirement for the arbitration agreement, while preserving enforceability of such
agreements as foreseen in the New York Convention. To achieve that purpose, two options
had been presented, the first gave a detailed description of how the writing requirement
could be satisfied (the revised draft article 7) and the other deleted the writing
requirement altogether (the alternative proposal). Views were expressed that both the
alternative proposal and the revised draft article 7 provided useful options to address
concerns relating to the writing requirement. (9) A suggestion was made and adopted by
the Working Group at its forty-fourth session that both the revised draft article 7, as
amended by the Working Group, and the alternative proposal would be offered to States as
alternative texts. (10)
I. Draft legislative provisions on the form of arbitration agreement
4. The texts of the revised draft article 7 and the alternative proposal, as adopted by the
Working Group at its forty-fourth session, read as follows. (11)
1. Revised draft article 7 of the Arbitration Model Law
Article 7. Definition and form of arbitration agreement
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not. An arbitration agreement may
be in the form of an arbitration clause in a contract or in the form of a separate
agreement.
(2) The arbitration agreement shall be in writing.
(3) An arbitration agreement is in writing if its content is recorded in any form, whether
or not the arbitration agreement or contract has been concluded orally, by conduct,
or by other means.
(4) The requirement that an arbitration agreement be in writing is met by an electronic
communication if the information contained therein is accessible so as to be useable
P 141 for subsequent reference; “electronic communication” means any communication
P 142 that the parties make by means of data messages; “data message” means
information generated, sent, received or stored by electronic, magnetic, optical or
similar means, including, but not limited to, electronic data interchange (EDI),
electronic mail, telegram, telex or telecopy.
(5) Furthermore, an arbitration agreement is in writing if it is contained in an exchange

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 of statements of claim and defence in which the existence of an agreement is alleged
by one party and not denied by the other.
(6) The reference in a contract to any document containing an arbitration clause
constitutes an arbitration agreement in writing, provided that the reference is such
as to make that clause part of the contract.
2. Alternative proposal
Article 7. Definition of arbitration agreement
“Arbitration agreement” is an agreement by the parties to submit to arbitration all or
certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not.
II. Notes on the draft legislative provisions on the form of arbitration agreement
1. Notes on the revised draft article 7 of the Arbitration Model Law
Paragraph (1)
5. Paragraph (1) reproduces article 7, paragraph (1), of the Arbitration Model Law. (12)
Paragraph (2)
6. Paragraph (2) reproduces the first sentence of article 7, paragraph (2), of the Arbitration
Model Law, and is consistent with the language of article II, paragraph (2), of the New York
Convention. (13)
Paragraph (3)
7. Paragraph (3) defines the writing requirement. (14)
General remarks
8. Paragraph (3) of the revised draft article 7 sought by way of a definition to clarify how the
writing requirement could be fulfilled. At its forty-fourth session (New York, 23–27 January
2006), the Working Group discussed whether the purpose of the writing requirement was to
provide a record as to the consent of the parties to arbitrate or as to the content of the
arbitration agreement. (15) After discussion, the Working Group was generally of the view
P 142 that what was to be recorded was the content of the arbitration agreement as opposed to
P 143 the meeting of the minds of the parties or any other information regarding the
formation of the agreement, and therefore, reference to the content of the arbitration
agreement would be appropriate in the text of paragraph (3). (16) In that context, it was
pointed out that paragraph (3) dealt with the definition of the form of the arbitration
agreement and the question whether the parties actually reached an agreement to
arbitrate was a substantive issue to be left to national legislation.
9. It might be recalled that the intention of the Working Group was to ensure that the
revised provision on the definition of the form of the arbitration agreement would
encompass a variety of situations, including the case where a maritime salvage contract
was concluded orally through radio with a reference to a preexisting standard contract
form containing an arbitration clause, such as the Lloyd's Open Form; contracts concluded
by performance or by conduct (for example, a sale of goods under article 18 of the United
Nations Convention on Contracts for the International Sale of Goods), with reference to a
standard form containing an arbitration clause, such as documents established by the
Grain and Food Trade Association (GAFTA); and contracts concluded orally but
subsequently confirmed in writing. A mere reference in an oral contract to a set of
arbitration rules or to a law governing the arbitral procedure to the extent the parties did
not agree on any procedural rules are cases which are not intended to be addressed by
that paragraph.
10. The Working Group agreed that further clarification in any explanatory material
accompanying that provision, such as a guide to enactment and use, might be needed as
to the factual situations that were intended to be covered by paragraph (3). (17) The
Commission might wish to discuss the revised draft article 7 in the light of the factual
situations listed below with a view to determining whether the draft adequately covers
them, to the extent the Commission intends them to be covered.
Factual situations
11. At its thirty-second session (18) (Vienna, 20–31 March 2000), the Working Group
considered several typical examples of situations where the parties agreed on the content
of a contract containing an arbitration agreement and where there was written evidence of
the contract, but where, nevertheless, current law, if interpreted narrowly, might be
construed as invalidating or calling into question the validity of the arbitration agreement.
(19)
P 143
P 144
12. The situations in (a) to (h) below are those where the parties have entered into a
contract containing an arbitration clause but the form of that clause might be considered
as not meeting the statutory requirement:
(a) A contract containing an arbitration clause is formed by one party sending written

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 terms to another party, and that latter party fulfils its obligations under the contract
without returning or making any other “exchange” in writing in relation to the terms of
the contract;
(b) A contract containing an arbitration clause is formed on the basis of a text proposed
by one party, which is not explicitly accepted in writing by the other party, but that
latter party refers in writing to a contract in subsequent correspondence, invoice or
letter of credit by mentioning, for example, its date or contract number;
(c) A contract is concluded through a broker who issues the text evidencing what the
parties have agreed upon, including the arbitration clause, without there being any
direct written communications between the parties;
(d) A reference is made in an oral agreement to a written set of terms, which may be in
standard form, that contain an arbitration agreement;
(e) Bills of lading incorporate the terms of the underlying charter party by reference;
(f) A series of contracts are concluded between the same parties in a course of dealing,
where previous contracts have included arbitration agreements but the contract in
question has not been evidenced by a signed writing or there has been no exchange
of writings for the contract;
(g) The original contract contains an arbitration clause, but there is no arbitration clause
in an addendum to the contract, an extension of the contract, a contract novation or
a settlement agreement relating to the contract (such a “further” contract may have
been concluded orally or in writing);
(h) A bill of lading contains an arbitration clause that is not signed by the shipper or the
subsequent holder.
13. The situations in (a) to (d) below refer to cases where it may be assumed that the
arbitration agreement has been validly entered into by one set of parties and the question
relates to the substantive issue of whether that arbitration agreement has become binding
on a third party who later becomes party to the contract or assumes certain rights and
obligations arising out of the contract:
(a) Third party rights and obligations under arbitration agreements contained in
contracts which bestow benefits on third party beneficiaries or stipulation in favour
of a third party (stipulation pour autrui);
P 144
P 145
(b) Third party rights and obligations under arbitration agreements following the
assignment or novation of the underlying contract to the third party;
(c) Third party rights and obligations contained in arbitration agreements where the
third party exercises subrogated rights;
(d) Rights and obligations contained in arbitration agreements where interests in
contracts are asserted by successors to parties, following the merger or demerger of
companies, so that the corporate entity is no longer the same.
14. It might be noted that the Working Group considered that the fact that the oral
conclusion of certain types of contracts may be a customary practice in certain fields of
trade or that arbitration agreements in certain types of contracts may be customary had
more to do with substantive conditions for finding that an agreement to arbitrate had been
reached than with its form. Since it was desirable that the model provision limits itself to
issues of form and not deal with substantive conditions for the validity of arbitration
agreements, the question of what was customary and how agreement between the parties
was reached was considered as falling outside the model provision. (20)
Paragraph (4)
15. The language used in paragraph (4) was consistent with that used in paragraph (2) of
article 9 of the United Nations Convention on the Use of Electronic Communications in
International Contracts (“the Convention on Electronic Contracts”) and the definitions of
“electronic communication” and “data message” reproduced the definitions contained
under subparagraphs (b) and (c) of article 4 of the Convention on Electronic Contracts. (21)
Paragraph (5)
16. The provisions of paragraph (5) were included under article 7, paragraph (2), of the
Arbitration Model Law, and the Working Group agreed to retain that paragraph. (22)
Paragraph (6)
17. The Working Group recalled that a principal purpose of paragraph (6) was to confirm the
formal validity of arbitration agreements incorporated by reference. For example, parties
might conclude by performance a contract whose terms were established in a standard
form but that form might, in turn, not contain within it an arbitration clause but might,
instead, incorporate an arbitration clause by reference to another document that
contained its terms. (23) The Working Group agreed that, as a matter of general policy, the
reference or other link to a written contractual document containing an arbitration clause
P 145 should be sufficient to establish the formal validity of the arbitration agreement, and that
P 146 domestic or other applicable law should determine whether the reference was such as
to make that clause part of the contract or the separate arbitration agreement,

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 notwithstanding that the contract or the separate arbitration agreement had been
concluded orally, by conduct or by other means not in writing. (24)
2. Notes on the alternative proposal
18. The alternative proposal omitted entirely the writing requirement. Under that
provision, oral arbitration agreements would be recognised as valid. In support of the
alternative proposal, it was said that many national laws contained requirements as to
form for arbitration agreements that could be regarded as outdated. It was noted that, in
several jurisdictions that had removed the written form requirement for arbitration
agreements, oral arbitration agreements were rarely used and had not given rise to
significant disputes as to their validity. (25)
19. That alternative proposal was seen as establishing a more favourable regime for
recognition and enforcement of arbitral awards than was provided for under the New York
Convention, and therefore, by virtue of the “more favourable law provision” contained in
article VII, paragraph (1), of the New York Convention, the Arbitration Model Law would
apply instead of article II, paragraph (2), of the New York Convention.
20. While the proposed new text was considered useful to highlight the problems raised by
the written form requirements, it was said that removal of the form requirement and of
every reference to “writing” could create uncertainty. (26)
21. The Commission might wish to consider whether the alternative proposal should be
retained and, in the affirmative, the form in which the revised draft article 7 and the
alternative proposal might be presented in the Arbitration Model Law.
MAY 2006 SECRETARIAT NOTE GOVERNMENT COMMENTS A/CN.9/609 (4 MAY 2006)
II. Comments received from Member States and international organizations
A. Member States
Guatemala
[.…] as regards the revised legal provisions relating to the form of the arbitral agreement
there is only one comment, as follows.
P 146
P 147
Article 7 (3)
The following wording is suggested:
“An arbitration agreement shall be in writing if there exists any record or
documentary evidence of its contents, regardless of whether the agreement or
the contract of which it is a part was concluded orally, through the execution of
certain legal documents or by some other means.”
Italy
[.…]
Comments on Draft legislative provisions on the form of arbitration agreement (Annex II)
Annex II offers a new revised “long” text of Article 7 (“Definition and form of arbitration
agreement”) and an alternative “short” text (“Definition of arbitration agreement”).
A preference is expressed for the “long” main proposal, whose underlying intent is to
introduce an important distinction, deserving approval.
Concisely stated, the distinction is between the certainty of the parties' will to arbitrate
and the certainty of the rules designed to govern the conduct of the arbitration
proceedings.
Whilst in many national legal systems the written form of the arbitration agreement is still
required for the purposes of achieving the first type of certainty (i.e., the certainty of the
will to arbitrate), the proposed revision of Article 7 (long text) intends to achieve a radical
change of perspective, by shifting the focus on the second type of certainty (i.e., by aiming
at securing the certainty of the rules designed to govern the conduct of the arbitration
proceedings).
In substance, the proposed revision of Article 7 (long text) liberalizes the manner in which
the parties may express their will or consent to arbitrate (this may be done even “orally, by
conduct or by other means”), whilst the form requirement is still imposed for the different
purpose of making sure that there is a “recorded” certainty of the rules, by which the
arbitration will be conducted.
The key provision is Article 7 (3), in respect of which the Commission is called to assess
whether the underlying intent of achieving certainty of the arbitration rules would be
better served by defining the form requirement by reference to a record of the “terms”
(first option in square brackets) or by reference to a record of the “content” (second option
in square brackets) of the arbitration agreement.
A strong preference is expressed herein for the use of the word “content” as opposed to
“terms”, since “content” appears to better describe the prescriptive internal substance of

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 an agreement for which the law requires the use of an external form.
P 147 However, this is merely the indication of the preferable choice between “terms” and
P 148 “content”. The Commission may well wish to consider the advisability of adopting a
different and more satisfactory wording of the entire Article 7 (3), provided always that the
fundamental choice of prescribing the form requirement for the sole purpose of the
certainty of the arbitration rules is preserved in its substance.
A/CN.9/609/ADD.1 (4 MAY 2006)
2. China
[.…]
II. Revised legislative provisions on the form of arbitration agreement
(I) General comments on the text as a whole
The text is an attempt, in the light of technological developments, for revision by way of
expanded understanding of the requirement for “ writing” in Article 7 of the Model Law
regarding the definition and form of an arbitration agreement. The Arbitration Law in effect
in China contains similar requirements for arbitration agreements to be “in writing”. With
technological advancement, inter-personal communications and the conclusion of
contracts are being done increasingly by verified means, which undoubtedly calls for a
corresponding expansion in the interpretation of the requirement for “writing”, hence the
necessity to revise Article 7 of the Model Law. For this purpose, we prefer the first
alternative text which describes in specific terms the forms of “writing” and lends itself to
easier operation, while being consistent with the understanding of written forms of
contracts in China's current practice.
(II) Comments on specific provisions
1. For paragraph (3), Article 7—Definition and form of arbitration agreement under (1)
Revised draft article 7 in Annex II, Revised legislative provisions on the form of
arbitration agreement, it is suggested to substitute in the second line the word
“established” for the word “recorded”, the reason being that “recorded” is narrower in
its meaning than the word “established”.
2. For Article 7— Definition of arbitration agreement under (2) Alternative proposal, the
text is less than satisfactory and therefore is to be discarded.
A/CN.9/609/ADD.2 (10 MAY 2006)
3. Germany
[.…]
2. Written form requirement, article 7
The German Government favours the alternative proposal, which does not contain any
provisions concerning the form of the communication. It is above all actual circumstances
in practice which speak for this solution, since such agreements are often not set out in
writing.
P 148
P 149
Further, the “warning function” of the written form will probably have become obsolete by
now since arbitration is viewed as equal to national jurisdiction. As, in addition, the first
solution also provides for the possibility of setting the agreement out in writing in
retrospect, the written form can no longer be seen as having a warning function; both
models thus produce the same result. The fact that the written form can be used as
evidence merely has practical implications for the presentation of evidence and, as a
result, also justifies omitting any form requirements. It was, not least, statements by those
delegations who already have freedom of form and who unanimously reported only
positive experience which were convincing.
A/CN.9/609/ADD.3 (12 MAY 2006)
4. Belgium
[.…]
1. As regards the draft legislative provisions on the written form of the arbitration
agreement, three comments may be made.
1.1. The first relates to the fact that these draft legislative provisions set out two
different proposals for revising Article 7 of the Model Law on International
Commercial Arbitration and that it seems to be envisaged that these two
proposals could be approved simultaneously by the Commission.
However, these two proposals would appear to be irreconcilable as the first one
aims to soften the requirement in Article 7 that the arbitration agreement be in
writing, whereas the second one aims to suppress it.
Belgium therefore considers that a choice should be made and that the first
proposal, which aims to soften the requirement, is preferable.
The requirement that the arbitration agreement be in writing is a legitimate

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 requirement given the impact of the agreement on the basic right of access to
the courts. While it is reasonable to soften this requirement and thereby adapt
it to the needs of international trade, Belgium considers that simply
suppressing it would be excessive.
1.2. The second comment relates to the content of the first aforementioned
proposal for revising Article 7 of the Model Law, and particularly to the
formulation of its paragraph 3.
Belgium believes that this provision should not be interpreted in the sense that
a written document which has nothing at all to do with the parties, such as a
copy of the rules of an arbitration body, could be considered to constitute an
arbitration agreement in written form.
On the contrary, paragraph 3 of Article 7 should be interpreted in the sense that,
on the one hand, in all cases there must be a written document emanating from
at least one of the parties, such as a written proposal, even in a simplified form,
P 149 to conclude an arbitration agreement, but that, on the other hand, there is no
P 150 need for the finalization of the contractual process to be documented as
such by a contract “in due form”, since it will be possible to prove its
finalization on the basis of the existing written document.
An explanatory comment should make this point clearer.
A/CN.9/609/ADD.5 (30 MAY 2006)
6. France
[.…]
Written form of arbitration agreement
9. The French delegation agrees with the substance of the draft provisions prepared by
the Working Group. However, it proposes that their wording be more succinct. In
particular, the revised draft article 7 contains a paragraph (4) on electronic
communication, which could be deleted or abridged since it constitutes a definition
and not a prescriptive rule. Reference might simply be made to UNICTRAL documents
dealing with electronic commerce.
10. Surprisingly, the omission of the writing requirement has also been proposed as an
alternative. The French delegation does not wish this other arrangement to appear in
the revised provisions. It would greatly weaken the provisions adopted by the
Working Group with a view to embracing as closely as possible the current situation
regarding arbitration law on this matter. In general, it is desirable to make as limited
use as possible of variants, the aim being to guide States towards solutions that
appear the most appropriate. Most importantly, the proposal to totally remove the
requirement of written form had not received the Working Group's agreement.
A/CN.9/609/ADD.6 (19 JUNE 2006)
Austria
[.…] as Austria already pointed out during the meetings of the Working Group, this
delegation is highly sceptical as to the exposure of the form requirement laid down in
article 7 of the Model Law and therefore strongly opposed to the idea that an arbitration
agreement could validly be concluded orally or even by mere conduct of the persons
involved. Austria proposes to stick to the current wording of article 7 of the Model Law as
neither of the two variants for a revised article 7 is able to meet our concerns and there is,
in our view, no urgent need for abandoning the current requirements laid down in article 7
as it currently stands.
P 150
P 151
2006 COMMISSION REPORT A/61/17 (14 JULY 2006)
IV. Finalization and adoption of legislative provisions on interim measures and the form
of arbitration agreement and of a declaration regarding the interpretation of articles II (2)
and VII (1) of the 1958 New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards
[.…]
C. Consideration of the draft legislative provision on the form of arbitration agreement
1. General comments
146. The Commission exchanged views on the draft legislative provision recalling that, in
order to ensure a uniform interpretation of the form requirement that responded to the
needs of international trade, it was desirable to prepare a modification of article 7,
paragraph 2, of the Arbitration Model Law, with an accompanying guide to enactment and
to formulate a statement addressing the interpretation of article II, paragraph 2, of the
New York Convention, that would reflect a broad and liberal understanding of the form
requirement.
147. It was recalled that the Working Group's intention in revising article 7 of the Arbitration
Model Law was to update domestic laws on the question of the writing requirement for the

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 arbitration agreement, while preserving enforceability of such agreements as foreseen in
the New York Convention. The Commission had before it two texts for consideration, the
first gave a detailed description of how the writing requirement could be satisfied (the
revised draft article 7) and the other omitted the writing requirement altogether (the
alternative proposal). The text of the draft legislative provisions considered by the
Commission at the current session was as contained in document [13 April 2006 Secretariat
Note,] A/CN.9/606.
2. Consideration of the revised draft article 7
Paragraph 1
148. It was recalled that paragraph 1 reproduced article 7, paragraph 1, of the Arbitration
Model Law. A proposal was made to delete the second sentence in that paragraph for the
reason that it was considered unnecessary. That proposal was not accepted.
149. After discussion, paragraph 1 was adopted in substance by the Commission without
modification.
Paragraph 2
150. Paragraph 2 was adopted in substance by the Commission without modification.
P 151
P 152
Paragraph 3
151. The Commission noted that paragraph 3 defined the writing requirement and sought to
clarify how the writing requirement could be fulfilled.
152. Various proposals were made to amend paragraph 3. One proposal was to add as the
opening words of paragraph 3: “Without prejudice to the parties' consent in the arbitration
agreement or contract” in order to emphasize the importance of the consent of the parties.
A related proposal was made to redraft paragraph 3 as follows: “an arbitration agreement
or contract may be concluded orally, by conduct or by any other means of proof which
manifest the will of the parties”. Another proposal, aimed at clarifying the meaning of
paragraph 3 was as follows: “The form prescribed in paragraph 2 is met if the content of the
arbitration agreement is recorded in any form, an arbitration agreement is in writing,
whether or not the arbitration agreement or contract has been concluded orally, by
conduct, or by other means”. Yet another proposal was made along the lines suggested in
[the May 2006 Secretariat Note,] A/CN.9/609. (*) Those proposals did not receive support.
153. The Commission noted that the Working Group, at its forty-fourth session (New York,
23–27 January 2006), had discussed whether the purpose of the writing requirement was to
provide a record as to the consent of the parties to arbitrate or as to the content of the
arbitration agreement. At that session, it was observed that what was to be recorded was
the content of the arbitration agreement as opposed to the meeting of the minds of the
parties or any other information regarding the formation of the agreement ([February 2006
Working Group Report,] A/CN.9/592, para. 61). The Commission confirmed that paragraph 3
dealt with the definition of the form of the arbitration agreement and the question whether
the parties actually reached an agreement to arbitrate was a substantive issue to be left to
national legislation. In that context, the Commission took note of a comment that, by
contrast with certain national laws under which the written form of the arbitration
agreement was prescribed to achieve certainty about the parties' will to arbitrate, the
revised text of paragraph 3 achieved a significant change of perspective by shifting the
focus of the provision on reaching certainty regarding the substance of the rights and
obligations created by the arbitration agreement, including rules that might govern the
arbitration proceedings. It was also pointed out that the question of proof of the content of
the agreement and that of proof of the consent could not be dissociated from each other,
and the writing could only prove existence of the arbitration agreement if at the same time
it established the parties' agreement to arbitrate.
154. The Commission confirmed that a mere reference in an oral contract to a set of
arbitration rules or to a law governing the arbitral procedure were cases that were not
P 152 intended to be covered by paragraph 3 and that such a clarification should be included in
P 153 any explanatory material accompanying that paragraph. The Commission agreed that
further clarification as to the factual situations that were intended to be covered by
paragraph 3 could be included in any explanatory material accompanying that provision.
155. After discussion, paragraph 3 was adopted in substance by the Commission without
modification.
Paragraph 4
156. It was observed that paragraph 3 already provided that an arbitration agreement
could be concluded “by any other means”, and that those words encompassed the
conclusion of an arbitration agreement by electronic means referred to under paragraph 4.
The need to retain paragraph 4 was therefore questioned.
157. In favour of its deletion, it was said that it was inappropriate for legislation relating to
arbitration to contain provisions on electronic communications and that the definitions
provided under paragraph 4 were already contained in other UNCITRAL instruments,
namely the UNCITRAL Model Law on Electronic Commerce (6) and the Convention on

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 Electronic Contracts. A proposal was made to delete paragraph 4 and add, at the end of
paragraph 3, words along the following lines: “including electronic communications”. An
alternative proposal was made to retain paragraph 4, but simplify its content by referring
in footnotes to the definitions that were already contained in the UNCITRAL Model Law on
Electronic Commerce and the Convention on Electronic Contracts. Those proposals did not
receive support.
158. In favour of retaining paragraph 4, it was said that the language used in paragraph 4
was consistent with that used in article 9, paragraph 2, of the Convention on Electronic
Contracts, and the definitions of “electronic communication” and “data message”
reproduced the definitions contained under subparagraphs (b) and (c) of article 4 of that
Convention. It was observed that maintaining consistency between UNCITRAL texts was
crucial and that the definitions contained under paragraph 4 would provide useful
guidance.
159. After discussion, paragraph 4 was adopted in substance by the Commission without
modification.
Paragraph 5
160. A comment was made that the situation addressed by paragraph 5 rarely arose in
practice, and that that provision could be deleted as paragraph 3 already contemplated
the situation covered under paragraph 5. It was objected that that provision was already
part of article 7 of the Arbitration Model Law and deleting it might be misinterpreted as
invalidating arbitration agreements concluded by an exchange of statements of claim and
defence in which the arbitration agreement was alleged by one party and not denied by
the other.
P 153
P 154
161. After discussion, paragraph 5 was adopted in substance by the Commission without
modification.
Paragraph 6
162. Paragraph 6 was adopted by the Commission without modification.
3. Consideration of the alternative proposal to draft article 7
163. The Commission noted that the alternative proposal omitted entirely the writing
requirement and thereby recognized oral arbitration agreements as valid.
164. A question was raised whether the alternative proposal should be retained. It was said
that the revised draft article 7 established the minimum requirements that should apply in
respect of the form of arbitration agreement, whereas the alternative proposal went much
further and did away with all form requirements in order, for example, to recognize the
validity of oral arbitration agreements. While the alternative proposal met with
considerable interest, the view was expressed that it might depart too radically from
traditional legislation, including the New York Convention, to be readily acceptable in
many countries.
165. In support of retention of the alternative proposal, it was noted that, in several
jurisdictions that had removed the written form requirement for arbitration agreements,
that removal had not given rise to significant disputes as to the validity of arbitration
agreements. In such jurisdictions, it was said that the provision contained in the revised
draft article 7 would be unlikely to be adopted and that therefore the alternative proposal
should be retained. In addition, it was argued that the trend was towards relaxing the form
requirement for the arbitration agreement and that therefore the Arbitration Model Law,
with a view to providing a solution for the future, should offer to national legislators the
possibility to opt for the alternative proposal.
166. In addition, it was observed that State courts tended to interpret the New York
Convention in light of the provisions of the Arbitration Model Law and that the revised
draft would indicate to States that the written form requirement contained in article II,
paragraph 2, of the New York Convention should be interpreted in a more liberal manner. It
was observed as well that according to article V, paragraph 1 (a), of the New York
Convention, the issue of the validity of the arbitration agreement (in the context of a
request for enforcement of the arbitral award) was governed by the law of the place where
the award was made and that therefore, if the arbitration agreement was valid pursuant to
the law of the place of arbitration, the award was enforceable pursuant to the New York
Convention in its States parties. It was further observed that State courts could still refer to
article VII, paragraph 1, of the New York Convention to apply a more favourable domestic
legislation.
167. After discussion, the alternative proposal was adopted in substance by the
Commission without modification.
P 154
P 155
4. Presentation of the revised draft article 7 and the alternative proposal
168. It was questioned whether the revised draft article 7 and the alternative proposal
should be presented as options in the Arbitration Model Law. Concern was expressed that

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 presenting options in the Arbitration Model Law would not encourage harmonization of
legislation in that field and might potentially create difficulties for enacting States.
169. It was suggested that the alternative proposal could be inserted as a footnote to the
revised draft article 7 or in any explanatory material. It was objected that both texts
represented two different approaches on the question of definition and form of arbitration
agreement, the first to liberalize the writing requirement and the second to suppress that
requirement altogether, and presenting the alternative text as a footnote to the revised
draft article 7 would therefore be unsatisfactory.
170. After discussion, the Commission decided to present both the revised draft article 7
and the alternative proposal as options in the text of the Arbitration Model Law and to
include guidance for enacting States in respect of each option.
[Editors' Note: Annex I to the 2006 Commission Report contains the same text of the
amended Article 7 and the alternative proposal as the 13 April 2006 Secretariat Note,
A/CN.9/606.]
SECRETARIAT EXPLANATORY NOTE 2006 AMENDMENTS
UN Publication, Sales No. E.08V.4 (January 2008)
4. [… ] Other substantive amendments to the Model Law relate to the form of the
arbitration agreement and to interim measures. The original 1985 version of the
provision on the form of the arbitration agreement (article 7) was modelled on the
language used in article II (2) of the Convention on the Recognition and Enforcement
of Foreign Arbitral Awards (New York, 1958) (“the New York Convention”). The revision
of article 7 is intended to address evolving practice in international trade and
technological developments. […]
[.…]
(a) Definition and form of arbitration agreement
19. The original 1985 version of the provision on the definition and form of arbitration
agreement (article 7) closely followed article II (2) of the New York Convention, which
requires that an arbitration agreement be in writing. If the parties have agreed to
arbitrate, but they entered into the arbitration agreement in a manner that does not meet
the form requirement, any party may have grounds to object to the jurisdiction of the
arbitral tribunal. It was pointed out by practitioners that, in a number of situations, the
drafting of a written document was impossible or impractical. In such cases, where the
willingness of the parties to arbitrate was not in question, the validity of the arbitration
agreement should be recognized. For that reason, article 7 was amended in 2006 to better
P 155 conform to international contract practices. In amending article 7, the Commission
P 156 adopted two options, which reflect two different approaches on the question of
definition and form of arbitration agreement. The first approach follows the detailed
structure of the original 1985 text. It confirms the validity and effect of a commitment by
the parties to submit to arbitration an existing dispute (“compromis”) or a future dispute
(“clause compromissoire”). It follows the New York Convention in requiring the written form
of the arbitration agreement but recognizes a record of the “contents” of the agreement “in
any form” as equivalent to traditional “writing”. The agreement to arbitrate may be
entered into in any form (e.g. including orally) as long as the content of the agreement is
recorded. This new rule is significant in that it no longer requires signatures of the parties
or an exchange of messages between the parties. It modernizes the language referring to
the use of electronic commerce by adopting wording inspired from the 1996 UNCITRAL
Model Law on Electronic Commerce and the 2005 United Nations Convention on the Use of
Electronic Communications in International Contracts. It covers the situation of “an
exchange of statements of claim and defence in which the existence of an agreement is
alleged by one party and not denied by another”. It also states that “the reference in a
contract to any document” (for example, general conditions) “containing an arbitration
clause constitutes an arbitration agreement in writing provided that the reference is such
as to make that clause part of the contract”. It thus clarifies that applicable contract law
remains available to determine the level of consent necessary for a party to become
bound by an arbitration agreement allegedly made “by reference”. The second approach
defines the arbitration agreement in a manner that omits any form requirement. No
preference was expressed by the Commission in favour of either option I or II, both of
which are offered for enacting States to consider, depending on their particular needs, and
by reference to the legal context in which the Model Law is enacted, including the general
contract law of the enacting State. Both options are intended to preserve the
enforceability of arbitration agreements under the New York Convention.
20. In that respect, the Commission also adopted, at its thirty-ninth session in 2006, a
“Recommendation regarding the interpretation of article II, paragraph 2, and article II,
paragraph 1, of the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, done in New York, 10 June 1958” ([2006 Commission Report,] A/61/17, Annex 2
[footnote omitted]). The General Assembly, in its resolution 61/33 of 4 December 2006
noted that “in connection with the modernization of articles of the Model Law, the
promotion of a uniform interpretation and application of the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards, done in New York, 10 June 1958, is
particularly timely”. The Recommendation was drafted in recognition of the widening use

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 of electronic commerce and enactments of domestic legislation as well as case law, which
are more favourable than the New York Convention in respect of the form requirement
governing arbitration agreements, arbitration proceedings, and the enforcement of
arbitral awards. The Recommendation encourages States to apply article II (2) of the New
York Convention “recognizing that the circumstances described therein are not
exhaustive”. In addition, the Recommendation encourages States to adopt the revised
article 7 of the Model Law. Both options of the revised article 7 establish a more favourable
P 156 regime for the recognition and enforcement of arbitral awards than that provided under
P 157 the New York Convention. By virtue of the “more favourable law provision” contained in
article VII (1) of the New York Convention, the recommendation clarifies that “any
interested party” should be allowed “to avail itself of rights it may have, under the law or
treaties of the country where an arbitration agreement is sought to be relied upon, to seek
recognition of the validity of such an arbitration agreement”.
[.…]
53. The Model Law does not lay down procedural details of recognition and enforcement,
which are left to national procedural laws and practices. The Model Law merely sets
certain conditions for obtaining enforcement under article 35 (2). It was amended in 2006
to liberalize formal requirements and reflect the amendment made to article 7 on the form
of the arbitration agreement. Presentation of a copy of the arbitration agreement is no
longer required under article 35 (2).
P 157

References
1) See First Secretariat Note, A/CN.9/207, para. 42, reprinted in Holtzmann & Neuhaus,
supra, p. 270.
2) January 2000 Secretariat Note, A/CN.9/WG.II/WP.108/Add.1, para. 7, p. 55 infra.
3) Id.
4) Id. paras. 8, 13, 29–32, pp. 55, 57, 62–63 infra.
5) 2006 Commission Report, A/61/17, paras. 146–47, p. 151 infra; see also April 2000
Working Group Report, A/CN.9/468, para. 92, p. 613 infra; December 2000 Working
Group Report, A/CN.9/485, paras. 22, 70, pp. 80–81,630–31 infra.
6) See Holtzmann & Neuhaus, supra, pp. 259–60 for a discussion of the legislative history
of this provision.
7) See Second Working Group Report, A/CN.9/232, para. 42, reprinted in Holtzmann &
Neuhaus, supra, p. 279.
8) February 2006 Working Group Report, A/CN.9/592, paras. 50, 59, pp. 133, 135–36 infra;
2006 Commission Report, A/61/17, paras. 146–47, 153, pp. 151, 152 infra.
9) Third Working Group Report, A/CN.9/233, para. 66, reprinted in Holtzmann & Neuhaus,
supra, pp. 281–82; Second Working Group Report, A/CN.9/232, para. 46, reprinted in
Holtzmann & Neuhaus, supra, p. 280.
10) See Fourth Working Group Report, A/CN.9/245, para. 182, reprinted in Holtzmann &
Neuhaus, supra, p. 280.
11) This point is discussed in Holtzmann & Neuhaus, supra, p. 197.
12) February 2006 Working Group Report, A/CN.9/592, para. 59, pp. 135–36 infra; 13 April
2006 Secretariat Note, A/CN.9/606, para. 8, pp. 142–43 infra; June 2001 Working Group
Report, A/CN.9/487, paras. 29–30, pp. 94–95 infra; February 2002 Secretariat Note,
A/CN.9/WG.II/WP.118, para. 15, p. 100 infra.
13) February 2006 Working Group Report, A/CN.9/592, para. 59, pp. 135–36 infra; 13 April
2006 Secretariat Note, A/CN.9/606, para. 8, pp. 142–43 infra; 2006 Commission Report,
A/61/17, para. 153, p. 152 infra.
14) See Commission Report, A/40/17, para. 84, reprinted in Holtzmann & Neuhaus, supra, p.
300.
15) See Second Working Group Report, A/CN.9/232, para. 42, reprinted in Holtzmann &
Neuhaus, supra, p. 279.
16) See Commission Report, A/40/17, paras. 85–86, reprinted in Holtzmann & Neuhaus,
supra, pp. 300–301; Sixth Secretariat Note (Analytical Compilation of Government
Comments), A/CN.9/263, Art. 7. para. 5, reprintedin Holtzmann & Neuhaus, supra, p. 286;
Summary Record, A/CN.9/SR.311, paras. 18–48, reprinted in Holtzmann & Neuhaus,
supra, pp. 293–98.
17) See generally, e.g., First Secretariat Note, A/CN.9/207, para. 40, reprinted in Holtzmann
& Neuhaus, supra, p. 269; First Working Group Report, A/CN.9/216, paras. 22, 23,
reprinted in Holtzmann & Neuhaus, supra, p. 276.
18) First Secretariat Note, A/CN.9/207, paras. 40–41, reprinted in Holtzmann & Neuhaus,
supra, p. 279.
19) Id.
20) September 2000 Secretariat Note, A/CN.9/WG.II/WP.110, paras. 17–26, pp. 76–80 infra;
13 April 2006 Secretariat Note, A/CN.9/606, paras. 11–12, pp. 143–44 infra.
21) Id.

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 22) See Commission Report, A/40/17, para. 84, reprinted in Holtzmann & Neuhaus, supra, p.
300; Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 7, para. 5,
reprinted in Holtzmann & Neuhaus, supra, p. 286; Summary Record, A/CN.9/SR.311,
paras. 18–48, reprinted in Holtzmann & Neuhaus, supra, pp. 293–98.
23) April 2000 Working Group Report, A/CN.9/468, para. 90, pp. 67–68 infra; see October
2005 Working Group Report, A/CN.9/589, para. 109, p. 120 infra.
24) January 2000 Secretariat Note, A/CN.9/WG.II/WP.108/Add.1, para. 12, pp. 56–57 infra;
April 2000 Working Group Report, A/CN.9/468, paras. 88, 98, pp. 67, 71 infra.
25) April 2000 Working Group Report, A/CN.9/468, para. 89, p. 67 infra.
26) June 2001 Working Group Report, A/CN.9/487, para. 41, p. 97 infra.
27) February 2006 Working Group Report, A/CN.9/592, para. 61, p. 136 infra.
28) Id., paras. 61–62; December 2000 Working Group Report, A/CN.9/485, para. 26, pp. 81-
82 infra.
29) See. e.g., December 2000 Working Group Report, A/CN.9/485, para. 40, p. 84 infra; June
2001 Working Group Report, A/CN.9/487, paras. 29–30, pp. 94–95 infra; April 2002
Working Group Report, A/CN.9/508, para. 27, pp. 108-09 infra; see also 13 April 2006
Secretariat Note, A/CN.9/606, paras. 8– 14, pp. 142–45 infra.
30) June 2001 Working Group Report, A/CN.9/487, para. 30, pp. 94–95 infra; April 2002
Working Group Report, A/CN.9/508, para. 27, pp. 108–09 infra; 2006 Commission Report,
A/61/17, para. 154, pp. 152–53 infra.
31) April 2002 Working Group Report, A/CN.9/508, para. 27, pp. 108–09 infra.
32) Id.
33) 13 April 2006 Secretariat Note, A/CN.9/606, para. 9, p. 143 infra.
34) June 2001 Working Group Report, A/CN.9/487, para. 30, pp. 94–95 infra.
35) April 2002 Working Group Report, A/CN.9/508, para. 27, pp. 108–09 infra. This report
notes that “some delegations” expressed the contrary view.
36) 2006 Commission Report, A/61/17, para. 154, pp. 152–53 infra. This was also the
conclusion expressed by the 13 April 2006 Secretariat Note, A/CN.9/606, para. 9, p. 143
infra.
37) For the text of Article 7 of the 1985 Model Law, see p. 47 infra.
38) Secretariat Study on the New York Convention, A/CN.9/168, paras. 19–26. reprinted in
Holtzmann & Neuhaus, supra, pp. 264–67.
39) See First Working Group Report, A/CN.9/216, para. 23, reprinted in Holtzmann &
Neuhaus, supra, p. 276; Second Working Group Report, A/CN.9/232, paras. 43, 44,
reprinted in Holtzmann & Neuhaus, supra, pp. 279–80.
40) See Commission Report, A/40/17, para. 88, reprinted in Holtzmann & Neuhaus, supra, p.
301.
41) See, e.g., First Working Group Report, A/CN.9/216, para. 23, reprinted in Holtzmann &
Neuhaus, supra, p. 276; Sixth Secretariat Note (Government Comments), A/CN.9/263,
Art. 7, para. 4, reprinted in Holtzmann & Neuhaus, supra, p. 286; Seventh Secretariat
Note, A/CN.9/264, Art. 7, paras. 7–8, reprinted in Holtzmann & Neuhaus, supra, p. 291;
Summary Record, A/CN.9/SR.311, paras. 11, 24, reprinted in Holtzmann & Neuhaus,
supra, pp. 292, 294.
42) December 2000 Working Group Report, A/CN.9/485, para. 55, p. 89 infra; 2006
Commission Report, A/61/17, para. 160, p. 153 infra.
43) December 2000 Working Group Report, A/CN.9/485, para. 55, p. 89 infra; 2006
Commission Report, A/61/17, para. 160, p. 153 infra.
44) 1985 Model Law Art. 7(2).
45) January 2000 Secretariat Note, A/CN.9/WG.II/WP.108/Add.1, para. 35, p. 64 infra. Accord
April 2000 Working Group Report, A/CN.9/468, para. 100, p. 617 infra.
46) First Working Group Report, A/CN.9/216, para. 23, reprinted in Holtzmann & Neuhaus,
supra, pp. 282–76; Second Working Group Report, A/CN.9/232, para. 43, reprinted in
Holtzmann & Neuhaus, supra, pp. 279–80; Third Working Group Report, A/CN.9/233,
para. 67, reprinted in Holtzmann & Neuhaus, supra, p. 282; Seventh Secretariat Note,
A/CN.9/264, Art. 7, para. 7, reprinted in Holtzmann & Neuhaus, supra, p. 291.
47) January 2000 Secretariat Note, A/CN.9/WG.II/WP.108/Add.1, paras. 38–39, pp. 65–66
infra. Accord April 2000 Working Group Report, A/CN.9/468, paras. 100–04, pp. 617–18
infra.
48) January 2000 Secretariat Note, A/CN.9/WG.II/WP.108/Add.1, para. 40, p. 67 infra. The
Secretariat referred in particular to the possibility that electronic commerce may
create difficulties in meeting the requirement in Article 7(2) of the 1985 law that an
arbitration agreement be contained “in an exchange of” messages. The Secretariat
gave the example of purchase orders that are generated automatically (e.g., when the
stock of goods falls below a certain level). If such purchase orders are viewed as
contracts that are subsidiary to a master agreement between the purchaser and
supplier, then the arbitration agreement applicable to all of the contracts will have
been formed at the time of the master agreement. However, if the purchase orders are
considered separate contracts from the master agreement, even if they refer to the
master agreement, there would be no exchange of messages in relation to the
arbitration agreement for each contract. Id. While one can imagine this problem
arising in paper purchase orders as well, it was felt that the problem was exacerbated
by practices developing in electronic commerce. The issue, or potential issue, was
remedied by the elimination of the “exchange” requirement in the 2006 Model Law.

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 49) 2006 Commission Report, A/61/17, para. 158, p. 153 infra. In adopting this language, the
Commission noted the importance of maintaining consistency among UNCITRAL texts.
Id.
50) February 2006 Working Group Report, A/CN.9/592, para. 51, p. 133 infra.
51) April 2002 Working Group Report, A/CN.9/508, paras. 21–25, pp. 107–08 infra; February
2002 Secretariat Note, A/CN.9/WG.II/WP.118, paras. 12–14, pp. 99–100 infra.
52) March 2001 Secretariat Note, A/CN.9/WG.II/WP.113, para. 13, pp. 91–92 infra; February
2002 Secretariat Note, A/CN.9/WG.II/WP.118, para. 9, pp. 98–99 infra.
53) April 2002 Working Group Report, A/CN.9/508, para. 23, pp. 107–08 infra.
54) Id.; July 2005 Secretariat Note, A/CN.9/WG.II/WP.136, para. 6, p. 119 infra.
55) Two Secretariat Notes collected a number of examples of links between contracts and
written arbitration clauses that the Working Group or the Commission considered in
the drafting. January 2000 Secretariat Note, A/CN.9/WG.II/WP.108/Add.1, para. 12, pp.
56-57 infra; 13 April 2006 Secretariat Note, A/CN.9/606, paras. 9, 12, pp. 143, 144 infra.
56) See pp.143, 144 infra.
57) April 2002 Working Group Report, A/CN.9/508, paras. 21, 23, pp. 107–08 infra; July 2005
Secretariat Note, A/CN.9/WG.II/WP.136, para. 6, p. 119 infra.
58) Summary Record, A/CN.9/SR.311, para. 11, reprinted in Holtzmann & Neuhaus, supra,
pp. 292–93.
59) Paragraph 5 has a precedent in the application of Article 25 of the Convention on the
Settlement of Investment Disputes between States and Nationals of other States,
which in practice has been construed to the effect that a notice of arbitration
submitted by a foreign investor to the International Center for the Settlement of
Disputes under certain circumstances dispensed with the need for a special
arbitration agreement. April 2002 Working Group Report, A/CN.9/508, para. 35, p. 111
infra.
60) April 2002 Working Group Report, A/CN.9/508, paras. 32–33, p. 110 infra.
61) Id.
62) February 2006 Working Group Report, A/CN.9/592, para. 65, p. 137 infra.
63) April 2002 Working Group Report, A/CN.9/508, para. 34 p. 110 infra; February 2006
Working Group Report, A/CN.9/592, para. 68, pp. 137–38 infra.
64) Accord Summary Record, A/CN.9/SR.320, paras. 78–79, reprinted in Holtzmann &
Neuhaus, supra, p. 1047.
65) There is, of course, no doubt in such a case that there is both a written agreement and
a written arbitration clause; the question addressed by this sentence is whether the
two are closely enough connected or, put another way, whether the parties have
manifested in writing their agreement to the clause. The written manifestation of
consent by each party is the sine qua non of the writing requirement under the original
Model Law.
Under the New York Convention, most courts had reached the result provided in the
Model Law. At least one court, however, had held that merely referring to a standard
form contract was insufficient; the contract must have been the result of specific
negotiations that made the parties aware of the consequences of the agreement. See
Secretariat Study on the New York Convention, A/CN.9/168, para. 26, reprinted in
Holtzmann & Neuhaus, supra, p. 267.
66) 13 April 2006 Secretariat Note, A/CN.9/606, para. 17, pp. 145–46 infra.
67) February 2006 Working Group Report, A/CN.9/592, para. 71, p. 138 infra; 13 April 2006
Secretariat Note, A/CN.9/606, para. 17, pp. 145–46 infra.
68) Fifth Working Group Report, A/CN.9/246, para. 19, reprinted in Holtzmann & Neuhaus,
supra, p. 285; see also Sixth Secretariat Note, A/CN.9/264, Art. 7, para. 8, reprinted in
Holtzmann & Neuhaus, supra, p. 291.
69) Second Working Group Report, A/CN.9/232, para. 44, reprinted in Holtzmann &
Neuhaus, supra, p. 280.
70) October 2005 Working Group Report A/CN.9/589, para. 110, p. 121 infra.
71) April 2005 Secretariat Note, A/CN.9/WG.II/WP.137, pp. 115–17 infra.
72) Id., Annex, para. II.1. These arguments were echoed by the Government of Germany. See
May 2006 Secretariat Note, A/CN.9/609/Add.2, para. 2, pp. 148–49 infra.
73) April 2005 Secretariat Note, A/CN.9/WG.II/WP.137, para. II.1, pp. 116–17 infra.
74) Id.
75) October 2005 Working Group Report, A/CN.9/589, para. 112, p. 121 infra. One suggested
means of reconciling Mexico's proposal and the draft amendment of Article 7 was to
revise paragraph 2 of the amended law to restrict the form requirement to a question
of proof rather than validity. Id.
76) 2006 Commission Report, A/61/17, para. 169, p. 155 infra.
77) February 2006 Working Group Report. A/CN.9/592, para. 47, pp. 132–33 infra.
78) Id.
79) October 2005 Working Group Report, A/CN.9/589, para. 111, p. 121 infra.
80) Id.
81) 13 April 2006 Secretariat Note, A/CN.9/606, para. 19, p. 146 infra; 2006 Commission
Report, A/61/17, para. 166, p. 154 infra.
82) 2006 Commission Report, A/61/17, para. 166, p. 154 infra.

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 83) Id. Article V(1)(a) of the New York Convention provides:
“Recognition and enforcement of the award may be refused, at the request
of the party against whom it is invoked, only if that party furnishes to the
competent authority where the recognition and enforcement is sought,
proof that: (a) The … agreement referred to in article II … is not valid under
the law to which the parties have subjected it or, failing any indication
thereon, under the law of the country where the award was made.”
It was also said that such arbitration awards would sometimes be enforceable
pursuant to Article VII(1) of the New York Convention. Article VII(1) of the New York
Convention provides:
“The provisions of the present Convention shall not affect the validity of
multilateral or bilateral agreements concerning the recognition and
enforcement of arbitral awards entered into by the Contracting States nor
deprive any interested party of any right he may have to avail himself of an
arbitral award in the manner and to the extent allowed by the law or the
treaties of the country where such award is sought to be relied upon.”
84) 13 April 2006 Secretariat Note, A/CN.9/606, para. 18, p. 146 infra; see also October 2005
Working Group Report, A/CN.9/589, para. 109, pp. 120–21 infra; 2006 Commission
Report, A/61/17, para. 165, p. 154 infra.
85) February 2006 Working Group Report. A/CN.9/592, para. 74, p. 139 infra.
86) 2006 Commission Report, A/61/17, para. 165, p. 154 infra.
3) For example, the Swiss Federal Tribunal observed that “[article II(2)] must be
interpreted in the light of [the Model Law], whose authors wished to adapt the legal
regime of the New York Convention to current needs, without modifying [the actual
Convention]”. Compagnie de Navigation et Transports S.A. v. MSC (Mediterranean
Shipping Company) S.A., 16 January 1995, 1st civil division of Swiss Federal Tribunal;
relevant excerpts in (1995) 13 Association suisse de l'arbitrage, Bulletin, pp. 503–511, at
p. 508.
4) The Guide to Enactment (which was drafted with the New York Convention and other
international instruments in mind) provides that “the Model Law [on Electronic
Commerce] may be useful in certain cases as a tool for interpreting existing
international conventions and other international instruments that create legal
obstacles to the use of electronic commerce, for example by prescribing that certain
documents or contractual clauses be made in written form. As between those States
parties to such international instruments, the adoption of the Model Law [on
Electronic Commerce] as a rule of interpretation might provide the means to recognize
the use of electronic commerce and obviate the need to negotiate a protocol to the
international instrument involved.” (see Guide to Enactment of the UNCITRAL Model
Law on Electronic Commerce, para. 6).
5) This question raises more general concerns regarding the compatibility of electronic
commerce with the legal regime established by a series of international conventions
that contain mandatory requirements for the use of written documents. An inventory of
such instruments was prepared by the United Nations Economic Commission for
Europe (Trade/R.1096/Rev.l), together with a recommendation that work might be
undertaken by UNCITRAL to identify possible solutions to those concerns.
6) J.-L. Delvolvé, “Third parties and the arbitration agreement”, in Proceedings of the New
York Convention Day Colloquium, supranote 1.
7) [First Draft,] Doc. A/CN.9/WG.II/WP.37 (1982), draft article 3[, reprinted in Howard M.
Holtzmann & Joseph E. Neuhaus, A Guide to the UNCITRAL Model Law on International
Commercial Arbitration: Legislative History And Commentary, p. 278 (1989).]
8) [Second Working Group Report,] Doc. A/CN.9/232 (1982), para. 45[, reprinted in
Holtzmann & Neuhaus, supra, p. 280].
9) N. Kaplan, “New developments on written form”, in Proceedings of the New York
Convention Day Colloquium, [“Enforcing arbitration awards under the New York
Convention: experience and prospects”, May, 1995, ISBN 92-1-133609-0].
10) A. J. van den Berg, “The New York Convention: Its Intended Effects, Its Interpretation,
Salient Problem Areas”, in (1996) Association suisse de l'arbitrage, Special Series No. 9,
pp. 25–45, at p. 44.
1) The group of companies theory has been used to bring a parent company or a
subsidiary under an arbitration agreement which has not been signed by it, but by
other members of the group. The theory may be summarized as requiring (1) that the
legally distinct company being brought under the arbitration agreement is part of a
group of companies that constitutes one economic reality (une réalité économique
unique), (2) that the company played an active role in the conclusion and performance
of the contract and (3) that including the company under the arbitration agreement
reflects the mutual intention of all parties to the proceedings. This concept has been
applied in a number of arbitrations (e.g., those carried out under the auspices of the
International Chamber of Commerce) and has met the approval of some courts.

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 2) Article 3:
“(1) In the interpretation of this Law, regard is to be had to its
international origin and to the need to promote uniformity in its
application and the observance of good faith.
(2) Questions concerning matters governed by this Law which are not
expressly settled in it are to be settled in conformity with the general
principles on which this Law is based.”
3) Article 8:
“In the interpretation of this Law, regard is to be had to its international
origin and to the need to promote uniformity in its application and the
observance of good faith.”
4) [First Draft,] A/CN.9/WG.II/WP.37, draft article 3, reproduced in the UNCITRAL Yearbook,
vol. XIV: 1983, part two, III, B. 1 [and reprinted in Howard M. Holtzmann & Joseph E.
Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration:
Legislative History And Commentary, p. 278 (1989).].
5) [Second Working Group Report,] A/CN.9/232, para. 45, reproduced in the UNCITRAL
Yearbook, vol. XIV: 1983, part two, III, A [and reprinted in Holtzmann & Neuhaus, supra,
p. 280.
6) [Sixth Secretariat Note,] A/CN.9/263 (Analytical compilation of comments by
Governments and international organizations on the draft text of a model law on
international commercial arbitration), comments on article 7, para. 5 (Norway),
reproduced in the UNCITRAL Yearbook, vol. XVI: 1985, part two, I, A [and reprinted in
Holtzmann & Neuhaus, supra, pp. 286–87].
7) Summary records of the United Nations Commission on International Trade Law for
meetings devoted to the preparation of the UNCITRAL Model Law on International
Commercial Arbitration, 311th meeting, reproduced in the UNCITRAL Yearbook, vol. XVI:
1985, part three, II [and reprinted in Holtzmann & Neuhaus, supra, pp. 300–01].
8) Ibid., para. 48.
9) For example, the Swiss Federal Tribunal observed that “[article II(2)] must be
interpreted in the light of [the Model Law], whose authors wished to adapt the legal
regime of the New York Convention to current needs, without modifying [the actual
Convention]”. Compagnie de Navigation et Transports S.A. v. MSC (Mediterranean
Shipping Company) S.A. 16 January 1995, 1st civil division of Swiss Federal Tribunal;
relevant excerpts in (1995) 13 Association suisse de l'arbitrage Bulletin pp. 503–511 at
p. 508.
10) The Recommendation, dated 26 February 1999, published under the symbol
TRADE/CEFACT/1999/CRP.7, was unanimously approved by the plenary of CEFACT
(document TRADE/CEFACT/1999/19 of 14 June 1999, para. 60).
10) Some national legislative texts that were used in preparing the drafts are reproduced
in paragraphs 24 to 32 of [the January 2000 Secretariat Note,] A/CN.9/WG.II.WP.108/
Add.1, entitled “Possible uniform rules on certain issues concerning the settlement of
commercial disputes: conciliation, interim measures of protection, written form for
arbitration agreement.”
11) Alternative 1 is based on article 6 of the UNCITRAL Model Law on Electronic Commerce,
while alternative 2 is modelled on article 7(2) of the UNCITRAL Model Law on
International Commercial Arbitration.
12) These fact situations were listed in para. 12 of [the January 2000 Secretariat Note,]
A/CN.9/WG.II.108/Add.1. Among them was also the case where a claimant seeks to
initiate an arbitration against an entity not originally party to the arbitration
agreement, or where an entity not originally party to the arbitration agreement seeks
to rely on it to initiate an arbitration, for example, by relying on the “group of
companies” theory (ibid., para. 12 (m)). However, the Working Group considered that
that situation raised difficult issues and the idea of a harmonised rule did not gain
wide acceptance ([April 2000 Working Group Report,] A/CN.9/468, para. 95).
13) This issue may be compounded with the incorporation-by-reference issue in a
situation where the bill of lading refers to the terms and conditions in the charter-
party, including the arbitration clause, and the question is whether the consignee (who
may not be aware of the arbitration clause) becomes bound by such a clause upon
endorsement of the bill of lading; that question is dealt with, for example, in article
22(2) of the Hamburg Rules.
9) [Editors' Note: Footnote 9 referred to the examples of cases in draft article 7(3) reprinted
in the December 2000 Working Group Report, A/CN.9/485, paras. 23–44, supra.]
9) [2001 Commission Report, A/56/17,] para. 313.
1) For example, in France, Belgium, Sweden, Switzerland, the Netherlands and Italy, the
written form requirement has been dropped, since no formal requirement is
established for the arbitration agreement.

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 2) For example, in England, “in writing” covers verbal agreements (see Zambia Steel v.
James Clark, Court of Appeal [1986], 2 Lloyd's Rep. 225, followed by Abdullah M. Fahem
v. Mareb Yemen Insurance and Tomen, Queen's Bench Reports [1997] 2 Lloyd's Rep. 738,
Yearbook of Commercial Arbitration, 1998, p. 789).
3) The proposed text replaces the draft of article 7 considered by the Working Group
([April 2002 Working Group Report,] A/CN.9/508).
4) The second sentence is proposed within square brackets as it may prove unnecessary
since the first sentence provides that the arbitration agreement may cover disputes
that have arisen or that may arise between the parties. The distinction between
“arbitration clause” and “arbitration agreement” is no longer relevant.
20) Norway, Halogaland Court of Appeal, 16 August 1999, (Stockholm Arbitration Report,
(1999), Vol 2, at 121): the court considered that a contract concluded by an exchange of e-
mails by reference to the GENCON charter party did not constitute an arbitration
agreement in writing in accordance to article II(2) of the New York Convention. The court
concluded that the e-mails exchanged together with the copy of the GENCON charter,
which was not signed, failed to meet the “basic requirements of legal protection set up by
the Convention”; The Netherlands, Court of First Instance of Dordrecht, North American
Soccer League Marketing, Inc. (USA) v. Admiral International Marketing and Trading BV
(Netherlands) and Frisol Eurosport BV (Netherlands), 18 August 1982, (Yearbook
Commercial Arbitration X (1985), p. 490); Germany, Brandenburg Court of Appeal, 13
June 2002, (No. 8, Sch 2/01); Spain, Supreme Court, Delta Cereales España SL (Spain) v.
Barredo Hermanos SA, 6 October 1998, (Yearbook Commercial Arbitration XXVI (2001),
p. 854): the enforcement of the arbitral award was not granted as the document supplied
by the parties, containing the arbitration clause, was not signed.
21) The Netherlands, Court of Appeal, Hertogenbosh, Sneek Hardhout Import BV
(Netherlands) v. Karl Schlueter KG (GmbH & Co) (Germany), 14 July 1995, (Yearbook
Commercial Arbitration XXI (1996), p. 643): an arbitration agreement, contained in
general terms of contract, signed by one party and faxed to the other party, who signed
and faxed the document back, was held to be valid; Austria, Supreme Court, 22 May 1991,
(OGH 22.5.1991, 3 Ob 73/91, SZ 64/61): in relation to article V(1), a court found that
enforcement might (upon application of the party opposing enforcement) be denied if the
form requirements “exclusively and exhaustively contained in article II(2)” were not met;
United States, District Court for the Southern District of New York, Sen Mar, Inc. v. Tiger
Petroleum Corporation (1991) (774 F Supp. 879): the court decided that an arbitration
clause was enforceable under the New York Convention only if it was found in a signed
written document or an exchange of letters; there was no enforceable agreement in that
case because the arbitration agreement was contained only in a telex that was objected
to in its entirety by the other party.
22) United States, District Court for the Western District of Washington, Richard Bothell
and Justin Bothell, d/b/a Atlas Technologies and Atlas Bimetals Labs Inc. v. Hitachi
Zosen Corp et al, 19 May 2000 (97 F Supp 2d 1048): the court considered that there was
no indication on the face of the purchase orders or any other document exchanged
between the parties of an agreement to arbitrate.
23) Italy, Supreme Court, Krauss Maffei Verfahrenstechnik GmbH (Germany) v. Bristol Myers
Squibb (Italy), 10 March 2000, (Yearbook Commercial Arbitration XXVI (2001), p. 816):
the court declared that it was not necessary for the arbitration clause to be separately
approved in writing but that such clause was valid when contained in a document signed
by both contracting parties: “once it is clear that the parties must sign the arbitration
clause and that their unequivocal intention to refer the dispute to arbitrators must
appear unambiguously, it follows that an arbitration clause is not valid when it is
contained (…) in the documents (…) signed by the foreign seller, and it does not appear in
the document (…) by which the buyer accepted the seller's offer”.
24) Korea, Supreme Court, Kukje Sangsa Co Ltd (Korea) v. GKN International Trading
(London) Ltd (UK), 10 April 1990, (Yearbook Commercial Arbitration XVII (1992), p. 568):
the court held that the form requirement of article II(2) was fulfilled when a sales
contract was concluded by accepting purchase orders in accordance with the terms as
stated therein including an arbitration clause; the court denied the argument of the
defendant that the arbitration clause was not accepted because it was printed in smaller
letters than the other terms and conditions and was not discussed by the parties.
25) Italy, Supreme Court, Robobar Limited (UK) v. Finncold sas (Italy) 28 October 1993,
(Yearbook Commercial Arbitration XX (1995), p. 739): the argument that it would be
contrary to good faith to contest the validity of the arbitration clause was rebutted on
the basis that formal requirements could not be derogated from.

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 26) Austria, Supreme Court, 22 May 1991, (OGH 22.5.1991, 3 Ob 73/91, SZ 64/61): in relation to
article V(1), a court found that enforcement might (upon application of the party
opposing enforcement) be denied if the writing requirements which were “exclusively and
exhaustively contained in article II(2)” were not met; Germany, OLG Schleswig, 30 March
2000, (16 SchH 05/99): the court stated that article II(2) superseded any national law with
respect to formal requirements and the principle of autonomous interpretation meant
that national law could not be applied to the interpretation and scope of the arbitration
agreement; Switzerland, Supreme Court, Insurance Company (Sweden) v. Reinsurance
Company (Switzerland), 21 March 1995 (Yearbook Commercial Arbitration XXII (1997), p.
800): the court stated that formal requirements were to be exclusively determined by
article II(2), which should be interpreted independently, without assistance of national
law; Germany, OLG Koeln, 22 June 1999, (9 Sch 08/99): the court held that the form
requirement of article II(2) was fulfilled when parties signed a contract containing an
arbitration clause.
27) Austria, Supreme Court (OGH), 21 February 1978, 3 Ob 120/77, SZ 51/18 (Yearbook
Commercial Arbitration X (1985), p. 418).
28) Austria, Supreme Court, 7 November 1979, (OGH 7.11.1979, 3 Ob 144/79, SZ 52/160); Italy,
Supreme Court, Universal Peace Shipping Enterprises SA (Panama) v. Montedipe SpA
(Italy), 28 March 1991 (Yearbook Commercial Arbitration XVII (1992) p. 562): the court
held that an oral contract for sale and a bill of lading which included an arbitration
clause sent by one party but not signed did not satisfy the form requirement of article
II(2) of the New York Convention.
29) Italy, Supreme Court, Marc Rich & Co AG v. Societa Italiana Impianti SpA, 25 January
1991, (Yearbook Commercial Arbitration XVII (1992), p. 554 and decision of the Court of
Justice of the European Community, dated 25 July 1991, p. 233): the contract was
concluded by an exchange of telexes; since a later telex by Marc Rich stating further
terms of the contract including an arbitration clause was not replied to, and accepted by,
Impianti, the court found that there was no proof of a mutual written agreement to
arbitrate and thus the Italian courts had jurisdiction to hear the case; the Court held that
“as far as arbitration clauses for foreign arbitration are concerned, the written form is
always required under the New York Convention.”
30) Germany, OLG Duesseldorf (1971) (Yearbook Commercial Arbitration II (1977), p. 237).
31) Germany, OLG Rostock, 22 November 2001, (1 Sch 03/2000); Italy, Supreme Court, Marc
Rich & Co AG v. Societa Italiana Impianti SpA, 25 January 1991, (Yearbook Commercial
Arbitration XVII (1992), p. 554).
32) Italy, Supreme Court, Robobar Limited (UK) v. Finncold sas (Italy) 28 October 1993,
(Yearbook Commercial Arbitration XX (1995), p. 739).
33) The Netherlands, Court of Appeal at The Hague, James Allen (Ireland) Ltd v. Marea
Producten B.V. (Netherlands), 17 February 1984, (Yearbook Commercial Arbitration X
(1985), p. 485): the parties had conducted at least 25 prior transactions in accordance
with standard conditions which included an arbitration clause; the last transaction,
subject to the dispute, did not refer to those standard conditions and the court decided
that regular prior use of general conditions of trade (containing an arbitration clause)
could not constitute an enforceable arbitration agreement in a case where those general
conditions had not specifically been referred to; the court stated that the requirement of
the “agreement in writing” referred to in the New York Convention foreclosed the
possibility of invoking such continuous use.
34) United States, Court of Appeals for the fifth Circuit, Sphere Drake Insurance plc v.
Marine Towing, Inc., 23 March 1994, (16 F 3d 666, Yearbook Commercial Arbitration XX
(1995), p. 937): that case involved an insurance contract that was not signed by the
insured party. The insured contended that because it did not sign the contract, there was
no “agreement in writing” within the meaning of the New York Convention; to be
enforceable under the New York Convention, either the contract containing the
arbitration clause had to be signed by the parties, or the parties had to demonstrate their
assent thereto by an exchange of correspondence. The court rejected that interpretation
and ruled that the New York Convention's definition of “agreement in writing” included
either (1) an arbitration clause in a contract or (2) an arbitration agreement (a) signed by
the parties or (b) contained in an exchange of letters or telegrams. In reaching its
decision, the court cited, but declined to follow the decision from the US District Court
for the Southern District of New York, Sen Mar, Inc v. Tiger Petroleum Corporation (1991)
(774 F Supp. 879), which had taken a contrary view of the interpretation of article II(2).
The Sphere Drake (1994) interpretation was followed in Stony Brook Marine
Transportation Corporation v. Leslie Wilton, Compagnie d'Assurances Maritimes
Aeriennes et Terrestres and Lev A. Osman (1996) 94 CV 5880 (JS) involving an arbitration
clause contained in an insurance certificate issued after the loss occurred and unsigned
by the insured, but referred to in a written order slip prepared by the insured's agent and
signed by the underwriter. The Sphere Drake (1994) interpretation apparently also
influenced the US District Court of Minnesota in Polytek Engineering v. Jacobson
Companies and Jacobson Inc. (1997) 984 F. Supp 1238 (although it did not explicitly
mention the case, it came to the conclusion that an unsigned purchase order that twice
referred to an attached contract containing an arbitration clause, which was partially
performed by the party trying to avoid arbitration, fulfilled the writing requirement).

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 35) United States, District Court, Kahn Lucas Lancaster, Inc. v. Lark International Ltd (11
August 1997) (No. 95 CIV 10506): the court followed Sphere Drake Insurance plc v. Marine
Towing, Inc. and declined to follow Sen Mar Inc. v. Tiger Petroleum Corp. : the case
involved purchase orders performed by the defendant but not signed by it; the court
considered that “an arbitral clause in a contract is sufficient to implicate the New York
Convention; an ‘agreement in writing’ does not necessarily have to be either signed by the
parties or contained in an exchange of letters or telegrams, as long as the court is
otherwise able to find an arbitral clause in a contract.” On appeal (see footnote 36
below), that interpretation of article II(2) was rejected.
36) United States, Court of Appeals for the second Circuit, Kahn Lucas Lancaster, Inc. v.
Lark International Ltd, 29 July 1999 (186 F 3d 210): the court stated that the definition of
“agreement in writing” required that such an agreement, whether it was an arbitration
agreement or an arbitration clause in a contract, be signed by the parties or contained in
a series of letters or telegrams exchanged by the parties.
37) The reasoning in the Kahn Lucas appeal case has been followed in subsequent casesby
the US District Court of Connecticut, Coutinho Caro & Co USA Inc v. Marcus Trading Inc.,
14 March 2000, Judy Tien Lo v. Aetna International (2000) WL 565465 and the US District
Court for the Southern District of California, in Chloe Z Fishing Co., Inc v. Odyssey Re
(London) Ltd, 29 April 2000, 109 F Supp 2d 1236, where the court noted the different
interpretations and expressed its preference for the Kahn Lucas (1999) interpretation (as
opposed to Sphere Drake (1994)), noting however that the facts of Kahn Lucas could not
be transposed to the current case. A number of other cases have expressly followed the
Kahn Lucas interpretation: US District Court for the Western District of Washington,
Bothell and Bothell v. Hitachi Rosen Corporation, 19 May 2000, (97 F Supp 2d 1048),
where the court denied a motion to stay legal proceedings on the basis of a very
restrictive interpretation of exchange; the reasoning in the Kahn Lucas appeal case has
been mentioned as well in the case from United Kingdom, Queen's Bench Division,
Commercial Court, XL Insurance Ltd v. Owens Corning, 28 July 2000, 2 Lloyd's Rep 500,
(Yearbook Commercial Arbitration XXVI (2001) p. 869).
38) Italy, Court of Appeal of Naples (1974) (Yearbook Commercial Arbitration I, (1976) Case
No. 11, p. 193).
39) [January 2000 Secretariat Note,] A/CN.9/WG.II/WP.108/Add.1, para. 12.
40) Italy, Court of Appeal of Florence (1977), (Yearbook Commercial Arbitration IV (1979),
Case No. 29, p. 289).
41) United States, Court of Appeals, Seventh Circuit, Mary D. Slaney (US) v. International
Amateur Athletic Federation (Monaco), 27 March 2001, (Yearbook Commercial
Arbitration XXVI (2001), p. 1091): the court stated that non-signatories to an arbitration
agreement might nevertheless be bound according to ordinary principles of contract and
agency, including estoppel.
42) Hong Kong, High Court, China Nanhai Oil Joint Service Corporation Shenzhen Branch(PR
China) v. Gee Tai Holdings Co Ltd, 13 July 1994, (Yearbook Commercial Arbitration XX
(1995), p. 671): the Supreme Court analysed the doctrine of estoppel and held that the
doctrine was inherent to the New York Convention.
43) Greece, Court of Appeal of Athens, Greek Company v. FR German Company, Decision No.
4458, (1984) (Yearbook Commercial Arbitration XIV (1989), p. 638): the lack of written
form was cured by participation in arbitration without objection; to reach that
conclusion, the court applied the domestic law governing the arbitration proceedings
(without referring to article VII(1) of the New York Convention).
44) Spain, Supreme Court, Delta Cereales Espana SL (Spain) v. Barredo Hermanos SA
(Spain), 6 October 1998, (Yearbook Commercial Arbitration XXVI (2001), p. 854): “the
court's interpretation aims at ascertaining, from the communications and acts of the
parties, whether they wished to include the arbitral clause in their contract or, in general,
to submit their dispute to arbitration”; however, in that case, neither the documents
supplied by Delta nor by Barredo contained an arbitration clause satisfying the
requirements of article II(2) since they were not signed by the other party; Switzerland,
Court of Appeal, Geneva, C Import and Export Company (PR China) v. G SA
(Switzerland), 11 December 1997, (Yearbook Commercial Arbitration XXIII (1998), p. 764):
the court stated that the New York Convention allowed, apart from written and signed
acts, those acts which had a less strict form but were accepted by the trade usages of the
parties.
45) Italy, Supreme Court, Molini Lo Presti SpA (Italy) v. Continentale Italiana SpA (Italy), 2
March 1996, (Yearbook Commercial Arbitration XXII (1997), p. 734): the reference in a
contract to an arbitration clause contained in a standard agreement was considered
sufficient to incorporate the arbitration clause per relationem.
46) France, Supreme Court, Bomar Oil N.V. (Neth. Antilles) v Entreprise Tunisienne
d'Activités Petrolières ETAP (Tunisia), 9 November 1993 (Yearbook Commercial
Arbitration XX (1995), p. 660): exchange of telexes, which referred to “Standard Industry
Practice”, “the standard contract” and “the practice in International Trade” established
proof of consent to arbitration; Germany, The BayObLG, 17 September 1998 (4 Z Sch
01/98): a contract of sale signed by the parties, which expressly incorporated “the terms
andconditions printed on the other side”, including an arbitration clause, satisfied the
form requirement of article II(2) since it did not refer to a separate document.

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 47) Germany, Schleswig, 30 March 2000, 16 SchH 05/99: a contract, which referred to terms
and conditions on reverse side of standard contract form, used by the parties for several
years, was found to satisfy the written form notwithstanding that the reverse page of the
contract never reached the other party; Switzerland, Federal Supreme Court, Tradax
Export S.A. (Panama) v Amoco Iran Oil Company (US), 7 February 1984, (Yearbook
Commercial Arbitration XI (1986), p. 532): the Court stated that article II(2) was silent on
the question of incorporation by reference and that there was no harmonised solutions to
that question; a charter party contained a valid arbitration clause and the question was
whether the arbitration clause was also incorporated by the reference to the charter
party in the bill of lading; in the case at hand, well-established commercial companies
were involved, which were familiar with the use of standard terms of charter parties; thus,
the court came to the conclusion that, since the bill of lading referred to the totality of
the clauses and conditions contained in the charter party to which also the arbitration
clause belonged and due to the experience of the parties involved, it could be assumed
that the defendant (belonging to the Amoco group) knew or should have known the
respective aspects of the carriage contract; the court held that the arbitration clause was
therefore valid.
48) France, Supreme Court, Bomar Oil N.V. (Neth. Antilles) v. Entreprise Tunisienne
d'Activités Petrolières ETAP (Tunisia), 11 October 1989, (Yearbook Commercial
Arbitration XV (1990), p. 447): the court stated that although the New York Convention
did not exclude the recognition of an arbitration agreement incorporated by reference,
article II(2) required “that the existence of the clause be mentioned in the main contract,
unless there exists between the parties a longstanding business relationship which
insures that they are properly aware of the written conditions normally governing their
commercial relationships.” France, Supreme Court, Bomar Oil N.V. (Neth. Antilles) v.
Entreprise Tunisienne d'Activités Petrolières ETAP (Tunisia), 9 November 1993,
(Yearbook Commercial Arbitration XX (1995), p. 660): the court, without referring to the
New York Convention, stated that: “in the field of international arbitration, an arbitration
clause, if not mentioned in the main contract, may be validly stipulated by written
reference to a document which contains it, for instance, general conditions or a standard
contract, when the party against which the clause is invoked was aware of the contents
of this document at the moment of concluding the contract and when it has, albeit
tacitly, accepted the incorporation of the document in the contract”; Australia, Supreme
Court of Queensland, Court of Appeal Division, 27 June 2000, Austin John Montague v.
Commonwealth Development Corporation (UK), Appeal No. 8159, (Yearbook
Commercial Arbitration XXVI (2001), p. 744): the Supreme Court of Queensland found
that signature of terms of reference as part of ICC arbitration proceedings amounted to
an agreement in writing; United States, District Court for the Eastern District of New
York, USA, Stony Brook Marine Transportation Corp v. Leslie Wilton et al (1996): the
order slip drawn up by one party's agent and signed by other party's agent, which
referred to an arbitration clause was considered, in the context of custom and practice of
marine insurers, as incorporating by reference the arbitration clause; Spain, Supreme
Court, Consmaremma (Italy) v. Hermanos Madrid SA (Spain), 20 February 2001,
(Yearbook Commercial Arbitration XXVI (2001), p. 858): a sales confirmation document
containing an ICC arbitration clause and a reference to a form, which also contained an
ICC arbitration clause, was only signed by one party. The Supreme Court found that the
New York Convention was applicable and that the requirements of article II(2) were met
because the original contract containing an arbitration clause, together with a
subsequent contract was said to show that the parties intended to submit to arbitration
disputes arising under their contract. Switzerland, Supreme Court, G S.A. (Switzerland) v.
T Ltd (UK), 12 January 1989, (Yearbook Commercial Arbitration XV (1990), p. 509): an
agreement resulting from an exchange of written documents did not need to mention the
arbitration clause and a general reference to a contract containing an arbitral clause
was considered sufficient to meet the form requirement of article II(2).
49) United States Court of Appeals, Third Circuit, 20 June 2003, N0. 02-2169, (Yearbook
Commercial Arbitration XXIX (2004), p. 978).
50) Switzerland, Court of Appeal, Basel-Land, DIETF Ltd v. RF AG, 5 July 1994, (Yearbook
Commercial Arbitration XXI (1996) p. 685): a seller had sent a confirmation order to a
buyer containing reference to the overleaf general business regulations which included
an arbitration clause; the buyer replied by fax referring to the confirmation order and
made certain requests as to the packaging of the goods etc.; the Court found that the
form requirements of article II(2) were met by stating that the written acceptance did not
need to refer especially to the arbitration clause but may concern the contract as a
whole.

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 51) United Kingdom, Court of Appeal, Zambia Steel & Building Supplies Ltd. V. James Clark
& Eaton Ltd, May 16, 1986 ((1986) 2 Lloyd's Rep. 225): the court, referring to the 1975
English Arbitration Act stated that “once it is clear that the assent to the written terms is
not required to be contained in the written agreement, but that assent to the written
terms may be proven by other evidence, then (…) any evidence which proves that the
party has agreed to be bound by an [arbitration] agreement (…) contained in a document
or documents is sufficient to make the document or documents an [arbitration]
agreement in writing (…).” The reasoning of Zambia Steel (1986) was followed in a
decision by the Queen's Bench Division of the Commercial Court, Abdullah M Fahem
and Co (Yemen) v. Mareb Yemen Insurance Co and Tomen (UK) Ltd (1997) (Yearbook
Commercial Arbitration XXIII (1998) p. 789) where a stay of court proceedings was sought
invoking an arbitration agreement; the court cited the English Arbitration Act and held
that the Act provided for a very wide meaning of the words “in writing”, which was even
wider than article 7(2) of the UNCITRAL Arbitration Model Law but was said to be still
consonant with article II(2); the court held that if an arbitration agreement was
incorporated in a document and if it was proven that the parties were bound by a
contract which included the terms of that document, no further proof of the arbitration
agreement was required.
52) United States, District Court for the Southern District of New York, Oriental Commercial
and Shipping Co Ltd (Saudi Arabia) and Oriental Commercial and Shipping Co (UK) Ltd
(UK) v. Rosseel N.V. (Belgium), 4 March 1985, (609 F Supp 75); France, Court of Appeal,
Paris, Bomar Oil NV v. ETAP, 20 January 1987, (1987, rev. arb. 482); Switzerland, Federal
Tribunal, G.S.A. v. T. Ltd, 12 January 1989, (Yearbook Commercial Arbitration XV (1990));
Italy, Court of Savona, Dimitros Varverakis v. Companis de Navigacion Artico SA, 26
March 1981 (Yearbook Commercial Arbitration, X (1985)); Austria, Supreme Court, 2 May
1972, (Yearbook Commercial Arbitration X (1985)); Switzerland, Federal Supreme Court,
Tracomin SA v. Sudan Oil Seeds Co, 1987, (Yearbook Commercial Arbitration XII (1987)).
53) United States, Court of Appeals for the Second Circuit, Titan Inc v. Guangzhou Zhen Hua
Shipping Co Ltd, 15 February 2001 (241 F 3d 135); Germany, OLG Hamburg, 30 July 1998
(Yearbook Commercial Arbitration XXV (2000), p. 714): the court found that in the light
of technological developments, telexes and faxes like telegrams were to be treated as
letters within the meaning of article II(2); Switzerland, Federal Supreme Court, Tracomin
S.A. (Switzerland) v. Sudan Oil Seeds Co Ltd (UK), 5 November 1985 (Yearbook
Commercial Arbitration XII (1987), p. 511): the Supreme Court found that telexes and
letters to settle disputes by arbitration and appointment of an arbitrator in a telex
satisfied the form requirement of article II(2).
54) United States, District Court for the Southern District of California, Chloe Z Fishing Co
Inc et al v. Odyssey Re (London) Ltd (2000) (109 F Supp 2d 1236).
55) Switzerland, Court of Appeal in Basel, DIETF Ltd v RF AG (1994).
56) Switzerland, Federal Tribunal, Compagnie de Navigation de Transports SA v. MSC
Mediterranean Shipping Company SA (1995) BGE 121 III 38, ASA Bulletin 3/1995 503:
article 178 of the Federal Act of Private International Law provides as follows: “As regards
form, the arbitration agreement shall be valid if made in writing, by telegram, telex,
telecopy or any other means of communication which permits it to be evidenced by a
text. (…)”.
57) Norway, Halogaland Court of Appeal, 16 August 1999, (Stockholm Arbitration Report,
(1999), Vol 2, at 121): the court considered that a contract concluded by an exchange of e-
mails by reference to the GENCON charter party did not constitute an arbitration
agreement in writing in accordance to article II(2) of the New York Convention. The court
concluded that the e-mails exchanged together with the copy of the GENCON charter,
which was not signed, failed to meet the “basic requirements of legal protection set up by
the Convention”.
1) [1999 Commission Report,] (A/54/17), paras. 344–350 [not reprinted] and para. 380[,
reprinted in Matters Not Addressed in the Final Text, p. ___ infra].
2) [April 2000 Working Group Report,] A/CN.9/468, paras. 88–106.
3) [December 2000 Working Group Report,] A/CN.9/485, paras. 21–59.
4) [June 2001 Working Group Report,]A/CN.9/487, paras. 22–41.
5) [April 2002 Working Group Report,] A/CN.9/508, paras. 18–39.
6) [October 2005 Working Group Report,] A/CN.9/589, paras. 108–112 [, paras. 109–112
reprinted; para. 108 not reprinted].
7) [February 2006 Working Group Report,] A/CN.9/592, paras. 46–81[, paras. 46–75 reprinted;
paras. 76–81 not reprinted].
8) [April 2000 Working Group Report,] A/CN.9/468, para. 88.
9) [October 2005 Working Group Report,] A/CN.9/589, paras. 110–112.
10) [February 2006 Working Group Report,] A/CN.9/592, para. 74.
11) Ibid. [February 2006 Working Group Report, A/CN.9/592,] paras. 46–75 and annex II.
12) Ibid., [February 2006 Working Group Report, A/CN.9/592,] para. 49.
13) Ibid., [February 2006 Working Group Report, A/CN.9/592,] paras. 50–59.
14) Ibid., [February 2006 Working Group Report, A/CN.9/592,] para. 59.
15) Ibid., [February 2006 Working Group Report, A/CN.9/592,] para. 57.
16) Ibid., [February 2006 Working Group Report, A/CN.9/592,] paras. 61 and 62.
17) Ibid., [February 2006 Working Group Report, A/CN.9/592,] para. 62.

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 18) [April 2000 Working Group Report,] A/CN.9/468, para. 95; [January 2000 Secretariat
Note,] A/CN.9/WG.II/WP.108/Add.1, para. 12 and [September 2000 Secretariat Note,]
A/CN.9/WG.II/WP.110, paras. 16–26.
19) These fact situations were listed in para. 12 of document [January 2000 Secretariat
Note,] A/CN.9/WG.II/WP.108/Add.1 and paras. 16–26 of document [September 2000
Secretariat Note,] A/CN.9/WG.II/WP.110. Among them was also the case where a
claimant seeks to initiate an arbitration against an entity not originally party to the
arbitration agreement, or where an entity not originally party to the arbitration
agreement seeks to rely on it to initiate an arbitration, for example, by relying on the
“group of companies” theory. However, the Working Group considered that that
situation raised difficult issues and the idea of a harmonised rule did not gain wide
acceptance. ([April 2000 Working Group Report,] A/CN.9/468, para. 95).
20) [December 2000 Working Group Report,] A/CN.9/485, paras. 39–41 and [February 2006
Working Group Report,] A/CN.9/592, para. 72.
21) [February 2006 Working Group Report,] A/CN.9/592, para. 64.
22) Ibid., [February 2006 Working Group Report,] paras. 65–68.
23) Ibid., [February 2006 Working Group Report,] para. 69.
24) Ibid. and [April 2002 Working Group Report,] A/CN.9/508, paras. 27–31.
25) [February 2006 Working Group Report,] A/CN.9/592, para. 47.
26) [October 2005 Working Group Report,] A/CN.9/589, para. 110.
*) [Editors' Note: Two proposals with respect to paragraph 3 of Article 7 were made in the
May Secretariat Note, A/CN.9/609, one by Guatemala and one by Italy. It is unclear
which is referred to here.]
6) Ibid., [1996 Commission Report,] A/51/17, annex I, and United Nations publication, Sales
No. E.99.V.4, which contains also the accompanying Guide to Enactment.

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Document information
UNCITRAL Model Law, Chapter II, Article 8 [Arbitration
Publication agreement and substantive claim before court]
A Guide to the UNCITRAL (1) A court before which an action is brought in a matter which is the subject of an
Model Law on International arbitration agreement shall, if a party so requests not later than when submitting
Commercial Arbitration: his first statement on the substance of the dispute, refer the parties to arbitration
Legislative History and unless it finds that the agreement is null and void, inoperative or incapable of being
Commentary performed.
(2) Where an action referred to in paragraph (1) of this article has been brought, arbitral
proceedings may nevertheless be commenced or continued, and an award may be
Organization made, while the issue is pending before the court.
United Nations Commission
on International Trade Law Commentary
Article 8 requires courts to recognize and give effect to arbitration agreements. It thus
provides for a critical element of any arbitration law: the exclusive competence of arbitral
Promulgation tribunals over the substance of disputes that are the subject of a valid arbitration
21 June 1985 agreement. (1)
Paragraph 1. Paragraph 1, which directs courts to refer parties to arbitration, is modeled on
Article II(3) of the New York Convention. Thus, like that Convention, the action before the
Legislation number court must be “in” the same “matter” that is the subject of the arbitration agreement and
not merely “related” to it or “involved” in it, as some proposed during the debate by the
United Nations Document Commission. (2) Similarly, the direction to the court to refer the parties to arbitration
A/40/17, Annex I operates only if one of them requests. Thus, the silence of the parties will be deemed to be
a waiver of the right to go to arbitration. By the same token a foreign defendant may not
avoid appearing before the court seized of the action with confidence that it will refer the
Bibliographic reference matter to arbitration. (3) Although the Article does not explicitly so state, it was the
Working Group's understanding that the court was deprived of the power to refer the
'UNCITRAL Model Law, parties to the arbitration on its own motion. (4)
Chapter II, Article 8
[Arbitration agreement and P 302 In addition, the scope of the court's inquiry into the validity of the arbitration agreement is
substantive claim before P 303 the same as under Article II(3) of the New York Convention: the court may decline to
court]', in Howard M. refer the parties to arbitration only if it finds that the agreement is “null and void,
Holtzmann and Joseph inoperative or incapable of being performed.” The Working Group declined to make three
Neuhaus , A Guide to the proposed changes in this language. First, it refused to add the term “manifestly” before
UNCITRAL Model Law on “null and void.” This would have limited the court to a prima facie finding that the
International Commercial arbitration agreement was valid. It was felt that the issue should be “settled” by the court
Arbitration: Legislative before referring the parties to the arbitral tribunal. (5) Second, the Working Group declined
History and Commentary, to add as one of the criteria for refusing to refer a matter to arbitration the test that an
(© Kluwer Law International; award made in the arbitration would be unenforceable in the forum State. This proposal
Kluwer Law International was felt to be contrary to the Model Law's purpose of promoting international commercial
1989) pp. 302 - 331 arbitration, in part because the award might well be enforceable in other States. (6) If so,
the view was that the arbitration should be allowed to proceed. It should be noted in
passing that, in taking this position, the Working Group revealed its assumption that the
law governing the validity of the agreement for purposes of Article 8 is not the law of the
forum. Although the Model Law does not specify what law governs the validity of the
agreement for this purpose, Articles 34(2)(a)(i) and 36(1)(a)(i) specify that, for the purposes
of setting aside, recognition and enforcement of an award, the law of the place where the
award was made – i.e., the law of the place of arbitration – governs validity unless another
law has been chosen by the parties. (7) It would be anomalous to apply a different law at
the stage of reference to arbitration. (8)
The third proposed addition to the grounds for refusing reference to arbitration was to add
that the dispute concerned a matter “not capable of settlement by arbitration.” This
proposal was not adopted in part because it was noted that an arbitration agreement
concerning a nonarbitrable subject matter would “normally” be regarded as null and void.
(9) While the failure to adopt the proposed amendment retained the parallelism between
Article 8 of the Model Law and Article II(3) of the New York Convention, it actually
introduced an apparent inconsistency between the two documents. This is because Article
P 303 II(1) of the Convention requires Contracting States to recognize arbitration agreements only
P 304 if they “concern[] a matter capable of settlement by arbitration.” This proviso is missing
from Article 8, and from Article 7, which was modeled on Article II(1) of the Convention. (10)
Thus, although courts operating under the Convention are explicitly commanded to
consider arbitrability before referring parties to arbitration, courts acting under the Model
Law are not. In fact, however, this distinction probably will have little, if any, effect in
actual cases, for two reasons: first, Article 1(5) stipulates that the forum State's laws of
arbitrability retain their force, (11) and, second, as noted, it was expected that the term
“null and void” would “normally” include considerations of arbitrability.
Assuming that considerations of arbitrability must be considered before referring a matter
to arbitration, what law should apply? (12) Once again, the Model Law does not contain a
choice-of-law provision on this question, and the solution is not clear. Looking to the

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 provisions of the Law on setting aside, recognition and enforcement of an award, one finds
two potentially applicable provisions. As already noted, Articles 34(2)(a)(i) and 36(1)(a)(i)
provide that the validity of the arbitration agreement generally is governed by the law of
the place of arbitration unless another law has been chosen by the parties. Articles 34(2)(b)
(i) and 36(1)(b)(i) provide, however, that the court may set aside the award, or refuse to
recognize or enforce it, if the subject matter of the dispute is not arbitrable under the law
of the forum, i.e., the law of the State in which the court sits, which (in the case of
recognition and enforcement) will not necessarily be the law of the place of arbitration.
Under the parallel provisions of the New York Convention, there is considerable
disagreement on the question of what law should govern the question of arbitrability at the
stage of referral to arbitration. Some writers take the view that a court should look to the
law of arbitrability of the forum; others say the law of the place of arbitration should
govern this question; still others argue that the court should decline to refer the dispute to
arbitration if it is not arbitrable under the law of either the forum or the place of
arbitration. (13) The issue remains unresolved in the Model Law.
P 304
P 305
The legislative history of Article 8 provides no other insights into the intended meaning of
the terms “null and void, inoperative or incapable of being performed.” In addition, the
terms in the New York Convention have rarely been the subject of court decisions, (14) so
their precise meaning must be left to future development. (15)
It should be noted that under Article 8 it is the arbitration agreement and not the contract
as a whole that must be found to be “null and void, inoperative or incapable of being
performed” for reference to arbitration to be refused. In this connection, the Model Law
does not explicitly state whether the arbitral clause should be deemed separable from the
contract as a whole, so that, for example, if the contract is invalid because of mistake,
misrepresentation, or duress, the arbitration clause might still be valid. (16) Article 16(1),
however, provides that the arbitral tribunal itself in determining its jurisdiction should
treat the arbitration clause as an agreement independent of the other terms of the
contract. Because the arbitral tribunal and the court should theoretically be able to reach
the same result on the question of validity of the arbitration agreement, this separability
provision presumably will apply to the court as well.
Paragraph 1 differs from the New York Convention in one further particular way (except for
minor drafting differences) in that it places a time limit on a party's request that the
matter be referred to arbitration. (17) This provision requires that the point be raised not
later than when the party submits its “first statement on the substance of the dispute.” It
was added by the Working Group at the suggestion of the Secretariat (18) and was based on
Article VI(1) of the European Convention on International Commercial Arbitration. (19) The
Working Group was agreed that failure to assert the point in time precluded raising the
agreement in subsequent court proceedings in the forum State. (20) It was also of the view
that a party should be precluded from invoking the arbitration agreement in other
P 305 contexts or proceedings as well, such as court proceedings in other jurisdictions, but the
P 306 Working Group did not incorporate a provision to this effect because of difficulties in
devising a simple rule to cover what was seen as a complex issue. (21)
Paragraph 2. Paragraph 2 of Article 8 addresses the extent to which arbitral proceedings
may proceed when court action is brought in a matter that is the subject of an arbitration
agreement. It permits the commencement and continuation of the arbitral proceedings,
including the making of an award, while the court proceedings are pending. It thus
envisions the possibility of simultaneous proceedings regarding the competence of the
arbitral tribunal. This provision provoked debate in the Commission between those who
considered that the court should have power to stay the arbitral proceedings in order to
prevent potentially needless arbitration and those who would have denied that power or
would have had the court suspend its own proceedings in order to avoid delay and
needless court intervention. The prevailing view was that in order to contribute to a
prompt resolution, simultaneous proceedings should be permitted. (22) It was noted that if
it appeared that arbitral proceedings would end up being unnecessary, the claimant
would probably seek to suspend the proceedings to await the decision. (23) In any event, it
was clearly contemplated that any decision to stay the arbitral proceedings was for the
arbitral tribunal; the court lacked power to order a stay. (24)
Other matters. As noted, unlike the New York Convention, Article 8(1) stipulates a deadline
by which a party before a court may invoke the arbitration agreement. In addition, the
Working Group briefly considered two other proposals designed to improve the operation
of the Convention, but ultimately decided not to address the questions in the Model Law.
First, it discussed the question of the effect to be given to clauses in arbitration
agreements providing that arbitration must be initiated within a defined period of time.
(25) The question arises when the period in an arbitration agreement is shorter than the
prescription period provided by statute for beginning court proceedings concerning the
underlying transaction. The Working Group was agreed that such clauses were effective
regardless of a mandatory prescription period regarding a court action. Nevertheless, it
decided not to address the question, or related issues such as the effect of bringing an
P 306 arbitration on the running of the prescription period, because it was felt that the solution
P 307 would vary with each case. These issues therefore may presumably be regarded as left
to other provisions of national law.

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 The second issue that the Working Group discussed, but decided not to address, was the
problem of multi–party disputes, in particular, the effect to be given to agreements to
consolidate various arbitrations or the power of courts or arbitral tribunals to order
consolidation on their own. (26) The consensus was that there was “no real need” for a
provision on the subject. (27)

Legislative History
SECRETARIAT STUDY ON THE NEW YORK CONVENTION A/CN.9/168 (20 APRIL 1979)
II. Valid arbitration agreement in writing (Art. II and Art. V, para. 1 (a) [of the New York
Convention])
A. Field of application
15. Article 2 [sic – Article II is intended] defines the requirement of an arbitration agreement
between the parties. It obliges each Contracting State to recognize such an agreement and,
in particular, the courts of a Contracting State to refer the parties to arbitration when
seized of an action in respect of a dispute which is the subject of such arbitration
agreement. The requirement set out in article II is also relevant at a later stage, after an
award has been made. Here, the defendant may invoke as ground for refusal under article
V, paragraph 1(a), that there was no valid arbitration agreement.
16. The interpretation and application of article II has given rise to a number of difficulties
and divergencies that may, at least in part, be attributed to the haste with which this
article was adopted in 1958: the provision on the recognition of arbitration agreements,
originally reserved for a separate protocol, was incorporated into the 1958 [New York]
Convention only on the last day of the Diplomatic Conference.
17. One of the questions not answered in the Convention is its scope of application in
respect of the type or types of arbitration agreement. (*) One possible criterion would be
that the agreement provides for arbitration in a State other than the State where a court
has to decide about the reference to arbitration. While this would correspond with the
applicability of the Convention itself (under art. I), it should be noted that the issue dealt
with here is different (as art. I relates to arbitral awards, not arbitration agreements) and
that the above analogy is only rarely relied on.
P 307
P 308
18. Another criterion could be that at least one of the parties be a national of a State other
than the one in which the court is seized with the matter at issue, although the nationality
of the parties is irrelevant in the context of article I (see above, para. 7 (*) ). This criterion
has, for example, been adopted in the legislation implementing the 1958 Convention in the
United Kingdom of Great Britain and Northern Ireland (sect. 1, Arbitration Act of 1975) and
the United States of America (9 USC § 202; with an extension to relationships between its
nationals if reasonably related to a foreign State). Yet another possible criterion could be
that the arbitration agreement concerns an international trade transaction (cf. art. I, para.
1(a) of the European Convention of 1961). While the selection of the appropriate criterion is
often made by the legislator, the following uncertainties and lacunae of the provision on
arbitration agreements have been troubling the courts. [Editors' Note: The next part of this
Note discussed problems that were said to have arisen out of the requirement that arbitration
agreements be “in writing.” This discussion appears in the section on Article 7, pp. 264– 67
supra.]
C. Referral to arbitration (art. II. para. 3)
27. According to paragraph 3 of article II, parties to a valid arbitration agreement shall,
upon request by one of them, be referred to arbitration by any court seized of an action
relating to the same subject–matter. The decision about a stay of court proceedings is in
some cases complicated by the fact that more than two parties are involved, not all of
whom are bound by arbitration agreements. For example, where a parent company and its
wholly owned subsidiary were sued, but only the parent company had concluded an
arbitration agreement, the request of the subsidiary for a stay of court proceedings was
granted. (44) However, where a distributor sued both the other party to the contract and a
new distributor, allegedly appointed contrary to the sole distribution agreement, the
arbitration clause in the contract was not viewed as an obstacle to joint court proceedings
because both defendants were sued on substantially the same grounds and in order to
avoid conflicting results. (45)
28. On the other hand, substantial similarity of claims is no compelling reason for
disregarding an arbitration agreement of two potentially liable parties. For example, in
holding a time–charterer liable to an insurance company, the Moscow City Court observed
that the defendant might obtain compensation from the shipowner under the charter party
P 308 but that it could not decide that matter in view of the arbitration clause contained in the
P 309 charter contract. (46) Even a claim which arose out of a relationship not governed by an
arbitration agreement was referred to arbitration after it had been assigned (by a
consignee) to a third person (charterer) who had agreed on arbitration with the defendant
(in the charter party). (47)
[.… ]

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 Conclusions
48. The survey reveals that there are wide areas within the realm of the 1958 Convention
which have not given rise to any noteworthy problems. The same can be said about the
articles which have not been specifically dealt with here. Certain difficulties and
divergencies have been discovered in the application and interpretation of articles II and
V [ … ].
49. The problems encountered are sometimes due to the fact that the 1958 Convention
does not regulate certain issues. This has on occasions led to uncertainty about the
applicable law, e.g. in respect of the validity of the arbitration agreement, and, due to the
disparity of national laws, to different results. [Editors' Note: See in particular paragraphs
20–26, appearing in the section on Article 7, pp. 265–67 supra.] One possible way of
improvement could be to attempt to reduce that disparity by recommending uniform rules
which would take into account the specific features of international arbitration
agreements and awards. That would be in conformity with the discernible trend of national
restraint in international contexts. [Editors' Note: As to this “trend of national restraint,” see
paragraphs 45 and 46 of this document, which appear in the section on Article 36, p. 1069
infra.]
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[.… ]
II. Arbitration Agreement
[.… ]
5. Effect of the agreement
59. The purpose of an arbitration agreement is to settle any dispute by arbitration, to the
exclusion of normal court jurisdiction. If one of the parties nevertheless submits a claim
concerning the matter in dispute to a court, the other party should be able to successfully
invoke the arbitration agreement. The question then is whether the court should have any
discretion and what points it should examine in deciding whether the parties should be
P 309 referred to arbitration. Art. II(3) of the 1958 New York Convention provides the following
P 310 answer:
“The court of a Contracting State, when seized of an action in a matter in respect
of which the parties have made an agreement within the meaning of this article,
shall, (*) at the request of one of the parties, refer the parties to arbitration,
unless it finds that the said agreement is null and void, inoperative or
incapable of being performed.”
60. It is submitted that the substance of this provision, for the sake of conformity, be
adopted in the model law. However, some supplementary provisions, not in conflict with it,
may help to clarify matters. For example, one could attempt to specify the type of the
court decision referring parties to arbitration, e.g. stay or dismissal of court proceedings. In
this context, one could also consider providing for an order to compel arbitration. Another
issue in need of clarification, as the survey of court decisions revealed, (23) is the complex
situation, not uncommon in international commerce, where more than two parties are
involved, not all of whom are bound by arbitration agreements. Another issue possibly to
be dealt with is up to what stage of the court proceedings a party may successfully invoke
the arbitration agreement.
61. Yet another clarification relates to the scope of application dealt with at another place
(above, paras. 31–38 [appearing in the subsection on Article 1, paragraphs 1, 3, and 4, pp. 41–
43 supra]). The value of a clear provision on this point becomes apparent if one considers
the difficulties and disparities caused by the lack of such a provision in the 1958 New York
Convention. (24) Finally, the model law may provide an answer to the question whether
attachments or similar court measures of protection are compatible with an arbitration
agreement. Again, the lack of a pertinent provision in the 1958 New York Convention has led
to divergent court decisions. (25) A provision, supposedly in favour of compatibility, could
be included here since it concerns also the pre–arbitration stage or it may be combined
with the provisions governing the arbitration proceedings (below, paras. 77, 78 [appearing in
the sections on Articles 17 and 9, pp. 533 and 335, infra, respectively]).
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
II. Arbitration agreement
[.… ]
5. Effect of the agreement
P 310
P 311 22. In addition to the issues discussed in the report [First Secretariat Note, supra] (paras.
59–61), two points may be mentioned here. In connexion with the situation (referred to in
para. 60) where more than two parties are involved in a complex case, thought may be
given to the topical issue of multi–party arbitration which was the subject of the ICCA–

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 Interim Congress at Warsaw (1980). Questions for the model law could be, for example,
whether consolidation clauses in related arbitration agreements should be given effect,
and whether consolidation of proceedings may be ordered even without agreement by the
various parties.
23. Another point to be considered could be whether the inclusion in an arbitration
agreement of a time–period within which parties may resort to arbitration should, under
the model law, be effective and valid even if this time–period expires before a
prescription period applicable to the underlying transaction which cannot be shortened
by the parties (cf., e.g., art. 22 of the Convention on the Limitation Period in the
International Sale of Goods. [A/Conf.63/15 (New York 1974)] (10) ).
Question
2–13: Should the model law contain a provision along the lines of article II, para. (3) of the
1958 New York Convention (report, para. 59)? Should it contain supplementary
provisions on what points a court should examine and what type of decision it may
render?
Question
2–14: Should the model law deal with problems of consolidation in multi–party disputes
(e.g. whether consolidation agreements should be given effect, or whether even
without such agreements consolidation might be ordered)?
Question
2–15: Should a stipulated time–period for submission of a dispute to arbitration be
effective even if it would expire before a prescription period applicable to the
underlying transaction which may not be shortened by the parties?
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[.… ]
II. Arbitration agreement
[.… ]
5. Effect of the agreement
P 311 Question 2–13: Should the model law contain a provision along the lines of article II,
P 312 paragraph 3 of the 1958 New York Convention (report, [First Secretariat Note, supra] para.
59)? Should it contain supplementary provisions on what points a court should examine
and what type of decision it may render?
35. There was general agreement that the model law should contain a provision similar to
article II, paragraph 3 of the 1958 New York Convention. It was noted that this provision was
based on the assumption that an arbitration agreement was to exclude the jurisdiction of
courts (whether or not it so stated).
36. As regards the question whether the model law should contain a provision concerning
the type of decision the court should render when the arbitration agreement was invoked,
a view was expressed that the model law might determine whether the court action should
be stayed or dismissed. However, the Working Group agreed that the matter should be left
to be determined by the court according to its procedural law.
Question 2–14: Should the model law deal with problems of consolidation in multi–party
disputes (e.g. whether consolidation agreements should be given effect, or whether even
without such agreements consolidation might be ordered)?
37. There was general agreement that the model law should not deal with problems of
consolidation in multi–party disputes. While it was agreed that parties had the freedom to
conclude consolidation agreements if they so wished, the Working Group was of the view
that there was no real need to include a provision on consolidation in the model law.
Question 2–15: Should a stipulated time–period for submission of a dispute to arbitration
be effective even if it would expire before a prescription period applicable to the
underlying transaction which may not be shortened by the parties?
38. The Working Group was agreed that the effectiveness of a stipulated time period for
submission of a dispute to arbitration was independent of any prescription period
concerning the underlying transaction. Accordingly, even a mandatory prescription period
would not affect the stipulation of a shorter time–period for arbitration. The Group was of
the view that the model law should not include a provision on this point, nor on related
issues (such as the right of a party to resort to a court after expiry of that time–limit, or any
effect on the prescription period). The solution to these issues would vary according to the
specific circumstances of the case.
FIRST DRAFT A/CN.9/WG.II/WP.37 (15 JULY 1982)
II. Arbitration agreement
[.… ]
5. Effect of the agreement (14)

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 Article 5 [Art. 8 in the final text] (15)
P 312 A court, before which an action is brought in a matter which is the subject of an arbitration
P 313 agreement, shall, at the request of either party, refer the parties to arbitration unless it
finds that the agreement is null and void, inoperative or incapable of being performed.
FIRST DRAFT (continued) A/CN.9/WG.II/WP.38 (31 AUGUST 1982)
V. Award
[.… ]
4. Pleas as to arbitrators' jurisdiction (12)
Article 28 [Arts. 8 and 16 in the final text]
[Editors' Note: Paragraphs 1 and 2 of this draft Article addressed the timing and other
requirements governing the raising of objections to the tribunals jurisdiction during the
arbitral proceedings. This subject was ultimately dealt with in Article 16(2). See the section on
that Article, p. 492 infra.]
[(3) Where either party to an arbitration agreement has initiated arbitration proceedings
before any resort is had to a court, a court subsequently asked to deal with the same
subject–matter between the same parties or with the question whether the arbitration
agreement was non–existent or null and void or had lapsed, shall stay its ruling on the
jurisdiction of the arbitral tribunal until the arbitral award is made, unless it has good and
substantial reasons to the contrary.] (16)
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[.… ]
Arbitration agreement
[.… ]
Effect of the agreement
Article 5 [Art. 8 in the final text]
49. The text of article 5 as considered by the Working Group was as follows:
[same as First Draft, supra].
P 313
P 314
50. There was general agreement that article 5 should be included in the model law. There
was also general agreement to include a provision along the lines of article VI, paragraph 1
of the 1961 Geneva Convention which would limit the period of time during which a party
could object to the jurisdiction of the court on the grounds of the existence of an
arbitration agreement.
51. It was suggested that article 5 should be modified to permit a court to refuse to refer
the parties to arbitration if an award made in such an arbitration could not be enforced in
the State in question. It was pointed out, however, that such a suggestion goes against the
idea of this model law, which is to promote international commercial arbitration.
Moreover, until the award has been made it may not be clear whether it could be enforced
in that State. In any case the award might well be enforceable in other States.
[.… ]
Article 28 [Arts. 8 and 16 in the final text]
[Editors' Note: The Working Group decided that the arbitral tribunal and the court should
have concurrent power to rule on the jurisdiction of the arbitral tribunal. See the section on
Article 16, p. 494 infra, for further details on this decision. With respect to paragraph 3 of draft
Article 28, the Working Group decided as follows.]
151. The prevailing view was in favour of deleting paragraph (3). It was recognized, however,
that paragraph (3) derived from an existing convention and that it should not therefore be
discarded without a second consideration. As a possible solution the Secretariat was
requested to draft a text incorporating the basic idea of paragraph (3) into an expanded
article 5 [Art. 8 in the final text].
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
C. Arbitration and the courts
[.… ]
Article IV [Arts. 8 and 9 in the final text]
(1) A court, before which an action is brought in a matter which is the subject of an
arbitration agreement, shall at the request of a party, refer the parties to arbitration
unless it finds that the agreement is null and void, inoperative or incapable of being
performed.

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 (2) A plea that the court [referred to in paragraph (1)] has no jurisdiction because of the
existence of a valid arbitration agreement may be raised by a party not later than in his
statement on the substance of the dispute.
(3) Where arbitration proceedings have commenced and such a plea is raised before the
court or a party requests from [a court] [the Court specified in article V [Art. 6 in the final
P 314 text]] a ruling that the arbitral tribunal has no jurisdiction, the arbitral tribunal may either
P 315 continue or suspend the arbitration proceedings until its jurisdiction is decided on by
that court.
[Paragraph 4 appears in the section on Article 9, p. 339 infra.]
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.42)
[.… ]
C. Arbitration and the courts
[.… ]
Article IV [Arts. 8 and 9 in the final text]
74. The text of article IV as considered by the Working Group was as follows:
[same as Second Draft, supra].
75. The Working Group was agreed that article IV should be retained with some suggested
modifications. A drafting proposal of general relevance was to make clear in all languages
that the term “court” referred to the court of a State as distinguished from an arbitral
tribunal. [Editors' Note: See Article 2(c) of the final text.]
Paragraph (1)
76. Some support was expressed for deleting the words “at the request of a party.” The
prevailing view, however, was to retain those words, in line with the corresponding
provision in the 1958 New York Convention (article II(1)). Also for the sake of consistency
with that important Convention, it was decided to retain the words “shall refer the parties
to arbitration” and not to substitute, as suggested by some, the words “shall decline
jurisdiction.” A suggestion was made to replace the words “shall, at the request of a party,
refer the parties to arbitration” by the words “shall, at the request of the parties, refer the
issue to arbitration.”
77. A suggestion was made that paragraph (1) should not be understood as requiring the
court to examine in detail the validity of an arbitration agreement and that this idea could
be expressed by requiring only a prima facie finding or by rephrasing the closing words as
follows: “unless it finds that the agreement is manifestly null and void.” In support of that
idea it was pointed out that it would correspond with the principle to let the arbitral
tribunal make the first ruling on its competence, subject to later control by a court.
However, the prevailing view was that, in the cases envisaged under paragraph (1) where
the parties differed on the existence of a valid arbitration agreement, that issue should be
settled by the court, without first referring the issue to an arbitral tribunal, which allegedly
lacked jurisdiction. The Working Group, after deliberation, decided to retain the text of
paragraph (1).
P 315
P 316
Paragraph (2)
78. The Working Group adopted this paragraph subject to the deletion of the word “valid”
and the insertion of the word “first” before the word “statement.” A suggestion was made
that the words “has no jurisdiction” be modified to reflect the position in some legal
systems that, while a court may have jurisdiction, it should decline to exercise that
jurisdiction if there is a valid arbitration agreement.
Paragraph (3)
79. It was noted that this provision was related to the issue dealt with in article XIII [Art. 16
in the final text]. It might, therefore, have to be reconsidered in the light of the discussion
on that article. It was also suggested to consider rearranging the order of the provisions.
80. As regards the alternatives placed between square brackets, the Working Group was
divided on which was the better solution and decided, for the time being, to adopt the first
alternative (i.e. “a court”). The Working Group was agreed that the arbitral tribunal should
have the procedural power to either continue or suspend the arbitration proceedings when
its jurisdiction was challenged before a court. It was noted, however, that the possibility of
a suspension might encourage a party to challenge the jurisdiction merely for dilatory
purposes. It was, therefore, suggested to seek a wording which could meet this concern.
THIRD DRAFT A/CN.9/WG.II/WP.45 (13 JUNE 1983)
C. Arbitration agreement and the courts
[.… ]

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 Article IV [Arts. 8 and 9 in the final text] (15)
(1) A court, before which an action is brought in a matter which is the subject of an
arbitration agreement, shall, at the request of a party, [decline jurisdiction and] refer the
parties to arbitration unless it finds that the agreement is null and void, inoperative or
incapable of being performed. [A plea that the court has no jurisdiction because of] [Such a
request based on] the existence of an arbitration agreement may be made by a party not
later than when submitting his first statement on the substance of the dispute. (16) , (17)
P 316
P 317
[Paragraph 2 appears in the section on Article 9, pp. 339–40 infra.]
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[.… ]
Article XIII [Art. 16 in the final text]
[.… ]
Suggested new paragraph (4)
66. The Working Group considered in this context the revised version of paragraph (3) of
article IV which the Secretariat had suggested as new paragraph (4) of article XIII (see
[Third Draft,] A/CN.9/WG.II/WP.45, footnote 17):
[same as text quoted in Third Draft, Art. IV, n. 17, supra].
67. The Working Group agreed with the two policies underlying this provision. One policy
was that the arbitral tribunal should be empowered to continue the proceedings while the
question of its jurisdiction was pending with a court, although it was understood that this
provision should not preclude a court from ordering a stay or suspension of the arbitral
proceedings. The other policy was that a party had the right, in addition to the plea
regulated in paragraphs (2) and (3) of article XIII [Art. 16(2), (3) in the final text], to request a
ruling on the competence of the arbitral tribunal directly from a court.
68. It was felt, however, that the wording of paragraph (4) was not sufficiently clear, in
particular, as regards its relationship to article IV. It was suggested, therefore, to deal
separately with the case where lack of jurisdiction was invoked impliedly by bringing a
substantive claim before the court, which was dealt with in article IV, and, on the other
side, with the case where the question of competence was expressly (and solely) brought
before the court. It was suggested that this important right of the party — and the
concurrent power of the court — deserved a more direct expression and treatment than at
present accorded in draft paragraph (4). Finally, it was noted that this provision would
have to be examined in an over–all review of the provisions relating to jurisdiction and
validity of arbitration agreement.
P 317
P 318
69. The Working Group requested the Secretariat to revise this provision in the light of the
above discussion.
[.… ]
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[.… ]
Article IV [Arts. 8 & 9 in the final text]
185. The text of article IV as considered by the Working Group was as follows:
[same as Third Draft, supra].
Paragraph (1)
186. The Working Group adopted paragraph (1) subject to the following modifications. While
there was some support for retaining the words “decline jurisdiction and,” the prevailing
view was to delete these words for the sake of conformity with the 1958 New York
Convention (article II(3)). As regards the introductory phrase to the second sentence, the
Working Group adopted the words “Such a request based on.”
187. In this connexion, a suggestion was made to include in article IV or another
appropriate article (e.g. article II [Art. 7 in the final text]) a reference to the arbitrability of
the subject–matter, as found in article II(1) of the 1958 New York Convention (“concerning a
subject matter capable of settlement by arbitration”) and recognized by the model law
only in the chapter on enforcement (article XXVIII(2)(a) [Art. 36(1)(b)(i) in the final text]).
However, this suggestion was not adopted since article IV was not regarded as an
appropriate place for dealing with this issue and because an arbitration agreement
concerning a non arbitrable subject–matter would, at least in some jurisdictions, be
regarded as null and void.
FOURTH DRAFT A/CN.9/W6.II/WP.48 (29 NOVEMBER 1983)

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 Article 8. Arbitration agreement and substantive claim before court
(1) A court, before which an action is brought in a matter which is the subject of an
arbitration agreement, shall, if a party so requests not later than when submitting his first
statement on the substance of the dispute, refer the parties to arbitration unless it finds
that the agreement is null and void, inoperative or incapable of being performed.
(2) Where, in such case, arbitral proceedings had already commenced, the arbitral tribunal
may continue the proceedings while the issue [of its jurisdiction] is pending with the court
[unless the court orders a stay or suspension of the arbitral proceedings].
P 318
P 319
FOURTH SECRETARIAT NOTE COMMENTS AND SUGGESTIONS ON THE FOURTH DRAFT
A/CN.9/WG.II/WP.50 (16 DECEMBER 1983)
E. Effect of failure to invoke existence or non–existence of valid arbitration agreement
(articles 8, 16, 17, 34, 36)
15. The Working Group may wish to consider the effect of a party's failure to invoke the
arbitration agreement in the case of article 8(1) or, conversely, to plead in the case of
article 16(2) that the arbitral tribunal lacks jurisdiction. In the first case, there may be
some doubt as to whether failure to make a timely request of referral to arbitration should
preclude a party from relying on the arbitration agreement in other contexts or forums
since, for example, its recognition or its scope in terms of arbitrability of the subject–
matter may vary from one place to another. However, for the sake of preventing parallel
proceedings and conflicting decisions, one might consider treating the failure to request
referral as a waiver of the right to rely anywhere on the arbitration agreement. This would
then, for example, bind the Court which is asked under article 17 [not included in final text
— see the section on Article 16, p. 500 infra] to decide whether or not there exists a valid
arbitration agreement.
16. In the reverse case, i.e. article 16(2), the answer seems to be less difficult. It is
submitted that a party who fails to raise the plea as required under article 16(2) should be
precluded from raising objections with respect to the existence or validity (or scope) of the
arbitration agreement also in other contexts, including the court control envisaged under
article 17 and, in particular, the post–award stage (i.e. articles 34(2)(a)(i) and 36(1)(a)(i)).
However, such waiver by submission should be subject to certain limits such as public
policy including arbitrability.
FIFTH SECRETARIAT NOTE TERRITORIAL SCOPE OF APPLICATION AND RELATED ISSUES
A/CN.9/WG.II/WP.49 (21 DECEMBER 1983)
B. Special considerations with regard to provisions on court assistance and supervision
[.… ]
2. Provisions on court assistance and supervision which should have a special
delimitation of scope of application
18. Some provisions in the model law dealing with court assistance and supervision are of
such a nature that they may require a different scope of application than the model law in
general. These provisions are discussed below.
(a) Referral of parties to arbitration because of existence of arbitration agreement (art.
8(1))
P 319 19. Under article 8(1), a court before which an action is brought in a matter which is the
P 320 subject of a valid arbitration agreement, refers the parties to arbitration. This provision
is directed to the courts of the State of the model law; however, it is submitted that the
arbitration agreement which is the ground for referral of the parties to arbitration may be
any arbitration agreement irrespective of the place of arbitration or the law governing the
arbitration. The reason for such universal recognition of arbitration agreements is that an
arbitration agreement can only be effective if it prevents the parties from bringing an
action before a court in any State.
[Editors' Note: The scope of application of Article 8 is defined in Article 1(2) of the final text.]
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[.… ]
Article 8
20. The text of article 8 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
21. The Working Group adopted that article, including, in paragraph (2), the words “of its
jurisdiction” but deleting the words “unless the court orders a stay of the arbitral
proceedings,” although there was some support for their retention.
22. The Working Group considered the question raised in the note prepared by the
Secretariat ([Fourth Secretariat Note,] A/CN.9/WG.II/WP.50, para. 15) whether the model law

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 should deal with the effect of a party's failure to invoke the arbitration agreement in
accordance with paragraph (1) of that article. The Working Group was agreed that article 8
(1) certainly prevented a party from invoking the arbitration agreement later than the
point of time indicated in paragraph (1), and that the court was not empowered without a
request of a party, i.e. ex officio, to refer the parties to arbitration. While there was wide
support for the view that the failure of the party should have a wider effect precluding that
party from relying on the arbitration agreement also in other contexts or proceedings, the
Working Group decided not to incorporate a provision on such general effect because it
would be impossible to devise a simple rule which would satisfactorily deal with all the
aspects of this complex issue.
23. The Working Group did not acept a suggestion to add at the end of paragraph (1) the
words “or that the dispute concerns a matter that is not capable of settlement by
arbitration.” While recognizing the importance of the requirement of arbitrability, the
prevailing view was that there was no need for an express provision as the one suggested.
It was noted that an arbitration agreement concerning a non–arbitrable subject–matter
would normally be regarded as null and void. It was also pointed out by some
representatives that the issue of non–arbitrability was adequately addressed in articles 34
and 36.
P 320
P 321
FIFTH DRAFT A/CN.9/246 (ANNEX 6 MARCH 1984)
Article 8. Arbitration agreement and substantive claim before court
(1) A court before which an action is brought in a matter which is the subject of an
arbitration agreement shall, if a party so requests not later than when submitting his first
statement on the substance of the dispute, refer the parties to arbitration unless it finds
that the agreement is null and void, inoperative or incapable of being performed.
(2) Where, in such case, arbitral proceedings have already commenced, the arbitral
tribunal may continue the proceedings while the issue of its jurisdiction is pending with
the court.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[.… ]
Article 8. Arbitration agreement and substantive claim before court
1. Argentina approves of the principle embodied in article 8(2) that the court should not
intervene in the procedure or substance of the arbitration.
2. Cyprus expresses the view that the issue before the court, as dealt with in paragraph (1),
is not “the issue of its jurisdiction,” and paragraph (2) ought to be re–phrased accordingly.
3. Czechoslovakia suggests adding at the end of paragraph (2) a sentence stating that the
arbitral tribunal may make a decision regarding the substance of a dispute only after the
decision of the court dealing with the issue of its jurisdiction is final.
4. Italy observes that this article presumes appearance of the defendant before the court
and that there is no provision for the case where the defendant has not reacted to the
claim before the court. In order to avoid compelling a party to incur expenses necessary
for his appearance (where he has to appear in a foreign country) even in the presence of
simple dilatory tactics of the claimant, it appears appropriate that, in case of non–
appearance, the court may declare on its own motion that it is not competent.
5. Sweden observes that under its law a court in a matter which is the subject of an
arbitration agreement does not refer the parties to arbitration, but merely dismisses the
case. It is considered desirable to supplement article 8(1) so as to take that possibility into
account as well.
6. The Soviet Union notes the following inconsistency between articles 8 and 16(3) of the
draft text. On the one hand, the court mentioned in article 8(1) has the power to determine
P 321 the validity of the arbitration agreement even if the action before that court is brought
P 322 after the arbitral proceedings have commenced and even if the arbitral tribunal has
meanwhile ruled on its jurisdiction since article 8(2) allows the arbitral tribunal to
continue the arbitral proceedings which have already commenced “while the issue of its
jurisdiction is pending with the court.” On the other hand, according to article 16(3) [of the
Fifth Draft, see p. 504 infra], a ruling by the arbitral tribunal that it has jurisdiction may be
contested by any party only in an action for setting aside. The inconsistency arises where
the arbitral tribunal has ruled on its jurisdiction but has not yet made the award, and a
party has nevertheless brought an action before a court; in such a case the problem is
whether preference should be given to article 8, empowering the court to decide on the
arbitral tribunal's jurisdiction, or to article 16(3) according to which the arbitral tribunal's
ruling on its jurisdiction could only be contested in an action for setting aside the award.
Moreover, where a party, in spite of the existence of an arbitration agreement, has brought
an action to a court before, and not after, the commencement of arbitral proceedings, it
may be possible to interpret, a contrario, that the party is prevented from addressing the

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 arbitral tribunal while the issue of the validity of the arbitration agreement is pending with
the court since article 8(2) refers only to the continuation of the arbitral proceedings which
“have already commenced” before bringing the action to the court. In view of these
comments and in view of a need to ensure effectiveness of international commercial
arbitration, the Soviet Union proposes to replace present paragraph (2) of this article by
two new rules. One should provide that bringing an action by a party to a court does not
prevent the other party from commencing arbitral proceedings while the issue of the
arbitral tribunal's jurisdiction is pending with the court. The other rule should provide that
if the arbitral proceedings have already commenced, the court must postpone the
settlement of the question of the arbitral tribunal's jurisdiction until the arbitral award is
made (reference is made to article VI(3) of the 1961 Geneva Convention [European
Convention on International Commercial Arbitration, 484 U.N.T.S. 349]). The Soviet Union is
of the view that by adopting the above two provisions the last sentence of article 16(3)
might be deleted as unnecessary.
7. The Republic of Korea suggests placing the text of article 8, since it actually deals with
commencement or continuation of arbitral proceedings, and of article 9 after article 21, i.e.
as articles 21 bis and 21 ter.
A/CN.9/263/ADD.1 (15 APRIL 1983)
B. Specific comments on individual articles
[.… ]
Article 8. Arbitration agreement and substantive claim before court
Article 8, paragraph (1)
1. Canada expresses the view that paragraph (1) is not clear. The question is whether it is
intended to provide for only a stay of the action or for its total removal from a court, or
whether it is, perhaps, intended to leave this question for determination by the legislature
adopting the model law.
P 322
P 323
2. Yugoslavia observes that, where the State court finds that it has no competence to
decide the dispute, it is not customary for the court to instruct the parties to approach a
certain institution for the purpose of settling their dispute. This should be left to the
parties. Resort to arbitration may not be the only (or best) solution for the parties.
3. AALCC [Asian-African Legal Consultative Committee] suggests deleting the words
“incapable of being performed” since they are considered as superfluous.
Article 8, paragraph (2)
4. AALCC recommends re–formulating paragraph (2) as follows:
“Where, in such cases, arbitral proceedings have already commenced, the
arbitral tribunal shall continue its proceedings unless the court grants an
interim order to suspend the proceedings.”
A/CN.9/263/ADD.3 (31 JULY 1985) (COMMENTS OF EGYPT)
II. Comments on the articles
[.… ]
25. Article 8: Paragraph 1 seems acceptable to us. We share the view that its scope should
not exceed the two principles which it expresses, namely denying the court the power to
refer to arbitration on its own initiative and the inadmissibility of the application for
referral beyond the time limit provided in the text.
26. With regard to paragraph 2, we propose the reinsertion at the end of this paragraph of
the phrase “unless the court orders a stay of the arbitral proceedings,” which was in the
original text and was deleted by the Working Group. In our view, it would be useful to give
the court a power of ordering the suspension of arbitral proceedings when it believes that
the setting aside or annulment of the arbitration agreement is the most likely outcome.
Such a measure would save time, effort and expense.
[Editors' Note: See also paragraphs 18–20 of this document, appearing in the section on
Article 34, pp. 962–63 infra; these paragraphs present comments on the various opportunities
for court review provided by Articles 8, 16, 34 and 36 of the Model Law.]
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 8. Arbitration agreement and substantive claim before court
[.… ]
P 323 1. Article 8 deals with an important “negative” effect of an arbitration agreement. The
P 324 agreement to submit a certain matter to arbitration means that this matter shall not be
heard and decided upon by any court, irrespective of whether this exclusion is expressed
in the agreement. If, nevertheless, a party starts litigation the court shall refer the parties

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 to arbitration unless it finds the agreement to be null and void, inoperative or incapable of
being performed.
2. Article 8 is closely modeled on article II(3) of the 1958 New York Convention, with two
useful elements added. Due to the nature of the model law, article 8(1) of “this Law” is
addressed to all courts of State X; it is not limited to agreements providing for arbitration
in State X and, thus, wide acceptance of the model law would contribute to the universal
recognition and effect of international commercial arbitration agreements.
3. As under the 1958 New York Convention, the court would refer the parties to arbitration,
i.e. decline (the exercise of its) jurisdiction, only upon request by a party and, thus, not on
its own motion. A time element has been added that the request be made at the latest
with or in the first statement on the substance of the dispute. It is submitted that this point
of time should be taken literally and applied uniformly in all legal systems, including
those which normally regard such a request as a procedural plea to be raised at an earlier
stage than any pleadings on substance.
4. As regards the effect of a party's failure to invoke the arbitration agreement by way of
such a timely request, it seems clear that article 8(1) prevents that party from invoking the
agreement during the subsequent phases of the court proceedings. It may be noted that
the Working Group, despite the wide support for the view that the failure of the party
should preclude reliance on the agreement also in other proceedings or contexts, decided
not to incorporate a provision on such general effect because it would be impossible to
devise a simple rule which would satisfactorily deal with all the aspects of this complex
issue. (38)
5. Another addition to the original text in the 1958 New York Convention is the rule in
paragraph (2) which confirms that paragraph (1) applies irrespective of whether arbitral
proceedings have already commenced. It empowers an arbitral tribunal to continue the
arbitral proceedings (if governed by “this Law”) while the issue of its jurisdiction is pending
with a court. The purpose of giving such discretion to the arbitral tribunal is to reduce the
risk and effect of dilatory tactics of a party reneging on his commitment to arbitration.
SUMMARY RECORD A/CN.9/SR.312, .332
[6 June 1985, 2:00 P.M., A/CN.9/SR.312]
Article 8. Arbitration agreement and substantive claim before court
Article 8(1)
P 324 1. Mr. GRIFFITH (Australia) said the expression “in a matter” was too narrow and suggested
P 325 that it should be replaced by “involving a matter,” since although the matter itself
might not be the subject of the arbitration agreement it could be related to a matter that
was.
2. Mr. HERRMANN (International Trade Law Branch) said that to use a phrase such as
“relating to a matter” or “involving a matter” might introduce substantive differences, since
a matter which was the subject of an arbitration agreement need not necessarily be the
subject of a particular dispute. Legal systems differed widely in defining what was the
subject–matter of a dispute. If it was only a question of drafting, he recommended that the
Commission should retain the existing wording, which was that used in the 1958 New York
Convention.
3. Mrs. RATIB (Egypt) found article 8(1) acceptable. Her delegation agreed that the court
should not of itself be empowered to refer the parties to arbitration and that a request for
referral to arbitration outside the time limit was inadmissible.
4. Mr. ABOUL–ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration) found
article 8(1) acceptable. He proposed that article 8(2) should be amended so as to empower
the court to order the suspension of arbitration proceedings. He further proposed that the
Commission should re–examine articles 8, 16, 34 and 36 in order to overcome the problem
created by the fact that under those articles it was possible for a party to challenge the
validity of the agreement repeatedly, while relying on the same reasoning.
5. The CHAIRMAN [Mr. LOEWE (Austria)] said that whether or not a court had the power to
suspend arbitration proceedings depended on the national procedural law in force.
Moreover, in certain procedural laws, a decision taken on the validity of an arbitration
agreement would bind all courts of the same level in subsequent proceedings.
6. Sir Michael MUSTILL (United Kingdom) said that the answer just given by the Chairman
provided a good illustration of the problems which his delegation had wished to raise in
connection with article 5 [see Summary Record, A/CN.9/SR.309, paras. 1–5, appearing in the
section on Article 5, pp. 229–31 supra] and of the problem of repeated unmeritorious
applications. Where local procedural law permitted a court to suspend its proceedings,
would that not be an instance of intervention by the court?
7. The CHAIRMAN pointed out that article 8(1) said that the court had to refer the parties to
arbitration. It had been suggested that the court could either take action upon the merits
or refer the parties to arbitration. The proposal had been made that the court should have
a third possibility, i.e. that of referring the parties to arbitration while keeping its own
proceedings open until a later stage. In his opinion, that was not explicit in the text and

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 the question of whether court proceedings would theoretically remain open would depend
on the provisions of the local procedural law.
8. Sir Michael MUSTILL (United Kingdom) said that the present discussion illustrated the
problem of interpretation of the words “governed by this law” in article 5. The question of
what a court should or might do if the action in court was in relation to the subject of an
P 325 arbitration agreement was governed by that law. He understood from the explanation by
P 326 the Secretariat that once a topic was found to be dealt with in the model law, the court
could look only to the model law and not to local law. The court had no power to take steps
not permitted in article 8.
9. The CHAIRMAN thought that that was too narrow a view of article 8. The court must
accept an action and then decide whether the agreement was null and void; in that case, it
would follow the normal court procedure. If it found that the agreement was valid, it would
refer the parties to the arbitral tribunal. However, the details of court procedure could not
be included in a uniform law, since they were a matter of civil procedure in each State. In
article 5, only the type of intervention was limited.
10. Mr. MOELLER (Observer for Finland) said that there was an inconsistency between
articles 8 and 16 in the case where the arbitral tribunal had ruled but had made no award
and there was an action before the court. In considering whether preference should be
given to article 8, it was advisable to be consistent with article 6(3) of the 1961 Geneva
Convention [European Convention on International Commercial Arbitration, 484 U.N.T.S. 349].
11. Mr. HOLTZMANN (United States of America) said that the problem was in part alleviated
by the definition of what was meant by “the beginning of arbitral proceedings” set out in
article 21 of the model law.
12. The CHAIRMAN, noting that there were proposals for more than one draft of article 8(1),
suggested that the text should be left unaltered but that the report for the present session
should state that the course of the judicial proceedings was not described there, so that it
was quite possible for a decision to be taken to refer the parties to arbitration, while the
case remained open pending a further possible application. If there was no objection, he
would take it that the Commission agreed to that course.
13. It was so agreed.
Article 8(2)
14. Mr. SEKHON (India) suggested the insertion of the words “unless a stay is granted by the
court” in article 8(2). That point would be regulated by local law, although he thought there
were difficulties relating to the intervention by the court.
15. Mr. HJERNER (Observer, International Chamber of Commerce) said that although the
criticisms of article 8(2) were understandable, the provision should be retained in the
interests of the efficiency of the arbitral proceedings, regardless of actions by one party in
a local or foreign court to delay or prevent them.
16. Mr. SEKHON (India) said he had raised the point because he felt that it should be made
clear beyond doubt that the arbitral proceedings should continue regardless of any action
in court unless a stay was granted by the court.
17. Mr. SZASZ (Hungary) felt that the text should state that the arbitral tribunal could make
an award under the agreement, since under article 16 it had the power to decide on its own
jurisdiction.
P 326
P 327
18. Mr. de HOYOS GUTIERREZ (Cuba) said that there was no reason to continue the
proceedings if the arbitration agreement was not valid.
19. Mr. LEBEDEV (Union of Soviet Socialist Republics) could not agree that article 8(1)
implied a decision that questions concerning the court should not be touched upon. He
suggested that article 8(2) should be replaced by two provisions. The first would state that
even where one party had already applied to the court, the other party could start arbitral
proceedings. From the existing draft, it might be wrongly concluded that if arbitral
proceedings had not been started prior to the application to the court, they could no
longer be initiated while the matter was pending before the court. The second provision,
following article 6, paragraph 3, of the 1961 European Convention, might state that if
arbitral proceedings had been started before the filing of a court action, the court should
stay a ruling on the arbitrator's jurisdiction until the award was made.
20. It was unrealistic to provide only for the possibility of continuing arbitral proceedings,
since in most cases, arbitrators, knowing that their competence was being considered by
the court, would prefer not to continue with the proceedings. Delay would be avoided if the
arbitral proceedings were allowed to reach a conclusion. A dissatisfied party would still be
able to apply to the court to have the award set aside under article 36.
21. Mr. RUZICKA (Czechoslovakia) proposed that the court procedure should be completed
before continuing with the arbitral proceedings. The court decision would of course have to
be final. However, the essential thing was to establish a clear preference as between the
court and the arbitral tribunal, and his delegation could accept the opposite view, namely
that the tribunal should have precedence if that was the generally accepted view. The

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 arbitral proceedings could then continue up to the point of the award.
22. Mr. HOLTZMANN (United States of America) believed in the principle that arbitration
should proceed and not be stayed by the court. He supported the Hungarian proposal
which clarified the matter and also favoured the USSR proposals.
23. Mr. STALEV (Observer for Bulgaria) strongly supported the USSR proposals which would
bring clarity and effectiveness to arbitral proceedings.
24. Mr. BROCHES (Observer, International Council for Commercial Arbitration) supported
the USSR proposals. He drew attention to the view that the issue before the court, as dealt
with in article 8(1), was not the “issue of its jurisdiction,” so that article 8(2) should be
rephrased accordingly. It was not the matter of jurisdiction that was before the court. The
agreement might be valid but the tribunal not competent because the conditions set in
the agreement were not fulfilled. Article 8(2) was ambiguous and it was therefore
important to seek another form of words.
25. Mr. HOLTZMANN (United States of America) said that, in principle, arbitration should
not be stayed by court proceedings. The reasons had been well stated by the observer for
the International Chamber of Commerce and those who had agreed with him. His
delegation, therefore, supported the Hungarian proposal as clarifying and implementing
P 327 the principle better than the existing text. It also found the USSR proposals attractive,
P 328 for the same reason.
26. Mr. STALEV (Observer for Bulgaria) was in favour of a closer alignment with the 1961
European Convention on International Commercial Arbitration and accordingly supported
the USSR proposals.
27. Mr. BROCHES (Observer, International Council for Commercial Arbitration) also
supported the USSR proposals. The point that article 8(2) was ambiguously worded had
been raised by Cyprus in its written comments, and the question of language was also
referred to in those of the Soviet Union ([Sixth Secretariat Note (Government Comments),]
A/CN.9/263, [Art. 8,] para. 6). A distinction must be drawn between the two different
problems and, while paragraph 1 of article 8 was clear, paragraph 2 was not.
28. Mrs. RATIB (Egypt) said that it would be useful to give the courts power to order the
suspension of the arbitral proceedings when they considered that the most likely outcome
would be that the agreement was null and void. That would save both time and expense.
Her delegation therefore suggested restoring the phrase “unless the court orders a stay of
the arbitral proceedings,” which had been in the original text but had been deleted by the
Working Group.
29. Sir Michael MUSTILL (United Kingdom) thought that attention was perhaps being drawn
away from the nature of the situation with which article 8(2) was concerned, as expressed
in the title of the article. Article 16 of the draft law was concerned with the situation in
which a court became involved because one of the parties to an arbitration challenged the
arbitral tribunal's jurisdiction. The situation in article 8 was quite different: it concerned
an attempt to have the substantive dispute itself decided by a court. If both of the Soviet
Union's suggestions were adopted, the result would be that the same dispute would go
forward in two different places: the court would retain the matter if it concluded that the
arbitral tribunal had no jurisdiction and would make a judgement, but the arbitral
proceedings would also go forward. It was surely not desirable to have a double decision
on the same substantive matter. He favoured the philosophy suggested by the Egyptian
representative, which was implicit in the existing text in any case. He therefore urged that
the text should be retained in its existing form.
30. Mr. LEBEDEV (Union of Soviet Socialist Republics) explained that the aim of his
delegation's proposals was precisely to avoid the possibility of two substantive decisions.
The aim was that, where one of the parties had gone to the court with a substantive claim,
the court should refrain from making a ruling on the arbitrator's jurisdiction until after the
arbitral award, thus avoiding the possibility of two substantive decisions on the same
matter.
31. The CHAIRMAN said that if the Commission felt it inconsistent to confine article 8(2) to
arbitral proceedings that were already under way, the wording could be changed to “are
P 328 about to commence or have already commenced.” The second problem was that of how far
P 329 the arbitral tribunal should be able to continue its proceedings. The USSR proposal was
closer to the 1961 Convention, which said that if the proceedings had already been
initiated before any resort to a court, the court must stay its ruling on the arbitrators'
jurisdiction until the arbitral award was made. In the other interpretation, not only would
the parties be allowed to go to court but the arbitral proceedings could continue even if
the court found that the arbitration agreement was non–existent or null and void.
32. Sir Michael MUSTILL (United Kingdom) said that the question, as he saw it, was whether
to protect the claimant against the risk of delay through an objection of no merit, or the
defendant against a waste of time and money in being brought before an arbitral tribunal
which was ultimately found not to have existed in any real sense. Both parties lost if the
dispute had to be fought twice. His delegation felt that the court should be able to decide
from the beginning whether the arbitration should go ahead. If it found that it should, the
court would relinquish jurisdiction. If, however, it decided that the agreement was void, it

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 would continue its consideration of the case.
33. The CHAIRMAN pointed out that the article said that the arbitral proceedings could
continue, not that they must continue. However, difficult questions of international
competence were also involved: for example, the court's decision might not be recognized
in the other country concerned. If the court said that the agreement was null and void, the
decision might be binding only in the territory of “this State.” The defendant might
consider that, even with a court decision, if the arbitral proceedings continued as far as an
award it might be possible to enforce it, if not in the country where the court's decision was
binding, perhaps in another country.
34. Mr. SZASZ (Hungary) said the question was that of which party's interests should be
protected. He felt that the wisest course would be not to give room to purely dilatory
tactics and to allow the claimant to decide whether it was worth while going on with the
arbitral proceedings.
35. Mr. HOLTZMANN (United States of America) felt strongly that there should be one set of
proceedings at a time, and that it should be arbitration proceedings. It was not a question
of favouring either the claimant or the defendant but of favouring the arbitration process.
The question of the validity of the arbitration agreement could be decided by the
arbitrators themselves as a preliminary question, and the presumption was that they
would do so in appropriate cases.
36. Mr. MTANGO (Tanzania) thought that the model law should make sure as far as possible
that the parties were subjected to only one set of proceedings. He therefore supported the
United Kingdom proposal to leave the text as it was.
37. Mr. SEKHON (India) said that the impression that had been given that the provision was
founded on the 1961 European Convention was incorrect. He read out the text of article 6(3)
of that Convention, stressing the final phrase “unless they have good and substantial
P 329 reasons to the contrary.” That was not exactly what was being said in article 8(2). He noted
P 330 that some of the arguments that had been put forward assumed that the courts would
not act objectively, impartially and fairly: in his judgment, that was a wrong assumption.
38. The CHAIRMAN said that most of the delegations involved in the preparation of the 1961
Convention had thought that the phrase just quoted seriously weakened it.
39. Mr. LEBEDEV (Union of Soviet Socialist Republics) felt that article 6 of the 1961 European
Convention embodied a very valuable compromise and perhaps article 8(2) ought to be
drafted in exactly the same way. As for the contention that his delegation's proposal would
not prevent the parties from going to court after arbitration proceedings had started, he
pointed out that one of the parties might need to go to court to suspend the running of the
prescription period in order to protect his rights. The question was not one of protecting
the interests of either the plaintiff or the defendant but of protecting the institution of
arbitration itself, as the United States representative had pointed out.
40. The CHAIRMAN said that no clear majority seemed to have emerged in favour of
changing the text. The discussion closely paralleled that in the Working Group, the
outcome of which had been the existing article 8. In order to avoid further lengthy
discussion, he proposed that the existing text of article 8 should be retained.
41. It was so decided.
[20 June 1985, 3:00 P.M., A/CN.9/SR.332]
Article 8 [as revised by the Drafting Group]
24. Mr. SAMI (Iraq) said that the Arabic version of paragraph (2) was incorrect and should be
brought into line with the English version.
25. Mr. SEKHON (India) said that the words “and an award may be made” in paragraph (2)
were superfluous, since they were implied by the phrase “arbitral proceedings may
nevertheless be commenced or continued.”
26. The CHAIRMAN [Mr. LOEWE (Austria)] said that the words had been included in order to
make it clear that the arbitrators need not stop short of making an award.
27. Article 8 was adopted without change, subject to the correction in the Arabic version
requested by the representative of Iraq.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 8. Arbitration agreement and substantive claim before court
89. The text of article 8 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
90. It was suggested that paragraph (2) could be read to apply only if the arbitral
P 330 proceedings had commenced prior to the commencement of the judicial proceedings. The
P 331 Commission agreed that the text of paragraph (2) should be amended so as to make
clear that a party was not precluded from initiating arbitral proceedings by the fact that
the matter had been brought before a court.
91. There was a divergence of opinion in the Commission as to whether the text should be

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 amended so as to preclude the possibility that proceedings might go forward concurrently
in both the arbitral tribunal and the court. Under one view, if the arbitral proceedings had
already commenced, the court should normally postpone its ruling on the arbitral
tribunal's jurisdiction until the award was made. That would prevent the protraction of
arbitral proceedings and would be in line with article VI(3) of the European Convention on
International Commercial Arbitration [484 U.N.T.S. 349] (Geneva, 1961). Under another view,
once the issue as to whether the arbitration agreement was null and void was raised before
the court, priority should be accorded to the court proceedings by recognizing a power in
the courts to stay the arbitral proceedings or, at least, by precluding the arbitral tribunal
from rendering an award.
92. The prevailing view was to leave the current text of paragraph (2) unchanged on that
point. Permitting the arbitral tribunal to continue the proceedings, including the making of
an award, while the issue of its jurisdiction was before the court contributed to a prompt
resolution of the arbitration. It was pointed out that expenses would be saved by awaiting
the decision of the court in those cases where the court later ruled against the jurisdiction
of the arbitral tribunal. However, it was for that reason not recommendable to provide for
a postponement of the court's ruling on the jurisdiction of the arbitral tribunal.
Furthermore, where the arbitral tribunal had serious doubts as to its jurisdiction, it would
probably either proceed to a final determination of that issue in a ruling on a plea referred
to in article 16(2) or, in exercising the discretion accorded to it by article 8(2), await the
decision of the court before proceeding with the arbitration.
93. It was noted that objections to the existence of a valid arbitration agreement were
referred to in articles 8(1), 16(2), 34(2)(a)(i) and 36(1)(a)(i), which apparently allowed a party
wishing to obstruct or delay the arbitration to raise the same objection at four different
stages. The Commission was agreed that, while it was not possible in a model law to solve
potential conflicts of competence between courts of different States or between any such
court and an arbitral tribunal, when considering those articles account should be taken of
the need for inner consistency with a view to reducing the effects of possible dilatory
tactics.
94. The Commission, after deliberation, adopted article 8, subject to modifying paragraph
(2) along the following lines: “The fact that an action is brought before a court as referred to
in paragraph (1) of this article does not preclude a party from initiating arbitral
proceedings or, if arbitral proceedings have already commenced, the arbitral tribunal
from continuing proceedings [, including the making of an award,] while the issue of [its]
jurisdiction is pending with the court.”
P 331

References
1) The term “exclusive competence” is used in this Commentary in a nontechnical sense.
It was noted during the Working Group's deliberations that in some legal systems the
arbitration agreement does not deprive the court of jurisdiction to decide the dispute;
rather, the court is directed to decline to exercise its jurisdiction if there is a valid
arbitration agreement. See Third Working Group Report, A/CN.9/233, para. 78, p. 316
infra. Article 8 is carefully drafted to avoid taking any position on whether the court is
deprived of jurisdiction or merely abstains from exercising it.
2) See Summary Record, A/CN.9/SR.312, paras. 1–2, pp. 324–25 infra.
3) See Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 8, para. 4, p. 321
infra.
4) See Fifth Working Group Report, A/CN.9/246, para. 22, p. 320 infra; Seventh Secretariat
Note, A/CN.9/ 264, Art. 8, para. 3, p. 324 infra. See also A.J. van den Berg, The New York
Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation 137–38 (1981)
(the Diplomatic Conference at which the New York Convention was prepared deleted a
provision that would have allowed court to act on its own motion).
5) Third Working Group Report, A/CN.9/233, para. 77, p. 315 infra. Nevertheless, the
operative words were clearly intended to have the same meaning as in the New York
Convention, and it is probably true, as has been said, that “[h]aving regard to the ‘pro–
enforcement bias’ of the Convention, the words should be construed narrowly and the
invalidity of the arbitration agreement should be accepted in manifest cases only.” A.J.
van den Berg, supra, at 155.
6) Second Working Group Report, A/CN.9/232, para. 51, p. 314 infra. The Working Group
also noted that it might not be clear before the award was made whether it would be
unenforceable. Id.
7) This is a broad statement of the rule in those Articles. It does not necessarily apply to
questions of the capacity of the parties. See the sections on those Articles, pp. 910–
1003 & 1054–1114 infra.
8) Cf. A.J. van den Berg, supra, 126–28 (reaching the same conclusion as to the analogous
provisions of the N.Y. Convention). See generally the commentary on Article 7, pp. 258–
64 supra.

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 9) Fifth Working Group Report, A/CN.9/246, para. 23, p. 320 infra; accord Fourth Working
Group Report, A/CN.9/245, para. 187, p. 318 infra.
10) The initial drafts of Article 7 contained a clause on arbitrability, but it was deleted by
the Working Group. See the commentary on Article 7, p. 260 n. 8 supra, and sources
cited therein.
11) It is not entirely clear, however, that the applicable rules of arbitrability are those of
the forum. See discussion immediately below.
12) This question will arise only when the place of arbitration is not in the forum state.
Under Article 1(2) of the Law, a court in the Model Law State must refer the parties to
arbitration even if the place of arbitration is in another state.
13) See A.J. van den Berg, supra, at 154. Dr. van den Berg himself strongly takes the view
that the arbitrability rules of the forum should apply. He states that internal
consistency of the Convention requires this result, that courts derive their competence
from their own law, and that courts should avoid construing foreign rules of
arbitrability, which are often based on complex case law rather than statutes. He also
notes that those courts that have addressed the question of arbitrability in connection
with a reference to arbitration have done so exclusively under their own law. Id. at 152–
53.
In international cases courts in many countries do not apply all of the restrictions on
arbitrability that they apply to domestic cases. See id. at 152–53; Secretariat Study on
the N.Y. Convention, A/CN.9/168, para. 45, which appears in the subchapter on Article
1, paragraph 5, p. 134 supra.
14) See A.J. van den Berg, supra, at 154.
15) See generally id. at 155–61 for a textual analysis of these terms.
16) Cf id. at 156 (many countries deem the arbitration clause to be separable from the
contract for this purpose).
17) In addition, the scope of application of the Model Law is different from that of the
Convention. The Model Law applies to international commercial arbitrations, as
defined in Article 1, while the Convention contains no such limitation.
The Secretariat noted that the scope of application of the Convention is not fully
stated in its text, and this has occasioned some uncertainty. Some countries have
limited its application to arbitrations in which a foreigner is a party or to arbitrations
reasonably related to a foreign State. See Secretariat Study on the N.Y. Convention,
A/CN.9/168, paras. 17–18, pp. 307–08 infra; First Secretariat Note, A/CN.9/207, para. 61,
p. 310 infra.
18) See First Secretariat Note, A/CN.9/207, para. 60, p. 310 infra; Second Working Group
Report, A/CN.9/ 232, para. 50, p. 314 infra.
19) 484 U.N.T.S. 349 (Geneva 1961).
20) See Fifth Working Group Report, A/CN.9/246, para. 22, p. 320 infra; Fourth Secretariat
Note, A/CN.9/ WG.II/WP.50, para. 15, p. 319 infra.
21) See the sources cited in the preceding footnote. Article 16(2) contains a similar
requirement that an objection to jurisdiction be raised before the arbitral tribunal not
later than the statement of defence. For material on the effect of a failure to do so, see
the section on that Article, pp. 482–84 infra, and sources cited therein.
22) See generally Commission Report, A/40/17, paras. 91–93, p. 331 infra; Summary Record,
A/CN.9/ SR.312, paras. 4–41, pp. 325–30 infra.
23) See Summary Record, A/CN.9/SR.312, para. 34, p. 329 infra.
24) The question of whether to permit simultaneous judicial and arbitral proceedings
under Article 8 is closely related to the provisions in Article 16 for judicial review of an
arbitral tribunal's finding that it has jurisdiction under a valid arbitration agreement.
For further materials on these provisions of Article 16, and on the interrelationship
between the two articles, see the commentary on Article 16, pp. 484–87 infra.
25) See First Working Group Report, A/CN.9/216, para. 38, p. 312 infra; see also Second
Secretariat Note, A/CN.9/WG.II/WP.35, para. 23, p. 311 infra.
26) See First Working Group Report, A/CN.9/216, para. 37, p. 312 infra; see also Second
Secretariat Note, A/CN.9/WG.II/WP.35, para. 22, p. 311 infra.
27) First Working Group Report, A/CN.9/216, para. 37, p. 312 infra.
*) [Editors' Note: This topic is not addressed in Article 8 of the Model Law. The discussion of
the question appears here because it is helpful in understanding the differences between
Article 8 and the New York Convention provision upon which it is based.]
*) [Editors' Note: Paragraph 7 is not reprinted. It notes that the nationality of the parties is
irrelevant to the enforceability of an arbitral award under the New York Convention, even
when an otherwise applicable national law prohibits nationals from excluding the
jurisdiction of the nation's courts by agreeing on foreign arbitration. The paragraph cites
Italian court decisions so holding.]
44) High Court of Justice, Chancery Division, London, decision of 6 October 1977, YCA IV
(1979), p. 317. [Editors' Note: Throughout this section, “YCA” refers to the Yearbook
Commercial Arbitration.]
45) Tribunale di Milano, decision of 22 March 1976, YCA II (1977), p. 248.
46) Moscow City Court (Civil Dept.), decision of 6 May 1968, YCA I (1976), p. 206.
47) United States District Court, C.D. California, decision of 2 December 1976, YCA III (1978),
p. 289.

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 *) It may be noted that the word “shall” had been erroneously omitted in the first official
publication of the Convention, in United Nations, Treaty Series, vol. 330, No. 4739
(1959), p. 38, 40, and is, consequently, missing in a number of reproductions based on
that text.
23) [Secretariat Study on the New York Convention,] A/CN.9/168, paras. 27–28.
24) Cf. [Secretariat Study on the New York Convention,] A/CN.9/168, paras. 16–18.
25) [Secretariat Study on the New York Convention,] A/CN.9/168, para. 29 [appearing in the
section on Article 9, pp. 333–34 infra].
10) Art. 22:
“1. The limitation period cannot be modified or affected by any declaration or
agreement between the parties, except in the cases provided for in paragraph (2)
of this article.
2. The debtor may at any time during the running of the limitation period extend
the period by a declaration in writing to the creditor. This declaration may be
renewed.
3. The provisions of this article shall not affect the validity of a clause in the
contract of sale which stipulates that arbitral proceedings shall be commenced
within a shorter period of limitation than that prescribed by this Convention,
provided that such clause is valid under the law applicable to the contract of
sale.”
14) Discussion and conclusions of the Working Group in [the First Working Group Report,] A/
CN.9/216, paras. 35–39 [para. 39 appears in the section on Article 9, pp. 336–37 infra].
15) This draft provision is modeled on article II(3) of the 1958 New York Convention.
12) Discussion and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, paras. 81–83 [appearing in the section on Article 16, pp. 490–91 infra].
16) This draft provision is modeled on article VI(3.) of the 1961 Geneva Convention
[European Convention on International Commercial Arbitration, 484 U.N.T.S. 349].
15) Relevant discussion and conclusions by the Working Group in the Third Working Group
Report, A/CN.9/233, paras. 75–81. [Editors' Note: Paras. 75–80 appear directly above;
para. 81 appears in the section on Article 9, p. 339 infra.]
16) This draft provision combines the provisions previously set forth in paragraphs (1) and
(2). Two modifications are suggested in an attempt (a) to emphasize the issue dealt
with in this provision, i.e. the competence — or lack of competence — of a court before
which a substantive claim is brought; (b) to clarify the relationship between the
“request,” mentioned in the first sentence, and the “plea,” previously referred to in
paragraph (2).
17) It is suggested that the provision previously contained in paragraph (3) of article IV be
transferred, with some modifications, to article XIII [Art. 16 in the final text] as new
paragraph (4):
(4) Where, after arbitral proceedings have commenced, a party invokes before a court
lack of jurisdiction of the arbitral tribunal, whether impliedly by bringing a substantive
claim or expressly by requesting a decision on the jurisdiction of the arbitral tribunal
directly from the court without first raising this plea before the arbitral tribunal, the
arbitral tribunal may continue the proceedings while the issue is pending with the
court.
In this context, the Working Group may wish to consider the relationship between the
two ways of pleading lack of jurisdiction of the arbitral tribunal as envisaged in article
XIII (2), (3) [Art. 16(2), (3) in the final text], i.e. plea raised before arbitral tribunal, with
later control by court, and in above paragraph (4), i.e. direct resort to court without
first requesting a ruling by the arbitral tribunal on its jurisdiction. The main question
would be whether these two procedures are provided cumulatively or alternatively. In
the latter case, a party who has chosen one of the procedures would be precluded
from using the other one.
38) Fifth Working Group Report, A/CN.9/246, para. 22 [p. 320 supra].

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Document information
UNCITRAL Model Law, Chapter II, Article 9 [Arbitration
Publication agreement and interim measures by court]
A Guide to the UNCITRAL It is not incompatible with an arbitration agreement for a party to request, before or
Model Law on International during arbitral proceedings, from a court an interim measure of protection and for a court
Commercial Arbitration: to grant such measure.
Legislative History and
Commentary
Commentary
Article 9 codifies the dual principles that, first, a party does not waive its right to go to
Organization arbitration by requesting (or obtaining) interim measures of protection from a national
court, and, second, that a national court is not prevented from granting such measures by
United Nations Commission the existence of an arbitration agreement. By virtue of Article 1(2), the first principle
on International Trade Law applies regardless of whether the application is made to a court of the State adopting the
Model Law or to a court of another State. The second principle is directed to courts of the
Model Law State. (1) The need for this provision arose out of what was seen as the
Promulgation experience with the New York Convention. The Secretariat's study of judicial decisions
under that Convention reported that courts had come to divergent results on the question
21 June 1985 of whether they could grant requests for attachments and other interim measures in
matters governed by arbitration agreements: some had refused to do so on the ground that
such measures would impede expeditious arbitration proceedings; others had granted
Legislation number such attachments on the ground that they did not obstruct arbitration but ensured that an
award would be meaningful by preserving the subject matter of the dispute or assets of a
United Nations Document respondent or counter–respondent. (2) The Working Group agreed that interim measures by
A/40/17, Annex I a national court were compatible with arbitration. (3)
Article 9 was initially modeled on Article 26(3) of the UNCITRAL Arbitration Rules. The
Bibliographic reference primary alteration from that model was to provide not only that a party could request
interim measures but also that a court could grant such a request. This change presumably
'UNCITRAL Model Law, was felt necessary because the Model Law, unlike a set of rules, is addressed to courts as
Chapter II, Article 9 well as to parties and arbitral tribunals. (4)
[Arbitration agreement and
interim measures by court]', Article 9 is not limited to any particular kind of interim measures. Thus it applies to
in Howard M. Holtzmann and P 332 measures to conserve the subject matter of the dispute; measures to protect trade secrets
Joseph Neuhaus , A Guide to P 333 and proprietary information; measures to preserve evidence; pre–award attachments to
the UNCITRAL Model Law on secure an eventual award and similar seizures of assets; measures required from third
International Commercial parties; and enforcement of any interim measures ordered. (5) The scope of Article 9 is thus
Arbitration: Legislative somewhat broader than that of Article 17, which relates to the arbitral tribunal's power to
History and Commentary, order interim measures. The latter Article deals only with the power to take interim
(© Kluwer Law International; measures relating to the subject matter of the dispute and does not address the other
Kluwer Law International types of measures commonly available nor the enforcement of any measures ordered. (6)
1989) pp. 332 - 346 Article 9 is also related to Article 27, which addresses court assistance to the arbitral
tribunal in taking evidence.
The Commission made clear that Article 9 does not affect any agreement by which parties
have stipulated that they will not seek interim measures from a court. The Article provides
only that such measures are compatible with an agreement to settle a dispute by
arbitration; it does not preclude a clause excluding such measures nor does it address
whether such a clause should be given effect. (7)

Legislative History
SECRETARIAT STUDY ON THE NEW YORK CONVENTION A/CN.9/168 (20 APRIL 1979)
II. Valid arbitration agreement in writing (Art. II and Art. V, paragraph 1(a) [of the New York
Convention])
[.…]
C. Referral to arbitration (art. II, para. 3)
[.…]
29. Another question relating to court jurisdiction is whether an arbitration agreement
precludes an attachment or similar measure. Where such a procedure is not part of the
normal enforcement of an award but requested during or even before arbitration
proceedings, the answer depends on the understanding of the aim of the 1958 [New York]
Convention, in particular, article II. Some courts have held that such pre–award
attachments were not consistent with the arbitration agreements and the purpose of the
P 333
P 334
1958 Convention because they would in fact impede expeditious arbitration
proceedings. (48) Yet, other courts have granted such attachments on the ground that
these would not discourage resort to arbitration or obstruct the course of arbitral
proceedings but would rather make the later award meaningful by preserving the subject–
matter or assets intact within the jurisdictions. (49) It may be suggested that this issue
possibly justifies a uniform rule or recommendation.

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 FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
A. Concerns and principles of a model law on international commercial arbitration
[.…]
II. General principles and purposes
[.…]
24. Other issues usefully to be included are those that have given rise to difficulties due to
divergent interpretations, or gaps, of the 1958 New York Convention as identified in the
study of the Secretary–General ([Secretariat Study on the New York Convention,]
A/CN.9/168). […] [One such] question possibly to be answered in the model law is whether
pre-arbitration attachments and similar measures are compatible with an arbitration
agreement.[…]
[.…]
B. Identification of issues possibly to be dealt with in the model law
[.…]
II. Arbitration agreement
[.…]
5. Effect of the agreement [see the section on Article 8, pp. 309–10 supra]
[.…]
61. […] Finally, the model law may provide an answer to the question whether attachments
or similar court measures of protection are compatible with an arbitration agreement.
Again, the lack of a pertinent provision in the 1958 New York Convention has led to
P 334 divergent court decisions. (25) A provision, supposedly in favour of compatibility, could be
P 335 included here since it concerns also the pre–arbitration stage or it may be combined
with the provisions governing the arbitration proceedings (below, paras. 77, 78).
[.…]
IV. Arbitral procedure
[.…]
2. Arbitral proceedings in general
[.…]
[Editors' Note: Paragraph 73 of this document, which appears in the section on Article 19, p.
572 infra, states that “[t]he model law should empower the arbitral tribunal to conduct the
arbitration proceedings in such manner as it considers appropriate,” subject to certain
restrictions discussed in that paragraph. The Note continues as follows; the full text of the
following paragraph also appears in the section on Article 19.]
74. Furthermore, the model law may impose certain rules which would be binding on the
arbitrators either irrespective of any conflicting agreement by the parties or only if the
parties have not agreed otherwise. Examples of the first category, i.e. mandatory rules,
include provisions on interim measures of protection by courts (discussed below, para. 78)
[…].
[.…]
5. Interim measures of protection
[.…]
78. A court may be involved not only by lending its executory force to [interim] measures
taken by the arbitral tribunal [see the section on Article 17, p. 533 infra] but also by taking
itself such decision in the first place if so requested by a party. It may be considered
whether such court measures and their conditions could be regulated in the model law or
whether these issues should better be left to the general law on procedure. In either case,
however, it would seem desirable to answer, probably in the affirmative, the question
whether a request for such interim measures is compatible with the arbitration agreement
and does not constitute a waiver thereof. As mentioned earlier (above, para. 61), this
question may become relevant already before the commencement of arbitration
proceedings.
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
II. Arbitration agreement
[.…]
5. Effect of the agreement
[.…]
P 335
P 336 Question 2–16: Are pre–arbitration attachments and similar court measures of

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 protection compatible with an arbitration agreement and should the model law state so?
[.…]
IV. Arbitral procedure
[.…]
5. Interim measures of protection
25. As indicated in the report [First Secretariat Note, supra] (paras. 77–78), there are two
different types of interim measures possibly to be dealt with in the model law. First, there
are interim measures of protection which may be taken by the arbitral tribunal (e.g.
conservation of goods or sale of perishable goods). Here the main question is whether the
arbitral tribunal may so act even without special authorization by the parties. Then, there
are interim measures (e.g. attachment and seizure of assets) which a court may take. The
question, here, is whether the availability of such relief and the procedure should be dealt
with in the model law at all.
Question
4–10: Should the arbitral tribunal be empowered to take interim measures of protection
even without special authorization by the parties? [This issue is addressed in the
section on Article 17, pp. 534–35 infra.]
Question
4–11: Should the model law deal with the involvement of courts in this respect?
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[.…]
II. Arbitration agreement
[.…]
5. Effect of the agreement
[.…]
Question 2–16: Are pre–arbitration attachments and similar court measures of protection
compatible with an arbitration agreement and should the model law state so?
39. There was general agreement that the resort by a party to a court in order to obtain
interim measures of protection was not incompatible with an arbitration agreement, and
that the model law should contain a statement to that effect. Such relief was normally
sought before the arbitration had started, but it was agreed that the principle of
compatibility should also prevail during arbitration proceedings. The Working Group noted
that this latter issue was linked to the issues set forth in questions 4–10 and 4–11 (interim
P 336 measures by arbitral tribunals or by courts). It was suggested that in drafting an
P 337 appropriate provision, account should be taken of article 26, paragraph 3 of the
UNCITRAL Arbitration Rules; article VI, paragraph 4 of the 1961 Geneva Convention
[European Convention on International Commercial Arbitration, 484 U.N.T.S. 349]; and article
4(2) of the 1966 Strasbourg Uniform Law [European Convention Providing a Uniform Law on
Arbitration, Europ. T.S. No. 56].
[.…]
IV. Arbitral procedure
[.…]
5. Interim measures of protection
[.…]
Question 4–11: Should the model law deal with the involvement of courts in this respect?
68. The Working Group reaffirmed the decision which it had taken in relation to question 2–
16 (see above, para. 39). Under that decision, the model law should contain a provision
along the lines of article 26, paragraph 3 of the UNCITRAL Arbitration Rules. The principle
of compatibility embodied therein would apply to resort to courts for interim measures
before and during arbitration proceedings.
69. The Working Group was agreed that, apart from such provision on compatibility, the
model law should not contain any rule dealing with the involvement of courts in taking any
interim measure of protection. As regards interim measures which only a court could take
(e.g. attachment or seizure of assets or those measures affecting third parties), it was
thought that these were an integral part of the general procedural law applied by the
court. As regards interim measures which an arbitral tribunal might take (cf. para. 66 above
[appearing in the section on Article 17, p. 534 infra]), it should be left to the domestic
procedural law to determine whether such measures could be enforced. It was suggested
that parties who wanted enforceable measures of protection should directly resort to the
courts. It was further noted that the legal justification and consequences of an interim
measure taken by the arbitral tribunal were linked to issues to be discussed later, such as
recourse against arbitral decisions and the effect of an (interim) award. [Editors' Note: The

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 Working Group eventually decided not to deal separately with “interim” awards as such, see
the commentary on Article 32, pp. 867–69 infra; the question of recourse against arbitral
decisions generally is dealt with in Articles 34–36 of the Model Law.]
FIRST DRAFT A/CN.9/WG.II/WP.37 (15 JULY 1982)
II. Arbitration agreement
[.…]
5. Effect of the agreement (14)
[.…]
Article 6 [Art. 9 in the final text] (16)
P 337
P 338 A request for interim measures of protection addressed by any party to a court, whether
before or during arbitration proceedings, shall not be deemed incompatible with the
agreement to arbitrate or as a waiver of that agreement.
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of First Draft
[.…]
Arbitration agreement
[.…]
Effect of the agreement
[.…]
Article 6 [Art. 9 in the final text]
52. The text of article 6 as considered by the Working Group was as follows:
[same as First Draft, supra].
53. The Working Group was in agreement that the policy expressed by the current text
should be retained. It was suggested, however, that the provision should be redrafted to
express the view that it was the action of the court in granting interim relief that was
compatible with the arbitration agreement. It was pointed out that the text of article 6 was
based upon article 26(3) of the UNCITRAL Arbitration Rules, which were drafted from the
viewpoint of the parties, while a different approach was appropriate in a model law.
54. On the other hand it was pointed out that the provision was intended to say that a
party had the right to request interim measures of relief from a court pending the final
award in the arbitration proceedings. This approach to the question had already been
taken in article VI, paragraph 4 of the 1961 Geneva Convention [European Convention on
International Commercial Arbitration, 484 U.N.T.S. 349].
55. The Working Group decided to retain the current text at this time.
56. A drafting suggestion was made that “any party” should be used whenever multi–party
arbitration could be covered and “either party” should be used only if two–party
arbitration alone could be envisaged.
P 338
P 339
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
C. Arbitration and the courts
[.…]
Article IV [Arts. 8 & 9 in the final text]
[Editors' Note: Paragraphs 1–3 appear in the section on Article 8, pp. 314–15 supra.]
[.…]
(4) Any party may address to a court a request for interim measures of protection, whether
before or during arbitration proceedings. This shall not be deemed incompatible with the
agreement to arbitrate or as a waiver of that agreement.
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[.…]
C. Arbitration and the courts
[.…]
Article IV [Arts. 8 & 9 in the final text]
74. The text of article IV as considered by the Working Group was as follows:
[same as Second Draft, supra].

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 [.…]
Paragraph (4)
81. The Working Group requested the Secretariat to redraft this provision so as to express
more clearly the idea that the involvement and decision of a court (or other judicial
authority) with regard to interim measures of protection was not incompatible with the
arbitration agreement. A suggestion was made to include also interim measures of securing
evidence (e.g., inspection of goods by independent expert).
THIRD DRAFT A/CN.9/WG.II/WP.45 (13 JUNE 1983)
C. Arbitration agreement and the courts
[.…]
Article IV [Arts. 8 & 9 in the final text]
[Paragraph 1 appears in the section on Article 8, p. 316 supra]
P 339 (2) It shall not be deemed incompatible with the arbitration agreement that a party,
P 340 before or during arbitral proceedings, requests from a court interim measures of
protection in respect of the subject–matter of the dispute or in respect of evidence and
that a court orders or takes grants such measures.
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Third Draft] (A/CN.9/WG.II.WP.45)
[.…]
Article IV [Arts. 8 & 9 in the final text]
185. The text of article IV as considered by the Working Group was as follows:
[same as Third Draft, supra].
[.…]
Paragraph (2)
188. The Working Group was agreed that the interim measures of protection envisaged
under this provision would include measures of conservation of the subject–matter of the
dispute and measures in respect of evidence as well as pre–award attachments.
Nevertheless, it was not deemed necessary to specifically list the various possible
measures; instead, a general formula such as the one adopted in the European Convention
on International Commercial Arbitration [484 U.N.T.S. 349] (Geneva 1961; art. VI(4)) was
considered as more appropriate.
189. As regards the thrust of this provision, there was some support for merely addressing it
to the parties and, thus, omit the reference to the action of the court itself. The prevailing
view, however, was that the question of compatibility with the arbitration agreement was
relevant not only with regard to the attitude of the parties but also to the granting of such
measures by the courts.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 9. Arbitration agreement and interim measures by court
It is not incompatible with the arbitration agreement for a party to request, before or
during arbitral proceedings, from a court an [interim measure of protection] [interim
measure or a measure of conservation] and for a court to grant such measure.
FIFTH SECRETARIAT NOTE TERRITORIAL SCOPE OF APPLICATION AND RELATED ISSUES
A/CN.9/WG.II/WP.49 (21 DECEMBER 1983)
B. Special considerations with regard to provisions on court assistance and supervision
[.…]
2. Provisions on court assistance and supervision which should have a special
delimitation of scope of application
P 340
P 341 18. Some provisions in the model law dealing with court assistance and supervision are
of such a nature that they may require a different scope of application than the model law
in general. These provisions are discussed below.
[.…]
(b) Granting of interim measure (art. 9)
20. Article 9 expresses the principle of compatibility of an arbitration agreement with a
request to a court for an interim measure. There are two aspects of this principle.
21. One aspect is that it applies to courts of the State of the model law requested to grant
an interim measure and provides that a court shall not refuse to grant such a measure on
the ground that there is an arbitration agreement. In this respect the scope of application
of the rule should be the same as the rule of article 8(1) mentioned in paragraph 19
[appearing in the section on Article 8, pp. 319–20 supra].

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 22. The other aspect is that the rule expresses the principle according to which a request
by a party for an interim measure should not be construed as a waiver of the arbitration
agreement. This principle should apply irrespective of whether such a request is made to a
court in the State of the model law or to a court in any other State.
[Editors' Note: The scope of application of Article 9 is defined in Article 1(2) of the final text.]
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[.…]
Article 9
24. The text of article 9 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
25. The Working Group adopted that article, including the words “interim measure of
protection” and deleting the words “interim measure or a measure of conservation.” While
there was some support for the latter wording which was taken from the 1961 Geneva
Convention [European Convention on International Commercial Arbitration, 484 U.N.T.S. 349],
the prevailing view was in favour of the term “interim measure of protection” which was
taken from the UNCITRAL Arbitration Rules.
26. The Working Group was agreed that the range of measures covered by article 9 was a
wide one and included, in particular, pre–award attachments. It was noted that that
provision, as regards the range of measures covered, including their enforcement, was
considerably wider than article 18 [Art. 17 in the final text] which empowered the arbitral
P 341 tribunal to order certain interim measures of protection but did not deal with the
P 342 enforcement of such orders.

FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)

Article 9. Arbitration agreement and interim measures by court
It is not incompatible with the arbitration agreement for a party to request, before or
during arbitral proceedings, from a court an interim measure of protection and for a court
to grant such measure.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[.…]
Article 9. Arbitration agreement and interim measures by court
1. The United States supports the policy of this article and the view expressed by the
Working Group, namely that the range of measures covered by article 9 was a wide one and
included, in particular, pre–award attachments. (21) The United States believes that the
wide range of interim measures permitted under this article include not only conservation
of goods but also, under appropriate circumstances, the protection of trade secrets and
proprietary information as being an appropriate subject–matter of interim relief available
from a court. This is especially desirable in view of the increasingly complex nature of
international commercial transactions giving rise to arbitrable disputes, which presently
range from simple trade contracts to the most complicated long–term agreements. It also
permits measures to conserve documents or other evidence which may assist the arbitral
tribunal in reaching a just decision.
2. The Federal Republic of Germany notes that in the Working Group its delegation
advocated mentioning the preservation of evidence as a primary example of an interim
measure of protection provided by a State court. Given the fact that the majority in the
Working Group did not consider this necessary, it is requested that a pertinent reference
be included in the official report.
3. Cyprus favours, in respect of this article and of article 18 [Art. 17 in the final text], the use
of the words “interim orders or injunctions” instead of “interim measures of protection.”
P 342
P 343
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1984)
Article 9. Arbitration agreement and interim measures by court
[.…]
1. Article 9 relates — like article 8 — to recognition and effect of the arbitration agreement
but in another respect. It lays down the principle, disputed in some jurisdictions, that
resort to a court and subsequent court action with regard to interim measures of
protection are compatible with an arbitration agreement. It, thus, makes it clear that the
“negative” effect of an arbitration agreement, which is to exclude court jurisdiction, does
not operate with regard to such interim measures. The main reason is that the availability

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 of such measures is not contrary to the intentions of parties agreeing to submit a dispute
to arbitration and that the measures themselves are conducive to making the arbitration
efficient and to securing its expected results.
2. Article 9 expresses the principle of compatibility in two directions with different scope
of application. According to the first part of the provision, a request by a party for any such
court measures is not incompatible with the arbitration agreement, i.e. neither prohibited
nor to be regarded as a waiver of the agreement. This part of the rule applies irrespective
of whether the request is made to a court of State X or of any other country. Wherever it
may be made, it may not be invoked or treated as an objection against, or disregard of, a
valid arbitration agreement under “this Law,” i.e. in arbitration cases falling within its
territorial scope of application or in the context of articles 8 and 36.
3. However, the second part of the provision is addressed only to the courts of State X and
declares their measures to be compatible with an arbitration agreement irrespective of
the place of arbitration. Assuming wide adherence to the model law, these two parts of the
provision would supplement each other and go a long way towards global recognition of
the principle of compatibility, which, in the context of the 1958 New York Convention, has
not been uniformly accepted.
4. The range of interim measures of protection covered by article 9 is considerably wider
than that under article 18 [Art. 17 in the final text], due to the different purposes of these
two articles. Article 18 deals with the limited power of the arbitral tribunal to order any
party to take an interim measure of protection in respect of the subject–matter of the
dispute and does not deal with enforcement of such orders. Article 9 deals with the
compatibility of the great variety of possible measures by courts available in different
legal systems, including not only steps by the parties to conserve the subject-matter or to
secure evidence but also other measures, possibly required from a third party, and their
enforcement. This would, in particular, include pre– award attachments and any similar
seizure of assets.
P 343 5. It may be noted that the model law does not deal with the possible conflict between an
P 344 order by the arbitral tribunal under article 18 and a court decision under article 9
relating to the same object or measure of protection. However, it is submitted that the
potential for such conflict is rather small in view of the above disparity of the range of
measures covered by the two articles.
SUMMARY RECORD A/CN.9/SR.312, .332
[6 June 1985, 2:00 p.m., A/CN.9/SR.312]
Article 9. Arbitration agreement and interim measures by court
42. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that, at first sight,
article 9 was rather engimatical. Paragraph 1 of the Secretariat's analytical commentary on
the article ([Seventh Secretariat Note,] A/CN.9/264, [Art. 9]) sought to explain that the fact
that the parties had entered into an arbitration agreement did not mean that they had
renounced their right to go to court for interim measures. If that was the whole content of
the article, it was harmless and possibly even unnecessary. Supposing, however, that the
parties had agreed between themselves in their arbitration agreement that they would not
apply to a court for interim measures, the question arose of whether such an agreement
was rendered invalid by article 9. A rule precluding such application to a court was
contained in the rules of the London Court of International Arbitration and that provision
had been found valuable and acceptable. If there was no intention to make agreements of
that kind invalid, some clarification was necessary on the lines of “It is not incompatible
with a submission of a dispute to arbitration for a party.…”
43. Mr. HERRMANN (International Trade Law Branch) said that the Working Group's
intention in article 9 had been to express that the mere existence of an agreement to
arbitrate should not prevent a party from requesting interim measures of protection from a
court, or prevent a court from granting such measures. The article had been felt necessary
because there had been instances in judicial practice in which the existence of an
agreement to arbitrate had resulted in the full exclusion of court jurisdiction. There was no
intent to take away the effect of agreements to refrain from requesting interim measures
from a court.
44. Mr. HOELLERING (United States of America) said his delegation noted that the scope of
interim measures which a court might grant was wide and included pre–arbitration
attachments. He suggested that there should also be a clear understanding that in
appropriate circumstances protection would extend to trade secrets and other proprietary
information, particularly in respect of articles 26 and 27 relating to the production of
documents, goods or other property for the inspection of an expert appointed by the
arbitral tribunal or sought by a court. He thought that such a clarification would be useful
in view of the increasingly complex nature of international commercial transactions giving
rise to arbitral disputes; those transactions included nowadays complicated long–term
agreements on such matters as construction of industrial works or the transfer of
technology.
P 344
P 345
45. Mr. LAVINA (Philippines) said that article 9 was intended to cover more than just the

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 question of the favourable response of a court to a party's request for interim measures. He
therefore suggested that the final phrase, “to grant such a measure,” should be replaced
by: “to act on the request.”
46. Mr. ROEHRICH (France) said that there had been a proposal for a substantive
amendment to article 9 which would tend to support an interpretation that the national
courts were bound to respect a prior agreement by the parties not to apply to the courts
for interim measures. His delegation was satisfied with the present text of article 9
precisely because it left that issue open. Such a course was also in the interests of the
parties themselves who could not foresee every eventuality in advance. He suggested that
the original text should be maintained.
47. Mr. AYLING (United Kingdom) suggested that the text could perhaps be improved by
replacing the words “the arbitration agreement” in the first line by: “an arbitration
agreement.”
48. Mr. ROEHRICH (France) said he had no objection to that amendment.
49. Mr. HJERNER (Observer, International Chamber of Commerce) observed that there was
some difficulty in the relationship between articles 5, 9 and 18 [Arts. 5, 9 and 17 in the final
text]. If a party asked for interim measures first from the arbitral tribunal and subsequently
from the court, that might well result in conflicting interim measures being ordered.
50. The CHAIRMAN [Mr. LOEWE (Austria)] said that a model law could not go into details of
that nature. If there were no further comments, he would take it that article 9 would be
retained, on the understanding that the drafting suggestion by the United Kingdom would
be incorporated.
51. It was so agreed.
[20 June 1985, 3:00 P.M., A/CN.9/SR.332]
Articles 9 and 10 [as revised by the Drafting Group]
28. Articles 9 and 10 were adopted without change.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 9. Arbitration agreement and interim measures by court
95. The text of article 9 as considered by the Commission was as follow:
[same as Fifth Draft, supra].
96. The Commission adopted the policy underlying the article and confirmed the view that
the range of measures covered by the provision was a wide one and included, in particular,
pre–award attachment. It was pointed out that the interim measures compatible with an
P 345 arbitration agreement might, for example, also relate to the protection of trade secrets
P 346 and proprietary information. It was understood that article 9 itself did not regulate
which interim measures of protection were available to a party. It merely expressed the
principle that a request for any court measure available under a given legal system and
the granting of such measure by a court of “this State” was compatible with the fact that
the parties had agreed to settle their dispute by arbitration.
97. That understanding also provided the answer to the question whether article 9 would
prevent parties from excluding in the agreement resort to courts for all or certain interim
measures. While the article should not be read as precluding such exclusion agreement, it
should also not be read as positively giving effect to any such exclusion agreement. It was
agreed that the correct understanding of article 9 might be made clearer by using the term
“an arbitration agreement” instead of the term “the arbitration agreement.” The
Commission adopted article 9 subject to that modification.
P 346

References
1) See Seventh Secretariat Note, A/CN.9/264, Art. 9, paras. 2–3, p. 343 infra; Fifth
Secretariat Note, A/CN.9/WG.II/WP.49, paras. 21–22, p. 341 infra.
2) See Secretariat Study on the N.Y. Convention, A/CN.9/168, para. 29, pp. 333–34 infra;
First Secretariat Note, A/CN.9/207, para. 61, pp. 334–35 infra.
3) See First Working Group Report, A/CN.9/216, para. 39, pp. 336–37 infra.
4) See First Draft, A/CN.9/WG.II/WP.37, Art. 6 & n. 16, p. 338 infra; Third Working Group
Report, A/CN.9/233, para. 81, p. 339 infra.
5) See Fourth Working Group Report, A/CN.9/245, para. 188, p. 340 infra; Fifth Working
Group Report, A/CN.9/246, para. 26, pp. 341–42 infra; Seventh Secretariat Note,
A/CN.9/264, Art. 9, para. 4, p. 343 infra; Commission Report, A/40/17, para. 96, pp. 345–
46 infra.
6) Seventh Secretariat Note, A/CN.9/264, Art. 9, para. 4, p. 343 infra; Fifth Working Group
Report, A/CN.9/246, para. 26, pp. 341–42 infra.

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 7) Commission Report, A/40/17, para. 97, p. 346 infra; see Summary Record,
A/CN.9/SR.312, paras. 42–43, 46, pp. 344, 345 infra. One speaker observed that the rules
of the London Court of International Arbitration contain a provision barring
applications to a court for interim measures. Id. para. 42, p. 344 infra.
48) United States Court of Appeals for the Third Circuit, decision of 8 July 1974, YCA I (1976),
p. 204; United States District Court of the Southern District of New York, decisions of 22
December 1975, YCA III (1978), p. 286, and of 18 August 1977, YCA IV (1979), p. 329.
[Editors' Note: Throughout this section, “YCA” refers to the Yearbook Commercial
Arbitration.]
49) United States District Court of the Southern District of New York, decision of 21 March
1977, YCA III (1978), p. 293 (based on sect. 8 of the US Arbitration Act. 9 USC); United
States Court of Appeals, Second Circuit, decision of 20 June 1977, YCA IV (1979), p. 328;
Queen's Bench Division (admiralty court), decision of 13 January 1978, YCA IV (1979), p.
323; Corte di Cassazione (Sez. Un.), decision of 12 May 1977, No. 3989, YCA IV (1979), p.
286.
25) [Secretariat Study on the New York Convention,] A/CN.9/168, para. 29.
14) Discussion and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, paras. 35–39 [para. 39 appears directly above; paras. 35–38 appear in the
section on Article 8, p. 312 supra.].
16) This draft provision is modeled on article 26(3) of the UNCITRAL Arbitration Rules.
21) [Fifth Working Group Report,] A/CN.9/246, para. 26.

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Document information
UNCITRAL Model Law, Chapter III, Article 10 [Number of
Publication arbitrators]
A Guide to the UNCITRAL (1) The parties are free to determine the number of arbitrators.
Model Law on International
Commercial Arbitration: (2) Failing such determination, the number of arbitrators shall be three.
Legislative History and
Commentary Commentary
Once it reached its current form early in the drafting, Article 10 occasioned virtually no
controversy in the Working Group or the Commission, even though it would work a
Organization significant change in the laws of some countries. Many legal systems at present require
that the number of arbitrators be uneven, for the obvious reason that the possibility of
United Nations Commission deadlocks is thereby reduced. (1) The Secretariat suggested that this requirement was
on International Trade Law “overprotective.” (2) The Working Group agreed, and decided at an early stage to state
explicitly in the Law that the parties are free to determine the number of arbitrators. (3)
There are sound reasons for this position. One can conceive of situations in which the
Promulgation parties might for good reason want an even number of arbitrators, despite the increased
21 June 1985 risk of deadlock. The parties might, for example, prefer a system of two arbitrators, with a
procedure for appointing an “umpire” only in the event of deadlock. (4) Or they might have
in mind or even name two or four particular persons in whom they had great confidence.
The principle of complete party autonomy is thus embodied in paragraph 1 of the Article.
Legislation number
Paragraph 2 provides the supplementary rule to be used if the parties have not agreed on
United Nations Document a number of arbitrators. The Working Group briefly considered several alternatives for this
A/40/17, Annex I provision, but there was rapid and widespread support for the choice of the number three.
P 348 The alternatives to the provision that was adopted were: (a) appointment of a number of
P 349 arbitrators equal to the number of parties, but increased by one if the number of
Bibliographic reference parties is even; (b) appointment of a sole arbitrator; and (c) appointment of a sole
arbitrator, unless a party requests and the appointing authority decides, that, given the
'UNCITRAL Model Law, circumstances of the case, there should be three arbitrators. (5) The Working Group quickly
Chapter III, Article 10 realized that the first alternative could not work, since it would result in an asymmetrical
[Number of arbitrators]', in panel where a claimant brought a claim against multiple respondents. (6) The primary
Howard M. Holtzmann and argument in favor of a sole arbitrator was that such an arbitration would cost less in time
Joseph Neuhaus , A Guide to and money than a three–arbitrator tribunal. The arguments in favor of appointing three
the UNCITRAL Model Law on arbitrators were: (i) a panel of three arbitrators was more likely to guarantee equal
International Commercial understanding of the positions of the parties; (ii) three–person arbitral tribunals were the
Arbitration: Legislative most common configuration in international commercial arbitration; and (iii) Article 5 of
History and Commentary, the UNCITRAL Arbitration Rules provides for three arbitrators (in the absence of a contrary
(© Kluwer Law International; agreement by the parties). (7) The Secretariat also noted that if the parties desired the
Kluwer Law International savings of time and costs sometimes associated with a one–person tribunal they would
1989) pp. 348 - 356 normally agree on the point. (8) As mentioned above, the choice of three arbitrators called
forth no dissent in the Commission's deliberations.

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[.…]
III. Arbitrators
[.…]
3. Number of arbitrators
67. The number of arbitrators may be thought to be one of the issues that should be fully
P 349 left to the parties' discretion and agreement. However, one might consider requiring an
P 350 uneven number as, for example, envisaged by art. 5(1), (2) of the 1966 Strasbourg
Uniform Law. (29) Yet, while such requirement could enhance the efficiency of arbitration,
it may be deemed as an overprotective legislative measure. As to the special feature,
known in some systems, of a third arbitrator acting as an “umpire” or as a “referee,” it is
suggested that the model law recognize such function if envisaged in an arbitration
agreement but not include it in any “supplementary” rules. As a “supplement,” one might
consider providing for arbitration by three arbitrators if the parties have failed to agree on
a number.
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
III. Arbitrators
[.…]
3. Number of arbitrators (report [First Secretariat Note, supra], para. 67)

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 Question
3–7: Should the model law contain any mandatory provision on the number of arbitrators?
Question
3–8: Should supplementary rules be included for those cases where parties have not
agreed on the number?
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[.…]
III. Arbitrators
[.…]
3. Number of arbitrators
Question
3–7: Should the model law contain any mandatory provision on the number of arbitrators?
Question
3–8: Should supplementary rules be included for those cases where parties have not
agreed on the number?
46. There was general agreement that the model law should not contain any mandatory
P 350 provision specifying the number of arbitrators. It was suggested that thought might be
P 351 given to expressly stating in the model law the principle of the freedom of the parties to
determine the number of the arbitrators.
47. There was also general agreement that the model law should contain a supplementary
rule for those cases where the parties had not agreed on the number, or on a mechanism
for determining that number. Several views were expressed as to which number the model
law should specify. The prevailing view was that the model law provide for three
arbitrators, which would accord with article 5 of the UNCITRAL Arbitration Rules. Another
view was that in view of the frequency of multi–party arbitrations, it would be appropriate
to allow each party to appoint one arbitrator, and for those cases where the result was an
even number of arbitrators, to provide for one additional arbitrator. Yet another view was
that the model law envisage arbitration by a sole arbitrator. In this context, a further
supplementary rule was suggested for those cases where parties had agreed on arbitration
by two arbitrators but where these two could not reach a decision. In order to avoid such a
deadlock, the model law might envisage appointment of a third arbitrator (or an umpire).
48. The Working Group noted that the question of the number of arbitrators was linked with
the question of the appointment procedure (questions 3–9 and 3–10 [appearing in the
section on Article 11, p. 366 infra]) and decided to defer its decision on which number to
include in the model law.
FIRST DRAFT A/CN.9/WG.II/WP.37 (15 JULY 1982)
III. Arbitrators
[.…]
3.–4. Number and appointment of arbitrators (25)
Article 14 [Art. 10 in the final text]
(1) Subject to the provisions of article 13(2), (*) the parties are free to determine the
number of arbitrators.
(2) Failing such determination,
Variant A: three arbitrators shall be appointed.
Variant B: the number of arbitrators shall be equal to the number of parties but increased
by one if the number of parties is even.
Variant C: a sole arbitrator shall be appointed.
P 351
P 352
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[.…]
Arbitrators
[.…]
Number and appointment of arbitrators
[.…]
Article 14 [Art. 10 in the final text]
78. The text of article 14 as considered by the Working Group was as follows:

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 [same as First Draft, supra].
79. It was noted that the opening words to this article “subject to the provisions of article
13(2)” were erroneously included.
80. It was agreed that variant B in paragraph (2) was not acceptable. It was pointed out
that if a party were to commence arbitration proceedings against ten respondents in a
single case, there would be one party–appointed arbitrator by the claimant and ten party–
appointed arbitrators by the respondents.
81. Important arguments were expressed in favour of variants A and C. Under one view,
supporting variant A, more weight should be given to the presumption that a panel of three
arbitrators is more likely to guarantee equal treatment of both parties. Under another view
the costs of arbitration make one arbitrator more favourable. Under a third view the model
law should provide for one arbitrator but that on the request of either party the Authority
provided in article 17 [Arts. 6 and 11(5) in the final text] should have the power to decide
that given the circumstances of the case there should be three arbitrators.
82. The Working Group decided to defer its decision on this point. It was suggested that in
order to aid the Working Group in making its decision an evaluation should be made of
international commercial arbitration practice, taking into account that policies in regard
to the number of arbitrators may differ in international and national arbitration.
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
D. Composition of arbitral tribunal
[.…]
Article VII [Art. 10 in the final text]
The parties are free to determine the number of arbitrators. Failing such determination,
[three arbitrators] [a sole arbitrator] shall be appointed.
P 352
P 353
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[.…]
D. Composition of arbitral tribunal
[.…]
Article VII [Art. 10 in the final text]
92. The text of article VII as considered by the Working Group was as follows:
[same as Second Draft, supra].
93. The Working Group adopted this article with the first alternative (i.e. “three
arbitrators”). It was pointed out that, in view of the parties' freedom recognized in the first
sentence, the number of arbitrators provided in the second sentence was of limited
practical relevance and merely a last resort in case of non-agreement. In particular, where
parties wanted a sole arbitrator for the sake of saving time and costs, they would normally
agree thereon.
THIRD DRAFT A/CN.9/WG.II/WP.45 (13 JUNE 1983)
D. Composition of arbitral tribunal
[.…]
Article VII [Art. 10 in the final text] (22)
(1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, the number of arbitrators shall be three.
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[.…]
Article VII [Art. 10 in the final text]
194. The text of article VII as adopted by the Working Group was as follows:
[same as Third Draft, supra].
195. The Working Group adopted this article.
P 353
P 354
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Chapter III. Composition of arbitral tribunal
Article 10. Number of arbitrators

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 (1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, the number of arbitrators shall be three.
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[.…]
Chapter III. Composition of arbitral tribunal
Article 10
27. The text of article 10 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
28. The Working Group adopted that article.
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Chapter III. Composition of arbitral tribunal
Article 10. Number of arbitrators
(1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, the number of arbitrators shall be three.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[.…]
Chapter III. Composition of arbitral tribunal
Chapter as a whole
1. Poland supports the fundamental principle of party autonomy underlying this chapter.
[.…]
P 354
P 355
Article 10. Number of arbitrators
India a suggests that, failing agreement by the parties, arbitration should be conducted by
a sole arbitrator for the sake of economy and expediency.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[.…]
Article 10. Number of arbitrators
1. The Sudan proposes, for the sake of comprehensiveness and clarity, adding the following
new paragraph to article 10:
“(3) Notwithstanding paragraph (1) of this article, where the arbitral tribunal is
constituted of more than one arbitrator, the number of arbitrators shall be
uneven.”
The proposal is meant to deal with the possibility that the parties appoint an even number
of arbitrators in their agreement.
2. ICC [International Chamber of Commerce] expresses the view that, since the parties may
agree on any number of arbitrators, provision ought to be made for the question how,
failing an agreement by the parties, the appointment should be made. The present
provisions in article 11(3) provide only for the most common cases of one or three
arbitrators. A general rule seems to be required for the appointment of an even number of
arbitrators and of an uneven number of arbitrators in excess of three. [Editors' Note: The
procedure for appointing arbitrators is addressed in Article 11 of the Model Law. See the
section on that Article, pp. 358–87 infra.]
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 10. Number of arbitrators
[.…]
1. Article 10 is the first article presenting and illustrating the “two–level system” so typical
of the model law. The first provision falls in the category of articles which recognize the
parties' freedom and give effect to their agreement, to the exclusion of any existing
national law provision on the issue. (39) The second provision falls in the category of
suppletive rules which provide those parties failing to regulate the procedure by

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 agreement with a set of rules for getting the arbitration started and proceeding to a final
settlement of the dispute. (40)
P 355
P 356
2. Paragraph (1) recognizes the parties' freedom to determine the number of arbitrators.
Thus, the choice of any number would be given effect, even in those legal systems which at
present require an uneven number. As generally stated in article 2(c) [Art. 2(d) in the final
text], the freedom of the parties is not limited to determining the issue themselves but
includes the right to authorize a third party to make that determination.
3. For those cases where the number of arbitrators has not been determined in advance or
cannot be determined in time, paragraph (2) prevents a possible delay or deadlock by
supplying the number. The number three was adopted, as in the UNCITRAL Arbitration
Rules (article 5), in view of the fact that it appears to be the most common number in
international commercial arbitration. However, arbitrations conducted by a sole arbitrator
are also common, in particular in less complex cases. It is thought that those parties who
want only one arbitrator for the sake of saving time and costs would normally agree
thereon, with an inducement to do so added by this paragraph.
SUMMARY RECORD A/CN.9/SR.312, .332
[Editors' Note: Article 10 was raised during the Commission's 2 P.M. session on 6 June 1985,
Summary Record, A/CN.9/SR.312, but no comments were made on the Article.]
[20 June 1985, 3:00 p.m., A/CN.9/SR.332]
Articles 9 and 10
28. Articles 9 and 10 were adopted without change.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 10. Number of arbitrators
98. The text of article 10 as considered by the Commission was as follows: [same as Fifth
Draft, supra].
99. The Commission adopted the article.
P 356

References
1) See Seventh Secretariat Note, A/CN.9/264, Art. 10, para. 2, p. 356 infra. Article 5 of the
Strasbourg Uniform Law also requires an uneven number of arbitrators. European
Convention Providing a Uniform Law on Arbitration, Europ. T.S. No. 56 (Strasbourg
1966); see First Secretariat Note, A/CN.9/207, para. 67 & n. 29, pp. 349–50 infra.
Requiring an uneven number of arbitrators does not entirely eliminate the potential
for deadlocked arbitrations because it may happen that there are three or more
possible results in a case and no majority can be formed for any one of them.
2) See First Secretariat Note, A/CN.9/207, para. 67, pp. 349–50 infra.
3) See First Working Group Report, A/CN.9/216, para. 46, pp. 350–51 infra; Third Working
Group Report, A/CN.9/233, para. 93, p. 353 infra.
4) See generally First Secretariat Note, A/CN.9/207, para. 67, pp. 349–50 infra; First
Working Group Report, A/CN.9/216, para. 47, p. 351 infra.
5) See First Draft, A/CN.9/WG.II/WP.37, Art. 14(2), p. 351 infra; Second Working Group
Report, A/CN.9/232, para. 81, p. 352 infra; First Working Group Report, A/CN.9/216, para.
47, p. 351 infra. The Working Group also considered an additional — not alternative —
rule to provide for appointment of an umpire in cases where a two–member arbitral
tribunal deadlocked. Id. This provision was not adopted.
6) Second Working Group Report, A/CN.9/232, para. 80, p. 352 infra.
7) Id. para. 81.
8) Seventh Secretariath Note, A/CN.9/264, Art. 10, para. 3, p. 356 infra.
29) [European Convention Providing a Uniform Law on Arbitration, Europ. T.S. No. 56] Art. 5:
“1. The arbitral tribunal shall be composed of an uneven number of arbitrators.
There may be a sole arbitrator.
2. If the arbitration agreement provides for an even number of arbitrators, an
additional arbitrator shall be appointed.”
25) Discussion and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, paras. 46–50 [paras. 46–48 appear directly above; paras. 49–50 appear in the
section on Article 11, p. 366 infra].
*) [Editors' Note: Article 13(2) of the First Draft was not included in the final text. It would
have provided that an arbitration agreement was invalid if it gave one of the parties a
predominant position with respect to the appointment of arbitrators. It appears in the
section on Article 11, p. 377 infra.]
22) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, para. 93.

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 39) Cf. [First Secretariat Note,] A/CN.9/207, para. 13 [appearing in the section of materials on
the Purposes and Procedures of the Commission, p. 1194 infra].
40) Cf. [First Secretariat Note,] A/CN.9/207, paras. 17–18 [p. 1195 infra].

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Document information
UNCITRAL Model Law, Chapter III, Article 11 [Appointment of
Publication arbitrators]
A Guide to the UNCITRAL (1) No person shall be precluded by reason of his nationality from acting as an
Model Law on International arbitrator, unless otherwise agreed by the parties.
Commercial Arbitration:
Legislative History and (2) The parties are free to agree on a procedure of appointing the arbitrator or
Commentary arbitrators, subject to the provisions of paragraphs (4) and (5) of this article.
(3) Failing such agreement,
(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator,
Organization and the two arbitrators thus appointed shall appoint the third arbitrator; if a
party fails to appoint the arbitrator within thirty days of receipt of a request to
United Nations Commission do so from the other party, or if the two arbitrators fail to agree on the third
on International Trade Law arbitrator within thirty days of their appointment, the appointment shall be
made, upon request of a party, by the court or other authority specified in
article 6;
Promulgation (b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the
21 June 1985 arbitrator, he shall be appointed, upon request of a party, by the court or other
authority specified in article 6.
(4) Where, under an appointment procedure agreed upon by the parties,
Legislation number (a) a party fails to act as required under such procedure, or
United Nations Document (b) the parties, or two arbitrators, are unable to reach an agreement expected of
A/40/17, Annex I them under such procedure, or
(c) a third party, including an institution, fails to perform any function entrusted
to it under such procedure,
Bibliographic reference any party may request the court or other authority specified in article 6 to take
'UNCITRAL Model Law, the necessary measure, unless the agreement on the appointment procedure
Chapter III, Article 11 provides other means for securing the appointment.
[Appointment of (5) A decision on a matter entrusted by paragraph (3) or (4) of this article to the court or
arbitrators]', in Howard M. other authority specified in article 6 shall be subject to no appeal. The court or other
Holtzmann and Joseph authority, in appointing an arbitrator, shall have due regard to any qualifications
Neuhaus , A Guide to the required of the arbitrator by the agreement of the parties and to such
UNCITRAL Model Law on considerations as are likely to secure the appointment of an independent and
International Commercial impartial arbitrator and, in the case of a sole or third arbitrator, shall take into
Arbitration: Legislative account as well the advisability of appointing an arbitrator of a nationality other
History and Commentary, than those of the parties.
(© Kluwer Law International;
Kluwer Law International Commentary
1989) pp. 358 - 387
P 358 Article 11 provides the procedures for the appointment of arbitrators. At the outset it
P 359 establishes an important principle concerning the nationality of arbitrators. It then
goes on to regulate the mechanics of appointment. Under this article, there are essentially
three methods to secure the appointment of an arbitrator. First, the article establishes the
basic principle that the parties may agree on a procedure for appointing arbitrators. (1)
Second, if the parties do not reach such an agreement, Article 11 provides a mechanism for
appointing either a three–person or one–person arbitral tribunal without the involvement
of the courts. Third, if all else fails — that is, if the procedure agreed on by the parties or
the procedure set forth in the Law fails to produce the necessary appointment — Article 11
directs the court (or other authority specified in Article 6 of the law (2) ) to appoint the
arbitrator or arbitrators and provides guidelines for the court to follow with respect to
independence, impartiality, and nationality.
Nationality of arbitrators. Paragraph 1 establishes the principle that no person can be
precluded by reason of nationality from serving as an arbitrator in a State that has
enacted the Model Law. This is an important factor in establishing truly international
arbitration. But even this principle must yield to the will of the parties, who are free to
agree that their arbitrators must, or must not, be of certain nationalities. Paragraph 1 thus
removes the restrictions in those national laws that prevent foreigners from being
arbitrators. (3) The liberal rule of Article 11 corresponds to that of a great many national
laws and a number of international texts, such as the European Convention on
International Commercial Arbitration, (4) and the Concluding Document of the Madrid
Conference on Security and Cooperation in Europe. (5) While adopting this principle, the
Working Group noted that States could not be prevented from altering the Model Law on
this point to reflect their particular policies. (6)
Appointment pursuant to an agreement of the parties. Paragraph 2 of Article 11 does not
state any limitations on the parties' freedom to agree on a procedure for appointing the
arbitrator or arbitrators. The provision does state that the freedom is “subject to the
provisions of paragraphs (4) and (5) of this article,” but those paragraphs only provide for
P 359 supplementary intervention by the courts in case the agreed–on procedure fails to work;

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 P 360 they do not place any express limitations on the parties. Nevertheless, in drafting
paragraph 2 it was recognized that the Model Law as a whole implied certain restrictions
on the parties' agreement regarding appointment of arbitrators. (7) The Third Working
Group Report cited as examples two articles that give rise to such restrictions: Article 12,
concerning the grounds for challenging arbitrators, and Article 34, concerning the courts'
power to set aside arbitral awards. (8) Thus, for example, if the procedure agreed on
results in an arbitral tribunal that fails to meet the standards of impartiality and
independence established by Article 12, the arbitrator would be subject to challenge.
Similarly, if an appointment procedure results in a party not receiving “proper notice of
the appointment of an arbitrator,” an award may be set aside and refused recognition or
enforcement under Articles 34(2)(a)(ii) and 36(1)(a)(ii). These are specific restrictions
contained in the Model Law that go to the effects of the appointment procedure. These
restrictions regulate the results of the selected appointment procedure, not the procedure
itself. Thus, if the arbitration agreement does not provide for “proper notice of the
appointment of an arbitrator,” the claimant presumably can protect an eventual award
from attack on this ground by giving such notice. (9)
The Working Group considered at some length adding to Article 11 an explicit limitation on
the parties' freedom to determine the procedures for selection of arbitrators. The
provision would have stated that a procedure agreed upon by the parties would be invalid
if, or to the extent that, it gave one party a “predominant position,” or, in the words of an
alternative draft, a “manifestly unfair advantage,” with regard to the appointment of
arbitrators. (10) This provision was later deleted because (1) the problem did not arise
frequently; (2) other provisions of the Law, such as Articles 12 and 34, could be used to
address the problem; and (3) the wording was regarded as “too vague” and thus could lead
to controversy, dilatory tactics, and, potentially, invalidation of “well–established and
P 360 recognized appointment practices.” (11) While the Working Group concluded that such a
P 361 provision had no place in the Model Law, and the final text adopted by the Commission
confirms that decision, the Working Group did note that its determination should not be
understood as expressing support for unfair practices. (12)
Appointment pursuant to the Model Law procedure. Paragraph 3 of Article 11 provides a
procedure for appointing arbitrators in cases where the parties have not agreed on one.
Two alternative mechanisms are provided, one for the appointment of a three–person
tribunal and the other for appointment of a sole arbitrator. The sole–arbitrator provision
would apply only if the parties have agreed on a single arbitrator under Article 10, but
have provided no procedure for selecting that person. Where the parties have agreed to
have three arbitrators, or have reached no agreement on the number of arbitrators (see
Article 10(2)), the procedure for a three–person tribunal would apply. There is an
intentional gap in the Law in the rare situation where the parties have agreed on a number
of arbitrators other than one or three but have not agreed on a method of appointing them.
(13) One– or three–person tribunals are the most common forms in international
arbitration, and the Working Group considered that it would be impractical to include
provisions for all possible forms. (14) As a result, the appointment of arbitrators in such
situations can probably be considered a matter not governed by the Model Law and
subject instead to other provisions of domestic law and to intervention by courts. (15)
The provisions for appointment of three arbitrators are similar to the procedure in Article 7
of the UNCITRAL Arbitration Rules, and provide the same time limits as that rule. With
respect to the time limits, one government noted that it might be possible to read the
provision to mean that upon expiration of the time limits, the relevant appointment could
only be made by the court or other authority specified in Article 6. (16) In other words, it
was suggested that if after thirty days a party had not appointed an arbitrator or the two
party–appointed arbitrators had not agreed on a third, the wording of paragraph 3(a)
might be read to suggest that they no longer had power to make the appointment even if
P 361 no party had requested action by the court. This was almost certainly not the intention of
P 362 the drafters and could unnecessarily stall the arbitration; a more sensible reading is
possible, by, for example, interpreting the parties' failure to seek relief from a court as an
implicit agreement to extend the time limits provided.
Appointment by court or other authority. The third method of appointing an arbitrator is
for the court or other authority specified in the law to make the appointment. This method,
set out in paragraph 4 of the article, applies whenever a party — or an appointing authority
provided for in some rules — fails to act, or agreement is not reached under either a
procedure adopted by the parties or the procedure provided by the Model Law. In
paragraph 4, the court is directed “to take the necessary measures” to secure the
appointment. The Working Group explicitly stated that these words were intended to mean
that the court should make the appointment itself and not merely order the recalcitrant
party or appointing authority to act. (17)
Paragraph 5 establishes certain criteria that the court must observe in making the
appointment. The appointment by a court or other authority specified in Article 6 is
“subject to no appeal.” This language was adopted by the Commission as a clearer term
than the word “final,” which had appeared in the Working Group's draft of the provision.
(18) The court or other authority is required to have regard for considerations likely to
secure an independent and impartial arbitrator and to take into account the advisability
of appointing a sole or third arbitrator of a nationality other than the nationalities of the

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 parties, concepts modeled on Article 6(4) of the UNCITRAL Arbitration Rules. (19)

Legislative History
SECRETARIAT NOTE ON FURTHER WORK A/CN.9/169 (11 MAY 1979)
[Editors' Note: For the full text of this document, see the section on Purposes and Procedures
of the Commission, pp. 1173–74 infra.]
P 362 6. The participants in the consultative meeting referred to earlier (*) were of the
P 363 unanimous view that it would be in the interest of international commercial arbitration
if UNCITRAL would initiate steps leading to the establishment of uniform standards of
arbitral procedure. It was considered that the preparation of a model law on arbitration
would be the most appropriate way to achieve the desired uniformity. […]
7. The major reason for this proposal is the fact that most national laws on arbitral
procedure were drafted to meet the needs of domestic arbitration and that many of these
laws are in need of revision. […]
8. Yet another reason is the divergence existing between frequently used rules and
national laws; this is the area of concern expressed by AALCC in its recommendations
[referred to in para. 1 of this document]. For example, […] [s]ome national laws […] provide
for judicial control over the composition of the tribunal and sometimes even over the
application of substantive law. Other laws establish certain nationality requirements for
the arbitrators […].
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
A. Concerns and principles of a model law on international commercial arbitration
I. General concerns and problems
9. The ultimate goal of a model law would be to facilitate international commercial
arbitration and to ensure its proper functioning and recognition. Its practical value would,
in particular, depend on the extent to which it provides answers to the manifold problems
and difficulties encountered in practice. Thus, in preparing the model law an attempt
should be made to meet the concerns which have repeatedly been expressed in recent
years, sometimes even labeled as “defects” or “pitfalls” in international commercial
arbitration.
10. A major complaint in this respect is that the expectations of parties as expressed in
their agreements on arbitration procedure are often frustrated by conflicting mandatory
provisions of the applicable law. To give only a few examples, such provisions may relate
to, and be deemed to unduly restrict, […] the selection and appointment of arbitrators, […].
[.…]
II. General principles and purposes
[.…]
23. In order to facilitate the smooth operation of international commercial arbitration, a
further drafting principle would be to strive for a set of rules which would be as
comprehensive and complete as possible. This would meet the above concern (para. 13
P 363 [appearing in the section of Materials on the Commission's Purposes and Procedures, p. 1194
P 364 infra]) that lack of a provision on a certain point may create uncertainty and
controversy. Completeness would also extend to matters possibly regulated in other
branches of the law since their inclusion into the model law would allow to adopt uniform
answers adapted to the international type of arbitration. Thus, one might even consider to
include at least some of the issues not included in the otherwise fairly extensive 1966
Strasbourg Uniform Law on Arbitration [European Convention Providing a Uniform Law on
Arbitration, Europ. T.S. No. 56]: […] the qualifications of an arbitrator […]. [Editors' Note: The
full text of this paragraph appears at pp. 1196–97 infra.]
[.…]
B. Identification of issues possibly to be dealt with in the Model Law
[.…]
III. Arbitrators
1. Qualifications
64. It seems doubtful whether the model law should contain any provisions on who may act
as an arbitrator. It would be difficult to list certain required qualifications except very
general ones which would be of minimal practical value. It would also be difficult to agree
on whether any specific category of persons should be ineligible (e.g. judges); one should
be able to agree, though, that foreigners should not be excluded. (26) If any rule on
eligibility or qualifications were envisaged at all, it should indicate to what extent any
restriction expressed therein would prevail over any conflicting provision in the individual
arbitration agreement or the applicable standard rules of arbitration institutions or trade
associations.
[.…]

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 4. Appointment of arbitrators (and replacement)
68. The model law should guarantee the parties' freedom to agree on the appointment
procedure, provided that equality is ensured (cf. above, para. 43 [sic — para. 44 is intended,
appearing in the section on Art. 7, p. 270 supra]). This would include the common system of
party–arbitration, under which each party is to appoint one arbitrator and these two
party–appointees then appoint the third arbitrator.
69. One may also consider establishing in “supplementary rules” a “reserve” mechanism for
those cases where parties have not agreed on the appointment procedure, or where a
party fails to appoint his arbitrator or where two arbitrators fail to appoint the third if so
required under the agreed scheme. Here, one may discuss to what extent and under what
conditions resort to courts may be had in such “defective” cases. In addition, some
provisions may be in place concerning the reasons and procedures for replacement of an
arbitrator.
P 364
P 365
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
III. Arbitrators
1. Qualifications (report [First Secretariat Note, supra], para. 64)
Question
3–1: Should the model law expressly state that foreign nationals shall not be precluded
from acting as arbitrators (cf., e.g., art. 2 of the 1966 Strasbourg Convention, report,
para. 64)?
Question
3–2: Are the qualifications required of arbitrators an appropriate matter to be dealt with
in the model law?
[.…]
4. Appointment of arbitrators (and replacement)
24. As suggested in the report (paras. 68–69), the model law should guarantee the parties'
freedom to agree on the appointment procedure provided that equality is ensured (see
report, para. 44, and above, question 2–4 [appearing in the section on Art. 7, pp. 270 & 274
infra]). It may also provide supplementary rules for cases where parties have not, or not in
all details, determined the appointment procedure.
Question
3–9: Should the parties be free to determine the appointment procedure, provided that
equality is ensured?
Question
3–10: Should supplementary rules be adopted for cases where the appointment procedure,
or a certain feature thereof, has not been agreed upon by the parties?
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[.…]
III. Arbitrators
1. Qualifications
Question 3–1: Should the model law expressly state that foreign nationals shall not be
precluded from acting as arbitrators (cf., e.g., art. 2 of the 1966 Strasbourg Convention,
report, para. 64)?
41. There was general agreement that parties should be free to choose arbitrators of any
nationality. Different views were expressed as to how best to achieve the goal that foreign
nationals are not precluded from acting as arbitrators. Under one view, the model law
should state the above fundamental principle in a positive form. Under another view,
silence could achieve the same result. It was agreed that the issue should be decided at a
later stage after the Secretariat had prepared a draft text.
P 365
P 366
Question 3–2: Are the qualifications required of arbitrators an appropriate matter to be
dealt with in the model law?
42. The Working Group was agreed that it was extremely difficult to deal in the model law
with the varied qualifications required of arbitrators. Accordingly, the prevailing view was
that the model law should not deal at all with the question of qualifications. However,
under another view it was desirable to incorpoate a general formula, as, for example,
contained in article 9 of the UNCITRAL Arbitration Rule (impartiality and independence). It
was observed in this connexion that this question was linked to the grounds on which an
arbitrator may be challenged. The Working Group requested the Secretariat to prepare a
study on these questions, and deferred a decision pending the submission of this study.

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 [.…]
4. Appointment of arbitrators (and replacement)
Question
3–9: Should the parties be free to determine the appointment procedure, provided that
equality is ensured?
Question
3–10: Should supplementary rules be adopted for cases where the appointment procedure,
or a certain feature thereof, has not been agreed upon by the parties?
49. There was general agreement that the parties should be free to determine the
procedure for appointing the arbitrator(s). Different views were expressed as to whether a
provision in the model law recognizing such freedom of the parties should contain a
restriction such as “provided that equality is ensured.” The prevailing view was that the
principle of equality of the parties need not be stated in such a provision. This was in
accordance with the position which the Working Group had taken when discussing possible
grounds for invalidity of an arbitration agreement, in particular the question whether an
arbitration agreement which gave one party a privileged position with regard to the
appointment of the arbitrators would be invalid (question 2–4 [appearing in the section on
Art. 7, p. 276 supra]). Under another view, it was desirable to express the principle of
equality of the parties, despite its generality, in the model law in order to prevent a
stronger party from abusing his position.
50. The Working Group was agreed that the model law should set forth supplementary rules
for those cases where the parties had not agreed upon the appointment procedure.
However, different views were expressed as to how detailed such supplementary
provisions should be. Under one view, it sufficed to include a provision which merely
stated that the appointment was to be made by an appointing authority (which would be
designated by each State when adopting the model law). Under another view, it was
desirable to incorporate a more elaborate system, for example, as embodied in articles 6
to 8 of the UNCITRAL Arbitration Rules. An additional proposal was to include a rule on the
replacement of an arbitrator (as for example, article 13 of the UNCITRAL Arbitration Rules).
P 366
P 367
FIRST DRAFT A/CN.9/WG.II/WP.37 (15 JULY 1982)
III. Arbitrators
[.…]
3.–4. Number and appointment of arbitrators (25)
Article 13 [Art. 11 in the final text]
(1) In arbitration governed by this Law, nationals of any State may be appointed as
arbitrators.
(2) An arbitration agreement is invalid [if] [to the extent that] (26) it accords one of the
parties a predominant position with regard to the appointment of arbitrators.
[.…]
Article 15 [Art. 11 in the final text]
(1) Subject to the provisions of article 13(2), the parties are free to agree on the procedure
of appointing the arbitrator or arbitrators.
(2) If a party does not fulfill his obligations under an agreed appointment procedure, the
other party may request the Authority specified in article 17 [Art. 6 in the final text] to take
the required measure instead. (27)
Article 16 [Art. 11 in the final text] (28)
(1) If the parties have not agreed on the appointment procedure,
(a) in an arbitration with a sole arbitrator, the arbitrator shall be appointed by the
Authority specified in article 17 [Art. 6 in the final text];
(b) in an arbitration with three arbitrators, each party shall appoint one arbitrator and
the two arbitrators thus appointed shall appoint the third arbitrator;
[(c) in an arbitration with a number of arbitrators that is equal to the number of the
parties or a multiple thereof, each party shall appoint one arbitrator or the
respective multiple thereof;]
[(d) in a multi–party arbitration with one arbitrator more than there are parties, each
party shall appoint one arbitrator and the additional arbitrator shall be appointed
by the Authority specified in article 17.]
P 367
P 368
(2) If a party, in an arbitration referred to in paragraph (1)(b), [(c) or (d)], fails to make the
required appointment within [30] days after having been so requested by the other party,
or if, in an arbitration referred to in paragraph (1)(b), the two arbitrators fail to appoint the
third arbitrator within [30] days after their appointment, the appointment shall be made

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 by the Authority specified in article 17.
Article 17 [Arts. 6 & 11 in the final text]
(1) The Authority, referred to in articles 9(2)(c), 10, 11(b), 15(2), 16(1)(a), (d), (2) [Arts. 11, 13 and
14 in the final text] and …, shall be the … (e.g.,, specific chamber of a given court, president
of a specified court, to be determined by each State when enacting the model law). (29)
(2) The Authority shall act upon request by any of the parties or by the arbitral tribunal,
unless otherwise provided for in a provision of this Law.
(3) The Authority, in appointing an arbitrator, shall have regard to such considerations as
are likely to secure the appointment of an independent and impartial arbitrator and, in
the case of a sole or an additional arbitrator under article 16(1)(a), (b) [or (d)], shall take
into account as well the advisability of appointing an arbitrator of a nationality other than
the nationalities of the parties. (30)
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[.…]
Arbitrators
[.…]
Number and appointment of arbitrators
Article 13 [Art. 11 in the final text]
73. The text of article 13 as considered by the Working Group was as follows:
[same as First Draft, supra].
P 368
P 369
74. The Working Group supported the policy underlying paragraph (1) of article 13. It was
also agreed that such a rule should be addressed to the national legislators, who in some
cases have restricted the freedom of the parties in this respect, and not to the parties or to
the party-appointed arbitrators. One possible way to achieve that was to add to paragraph
(1) of this article the words “subject to the arbitration agreement.” It was also suggested
that this point could be made clearer by a provision that no person should be disqualified
by law from being appointed as an arbitrator on the ground of his nationality.
75. As to paragraph (2) under one view it dealt with an exceptional situation that did not
need to be regulated by the model law. Under the prevailing view, however, the model law
should offer protection to a party when the other party had a predominant position with
regard to the appointment of arbitrators.
76. Arguments were expressed in favour of both alternative wordings in square brackets
and no decision was reached. Under one view the arbitration agreement giving a
predominant position to one party should be invalid. In support of this view it was stated
that an arbitration agreement contrary to the fundamental principle of equality of parties
should not be enforceable. Under another view only the appointing procedure giving a
predominant position to one party should be inoperative while the basic agreement of the
parties to resort to arbitration should be respected.
77. In discussing this article a general suggestion was made that it would be useful to make
it clear in the model law (possibly in a separate article) from which provisions of the model
law the parties cannot derogate. [Editors' Note: Such an article was drafted, but ultimately
was not included in the final text of the Model Law. See the section on Matters Not Addressed
in the Final Text, pp. 1150–53 infra.]
[.…]
Article 15 [Art. 11 in the final text]
83. The text of article 15 as considered by the Working Group was as follows:
[same as First Draft, supra].
84. The objectives of this article were supported by the Working Group. The view was
expressed that paragraph (2) should be elaborated to make it clear that the Authority
specified in article 17 [Art. 6 in the final text] is the last resort after all other attempts for
appointment have failed. In this respect it was suggested that a recourse to the Authority
specified in article 17 should be available when the appointing authority under the
arbitration agreement fails to appoint the arbitrator but that the diligent party must first
apply to the appointing authority before it can apply to the Authority specified in article
17.
85. As an alternative, it was suggested that when a party does not fulfill his obligations
P 369 under the agreed appointment procedure, the arbitrator appointed by the diligent party
P 370 should act as a sole arbitrator. In response it was stated that such a result would be too
harsh and could work well only in a legal system in which the courts exercised a higher
level of supervision than was provided for in these draft articles.

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 Article 16 [Art. 11 in the final text]
86. The text of article 16 as considered by the Working Group was as follows:
[same as First Draft, supra].
87. There was general agreement that subparagraphs (c) and (d) of paragraph (1) could be
deleted. It was suggested that a provision on multiparty arbitration and on agreements for
more than three arbitrators should be included in subparagraph (b).
88. There was general agreement that the article should be redrafted to make it clear that
the parties should first try to reach an agreement on the appointment procedure and that
the provisions of this article should come to their aid only if the parties were not able to
agree.
Article 17 [Arts. 6 & 11 in the final text]
89. The text of article 17 as considered by the Working Group was as follows:
[same as First Draft, supra].
[Editors' Note: Paragraphs 90–96 appear in the section on Article 6, pp. 243–44 supra.]
97. In respect of paragraph (2) of this article it was suggested that individual arbitrators
could apply to the Authority in cases in which not all the members of the arbitral tribunal
were appointed and therefore the arbitral tribunal could not be constituted. It was also
suggested that arbitrators should be authorized to apply to the Authority only for
appointment of other arbitrators and not in other cases in which the parties could apply to
the Authority.
98. It was suggested that it would be useful to authorize the Authority to consult an arbitral
institution in the fulfillment of its tasks. In response it was observed that the Authority was
free to consult institutions of its choice and that a special provision to this effect was
unnecessary.
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
C. Arbitration and the courts
[.…]
Article V [Art. 6 in the final text]
P 370 (1) The special Court entrusted by this Law with functions of arbitration assistance and
P 371 control [under articles VIII (2), (3), X(2)/(3), XI(2), XIII(3), XIV, XXV, XXVI … [Arts. 11, 13, 14,
16, 17 and 35 in the final text] shall be the … (blanks to be filled by each State when
enacting the model law). (9)
(2) Unless otherwise provided in this Law,
(a) this Court shall act upon request by any party or the arbitral tribunal; (10) and
(b) the decisions of this Court shall be final. (11)
D. Composition of arbitral tribunal
Article VI [Art, 11 in the final text]
(1) No person shall be by reason of his nationality precluded from acting as arbitrator,
unless otherwise agreed by the parties.
(2) An arbitration agreement is invalid [if] [to the extent that] it accords one of the parties
a [predominant position] [manifestly unfair advantage] with regard to the appointment of
arbitrators.
[.…]
Article VIII [Art. 11 in the final text]
(1) Subject to the provisions of article VI(2), the parties are free to agree on a procedure of
appointing the arbitrator or arbitrators.
(2) Failing such agreement,
(a) if, in an arbitration with a sole arbitrator, the parties are unable to agree on the
arbitrator, he shall be appointed by the Court specified in article V [Art. 6 in the final
text];
(b) in an arbitration with three arbitrators, each party shall appoint one arbitrator and
the two arbitrators thus appointed shall appoint the third arbitrator.
(3) Where [the composition of an arbitral tribunal becomes unduly delayed because] the
parties, or two arbitrators, are unable to reach agreement or where one of the parties, or
any designated appointing authority, fails to act as required under an agreed appointment
procedure or under this Law, the Court specified in article V [Art. 6 in the final text] may be
requested [by any party or arbitrator] to take the necessary measure instead.
P 371
P 372 (4) The Court, in appointing an arbitrator, shall have regard to such considerations as
are likely to secure the appointment of an independent and impartial arbitrator and, in
the case of a sole or a third arbitrator, shall take into account as well the advisability of

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 appointing an arbitrator of a nationality other than the nationalities of the parties.
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[.…]
C. Arbitration and the courts
[.…]
Article V [Art. 6 in the final text]
82. The text of Article V as considered by the Working Group was as follows:
[same as Second Draft, supra]
[Editors' Note: Paragraph 83 appears in the section on Article 6, p. 245 supra.]
Paragraph (2)
84. Divergent views were expressed as to the appropriateness of a provision along the lines
of paragraph (2). Under one view, the provision was useful in that it regulated some basic
features of the procedure to be followed by the Court, with the possibility of making
exceptions thereto in the model law itself. In support of subparagraph (b), it was pointed
out that it would serve the prupose of expediting the proceedings which was of special
importance in international commercial arbitration.
85. Under the prevailing view, however, the provision should not be retained. It was
pointed out that paragraph (2), in particular its subparagraph (b), infringed upon
fundamental concepts and rules of court procedure. Nevertheless, its procedural features
(right to request and finality of decision) might be included in individual provisions of the
model law entrusting the Court with certain functions.
86. The Working Group, after deliberation, decided not to retain paragraph (2) and to
consider settling the procedural questions in the context of the individual provisions
referring to the Court specified in article V.
D. Composition of arbitral tribunal
Article VI [Art. 11 in the final text]
87. The text of article VI as considered by the Working Group was as follows:
[same as Second Draft, supra].
P 372
P 373
Paragraph (1)
88. The Working Group decided to retain this provision.
Paragraph (2)
89. Divergent views were expressed as to the appropriateness of a provision along the lines
of paragraph (2). Under one view, such a rule was useful in that it served the purposes of
equality and fairness, although the need for such a rule in international commercial
arbitration may be limited to few instances. The proponents of this view expressed a
preference for the second of either set of alternatives (i.e., “to the extent that” and
“manifestly unfair advantage”).
90. The prevailing view, however, was to delete paragraph (2) since
(a) there was no real need for such a rule in view of the fact that the few instances aimed
at could appropriately be dealt with by other provisions of the model law (e.g., on
challenge of arbitrator or setting aside of award);
(b) the wording was too vague and could thus lead to controversy or dilatory tactics and,
above all, to a misinterpretation which could endanger well– established and
recognized appointment practices; (c) the legal sanction, in particular the idea of
partial invalidity, was not sufficiently clear.
91. The Working Group, after deliberation, decided to delete paragraph (2). That decision,
however, should not be understood as condoning practices where one party had a clearly
greater influence on the appointment without good reasons.
[.…]
Article VIII [Art. 11 in the final text]
94. The text of article VIII as considered by the Working Group was as follows:
[same as Second Draft, supra].
Paragraph (1)
95. The Working Group noted that, pursuant to its decision on article VI(2) (see para. 91
above), the opening words “Subject to the provisions of article VI(2)” were obsolete. Subject
to this deletion, the text of paragraph (1) was adopted.

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 Paragraph (2)
96. The Working Group adopted this paragraph. A suggestion was made to reverse the order
of sub–paragraphs (a) and (b).
Paragraph (3)
97. It was noted that paragraph (3) was not sufficiently clear because it attempted to cover
too many different fact situations. The first distinction to be drawn was between
appointment procedures agreed upon by the parties and those procedures provided in the
model law; it was submitted that in that second category the need for court assistance was
P 373 greater than in the first one. Another distinction to be made related to the person or
P 374 institution that failed to act (i.e. a party, the parties, two arbitrators, or an appointing
authority).
98. The Working Group was agreed that the words “becomes unduly delayed” were too
vague and that more definite time–periods should be set. It was suggested, for example, to
fix a time–period of, for example, thirty days or, as between two parties or arbitrators, to
require a notice in which a time–period for action would be fixed.
99. The Working Group requested the Secretariat to redraft paragraph (3) in the light of the
views expressed in the Working Group.
Paragraph (4)
100. While some concern was expressed about giving a court instructions of the type set
forth in paragraph (4), the Working Group decided to retain this provision. A suggestion was
made to add to the criteria mentioned in that provision other important features such as
competence, qualification, experience.
THIRD DRAFT A/CN.9/WG.II/WP.45 (13 JUNE 1983)
C. Arbitration and the courts
[.…]
Article V [Art. 6 in the final text] (18)
[Editors' Note: For the text of Article V, see the section on Article 6, pp. 245–46 supra.]
D. Composition of arbitral tribunal
Article VI [Art. 11 in the final text] (20)
No person shall be by reason of his nationality precluded from acting as an arbitrator,
unless otherwise agreed by the parties. (21)
[.…]
Article VIII [Art. 11 in the final text] (23)
(1) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators.
P 374
P 375
(2) Failing such agreement,
(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and
the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails
to appoint the arbitrator within 30 days after having been requested to do so [by the
other party], or if the two arbitrators fail to agree on the third arbitrator within 30
days from their appointment, the appointment shall be made, [upon request of a
party,] by the Court specified in article V [Art. 6 in the final text];
(b) if in an arbitration with a sole arbitrator, the parties [are unable to agree] [do not
within 40 days after the request for arbitration agree] on the arbitrator, he shall be
appointed by the Court specified in article V.
(3) Where, under an appointment procedure agreed upon by the parties,
(a) a party fails to act as required under such procedure; or
(b) the parties, or two arbitrators, are unable to reach an agreement expected from them
under such procedure; or
(c) an appointing authority fails to perform any function entrusted to it under such
procedure,
any party may request the Court specified in article V to take the necessary measure
instead, unless the agreement on the appointment procedure, [in particular by reference
to arbitration rules,] provides [another procedure for meeting such contingency] [other
means for securing the appointment.]
[(3 bis) Any decision entrusted by paragraphs (2) and (3) to the Court specified in article V
shall be final.]
(4) This Court, in appointing an arbitrator, shall have due regard [to any qualifications
required of the arbitrator by agreement of the parties and] to such considerations as are
likely to secure the appointment of an independent and impartial arbitrator and, in the
case of a sole or third arbitrator, shall take into account as well the advisability of

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 appointing [an arbitrator of a nationality other than the nationalities of the parties] [the
national of a State where neither of the parties has his relevant place of business as
referred to in article I(2) [Art. 1(3) (a) in the final text]].
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[.…]
Article VI [Art. 11 in the final text]
192. The text of article VI as considered by the Working Group was as follows:
[same as Third Draft, supra].
P 375
P 376
193. Some support was expressed for the deletion of this article because it would be
difficult to implement this provision in States where nationals of certain States were
precluded from serving as arbitrators. However, after noting that the model law, not being
a convention, would not exclude the possibility for a State to reflect its particular policies
in national legislation, the Working Group agreed to adopt this article, subject to the
addition of the words “or citizenship” after the word “nationality.”
[.…]
Article VIII [Art.11 in the final text]
196. The text of article VIII as considered by the Working Group was as follows:
[same as Third Draft, supra].
Paragraph (1)
197. The Working Group adopted this paragraph.
Paragraph (2)
198. There was some support for replacing the fixed time–periods by more flexible wording
such as “within reasonable time.” The prevailing view, however, was to retain the fixed
time–periods for the sake of certainty. The Working Group adopted sub–paragraph (a)
including the words placed between the two sets of square brackets. The Working Group
was agreed that the words placed between the last square brackets should also be
inserted in sub–paragraph (b). While some support was expressed for the wording in the
second brackets of sub–paragraph (b), though with a time– period of 30 days for the sake of
harmony with sub–paragraph (a), the prevailing view was to adopt the wording between
the first square brackets (“are unable to agree”).
Paragraph (3)
199. The Working Group adopted this paragraph subject to the deletion of the text placed
between the first two set of square brackets.
Paragraph (3 bis)
200. The Working Group adopted this paragraph.
Paragraph (4)
201. The Working Group adopted this paragraph subject to the deletion of the wording
between the last square brackets and to adjustment in accordance with its decision on
article VI (see above, para. 193). A suggestion was made to replace the words “shall take
into account” by the words “may take into account.”
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 11. Appointment of arbitrators
(1) No person shall be by reason of his nationality or citizenship precluded from acting as
an arbitrator, unless otherwise agreed by the parties.
P 376
P 377
(2) The parties are free to agree to a procedure of appointing the arbitrator or arbitrators,
subject to the provisions of paragraphs (4) and (5) of this article.
(3) Failing such agreement,
(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and
the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails
to appoint the arbitrator within thirty days after having been requested to do so by
the other party, or if the two arbitrators fail to agree on the third arbitrator within
thirty days from their appointment, the appointment shall be made, upon request of
a party, by the Court specified in article 6;
(b) if, in an arbitration with a sole arbitrator, the parties are unable to agree on the
arbitrator, he shall be appointed, upon request of a party, by the Court specified in
article 6.

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 (4) Where, under an appointment procedure agreed upon by the parties,
(a) a party fails to act as required under such procedure; or
(b) the parties, or two arbitrators, are unable to reach an agreement expected from them
under such procedure; or
(c) an appointing authority fails to perform any function entrusted to it under such
procedure,
any party may request the Court specified in article 6 to take the necessary measure
instead, unless the agreement on the appointment procedure provides other means for
securing the appointment.
(5) A decision on a matter entrusted by paragraph (3) or (4) to the Court specified in article
6 shall be final. The Court, in appointing an arbitrator, shall have due regard to any
qualifications required of the arbitrator by agreement of the parties and to such
considerations as are likely to secure the appointment of an independent and impartial
arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the
advisability of appointing an arbitrator of a nationality or citizenship other than those of
the parties.
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
Article 11
29. The text of article 11 as considered by the Working Group was as follows: [Editors' Note:
The text considered by the Working Group was the same as the Fourth Draft, supra, except
that a Drafting Group had removed the words “or citizenship” from paragraphs 1 and 5, and
had reordered the wording of paragraph 1 slightly such that it read as it does in the final text.
See paragraph 31 of this report, infra.]
30. The Working Group adopted that article.
P 377
P 378
31. The Working Group noted that the words “or citizenship” following the word “nationality”
in paragraphs (1) and (5) had been deleted by the Drafting Group. While there was some
support for retaining the words “or citizenship,” the prevailing view was to delete them
since in many legal systems only the term “nationality” was used. However, the Working
Group was agreed that, in view of the purpose of this provision to achieve non–
discrimination, the term “nationality” should be given a wide interpretation so as to
embrace citizenship, where such term was used.
32. As regards the function entrusted to the Court by paragraph (4) of that article, the
Working Group was agreed that the words “to take the necessary measure” meant that the
Court had to take the necessary measure itself (that is, to make the appointment) and not,
for example, order an appointing authority, which failed to do so, to perform the function
entrusted to that authority by the parties.
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 11. Appointment of arbitrators
(1) No person shall be precluded by reason of his nationality from acting as an arbitrator,
unless otherwise agreed by the parties.
(2) The parties are free to agree on a procedure of appointing the arbitrator or arbitrators,
subject to the provisions of paragraphs (4) and (5) of this article.
(3) Failing such agreement,
(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and
the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails
to appoint the arbitrator within thirty days after having been requested to do so by
the other party, or if the two arbitrators fail to agree on the third arbitrator within
thirty days of their appointment, the appointment shall be made, upon request of a
party, by the Court specified in article 6;
(b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the
arbitrator, he shall be appointed, upon request of a party, by the Court specified in
article 6.
(4) Where, under an appointment procedure agreed upon by the parties,
(a) a party fails to act as rquired under such procedure; or
(b) the parties, or two arbitrators, are unable to reach an agreement expected of them
under such procedure; or
(c) an appointing authority fails to perform any function entrusted to it under such
procedure,
any party may request the Court specified in article 6 to take the necessary measure,
unless the agreement on the appointment procedure provides other means for securing
the appointment.
P 378

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 P 378
P 379
(5) A decision on a matter entrusted by paragraph (3) or (4) of this article to the Court
specified in article 6 shall be final. The Court, in appointing an arbitrator, shall have due
regard to any qualifications required of the arbitrator by the agreement of the parties and
to such considerations as are likely to secure the appointment of an independent and
impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as
well the advisability of appointing an arbitrator of a nationality other than those of the
parties.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[.…]
Chapter III. Composition of arbitral tribunal
Chapter as a whole
[.…]
2. The German Democratic Republic is of the view that the periods of time provided in
articles 11 and 13 are too short and should be extended.
[.…]
Article 11. Appointment of arbitrators
Article as a whole
1. Finland suggests adding to the provisions on the appointment of arbitrators the following
provision:
“If a party fails in his duty to appoint an arbitrator, and the other party prefers
to bring the dispute before a court of law rather than insist on arbitration, then
the arbitration agreement shall be no bar to the jurisdiction of the court over
the dispute.”
Finland proposes to further consider whether any other breach of the agreement by a
party, for example a failure to pay his share of the advance to the arbitrators, should have
the same effect.
Article 11, paragraph (3)
2. Japan, noting that the parties are free to determine the number of arbitrators (article
10(1)) and that paragraph (3) of this article provides only for the cases where three
arbitrators or a sole arbitrator are to be appointed, proposes to deal in a more general
way with the appoinment of arbitrators when the parties fail to appoint them.
3. Qatar notes that in the model law there is no reference to the presidency of the arbitral
tribunal if it is composed of three arbitrators and that, although article 29 provides that a
presiding arbitrator may be authorized to decide questions of procedure, this provision is
P 379 not preceded by any definition of the president of the arbitral tribunal or any
P 380 identification of the arbitrator entrusted with this responsibility. Qatar proposes to
provide in article 11(3) of the model law, in the light of article 7(1) of the UNCITRAL
Arbitration Rules, that the arbitral tribunal is to be presided over by the third arbitrator
chosen by the other two arbitrators each of whom is appointed by a party to the dispute.
4. The Soviet Union suggests, for reasons of certainty, replacing in paragraph (3)(a) of this
article the words “within thirty days after having been requested to do so by the other
party” by the words “within thirty days of receipt of such request from the other party.”
Article 11, paragraph (5)
5. Regarding paragraph (5) providing that the decision of the Court shall be final, Norway
has no objection to it as far as it concerns the purely discretionary aspect of the decision.
However, the model law ought not to preclude a party from challenging the decision on the
lower court's procedural handling of the case or the lower court's interpretation and
application of the law; since a different solution would be unacceptable, atleast to
Norwegian law, the question is raised whether the word “final” is meant to preclude even
such kind of challenge.
[.…]
C. Comments on additional points
1. Suggestions to add certain definitions
[.…]
Appointing authority
6. The German Democratic Republic observes that the term “appointing authority” is used
in article 11 but not defined in the model law. It suggests that a definition of that term be
included in article 2

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 A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[.…]
Article 11. Appointment of arbitrators
Article 11, paragraph (1)
1. The Sudan proposes replacing in paragraph (1) the clause “unless otherwise agreed by
the parties” by the clause “however, if a sole arbitrator is to be appointed, such arbitrator
shall be of a nationality other than the nationality of the parties.” This provides more
clarity and satisfaction.
Article 11, paragraph (3)
2. In the view of Canada, paragraph (3) should provide specifically that an arbitrator may
P 380 be appointed, even after the expiry of the period of time, right up to the time a request is
P 381 made to the Court. As presently drafted, paragraph (3) implies that, after the expiry of
the specified period of time, a party cannot appoint an arbitrator, or the two arbitrators
that have been appointed cannot appoint a third arbitrator. It is also asked whether, in
practice, 30 days is a long enough period of time to allow the two arbitrators, who have
been appointed, to appoint the third one.
3. ICC [International Chamber of Commerce] notes that the model law does not require
expressly that the arbitrators shall be independent of the parties and impartial. While it is
true that article 11(5) provides that a Court, when asked to intervene, shall secure the
appointment of an independent and impartial arbitrator, nothing in the model law
excludes the possibility that the parties themselves appoint somebody who is not
independent or impartial, for example, their counsel. Although, according to article 12, an
arbitrator should disclose circumstances that may cast doubt on his impartiality and
independence, an express provision that all arbitrator must be impartial and independent
is preferable. (*)
Article 11. Appointment of arbitrators
[.…]
No legislative discrimination of foreign nationals, paragraph (1)
1. Some national laws preclude foreigners from acting as arbitrators even in international
cases. Paragraph (1) is designed to overcome such national bias on the part of the
legislator. (41) As indicated by the words “unless otherwise agreed by the parties,” it is not
intended to preclude parties (or trade associations or arbitral institutions) from specifying
that nationals of certain States may, or may not, be appointed as arbitrators.
Freedom to agree on appointment procedure, paragraph (2)
2. Paragraph (2) recognizes the freedom of the parties to agree on a procedure of
appointing the arbitrator or arbitrators. This freedom to agree is to be given a wide
interpretation in accordance with the general provisions of article 2(c) and (d).
3. The scope of the parties' freedom is, however, somewhat limited by the mandatory
P 381 provisions in paragraphs (4) and (5). Parties may not exclude, in their agreement on the
P 382 appointment, the right of a party under paragraph (4) to resort to the Court specified in
article 6 in any of the situations described in that paragraph, or exclude the finality of the
Court's decision provided for in paragraph (5). (42)
Court assistance in agreed appointment procedure, paragraph (4)
4. Paragraph (4) describes three possible defects in typical appointment procedures and
provides a cure thereof by allowing any party to request the Court specified in article 6 to
take the necessary measure instead (i.e. instead of the “failing” party, persons or authority
referred to in sub– paragraphs (a), (b) or (c)). Assistance by this Court is provided in order
to avoid any deadlock or undue delay in the appointment process. Such assistance is not
needed if the parties themselves have, in their agreement on the appointment procedure,
provided other means for securing the appointment. It may be noted, however, that the
mere designation of an appointing authority is not fully sufficient in this regard since it
would not meet the contingency described in sub–paragraph (c).
Suppletive rules on appointment procedure, paragraph (3)
5. Paragraph (3) supplies those parties that have not agreed on a procedure for the
appointment with a system for appointing either three arbitrators or one arbitrator, these
numbers being the two most common ones in international cases. Sub–paragraph (a) lays
down the rules for the appointment of three arbitrators, whether this number has been
agreed upon by the parties under article 10(1) or whether it follows from article 10(2). Sub–
paragraph (b) lays down the method of appointing a sole arbitrator for those cases where
the parties have made no provision for the appointment, except to agree on the number
(i.e., one).
6. In both cases a last resort to the Court specified in article 6 is envisaged in order to
avoid any deadlock in the appointment process. There is a difference, however, as regards
the time element. While sub–paragraph (a) sets twice a time–limit (of thirty days) for the

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 sake of certainty, sub–paragraph (b) does not fix a time–limit but merely refers to the
parties' inability to agree. This general wording seems acceptable in this latter case since
the persons expected to agree are the parties and their inability to do so becomes
apparent from the request to the Court by one of them.
Rules and guidelines for decision of Court, paragraph (5)
7. According to paragraph (5), the decision of the Court shall be final whether it relates to a
matter entrusted to it by the suppletive rules of paragraph (3) or by the mandatory
provision of paragraph (4) in cases where an agreed appointment procedure fails to secure
the appointment. Finality seems appropriate in view of the administrative nature of the
function and essential in view of the need to constitute the arbitral tribunal as soon as
possible.
P 382 8. In any case of appointment, the Court shall have due regard to any qualifications
P 383 required by the agreement of the parties and to such considerations as are likely to
secure the appointment of an independent and impartial arbitrator. It is submitted that
these criteria are binding since they follow from the arbitration agreement or, as regards
impartiality and independence, from article 12, while the special guideline for the
appointment of a sole or third arbitrator could be invalidated by a contrary stipulation of
the parties.
SUMMARY RECORD A/CN.9/SR.312–.313, .319, .332
[6 June 1985, 2:00 p.m., A/CN.9/SR.312]
Article 11. Appointment of arbitrators
Article 11(1)
53. The CHAIRMAN [Mr. LOEWE (Austria)] noted that there were no comments on article 11(1).
Article 11(2)
54. Mr. HJERNER (Observer, International Chamber of Commerce) asked whether it would
not be desirable to state expressly in article 11(2) that all arbitrators should be impartial
and independent, in view of the vast differences in practice.
55. The CHAIRMAN pointed out that lack of impartiality or independence were grounds for
challenge and for setting aside the award.
56. Mr. SEKHON (India) stated that it would be better to start the paragraph with the
phrase “Subject to the provisions … of this article.”
Article 11(3)
57. Mr. LEBEDEV (Union of Soviet Socialist Republics) drew attention to the written
amendment which his delegation had submitted to article 11(3)(a) ([Sixth Secretariat Note
(Government Comments)] A/CN.9/263, [Art. 11, para. 4]), namely, to replace the words
“within thirty days of having been requested to do so by the other party” by the words
“within thirty days of receipt of such request from the other party.”
58. The CHAIRMAN said that the Secretariat would take the appropriate action.
59. Mr. de HOYOS GUTIERREZ (Cuba) suggested that for the purposes of speeding up
proceedings, it would be desirable to insert a time–limit also in article 11(3)(b), with
respect to the appointment of a sole arbitrator.
60. Mr. HERRMANN (International Trade Law Branch) said that the Working Group had
endeavoured to avoid fixing time periods as far as possible since it was difficult to select a
period which was appropriate to cover the many different cases. Furthermore, the
P 383 situation in article 11(3)(b) was not precisely the same as that in article 11(3)(a). It resulted
P 384 from a failure of the parties to agree, of which the best evidence was the request of one
of them to the court to appoint the arbitrator.
61. Mr. de HOYOS GUTIERREZ (Cuba) withdrew his proposal.
62. The CHAIRMAN said he assumed that in cases where the place of arbitration had been
determined, the court referred to in paragraphs 3(a) and (b) would be the appropriate
national court of the country concerned.
63. It was so decided.
[Editors' Note: The Commission then entered on an extended discussion of the extent to which
Article 11(3) and (4) applied when no place of arbitration had yet been chosen. Because this
relates to the general question of the scope of application of the Model Law, these materials
appear in the subsection on Article 1, paragraph 2, pp. 122–23 supra.]
Article 11(4)
[.…]
78. Mr. STROHBACH (German Democratic Republic) observed that article 11(4)(c) referred to
“an appointing authority.” It might perhaps be useful to have a definition of that term in
article 2.
79. The CHAIRMAN observed that the definitions in article 2 covered terms which were used

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 in more than one place. If the term “appointing authority” appeared only in article 11, it
would be better to have it defined in the rule itself.
80. Mr. STROHBACH (German Democratic Republic) said he would check whether the term
was used elsewhere.
[7 June 1985, 9:30 A.M., A/CN.9/SR.313]
Article 11. Appointment of arbitrators (continued)
Paragraph (4) (continued)
1. Mr. ROGERS (Australia) said that during the discussion of article 2(e) [Art. 3 in the final
text] his delegation had referred to the possibility of substituted service in cases in which
it was known that the addressee was not at his last known business address or habitual
residence. The problem was that the provision on receipt of communications in article 2(e)
was so carefully worded that a court might think the provision barred it from ordering
substituted service. He proposed that the Commission should insert a provision in article
11 to make it clear that such an effect was not intended.
2. The CHAIRMAN [Mr. LOEWE (Austria)] said that in his view service under article 2(e) was
confined to service effected in the course of arbitral proceedings, including notification of
choice of arbitrators and service of the award, and excluded service ordered by a court. It
might be better to make that point clear in article 2(e).
3. Mr. HOLTZMANN (United States of America) supported the Chairman's suggestion.
P 384
P 385
4. Mr. ROGERS (Australia) accepted the suggestion.
[12 June 1985, 9:30 a.m., A/CN.9/SR.319]
Article 11. Appointment of arbitrators (continued)
Paragraph (4)(c) (continued) (A/CN.9/XVIII/CRP.4)
64. Mr. STROHBACH (German Democratic Republic), introducing document
A/CN.9/XVIII/CRP.4, (*) said that it contained a proposal intended to avoid the need for the
model law to give a definition of an “appointing authority.” The proposal should be
corrected by the insertion of the words “functions in connection with” before the words “the
appointment of arbitrators.” This would cover the situation in which the parties named
someone to appoint an appointing authority.
65. Mr. ROEHRICH (France) proposed that the provision should open with the words: “A third
person or institution.…”
66. The CHAIRMAN [Mr. LOEWE (Austria)] suggested that the proposal in document
A/CN.9/XVIII/CRP.4, as corrected, should be submitted to a drafting committee together
with the French suggestion.
67. It was so agreed.
[20 June 1985, 3:00 p.m., A/CN.9/SR.332]
Article 11 [as revised by the Drafting Group]
29. In reply to a question put by Mr. GRIFFITH (Australia), Mr. HERRMANN (International
Trade Law Branch) said that the wording of paragraph (4)(c) correctly reflected the
decision taken by the Commission at its 319th meeting ([Summary Record,] A/CN.9/SR.319,
para. 67). (*)
30. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that the Russian version of the
draft text of the model law had been issued before the drafting group had completed its
work and it did not reflect some of the provisions agreed by the group. That applied to
paragraph (5) and to other parts of the draft text. He would be agreeable to the definitive
Russian version of the text being prepared by the Secretariat at a later stage. That being
so, he would not raise points which affected the Russian version only.
31. Article 11 was adopted without change.
P 385
P 386
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 11. Appointment of arbitrators
100. The text of article 11 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
Paragraphs (1) and (2)
101. The Commission adopted those paragraphs. In that connection, it was noted that the
model law did not contain an express provision to the effect that the arbitral tribunal had
to be composed of impartial and independent members. It was understood, however, that
that agreed principle was sufficiently clear from other provisions of the model law, in
particular article 12 which set forth the grounds for challenge.

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 Paragraph (3)
102. The Commission adopted sub–paragraph (a), subject to replacing the words “within
thirty days after having been requested to do so by the other party” by such words as
“within thirty days of receipt of such request from the other party.”
103. A suggestion was made to lay down in sub–paragraph (b) a time–limit, as was done in
respect of the provision of sub–paragraph (a). The Commission was agreed that no such
time–limit was required in sub–paragraph (b) since the persons expected to agree were
the parties themselves whose inability to reach an agreement became evident by a
request of one of them to the Court. Accordingly, sub–paragraph (b) was adopted in its
current form.
Paragraph (4)
104. It was noted that the term “appointing authority” used in sub– paragraph (c) was not
defined in the model law. The Commission was agreed that the term should be replaced by
appropriate wording and the sub– paragraph be revised along the following lines: “(c) a
third party, including an institution, entrusted by the parties with a function in connection
with the appointment of arbitrators fails to perform this function.” It was noted that such a
modification made it unnecessary to include in article 2 a definition of the term
“appointing authority.”
Paragraph (5) and suggestions relating to functions of Court
105. The Commission adopted paragraph (5).
106. In respect of the functions of the Court envisaged under paragraphs (3), (4) and (5), an
observation was made based on the concern which had earlier been expressed in the
context of article 2(e) [Art. 3 in the final text] (see above, para. 42 [appearing in the section
on Art. 3, p. 194 supra]). It was observed that the provisions of article 11 dealing with the
functions of the Court, in particular if read together with the provisions of the model law on
P 386 receipt of written communications, could be interpreted as precluding the Court from
P 387 applying domestic procedural rules which, by requiring, for instance, a certain form of
service or advertising, would help to reduce the risk of a party being caught in arbitral
proceedings without his knowledge. The Commission decided to clarify that the provision
on receipt of communications did not apply to court proceedings or measures but only to
the arbitral proceedings proper, including any steps in the appointment process by a
party, an arbitrator or an appointing authority.
[Editors' Note: Subsequent paragraphs of the Report deal with the extent to which
paragraphs 3 and 4 of Article 11 apply when no place of arbitration has yet been chosen.
Because this material is closely related to the general question of the scope of application of
the Model Law, it appears in the subsection on Article 1, paragraph 2, pp. 131–32 supra. For
materials on the decision to change the word “final,” which was contained in the Fifth Draft of
paragraph 5, to the phrase “subject to no appeal,” see paragraph 132 of this document, p. 436,
and Summary Record, A/CN.9/SR.314, paras. 26–32, pp. 433–34, both appearing in the section
on Article 13, infra]
P 387

References
1) That the chosen procedure will be recognized and not supplanted by the courts is
implicit.
2) In this commentary on Article 11, the word court will be used to refer to either a court
or another authority specified in Article 6.
3) See Seventh Secretariat Note, A/CN.9/264, Art. 11, para. 1, p. 381 infra. The term
nationality is undefined, but the Working Group indicated that it was to be given a
wide interpretation in view of Article 11's purpose of preventing discrimination. In
particular, it was contemplated that the word embraced the term citizenship, which is
used in some legal systems. Fifth Working Group Report, A/CN.9/246, para. 31, p. 378
infra.
4) Article III, 484 U.N.T.S. 349 (Geneva 1961).
5) 22 I.L.M. 1398, 1401 (1983) (participating States advocate “freedom in the choice of
arbitrators”).
6) Fourth Working Group Report, A/CN.9/245, para. 193, p. 376 infra; see Seventh
Secretariat Note, A/CN.9/264, Art. 11, para. 1 n. 41, p. 381 infra.
7) See Third Working Group Report, A/CN.9/233, para. 90, p. 373 infra.
8) Id. The grounds for recognition and enforcement of an award, contained in Article 36,
are essentially identical to those for setting aside, which are contained in Article 34.
Therefore, Article 36 may also be said to place restrictions on the parties' freedom to
select a procedure for appointing arbitrators.

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 9) Other articles of the Model Law also may limit the parties' freedom to choose a
procedure for selecting arbitrators. Examples include Article 8, which provides that a
court may refuse to refer parties to arbitration if the putative arbitration agreement is
“null and void, inoperative or incapable of being performed”; Articles 34(2)(b)(ii) and
36(1)(b)(ii), which provide for setting aside an award, or refusing to recognize or enforce
it, if it is contrary to the public policy of the forum; and possibly Article 18, which
requires that the parties be treated with equality and that they be given full
opportunity to present their case. With respect to the last of these examples, there
may be some doubt as whether Article 18 in fact extends to the procedures for
appointing arbitrators. See generally the commentary on Article 18, pp. 550–53 infra.
10) First Draft, A/CN.9/WG.II/WP.37, Art. 13(2), p. 367 infra; Second Draft,
A/CN.9/WG.II/WP.40, Art. VI(2), p. 371 infra. The proponents of this provision favored the
second alternative. See Third Working Group Report, A/CN.9/233, para. 89, p. 373 infra.
11) Third Working Group Report, A/CN.9/233, para. 90, p. 373 infra.
12) See id. para. 91.
13) See First Draft, A/CN.9/WG.II/WP.37, Art. 16 n. 28, p. 368 infra; Second Working Group
Report, A/CN.9/232, para. 87, p. 370 infra.
14) See Seventh Secretariat Note, A/CN.9/264, Art. 11, para. 5, p. 382 infra; First Draft,
A/CN.9/WG.II/ WP.37, Art. 16 n. 28, p. 368 infra. Mechanisms for appointing arbitrators
where the number of arbitrators equalled the number of parties and where the number
of arbitrators exceeded the number of parties by one were also proposed, but were
not adopted. See id. Art. 16(1)(c), (d), p. 367 infra; Second Working Group Report,
A/CN.9/232, para. 87, p. 370 infra.
15) See the subsection on Article 1, paragraph 5, pp. 133–49 supra, regarding the Model Law
as lex specialis, and the section on Article 5, pp. 216–38 supra, regarding the scope of
court intervention in arbitration. The term courts here refers to courts generally, not
only to the court for other authority specified in Article 6.
16) See Sixth Secretariat Note (Government Comments), A/CN.9/263/Add.1, Art. 11, para. 2,
pp. 380–81 infra (Canadian comment pointing out ambiguity).
17) Fifth Working Group Report, A/CN.9/246, para. 32, p. 378 infra. This reading is important
in order to avoid further delay in arbitral proceedings.
18) Fifth Draft, A/CN.9/246 (Annex), Art. 11(5), p. 379 infra. The change was made in
connection with the Commission's consideration of the parallel language in Article 13.
See Commission Report, A/40/17, para. 132, p. 436, and Summary Record,
A/CN.9/SR.314, paras. 26–32, pp. 433–34, both appearing in the section on Article 13,
infra.
19) See First Working Group Report, A/CN.9/216, para. 42, p. 366 infra.
*) [Editors' Note: Para. 3 of this document refers to a consultative meeting held at Paris on
7–8 September 1978 attended by representatives of the UNCITRAL Secretariat and the
Secretariat of the Asian – African Legal Consultative Committee, and by members of the
International Council for Commercial Arbitration and the Commission on International
Arbitration of the International Chamber of Commerce.]
26) Cf. e.g. art. 2 of the 1966 Strasbourg Convention [European Convention Providing a
Uniform Law on Arbitration, Europ. T.S. No. 56]: “Each Contracting Party undertakes not
to maintain or introduce into its law provisions excluding aliens from being
arbitrators.”
25) Discussion and conclusions of the Working Group in [First Working Group Report,]
A/CN.9/216, paras. 46–50. [Editors' Note: Paras. 49–50 appear immediately above, paras.
46–48 appear in the section on Article 10, pp. 350–51 supra.]
26) These alternatives are submitted to invite discussion by the Working Group on what
should be the effect of a clause which violates the principle of equality of the parties:
invalidity of the whole arbitration agreement or of that clause only.
27) The main case envisaged here would be where the respondent, though committed
under the arbitration agreement to appoint the second arbitrator, fails to make that
appointment within the agreed period of time.
28) This draft article is intended to regulate the appointment procedure not only for the
case of article 14(2) [Art. 10(b) in the final text], i.e., where parties have not agreed on
the number of arbitrators, but also for cases where they have agreed on the number
but not on the procedure. Yet, it may not be desirable in a model law to list the
procedure for any possible number which parties could select due to their unlimited
freedom under article 14(1) [Art. 10(a) in the final text]. Thus, it may be considered to
provide procedural rules only for the two probably most common and practical
numbers, i.e., one and three.
29) The Authority envisaged in this provision would be a judicial body specializing in
arbitration matters and assisting in a variety of ways specified in the model law.
30) This draft provision is modeled on article 6(4) of the UNCITRAL Arbitration Rules. The
Working Group may wish to consider adding a provision along the lines of article 6(3),
suggesting the use of the list-procedure.
9) [Editors' Note: Footnote 9 appears in the section on Article 6, p. 244 supra.]
10) 10. Provisions which “provide otherwise” may either restrict the rule under (a), e.g.,
article X(3) [Art. 13 in the final text] which entitles only a party to resort to this Court, or
widen the rule by entitling others, such as individual arbitrators, e.g., article VIII(3) [Art.
11] or XI(2) [Art. 14].

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 11) Provisions which “provide otherwise,” i.e., allow an appeal, might, for example, be
envisaged in respect of decisions on setting aside, or on recognition and enforcement,
of arbitral awards (to be dealt with in [a second part of the Second Draft,]
A/CN.9/WG.II/WP.42 [see the sections on Arts. 34 & 36, pp. 931–34, 1077–80 infra]).
18) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 83–86. It may be recalled here that, according to a decision
by the Group, the procedural issues previously dealt with in (now deleted) paragraph
(2), i.e., right to request the Court to act and finality of the Court's decision, should be
considered in the context of the individual provisions entrusting certain functions to
the Court.
20) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 88–91.
21) This provision might later be combined with the provisions of article VII [Art. 10 in the
final text] or VIII [Art. 11].
23) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 95–100.
*) [Editors' Note: For a comment by the ICC urging that provisions be drafted for the
appointment of an even number of arbitrators and of an uneven number of arbitration
greater than three, see page 355 supra.]
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
41) At the sixth session of the Working Group, a concern was expressed that it would be
difficult to implement this provision in States where nationals of certain other States
were precluded from serving as arbitrators; it was noted in response that the model
law, not being a convention, would not exclude the possibility for a State to reflect its
particular policies in national legislation ([Fourth Working Group Report,] A/CN.9/245,
para. 193 [p. 376 supra]).
42) It is submitted that the last part of paragraph (5) relating to the appointment of a sole
or third arbitrator should not be mandatory (see below, para. 8).
*) [Editors' Note: This Conference Room Paper, dated 7 June 1985, read as follows:
Article 11(4)(c)
PROPOSAL BY THE REPRESENTATIVE OF THE GERMAN DEMOCRATIC REPUBLIC
Suggested modification of article 11(4)(c):
“(c) an institution or a third person entrusted by the parties with the appointment of
arbitrators fails to perform this function,”
Note: This wording makes it unnecessary to include in Article 2 a definition of the term
“appointing authority.”]
*) [Editors' Note: The wording under discussion was the same as the wording of the final
text of paragraph 4(c).]

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 324
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 KluwerArbitration

Document information
UNCITRAL Model Law, Chapter III, Article 12 [Grounds for
Publication challenge]
A Guide to the UNCITRAL (1) When a person is approached in connection with his possible appointment as an
Model Law on International arbitrator, he shall disclose any circumstances likely to give rise to justifiable
Commercial Arbitration: doubts as to his impartiality or independence. An arbitrator, from the time of his
Legislative History and appointment and throughout the arbitral proceedings, shall without delay disclose
Commentary any such circumstances to the parties unless they have already been informed of
them by him.
(2) An arbitrator may be challenged only if circumstances exist that give rise to
Organization justifiable doubts as to his impartiality or independence, or if he does not possess
United Nations Commission qualifications agreed to by the parties. A party may challenge an arbitrator
on International Trade Law appointed by him, or in whose appointment he has participated, only for reasons of
which he becomes aware after the appointment has been made.

Promulgation Commentary
21 June 1985 Article 12 sets forth the grounds for challenging an arbitrator and the requirements of
disclosure for arbitrators. The Working Group agreed at the outset on the central feature of
this article — that it would not attempt to list in detail all possible connections to the
parties or other circumstances that might justify a challenge. (1) Rather, the article
Legislation number provides two general formulae: first, an arbitrator may be challenged if circumstances
United Nations Document exist that “give rise to justifiable doubts as to his impartiality or independence”; second,
A/40/17, Annex I he may be challenged if he does not possess qualifications agreed to by the parties. While
the Secretariat noted that national laws often list in detail all possible grounds for
challenge, it also suggested that general tests like the ones ultimately included in Article
12 might be appropriate for a model law since they were likely to be more widely accepted
Bibliographic reference than any single list of specific criteria. (2) The Working Group adopted this suggestion. The
'UNCITRAL Model Law, broad criteria ultimately adopted can be expected to promote uniformity while providing
Chapter III, Article 12 national courts with a certain degree of flexibility and discretion.
[Grounds for challenge]', in In keeping with the policy of setting forth general tests rather than detailed criteria, the
Howard M. Holtzmann and Working Group and the Commission did not express any comprehensive understanding as
Joseph Neuhaus , A Guide to to the meaning of the standards set forth in Article 12. The second test speaks for itself: if
the UNCITRAL Model Law on
International Commercial P 388 an arbitrator turns out not to possess the qualifications stipulated by the parties — such as
Arbitration: Legislative P 389 the required professional credentials or designated nationality — either party may
challenge him (unless the party participated in his appointment and knew of the failing).
History and Commentary, As to the meaning of the first test — justifiable doubts as to impartiality or independence
(© Kluwer Law International; — the legislative history does provide a few guidelines. First, it was noted that the
Kluwer Law International formulation covers many, but probably not all, of the specific reasons currently set forth in
1989) pp. 388 - 405 national laws. (3) It presumably includes such matters as a financial interest or personal
involvement in the subject matter in dispute, or close relationships with one of the parties.
(4) Second, the Secretariat suggested that the provision should be interpreted to cover
biased or partial behavior during the arbitral pro-ceedings. (5) Third, the Commission also
engaged in relatively extensive debate over whether an arbitrator's nationality might in
certain circumstances give rise to justifiable doubts as to his or her impartiality or
independence. (6) The consensus appears to have been that it might, although it should
probably be cautioned that such circumstances will be exceptional. Otherwise, the
guarantee in Article 11(1) that “[n]o person shall be precluded by reason of this nationality
from acting as an arbitrator” would be rendered meaningless. The relative absence of
definitive guidelines to interpreting the broad language of the statute should not be
viewed as providing national courts with unlimited discretion. The Commission specifically
declined to delete the word “only” in Article 12(2); (7) it intended that challenges be upheld
only if there are justifiable doubts that genuinely pertain to the arbitrator's impartiality or
independence.
Article 12 is modeled on Articles 9 and 10 of the UNCITRAL Arbitration Rules. (8) Like those
provisions, Article 12 applies the same standard of impartiality and independence to all
arbitrators. There is not a separate standard for party-appointed arbitrators that is
different from that governing sole or third arbitrators, as exists under some national laws.
There are, however, several significant differences between the Model Law provision on the
one hand, and Articles 9 and 10 of the UNCITRAL Arbitration Rules on the other. First,
P 389 paragraph 1 of Article 12 is drafted to make clearer the timing of the disclosure that is
P 390 required. (9) The first sentence is aimed at disclosure to the person that approaches the
arbitrator concerning appointment (this could be a party, an arbitral institution, another
appointing authority, or a court). (10) The Law makes clear that disclosure is to be made
“when [the potential arbitrator] is approached.” The second sentence was drafted to
emphasize, first, that there is a continuing duty before and throughout the arbitral

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 proceedings to disclose doubt–raising circumstances and, second, that the circumstances
must be disclosed “without delay” after appointment or after the circumstances arise. (11)
A second difference between Article 12 and the corresponding provisions of the UNCITRAL
Arbitration Rules is that the grounds for challenge listed in the first sentence of paragraph
2 are the exclusive mandatory grounds for challenge, as indicated by use of the word
“only.” The Commission specifically insisted on including this term. (12) The reason that
“only” does not appear in the UNCITRAL Arbitration Rules is that arbitration rules cannot
affect mandatory rules of national law providing other grounds for challenge. Thus,
arbitration rules cannot purport to specify an exclusive list of grounds. A national
arbitration law, however, should list all the applicable mandatory grounds for challenge.
(13)
Third, Article 12 differs from the UNCITRAL Arbitration Rules in the addition of a second
general ground for challenge — that the arbitrator lacks qualifications agreed to by the
parties. (14) This provision is necessary in a law, to allow the parties to agree on other
grounds for challenge, but less so in a set of rules, which the parties may alter by
agreement whether or not the point is stated.
Finally, Article 12 provides in the final sentence of paragraph 2 that the bar on challenging
P 390 an arbitrator on grounds of which a party had knowledge at the time of the appointment
P 391 extends both to the arbitrators appointed by that party and to arbitrators “in whose
appointment [the party] has participated.” (15) The variation from the UNCITRAL
Arbitration Rule provision was intended to cover joint appointments in which the parties
agree on an arbitrator. (16) It probably also covers less direct involvement such as
appointment procedures in which a party may veto a name proposed by another party or
by an appointing authority, but only where the challenging party had a full opportunity to
reject the name of the arbitrator later chosen. (17)

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[.…]
III. Arbitrators
[.…]
2. Challenge
65. As regards challenge of arbitrators, the issues to be considered are on what grounds an
arbitrator may be challenged and by what procedure, including any court involvement.
National laws often list in detail the grounds for challenge, usually the same as apply to
judges. The reasons relate to the dispute at hand such as a financial interest or previous
involvement in the subject–matter under dispute or a certain relation to one of the parties.
It will have to be seen whether a “uniform” list of reasons could be agreed on or whether
one should merely include a general formula such as “circumstances giving rise to
justifiable doubts as to the arbitrator's impartiality or independence.”
66. As to the procedure of challenging an arbitrator, [see the section on Article 13, p. 411
infra.] One might add ancillary rules on disclosure and restrictions to the right to challenge
along the lines of art. 9 and 10(2) of the UNCITRAL Arbitration Rules (27) and art. 12(2) of the
1966 Strasbourg Uniform Law. (28)
P 391
P 392
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
III. Arbitrators
[.…]
2. Challenge (report [First Secretariat Note, supra], paras. 65–66)
Question 3–3: Should the model law deal with the grounds on which an arbitrator may be
challenged? If so, should it list these grounds or would a general formula suffice?
[.…]
Question 3–6: Should the model law adopt ancillary rules on disclosure and on restrictions
to the right to challenge along the lines of articles 9 and 10(2) of the UNCITRAL Arbitration
Rules and article 12(2) of the 1966 Strasbourg Uniform Law (report, para. 66)?
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[.…]
III. Arbitrators
[.…]

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 2. Challenge
Question 3–3: Should the model law deal with the grounds on which an arbitrator may be
challenged? If so, should it list these grounds or would a general formula suffice?
[.…]
Question 3–6: Should the model law adopt ancillary rules on disclosure and on restrictions
to the right to challenge along the lines of articles 9 and 10(2) of the UNCITRAL Arbitration
Rules and article 12(2) of the 1966 Strasbourg Uniform Law (report, para. 66)?
P 392
P 393
43. The Working Group was agreed that the model law should deal with the grounds on
which an arbitrator may be challenged only in the same general manner as it dealt with
the qualifications of an arbitrator. [See First Working Group Report, para. 42, appearing in
the section on Article 11, p. 366 supra.] It was suggested that a draft provision be prepared
using the same formula (impartiality and independence). It was agreed that such general
provision should form the sole basis for challenging an arbitrator. The Working Group was
also agreed that the model law should contain a provision requiring a prospective
arbitrator to disclose circumstances which could create doubts as to his impartiality or
independence. The Working Group was agreed that this provision should be modeled on
article 9 of the UNCITRAL Arbitration Rules.
FIRST DRAFT A/CN.9/WG.II/WP.37 (15 JULY 1982)
III. Arbitrators
1.–2. Qualification, challenge (and replacement) (17)
Article 7 [Art. 12 in the final text]
A prospective arbitrator shall disclose to those who approach him in connexion with his
possible appointment any circumstances likely to give rise to justifiable doubts as to his
impartiality or independence. An arbitrator, once appointed or chosen, shall disclose such
circumstances to the parties unless they have already been informed by him of these
circumstances. (18)
Article 8 [Art. 12 in the final text] (19)
(1) An arbitrator may be challenged only if circumstances exist that give rise to justifiable
doubts as to his impartiality or independence.
(2) A party may challenge the arbitrator appointed by him only for reasons of which he
becomes aware after the appointment has been made.
P 393
P 394
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[.…]
Arbitrators
Qualifications, challenge (and replacement)
Article 7 [Art, 12 in the final text]
57. The text of article 7 as considered by the Working Group was as follows:
[same as First Draft, supra].
58. There was general agreement that the article was acceptable. It was suggested that the
duty to disclose was a continuing one and that this should be reflected more clearly in the
wording of the article.
Article 8 [Art. 12 in the final text]
59. The text of article 8 as considered by the Working Group was as follows:
[same as First Draft, supra].
60. It was noted that the word “only” in paragraph (1) (which was omitted in the French text)
was intended to limit the grounds for challenging an arbitrator to justifiable doubts as to
his impartiality or independence. It was suggested that this decision should be reviewed
since there might be other grounds on which a party should be able to challenge an
arbitrator. In this connexion a question was raised as to the relationship between article 8
and article 11 [Art. 14 in the final text].
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
D. Composition of arbitral tribunal
[.…]
Article IX [Art. 12 in the final text]
(1) A prospective arbitrator shall disclose to those who approach him in connexion with his

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 possible appointment any circumstances likely to give rise to justifiable doubts as to his
impartiality or independence. An arbitrator[, from the time of his appointment,] shall
disclose any such circumstances to the parties unless they have already been informed by
him of these circumstances.
(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable
doubts as to his impartiality or independence. A party may challenge the arbitrator
appointed by him only for reasons of which he becomes aware after the appointment has
been made.
P 394
P 395
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[.…]
D. Composition of arbitral tribunal
[.…]
Article IX [Art. 12 in the final text]
103. The text of article IX as considered by the Working Group was as follows:
[same as Second Draft, supra].
104. The Working Group was agreed that a provision along the lines of article IX was useful.
It was noted that the provision should not be understood as requiring the arbitrator to act
as a judge on his own impartiality or independence.
105. Some concern was expressed that the provisions of article IX, in particular its
paragraph (2) using the word “only,” were too restrictive by not covering, for example, the
notion of competence or other qualifications possibly included in the agreement on the
appointment. The prevailing view was, however, that the issue of competence or other
qualifications was more closely related to the conduct of the proceedings than to the
initial appointment and that the article should be retained with its present scope.
106. As regards the second sentence of paragraph (1), it was suggested to express more
clearly the idea that the duty to disclose was a continuing one, for example, by adding to
the words submitted between square brackets the words “and thereafter” or by other
appropriate wording.
THIRD DRAFT A/CN.9/WG.II/WP.45 (13 JUNE 1983)
D. Composition of arbitral tribunal
[.…]
Article IX [Art. 12 in the final text] (24)
(1) When a person is approached in connexion with his possible appointment as an
arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to
his impartiality or independence. An arbitrator[, from the time of his appointment and
thereafter,] shall disclose any such circumstances to the parties unless they have already
been informed by him of these circumstances.
P 395
P 396
(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable
doubts as to his impartiality or independence. A party may challenge the arbitrator
appointed by him only for reasons of which he becomes aware after the appointment has
been made.
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[.…]
Article IX [Art. 12 in the final text]
202. The text of article IX as considered by the Working Group was as follows:
[same as Third Draft, supra].
Paragraph (1)
203. The Working Group adopted this paragraph including the words placed between
square brackets. It was also agreed to insert in both sentences of this paragraph the words
“without delay.”
Paragraph (2)
204. The Working Group adopted this paragraph.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 12. Grounds for challenge

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 (1) When a person is approached in connexion with his possible appointment as an
arbitrator, he shall [without delay] disclose any circumstances likely to give rise to
justifiable doubts as to his impartiality or independence. An arbitrator, from the time of
his appointment and thereafter, shall without delay disclose any such circumstances to the
parties unless they have already been informed by him of these circumstances.
(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable
doubts as to his impartiality or independence. A party may challenge the arbitrator
appointed by him only for reasons of which he becomes aware after the appointment has
been made.
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[.…]
Article 12
33. The text of article 12 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
P 396
P 397
34. The Working Group adopted that article, subject to the deletion of the words “without
delay” in the first sentence of paragraph (1) and subject to the addition, in the second
sentence of paragraph (2), after the words “the arbitrator appointed by him” of the words
“or in whose appointment he has participated.” That addition was felt to be necessary
since the policy considerations which applied to the case of the party–appointed
arbitrator were of equal force in the case where the parties jointly appointed an arbitrator.
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 12. Grounds for challenge
(1) When a person is approached in connection with his possible appointment as an
arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to
his impartiality or independence. An arbitrator, from the time of his appointment and
throughout the arbitral proceedings, shall without delay disclose any such circumstances
to the parties unless they have already been informed of them by him.
(2) An arbitrator may be challenged only if circumstances exist that give rise to justifiable
doubts as to his impartiality or independence. A party may challenge an arbitrator
appointed by him, or in whose appointment he has participated, only for reasons of which
he becomes aware after the appointment has been made.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[.…]
Chapter III. Composition of arbitral tribunal
Chapter as a whole
[.…]
3. The Federal Republic of Germany proposes to consider the appropriateness of inserting
in chapter III a provision on the choice of an individual arbitrator or, in the case of more
than one arbitrator, on the composition of the arbitral tribunal, with a view to
guaranteeing an impartial decision.
[.…]
Article 12. Grounds for challenge
1. India is of the view that the grounds for challenge as expressed in this article are too
vague to allow easy and uniform interpretation and application.
P 397 2. UNCTAD [United Nations Conference on Trade and Development] suggests that the last
P 398 sentence of paragraph (1), providing for the continuous duty of disclosure of certain
circumstances, may be inconsistent with the first sentence of paragraph (1) which rightly
states that the arbitrator shall disclose any such circumstances on being approached. The
duty of disclosure should not continue throughout the proceedings. UNCTAD further
suggests that in paragraph (2) it seems appropriate to provide that an arbitrator may be
challenged only “if there are reasons to believe that circumstances exist …” since such
circumstances need to be proved.
3. The United States agrees with the grounds for challenge set forth in article 12. Paragraph
(2) properly establishes the fundamental grounds that an arbitrator may be challenged “if
circumstances exist that give rise to justifiable doubts as to his impartiality or
independence.” In addition, parties may in their contracts agree that arbitrators must
have certain professional or trade qualifications and that they are subject to challenge if
they do not possess those qualifications. In order to ensure that the model law respect this

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 aspect of party autonomy, the United States suggests adding the words “or on such
additional grounds as the parties may agree” to the first sentence of article 12(2).
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[.…]
Article 12. Grounds for challenge
Article as a whole
1. Canada, noting that the English language version of this article uses the expression
“justifiable doubts” in paragraphs (1) and (2) as an equivalent of the French language
expression “doutes légitimes,” observes that the expression “justifiable doubts” creates
difficulties of application for an English speaking common law lawyer. In the opinion of
Canada, the expression “reasonable doubt” would be a more appropriate expression to
convey the meaning intended by the article. Furthermore, it is suggested that the
requirement of disclosure in paragraph (1) should be more stringent than that of paragraph
(2), with a bias in favour of disclosure in paragraph (1), and that article 12 should be revised
accordingly.
2. The Sudan submits that article 12 would be more comprehensive if the following wording
were added at its end:
“Such circumstances include, but are not limited to, any financial or personal
interest in the outcome of the arbitration or any commercial tie with either
party or with a party's counsel or agent, if any.”
Article 12, paragraph (2)
3. Yugoslavia is of the view that the grounds for challenge of arbitrators should be widened.
Article 12(2) specifies only doubts as to impartiality and independence, which is good but
insufficient. It should be provided that an arbitrator can be challenged if he does not
perform his functions without undue delay or, in the case of permanent arbitral tribunals,
in compliance with the rules.
P 398
P 399
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 12. Grounds for challenge
[.…]
1. Article 12 implements in two ways the principle that arbitrators shall be impartial and
independent. Paragraph (1) requires any prospective or appointed arbitrator to disclose
promptly any circumstances likely to cast doubt on his impartiality or independence.
Paragraph (2) lays the basis for securing impartiality and independence by recognizing
those circumstances which give rise to justifiable doubts in this respect as reasons for a
challenge.
2. The duty of a prospective arbitrator to disclose any circumstances of the type referred to
in paragraph (1) is designed to inform and alert the person approaching him at an early
stage about possible doubts and, thus, helps to prevent the appointment of an
unacceptable candidate. Disclosure is required not only where a party or the parties
approach the candidate but also where he is contacted by an arbitral institution or other
appointing authority involved in the appointment procedure.
3. As stated in the second sentence of paragraph (1), even an appointed arbitrator is, and
continues to be, under that duty, essentially for two purposes. The first is to provide the
information to any party who did not obtain it before the arbitrator's appointment. The
second is to secure information about any circumstances which only arise at a later stage
of the arbitral proceedings (e.g., new business affiliation or share acquisitions).
4. Paragraph (2), like article 10(1) of the UNCITRAL Arbitration Rules, adopts a general
formula for the grounds on which an arbitrator may be challenged. This seems preferable
to listing all possible connections and other relevant situations. As indicated by the word
“only,” the grounds for challenge referred to here are exhaustive. Although reliance on any
specific reason listed in a national law (often applicable to judges and arbitrators alike) is
precluded, it is submitted that it would be difficult to find any such reason which would
not be covered by the general formula.
5. It may be noted that the Working Group was of the view that the issue of the arbitrator's
competence or other qualifications, specified by the parties, was more closely related to
the conduct of the proceedings than to the initial appointment. (43) It would, thus, have to
be considered under article 14 and possibly article 19(3). (44) However, it is submitted in
this connection that the conduct of an arbitrator may be relevant under article 12(2), for
example, where any of his actions or statements gives rise to justifiable doubts as to his
impartiality or independence. The Commission may wish to consider expressing this
interpretation in the text since the word “circumstances” and the close connection with

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 paragraph (1) could lead to a narrower interpretation which would not cover such instances
of biased behaviour or misconduct.
P 399
P 400
6. The second sentence of paragraph (2) estops a party from challenging an arbitrator,
whom he himself appointed or in whose appointment he participated, on any ground
which he already knew before the appointment. In such case, that party should not have
appointed, or agreed to the appointment of, the candidate whose impartiality or
independence was in doubt. It is submitted that “participation in the appointment” covers
not only the case where the parties jointly appoint an arbitrator (e.g., under article 11(3)(b))
but also a less direct involvement such as the one under the list procedure envisaged in
the UNCITRAL Arbitration Rules (article 6(3)).
SUMMARY RECORD A/CN.9/SR.312, .313, .330, .332
[6 June 1985, 2:00 P.M., A/CN.9/SR.312]
Chapter III. Composition of the arbitral tribunal
Article 10. Number of arbitrators
52. Mr. SCHUMACHER (Federal Republic of Germany) said that his delegation had
submitted a written proposal ([Sixth Secretariat Note (Government Comments),] A/CN.9/263,
[Chap. III, Chapter as a whole, para. 3]) that chapter III should mention the principle that
the composition of the arbitral tribunal must guarantee an impartial decision; that
seemed to be the most important guideline for arbitration. His delegation was withdrawing
that proposal because it would cause problems with the interpretation of articles 12 and 13
from which it followed that each arbitrator, even nominated by one party must be
impartial and independent. Accordingly, it followed that the tribunal itself must be
impartial.
[7 June 1985, 9:30 A.M., A/CN.9/SR.313]
Article 12. Grounds for challenge
Paragraph (1)
5. Mr. KADI (Algeria) said that although the Working Group on International Contract
Practices had already dealt with the point, his delegation still felt that paragraph (1)
should make a reference to the qualifications of a possible arbitrator. He proposed that
the beginning of the paragraph should read: “When a person is approached in connection
with his qualifications for possible appointment.…”
6. Mr. SAWADA (Japan) proposed that the beginning of paragraph (1) should read: “A person
approached in connection with his possible appointment as an arbitrator shall disclose.…”
7. Mr. HOLTZMANN (United States of America) said that he preferred the present wording
because it indicated the need for promptness.
8. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that articles 12–15
were of particular interest to arbitrators. He thought the Working Group had done an
excellent job on what were essentially mechanical provisions.
P 400
P 401
Paragraph (2)
9. Mrs. VILUS (Yugoslavia) said that the intention of the word “only” in the first sentence of
paragraph (2) seemed to be to confine challenges to the issues of impartiality and
independence. That might prove too restrictive in some instances. It might be useful to
expand the paragraph to allow challenges on other grounds.
10. Mr. SZASZ (Hungary) said that challenges should be restricted and the word “only”
helped to make that clear. His delegation nevertheless supported the written suggestion
from the United States ([Sixth Secretariat Note (Government Comments),] A/CN.9/263, […]
(article 12), para. 3) for the addition to the sentence of the words “or on such additional
grounds as the parties may agree.”
11. Mr. SEKHON (India) said that he was not happy with the words “an arbitrator may be
challenged” at the beginning of paragraph (2). The challenge would be to the arbitrator's
appointment, not his person. He suggested that the sentence be redrafted to take account
of that. While he felt that the word “only” might be deleted, the inclusion in the sentence of
a third factor, as suggested by the United States, was a different matter.
12. Mr. de HOYOS GUTIERREZ (Cuba) endorsed the comments made by the representative of
Hungary.
13. Mr. MTANGO (United Republic of Tanzania) said that he would like the word “only” to be
deleted. It was true that in most cases challenges would address the question of
impartiality or independence, but other factors might arise; in certain circumstances, for
example, without the arbitrator's integrity being called into question, his nationality might
be thought a sound ground for challenge in view of certain policies followed by his
Government.

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 14. Mr. HOLTZMANN (United States of America) said that the paragraph — like the
corresponding paragraph in the UNCITRAL Arbitration Rules — covered the point made by
the Tanzanian representative by using the words “justifiable doubts.” It was therefore
unnecessary to delete the word “only.” He agreed that such doubts might in exceptional
cases arise because of a person's nationality. He thought that the implication of the last
sentence of paragraph 4 of the Secretariat's commentary on the article ([Seventh
Secretariat Note,] A/CN.9/264, […]) was too broad to represent the view of the Commission,
since the general reference, which was to impartiality or independence, did not cover all
the grounds for challenge mentioned in national legislation.
15. Mrs. VILUS (Yugoslavia) pointed out that the arbitration rules of the International
Chamber of Commerce contained a provision for challenging an arbitrator if he delayed
the proceedings or did not perform his duties in accordance with those rules. The word
“only” made the draft text more restrictive than the ICC rules.
16. The CHAIRMAN [Mr. LOEWE (Austria)] said that the point made by the previous speaker
seemed to be covered in article 14.
P 401
P 402
17. Mr. TANG Houzhi (China) said that he appreciated the point made by the Tanzanian
representative but had no strong feelings about the deletion or retention of the word
“only.” He did not feel that the addition proposed by the United States was necessary.
18. Mr. MTANGO (United Republic of Tanzania) said that the parties might disagree as to
whether certain doubts were justifiable. If so, who would decide the point? He supported
the addition to the text suggested by the United States.
19. The CHAIRMAN said that article 11(1) would permit a challenge on the ground of
nationality if that was in accordance with the wishes of the parties. He too felt that an
arbitrator's nationality might imply justifiable doubts about his impartiality or
independence. The reason why the draft text contained the provision in article 11(1) was of
course that under the laws of some countries foreigners could not be appointed as
arbitrators.
20. Sir Michael MUSTILL (United Kingdom) said that if an arbitrator's nationality raised
justifiable doubts about his impartiality or independence, he could be challenged under
article 12(2). That situation would not alter if the word “only” was deleted.
21. Mr. HOLTZMANN (United States of America) agreed. He did not think the deletion of the
word “only” would make any difference. However, the corresponding paragraph of the
UNCITRAL Arbitration Rules did not use the word “only,” and it might be considered that
the Commission follow that example.
22. Mr. LAVINA (Philippines) said that he too favoured the idea of deleting the word “only.”
He supported the drafting suggestion made by the representative of India.
23. Mr. EYZAGUIRRE (Observer, Inter–American Bar Association) said that the word “only”
should be retained, since it seemed that its deletion would give rise to differing
interpretations by different delegations. He supported the written proposal of the United
States Government.
24. Mr. KADI (Algeria) said that if the Commission with its expert knowledge could not agree
on the interpretation of the article, Governments would find it difficult to understand it
clearly.
25. Mr. MOELLER (Observer for Finland) endorsed the remarks made by the Hungarian
representative and by the observer for the Inter–American Bar Association. He supported
the United States written proposal.
26. Mr. MTANGO (United Republic of Tanzania) pointed out that the Commission had
decided at its twelfth session that the model law should take due account of the UNCITRAL
Arbitration Rules, but the corresponding paragraph of those Rules did not contain the word
“only.”
27. Mr. HERRMANN (International Trade Law Branch) said that the Working Group had
included the word “only” with the intention of clarifying the meaning of the article. It was
P 402 important to bear in mind the difference between a model law, intended for adoption as
P 403 national legislation, and a set of optional rules which might become part of a contract.
He thought the real issue was not the retention or deletion of the word “only” but whether
to extend the scope of the article.
28. Mr. de HOYOS GUTIERREZ (Cuba) said that the deletion of the word “only” would make
no difference to the meaning. The addition proposed by the United States Government
would make the article less restrictive.
29. Mr. SEKHON (India) said that the concept of justifiable doubts as to an arbitrator's
impartiality or independence did not seem a restrictive one at all.
30. Mrs. RATIB (Egypt) said that article 11(5) stated that a court appointing an arbitrator
should consider any qualifications agreed upon by the parties as well as the likelihood of
the impartiality and independence of the arbitrator. Perhaps a similar formulation should
be employed in article 12(2).

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 31. Mr. ROEHRICH (France) said that impartiality and independence were already wide–
ranging concepts. If the United States written proposal was adopted, the word “only” might
be retained.
32. Mr. SZASZ (Hungary) said that in his country, the sentence would be interpreted
restrictively even without the word “only.”
33. Mr. ILLESCAS ORTIZ (Spain) said that the word “only” should be retained, since it made
the restrictive meaning of the article clear. In most cases a party would specify the reason
for his doubts about the arbitrator's impartiality or independence when challenging him.
National legislators would be free to specify other grounds than those mentioned in article
12(2) when they adopted the model law. However, his delegation would not object to the
addition proposed by the United States.
34. Sir Michael MUSTILL (United Kingdom) said that the Commission's difficulty with article
12(2) stemmed from the unresolved uncertainty about the meaning of the words “matters
governed by this law” in article 5. If it was true that a challenge on a ground agreed
between the parties did not constitute a challenge on a ground contained in the model
law, article 5 meant nothing and served only to emphasize the lack of clarity about the
model law which permeated its entire text. [Editors' Note: Sir Michael was referring to an
earlier discussion in connection with Article 5, the Summary Record of which appears at pp.
229–37 supra.]
35. Mr. ABOUL–ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration)
suggested that a provision should be added to article 12(2) to the effect that the parties
might agree on other grounds for a challenge.
36. Mr. LAVINA (Philippines) said that it would be helpful to have some clear indication
whether the Commission wished to delete the word “only.” Accordingly, he made a formal
proposal for the Commission to have an “indicative vote” on the issue. That method was
not new and had been used by the Commission in the past.
37. Mr. MTANGO (United Republic of Tanzania) observed that support had been expressed
for the idea of deleting the word.
P 403
P 404
38. The CHAIRMAN said he felt it was the view of the majority of the Commission that the
word “only” should be retained. The report might explain that the intention of article 12(2)
was the same as that of article 10(1) of the UNCITRAL Arbitration Rules. The United States
written proposal appeared to command considerable support. It should perhaps be made
clear, on incorporating it into the draft text, that in exceptional cases the concept of
“justifiable doubts” might extend to the nationality of an arbitrator. He suggested that the
representatives of the United States, India and Algeria, and any others interested, should
meet with the Secretariat in order to decide the best way of incorporating the United
States proposal into the article.
39. It was so agreed.
[19 June 1985, 9:30 A.M., A/CN.9/SR.330]
Article 12. Grounds for challenge (continued) (A/CN.9/XVIII/CRP.9)
67. Mr. HOLTZMANN (United States of America) said that the Ad Hoc Working Party had
reconsidered its proposal (A/CN.9/XVIII/CRP.9) (*) and had concluded that there was some
ambiguity as to whether the term “justifiable doubts” qualified the words “or as to any
other qualification agreed by the parties.” It now proposed that those words should be
replaced by “or if he does not possess qualifications agreed by the parties.”
68. The CHAIRMAN suggested that the Commission should accept the proposal by the Ad
Hoc Working Party.
69. It was so agreed.
[20 June 1985, 3:00 p.m., A/CN.9/SR.332]
Article 12 [as revised by the Drafting Group]
32. Mr. SAMI (Iraq) pointed out that the reference to impartiality or independence had not
been rendered correctly in the Arabic text.
33. Article 12 was adopted without change, subject to the correction in the Arabic version
requested by the representative of Iraq.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 12. Grounds for challenge
112. The text of article 12 as considered by the Commission was as follows:
P 404
P 405
[same as Fifth Draft, supra].
Paragraph (1)
113. The Commission adopted paragraph (1).

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 Paragraph (2)
114. It was noted that parties sometimes agreed that arbitrators had to have certain
professional or trade qualifications and it was proposed that the model law should respect
that aspect of party autonomy by including in paragraph (2) a reference to any additional
grounds for challenge on which the parties might agree. While some doubt was expressed
as to the necessity for making such an addition to article 12, the Commission decided to
adopt the proposal and requested an ad hoc working party, composed of the
representatives of Algeria, India and the United States, to prepare a draft reflecting the
decision.
115. On the basis of a proposal by the ad hoc working party, the Commission adopted the
following amended wording of the first sentence of article 12(2): “An arbitrator may be
challenged only if circumstances exist that give rise to justifiable doubts as to his
impartiality or independence, or if he does not possess qualifications agreed to by the
parties.”
116. Divergent views were expressed as to the word “only” in the first sentence of paragraph
(2). Under one view, the word should be deleted because there might be grounds for
challenge which would not necessarily be covered by the words “impartiality or
independence.” By way of example, it was suggested that, without calling into question the
integrity or impartiality of an arbitrator, his nationality might be a sound ground for
challenge in view of the policies followed by his Government.
117. Under another view, the word “only” was useful in that it excluded other grounds for
challenge not dealt with in the model law. It was pointed out that in most cases of the type
falling within the example cited above the circumstances would in any event give rise to
justifiable doubts as to the impartiality or independence of the arbitrator.
118. Under yet another view, the first sentence of paragraph (2) should be interpreted as
limiting the grounds for challenge to the grounds provided in the model law even without
the word “only.” However, in order to make that point clear, some proponents of that view
suggested the retention of the word “only.”
119. The Commission decided to retain the word “only” in the first sentence of paragraph
(2). In doing so, the Commission observed that the corresponding provision of article 10(1)
of the UNCITRAL Arbitration Rules, on which the discussed provision of the model law was
modeled, did not contain the word “only.” However, it was suggested that the UNCITRAL
Arbitration Rules as contractual rules could not affect the application of any other grounds
for challenge provided in mandatory rules in the applicable law, whereas it might be
desirable that the model law prevented such other grounds for challenge from being
applied in international commercial arbitration.
P 405

References
1) First Working Group Report, A/CN.9/216, para. 43, p. 393 infra.
2) See First Secretariat Note, A/CN.9/207, para. 65, p. 391 infra.
3) See Summary Record, A/CN.9/SR.313, para. 14, p. 401 infra (“impartiality or
independence, did not cover all the grounds for challenge mentioned in national
legislation”). But see Seventh Secretariat Note. A/ CN.9/264, Art. 12, para. 4, p. 399 infra
(“it would be difficult to find any … reason [listed in a national law] which would not be
covered by the general formula [in the Model Law]”). Some national laws provide that
the arbitrators must be local nationals. Such an objection would not be per se a ground
for challenge under the Law. See Article 11(1); see also Summary Record, A/CN.9/SR.313,
para. 19, p. 402 infra.
4) Cf. First Secretariat Note, A/CN.9/207, para. 65, p. 391 infra (noting these common
grounds contained in national laws).
5) Seventh Secretariat Note, A/CN.9/264, Art. 12, para. 5, p. 399 infra (suggesting that
Commission express this interpretation in text).
6) See Summary Record, A/CN.9/SR.313, paras. 13, 14, 19, 20, pp. 401–02 infra.
7) See Summary Record, A/CN.9/SR.313, paras. 9–39, pp. 401–04 infra; Commission Report,
A/40/17, paras. 116–119, p. 405 infra.
8) See First Secretariat Note, A/CN.9/207, para. 66, p. 391 infra; First Working Group
Report, A/CN.9/216, para. 43, p. 393 infra; First Draft, A/CN.9/WG.II/WP.37, Arts. 7 and 8,
nn. 18 and 19, p. 393 infra.
9) Article 9 of the UNCITRAL Arbitration Rules reads,
A prospective arbitrator shall disclose to those who approach him in connexion with
his possible appointment any circumstances likely to give rise to justifiable doubts as
to his impartiality or independence. An arbitrator, once appointed or chosen, shall
disclose such circumstances to the parties unless they have already been informed by
him of these circumstances.
10) See Seventh Secretariat Note, A/CN.9/264, Art. 12, para. 2, p. 399 infra.

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 11) Third Working Group Report, A/CN.9/233, para. 106, p. 395 infra; Second Working Group
Report, A/CN.9/232, para. 58, p. 394 infra. It should be noted that under this sentence
(as under the UNCITRAL Rule provision), the circumstances must be disclosed to the
parties even if they were already disclosed to others under the first sentence. See
Seventh Secretariat Note, A/CN.9/264, Art. 12, para. 3, p. 399 infra.
12) Commission Report, A/40/17, paras. 116–119, p. 405 infra.
13) Id para. 119; Summary Record, A/CN.9/SR.313, para. 27, pp. 402–03 infra. Of course, as
indicated immediately below, the parties may, by agreement, add other grounds on
which a challenge may be based. Such grounds presumably must be consistent with
the mandatory independence–and–impartiality grounds contained in Article 12.
14) See generally Commission Report, A/40/17, paras. 114–115, p. 405 infra; Sixth
Secretariat Note (Government Comments), A/CN.9/263, Art. 12, para. 3, p. 398 infra.
15) Compare Article 10 of the UNCITRAL Arbitration Rules, which reads,
(1) Any arbitrator may be challenged if circumstances exist that give rise to
justifiable doubts as to the arbitrator's impartiality or independence.
(2) A party may challenge the arbitrator appointed by him only for reasons of which
he becomes aware after the appointment has been made.
16) Fifth Working Group Report, A/CN.9/246, para. 34, p. 397 infra.
17) See Seventh Secretariat Note, A/CN.9/264, Art. 12, para. 6, p. 400 infra. Article 6(3) of
the UNCITRAL Arbitration Rules, which provides for the exchange of lists of possible
arbitrators, is an example of such an appointment procedure. Id.
27) Art. 9: “A prospective arbitrator shall disclose to those who approach him in connexion
with his possible appointment any circumstances likely to give rise to justifiable
doubts as to his impartiality or independence. An arbitrator, once appointed or
chosen, shall disclose such circumstances to the parties unless they have already been
informed by him of these circumstances.”
Art. 10(2): “A party may challenge the arbitrator appointed by him only for reasons of
which he becomes aware after the appointment has been made.”
28) [European Convention Providing a Uniform Law on Arbitration, Europ. T.S. No. 56,] Art.
12(2): “A party may not challenge an arbitrator appointed by him except on a ground of
which the party becomes aware after the appointment.”
17) Discussion and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, paras. 42–45, 50, 52, 75. [Editors' Note: Paragraph 43 appears directly above;
the remaining cited paragraphs appear in the sections on Articles 11, 13 and 14.] The draft
provisions of this section might later be placed after the draft provisions on the
appointment of arbitrators [Articles 13–17 in the First Draft, Articles 10–11 in the final
text].
18) This draft provision is modeled on article 9 of the UNCITRAL Arbitration Rules.
19) This draft provision is modeled on article 10 of the UNCITRAL Arbitration Rules.
24) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 104–106.
43) [Third Working Group Report,] A/CN.9/233, para. 105 [p. 395 supra].
44) See [the Seventh Secretariat Note,] commentary to article 14, para. 4, and to article 19,
para. 9 [appearing in the sections on Article 14 and Article 18, pp. 454 & 560 infra,
respectively].
*) [Editors' Note: This Conference Room Paper, dated 11 June 1985, read as follows:
Article 12
PROPOSAL BY AD HOC WORKING PARTY (COMPOSED OF THE REPRESENTATIVES OF
ALGERIA, INDIA AND THE UNITED STATES)
Suggested modification of the first sentence of paragraph (2) of article 12:
“(2) An arbitrator may be challenged only if circumstances exist that give rise to
justifiable doubts as to his impartiality or independence, or as to any other qualification
agreed by the parties.”]

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Document information
UNCITRAL Model Law, Chapter III, Article 13 [Challenge
Publication procedure]
A Guide to the UNCITRAL (1) The parties are free to agree on a procedure for challenging an arbitrator, subject to
Model Law on International the provisions of paragraph (3) of this article.
Commercial Arbitration:
Legislative History and (2) Failing such agreement, a party who intends to challenge an arbitrator shall, within
Commentary fifteen days after becoming aware of the constitution of the arbitral tribunal or after
becoming aware of any circumstance referred to in article 12(2), send a written
statement of the reasons for the challenge to the arbitral tribunal. Unless the
challenged arbitrator withdraws from his office or the other party agrees to the
Organization challenge, the arbitral tribunal shall decide on the challenge.
United Nations Commission (3) If a challenge under any procedure agreed upon by the parties or under the
on International Trade Law procedure of paragraph (2) of this article is not successful, the challenging party
may request, within thirty days after having received notice of the decision rejecting
the challenge, the court or other authority specified in article 6 to decide on the
Promulgation challenge, which decision shall be subject to no appeal; while such a request is
pending, the arbitral tribunal, including the challenged arbitrator, may continue the
21 June 1985 arbitral proceedings and make an award.

Commentary
Legislation number Article 13, like Articles 5, 8, and 16 and, to a lesser extent, Article 14, raises the critical
United Nations Document question of the extent of court interference in or assistance to an arbitration that is to be
A/40/17, Annex I permitted during the arbitral proceedings. It was on this question that the Commission
displayed the greatest difference of views. Other features of this article were settled early.
It was clear from the outset that the Model Law should recognize the parties' freedom to
Bibliographic reference agree on a procedure for challenging an arbitrator. (1) It was also decided at an early stage
to provide a supplementary procedure in case the parties failed to agree on one. (2)
'UNCITRAL Model Law, Further, at least by the Commission stage there was general agreement that under the
Chapter III, Article 13 P 406 supplementary procedure — i.e., where the parties have not agreed upon a different
[Challenge procedure]', in P 407 procedure — the arbitral tribunal, including the challenged arbitrator, should decide
Howard M. Holtzmann and the challenge as an initial matter. (3) The only provision that occasioned continued debate
Joseph Neuhaus , A Guide to throughout both the Working Group's and the Commission's consideration of the Article was
the UNCITRAL Model Law on paragraph 3, which governs the scope of court intervention in deciding challenges.
International Commercial
Arbitration: Legislative A wide variety of alternatives were considered on this question. At one extreme was a
History and Commentary, proposal to permit a party challenging an arbitrator to resort to the court immediately
(© Kluwer Law International; after denial of the challenge by the arbitral tribunal or other body, with the arbitral
Kluwer Law International proceedings held in abeyance pending the court's decision. The proponents of this view
1989) pp. 406 - 436 argued that settling the question immediately in this way would help avoid delays and
controversy occasioned by proceedings being conducted by a challenged arbitrator, and
would reduce the risk of an award being set aside. (4) At the other extreme were those who
argued that resort to a court to settle a challenge should not be allowed during the arbitral
proceedings but only by way of an application to set aside the award. The argument in
favor of this view was that allowing for immediate court intervention provided an
opportunity for dilatory tactics that would effectively enable a party to obtain a
postponement of the proceedings at any time. (5) The Working Group adopted “a
compromise solution” (6) that is essentially the provision contained in the final text. It
provides for immediate court review of unsuccessful challenges, but with three features
designed to reduce the risk of delay: a short time period for seeking court review, no
appeal of the court's decision, and, most important, discretion in the arbitral tribunal to
continue the arbitration during the court proceedings. The court is to review all
unsuccessful challenges, whether decided initially by the arbitral tribunal under
paragraph 2 of Article 13 or by another body under an agreed-on challenge procedure.
During the Commission's deliberations, a number of modifications to this scheme were
P 407 proposed. On the one hand, it was suggested that the court, and not only the arbitral
P 408 tribunal, should have the power to order a stay of the arbitral proceedings. (7) On the
other hand, a number of suggestions were made to limit court intervention, including (1)
allowing the arbitral tribunal to decide whether court review would occur immediately or
only after an award; (2) restricting the operation of paragraph 3 to those cases where the
sole arbitrator or a majority of the arbitrators were challenged; and (3) restricting the
operation of paragraph 3 to those cases in which the parties had not agreed on another
procedure for resolving challenges, such as one that entrusted final decision of challenges
to a third person or an institu-tion. (8) In favor of this last proposal it was argued that
parties preferred arbitration to court proceedings in part because it was quick and
confidential. Because arbitrators might well stay proceedings pending a court's decision, it
was said, and because court proceedings are public, allowing court review of challenges
nullified these advantages. (9) It was noted in reply that it was impossible to predict what
challenge procedures the parties might choose, so that court review was necessary to
ensure fair procedures. Further, it was said that an arbitral tribunal would probably not
stay its proceedings and a court would be less likely to uphold a challenge in cases where

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 that challenge had already been rejected by an arbitral institution. (10) In the end, the
Commission retained the balance struck by the Working Group between preventing
obstruction or delay and avoiding unnecessary arbitral proceedings.
One question that is left unresolved by Article 13 is the effect of a failure to raise a timely
challenge. The Commission did not address or adopt a written proposal that would have
explicitly barred a party from raising such a challenge both during the arbitral
proceedings and in subsequent court proceedings pursuant to Article 34 and 36. (11) With
respect to the use of the challenge procedure per se, this result is clearly implied in
Articles 12 and 13. Those Articles provide a right to challenge an arbitrator only under
certain conditions, and those conditions include a requirement that the challenge be
brought within the time limit stated therein. Thus, a party who fails to raise a timely
challenge should presumably be barred from using that mechanism to raise his objections.
A different question arises, however, where the objections on which a challenge could have
been based are not raised until the setting aside or enforcement proceedings. It has been
P 408 suggested that a party would not be allowed in those proceedings to rely on circumstances
P 409 forming the basis of a potential challenge. (12) There is much to be said from a policy
perspective for the view (which the authors of this book share) that a party who knows of a
basis for a challenge but waits to raise the matter until after an award against him is
issued should not be allowed to attack the award on that basis. And it may be argued that
Article 13 sets forth specific time limits within which a challenge can be made, and failure
to comply with those time limits bars a later effort to attack the award on the grounds on
which the challenge could have been based.
It should be noted, however, that Article 4 of the Model Law may be read to suggest the
contrary, at least as to certain fundamental objections. Under that Article, a party waives
objections that provisions of the Model Law or of the arbitration agreement have not been
complied with if he or she fails to raise them in a timely manner, but the waiver applies
only to provisions of the Law “from which the parties may derogate,” i.e., nonmandatory
provisions. The requirement that an arbitrator be impartial and independent, which is
implicit in Article 12(2), is a mandatory one; the parties may not agree to have a partial or
non–independent arbitrator. Therefore, a waiver under Article 4 may not be implied from
failure to raise a timely challenge to the impartiality or independence of an arbitrator. It
may be argued that, since Article 4 deals specifically with the question of when waivers
should be implied from failures to object, waivers should not be implied except under the
conditions set forth in that Article. Those conditions include the stipulation that the
provision of the Law that is violated must be a nonmandatory one. (13) If this is so — if
Article 4 is seen as the sole source of law with respect to implying waivers — then a party
would be able, in proceedings under Articles 34 and 36, to raise objections that are based
on an alleged lack of impartiality or independence of the arbitrator, even if that party
were aware of the asserted failing during the arbitration and did not bring a timely
challenge. There is a policy rationale for this result as well, in that a court might
P 409 understandably hesitate to uphold an award issued by an arbitral tribunal constituted
P 410 contrary to the mandatory requirements of the Law. (14) (In any event, of course, the fact
that a party did not make a timely challenge might well influence the court when it weighs
the bona fides of a challenge by a losing party that had not been made within the period
established by Article 13.)

Legislative History
SECRETARIAT COMMENTS ON AALCC PROPOSALS
A/CN.9/127/ADD.1 (21 APRIL 1977)
[Editors' Note: On 5 July 1976, the Asian–African Legal Consultative Committee (AALCC)
adopted a decision inviting UNCITRAL to consider the possibility of preparing a protocol to
the New York Convention with a view to clarifying, inter alia, certain matters of arbitral
procedure. This suggestion ultimately led to the preparation of the Model Law. The AALCC
decision appears in the section on Purposes and Procedures of the Commission, p. 1162 infra.
In a Secretariat Note commenting on the AALCC decision, the Secretariat touched very briefly
on the question of the procedures to be used in challenging arbitrators, which is the subject
matter of Article 13 of the Model Law. This discussion appears below; the full text of the Note
appears at pp. 1163–66 infra.]
4. The thrust of the AALCC proposal is that the procedural arbitration rules agreed upon by
the parties should be given full effect, provided that these rules are fair to both parties,
even if they are in conflict with the mandatory provisions of the law applicable at the
place of arbitration or at the place where recognition and enforcement of the arbitral
award is sought. The proposal pertains both to the conduct of arbitration proceedings and
to the recognition and enforcement of the award. Thus, by way of example, if the
applicable law provides for the exclusive jurisdiction of the court in the case of challenge
of an arbitrator and the arbitration rules chosen by the parties provide that the decision
on the challenge will be made by an appointing authority (cf. article 12 of the UNCITRAL
Arbitration Rules), the rule agreed upon by the parties should, under the AALCC proposal,
prevail, and non–compliance with the applicable law in this respect should not as such be
a ground on which recognition and enforcement could be refused. [ … ]
FIRST SECRETARIAT NOTE

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 POSSIBLE FEATURES OF A MODEL LAW
A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
III. Arbitrators
[ .… ]
2. Challenge
P 410
P 411 65. As regards challenge of arbitrators, the issues to be considered are onwhat grounds
an arbitrator may be challenged and by what procedure, including any court involvement.
[…]
66. As to the procedure of challenging an arbitrator, it is suggested that the model law
guarantee the parties' freedom to agree on the procedure to be followed in case of a
challenge. In particular, it should recognize any agreement as to the person or body called
upon to decide about the challenge (e.g. the arbitral tribunal, the Court of Arbitration, the
Secretary or a special committee of an arbitration association, or an appointing authority).
However, it will have to be considered, and expressly stated in the model law, whether
resort to courts should be allowed only if so stipulated in the arbitration agreement or
whether it should be envisaged, irrespective of such stipulation, as a last resort in order to
avoid a deadlock. Finally, one may consider providing “supplementary” rules for those
cases where parties have not regulated the challenge procedure. [ … ]
SECOND SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW:
QUESTIONS FOR DISCUSSION
A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
III. Arbitrators
[ .… ]
2. Challenge (report [First Secretariat Note, supra], paras. 65–66)
[ .… ]
P 411 Question
P 412 3–4: As regards the procedure of challenging an arbitrator, should the model law
recognize any agreement of the parties thereon even if it would exclude (last) resort
to a court?
Question
3–5: Should supplementary rules be included for those cases where parties have not
regulated the challenge procedure?
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
III. Arbitrators
[ .… ]
2. Challenge
[ .… ]
Question
3–4: As regards the procedure of challenging an arbitrator, should the model law
recognize any agreement of the parties thereon even if it would exclude (last) resort
to a court?
Question
3–5: Should supplementary rules be included for those cases where parties have not
regulated the challenge procedure?
44. It was generally agreed that, as regards the procedure for challenging an arbitrator,
stipulations of the parties regulating the procedure should be recognized by the model
law. However, there was no agreement on whether a last resort to courts could be excluded
by such stipulations. Under one view, the final decision on a challenge should always lie
with a court. Under another view, the freedom of parties to agree on the procedure of
challenge was to be recognized, but resort to courts should be provided in cases where the
stipulated procedure led to a deadlock. It was noted that such resort could also be
provided for during the arbitration proceedings (in order to avoid delays in these
proceedings through a speedy court decision on the challenge), or incorporated in those
procedures which provided to a party recourse against an award (where an alleged ground

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 for challenge would constitute a reason for attacking the award). The Working Group agreed
that this question needed further consideration. The Working Group requested the
Secretariat to prepare a study on these issues.
45. Divergent views were expressed as to whether the model law should set forth
supplementary rules for those cases where parties had not themselves regulated the
challenge procedure. Under one view, it was not in accordance with the purpose of a
model law to incorporate detailed rules on such a procedural issue. Under another view, it
would be useful if the model law would set forth a mechanism for challenge in order to
avoid protracted controversy and delay in the arbitration proceedings. The Secretariat was
requested to include in its study on the issue of challenge the question of what
supplementary rules might be appropriate.
FIRST DRAFT
A/CN.9/WG.II/WP.37 (15 JULY 1982)
III. Arbitrators
[ .… ]
1.–2. Qualifications, challenge (and replacement) (17)
[ .… ]
Article 9 [Art. 13 in the final text]
(1) Subject to the provisions of article 10 [infra], the parties are free to agree on the
procedure for challenging an arbitrator.
(2) Failing such agreement, the following procedure shall be used: (20)
(a) A party who intends to challenge an arbitrator shall, within fifteen days after
P 412 knowing about the appointment of that arbitrator or about the circumstances
P 413 mentioned in articles 7 and 8 [Art. 12(1) and (2) in the final text], send a
written statement of the reasons for the challenge to the other party and to all
arbitrators;
(b) When an arbitrator has been challenged by one party, the other party may
agree to the challenge. The arbitrator may also, after the challenge, withdraw
from his office. In neither case does this imply acceptance of the validity of the
grounds for the challenge;
(c) If within [20] days after the challenge, the other party does not agree to the
challenge and the challenged arbitrator does not withdraw, [the decision on the
challenge shall be made by the Authority specified in article 17 [Art. 6 in the
final text]] [the challenging party may pursue his objections before a court only
in an action for setting aside the award or any recourse against recognition and
enforcement of the award]. (21)
Article 10 [Art. 13 in the final text]
If, under any procedure for challenge agreed upon by the parties, the challenged arbitrator
does not withdraw or the challenge is not sustained by the person or body entrusted with
the decision on the challenge, the challenging party may [request the Authority specified
in article 17 [Art. 6 in the final text] to make a final decision on the challenge] [pursue his
objections before a court only in an action for setting aside the award or any recourse
against recognition and enforcement of the award]. (22)
[ .… ]
3–4. Number and appointment of arbitrators (25)
[ .… ]
Article 17 [Arts. 6 & 11 in the final text]
P 413
P 414 (1) The Authority, referred to in articles 9(2)(c), 10, 11(b), 15(2), 16(1)(a), (d), (2) [Arts. 11,
13, and 14 in the final text] and …, shall be the … (e.g., specific chamber of a given
court, president of a specified court, to be determined by each State when enacting
the model law). (29)
(2) The Authority shall act upon request by any of the parties or by the arbitral tribunal,
unless otherwise provided for in a provision of this Law.
[Editors' Note: For the text of paragraph 3, see the section on Article 11, p. 368 supra.]
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Arbitrators
Qualifications, challenge (and replacement)
[ .… ]

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 Article 9 [Art. 13 in the final text]
61. The text of article 9 as considered by the Working Group was as follows:
[same as First Draft, supra].
62. It was suggested that articles 9, 10 and 11 [Arts. 13 & 14 in the final text] should be
reorganized to make them more concise. It was further suggested that the relationship
between the time–period of 15 days in paragraph (2)(a) and the time–period of 20 days in
paragraph (2)(c) should be more clearly expressed and that the starting points of these
time–limits should be clarified. It was noted that the implementation of this observation
may become unnecessary if in redrafting this article the time–limits were deleted.
63. Practical and theoretical arguments were presented in favour of both alternatives in
paragraph (2)(c). Although the view in favour of the first alternative received more support
than did the second, the Working Group decided to retain both alternatives for future
discussion.
Article 10 [Art. 13 in the final text]
64. The text of article 10 as considered by the Working Group was as follows:
[same as First Draft, supra].
65. The Working Group deferred the discussion on this article until the rearrangement of
articles 9, 10 and 11 [Arts. 13 & 14 in the final text] has been made in accordance with the
decision under article 9.
P 414
P 415
[ .… ]
Number and appointment of arbitrators
[ .… ]
Article 17 [Arts. 6 & 11 in the final text]
89. The text of article 17 as considered by the Working Group was as follows:
[same as First Draft, supra].
[Editors' Note: Paragraphs 90–96 appear in the section on Article 6, p. 243 supra.]
97. In respect of paragraph (2) of this article it was suggested that individual arbitrators
could apply to the Authority in cases in which not all the members of the arbitral tribunal
were appointed and therefore the arbitral tribunal could not be constituted. It was also
suggested that arbitrators should be authorized to apply to the Authority only for
appointment of other arbitrators and not in other cases in which the parties could apply to
the Authority.
98. It was suggested that it would be useful to authorize the Authority to consult an arbitral
institution in the fulfillment of its tasks. In response it was observed that the Authority was
free to consult institutions of its choice and that a special provision to this effect was
unnecessary.
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
C. Arbitration and the courts
[ .… ]
Article V [Art. 6 in the final text]
(1) The special Court entrusted by this Law with functions of arbitration assistance and
control [under articles VIII(2), (3), X(2)/(3), XI(2), XIII(3), XIV, XXV, XXVI … [Arts. 11, 13, 14,
16, 17, and 35 in the final text] shall be the … (blanks to be filled by each State when
enacting the model law). (9)
(2) Unless otherwise provided in this Law,
(a) this Court shall act upon request by any party or the arbitral tribunal; (10) and
(b) the decisions of this Court shall be final. (11)
P 415
P 416
D. Composition of arbitral tribunal
[ .… ]
Article X [Art. 13 in the final text]
(1) The parties are free to agree on the procedure for challenging an arbitrator subject to
the provisions of paragraph (3) of this article. (12)
Alternative A:
(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within
fifteen days after knowing about the appointment or the circumstances referred to in

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 article IX(2) [Art. 12(2) in the final text], send a written statement of the reasons for the
challenge to the other party and to all arbitrators. The mandate of the arbitrator
terminates when the other party agrees to the challenge or the arbitrator withdraws
from his office; in neither case does this imply acceptance of the validity of the
grounds for the challenge.
(3) If a challenge
(a) under paragraph (2) of this article is not successful within 30 days after the
receipt of the written statement by the other party and by the challenged
arbitrator, (13) or
(b) under any challenge procedure agreed upon by the parties, is neither accepted
by the other party or the challenged arbitrator nor sustained by any person or
body entrusted with the decision on the challenge,
the challenging party may [request the Court specified in article V [Art. 6 in the final
text] to decide on the challenge] [pursue his objections before a court only in an
action for setting aside the arbitral award].
Alternative B:
(2) Where an arbitrator is challenged without success, whether or not under a procedure
agreed upon by the parties, the challenging party may [request the Court specified in
article V [Art. 6 in the final text] to decide on the challenge] [pursue his objections
before a court only in an action for setting aside the arbitral award].
P 416
P 417
THIRD WORKING GROUP REPORT
A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[ .… ]
C. Arbitration and the courts
[ .… ]
Article V [Art. 6 in the final text]
82. The text of Article V as considered by the Working Group was as follows:
[same as Second Draft, supra].
[Editors' Note: Paragraph 83 appears in the section on Article 6, p. 245 supra.]
Paragraph (2)
84. Divergent views were expressed as to the appropriateness of a provision along the lines
of paragraph (2). Under one view, the provision was useful in that it regulated some basic
features of the procedure to be followed by the Court, with the possibility of making
exceptions thereto in the model law itself. In support of subparagraph (b), it was pointed
out that it would serve the purpose of expediting the proceedings which was of special
importance in international commercial arbitration.
85. Under the prevailing view, however, the provision should not be retained. It was
pointed out that paragraph (2), in particular its subparagraph (b), infringed upon
fundamental concepts and rules of court procedure. Nevertheless, its procedural features
(right to request and finality of decision) might be included in individual provisions of the
model law entrusting the Court with certain functions.
86. The Working Group, after deliberation, decided not to retain paragraph (2) and to
consider settling the procedural questions in the context of the individual provisions
referring to the Court specified in article V.
D. Composition of arbitral tribunal
[ .… ]
Article X [Art. 13 in the final text]
107. The text of article X as considered by the Working Group was as follows:
[same as Second Draft, supra].
Paragraph (1)
108. The Working Group adopted that paragraph.
Paragraphs (2) and (3) of alternative A and paragraph (2) of alternative B
P 417
P 418 109. The Working Group was divided on whether alternative A or alternative B presented
the better approach. Under one view, alternative A was too detailed for a model law, in
particular subparagraphs (a) and (b) of paragraph (3), although it was recognized that a
time–period was useful. Under another view, alternative A was useful in providing
procedural guidance, while alternative B was regarded as too concise. The Working Group,
after deliberation, decided to take alternative A as the basis for future consideration and
requested the Secretariat to prepare a revised draft with a shorter version of paragraph

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 (3).
110. Divergent views were expressed on whether the challenging party may (a) request the
Court specified in article V to decide on the challenge or (b) pursue his objections before a
court only in an action for setting aside the arbitral award. The main reason in support of
the first alternative was that it would help to settle the question expeditiously and to
avoid the unfortunate situation that arbitration proceedings, with a party having
challenged an arbitrator, would have to be carried through. The main reason in support of
the second alternative was that it would help to prevent dilatory tactics by a party. In
response to this, some proponents of the first alternative pointed out that this concern
could be alleviated by setting a time–limit for resort to court and by allowing the arbitral
tribunal to continue with the proceedings until the decision by the court.
111. The Working Group, after deliberation, decided to retain both alternatives placed
between square brackets, with possible drafting amendments. It was understood, however,
that the final text of the model law should contain only one of the alternatives.
THIRD DRAFT
A/CN.9/WG.II/WP/45 (13 JUNE 1983)
C. Arbitration and the courts
[ .… ]
Article V [Art. 6 in the final text] (18)
[Editors' Note: For the text of Article V, see the section on Article 6, p. 245 supra.]
D. Composition of arbitral tribunal
[ .… ]
Article X [Art. 13 in the final text] (25)
(1) The parties are free to agree on the procedure for challenging an arbitrator, subject
to the provisions of paragraph (3) of this article.
P 418
P 419
(2) Failing such agreement, a party may challenge an arbitrator before the arbitral
tribunal within 15 days after knowing any circumstance referred to in article IX(2) [Art.
12(2) in the final text]. The mandate of the arbitrator terminates when he withdraws
from his office or the other party agrees to the challenge; [in neither case does this
imply] [neither reaction implies] acceptance of the validity of the grounds for the
challenge.
(3) If a challenge is not successful within 30 days under the procedure of paragraph (2) or
is not successful under any procedure agreed upon by the parties, the challenging
party may [pursue his objections before a court only in an action for setting aside the
arbitral award] [request, within 15 days, from the Court specified in article V [Art. 6 in
the final text] a decision on the challenge which shall be final; while such a request is
pending, the arbitral tribunal, including the challenged arbitrator, may continue the
arbitral proceedings]. (26)
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[ .… ]
Article X [Art. 13 in the final text]
205. The text of article X as considered by the Working Group was as follows:
[same as Third Draft, supra].
Paragraph (1)
206. The Working Group adopted this paragraph.
Paragraph (2)
207. It was noted that under this provision “a party may challenge an arbitrator before the
arbitral tribunal” but that the power of the arbitral tribunal to decide on such challenge
was not clearly expressed in this provision. The Working Group was agreed that, unless the
challenged arbitrator withdrew from his office or the other party agreed to the challenge,
the arbitral tribunal should decide on the challenge and that this step in the challenge
procedure should be clearly stated in paragraph (2), without laying down the procedural
details. It was understood that this step had no practical relevance in the case of a sole
arbitrator challenged by a party.
P 419
P 420 208. As to how the paragraph should be redrafted, various suggestions were made and
accepted by the Working Group. One proposal was to transfer to article IX [Art. 12 in the
final text] the whole text which followed the first sentence of paragraph (2), including the
words between the first square brackets. Paragraph (2) of article X would then merely deal
with the decision of the arbitral tribunal on the challenge which would become necessary

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 where neither the challenged arbitrator withdrew from his office nor the other party
agreed to the challenge. It was further suggested to require in paragraph (2) that a party
who challenged an arbitrator should state the reasons for the challenge.
Paragraph (3)
209. It was noted that the introductory wording of paragraph (3) had to be revised in the
light of the decision on paragraph (2). Divergent views were expressed concerning the
alternative solutions placed between square brackets. Under one view, resort to a court
should not be allowed during the arbitration proceedings but only by way of an
application for setting aside the award, as provided in the first square brackets. The main
reason advanced in support of this view was that dilatory tactics should be prevented,
although it was recognized by some proponents of that view that the revised version of the
alternative solution (between the second square brackets) contained some elements to
alleviate such fears.
210. Under another view, it was unacceptable to continue the arbitral proceedings without
first settling the matter by a final decision on the challenge. For that reason, the second
alternative should be adopted but without its last part which allowed the arbitral tribunal
to continue the arbitral proceedings while the question of challenge was pending with the
Court.
211. Under yet another view, the second alternative should be adopted including its last
part which, as was pointed out in support of this view, did not oblige the arbitral tribunal
to continue the proceedings but merely entitled it to do so. It was stated that this
discretion left to the arbitral tribunal would enable it to limit the adverse effects of an
unjustified challenge for dilatory purposes.
212. The Working Group, while recognizing the divergency of views and the validity of the
different reasons advanced in support thereof, was agreed that the issue had to be settled
and adopted, after deliberation, the latter view (reported in para. 211) as a compromise
solution.
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 13. Challenge procedure
(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to
the provisions of paragraph (3) of this article.
(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within
fifteen days after knowing any circumstance referred to in article 12(2), send a written
P 420 statement of the reasons for the challenge to the arbitral tribunal. Unless the
P 421 challenged arbitrator withdraws from his office or the other party agrees to the
challenge, the arbitral tribunal shall decide on the challenge.
(3) If a challenge under any procedure agreed upon by the parties or under the
procedure of paragraph (2) is not successful, the challenging party may request,
within fifteen days [after having received the decision rejecting the challenge], from
the Court specified in article 6 a decision on the challenge which shall be final; while
such a request is pending, the arbitral tribunal, including the challenged arbitrator,
may continue the arbitral proceedings.
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 13
36. The text of article 13 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
37. The Working Group adopted that article, subject to the replacement, in paragraph (2), of
the words “after becoming aware of any circumstances referred to in article 12(2)” by the
words “of the constitution of the arbitral tribunal or after becoming aware of any
circumstances referred to in article 12(2), whichever is later.”
38. The Working Group was agreed that the decision entrusted to the arbitral tribunal by
paragraph (2) of that article was not to be considered as a decision on a question of
procedure in the terms of article 29 and that the decision was entrusted to all members of
the tribunal, including the challenged arbitrator. In an arbitration with more than one
arbitrator, that decision may be made by a majority of all its members in accordance with
article 29 (first sentence).
39. The Working Group did not accept a suggestion to include in article 13 an explicit
statement to the effect that a successful challenge led to the termination on the mandate
of the challenged arbitrator. The Working Group felt that that legal effect of a successful
challenge was sufficiently clear by implication.

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 FIFTH DRAFT
A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 13. Challenge procedure
(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to
the provisions of paragraph (3) of this article.
P 421 (2) Failing such agreement, a party who intends to challenge an arbitrator shall, within
P 422 fifteen days of the constitution of the arbitral tribunal or after becoming aware of
any circumstance referred to in article 12(2), whichever is the later, send a written
statement of the reasons for the challenge to the arbitral tribunal. Unless the
challenged arbitrator withdraws from his office or the other party agrees to the
challenge, the arbitral tribunal shall decide on the challenge.
(3) If a challenge under any procedure agreed upon by the parties or under the
procedure of paragraph (2) of this article is not successful, the challenging party may
request, within fifteen days after having received notice of the decision rejecting the
challenge, the Court specified in article 6 to decide on the challenge, which decision
shall be final; while such a request is pending, the arbitral tribunal, including the
challenged arbitrator, may continue the arbitral proceedings.
SIXTH SECRETARIAT NOTE
ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Chapter III. Composition of arbitral tribunal
Chapter as a whole
[ .… ]
2. The German Democratic Republic is of the view that the periods of time provided in
articles 11 and 13 are too short and should be extended.
[ .… ]
Article 13. Challenge procedure
Article 13, paragraph (1)
1. As to the proposal of the United States concerning the words in paragraph (1) “subject to
the provisions of paragraph (3) of this article,” see paragraph 8, below.
Article 13, paragraph (2)
2. While the Federal Republic of Germany expresses the view that the challenged
arbitrator should not be involved in deciding on the challenge, Japan is of the view that it
is desirable to state in paragraph (2) that the arbitral tribunal, which has the power to
decide on the challenge, includes the challenged arbitrator. UNCTAD [United Nations
Conference on Trade and Development] notes that this rule could only apply if there were
three or more arbitrators.
3. The German Democratic Republic proposes to add to paragraph (2) of this article the
following provision on the challenge of a sole arbitrator: “If a sole arbitrator is challenged,
he may withdraw from his office. Otherwise his mandate will terminate on account of the
challenge.”
P 422
P 423
4. Norway is of the view that if a party does not raise an objection in the period of time
provided for in paragraph (2), he should be precluded from raising it not only during the
arbitral proceedings but also under articles 34(2)(a)(iv) and 36(1)(a)(iv) and that this should
be clearly expressed either in article 13 or in articles 34 and 36.
5. Sweden observes that under this article the challenged arbitrator appears to have full
freedom to withdraw and that as a result of such withdrawal, perhaps at an advanced stage
of the proceedings, the party who appointed the arbitrator may be adversely affected by
additional costs and delay. One approach to the problem may be to let the arbitral
tribunal decide whether a question of challenge shall be decided immediately or whether
the decision on the challenge should be left to the court before which the party may
contest the award.
6. Norway expresses the opinion that the period of time of 15 days provided in paragraph
(2) (and also in paragraph (3)) is too short to give the parties adequate opportunity to
challenge an arbitrator. The reason is that, in international arbitration, a communication is
often delivered to the addressee's solicitor at the place of arbitration and this solicitor
communicates with the addressee's solicitor at the addressee's place of business who
communicates with the addressee. A reply from the addressee will usually be transmitted
in the same way, and at each link some time is needed for processing the communication.

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 Taking into account the usual duration of an arbitration and the provision according to
which a challenge does not prevent the arbitral tribunal from continuing the proceedings,
Norway considers that it is not necessary to fix such a short period of time.
Article 13, paragraph (3)
7. The Federal Republic of Germany expresses the view that in cases, where under article 6
the parties have recourse to the State Court, such recourse is only justified if the parties
have not agreed on another procedure which would lead to a conclusive and binding
decision, with the exception of the recourse under article 34. Observing that under
paragraphs (3) and (4) of article 11 on the appointment of arbitrators, recourse to the Court
may be had only where the parties have not agreed on another procedure that would lead
to a conclusive and binding decision, the Federal Republic of Germany suggests that the
same reservation be made with respect to the court intervention under article 13(3). The
same suggestion is made in respect of article 14 (see paragraph 2 of the compilation of
comments on article 14) [p. 452 infra]).
8. Although paragraph (3) of article 13 contains certain safeguards against the dilatory
tactics of a recalcitrant party, the United States is concerned that an interlocutory court
challenge during the arbitration proceedings may serve to disrupt and unnecessarily add
to the costs of the arbitral process. At the same time it shares the view of arbitration
practitioners that the parties should have some ability to challenge an arbitrator and
obtain a determination prior to the rendering of an award. It is believed that the best
P 423 solution is for the parties to agree on a procedure for challenging an arbitrator and that a
P 424 court challenge during the proceedings should be allowed only if the parties have not
agreed on a procedure for challenges. The United States suggests replacing in paragraph
(1) the words “subject to the provisions of paragraph (3) of this article” by the words “and
the decision reached pursuant to that procedure shall be final.”
9. In view of the need to secure an impartial and independent arbitral tribunal and in view
of the faculty to continue the arbitral proceedings pending the court decision on the
challenge, Norway considers that an appeal against the court decision should not be
precluded, at least not in the case where the Court did not agree with the challenge. As to
the finality of the decision by the Court, Norway makes the same comment as that on
article 11(5) (see paragraph 5 of the compilation of comments on article 11 [p. 379 supra]).
10. The Soviet Union expresses the view that article 13(3) admits an exceptionally wide
judicial control over arbitral proceedings and that such control seems to be unjustified
and is likely to cause considerable delay. The risk of delay is not diminished by the fact
that the arbitral tribunal, including the challenged arbitrator, has the possibility to
continue the proceedings since this is only a possibility, whereas in practice the arbitral
tribunal will most likely refrain from continuing the proceedings until a decision is made
by the Court. The Soviet Union proposes to discuss the expediency of deleting paragraph
(3) or, at least, limiting it considerably in its scope so that it would apply, for example, to
the rare cases where the sole arbitrator or a majority of the arbitrators are challenged, in
which case the decision by the arbitral tribunal on the challenge, as provided in paragraph
(2), might raise doubts. In other situations the judicial control concerning the impartiality
and independence of arbitrators could, without prejudice to the rights of the parties,
appropriately be performed after the termination of the arbitral proceedings.
11. The German Democratic Republic proposes to specify the Court which has jurisdiction
under article 13(3) by adding the words “in the country where the arbitration takes place”
between the words “the Court” and the words “specified in article 6.” The same proposal is
made in the context of article 14.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 13. Challenge procedure
Article 13, paragraph (1)
1. ICC [International Chamber of Commerce] observes that, although paragraph (1) leaves
freedom to the parties to agree on a challenge procedure, paragraph (3) unfortunately
limits the scope of the freedom considerably by giving a party the right to request the
P 424 Court to decide on the challenge if the challenge under the procedure agreed upon is not
P 425 successful. In the opinion of ICC, this limitation of the parties' right to agree on the
challenge procedure is undesirable for the following reason. Parties prefer arbitration to
court proceedings, among other reasons, because of its confidential character. If a State
Court is to try a case according to paragraph (3), it is feared that the dispute will become
public (parties' identity, amount in dispute, etc.) with sometimes devastating effects to the
parties' image and financial position. Dilatory tactics must be curtailed. Arbitration would
become less attractive to the parties, if desirable at all, where arbitration proceedings
could be held up and matters sent to a State Court by simply challenging, bona or mala
fide, an arbitrator; arbitration would become less attractive also to the arbitrators knowing
that their competence and ethics are at risk of being discussed publicly in a Court every
time they accept to arbitrate. The model law should therefore treat different cases
differently. Recourse to Court is acceptable in ad hoc arbitrations, but parties should be

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 free to exclude such intervention where the institutional rules they have chosen contain
provisions in this respect.
Article 13, paragraph (2)
2. Yugoslavia and ICC object to paragraph (2) according to which the arbitral tribunal,
including the challenged arbitrator, decides on the challenge. ICC is of the view that
arbitrators should not be their own judge in matters of challenge. Yugoslavia observes that
it is hard to expect an arbitral tribunal to be objective if the arbitrator whose challenge is
requested participates in the decision–making; this is particularly so where a sole
arbitrator is challenged. In the view of Yugoslavia, it seems to be more appropriate, at
least in the case of a permanent arbitral institution, that a governing council or an ad hoc
body should make decisions in such matters.
Article 13, paragraph (3)
3. Canada, with regard to the provision in paragraph (3) that the decision of the Court shall
be final, poses the question whether it means a “final decision” of the Court and, therefore,
one subject to appeal to a higher court, or whether it means that the decision itself is final
and cannot be appealed. The provision is unclear, at least in a common law context, and
should be clarified. If the second meaning is the one intended, the paragraph might
convey it better if the words “and binding” were added after the word “final. “
4. The Sudan is of the opinion that it would be safer and more just to add the following text
at the end of paragraph (3): “only where such continuance does not prejudice the claim or
defence of the challenging party.”
A/CN.9/263/ADD.3 (31 JULY 1985)
(COMMENTS OF EGYPT)
II. Comments on the articles
[ .… ]
27. Article 13, paragraph 3: This paragraph allows the arbitral tribunal, where the
P 425 challenged application is before the court specified in article 6, to continue with the
P 426 arbitral proceedings. We believe it is preferable also to grant the tribunal the power to
order the suspension of the proceedings whenever it is aware of the existence of grounds to
justify such a step.
28. If this proposal is accepted by the Commission, the last phrase of paragraph 3 should
be drafted as follows:
“… while such a request is pending, the arbitral tribunal, including the
challenged arbitrator, may continue the arbitral proceedings, unless the
tribunal orders their suspension.”
SEVENTH SECRETARIAT NOTE
ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1985)
Article 13. Challenge procedure
[ .… ]
Freedom to agree, and its limits, paragraph (1)
1. Paragraph (1) recognizes the freedom of the parties to agree on a procedure for
challenging an arbitrator, while the reasons for such a challenge are exhaustively laid
down in the mandatory provision of article 12(2).
2. The model law, thus, gives full effect to any agreement on how a challenge may be
brought and decided upon. However, there is one specific restriction. (45) The parties may
not exclude the last resort to the Court provided for in paragraph (3). This restriction,
unlike the one in article 11(2) and (4), (46) applies irrespective of whether the parties have
authorized any other body, e.g., an appointing authority, to take the final decision on the
challenge. It is submitted that in such a case the challenging party would have to exhaust
the available remedies and seek a decision by that body; but that decision would not be
final since the last resort to the Court specified in article 6 cannot be excluded by
agreement of the parties.
Suppletive rules on challenge procedure, paragraph (2)
3. Paragraph (2) supplies those parties who have not agreed on a challenge procedure with
a system of challenge by specifying the period of time and the form for bringing a
challenge and the mode of deciding thereon, subject to ultimate judicial control as
provided in paragraph (3).
4. As stated in the second sentence of paragraph (2), the challenge would be decided upon
by the arbitral tribunal if a decision is needed, i.e., where the challenged arbitrator does
not withdraw from his office or the other party disagrees with the challenge. To let the
arbitral tribunal decide on the challenge is obviously without practical relevance in the
P 426

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 P 426 case of a sole arbitrator who has been challenged and does not resign. However, where one
P 427 of three arbitrators is challenged it has some merits, despite the possible psychological
difficulties of making the arbitral tribunal decide on a challenge of one of its members. At
least where the challenge is not frivolous or obviously unfounded, an advantage could be
to save time and expense by making the last resort to the Court unnecessary. It may be
added that such a decision is not one on a question of procedure within the meaning of
article 29 (second sentence) and would, thus, have to be made by all or a majority of the
members (article 29, first sentence). (47) This means that a challenge will be sustained only
if the two other members decide in favour of the challenging party.
Ultimate judicial control, paragraph (3)
5. Paragraph (3) grants any challenging party, who was unsuccessful in the procedure
agreed upon by the parties or in the one under paragraph (2), a last resort to the Court
specified in article 6. The provision, in its most crucial part, adopts a compromise solution
with regard to the controversy of whether any resort to a court should be allowed only after
the final award is made or whether a decision during the arbitral proceedings is
preferable. The main reason in support of the first position is that it prevents dilatory
tactics; the main reason in support of the second position is that a prompt decision would
soon put an end to the undesirable situation of having a challenged arbitrator participate
in the proceedings and would, in particular, avoid waste of time and expense in those
cases where the court later sustains the challenge.
6. Paragraph (3), like article 14 but unlike article 16(3) [Art. 16(3) was subsequently modified],
provides for court intervention during the arbitral proceedings; however, it includes three
features designed to minimize the risk and adverse effects of dilatory tactics. The first
element is the short period of time of fifteen days for requesting the Court to overrule the
negative decision of the arbitral tribunal or any other body agreed upon by the parties.
The second feature is that the decision by the Court shall be final; in addition to excluding
appeal, other measures relating to the organization of the Court specified in article 6 may
accelerate matters. (48) The third feature is that the arbitral tribunal, including the
challenged arbitrator, may continue the arbitral proceedings while the request is pending
with the Court; it would certainly do so, if it regards the challenge as totally unfounded and
serving merely dilatory purposes.
SUMMARY RECORD
A/CN.9/SR.313–.314, .332
[7 June 1985, 9:30 A.M., A/CN.9/SR.313]
Article 13. Challenge procedure
Paragraph (1)
P 427
P 428 40. Mr. STALEV (Observer for Bulgaria) said that, as the Secretariat had indicated in its
commentary ([Seventh Secretariat Note,] A/CN.9/264, [Art. 13,] para. 4, second sentence),
article 13 did not adequately cover the problem of a sole arbitrator who was challenged
and refused to resign. He suggested that words on the following lines might be inserted in
paragraph (3) after the words “rejecting the challenge”: “or of a sole arbitrator's refusal to
withdraw.”
41. Mr. HOLTZMANN (United States of America) drew attention to his country's written
proposal for paragraph (1), reproduced in [the Sixth Secretariat Note (Government
Comments),] document A/CN.9/263 ([Art. 13], para. 8), to the effect that a decision reached
under a challenge procedure agreed by the parties should be final.
42. The CHAIRMAN [Mr. LOEWE (Austria)] asked whether that would mean that the decision
could not be reversed by a court.
43. Mr. HOLTZMANN (United States of America) said that while there might occasionally be
grounds for appealing such a decision, by and large the presumption should be that it was
final and binding on the parties.
44. Mr. ROEHRICH (France) said that the United States proposal seemed to mean that there
would be a uniform rule stating the consequences of a choice of challenge procedure by
the parties. If so, he would have some hesitation in accepting it, because it was impossible
to predict what challenge procedure they might choose. If the parties were to be allowed
such freedom of choice under paragraph (1) — a view which he accepted — why should not
the question of possible appeals against a challenge decision be left open? He would
prefer to keep paragraph (1) as it stood.
45. Mr. MOELLER (Observer for Finland) shared the doubts of the representative of France.
His view was that the model law should exclude recourse to a court during arbitral
proceedings and give the parties the right to challenge the award afterwards, but the
Working Group had rejected that idea. He could nevertheless accept the text as it stood. It
did not create a problem. For example, if the parties had agreed that challenges should be
decided by an institution and the agreed institution rejected a challenge, the unsuccessful
party would be disinclined to go to court because he would know that by then his chances
of success were slight. Thus the existing text should not have the effect of delaying
arbitrations.

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 46. Mr. LEBEDEV (Union of Soviet Republics) said that his delegation's written proposal,
reproduced in [the Sixth Secretariat Note (Government Comments),] document A/CN.9/263
([Art. 13,] para. 10), to delete or at least considerably limit paragraph (3) was directly
related to paragraph (1). Regardless of what happened to paragraph (3), however, he
considered that the United States proposal was justified. If parties had agreed on an
institutional procedure for challenging an arbitrator, the procedure should be applied
without recourse to the court. Article 34 appeared to allow an appeal against an arbitral
award on the ground that an arbitrator was not impartial or independent. If so, why have a
P 428 judicial procedure for that circumstance in article 13 as well? His view was borne out by the
P 429 comments of the International Chamber of Commerce, reproduced in [the Sixth
Secretariat Note (Government Comments),] document A/CN.9/263/Add.1 ([Art. 13,] para. 1).
[Editors' Note: This proposal is also mentioned in the Summary Record, A/CN.9/SR.310, para.
34, appearing in the section on Article 6, p. 252 supra.]
47. Mr. HOLTZMANN (United States of America) agreed with the Soviet Union representative
that court intervention during arbitral proceedings should be avoided.
48. Sir Michael MUSTILL (United Kingdom) said that his Government did not share that
view, for reasons which would be clear from its interventions on other articles.
49. The CHAIRMAN suggested that the question should be discussed under paragraph (3).
50. It was so agreed.
Paragraph (2)
51. Mr. STROHBACH (German Democratic Republic) referred to the statement made by the
Observer for Bulgaria. While the second sentence of paragraph (2) contained a ruling on
how to proceed if one of a panel of arbitrators was challenged, the question remained how
to deal with a challenge where there was only one arbitrator. In his opinion the simplest
way would be to amend paragraph (2) to provide that a sole arbitrator who was challenged
had the possibility of withdrawing, and that if he did not, his mandate would be
terminated.
52. The CHAIRMAN pointed out that such a provision could give rise to a never–ending
series of challenges.
53. Mr. HERRMANN (International Trade Law Branch) said the Secretariat's view was that a
sole arbitrator who was challenged and did not resign implicitly made the decision
contemplated in paragraph (2). The paragraph therefore seemed comprehensive and
simple in operation.
54. Mr. MAGNUSSON (Sweden) said that it might be inadvisable to allow an arbitrator who
had been challenged during the proceedings to withdraw voluntarily, since if he did so late
in the proceedings the result might be considerable expense and lengthy delay. It might
be better to provide that the arbitral tribunal should decide whether a challenged
arbitrator should respond to the challenge immediately or at the end of the proceedings.
55. Mr. SCHUMACHER (Federal Republic of Germany) said that where one of a panel of
arbitrators had been challenged, it was best that he should not take part in the decision on
the challenge. His country would have problems in implementing the rule in paragraph (2)
because its national law embodied that principle.
[7 June 1985, 2:00 P.M., A/CN.9/SR.314]
Article 13. Challenge procedure (continued)
P 429
P 430 1. The CHAIRMAN [Mr. LOEWE (Austria)] recalled that article 13 was based upon a
compromise between two different approaches to the question to challenges. One was that
all decisions of the arbitral tribunal on a challenge to one of its members could be the
subject of the immediate application to the court. Arbitration proceedings would then be
suspended until the challenge was either sustained (when the composition of the tribunal
would be changed before it could proceed) or the challenge was rejected, when the
original tribunal would continue its work. The second system left the decision on a
challenge to the arbitral tribunal itself but a rejected challenge could constitute grounds
for contesting the final award. Article 13 embodied a compromise procedure whereby the
final decision on the challenge rested with the court but the arbitral tribunal could
continue its proceedings pending that decision.
2. Mrs. RATIB (Egypt) proposed that the concluding phrase of article 13(3) should be
amended to read: “… pending such a decision, the arbitral tribunal, including the
challenged arbitrator, may continue the arbitral proceedings, unless the court orders their
suspension.” It would be preferable to give the court power to order the suspension or
arbitral proceedings when it was made aware of reasons which might justify such a
measure.
3. Mr. SEKHON (India) endorsed the Egyptian proposal. If arbitral proceedings continued
pending a decision by the court and the latter later upheld the challenge, a good deal of
unnecessary expense and delay would be incurred. The period of 15 days set in article 13(2)
and (3) was perhaps too short for cases of international commercial arbitration. He would
suggest a period of 30 days unless the provisions of article 11(1) of the UNCITRAL Arbitration
Rules were scrupulously observed. Finally, in the fourth line of the English text of article

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 13(2), the word “the” before “later” appeared to be redundant.
4. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that his delegation's proposal in
respect of article 13(3) was the most far–reaching of the various comments by Governments
on article 13 ([Sixth Secretariat Note (Government Comments),] A/CN.9/263, [Art. 13,] para.
10). The present text did not in fact constitute a compromise when compared to the
legislation of countries such as his own which did not envisage the possibility of
challenging an arbitrator before the court until the award had been made. The Soviet
delegation's proposal was to delete paragraph 3 altogether from article 13, leaving
paragraph 1 to apply if the parties agreed upon a challenge procedure and paragraph 2 to
apply if they had not so agreed. It was clear, however, that paragraph 2 could apply only
when there was a minimum of three arbitrators and the challenge affected only one of
them. The representative of the German Democratic Republic had also rightly pointed out
that it could not apply in the case of a sole arbitrator. His own alternative proposal would
be to retain paragraph 3 but to restrict it to those cases where the challenge procedure
had not been previously agreed by the parties and when the challenge affected a sole
arbitrator or more than one arbitrator out of a panel of three.
P 430 5. Mr. STALEV (Observer for Bulgaria) said that a possible compromise would be to agree on
P 431 full autonomy of the parties as far as the procedure for challenge was concerned by
deleting from article 13(1) the phrase “subject to the provisions of paragraph (3) of this
article.” In practice that would mean that in a case of institutional arbitration there could
be no resort to the court if the institutional rules precluded it. As far as ad hoc arbitration
was concerned, his delegation was ready to accept the procedure set out in article 13(2)
and (3). He suggested that the problem of the sole arbitrator should be considered later.
6. Mr. MTANGO (United Republic of Tanzania) said he preferred the Working Group's
compromise, which took into account the fact that various legal systems adopted different
attitudes towards court intervention. It was advisable to adopt an arrangement which
would facilitate the adoption of the model law by all countries. Where intervention by the
court was not the practice in national legislation, there was no reason to introduce it.
7. Mr. BROCHES (Observer, International Council for Commercial Arbitration) suggested a
drafting amendment to insert in the second line of article 13(2) the words “of notification”
after the words “within fifteen days” and before the words “of the constitution.” The United
States proposal was acceptable and, as he understood it, article 13(2) would apply to all
cases except where there was a challenge to a sole arbitrator or to a majority of the
arbitrators. He did not agree with the proposal of the representative of the German
Democratic Republic that if a sole arbitrator refused to withdraw, he should be made to do
so.
8. Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration) endorsed
the amendment proposed by the Egyptian representative.
9. Mr. AYLING (United Kingdom) supported the Working Group's compromise, for the
reasons which were set out in the Secretariat commentary on article 13 ([Seventh
Secretariat Note,] A/CN.9/264, [Art. 13]). If the question was reopened, he would be inclined
to support the Egyptian amendment.
10. Mrs. DASCALOPOULOU-LIVADA (Observer for Greece) said that the present wording of
article 13(3) left it to the discretion of the arbitral tribunal whether or not to continue its
proceedings. It was not far from the Egyptian proposal, which was a useful one and which
she accordingly supported.
11. Mr. GRIFFITH (Australia) said his position was the same as that of the United Kingdom
representative.
12. The CHAIRMAN said that the proposal to delete paragraph 3 altogether had received
little or no support. As for the two other proposals they might perhaps be combined into a
single amendment to the effect that the parties could exclude a resort to the court but
that when a challenge was brought before the court, the latter could stop the arbitration
proceedings. He wondered whether the Commission might consider that a more
acceptable compromise than the present article 13.
13. Mr. HOLTZMANN (United States of America) said the [sic] the Chairman's suggestion
might be too complex.
P 431
P 432
14. Mrs. RATIB (Egypt) accepted the Chairman's suggestion.
15. Mr. ROEHRICH (France) asked whether it was not possible to keep the present text. His
delegation wished to avoid a situation where national courts issued injunctions during
arbitration proceedings. Their role should be the more general one of the setting aside of
awards, the recognition or enforcement of foreign awards and the provision of assistance
(when needed) with the composition of arbitration tribunals. Furthermore, he had doubts
as to what sanctions could be envisaged if courts were given positive powers to order the
suspension of arbitration proceedings. Article 13(3), with the reservation in article 13(1),
wisely left the arbitral tribunal the option whether or not to continue its proceedings.
16. The CHAIRMAN said that the Egyptian amendment might put the courts in a difficult
position. If a judge made an interim order to suspend the arbitration proceedings, would

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 he not be inclined to uphold the challenge in his final decision? If he decided to reject it,
he would have caused a good deal of time and money to be wasted.
17. Mr. SEKHON (India) said that there were clearly constraints in Austria [sic — India is
intended] which might make judges unwilling to grant a stay. Under the common law
system, there were certain guidelines for the granting of a stay order. First, there must be a
prima facie case for the request. Secondly, the balance of convenience must lie with the
party seeking the stay. Thirdly, the party who requested it must stand to suffer irreparable
injury if the stay was not granted. If he were acting as judge in such a case, he would order
the tribunal to continue the proceedings but not to make an award.
18. Mr. SCHUETZ (Austria) said his delegation was in favour of the compromise drafted by
the Working Group since it combined the benefit of court assistance in a challenge while
minimizing the risk of delaying tactics by one or other of the parties. It also took account of
all points of view and of the interests of all parties. He was not in favour of the proposal
that the judge should be able to grant an interim stay, because of the implication of State
liability if that decision was later reversed.
19. Mr. GRIFFITH (Australia) said his delegation concurred with the Chairman's suggestion to
combine the proposals of the delegations of Bulgaria and Egypt. He saw no difficulty in
common law with the granting of interim relief. There would be no question of judicial or
State liability, since a court which contemplated granting an interim order for suspension
would probably require the party requesting the suspension to undertake liability for any
damages to the other party arising out of a subsequent reversal of the decision. Despite
the fact that it would require redrafting of the opening portion of article 13(3), his
delegation preferred that the court should have power of suspension as proposed.
20. The CHAIRMAN invited the Commission to consider what would happen in a situation
where the court ordered an interim suspension but the arbitral tribunal continued its
proceedings in defiance of the court and made an award. Subsequently, the final decision
P 432 of the court was that the challenge, on the basis of which it had ordered the interim
P 433 suspension, was unfounded. Was the award therefore invalid because it had been made
in defiance of the court's interim decision, or was it validated by the court's subsequent
final decision?
21. Mrs. RATIB (Egypt) said that the judgement of the court should prevail in all cases.
22. Mr. LAVINA (Philippines) said that in most judicial systems, courts had powers to
enforce their decisions. With regard to the question of judicial liability, he felt that a jduge
would only be liable if he abused his powers.
23. Mr. KNOEPFLER (Observer for Switzerland) said that it was unlikely, in practice, that
arbitrators, who were presumably worthy of trust and persons of a certain standing, would
fail to respect the ruling of the court.
24. Mr. SAWADA (Japan) said that he was in favour of the text drafted by the Working Group
as being the best solution.
25. Mr. TANG Houzhi (China) said that the article 13 as drafted by the Working Group
constituted a reasonable compromise on the matter of court intervention, and his
delegation was in favour of it.
26. Mr. LEBEDEV (Union of Soviet Socialist Republics) felt that the Commission should
clarify what was meant by “final” decision. Did it mean that it was final for the parties, or
alternatively, a decision not subject to appeal to a higher court? The Commission needed
to be clear on whether or not a decision on a challenge would be liable to appeal to a
higher Court.
27. Mr. HERRMANN (International Trade Law Branch) said that the intention of the Working
Group had been that, for the sake of minimizing delay, decisions on matters of a more
administrative nature, such as a challenge, should be final and not subject to appeal to a
higher court.
28. Mr. LEBEDEV (Union of Soviet Socialist Republics) asked whether the finality of the
decision would be interpreted in individual countries on the basis of their national
procedural rules, thus allowing for a possible appeal to a higher court. It was not expressly
stated in article 13 that the decision was not subject to appeal. It was important for the
Commission to take a decision on the matter to avoid future misunderstandings.
29. Mr. ROEHRICH (France) said that it was difficult, when drafting, to specify that a
decision was not subject to appeal. His delegation found the use of the word “définitif”
(final) ambiguous. However, to attempt greater precision in drafting might be very time–
consuming and it would [be] wiser to retain “définitif” (final).
30. The CHAIRMAN said that the drafting committee, if one was appointed, would attempt
to find a form of words to make it clear that there was no appeal. If that proved
impracticable, “définitif” and “final” would be retained.
31. Mr. MTANGO (United Republic of Tanzania) said he appreciated the intention to allow
no appeal, but was doubtful if the model law could override national procedural laws
allowing appeal to higher courts in such cases.
P 433
P 434

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 P 434
32. The CHAIRMAN said that it was hoped that most countries would accept the provisions
of the model law but in certain instances there would, of course, be departures. The
wording relating to the finality of the decision on the challenge would be drafted as clearly
as possible, but the compromise would be retained. A matter particularly to be borne in
mind was the difficulty of the sole arbitrator who would have to decide upon his own
impartiality.
33. Mr. STALEV (Observer for Bulgaria) stressed that, in his view, article 13 did not regulate
the case of the sole arbitrator.
[Editors' Note: The Commission then entered into a discussion of the extent to which Article
13 would apply when no place of arbitration had yet been chosen. Since this relates to the
general question of the applicability of the Model Law, this material appears in the
subsection on Article 1, paragraph 2, pp. 123–24 supra.]
44. Mr. SAWADA (Japan) asked if there would be discussion on whether an arbitrator who
was challenged could participate in a ruling on that challenge. If not, he wished to draw
the Commission's attention to his country's written submissions on that matter ([Sixth
Secretariat Note (Government Comment),] A/CN.9/263, [Art. 13,] para. 2 under article 13,
second sentence).
45. The CHAIRMAN said that there was a general feeling that the challenged arbitrator
should remain and thus rule on the challenge. If there were no comments, he would take it
that the Commission agreed on that point.
46. It was so agreed.
47. The CHAIRMAN noted that there were no further comments on article 13; that article
could therefore be taken as approved, on the understanding that the various drafting
proposals would be duly considered.
48. It was so agreed.
[20 June 1985, 3:00 P.M., A/CN.9/SR.332]
Article 13 [as revised by the Drafting Group]
34. Mr. GRIFFITH (Australia) said that, in the light of the discussion of article 16(3) at the
320th meeting, [Summary Record, A/CN.9/SR.320, paras. 12–29, appearing in the section on
Article 16, pp. 522–24 infra,] paragraph (2) should refer to a period of 30 days, as did
paragraph (3).
35. The CHAIRMAN [Mr. LOEWE (Austria)] said that since paragraphs (2) and (3) dealt with
different topics there was no need for them to specify the same period. He suggested that,
since the Commission had not taken a clear decision to amend the period in paragraph (2),
the text should remain unchanged.
36. Mr. SEKHON (India), referring to the words “and make an award” at the end of paragraph
P 434 (3), drew the Commission's attention to the commentary on the point in its draft report
P 435 (A/CN.9/XVIII/CRP.2/Add.5, para. 12). [Editors' Note: The draft report on this point was the
same as the Final Commission Report, A/40/17, para. 124, appearing immediately below.] If
the expression “the system” used in the draft report was meant to include the further
steps, he would have no particular objection, but the present paragraph (3) had been
drafted in a slightly different fashion.
37. Mr. HERRMANN (International Trade Law Branch) said that the point referred to by the
representative of India concerned primarily the question of which of the four or five
possible solutions was preferred with respect to determination of the time at which court
control could be exercised. The question whether the continuation of the proceedings
implied the making of an award had been referred to the drafting committee, which had
decided that it would be better to state the provision clearly. That was why the express
reference to the making of an award appeared in several places in the draft text.
38. Article 13 was adopted without change.
COMMISSION REPORT
A/40/17 (21 AUGUST 1985)
Article 13. Challenge procedure
120. The text of article 13 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
General discussion on appropriateness of court control during arbitral proceedings
121. The Commission, before considering the provisions of article 13 in detail, embarked on
a general discussion on the appropriateness of court control during arbitral proceedings.
Divergent views were expressed on that matter.
122. Under one view, the court control envisaged under article 13(3) was inappropriate and
should at least be limited, in order the reduce the risk of dilatory tactics. One suggestion
was to delete the provision, thus excluding court control during the arbitral proceedings,
or to restrict its application considerably, for example, to those rare cases where the sole

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 arbitrator or a majority of the arbitrators were challenged. Another suggestion was to
replace in paragraph (1) the words “subject to the provisions of paragraph (3) of this
article” by the words “and the decision reached pursuant to that procedure shall be final.”
The thrust of the suggestion was to allow the court control envisaged in paragraph (3) only
if the parties had not agreed on a procedure for challenges and, in particular, not
entrusted an institution or third person with deciding on the challenge. Yet another
suggestion was to let the arbitral tribunal decide whether court control should be allowed
immediately or only after the award was made. The suggestion was advanced as a possible
solution to the problem that under article 13 a challenged arbitrator appeared to have full
freedom to withdraw and that as a result of such withdrawal the party who appointed the
arbitrator might be adversely affected by additional costs and delay.
P 435
P 436
123. Under another view, the weight accorded to court intervention in article 13(3) was not
sufficient in that the provision empowered the arbitral tribunal, including the challenged
arbitrator, to continue the arbitral proceedings irrespective of the fact that the challenge
was pending with the Court. It was stated in support of the view that such continuation
would cause unnecessary waste of time and costs if the court later sustained the challenge.
At least, it should be expressed in article 13 that the arbitral tribunal was precluded from
continuing the proceedings if the Court ordered a stay of the arbitral proceedings.
124. The prevailing view, however, was to retain the system adopted in article 13 since it
struck an appropriate balance between the need for preventing obstruction or dilatory
tactics and the desire of avoiding unnecessary waste of time and money.
125. The Commission, after deliberation, adopted the prevailing view.
Paragraph (1)
126. The Commission adopted the provision.
Paragraph (2)
127. The Commission did not adopt a suggestion to provide in paragraph (2) that the
mandate of a sole arbitrator who was challenged but did not withdraw from his office
terminated on account of the challenge.
128. The Commission did not adopt a suggestion to exclude the challenged arbitrator from
the deliberations and the decision of the arbitral tribunal on the challenge.
129. It was noted that the challenge procedure of paragraph (2) was applicable to a sole
arbitrator as well as to the challenge of one or more arbitrators of a multi–arbitrator
tribunal. The refusal of a sole arbitrator to resign would constitute a rejection of the
challenge, making available resort to the court under paragraph (3).
130. The Commission adopted paragraph (2), subject to certain drafting suggestions which
the Commission referred to the Drafting Group.
Paragraph (3)
131. Subsequently, the Commission decided to align article 13(3) to the modified version of
article 16(3) (see below, para. 161 [appearing in the section on Article 16, p. 528 infra]) and
replaced the period of time of fifteen days by thirty days.
132. As regards the words “which decision shall be final,” the Commission was agreed that
the wording was intended to mean that no appeal was available against that decision and
that that understanding might be made clear by appropriate wording. Subject to those
modifications, paragraph (3) was adopted by the Commission.
[Editors' Note: The Commission Report then addressed the extent to which Article 13 would
apply when no place of arbitration had yet been chosen. This material appears in the
subsection on Article 1, paragraph 2, p. 132 supra.]
P 436

References
1) First Working Group Report, A/CN.9/216, para. 44, p. 412 infra; First Secretariat Note,
A/CN.9/207, para. 66, p. 411 infra. This freedom is explicitly limited by the court review
provided in paragraph 3. Thus, the parties cannot preclude court review of a challenge
decision. See Seventh Secretariat Note, A/CN.9/264, Art. 13, para. 2, p. 426 infra. In
addition, the Secretariat suggested that the parties' freedom should be considered to
be limited by the general restrictions laid down in Article 18, which requires equal
treatment of the parties. See id. n. 45.
2) See First Working Group Report, A/CN.9/216 para. 45, p. 412 infra; Third Working Group
Report, A/CN.9/233, para. 109, p. 418 infra. The supplementary procedures in
paragraph 2 were loosely modeled on Articles 11 and 12 of the UNCITRAL Arbitration
Rules. First Draft, A/CN.9/WG.II/WP.37, Art. 9 n. 20, p. 413 infra.

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 3) Fourth Working Group Report, A/CN.9/245, para. 207, p. 419 infra; Fifth Working Group
Report, A/CN.9/246, para. 38, p. 421 infra; Summary Record, A/CN.9/SR.314, paras. 44–
45, p. 434 infra. The Commission rejected a proposal to exclude the challenged
arbitrator from the decision on the challenge. Id.; Commission Report, A/40/17, para.
128, p. 436 infra. It was further agreed that the decision on the challenge did not
concern a matter of procedure under Article 29. Thus, the matter could not be
delegated to a presiding arbitrator, but had to be decided by a majority or unanimous
vote of the entire panel. See Seventh Secretariat Note, A/CN.9/264, Art. 13, para. 4, pp.
426–27 infra; Fifth Working Group Report, A/CN.9/246, para. 38, p. 421 infra. The
Commission suggested that in the case of a challenge to a sole arbitrator, there would
be no need for a formal decision on the challenge, since the arbitrator's refusal to
resign would constitute a rejection of the challenge. Commission Report, A/40/17, para.
129, p. 436 infra; see also Seventh Secretariat Note, A/CN.9/264, Art. 13, para. 4, pp.
426–27 infra.
4) Fourth Working Group Report, A/CN.9/245, para. 210, p. 420 infra; First Draft,
A/CN.9/WG.II/WP.37, Art. 9 n. 21, p. 413 infra.
5) Fourth Working Group Report, A/CN.9/245, para. 209, p. 420 infra; Sixth Secretariat
Note (Government Comments), A/CN.9/263, Art. 13, para. 10, p. 424 infra.
6) Fourth Working Group Report, A/CN.9/245, para. 212, p. 420 infra; accord Summary
Record, A/CN.9/ SR.314, para. 1, pp. 429–30 infra.
7) Commission Report, A/40/17, para. 123, p. 436 infra. The Commission rejected this view.
A court thus is barred by Article 5 of the Model Law from issuing such a stay order. In
this respect, the Model Law, as lex specialis, supersedes any domestic laws authorizing
such stay orders.
8) Id. para. 122, p. 435 infra.
9) Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 13, para. 10, p. 424
infra; id., A/CN.9/263/Add.1, Art. 13, para. 1, pp. 424–25 infra. See also Summary Record,
A/CN.9/SR.310, paras. 34–38, appearing in the section on Article 6, p. 252 supra.
10) Summary Record, A/CN.9/SR.313, paras. 44, 45, p. 428 infra.
11) See Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 13, para. 4, p. 423
infra.
12) Strohbach, Composition of the Arbitral Tribunal and Making of the Award, in
UNCITRAL's Project for a Model Law on International Commercial Arbitration 103, 111
(ICCA Congress Series No. 2, P. Sanders ed. 1984)
13) The Working Group added the condition that the provision violated be a
nonmandatory one specifically in order to “soften” the effect of the implied–waiver
rule. See Fourth Working Group Report, A/CN.9/245, para. 178, appearing in the section
on Article 4, pp. 203–04 supra. “The prevailing view … was to retain a waiver rule but in
a less rigid form in order to exclude its operation in cases of fundamental violations of
procedural provisions.” Id. para. 177.
14) See Articles 34(2)(a)(iv) and 36(1)(a)(iv); Summary Record, A/CN.9/SR.313, para. 46, pp.
428–29 infra (“Article 34 appeared to allow an appeal against an arbitral award on the
ground that an arbitrator was not impartial or independent.”).
The argument made in the text also applies to some jurisdictional objections that are
not raised in a timely manner under Article 16. See the commentary on that Article, pp.
483–85 infra.
17) Discussion and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, paras. 42–45, 50, 52, 75. [Editors' Note: Paragraphs 44 and 45 appear directly
above; the remaining cited paragraphs appear in the sections on Articles 11, 12, and 14.]
The draft provisions of this section might later be placed after the draft provisions on
the appointment of arbitrators [Articles 13–17 in the First Draft, Articles 10–11 in the final
text].
20) The procedure suggested here is essentially the one adopted in articles 11 and 12 of
the UNCITRAL Arbitration Rules, except that no provision is included on the
involvement of an appointing authority designated by the parties.
21) The first alternative, providing for a final decision on the challenge, may help to avoid
delays and controversy during the arbitration proceedings and to reduce the risk of a
later setting aside of the award and, thus, of waste of time and resources. However, the
second alternative might be acceptable in view of the practical experience that an
arbitrator challenged on justifiable grounds usually withdraws from his office.
22) This draft provision is designed to regulate the recourse available to a party who has
challenged an arbitrator without success under a procedure agreed upon by the
parties. Such party would, depending on which alternative is selected by the Working
Group for articles 9 and 10, have the right to resort to the specified Authority for a final
decision or would be precluded from resorting to a court during the arbitration
proceedings, even if such court intervention were envisaged in the challenge
procedure agreed upon by the parties.
25) Discussion and conclusions of the Working Group in [First Working Group Report,]
A/CN.9/216, paras. 46–50. [Editors' Note: Paragraphs 46–48 appear in the section on
Article 10; paragraphs 49–50 appear in the section on Article 11.]
29) The Authority envisaged in this provision would be a judicial body specializing in
arbitration matters and assisting in a variety of ways specified in the model law.
9) [Editors' Note: Footnote 9 apears in the section on Article 6, p. 244 supra.]

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 10) Provisions which “provide otherwise” may either restrict the rule under (a), e.g., article
X(3) [Art. 13 in the final text] which entitles only a party to resort to this Court, or widen
the rule by entitling others, such as individual arbitrators, e.g., article VIII(3) [Art. 11] or
XI(2) [Art. 14].
11) Provisions which “provide otherwise,” i.e., allow an appeal, might, for example, be
envisaged in respect of decisions on setting aside, or on recognition and enforcement,
of arbitral awards (to be dealt with in [a second part of the Second Draft,]
A/CN.9/WG.II/WP.42 [see the sections on Arts. 34 & 36, pp. 931–34, 1077–80 infra]).
12) The reference to paragraph (3) relates to alternative A; if alternative B were to be
adopted, the reference should be to paragraph (2).
13) No time–period seems necessary if resort to the court may only be had in an action for
setting aside. If a time–period were to be adopted, consideration might be given to
selecting as the starting point of time the date of mailing the statement (to further the
interest of the challenging party).
18) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 83–86. It may be recalled here that, according to a decision
by the Group, the procedural issues previously dealt with in (now deleted) paragraph
(2), i.e., right to request the Court to act and finality of the Court's decision, should be
considered in the context of the individual provisions entrusting certain functions to
the Court.
25) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 108–111.
26) In the latter alternative, some elements have been added (i.e. time–limit for request;
finality of decision; discretion to continue arbitral proceedings) in an attempt to
alleviate the fear of dilatory tactics. An additional device could be to accelerate the
decision by assigning it to a person rather than a court (cf. footnote 19) [appearing in
the section on Article 6, p. 246 supra].
45) There is also a general restriction since, it is submitted, the fundamental principles
laid down in article 19(3) [Art. 18 in the final text] extend to such procedural agreement.
See [Seventh Secretariat Note,] commentary to article 19, para. 7 [appearing in the
section on Article 18, p. 559 infra].
46) Cf. [Seventh Secretariat Note,] commentary to article 11, paras. 3–4 [appearing in the
section on Article 11, p. 381 supra].
47) Cf. [Fifth Working Group Report,] A/CN.9/246, para. 38.
48) See commentary [Seventh Secretariat Note] to article 6, para. 4 [appearing in the
section on Article 6, p. 250 supra].

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Document information
UNCITRAL Model Law, Chapter III, Article 14 [Failure or
Publication impossibility to act]
A Guide to the UNCITRAL (1) If an arbitrator becomes de jure or de facto unable to perform his functions or for
Model Law on International other reasons fails to act without undue delay, his mandate terminates if he
Commercial Arbitration: withdraws from his office or if the parties agree on the termination. Otherwise, if a
Legislative History and controversy remains concerning any of these grounds, any party may request the
Commentary court or other authority specified in article 6 to decide on the termination of the
mandate, which decision shall be subject to no appeal.
(2) If, under this article or article 13(2), an arbitrator withdraws from his office or a party
Organization agrees to the termination of the mandate of an arbitrator, this does not imply
United Nations Commission acceptance of the validity of any ground referred to in this article or article 12(2).
on International Trade Law
Commentary
Article 14 specifies three grounds for terminating the mandate of an arbitrator and three
Promulgation methods of doing so. The grounds are (1) de jure or (2) de facto inability to perform the
21 June 1985 functions assigned to the arbitrator and (3) any other failure to act without undue delay.
The three methods for terminating the mandate if these grounds are present are (1) the
withdrawal (or death (1) ) of the arbitrator, (2) an agreement of the parties, and (3) a
decision by a court or other designated authority. (2)
Legislation number
Article 14 does not set forth any particular procedure to be followed by a party who
United Nations Document believes that an arbitrator's mandate should be terminated. The second sentence of
A/40/17, Annex I paragraph 1, however, requires that there be “a controversy remain[ing]” in order for a
party to request the court or designated authority to decide on the termination of the
mandate. Therefore, a party presumably should at least send a statement of reasons for
Bibliographic reference seeking termination to the affected arbitrator (so that he can withdraw), to the remaining
members of the arbitral tribunal, and to the other party or parties (so that they can agree
'UNCITRAL Model Law, or refuse to agree to the termination). (3)
Chapter III, Article 14 [Failure P 438
or impossibility to act]', in P 439
Howard M. Holtzmann and The grounds for termination of an arbitrator's mandate that are listed in Article 14 were
Joseph Neuhaus , A Guide to taken from Article 13(2) of the UNCITRAL Arbitration Rules. With respect to the meaning of
the UNCITRAL Model Law on the phrase “fails to act,” the Secretariat's commentary on the article provides useful
International Commercial guidance. (4) First, it suggests that the intention was “to cover the great variety of
Arbitration: Legislative situations in which retention of a ‘non–performing’ arbitrator becomes intolerable.” (5) The
History and Commentary, commentary continues:
(© Kluwer Law International;
Kluwer Law International 4. It is submitted that in judging whether an arbitrator failed to act the following
1989) pp. 438 - 463 considerations may be relevant: Which action was expected or required of him
in the light of the arbitration agreement and the specific procedural situation?
If he has not done anything in this regard, has the delay been so inordinate as to
be unacceptable in the light of the circumstances, including technical
difficulties and the complexity of the case? If he has done something and acted
in a certain way, did his conduct fall clearly below the standard of what may
reasonably be expected from an arbitrator? Amongst the factors influencing the
level of expectations are the ability to function efficiently and expeditiously
and any special competence or other qualifications required of the arbitrator
by agreement of the parties. (6)
Article 14 as finally drafted differs from Article 13(2) of the UNCITRAL Arbitration Rules in
one major way: the addition of the words “without undue delay” to the term “fails to act.”
As the Secretariat pointed out, there is in the Rule provision an unstated time element,
that is, the period of time during which the arbitrator should have acted but did not. (7)
The Commission decided to make this element explicit, partly in view of the fact that a
great many national laws and arbitral rules contained a provision regarding the speed of
arbitration. (8) The Commission expressly noted that the change should be viewed as a
clarification, not as a change in meaning. (9) A number of alternative formulations were
P 439 proposed, including the phrases “with due dispatch,” “with due diligence,” “with
P 440 reasonable speed,” “with appropriate speed,” and “without undue delay.” (10) The
formulation chosen had the advantage of being capable of translation into all of the
official United Nations languages. (11)
The text finally adopted recognizes that some “delay” is to be expected in arbitration. That
is, it does not mean that a court is to ensure that the arbitration is proceeding in a manner
that the court deems to be “efficient.” In fact, a proposal to add the phrase “with
appropriate speed and efficiency” was specifically rejected because it might involve the
courts in reviewing whether a particular procedural step — such as an extra hearing day or
a request for further briefing — was necessary. (12) Article 14 invites review only of the
question of whether the arbitration is moving along, not whether the conduct of the
proceedings is wise and efficacious. It is intended to catch the egregious cases and not to

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 place a judge with a stopwatch over the shoulder of every arbitrator.
There may appear to be a conflict between Article 14 of the law and the UNCITRAL
Arbitration Rules, in that Article 14 does not state that the parties may agree on a different
procedure for removing an arbitrator. Article 14 provides that the court (or other authority
specified in Article 6) is to make the final decision. Does this nullify the provisions in the
UNCITRAL Rules, and in other arbitration rules, (13) that provide for a final decision by a
designated appointing authority or arbitral institution? This problem was raised by several
governments and by the ICC in comments on Article 14 and during the Commission's
debates. (14) It was suggested that the solution could be found in Article 2(d) of the Model
Law. That Article states that where a provision of the law leaves the parties free to
determine a certain issue, the parties are free to authorize a third party, including an
institution, to make that determination. Article 14 provides that the parties may agree on
termination of the mandate and that the court may intervene only if they have not done so.
Thus, the parties' agreement to have an arbitral institution or appointing authority decide
on termination–of–mandate questions would constitute an authorization to a third party to
make a determination that the parties could make. The Commission appears to have
adopted this interpretation in its Report, which states:

P 440 It was noted that article 14, unlike articles 11 and 13, did not expressly give the
P 441 parties the freedom to agree on a procedure in cases of an arbitrator's
inability or failure to act. It was understood, however, that the provision was not
intended to preclude parties from varying the grounds which would give rise to
the termination of the mandate or from entrusting a third person or institution
with deciding on such termination. (15)
Even so, the question is not free from doubt, because the Commission Report does not
explicitly state that the decision of the “third person or institution” on the termination of
the mandate will be final — that is, insulated from immediate court review. It may be that
the provision merely allows parties to structure procedures for initial determinations of
the question whether an arbitrator was failing to act, but to provide the losing party with
the opportunity to seek court review of those determinations. That interpretation would
align Article 14 with the judicial–review provisions of Article 13. While such a result is
arguable, however, the better reading of the language of Article 14, together with Article
2(d), appears to be that the courts have the power to decide on terminations for failure to
act only if the parties have not agreed upon a procedure for doing so. Article 14 provides
that the parties may “agree on the termination.” It is this clause that, pursuant to Article
2(d), gives force to the parties' agreement to have an arbitral institution, for example,
decide the matter. Article 14 assumes that this agreement will bring the matter to an end,
for it is only “[o]therwise” that a court is provided with the authority to resolve the
controversy.
Paragraph 2 of Article 14 states the straight-forward principle that an arbitrator's
withdrawal or a party's agreement to terminate the mandate of an arbitrator in the face of
a challenge or a charge of failure to act does not imply acceptance of the grounds
asserted. This provision, which is based on Article 11(2) of the UNCITRAL Arbitration Rules,
was intended to facilitate withdrawal or consent. (16) Many arbitrators, for example, may
prefer in appropriate circumstances to resign if a party expresses a lack of confidence in
them, even if the charge is false; (17) thus such a resignation should not be deemed an
admission of the charge.
P 441
P 442

Legislative History
FIRST SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW
A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
V. Award
[ .… ]
2. Making of award
83. There are essentially two procedural issues to be considered relating to the making of
the award. One is the period of time within which the award shall be made, the other one is
the process of making the decision to be embodied in the award.
84. The idea of establishing a time–period, as done in some national laws, might be
regarded as a good one since it could help to prevent delays but regulating it in an
appropriate manner will not be an easy task. One difficulty is that a fixed standard period
would not be appropriate in all cases which in turn would necessitate an elaborate
mechanism for extensions. Further formalities, not necessarily conducive to speedy
proceedings, would be added if one were to envisage fixing of the time–period by a court

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 (thus, e.g., art. 19(2) of the 1966 Strasbourg Uniform Law). (30) Additional problems may
arise from the possible sanction for non–compliance which could be termination of the
mandate of the arbitrator(s). (31) In view of these difficulties, one might well consider to
leave this issue fully to the parties who may take care of it by establishing a time–period
and a procedure tailored to their needs or by selecting efficient arbitrators in the first
place. [Editors' Note: The second procedural issue, the process of making the decision to be
embodied in the award, is discussed in the section on Article 29, p. 811 infra.]
SECOND SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW:
QUESTIONS FOR DISCUSSION
A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
V. Award
[ .… ]
2. Making of award (report [First Secretariat Note, supra], paras. 83–85)
Question 5–2: Would it be appropriate for the model law to deal with the question of
setting a time–limit for the making of the award?
P 442
P 443
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
III. Arbitrators
[ .… ]
5. Liability
Question 3–11: Would it be appropriate for the model law to deal with questions relating to
the liability of arbitrators?
[ .… ]
52. In connexion with this issue, the Working Group considered whether the model law
should contain any rule on the basic duties of arbitrators and of possible effects of the
breach of such duties on the course of the arbitral proceedings. The prevailing view was to
envisage the replacement of an arbitrator “if he failed to act” (art. 13, para. 2 of the
UNCITRAL Arbitration Rules). Under another view, the reasons for replacement should be
more widely stated so as to include, for example, any conduct which was not in accordance
with the instructions of the parties, or was not of an impartial, proper and speedy
character.
[Editors' Note: For further materials on whether the Model Law should include provisions
relating to the liability of arbitrators, see the section on Matters Not Addressed in the Final
Text, pp. 1148–50 infra.]
[ .… ]
V. Award
[ .… ]
2. Making of an award
Question 5–2: Would it be appropriate for the model law to deal with the question of
setting a time–limit for the making of the award?
74. There was general agreement that parties were free to stipulate a time– limit for the
making of an award, if they so wished. However, it was agreed that the model law should
neither set such a time–limit nor deal with the legal consequences of the expiry of a time–
limit stipulated by the parties, since in international commercial arbitration the
circumstances varied considerably from one case to another.
75. In this context, the Working Group considered whether the model law should deal with
the question of undue delay by an arbitrator in conducting the proceedings. It was
suggested that a possible legal consequence of such misconduct could be either challenge
or replacement of the arbitrator concerned. The Working Group was agreed that it might
consider this issue at a later stage.
P 443
P 444
FIRST DRAFT
A/CN.9/WG.II/WP.37 (15 JULY 1982)
III. Arbitrators

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 1.–2. Qualifications, challenge (and replacement) (17)
[ .… ]
Article 11 [Art. 14 in the final text] (23)
Unless the parties have agreed otherwise, the following procedure shall be used in the
event that an arbitrator [fails to act] [does not perform his functions in accordance with the
instructions of the parties and in an impartial, proper and speedy manner] or in the event
of the de jure or de facto impossibility of his performing his functions:
(a) Any party who wishes that, for any of these reasons, the mandate of an arbitrator be
terminated shall send a written statement of the reasons to the other party and to all
arbitrators;
(b) If, within [20] days after the notification, the other party does not agree to the
termination of the mandate and the arbitrator does not withdraw from his office, the
party may request the Authority specified in article 17 [Art. 6 in the final text] to make
a final decision thereon.
[ .… ]
3–4. Number and appointment of arbitrators (25)
[ .… ]
Article 17 [Arts. 6 & 11 in the final text]
(1) The Authority, referred to in articles 9(2) (c), 10, 11(b), 15(2), 16(1) (a), (d), (2) [Arts. 11, 13
and 14 in the final text] and …, shall be the … (e.g., specific chamber of a given court,
president of a specified court, to be determined by each State when enacting the
model law). (29)
(2) The Authority shall act upon request by any of the parties or by the arbitral tribunal,
unless otherwise provided for in a provision of this Law.
P 444
P 445
[Editors' Note: For the text of paragraph 3, see the section on Article 11, p. 368 supra.]
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Arbitrators
Qualifications, challenge (and replacement)
[ .… ]
Article 11 [Art. 14 in the final text]
66. The text of article 11 as considered by the Working Group was as follows:
[same as First Draft, supra].
67. The view was expressed that the provisions of this article were too detailed and that a
party might rely on them merely to prolong the arbitral proceedings.
68. The prevailing view was that the first alternative text in the square brackets was more
appropriate. The second alternative text was considered to be too broad in scope because
it dealt both with cases in which the actions of an arbitrator gave rise to challenge and
cases in which the conduct of the proceedings was not sufficiently expeditious.
69. It was suggested that the expression “fails to act” might in some cases not be
sufficiently precise and that some additional clarifying provisions might be appropriate. It
was concluded, however, that such further clarifications would not facilitate the
interpretation of the article and might make it too inflexible.
[ .… ]
Article 17 [Arts. 6 & 11 in the final text]
89. The text of article 17 as considered by the Working Group was as follows:
[same as First Draft, supra].
[Editors' Note: Paragraphs 90–96 appear in the section on Article 6, p. 243 supra.]
97. In respect of paragraph (2) of this article it was suggested that individual arbitrators
could apply to the Authority in cases in which not all the members of the arbitral tribunal
were appointed and therefore the arbitral tribunal could not be constituted. It was also
P 445 suggested that arbitrators should be authorized to apply to the Authority only for
P 446 appointment of other arbitrators and not in other cases in which the parties could
apply to the Authority.
98. It was suggested that it would be useful to authorize the Authority to consult an arbitral

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 institution in the fulfillment of its tasks. In response it was observed that the Authority was
free to consult institutions of its choice and that a special provision to this effect was
unnecessary.
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
C. Arbitration and the courts
[ .… ]
Article V [Art. 6 in the final text]
(1) The special Court entrusted by this Law with functions of arbitration assistance and
control [under articles VIII(2), (3), X(2)/(3), XI(2), XIII(3), XIV, XXV, XXVI … ] [Arts. 11, 13,
14, 16, 17 and 35 in the final text] shall be the … (blanks to be filled by each State when
enacting the model law). (9)
(2) Unless otherwise provided in this Law,
(a) this Court shall act upon request by any party or the arbitral tribunal; (10) and
(b) the decisions of this Court shall be final. (11)
D. Composition of arbitral tribunal
[ .… ]
Article XI [Art. 14 in the final text]
(1) The mandate of an arbitrator terminates in the event of the de jure or de facto
impossibility of his performing his functions or, unless otherwise agreed by the
parties, in the event that he fails to act [in accordance with his mandate under the
arbitration agreement].
(2) If a dispute arises concerning any of the cases envisaged in paragraph (1), any party
or arbitrator may request the Court specified in article V [Art. 6 in the final text] to
decide on the termination of the mandate.
P 446
P 447
THIRD WORKING GROUP REPORT
A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[ .… ]
C. Arbitration and the courts
[ .… ]
Article V [Art. 6 in the final text]
82. The text of Article V as considered by the Working Group was as follows:
[same as Second Draft, supra].
[Editors' Note: Paragraph 83 appears in the section on Article 6, p. 245 supra.]
Paragraph (2)
84. Divergent views were expressed as to the appropriateness of a provision along the lines
of paragraph (2). Under one view, the provision was useful in that it regulated some basic
features of the procedure to be followed by the Court, with the possibility of making
exceptions thereto in the model law itself. In support of subparagraph (b), it was pointed
out that it would serve the purpose of expediting the proceedings which was of special
importance in international commercial arbitration.
85. Under the prevailing view, however, the provision should not be retained. It was
pointed out that paragraph (2), in particular its subparagraph (b), infringed upon
fundamental concepts and rules of court procedure. Nevertheless, its procedural features
(right to request and finality of decision) might be included in individual provisions of the
model law entrusting the Court with certain functions.
86. The Working Group, after deliberation, decided not to retain paragraph (2) and to
consider settling the procedural questions in the context of the individual provisions
referring to the Court specified in article V.
D. Composition of arbitral tribunal
[ .… ]
Article XI [Art. 14 in the final text]
112. The text of article XI as considered by the Working Group was as follows:
[same as Second Draft, supra].
Paragraph (1)

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 P 447 113. Concern was expressed about the approach suggested in this provision which linked an
P 448 automatic legal consequence (i.e., termination of mandate) to a vague cause (in
particular: “fails to act”). It was suggested to adopt, instead, an approach similar to the one
taken in the second sentence of paragraph (2) of alternative A of article X [appearing in the
section on Article 13, p. 416 supra].
114. As regards the words “fails to act,” various amendments were suggested, e.g., to add
the word “adequately” or to focus on a misconduct of the proceedings by the arbitrator.
The prevailing view, however, was that the words “fails to act,” though not abundantly
clear, were to be preferred to any suggested amendment. In that context it was noted that
paragraph (2) provided a procedure in cases of uncertainty or controversy about a failure
to act. No support was expressed in favour of the words placed between square brackets.
115. The Working Group, after deliberation, requested the Secretariat to prepare a revised
draft, taking into account the concerns and views expressed during the discussion.
Paragraph (2)
116. It was suggested not to use the technical term “dispute” in that context and to replace
it by more general wording such as “difficulty” or “controversy.” Some concern was
expressed about giving an arbitrator the right to request a court decision, while, under
another view, such a right may be appropriate in some cases.
117. The Working Group, after deliberation, requested the Secretariat to revise that
provision, taking into account the views expressed in the Group.
THIRD DRAFT
A/CN.9/WG.II/WP/45 (13 JUNE 1983)
C. Arbitration and the courts
[ .… ]
Article V [Art. 6 in the final text] (18)
[Editors' Note: For the text of the Article V, see the section on Article 6, pp. 245–46 supra.]
D. Composition of arbitral tribunal
[ .… ]
Article XI [Art. 14 in the final text] (27)
P 448 (1) In the event that an arbitrator fails to act or in the event of the de jure or de facto
P 449 impossibility of his performing his functions, his mandate terminates if he
withdraws from his office or if the parties agree on the termination; in neither case
does this imply acceptance of the validity of any ground referred to in the first
sentence.
(2) If [the mandate of the arbitrator does not terminate in accordance with paragraph (1)
and if] a controversy remains concerning any of the events envisaged in paragraph (1),
any party [or arbitrator] may request from the Court specified in article V [Art. 6 in the
final text] a decision on the termination of the mandate [which shall be final].
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)
[ .… ]
Article XI [Art. 14 in the final text]
213. The text of article XI as considered by the Working Group was as follows:
[same as Third Draft, supra].
Paragraph (1)
214. Some support was expressed for aligning this paragraph with the provision of article
X(2) [Art. 13(2) in the final text] and to provide that the arbitral tribunal should decide on
the failure or impossibility to act, where neither the respective arbitrator withdrew from
his office nor the parties agreed on the termination of the mandate. The prevailing view,
however, was that such alignment was not warranted in view of the different events or
grounds covered by article XI.
215. It was noted that the last phrase of paragraph (1), as presently drafted, was not easily
reconcilable with the first sentence, where the very events were stated as objective and
existing, while the last phrase precluded any inference as to their validity. While
recognizing the policy underlying this last phrase, the Working Group decided to delete
that phrase in paragraph (1) and to express the idea in the context of article IX [Art. 12 in
the final text], in line with its decision concerning paragraph (2) of article X [Art. 13 in the
final text] (see above, para. 208 (*) ). As regards the remaining text of paragraph (1), the
Working Group requested the Secretariat to prepare a revised draft, possibly combined
with the provision of paragraph (2).
P 449

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 P 449
P 450
Paragraph (2)
216. The Working Group adopted paragraph (2), subject to the deletion of the text placed
between the first two sets of square brackets, although there was some support for
retaining the words between the second square brackets (“or arbitrator”) and for deleting
the words between the last square brackets (“which shall be final”).
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 12. Grounds for challenge
[Editors' Note: Paragraphs 1 and 2 of Article 12 in the Fourth Draft became Article 12 in the
final text; see the section on that Article, p. 420 supra. Paragraph 3 was eventually moved to
Article 14.]
(3) The fact that, in cases under article 13(2) or 14, an arbitrator withdraws from his office or
a party agrees to the termination of the mandate of an arbitrator does not imply
acceptance of the validity of any ground referred to in [that provision] [paragraph (2) of
this article [Art. 12(2) in the final text] or in article 14].
[ .… ]
Article 14. Failure or impossibility to act
If an arbitrator [fails to act or becomes de jure or de facto unable to perform his functions]
[becomes de jure or de facto unable to perform his functions or for other reasons fails to
act], his mandate terminates if he withdraws from his office or if the parties agree on the
termination. Otherwise, if a controversy remains concerning any of these grounds, any
party may request from the Court specified in article 6 a decision on the termination of the
mandate which shall be final.
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 12
[ .… ]
35. As regards paragraph (3), the Working Group noted that the Drafting Group had
recommended to place that provision after article 14 as a new article 14 bis. The Working
Group requested the Drafting Group to implement that idea and also to select the more
appropriate wording of the two variants presented between square brackets at the end of
that paragraph.
P 450
P 451
[ .… ]
Article 14
40. The text of article 14 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
41. The Working Group adopted that article, including the words “becomes de jure or de
facto unable to perform his functions or for other reasons fails to act” and deleting the
words “fails to act or becomes de jure or de facto unable to perform his functions.”
[Editors' Note: The remainder of the Working Group's discussion of this Article concerned
other ways that an arbitrator's mandate could terminate, which are included in Article 15.
These materials appear in the section on that Article, pp. 470–71 infra.]
FIFTH DRAFT
A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 14. Failure or impossibility to act
If an arbitrator becomes de jure or de facto unable to perform his functions or for other
reasons fails to act, his mandate terminates if he withdraws from his office or if the parties
agree on the termination. Otherwise, if a controversy remains concerning any of these
grounds, any party may request the Court specified in article 6 to decide on the
termination of the mandate, which decision shall be final.
Article 14 bis [Art. 14(2) in the final text]
The fact that, in cases under article 13(2) or 14, an arbitrator withdraws from his office or a
party agrees to the termination of the mandate of an arbitrator does not imply acceptance
of the validity of any ground referred to in article 12(2) or 14.
SIXTH SECRETARIAT NOTE

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 ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 14. Failure or impossibility to act
1. Austria proposes to insert the words “Unless otherwise agreed by the parties” in article
14 to show that the parties are free to agree on the application of a set of arbitration rules
which provide a different solution to the situation envisaged in this article.
P 451 2. For reasons expressed in paragraph 7 of the compilation of comments on article 13
P 452 [appearing in the section on that Article, p. 423 supra], the Federal Republic of Germany
suggests including a reservation in article 14 to the effect that a party would have recourse
to the Court only where the parties have not agreed on another procedure that would lead
to a conclusive and binding decision.
3. Italy proposes to insert after the words “fails to act” the words “with appropriate speed
and efficiency.”
4. As to the proposal by the German Democratic Republic to specify the Court which has
jurisdiction under article 14, see paragraph 11 of the compilation of comments on article 13
[appearing in the section on that Article, p. 424 supra.]
5. As to the finality of the decision by the Court, Norway makes the same comment as that
on article 11(5) (see paragraph 5 of the compilation of comments on article 11 [appearing in
the section on that Article, p. 379 supra]).
6. In order to express more clearly the instances of impossibility to act, the Republic of
Korea proposes to replace the words “if he withdraws” in the first sentence by the words “if
he dies or withdraws.”
Article 14 bis [Art. 14(2) in the final text]
No comments are made on this article.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 14. Failure or impossibility to act
1. It is the view of Canada that the procedures in articles 13 and 14 should mesh. At present,
the relationship of article 14 to article 13 is not entirely clear. For instance, one may ask
whether the apparent bias of an arbitrator might be regarded as a de jure impossibility to
act.
2. In the view of ICC [International Chamber of Commerce], present article 14, dealing with
de jure or de facto impossibility of an arbitrator to act and giving exclusive jurisdiction to
the State Court where a controversy remains regarding the termination of the arbitrator's
mandate, is not compatible with those rules of arbitral institutions which provide that, in
such cases, the institution takes a final decision. ICC proposes that article 14 be modified
so as to give the parties the freedom to agree on the procedure to be followed and to give
jurisdiction to the State Court only as a last resort in case the agreed upon procedure for
some reason fails (as is done in article 11(4) of the model law). It is noted, however, that,
since parties may agree on the termination of the mandate of an arbitrator (article 14, first
sentence), article 14 might be interpreted as meaning that the mere fact that the parties
submit a dispute to the rules of an arbitral institution implies that they have given the
P 452 institution the power to decide the issue (by virtue of article 2(c) [Art. 2(d) in the final text]
P 453 giving the parties the right to authorize an institution to make a determination for the
parties). If it is considered impossible to amend the model law so as to give jurisdiction to
the State Court only as a last resort, and if the interpretation noted above is correct, it
would be desirable, if possible, to make a record of that interpretation.
3. Canada is of the view that, in an arbitration with three arbitrators, a party ought to be
able to request the other members of the arbitral tribunal to terminate the mandate of the
third arbitrator before being required to request the Court to do so, in order to reduce the
necessity of petitioning the Court.
4. The Sudan proposes adding the following new paragraph to article 14:
“(2) If the sole or presiding arbitrator is replaced for any of the reasons
embodied in the above paragraph, any hearings held previously shall be
repeated. Likewise, if any other arbitrator is replaced, such prior hearings shall
be repeated at the discretion of the arbitral tribunal.”
5. AALCC [Asian–African Legal Consultative Committee], in view of its suggested re–
formulation of article 6 (see paragraph 2 of the compilation of comments on article 6
[appearing in the section on that Article, p. 249 supra]), observes that certain consequential
amendments would need to be incorporated in this article, namely “the Court specified in

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 article 6” would need to be replaced by “the Courts specified according to article 6.”
Article 14 bis [Art. 14(2) in the final text]
AALCC recommends that the opening words “The fact that” should be deleted as
superfluous.
SEVENTH SECRETARIAT NOTE
ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1985)
Article 14. Failure or impossibility to act
[ .… ]
1. Article 14 deals with the termination of the mandate of an arbitrator who becomes de
jure or de facto unable to perform his functions or for other reasons fails to act. In any such
case his mandate terminates if he withdraws from his office or if the parties agree on the
termination or where this consequence is so self–evident that neither withdrawal nor
agreement is needed as, for example, in the case of death.
2. Otherwise, the Court specified in article 6 shall, upon request of a party, make a final
decision on the termination of the mandate if there remains a controversy concerning any
of the above grounds. A need for such court assistance will rarely arise with regard to de
jure or de facto impossibility and will most probably relate to the less precise ground of
“failure to act.”
3. This formula, taken from the UNCITRAL Arbitration Rules (article 13(2)), is admittedly
P 453 vague, in particular, as regards the (undefined) time element inherent in the term “failure.”
P 454 It is, nevertheless, used here since no other acceptable, more detailed formula could
be found, which would be sufficiently flexible to cover the great variety of situations in
which retention of a “non–performing” arbitrator becomes intolerable.
4. It is submitted that in judging whether an arbitrator failed to act the following
considerations may be relevant: Which action was expected or required of him in the light
of the arbitration agreement and the specific procedural situation? If he has not done
anything in this regard, has the delay been so inordinate as to be unacceptable in the light
of the circumstances, including technical difficulties and the complexity of the case? If he
has done something and acted in a certain way, did his conduct fall clearly below the
standard of what may reasonably be expected from an arbitrator? Amongst the factors
influencing the level of expectations are the ability to function efficiently and
expeditiously and any special competence or other qualifications required of the
arbitrator by agreement of the parties.
5. It may be noted that article 14 does not cover all grounds which lead to a termination of
the mandate of an arbitrator. Other grounds are to be found in article 15. (49)
Article 14 bis [Article 14(2) in the final text]
[ .… ]
1. Article 14 bis provides that the withdrawal of an arbitrator or the consent of a party to
the termination of his mandate, whether under article 13(2) or 14, does not imply
acceptance of any ground on which the termination was requested. This provision,
precluding any inference as to the validity of the grounds, is designed to facilitate such
withdrawal or consent in order to prevent lengthy controversies.
2. The provision is presented in a separate article since it relates to two different articles.
If retained in this form, it might be given the following heading: “No inference of validity of
grounds.”
SUMMARY RECORD
A/CN.9/SR.314–.315, .319, .320, .332
[7 June 1985, 2:00 P.M., A/CN.9/SR.314]
Article 14. Failure or impossibility to act
49. Mr. BONELL (Italy) said that although article 14 was brief its implications were
considerable. In its written comments, his delegation had proposed that the words “with
appropriate speed and efficiency” should be inserted after “fails to act” ([Sixth Secretariat
Note Government Comments),] A/CN.9/263, [Art. 14,] para. 3). A somewhat similar proposal
had been made by Sweden on article 19 regarding the “prompt conduct of the arbitration”
([Sixth Secretariat Note (Government Comments),] A/CN.9/ 263, [Art. 19,] para. 1 [appearing in
P 454 the section on Article 19, p. 580 infra]). His delegation attached considerable importance
P 455 to its proposal since, without any such reference to the duty of the arbitrators, the text
would lack an important provision. Nearly all national legislations or arbitration rules
contained a provision of that kind and article 14 was the proper place for it. His
delegation, however, would welcome suggestions for another location, but strongly urged
approval of the substance of the proposal.
50. Mr. SCHUETZ (Austria) felt that the model ought to trust the arbitrators to act with

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 speed and efficiency. If such terms were included, it might convey the idea that the
Commission assumed that they could perhaps act in some other way. He felt that the
phrase “fails to act” was broad enough to cover unacceptable delay. His delegation
therefore favoured retaining the article as it stood.
51. Mr. SEKHON (India) agreed fully with the Italian proposal. The expression “for other
reasons” suffered from an inherent vagueness which could be remedied by the addition of
a phrase such as “with due diligence” or “with due despatch.” He also questioned the use of
the comma after the phrase “fails to act.” He felt that it would be clearer if the sentence
ran “fails to act with due despatch or if he withdraws from his office or if the parties agree
on the termination, his mandate terminates.”
52. Mr. SAMI (Iraq) said that his delegation also believed that arbitral proceedings should
be carried out with speed and efficiency. That was precisely why the parties had resorted
to arbitral procedure. Undue delay through prevarication on the part of one of the
arbitrators could well be grounds for recourse by the other party and for an application for
a change of arbitrator. His delegation therefore supported the Italian proposal. The next
sentence, however, did not seem to be very clear and could be interpreted in several ways.
As he saw it, the sentence did not relate to the grounds for inaction but to the situation or
state of the arbitrator which did not allow him to act speedily. Perhaps the sentence might
run: “… if the arbitrator cannot act speedily or efficiently.…”
53. Mr. MTANGO (United Republic of Tanzania) said that speed did not mean efficiency in
every case. He proposed, therefore, that only the word “efficiently” should be inserted.
54. Mr. MOELLER (Observer for Finland) pointed out that the wording of the proposal was:
“appropriate speed.” As for the suggestion that appropriate speed and efficiency were
already implied, he felt that the additional language should be introduced into the
sentence in order to make it entirely clear.
55. Mr. ROEHRICH (France) wholeheartedly supported the Italian proposal.
56. Mr. HOLTZMANN (United States of America) expressed concern about the implications
of the term “efficiency,” which seemed to invite review of the entire nature of the
arbitration proceeding. The arbitrators, who had the power to decide how the proceedings
P 455 should be conducted, might, for example, ask for more written evidence than had been
P 456 provided. The possibility of a court review of the efficiency of the procedure opened up
a whole area going beyond the question of speed. He knew of no national law relating to
arbitration which invited a judicial review of efficiency.
57. The question of speed was different: many domestic laws provided for various time
periods. The insertion of the phrase “due despatch” might be of some help to arbitral
proceedings. He read the related article in the UNCITRAL Arbitration Rules as requiring due
despatch. While he felt there was no need for any addition, provided it was understood
that article 14 did not change the UNCITRAL rule, his delegation would not object to a
phrase such as “reasonable speed” or “due despatch.”
58. Mr. de HOYOS GUTIERREZ (Cuba) felt that a phrase such as “due diligence” would
improve the article.
59. Sir Michael MUSTILL (United Kingdom) said that his delegation viewed with great alarm
the proposal to introduce the concept of “efficiency.” It seemed to invite any party
dissatisfied with the way the proceedings were going to apply to a court on the grounds
that there had been inefficiency. He therefore opposed the inclusion of the term. On the
question of “speed” he agreed with Tanzania. He felt that the United Kingdom's arbitration
law, which had been in effect for some 50 years, covered the point satisfactorily.
60. Mr. STROHBACH (German Democratic Republic) thought the article should be left as it
stood. The reference to the performance of the arbitrators' functions implied that all the
necessary steps would be taken in due time.
61. Mrs. VILUS (Yugoslavia) urged caution over the Italian proposal. It might prove difficult
to interpret the terms “efficiency” and “speed.”
62. Mr. SAWADA (Japan) shared the concern behind the Italian proposal. The exact wording
necessary to achieve its purpose could perhaps be left to a small ad hoc drafting party. He
suggested that “due despatch” might be appropriate.
63. Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration) felt that
the judgement of the work of the arbitrators before it was completed — which was implied
in the word “efficiency” — could create problems. He would not object to the use of “speed”
but would prefer to leave the article as it stood.
64. Mr. BONELL (Italy) said that his delegation was ready to withdraw the term “efficiency”
in view of the criticism it had attracted. He stressed that his delegation's proposal called
for “appropriate” speed; that qualification was important. If the Commission preferred the
wording suggested by India, however, his delegation would be glad to accept it.
65. Mr. ROEHRICH (France) objected that it was impossible to translate “due despatch” into
French.
P 456
P 457

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 66. Mr. MTANGO (United Republic of Tanzania) said that “due despatch” had been used for
50 years in one system of arbitration rules. It had been held in many quarters that the term
“appropriate” had no legal meaning.
67. Mr. LAVINA (Philippines) said that the term “failure to act” had a meaning in law, and
any adjective attached to it would be debatable.
68. Sir Michael MUSTILL (United Kingdom) said that his delegation would support the
inclusion of the terms “reasonable,” “appropriate” or “due.”
69. Mr. HOLTZMANN (United States of America) said that his delegation could agree to
“reasonable,” on the understanding that its inclusion in the model law did not mean that it
was not required in the interpretation of article 13(2) of the UNCITRAL Arbitration Rules.
70. The CHAIRMAN [Mr. LOEWE (Austria)] stated that the proposed amendment to insert
“reasonable speed” in the text was adopted, and that it was viewed as an elaboration, not
a change, of the UNCITRAL Rule.
71. Mr. HERRMANN (International Trade Law Branch) said that the representative of Iraq
had referred to a possible ambiguity in the second sentence of the article with regard to
the term “grounds.” The reference was to the three basic instances of failure to act
mentioned in the first sentence.
72. Mrs. RATIB (Egypt) suggested that the article should be divided into two paragraphs.
73. The CHAIRMAN said that, since a number of points of language had been raised, it would
be wise to appoint a small ad hoc drafting party, consisting of the representatives of Iraq,
India and Tanzania, to discuss the language with the Secretariat and prepare an agreed
text.
74. It was so agreed.
75. Mr. SCHUMACHER (Federal Republic of Germany) wished to reaffirm his delegation's
written proposal, and that of Austria, to insert the words “unless otherwise agreed by the
parties” in article 14 ([Sixth Secretariat Note (Government Comments),] A/CN.9/263, [Art. 14,]
paras. 1 and 2).
76. Mr. SCHUETZ (Austria) said that, in the interests of party autonomy, the parties should
be free to agree on a procedure in cases coming under article 14.
77. Mr. HOLTZMANN (United States of America) found the written suggestion of the Federal
Republic of Germany attractive. Article 13(1) started with the words “The parties are free to
agree on a procedure …” and the matter dealt with in article 14 was akin to challenge. The
proposal of the Federal Republic of Germany was not intended to mean that there should
be no possibility of a court review. The parties, who should be entitled to decide on their
appointing authority, could also decide whether due speed was being exercised, and that
should be made clear first, with provision for the possibility of a court review at a later
stage.
P 457
P 458
78. The CHAIRMAN said that that was an entirely new proposal the acceptance of which
would imply major drafting changes.
[10 June 1985, 9:30 A.M., A/CN.9/SR.315]
Article 14. Failure or impossibility to act (continued)
1. Mr. SONO (Secretary of the Commission) said that the Commission had only one more
week in which to finalize the model law. He appealed to speakers to bear that situation in
mind when discussing the remainder of the draft, the whole of which had received detailed
consideration in the Working Group on International Contract Practices.
2. Mr. SCHUETZ (Austria) withdrew his Government's written proposal ([Sixth Secretariat
Note (Government Comments),] A/CN.9/263, [Art. 14,] para. 1) in the interests of speeding the
Commission's work.
3. Mr. SCHUMACHER (Federal Republic of Germany) said that he would withdraw his
Government's written proposal ([Sixth Secretariat Note (Government Comments),]
A/CN.9/263, [Art. 14,] para. 2) if there was no strong support for it.
4. Mr. SEKHON (India) said that the agreed text called for at the previous meeting
([Summary Record,] A/CN.9/SR.314, para. 73) would be circulated in writing. It would
remove some overlapping between articles 14 and 15 by transferring certain wording from
the latter to the former, and would include a proposed text for article 15 as well.
5. Mr. LAVINA (Philippines), commenting on the Secretary's remark, said that he
appreciated the need for rapid progress with the draft text. However, many developing
countries had been unable to attend the meetings of the Working Group and naturally
wished to express their views on the draft text to other countries during the present
session.
6. Mr. RAMADAN (Egypt) drew attention to the change in the article proposed by his
delegation at the preceding meeting ([Summary Record,] A/CN.9/SR.314, para. 71 [sic —
para. 72 is meant]). He too appreciated the need for the Commission to make quick

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 progress, but wished to point out that the Commission must take into account the fact that
some of the developing countries had been unable to discuss the draft text in the Working
Group.
7. Mr. PAES de BARROS LEAES (Brazil) proposed that, in the first sentence, the words “de jure
or de facto” should be deleted and the words “with appropriate speed” be added after the
word “act”; and that in the second sentence the word “otherwise” should be deleted.
8. Mr. HERRMANN (International Trade Law Branch) said that the Working Group had
included the words “de jure or de facto” in order that the provision should be quite clear
and also consistent with the UNCITRAL Arbitration Rules. In substance the word “unable”
would of course cover both cases.
P 458 9. Mr. HOLTZMANN (United States of America) said that his delegation favoured the
P 459 proposal of the Federal Republic of Germany because it clarified the intent, although it
did not change the substance. The UNCITRAL Arbitral Rules provided in general that the
parties could determine how best to conduct their arbitration; in the draft text the first
sentence of article 14, taken together with article 2(c) [Art. 2(d) in the final text], expressed
that idea as well, and did so in a manner consistent with article 13(2) of the Rules.
10. The CHAIRMAN [Mr. LOEWE (Austria)] noted that the Commission awaited the written text
in course of preparation by the ad hoc drafting party set up at the previous meeting.
Article 14 bis [Art. 14(2) in the final text]
11. The Commission did not comment on article 14 bis.
Article 15. Appointment of substitute arbitrator
12. Mr. SEKHON (India) said that the ad hoc drafting party's proposed text for article 14
entailed the deletion from article 15 of the words “or because of his withdrawal from office
for any other reason or because of the revocation of his mandate by agreement of the
parties.” In addition, article 15 should be amended to include a time–limit for the
appointment of a substitute arbitrator and should read “are applicable” instead of “were
applicable.”
13. The CHAIRMAN said that the Commission would consider those amendments when it
had the ad hoc drafting party's written proposal before it for articles 14 and 15.
14. Mr. REINSKOU (Observer for Norway) drew attention to his Government's written
proposal, reproduced in [the Sixth Secretariat Note (Government Comments),] document
A/CN.9/263 ([Art. 15,] para. 2), [appearing in the section on Article 15, p. 472 infra,] to simplify
article 15 by deleting the passage commencing with the words “under article 13 or 14” and
ending with the words “termination of his mandate.”
15. The CHAIRMAN suggested that the Observer for Norway should discuss his proposal with
the drafting party with a view to the production of a consolidated text for articles 14 and
15.
16. It was so agreed.
17. Mr. LEBEDEV (Union of Soviet Socialist Republics) suggested that the consolidated text
would need to be examined carefully to make sure that it did not contain any changes of
substance. Article 14 covered the case where an arbitrator's mandate must be terminated
and in that circumstance the model law should permit an ensuing dispute to be settled in
court. Article 15, on the other hand, referred to cases in which an arbitrator withdrew for his
own reasons; in that situation there might be no controversy which could be subject to any
judicial control.
[12 June 1985, 9:30 A.M., A/CN.9/SR.319]
Article 14. Failure or impossibility to act (continued) (A/CN.9/XVIII/CRP.6)
P 459 68. Mr. SEKHON (India) introduced a revised draft of article 14 (A/CN.9/ XVIII/CRP.6). (*) The
P 460 words “with reasonable speed” had been placed in square brackets, which the
Commission could remove if it decided that the words were necessary.
69. The CHAIRMAN [Mr. LOEWE (Austria)] suggested that the square brackets should be
deleted straightaway since the earlier discussion of the article seemed to indicate that the
Commission wished that notion to be included in the draft law.
70. It was agreed.
71. Mr. LEVEDEV (Union of Soviet Socialist Republics) asked how the moment of termination
of the arbitrator's mandate would be decided under the new provision; and whether the
second sentence of the article meant that in the event referred to in the first sentence
either party could apply to the court to have the arbitrator continue in office.
72. Mr. SEKHON (India) said that the date of withdrawal from office was a matter of
substance and had not been referred to the ad hoc working party. It was certainly a point
that the Commission should deal with. Regarding the second question, there was a link
between articles 14 and 15. For the Commission's guidance he read out the text which the
ad hoc working party intended to propose for article 15.*
[Editors' Note: The ad hoc working party's proposal with respect to Article 15 was contained

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 in A/CN.9/XVIII/CRP.11, which is a Conference Room Paper appearing on page 475 infra.]
73. Mr. HOLTZMANN (United States of America) said that, after hearing the new proposal for
article 15, he thought that the whole problem might be solved by employing the original
version of article 14 with the addition of a sentence to the effect that the mandate of an
arbitrator would also terminate if, for any other reason, he withdrew from his office or the
parties agreed on termination. Regarding the notion of reasonable speed, he would prefer
the words “without undue delay” to be used.
74. The CHAIRMAN said that in his view the United States suggestion would not cover the
question of the moment of termination of the arbitrator's mandate. Where an arbitrator
did not withdraw and there was no agreement between the parties on a date of
termination, and where nevertheless he was unable to perform his functions or failed to
act, what would be the precise moment at which his mandate terminated? Until it was
terminated he was still an arbitrator.
P 460 75. Mr. SZURSKI (Observer for Poland) said that he could not accept the United States
P 461 representative's suggestion. Provision must be made for situations in which there was
no moment of automatic resignation. There were two possibilities: to provide that the
mandate of an arbitrator terminated if he became de jure or de facto unable to perform his
functions, or for other reasons failed to act, and thereby delayed proceedings for more
than a specified period; or to provide that if an arbitrator failed to withdraw when asked
by the parties, the parties would have recourse to the court, which would decide whether
there were really grounds for withdrawal or not.
76. Mr. BONELL (Italy) said that new draft seemed to change the entire scope of the article
by making it deal exhaustively with the terms of the arbitrator's mandate, yet he
understood that the Commission's intention was not to deal with the contractual
relationship between parties and arbitrators. The affirmation of the arbitrator's right to
withdraw for any reason and the right of the parties to terminate his mandate for any
reason, without further qualification, was a departure in substance from the original
version, which he strongly preferred, subject only to the inclusion in it of the reference to
reasonable speed.
77. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that the proposal submitted by
the ad hoc working party contained a rational element which might be used without,
however, any change to the substance of the article. He himself was in favour of keeping
the article as it stood, with the inclusion of a reference to reasonable speed and of a
separate paragraph to deal with other reasons for the termination of an arbitrator's
mandate, either by himself or by the parties. There would then be no need for that to be
dealt with in article 15.
[12 June 1985, 2:00 P.M., A/CN.9/SR.320]
1. Sir Michael MUSTILL (United Kingdom) recalled that the Working Group had exhaustively
discussed at its fifth session the formulation of article 14 ([Third Working Group Report,]
A/CN.9/233, paras. 113–115 [pp. 447–48 supra]). The present text was perhaps not ideal but it
was sufficiently satisfactory and did not warrant further alteration.
2. Mr. de HOYOS GUTIERREZ (Cuba) suggested that reference should be made to the
efficiency as well as the speed of arbitration, since that was an equally important factor.
3. The CHAIRMAN [Mr. LOEWE (Austria)] said that it was impossible to reopen the discussion.
If he heard no objection, he would take it that the Commission agreed to retain the original
text of article 14 with the addition of the reference to reasonable speed
(A/CN.9/XVIII/CRP.6) [the Conference Room paper quoted in the footnote to SR.319, para.
68]), the exact formulation of which would be left to the drafting committee. (*)
4. It was so agreed.
P 461
P 462
[20 June 1985, 3:00 P.M., A/CN.9/SR.332]
Articles 14 and 15 [as revised by the Drafting Group]
39. Articles 14 and 15 were adopted without change.
COMMISSION REPORT
A/40/17 (21 AUGUST 1985)
Article 14. Failure or impossibility to act
135. The text of article 14 as considered by the Commission was as follows: [same as Fifth
Draft, supra].
136. It was noted that article 14, unlike articles 11 and 13, did not expressly give the parties
the freedom to agree on a procedure in cases of an arbitrator's inability or failure to act. It
was understood, however, that the provision was not intended to preclude parties from
varying the grounds which would give rise to the termination of the mandate or from
entrusting a third person or institution with deciding on such termination.
137. As regards the grounds for termination set forth in the article, various suggestions were
made. One suggestion was to delete the words “de jure or de facto” since they were

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 unnecessary and a potential source of difficulty in interpretation. The Commission did not
adopt the suggestion for the sake of harmony with the corresponding provision in the
UNCITRAL Arbitration Rules (article 13(2)).
138. Another suggestion was to describe more precisely what was meant by the words “fails
to act,” for instance, by adding such words as “with due dispatch and with efficiency” or
“with reasonable speed.” It was stated in reply that the criteria of speed and efficiency,
while important guidelines for the conduct of an arbitration, should not be given the
appearance of constituting absolute and primary criteria for assessing the value of an
arbitration. It was pointed out that the criterion of efficiency was particularly
inappropriate in the context of article 14 since it could open the door to court review and
assessment of the substantive work of the arbitral tribunal. There were less reservations to
expressing the idea of reasonable speed, which was regarded as a concretization of the
time element inherent in the term “failure to act.”
139. While considerable support was expressed for leaving the wording of article 14
unchanged, which corresponded with the wording found in article 13(2) of the UNCITRAL
Arbitration Rules, the Commission, after deliberation, was agreed that the expression “fails
to act” should be qualified by such words as “with reasonable speed.” It was understood
that the addition served merely to clarify the text and should not be construed as
attaching to the words “fails to act” a meaning different from the one given to the wording
in the UNCITRAL Arbitration Rules.
140. A proposal was made for redrafting article 14 with a view to covering also the
P 462 instances of termination included in article 15, without changing the substance of those
P 463 two articles. The Commission entrusted an ad hoc working party, composed of the
representatives of India and Tanzania, with the task of preparing a draft of article 14.
141. The ad hoc working suggested the following modified version of article 14: [same as text
quoted in the footnote to SR.319, para. 68, supra].
142. Concern was expressed in the Commission that the suggested redraft of article 14
might have changed the substance of the provision in unintended ways. In particular, it
was not clear when the arbitrator's mandate terminated for his failure to act. After
discussion the proposal was rejected and the original text retained with the addition of
words such as “with reasonable speed” as had been previously decided.
[Editors' Note: Paragraph 143 of the Report concerns the applicability of Articles 11, 13 and 14
of the Law prior to when the place of arbitration has been determined. This paragraph
appears in the subsection on Article 1, paragraph 2, p. 132 supra. For materials on the decision
to change the word “final,” which was contained in the Fifth Draft of Article 14, to the phrase
“subject to no appeal,” see paragraph 132 of this document, p. 436, and Summary Record,
A/CN.9/SR.314, paras. 26–32, pp. 433–34, both appearing in the section on Article 13 supra.]
Article 14 bis
144. The text of article 14 bis as considered by the Commission was as follows:
[same as Fifth Draft, supra].
145. The Commission adopted the substance of the article. It was subsequently
incorporated by the Drafting Group into article 14 as new paragraph (2).
P 463

References
1) See Seventh Secretariat Note, A/CN.9/264, Art. 14, para. 1, p. 453 infra (in the case of
death, termination of the mandate is “so self – evident that neither withdrawal nor
agreement is needed”); see also Sixth Secretariat Note (Government Comments),
A/CN.9/263, Art. 14, para. 6, p. 452 infra.
2) An additional way for a mandate to terminate — a successful challenge — is implied by
Article 13. See Fifth Working Group Report, A/CN.9/246, para. 39, appearing in the
section on Article 13, p. 421 supra; see also Article 15, which mentions termination of an
arbitrator's mandate under Article 13. In addition, Article 15 makes clear that the
parties can agree to terminate the mandate of an arbitrator, or an arbitrator can
withdraw, for reasons not listed in Articles 13 and 14.
3) The First Draft of Article 14 contained such a procedure for terminating an arbitrator's
mandate, including a 20–day period of time for withdrawal or agreement, but it was
deemed to be too detailed. First Draft, A/CN.9/WG.II/WP.37, Art. 11, p. 444 infra; Second
Working Group Report, A/CN.9/232, para. 67, p. 445 infra.
4) Seventh Secretariat Note, A/CN.9/264, Art. 14, paras. 3–4, pp. 453–54 infra. The
Secretariat suggested that controversy would rarely arise with regard to the existence
of de jure or de facto impossibility. See id. para. 2, p. 453 infra. But see Sixth Secretariat
Note (Government Comments), A/CN.9/263/Add.1, Art. 14, para. 1, p. 452 infra.
5) Seventh Secretariat Note, A/CN.9/264, Art. 14, para. 3, pp. 453–54 infra.

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 6) Id. para. 4. At the time the Secretariat wrote this, the words “without delay” had not yet
been added after the term “fails to act.” Nevertheless, as noted below, the addition of
these words was not intended to alter the basic meaning of the term, but only to
emphasize the need for due speed in arbitration.
It may be noted that the Secretariat emphasized consideration of any expectations for
action that were set forth by the parties in the arbitration agreement. In this
connection see the First Working Group Report, A/ CN.9/216, para. 74, p. 443 infra
(“There was general agreement that the parties were free to stipulate a time-limit for
the making of an award, if they so wished.”).
7) Seventh Secretariat Note, A/CN.9/264, Art. 14, para. 3, pp. 453–54 infra.
8) See generally Summary Record, A/CN.9/SR.314, paras. 49, 57, pp. 454–55, 456 infra.
9) Commission Report, A/40/17, para. 139, p. 462 infra.
10) See Summary Record, A/CN.9/SR.314, paras. 51, 54, 57; id., SR.319, para. 73, pp. 455, 456,
460 infra.
11) Cf. id. SR.314, para. 65, p. 456 infra (“due dispatch” could not be translated into French).
12) See Commission Report, A/40/17, para. 138, p. 462 infra; Summary Record,
A/CN.9/SR.314, paras. 56, 59, 63, 64, pp. 455–56 infra.
13) E.g., ICC Rules of Arbitration, Art. 2(11) (1988) (ICC Court of Arbitration decides); London
Court of International Arbitration Rules, Art. 3.6 (1985) (London Court of International
Arbitration decides); Rules for Arbitration of the Kuala Lumpur Regional Arbitration
Centre, Rule 3(1) (1979) (Centre is to decide).
14) See Sixth Secretariat Note (Government Comments), A/CN.9/263, paras. 1, 2, pp. 451–52;
id., Add.1, para. 2, pp. 452–53 infra; Summary Record, A/CN.9/SR.315, para. 9, pp. 458–59
infra.
15) Commission Report, A/40/17, para. 136, p. 462 infra.
16) See Seventh Secretariat Note, A/CN.9/264, Art. 14 bis, para. 1, p. 454 infra. Paragraph 2
was adopted by the Working Group as a separate Article 14 bis, because it relates to
both Articles 13 and 14. The Commission's Drafting Group incorporated the separate
Article into Article 14. See Commission Report, A/40/17, para. 145, p. 463 infra.
17) See Strohbach, “Composition of the Arbitral Tribunal and Making of Award,” in
UNCITRAL's Project for a Model Law on International Commercial Arbitration 103, 111
(ICCA Congress Series No. 2, P. Sanders ed. 1984).
30) Art. 19(2): “If the parties have not prescribed a period or a method of prescribing a
period, if the arbitral tribunal delays in making the award and if a period of six months
has elapsed from the date on which all the arbitrators accepted office in respect of the
dispute submitted to arbitration, the judicial authority may, at the request of one of
the parties, stipulate a period for the arbitral tribunal.”
31) In addition to this sanction, the 1966 Strasbourg Uniform Law even envisages
termination of the arbitration agreement if the arbitrators are named therein (see
above, para. 62 [appearing in the section on Article 32, p. 872 infra]).
17) Discussion and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, paras. 42–45, 50, 52, 75. [Editors' Note: Paragraphs 52 and 75 appear directly
above; the remaining cited paragraphs appear in the sections on Articles 11, 12 and 14.]
The draft provisions of this section might later be placed after the draft provisions on
the appointment of arbitrators [Articles 13–17 in the First Draft, Articles 10–11 in the final
text].
23) This draft provision follows in substance article 13(2) of the UNCITRAL Arbitration Rules
but spells out the procedure to be used in such case instead of generally referring to
the provisions on challenge.
25) Discussion and conclusions of the Working Group in [First Working Group Report,]
A/CN.9/216, paras. 46–50. [Editors' Note: Paragraphs 46–48 appear in the section on
Article 10; paragraphs 49–50 appear in the section on Article 11.]
29) The Authority envisaged in this provision would be a judicial body specializing in
arbitration matters and assisting in a variety of ways specified in the model law.
9) [Editors' Note: Footnote 9 appears in the section on Article 6, p. 244 supra.]
10) Provisions which “provide otherwise” may either restrict the rule under (a), e.g., article
X(3) [Art. 13 in the final text] which entitles only a party to resort to this Court, or widen
the rule by entitling others, such as individual arbitrators, e.g., article VIII(3) [Art. 11] or
XI(2) [Art. 14].
11) Provisions which “provide otherwise,” i.e., allow an appeal, might, for example, be
envisaged in respect of decisions on setting aside, or on recognition and enforcement,
of arbitral awards (to be dealt with in [a second part of the Second Draft,]
A/CN.9/WG.II/WP.42 [see the sections on Arts. 34 & 36, pp. 931–34, 1077–80 infra]).
18) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 83–86. It may be recalled here that, according to a decision
by the Group, the procedural issues previously dealt with in (now deleted) paragraph
(2), i.e., right to request the Court to act and finality of the Court's decision, should be
considered in the context of the individual provisions entrusting certain functions to
the Court.
27) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 113–117.

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 *) [Editors' Note: Paragraph 208, appearing in the section on Article 13, pp. 419–20 supra,
reports the Working Group's decision to move into draft Article IX the provision in draft
Article X that neither an arbitrator's resignation in the face of a challenge nor a party's
agreement to the challenge would imply acceptance of the grounds of the challenge.]
49) See commentary [Seventh Secretariat Note] to article 15, paras. 1–3 [appearing in the
section on that Article, p. 473 infra.].
*) [Editors' Note: This Conference Room Paper, dated 10 June 1985, read as follows:
PROPOSAL OF THE AD HOC WORKING PARTY
(COMPOSED OF THE REPRESENTATIVES OF INDIA AND TANZANIA)
Article 14. Failure or impossibility to act
The mandate of an arbitrator terminates, if he becomes de jure or de facto unable to
perform his functions or for other reasons fails to act [with reasonable speed] or if he
withdraws from his office for any reason or if the parties agree on the termination of his
mandate. However, if a controversy remains concerning any of these grounds, any party
may request the Court specified in article 6 to decide on the termination of the mandate,
which decision shall be final.]

*) [Editors' Note: The Drafting Group ultimately chose the phrase “without undue delay,”
which is the term appearing in the final text.]

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Document information
UNCITRAL Model Law, Chapter III, Article 15 [Appointment
Publication of substitute arbitrator]
A Guide to the UNCITRAL Where the mandate of an arbitrator terminates under article 13 or 14 or because of his
Model Law on International withdrawal from office for any other reason or because of the revocation of his mandate
Commercial Arbitration: by agreement of the parties or in any other case of termination of his mandate, a
Legislative History and substitute arbitrator shall be appointed according to the rules that were applicable to
Commentary the appointment of the arbitrator being replaced.

Commentary
Organization
Article 15 serves a dual function. First, as its title suggests, it provides a mechanism for
United Nations Commission appointing substitute arbitrators. Second, it expresses two important principles respecting
on International Trade Law termination of an arbitrator's mandate: that the parties may agree to terminate the
mandate of an arbitrator for any reason and that an arbitrator may resign for any reason.
This second function evolved late in the drafting of the Article. As initially conceived the
Promulgation Article was aimed only at providing for appointment of new arbitrators. The First Draft,
modeled on Articles 12(2) and 13(1) of the UNCITRAL Arbitration Rules, provided for such an
21 June 1985 appointment in three cases: “termination of the mandate of an arbitrator,” death, or
resignation. (1) Subsequent drafts tinkered with this list but did not depart from the
general approach. It was only in its fifth and final session on the Law that the Working
Legislation number Group decided to address the “complex … questions” of whether the parties had unlimited
freedom to terminate the mandate of an arbitrator and whether the arbitrator had
United Nations Document unlimited freedom to resign. The Working Group felt that, in light of the Law's enumeration
A/40/17, Annex I of some ways in which a mandate may terminate, the failure to address these questions —
in particular, the extent of the parties' freedom to agree to remove an arbitrator — could
lead to confusion. (2)
Bibliographic reference
As to the question of the parties' freedom, it was widely agreed that since arbitration was
'UNCITRAL Model Law, by its nature consensual the parties had to have unrestricted freedom to agree on the
Chapter III, Article 15 P 464 termination of an arbitrator's mandate. (3) As to the second question — regarding an
[Appointment of substitute P 465 arbitrator's power to resign — some delegates thought that an arbitrator should be
arbitrator]', in Howard M. barred from resigning “for capricious reasons.” (4) Nevertheless, the Working Group
Holtzmann and Joseph recognized that it was impractical to require just cause for resigning because an arbitrator
Neuhaus , A Guide to the could not be forced to perform his or her functions in any event. (5) It was understood,
UNCITRAL Model Law on though, that the Model Law did not touch on the contractual relationship between the
International Commercial parties and an arbitrator, and that the parties might be able in that context to protect
Arbitration: Legislative against the expense of unexpected resignations. (6)
History and Commentary,
(© Kluwer Law International; In all of the cases provided for in Article 15, the new arbitrator will be appointed
Kluwer Law International “according to the rules that were applicable to the appointment of the arbitrator being
1989) pp. 464 - 476 replaced.” It should be noted that this does not mean that the new appointment will
necessarily be made in exactly the same way as the original one but only that the same set
of rules under Article 11 will apply. Suppose, for example, that a party had not appointed
an arbitrator as provided under Article 11 (3)(a), so that the arbitrator had been appointed
by a court. If that arbitrator then resigned, the party that had a right to appoint him or her
would have a right to appoint his or her successor; only if the party again failed to exercise
that right would the court act.
The Working Group considered at one point providing a special rule for cases in which an
arbitrator who was named in the arbitration agreement resigned or became incapacitated.
It was thought that in such cases the arbitration agreement should lapse. (7) The
Secretariat argued strenuously that this provision was unnecessary and inadvisable. It
stated that the situation the provision addressed was not very common and that such an
automatic provision was undesirable; the parties could always provide specifically for the
situation in their agreement. (8) The Working Group agreed, and the special provision was
deleted. (9)
Although the text of Article 15 as finally adopted does not explicitly state that the parties
may agree on a different method of appointing substitute arbitrators, earlier drafts had
provided that the parties could “agree otherwise.” (10) The Commission deleted these
P 465 words, without, however, altering the meaning. The view was that since Article 15 referred
P 466 to “the rules that were applicable to the appointment of the arbitrator being replaced,”
it incorporated the full autonomy regarding appointment procedures that is provided in
Article 11(2). (11) Thus, the parties are free to agree on a procedure for appointing
replacement arbitrators other than that provided in Article 15, or they can agree not to
have any replacement procedure but to terminate the arbitration if, for example, their
chosen arbitrator cannot serve. (12)
The Secretariat suggested one rather ingenious way in which the parties might use this
freedom. At its fourth session on the Law, the Working Group had expressed concern that
the mechanism of resignation and replacement might, in the case of a party–appointed
arbitrator, be abused to obstruct the proceedings. (13) The Working Group had found no
appropriate legislative solution for this problem. (14) The Secretariat later suggested a

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 partial, nonlegislative solution inspired by Article 56(3) of the 1965 Washington Convention
on the Settlement of Investment Disputes between States and Nationals of Other States:
(15) The parties could agree that a party– appointed arbitrator who resigns without the
consent of the other members of the arbitral tribunal would be replaced not by another
party–appointed arbitrator but by one appointed by either the chairman of the tribunal or
an appointing authority. (16)
Another solution is suggested by Articles 19 and 29 of the Model Law: Article 19 provides
that the arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate and Article 29 stipulates that, unless otherwise provided, decisions of the
tribunal shall be made by a majority of the arbitrators. Thus, where one arbitrator resigns
in an effort to obstruct the functioning of the arbitral process, the remaining arbitrators
presumably are not precluded from continuing the arbitral process and rendering an
award. (17)
It may be noted that, unlike the UNCITRAL Arbitration Rules, the Model Law does not
contain any provision on whether the replacement arbitrator appointed under Article 15
should rehear testimony and argument at a new hearing. (18) This issue presumably should
be considered a matter of arbitral procedure to be considered under Article 19.
P 466
P 467

Legislative History
FIRST SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW
A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
III. Arbitrators
[ .…]
4. Appointment of arbitrators (and replacement)
[Editors' Note: For more on this topic, see the section on Article 11, p. 364 supra.]
69. [ … ]. In addition, some provisions may be in place [i.e., suggested] concerning the
reasons and procedures for replacement of an arbitrator.
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
III. Arbitrators
[ .… ]
4. Appointment of arbitrators (and replacement)
[ .… ]
50. [ … ] An additional proposal was to include a rule on the replacement of an arbitrator
(as for example, article 13 of the UNCITRAL Arbitration Rules).
FIRST DRAFT
A/CN.9/WG.H/WP.37 (15 JULY 1982)
III. Arbitrators
1.–2. Qualifications, challenge (and replacement) (17)
[ .… ]
Article 12 [Art. 15 in the final text]
In the event of the termination of the mandate of an arbitrator or in the event of his death
or resignation during the course of the arbitration proceedings, a substitute arbitrator
shall be appointed according to the rules that were applicable to the appointment of the
arbitrator being replaced, unless the parties agree on another appointment procedure [or
decide to terminate the arbitration proceedings]. (24)
P 467
P 468
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]

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 Arbitrators
Qualifications, challenge (and replacement)
[ .… ]
Article 12 [Art. 15 in the final text]
70. The text of article 12 as considered by the Working Group was as follows:
[same as First Draft, supra].
71. The Working Group accepted the principle of this article. It was understood that article
12 also covered the case where the mandate of an arbitrator was terminated, or where an
arbitrator withdrew from his office, as a result of a challenge in accordance with articles 9
to 11 [Arts. 13 and 14 in the final text].
72. The view was expressed that it should be made clear that the parties may deviate from
this provision. With such a clarification the last words in square brackets could be deleted.
A special provision was suggested for cases in which the arbitrator named in the
arbitration agreement became incapacitated or died. It was thought that in such cases the
arbitration agreement should lapse. It was also suggested that the articles on challenge
and replacement should be placed after the articles on appointment of arbitrators.
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
D. Composition of arbitral tribunal
[ .… ]
Article XII [Art. 15 in the final text]
In the event of the death or resignation of an arbitrator or the termination of his mandate
P 468 under article X or XI [Articles 13 and 14 in the final text], a substitute arbitrator shall be
P 469 appointed according to the rules that were applicable to the appointment of the
arbitrator being replaced, unless the parties agree otherwise. [However, if the arbitrator to
be replaced was named in the arbitration agreement, that agreement shall lapse ipso
jure]. (14)
THIRD WORKING GROUP REPORT
A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[ .… ]
D. Composition of arbitral tribunal
[ .… ]
Article XII [Art. 15 in the final text]
118. The text of article XII as considered by the Working Group was as follows:
[same as Second Draft, supra].
119. A suggestion was made to retain the sentence placed between square brackets since in
the case envisaged therein the parties had expressed clearly that they had confidence
only in the person named in the arbitration agreement. The prevailing view was, however,
that that sentence was not needed in view of the faculty of the parties, provided at the end
of the first sentence, to agree “otherwise.” It was also pointed out that an automatic
lapsing of the arbitration agreement was not necessarily in the interest of the parties.
120. The Working Group, after deliberation, decided to retain the first sentence of that
article.
THIRD DRAFT
A/CN.9/WG.II/WP.45 (13 JUNE 1983)
D. Composition of arbitral tribunal
[ .… ]
Article XII [Art. 15 in the final text] (28)
Where the mandate of an arbitrator terminates under article X or XI [Arts. 13 and 14 in the
final text], or in the event of his death or resignation, a substitute arbitrator shall be
appointed according to the rules that were applicable to the appointment of the
arbitrator being replaced, unless the parties agree otherwise.
P 469
P 470
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Third Draft] (A/CN.9/WG.II/WP.45)

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 [ .… ]
Article XII [Art. 15 in the final text]
217. The text of article XII as considered by the Working Group was as follows:
[same as Third Draft, supra].
218. The Working Group adopted the policy underlying this article. It was observed that the
introductory wording did not specify in a systematical manner the cases where the need
for appointing a substitute arbitrator arose.
219. In connexion with this article, a concern was expressed that, in the case of a party–
appointed arbitrator, the mechanism of resignation and replacement, in particular by
using it repeatedly, could be abused for the purposes of obstructing the proceedings.
Without denying the validity of this concern with regard to some cases, the Working Group
decided not to deal, at least not at this stage, with this problem for which no easy solution
could be found.
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 15. Appointment of substitute arbitrator
[Where the mandate of an arbitrator terminates under article 13 or 14 or because of his
resigning for any other reason,] a substitute arbitrator shall be appointed according to the
rules that were applicable to the appointment of the arbitrator being replaced, unless the
parties agree otherwise.
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 14
[ .… ]
42. It was noted that that article [Article 14] envisaged the termination of the mandate only
for certain reasons specified in that provision and that neither article 14 nor article 15
indicated clearly in what other cases the mandate of an arbitrator would terminate. In
particular, there was no provision on the termination of the mandate of an arbitrator by
P 470 agreement of the parties and it was, therefore, not clear whether the parties by consent
P 471 could remove an arbitrator only for certain reasons or whether their freedom in that
respect was unlimited. Another important question in need of clarification was whether an
arbitrator was free to resign only for certain reasons or whether he was free to resign
without showing sufficient cause.
43. In discussing those questions it was understood that, as had been decided at earlier
sessions, the model law would not deal with the legal responsibility of an arbitrator or
other issues pertaining to the party–arbitrator relationship.
44. As regards the question of removal of an arbitrator by consent, there was wide support
for the view that, because of the consensual nature of arbitration, the parties had
unrestricted freedom to agree on the termination of the mandate of an arbitrator. As
regards the question of resignation of an arbitrator, there was some support for the view
that a person who had accepted to act as an arbitrator should not be allowed to resign for
capricious reasons. The prevailing view, however, was that it was impractical to require just
cause for the resignation, since an unwilling arbitrator could not, in fact, be forced to
perform his functions.
45. While recognizing the complex nature of those questions the Working Group, after
deliberation, decided that the model law should take a stand on those issues and express
the views prevailing in the Group. It was thought that the appropriate place for doing so
was article 15. That provision already envisaged resignation “for any other reason,” so that
only the case of removal by consent had to be added there.
Article 15
46. The text of article 15 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
47. The Working Group adopted that article, subject to the insertion after the words
“resigning for any other reason” of the words “or because of the revocation of his mandate
by agreement of the parties or in any other case of termination of his mandate.”
48. The words “or because of the revocation of his mandate by agreement of the parties”
were added in pursuance of the decision of the Working Group taken during its
deliberations on article 14 (see para. 45, above). The words “or in any other case of
termination of his mandate” were added in order to cover all possible cases in which the
need for the appointment of a substitute arbitrator could arise. While there was some

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 support for a detailed list of instances (e.g., death, illness, incapacity), the general formula
was preferred for the sake of simplicity and since the detailed list was liable to being
incomplete.
FIFTH DRAFT
A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 15. Appointment of substitute arbitrator
P 471 Where the mandate of an arbitrator terminates under article 13 or 14 or because of his
P 472 withdrawal from office for any other reason or because of the revocation of his mandate
by agreement of the parties or in any other case of termination of his mandate, a
substitute arbitrator shall be appointed according to the rules that were applicable to the
appointment of the arbitrator being replaced, unless the parties agree otherwise.
SIXTH SECRETARIAT NOTE
ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 15. Appointment of substitute arbitrator
1. Cyprus interprets the words “according to the rules that were applicable” as referring to
the procedure laid down in paragraphs (2) and (3) of article 11 and notes that this would be
unsatisfactory because these rules provide for the initial appointment of all the arbitrators
and not for the appointment of a substitute arbitrator. Its view is that the substitute
arbitrator must be appointed by the same procedure by which the arbitrator to be
replaced was appointed and that, perhaps, this was the intention of the draftsmen. Cyprus
notes that one of the parties may not wish to perform an agreement, reached under article
11(2) for the initial appointment, when it comes to the appointment of a substitute
arbitrator. It suggests that express provision ought to be made for such cases.
2. Norway observes that the intention of the Working Group was to cover in article 15 all
cases in which the need for the appointment of a substitute arbitrator may arise, (22) and
that this intention allows the wording of this article to be simplified by deleting the words
“under article 13 or 14 or because of his withdrawal from office for any other reason or
because of the revocation of his mandate by agreement of the parties or in any other case
of termination of his mandate.”
3. Sweden, pointing out its understanding that according to article 14 an arbitrator may
withdraw of his own accord without special cause, notes that according to article 15 a
substitute arbitrator shall be appointed in the same way as was the arbitrator being
replaced. It is observed that, as a consequence, a party may, in consultation with the
arbitrator appointed by that party, replace him by another arbitrator; this may enable a
party to prolong the proceedings and to substitute the arbitrator by one whose views are
expected to be more favourable to the party. Sweden therefore suggests that a substitute
arbitrator be appointed by an impartial body such as a court; one could also envisage a
clause in article 14 which would provide that an arbitrator who withdraws without cause
shall be liable to pay the additional costs incurred.
P 472
P 473
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 15. Appointment of substitute arbitrator
The Sudan, noting that article 15 does not provide a period of time for the appointment of
a substitute arbitrator, proposes adding, after the words “a substitute arbitrator shall be
appointed,” the following words:
“provided that such appointment shall be made within one month from the
date of the termination of the mandate of the arbitrator being replaced.”
For linguistic reasons, the words “arbitrator being replaced,” contained in the wording that
follows the proposed addition, should be replaced by the words “such arbitrator.”
SEVENTH SECRETARIAT NOTE
ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1985)
Article 15. Appointment of substitute arbitrator
[ .… ]
Further cases of termination of mandate

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 1. Article 15 deals primarily with the question how a substitute arbitrator would be
appointed. Yet, in order to embrace all possible cases where such a need may arise, it
deals, in a less conspicuous manner, also with those manifold situations of termination of
mandate which are not covered by articles 13 and 14.
2. The two most important instances added here are the arbitrator's withdrawal from his
office “for any reason” (other than the ones covered by articles 13 and 14) and the
revocation of the mandate by agreement of the parties. The latter instance, i.e. removal of
an arbitrator by consent of the parties, seems to be justifiedly included in view of the
consensual nature of arbitration which gives the parties unrestricted freedom to agree on
the termination of the mandate of an arbitrator.
3. Inclusion of the first instance, however, is less easily justified and may, for example, be
objected to on the ground that a person who had accepted to act as an arbitrator should
not be allowed to resign for capricious reasons. Nevertheless, it is impractical to require
just cause for the resignation (or to attempt to list all possible causes justifying
resignation) since an unwilling arbitrator could not, in fact, be forced to perform his
functions. (50) It should be noted, in respect of both above instances, that the model law
does not deal with the legal responsibility of an arbitrator or other issues pertaining to the
contractual party–arbitrator relationship.
P 473
P 474
Rules of appointing substitute arbitrator
4. Whenever a substitute arbitrator needs to be appointed, this shall be done in
accordance with the rules that were applicable to the appointment of the arbitrator being
replaced, whether these rules are laid down in the arbitration agreement or, as suppletive
rules, in the model law.
5. This provision is non–mandatory, as is clear from the words “unless the parties agree
otherwise.” Such agreement would normally set forth a new appointment procedure for
replacing an arbitrator whose mandate has terminated. (51) Yet, it might relate to the
preliminary question whether a substitute arbitrator should be appointed at all. For
example, where the parties named a specific sole arbitrator in their original agreement,
they may wish not to continue the arbitral proceedings without him.
SUMMARY RECORD
A/CN.9/SR.315, .330, .332
[10 June 1985, 9:30 A.M., A/CN.9/SR.315]
Article 15. Appointment of substitute arbitrator
12. Mr. SEKHON (India) said that the ad hoc drafting party's proposed text for article 14 [see
Summary Record, A/CN.9/SR.314, para. 72 and SR.319, para. 68, appearing in the section on
Article 14, pp. 457, 460 supra,] entailed the deletion from article 15 of the words “or because
of his withdrawal from office for any other reason or because of the revocation of his
mandate by agreement of the parties.” In addition, article 15 should be amended to
include a time–limit for the appointment of a substitute arbitrator and should read “are
applicable” instead of “were applicable.”
13. The CHAIRMAN [Mr. LOEWE (Austria)] said that the Commission would consider those
amendments when it had the ad hoc drafting party's written proposal before it for articles
14 and 15.
14. Mr. REINSKOU (Observer for Norway) drew attention to his Government's written
proposal, reproduced in [the Sixth Secretariat Note (Government Comments),] document
A/CN.9/263 ([Art. 15,] para. 2), to simplify article 15 by deleting the passage commencing
with the words “under article 13 or 14” and ending with the words “termination of his
mandate.”
15. The CHAIRMAN suggested that the Observer for Norway should discuss his proposal with
the drafting party with a view to the production of a consolidated text for articles 14 and
15.
P 474
P 475
16. It was so agreed.
17. Mr. LEBEDEV (Union of Soviet Socialist Republics) suggested that the consolidated text
would need to be examined carefully to make sure that it did not contain any changes of
substance. Article 14 covered the case where an arbitrator's mandate must be terminated
and in that circumstance the model law should permit an ensuing dispute to be settled in
court. Article 15, on the other hand, referred to cases in which an arbitrator withdrew for his
own reasons; in that situation there might be no controversy which could be subject to any
judicial control.
[Editors' Note: There was then a brief discussion of the application of Article 15 to arbitrations
as to which no place of arbitration had yet been chosen. Since this relates to the general
question of the scope of application of the Model Law and can best be understood in
connection with those materials, these paragraphs apear in the subsection on Article 1,
paragraph 2, p. 124 supra.]

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 21. Mr. PAES de BARROS LEAES (Brazil) suggested that the words “unless the parties agree
otherwise” at the end of the article should be deleted, as they could cause complications
by permitting a situation in which there might be no provision for the appointment of a
substitute arbitrator.
22. The CHAIRMAN said the effect of that change would be to place the parties in the same
position with regard to the appointment of a substitute arbitrator as with regard to that of
the original arbitrator. The matter would thus be governed by article 11. He thought the
Commission would wish to accept the Brazilian suggestion.
23. It was so agreed.
[19 June 1985, 9:30 A.M., A/CN.9/SR.330]
Article 15. Appointment of substitute arbitrator (continued) (A/CN.9/XVIII/CRP.11)
12. Mr. HERRMANN (International Trade Law Branch) said that the document under
discussion (A/CN.9/XVIII/CRP.11) (*) had been prepared before the Commission had
reached a final decision on the text of article 14. Since, however, it had been decided to
leave article 14 in its original form, the amendment to article 15 contained in that
document was no longer necessary.
P 475
P 476
13. Mr. SEKHON (India), speaking on behalf of the Ad Hoc Working Party, withdrew the
amendment.
[20 June 1985, 3:00 P.M., A/CN.9/SR.332]
Articles 14 and 15 [as revised by the Drafting Group]
39. Articles 14 and 15 were adopted without change.
COMMISSION REPORT
A/40/17 (21 AUGUST 1985)
Article 15. Appointment of substitute arbitrator
146. The text of article 15 as considered by the Commission was as follows: [same as Fifth
Draft, supra].
147. The Commission adopted the suggestion to delete in article 15 the words “unless the
parties agree otherwise” since those words might create difficulties. It was understood,
however, that the party autonomy recognized in article 11 for the original appointment of
an arbitrator applied with equal force to the procedure of appointing the substitute
arbitrator, since article 15 referred to the rules that were applicable to the appointment of
the arbitrator being replaced.
[Editors' Note: Paragraph 148 concerned the appointment of a substitute arbitrator in
situations in which the place of arbitration had not yet been chosen. The paragraph appears
in the subsection on Article 1, paragraph 2, p. 132 supra.]
P 476

References
1) First Draft, A/CN.9/WG.II/WP.37, Art. 12, p. 467 infra.
2) Fifth Working Group Report, A/CN.9/246, paras. 42–45, pp. 470–71 infra. The Working
Group also added the words “or in any other case of termination of his mandate” to the
text of Article 15 in order to provide a comprehensive list of cases in which the need for
appointment for a new arbitrator might arise. This formulation covers such
eventualities as death, illness, or incapacity of the arbitrator. See id. para. 48, p. 471
infra.
3) Id. para. 44, p. 471 infra.
4) Id.
5) Id.; see also Seventh Secretariat Note, A/CN.9/264, Art. 15, para. 3, p. 473 infra.
6) Seventh Secretariat Note, A/CN.9/264, Art. 15, para. 3, p. 473 infra.
7) Second Working Group Report, A/CN.9/232, para. 72, p. 468 infra; Second Draft,
A/CN.9/WG.II/ WP.40, Art. XII, pp. 468–69 infra.
8) Second Draft, A/CN.9/WG.II/WP.40, Art. XII, n. 14, p. 469 infra.

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 9) Third Working Group Report, A/CN.9/233, para. 119, p. 469 infra.
If the parties provide for no replacement procedure where the original arbitrator was
specified in the arbitration agreement, it is submitted that the supplementary
procedures for appointment of arbitrators set forth in Article 11 should apply, insofar
as that is possible. For example, if the named arbitrator was a sole arbitrator, the
court or other authority specified in Article 6 should appoint the replacement, unless
the parties can agree on a successor. If the resigned arbitrator was one of a panel of
three arbitrators, and it is plain from surrounding circumstances that the arbitrator
was named by one party, it is suggested that that party should be able to appoint the
successor.
10) See, e.g., Fifth Draft, A/CN.9/246 (Annex), Art. 15, pp. 471–72 infra; Fourth Draft,
A/CN.9/WG.II/ WP.48, Art. 15, p. 470 infra.
11) See Commission Report, A/40/17, para. 147, p. 476 infra; Summary Record,
A/CN.9/SR.315, paras. 21–23, p. 475 infra.
12) Seventh Secretariat Note, A/CN.9/264, Art. 15, para. 5, p. 474 infra.
13) Fourth Working Group Report, A/CN.9/245, para. 219, p. 470 infra.
14) Id.
15) 575 U.N.T.S. 159.
16) Seventh Secretariat Note, A/CN.9/264, Art. 15, para. 5, n. 51, p. 474 infra.
17) See generally S. Schwebel, International Arbitration: Three Salient Problems 296 (1987)
(“the weight of international authority, to which the International Court of Justice has
given its support, clearly favours the authority of an international arbitral tribunal
from which an arbitrator has withdrawn to proceed and to render a valid award”).
18) Cf. UNCITRAL Arbitration Rules, Art. 14.
17) Discussion and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, paras. 42–45, 50, 52, 75. [Editors' Note: Part of paragraph 50 appears
immediately above; the remaining cited paragraphs appear in the sections on Articles 11–
14.] The draft provisions of this section might later be placed after the draft provisions
on the appointment of arbitrators [Articles 13–17 in the First Draft, Articles 10–11 in the
final text].
24) This draft provision follows in substance articles 12(2) and 13(1) of the UNCITRAL
Arbitration Rules, except for the alternative option of termination of the proceedings
which, if adopted, would have to be considered in the context of the general issue
“Termination of arbitration proceedings” under IV. 11. [Editors' Note: This number refers
to the classification system adopted in the First Secretariat Note, A/CN.9/207. The topic
of termination of arbitration proceedings is addressed in Article 32 of the Model Law.]
14) It is submitted that this last sentence does not seem necessary or advisable. Its
practical value seems limited since naming of an arbitrator in the original agreement
is not very common. More importantly, a less automatic and more flexible approach is
desirable and possible in view of the proviso in the first sentence “unless the parties
agree otherwise.”
28) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 119–120.
22) [Fifth Working Group Report,] A/CN.9/246, para. 48.
50) Cf. [Fifth Working Group Report,] A/CN.9/246, para. 44.
51) For example, the parties could in their arbitration agreement include a stipulation
intended to eliminate the possible danger that, in the case of a party–appointed
arbitrator, the mechanism of resignation and replacement under article 15, in
particular by using it repeatedly, could be abused for the purposes of obstructing the
proceedings. This concern — which the Working Group, without denying its validity,
decided not to deal with ([Fourth Working Group Report,] A/CN.9/245, para. 19) — could
be met by a stipulation, inspired by article 56(3) of the 1965 Washington Convention
[on the Settlement of Investment Disputes between States and Nationals of Other States,
575 U.N.T.S. 159], to the effect that a party–appointed arbitrator who resigns without
the consent of the arbitral tribunal (i.e., the other two members) would not be replaced
by another party–appointed arbitrator but by one who would be appointed by either
the third arbitrator (chairman) or a specified appointing authority.
*) [Editors' Note: This Conference Room Paper, dated 12 June 1985, read as follows:
Article 15
PROPOSAL BY AD HOC WORKING PARTY
(COMPOSED OF THE REPRESENTATIVES OF INDIA, NORWAY
AND THE UNITED REPUBLIC OF TANZANIA)
The following wording of article 15 is submitted for consideration by the Commission:
“Article 15. Appointment of substitute arbitrator
“Where the mandate of an arbitrator terminates under article 13 or 14 or in
any other case of termination of his mandate, a substitute arbitrator shall be
appointed within a period of one month according to the rules that are
applicable to the appointment of the arbitrator being replaced, unless the
parties agree otherwise.”]

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 55
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Document information
UNCITRAL Model Law, Chapter IV, Article 16 [Competence of
Publication arbitral tribunal to rule on its jurisdiction]
A Guide to the UNCITRAL Article 16 Competence of Arbitral Tribunal to Rule on its Jurisdiction
Model Law on International P 477
Commercial Arbitration: P 478
Legislative History and (1) The arbitral tribunal may rule on its own jurisdiction, including any objections with
Commentary respect to the existence or validity of the arbitration agreement. For that purpose, an
arbitration clause which forms part of a contract shall be treated as an agreement
independent of the other terms of the contract. A decision by the arbitral tribunal that the
Organization contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
United Nations Commission (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later
on International Trade Law than the submission of the statement of defence. A party is not precluded from raising
such a plea by the fact that he has appointed, or participated in the appointment of, an
arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be
raised as soon as the matter alleged to be beyond the scope of its authority is raised
Promulgation during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later
21 June 1985 plea if it considers the delay justified.
(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article
either as a preliminary question or in an award on the merits. If the arbitral tribunal rules
Legislation number as a preliminary question that it has jurisdiction, any party may request, within thirty
days after having received notice of that ruling, the court specified in article 6 to decide
United Nations Document the matter, which decision shall be subject to no appeal; while such a request is pending,
A/40/17, Annex I the arbitral tribunal may continue the arbitral proceedings and make an award.

Bibliographic reference
Commentary
Article 16 articulates the well–known principle of Kompetenz– Kompetenz, that is, that an
'UNCITRAL Model Law, arbitral tribunal is competent to rule on its own competence. This power to decide on
Chapter IV, Article 16 questions going to an arbitral tribunal's own jurisdiction is widely accepted in modern
[Competence of arbitral rules, statutes, and treaties designed to apply to international arbitrations, including the
tribunal to rule on its UNCITRAL Arbitration Rules (Article 21(1)), the Rules for the ICC Court of Arbitration (Article
jurisdiction]', in Howard M. 8(3)), the European Convention on International Commercial Arbitration (Article V(3)), (1)
Holtzmann and Joseph
Neuhaus , A Guide to the P 478 and the Convention on the Settlement of Investment Disputes between States and
UNCITRAL Model Law on P 479 Nationals of Other States (Article 41(1)). (2) The concept is important in practice because
without it a party could stall the arbitration at any time merely by raising a jurisdictional
International Commercial objection that could then only be resolved in possibly lengthy court proceedings.
Arbitration: Legislative Nevertheless, the Secretariat reported that the principle is not yet incorporated into all
History and Commentary, national laws, (3) and it was thought to be somewhat controversial. The Commission
(© Kluwer Law International; explicitly noted that States that are still unwilling to accept the principle might alter this
Kluwer Law International provision when adopting the Model Law. (4)
1989) pp. 478 - 528
It should be noted, however, that the power provided in Article 16(1) is circumscribed by
other provisions of the Law. The arbitral tribunal's power is neither exclusive nor final. Its
decision is subject, first, to immediate review by a court under Articles 16(3), second, to
later court review in a setting aside procedure under Article 34, and, third, to still later
review in an action for recognition and enforcement under Article 36. In addition, the issue
frequently will arise and be ruled on by a court in a proceeding brought under Article 8.
In addition to stating the principle of Kompetenz–Kompetenz, Article 16 provides certain
rules to govern the arbitral tribunal's decision on its competence, and regulates the court
review of that decision. This last question in particular, like other instances of court
intervention provided in the Model Law, stimulated extensive debate. In addition, the
Working Group and the Commission discussed the question of the effect of a failure to raise
jurisdictional objections. These matters are addressed below.
Statement of principle of Kompetenz–Kompetenz. The sentence in paragraph 1 of Article
16 stating the principle of Kompetenz–Kompetenz is modeled on Article 21(1) of the
UNCITRAL Arbitration Rules, (5) but with some differences. First, the provision in the Rules
gives the arbitral tribunal power to rule “on objections that it has no jurisdiction.” The
deletion of the reference to “objections” in the Model Law provision emphasizes that the
arbitral tribunal may raise and decide issues of jurisdiction sua sponte. (6) Nevertheless,
an arbitral tribunal should not necessarily feel free to raise and rule upon any
jurisdictional flaw it uncovers. As discussed in detail below, the Working Group took the
view that, with the exception of certain classes of jurisdictional objections—such as those
going to arbitrability or public policy—the failure to raise a plea as to jurisdiction should
operate as a waiver of the point.
P 479
P 480
A second difference between Article 21(1) of the UNCITRAL Arbitration Rules and Article
16(1) of the Model Law is that the Rules use the words “shall have the power to rule” while
the Law uses “may rule.” The substitution of the slightly less vigorous language was made in

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 part to align the English text with those in other languages, particularly the French. It was
not intended to signify any substantive change in meaning. (7)
The principle of Kompetenz–Kompetenz is a mandatory one in the Law, that is, the parties
cannot agree to limit the power of the arbitral tribunal to rule on its jurisdiction. An
amendment was offered to add the phrase “unless otherwise agreed by the parties” to the
beginning of paragraph 1. This amendment was not adopted, because, in the words of the
Commission Report, the principle of Kompetenz– Kompetenz “was an important one for the
functioning of international commercial arbitration.” (8) Nevertheless, the Report noted
that a State that adopted the Model Law might provide that the parties could eliminate or
limit the tribunal's power in this respect. (9)
Rules governing the arbitral tribunal's determination of its competence. Article 16
establishes two further principles on matters as to which national laws sometimes differ —
that an arbitral clause is separable from the contract in which it appears, and that a party
who intends to object to the jurisdiction of the tribunal may participate in appointing an
arbitrator without making a reservation. (1) Separability is a commonly accepted principle
in national legal systems, especially in international commercial arbitration. (11) The
primary importance of the principle is that an arbitral tribunal may retain jurisdiction —
and issue a binding decision on the merits — even though the contract is null and void, as
long as the grounds for nullity do not affect the arbitration clause itself. (12) Separability
also facilitates consideration of objections to the validity of the arbitration clause by
narrowing the scope of the inquiry.
The Model Law does not contain a choice–of–law provision instructing the arbitral tribunal
what law to apply in determining the validity of the arbitration agreement. In this
connection, the Secretariat noted that Article 34 contains a rule governing the choice of
law on that question for application in setting aside proceedings. (13)
P 480
P 481
That Article provides that the validity of the agreement will be governed by the law chosen
by the parties or, in the absence of such a choice, the law of the State adopting the Model
Law; arbitrability and other issues of public policy will be governed by the law of the
Model Law State. As suggested by the Secretariat, the arbitral tribunal presumably should
apply the same choice–of–law rules.
Article 16(2) does regulate the timing of pleas that an arbitral tribunal lacks jurisdiction or
is exceeding the scope of its authority. Separate rules are provided for (a) initial lack of
jurisdiction (such as that the arbitration agreement is invalid), objections to which must be
raised not later than submission of the statement of defense, and (b) subsequent action
beyond the scope of the tribunal's authority (such as consideration of a new claim or of a
measure that is barred by the arbitration agreement), as to which any objection must be
stated as soon as the matter is raised. These categories overlap to some extent, but there
is no significant difference in their effect: objections to a potential lack of jurisdiction
should be raised during the arbitral proceedings promptly after their existence is known.
As noted, the rule governing matters beyond the authority of the arbitral tribunal requires
objection “as soon as the matter … is raised” during the arbitral proceedings. The
Commission specifically stated that this does not necessarily require that the tribunal
have indicated its intention to exceed the scope of its authority, for the matter may be
raised by a party in its written or oral statements. (14) In that case, too, the other party
would have to object promptly.
The Commission recognized that there was a potential for harshness in this rule.
Unsophisticated parties might not realize the need to object as soon as the matter was
raised. Also, it might in many cases be difficult to determine at that early stage that a
matter was beyond the tribunal's authority, since the governing law — including
restrictions on arbitrability — might not yet be known. (15) The rule is considerably
tempered, however, by the final sentence of paragraph 2, which permits the arbitral
tribunal to admit a later plea if it considers the delay justified. Moreover, the Commission
suggested that the failure to raise a plea that the tribunal was exceeding its authority
might not preclude its use in setting aside, recognition, or enforcement proceedings. (16)
By this the Commission evidently meant that the court could allow the plea if it believed
the delay was justified, even though the applicable sentence of paragraph 2 of Article 16 is
directed only to the arbitral tribunal. This might happen where, for example, it only
becomes clear in the award that a matter raised during the proceedings was beyond the
P 481
P 482
scope of tribunal's authority. The Commission was not, apparently, referring to the
theoretically quite different question of the preclusive effect of a failure to raise a plea
within a justifiable period, that is, a failure to comply with Article 16(2) at all. That is the
question discussed immediately below.
Effect of failure to raise a plea regarding jurisdiction of the arbitral tribunal. Suppose that
a party makes an untimely plea regarding jurisdiction or excess of authority and the delay
in making the objection is unjustified. Or suppose that the plea is not made before the
arbitral tribunal at all, but is untimely made for the first time before a court in a setting
aside or enforcement proceeding. (17) May the arbitral tribunal (in the case of the first
example) or the court nevertheless consider the late plea?
Both the Secretariat and the Working Group suggested that the answer is generally “no,”

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 with certain important exceptions. Thus, the Working Group's fifth report on the Law states,
It was observed … that a party who fail[s] to raise the plea as required under
article 16(2) should be precluded from raising such objections not only during
the later stages of the arbitral proceedings but also in other contexts, in
particular, in setting aside proceedings or enforcement proceedings, subject to
certain limits such as public policy, including arbitrability. (18)
The Secretariat's commentary is to the same effect. (19) The question was raised during the
Commission's deliberations on Article 34, the provision on setting aside an arbitral award,
when a suggestion was made “to clarify” that a party who had failed to raise a jurisdictional
objection in accordance with Article 16 would be precluded from relying on the objection
in setting aside proceedings. (20) The Commission Report does not take a position on
whether a failure to rely on Article 16 has preclusive effect in a setting aside proceeding; it
says that the Commission “agreed not to modify the text and, thus, to leave the question to
P 482 the interpretation, and possibly regulation, by the States adopting the Model Law.” (21)
P 483 This language may be read to suggest that the question of preclusive effect is an open
one. It should be noted, however, that in connection with Article 4, the Model Law's general
provision on waiver, the Commission unambiguously agreed that the effect of a waiver “was
not limited to the arbitral proceedings but extended to subsequent court proceedings in
the context of articles 34 and 36.” (22)
The legislative history is thus not entirely clear on whether failure to raise a timely
objection under Article 16 was intended to bar invocation in later proceedings. Our view is
that the clear pronouncements by the Secretariat and the Working Group as to Article 16,
and the text and legislative history of Article 4, argue strongly for raising such a bar in
many circumstances. As noted, though, it was widely if not universally accepted that there
must be certain exceptions to any such rule of preclusive effect. The exceptions noted by
the Secretariat, the Working Group, and the Commission — “public policy, including
arbitrability” — are those explicitly recognized in Articles 34 and 36 as cognizable by a
court sua sponte: Articles 34(2)(b) and 36(1)(b) require a court to set aside an award, or
refuse to recognize or enforce it, if the subject matter of the dispute is nonarbitrable or if
the award violates public policy. Objections going to these questions can be considered by
a court regardless of when they are raised. Presumably, as the Secretariat suggested, the
arbitral tribunal should also consider a late plea directed to these issues. (23)
The Secretariat, the Working Group, and the Commission suggested that the public policy
and arbitrability exceptions might be merely examples. Another category of exception to
the general preclusive effect of failure to raise an objection might arguably be derived
from Article 4 of the Law. That Article provides that a party will be deemed to have waived
any objections to noncompliance with a requirement of the Law “from which the parties
may derogate” — that is, a nonmandatory requirement — or with any requirement under
the arbitration agreement, if the party proceeds with the arbitration without raising a
timely objection. As noted, this waiver extends to the setting aside and enforcement
proceedings. (24) Article 4 thus provides for a waiver of objections to be implied, but only
under certain conditions, such as that the requirement not complied with be a
nonmandatory one and that the nonobjecting party have “proceed[ed] with the
arbitration.” The argument that this limits the preclusive effect of failure to object under
Article 16 would be that, since Article 4 deals specifically with the question of when waivers
should be implied from failures to object, waivers should not be implied except under the
conditions set forth in that Article. If, pursuant to this view, Article 4 is seen as the sole
P 483 source of law with respect to implying waivers, then a party would be able, in
P 484 proceedings under Articles 34 and 36, to raise jurisdictional objections that would be
untimely under Article 16 if, for example, the objections were based on a violation of a
mandatory provision of the Model Law. (25)
With respect to violations of mandatory provisions of the Law, the primary — if not the only
— mandatory provision that could give rise to a jurisdictional objection is the requirement
of Article 7 that an arbitration agreement be in writing. Article 7 makes it unlikely that a
valid objection on this point will remain after a failure to make a timely objection, because
it provides that a written arbitration agreement will arise where there has been an
exchange of statements of claim and defense in which the existence of an agreement is
alleged by one party and not denied by the other. Nevertheless, there is a possibility that
the parties' pleadings will not have met the requirements of Article 7, particularly if a
claim or counterclaim has been amended; it is also possible that an arbitral tribunal will
address a new claim itself. In these and other cases, it may be argued that a party could
raise a late plea to the lack of a written arbitration agreement. (26)
While the existence and careful consideration given to the terms of Article 4 support this
argument, there is much to be said from a policy perspective for the opposite view, that is,
that a party who knows of a jurisdictional objection but waits to raise the matter until after
an award against him is issued should not be allowed to attack the award on that basis. In
addition, it may be argued that the Commission did not appear to treat Article 4 as the
sole source of law on implied waiver. As discussed above, while the Commission was willing
to take a position as to the effect of a waiver under Article 4 in setting aside proceedings, it
seemed to feel that the question of an implied waiver for failure to comply with Article 16
was a different one that was open to “interpretation” by States adopting the Model Law.

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 Court review of arbitral tribunal's determination of jurisdiction. The most contentious
issue in the debates on Article 16 was the question of court control over the arbitral
P 484 tribunal's decision on its jurisdiction. The Working Group and the Commission agreed early
P 485 that the arbitral tribunal's competence to rule on its jurisdiction should be subject to
some form of court control. (27) Discussion centered on what kind of control and, in
particular, whether that control should be exercised during the arbitral proceedings —
either with or without a stay of the arbitration — or only in a proceeding to set aside an
eventual award. In favor of early review, it was argued, inter alia, that court review should
occur early in the proceedings in order to prevent a waste of time and money in
conducting an unnecessary arbitration. The primary argument on the other side was that
court review should be postponed until after the award to prevent abuse by a party for
purposes of delay or obstruction of the proceedings. (28)
The Working Group considered a wide variety of proposals on court review. In broad
outline, the earliest proposals were to postpone nearly all court review to the setting aside
stage; subsequent drafts showed greater willingness to allow court consideration of
jurisdictional objections during the arbitral proceedings, at one point providing the court
with power to stay those proceedings pending the court's ruling; in the final draft, the
pendulum swung back some, and limited early court control. The permutations considered
by the Working Group were as follows:
1. The First Draft provided that all objections to the arbitral tribunal's jurisdiction had
to be made as an initial matter in the arbitral proceedings. Any court action calling
into question the tribunal's jurisdiction would be stayed pending the arbitral award,
unless there were good and substantial reasons to the contrary. Review of the arbitral
tribunal's determination of its jurisdiction would take place only by way of recourse
against the final award. (An alternative was offered to have immediate court review if
the arbitral tribunal ruled on its jurisdiction as a preliminary question.) (29)
2. The Second Draft gave the court concurrent power to rule on pleas as to jurisdiction,
either when considering whether to refer a matter to arbitration or in response to a
specific request for a declaration that the arbitral tribunal lacks jurisdiction. In either
case, the arbitral tribunal would have discretion to continue the arbitration pending
the court's ruling. Direct court review of the arbitral tribunal's finding that it had
jurisdiction, however, would be postponed to the setting aside proceeding. (30)
P 485 3. The next draft was the same, except that it proposed that the court be given power to
P 486 order a stay or suspension of the arbitral proceedings while the court decided on
a request for a ruling on the arbitral tribunal's jurisdiction. Direct review of the
tribunal's ruling on jurisdiction was still postponed to the setting aside proceeding,
however. (31) At this point, the Secretariat suggested that these two provisions were
“from a substantive point of view and for all practical purposes … in conflict with
each other.” (32)
4. The Working Group's last draft attempted to resolve this apparent conflict by limiting
early court control. While a court might still consider the jurisdiction of the tribunal
in considering whether a substantive claim should be referred to arbitration, a party
could no longer bring an action merely to seek a ruling on the arbitral tribunal's
jurisdiction. Also, the court could not order a stay of the arbitral proceedings. Direct
court review of the tribunal's finding on jurisdiction still had to wait for the setting
aside proceeding. (33)
The Commission adopted an innovative and sensible compromise among these
possibilities. First, under Article 8 a court may decide a jurisdictional objection in the
course of deciding whether to refer a substantive claim before it to arbitration. During the
pendency of this question before the court, the arbitral tribunal has discretion to continue
the proceedings. Second, under Article 16, the arbitral tribunal has a choice whether to
decide a jurisdictional question preliminarily or only in the final award. If it issues a
preliminary ruling, that is subject to immediate review by a court. Otherwise, review must
wait for a setting aside proceeding. The advantage of this procedure is that the arbitral
tribunal can assess in each case and with regard to each jurisdictional question whether
the risk of dilatory tactics is greater than the danger of wasting money and time in a
useless arbitration. The dangers of delay in the arbitration while the court is reviewing a
preliminary ruling are further reduced by provision of a short time period for seeking court
review, finality in the court's decision, and discretion in the arbitral tribunal to continue
the proceedings while the court review is going on. (34) These procedures will encourage
preliminary jurisdictional rulings, (35) but allow the tribunal to postpone decision of
frivolous or dilatory objections, or ones that are difficult to separate from the merits of the
case.
P 486
P 487 The Model Law does not provide for court review of a finding by the arbitral tribunal
that it lacks jurisdiction. Article 16(3) refers only to preliminary rulings that the tribunal
possesses jurisdiction, and Article 34 appears to presuppose such a finding in the final
award. The Commission recognized that the question could be raised in an action under
Article 8, but regarded the question of direct review of the tribunal's finding that it lacked
jurisdiction as a matter governed not by the Model Law, but by the general law on
arbitration or civil procedure. (36) Thus, a tribunal's ruling that it lacked jurisdiction would
not necessarily settle the question of whether the substantive claim was to be decided by
a court or by an arbitral tribunal. Nevertheless, the Commission adopted the view that

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 such a decision was final as to the arbitral tribunal making the ruling, because it was felt
that the arbitrators could not be compelled to continue the arbitration. (37)

Legislative History
SECRETARIAT NOTE ON FURTHER WORK
A/CN.9/169 (11 MAY 1979)
[Editors' Note: This document recorded, inter alia, the conclusions of a consultative meeting
held in Paris on 7–8 September 1978 attended by representatives of the UNCITRAL Secretariat,
the Secretariat of the Asian– African Legal Consultative Committee, the International Council
for Commercial Arbitration and the Commission on International Arbitration of the
International Chamber of Commerce. The participants concluded that UNCITRAL should draft
a model law on arbitration. Among the reasons cited was “the divergence existing between
frequently used rules and national laws.” Para 8. In particular, it was noted that “[s]ome
national laws do not recognize the competence of the arbitral tribunal to decide about its
own jurisdiction.” Id. For the full text of the relevant portions of this document, see the
section on Purposes and Procedures of the Model Law, pp. 1173–74 infra.]
FIRST SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW
A/CN.9/207 (14 MAY 1981)
A. Concerns and principles of a model law on international commercial arbitration
I. General concerns and problems
P 487 9. The ultimate goal of a model law would be to facilitate international commercial
P 488 arbitration and to ensure its proper functioning and recognition. Its practical value
would, in particular, depend on the extent to which it provides answers to the manifold
problems and difficulties encountered in practice. Thus, in preparing the model law an
attempt should be made to meet the concerns which have repeatedly been expressed in
recent years, sometimes even labeled as “defects” or “pitfalls” in international commercial
arbitration.
10. A major complaint in this respect is that the expectations of parties as expressed in
their agreements on arbitration procedure are often frustrated by conflicting mandatory
provisions of the applicable law. To give only a few examples, such provisions may relate
to, and be deemed to unduly restrict, [ … ] the competence of the arbitral tribunal to
decide on its own competence. [ … ]
[.… ]
B. Identification of issues possibly to be dealt with in the model law
[.… ]
II. Arbitration agreement
[.… ]
4. Separability of arbitral clause
58. It is suggested that the model law take a clear stand in favour of separability or
autonomy of the arbitration clause, as adopted in modern arbitration laws and rules. (22)
This means that an arbitration clause which forms part of a contract shall be treated as an
agreement independent of the other terms of the contract. This independence may
become relevant to, and facilitate, a ruling of the arbitral tribunal on objections that it has
no jurisdiction, where those objections relate to the existence or validity of the arbitration
clause. Another useful import of separability is that a decision by the arbitral tribunal that
the contract is null and void would not entail ipso jure the invalidity of the arbitration
clause.
[.… ]
IV. Arbitral procedure
[.… ]
2. Arbitral proceedings in general
[.… ]
[Editors' Note: Paragraph.73 of this document, which appears in the section on Article 19, p.
572 infra, states that “[t]he model law should empower the arbitral tribunal to conduct the
arbitration proceedings in such manner as it considers appropriate,” subject to certain
restrictions discussed in that paragraph. The Note continues as follows; the full text of the
following paragraph also appears in the section on Article 19.]
P 488
P 489
74. Furthermore, the model law may impose certain rules which would be binding on the
arbitrators either irrespective of any conflicting agreement by the parties or only if the
parties have not agreed otherwise. Examples of the first category, i.e. mandatory rules,

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 include provisions [ … ] on pleas as to the jurisdiction of arbitrators, which are discussed in
the section on awards since they are often dealt with in the award ([discussed below,]
paras. 88–89) [ … ].
[.… ]
V. Award
[.… ]
4. Pleas as to arbitrator's jurisdiction
88. The arbitral tribunal should be empowered to decide itself about any pleas as to its
jurisdiction. In particular, it should have the power to determine the existence and validity
of the arbitration agreement. If the agreement is set forth in an arbitral clause, the
determination of the arbitral tribunal's “competence–competence” would be facilitated
by the separability of that clause as discussed earlier (para. 58).
89. A difficult question remains, that is, whether the decision of the arbitral/ tribunal about
its jurisdiction shall be final or whether it shall be subject to review by a court. In support
of court control, one may argue that the arbitrators cannot have the final say on their
competence since their jurisdiction is to the exclusion of court jurisdiction. If one would
follow this line of thinking, although it may be deemed less convincing in the international
context, one might consider imposing some restriction on the right to ask for review by a
court. For example, art. 18(3) of the Strasbourg Uniform Law [European Convention Providing
a Uniform Law on Arbitration, Europ. T.S. No. 56 (Annex) (Strasbourg 1966),] provides that
“the arbitral tribunal's ruling that it has jurisdiction may not be contested before the
judicial authority except at the same time as the award on the main issue and by the same
procedure.”
SECOND SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW:
QUESTIONS FOR DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
II. Arbitration agreement
[.… ]
4. Separability of arbitral clause (report [First Secretariat Note, supra], para. 58)
Question 2–12: Should the model law adopt the principle of separability or autonomy of
the arbitral clause?
[.… ]
P 489
P 490
V. Award
[.… ]
4. Pleas as to arbitrator's jurisdiction (report, paras. 88–89)
Question
5–7: Should the arbitral tribunal be empowered to decide on any pleas as to its
jurisdiction including those based on non–existence or invalidity of an arbitration
agreement?
Question
5–8: Should a ruling by the arbitral tribunal on its jurisdiction be final and binding or
should it be subject to any review by a court?
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[.… ]
II. Arbitration agreement
[.… ]
4. Separability of arbitral clause
Question 2–12: Should the model law adopt the principle of separability or
autonomy of the arbitral clause?
34. There was general agreement that the model law should adopt the principle of
separability or autonomy of the arbitral clause, as embodied in article 21 of the UNCITRAL
Arbitration Rules.
[.… ]
V. Award
[.… ]

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 4. Pleas as to arbitrator's jurisdiction
Question
5–7: Should the arbitral tribunal be empowered to decide on any pleas as to its
jurisdiction including those based on non–existence or invalidity of an arbitration
agreement?
Question
5–8: Should a ruling by the arbitral tribunal on its jurisdiction be final and binding or
should it be subject to any review by a court?
81. The Working Group noted that it had decided that the model law should adopt the
principle of the separability or autonomy of the arbitral clause (question 2–12, above, para.
34). In accordance with that decision, there was general agreement that the model law
should empower the arbitral tribunal to decide on any pleas as to its jurisdiction,
including those based on non–existence or invalidity of an arbitration agreement. Such a
power was also contemplated in article 21, paragraph 1 of the UNCITRAL Arbitration Rules,
and in article V, paragraph 3 of the 1961 Geneva Convention [European Convention on
P 490 International Commercial Arbitration, 484 U.N. T.S. 349]. It was noted that thought might
P 491 be given to imposing limitations on the stage of the proceedings at which a plea as to
jurisdiction might be raised, as provided in article 21, paragraph 3 of the UNCITRAL
Arbitration Rules.
82. There was also general agreement that a ruling by the arbitral tribunal on its
jurisdiction is subject to review by a court. It was noted in this connexion that both the 1958
New York Convention (article V, para. 1(e)) and the 1961 Geneva Convention (article V, para.
3) contemplated the existence of such court review. Divergent views were expressed,
however, as to whether provisions on such review should be included in the model law.
Under one view, it was impossible to formulate provisions covering the variety of
circumstances in which review by courts should take place. Accordingly, the model law
should not contain any such provision. Under another view, however, the model law might
contain some provisions on this issue. Thus, it might be desirable to include a provision as
to the stage at which court review should be permissible following article 18 of the uniform
law annexed to the 1966 Strasbourg Convention, or article VI, paragraph 3 of the 1961
Geneva Convention. Another suggestion was that provisions might be included empowering
the court to compel the continuance of arbitral proceedings, where the arbitral tribunal
had ruled that it had no jurisdiction, or to discontinue arbitral proceedings, where the
arbitral tribunal had ruled that it had jurisdiction.
83. The Working Group decided that an attempt should be made to formulate provisions on
court review, taking into account the discussion which had taken place on the issue, and to
reconsider the issue at a later stage.
FIRST DRAFT
A/CN.9/WG.II/WP.37 (15 JULY 1982)
II. Arbitration agreement
[.… ]
4. Separability of arbitration agreement (12)
Article 4 [Art. 16 in the final text] (13)
For the purposes of determining whether the arbitral tribunal has jurisdiction, an
arbitration clause which forms part of a contract shall be treated as an agreement
independent of the other terms of the contract. A decision by the arbitral tribunal that the
contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
P 491
P 492
FIRST DRAFT (continued)
A/CN.9/WG.II/WP.38 (31 AUGUST 1982)
V. Award
[.… ]
4. Pleas as to arbitrator's jurisdiction (12)
Article 28 [Art. 16 in the final text]
(1) [Subject to the provisions of paragraph (3) of this article,] a plea that the arbitral
tribunal does not have jurisdiction, including any objections with respect to the
existence or validity of the arbitration agreement, may be raised only in the
arbitration proceedings and not later than in the statement of defence or, with
respect to a counter–claim, in the reply to the counter– claim. (13) [A plea that the
arbitral tribunal has exceeded its terms of reference shall be raised during the
arbitration proceedings promptly after the matter is raised on which the tribunal is
alleged to have no jurisdiction.] [Where the delay in raising the plea is due to a cause
which the arbitral tribunal deems justified, it shall declare the plea admissible.] (14)
[(2) The fact that a party has appointed, or participated in the appointment, of an
arbitrator does not preclude that party from raising a plea referred to in paragraph

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 (1) of this article.] (15)
[(3) Where either party to an arbitration agreement has initiated arbitration proceedings
before any resort is had to a court, a court subsequently asked to deal with the same
subject–matter between the same parties or with the question whether the
arbitration agreement was non–existent or null and void or had lapsed, shall stay its
ruling on the jurisdiction of the arbitral tribunal until the arbitral award is made,
unless it has good and substantial reasons to the contrary.] (16)
Article 29 [Art. 16 in the final text] (17)
(1) The arbitral tribunal has the power to rule on its own jurisdiction, including any
objections with respect to the existence or validity of the arbitration clause, in
accordance with the provisions of article 4, [supra,] (18) or of the separate arbitration
agreement.
P 492
P 493
(2) The arbitral tribunal may rule on a plea concerning its jurisdiction either as a
preliminary question or in the final award.
Article 30 [Art. 16 in the final text]
A ruling by the arbitral tribunal that it has jurisdiction may be contested by either party,
Alternative
A: whether it was made as a preliminary question or in the final award, only by way of
recourse against the award under the procedure laid down in article … (19)
Alternative
B:
(a) if it was made as a preliminary question [within one month] before the Authority
specified in article 17 [Art. 6 in the final text], which has the power to order the
termination of the arbitration proceedings for lack of jurisdiction;
(b) if it was made in the final award, by way of recourse against the award under
the procedure laid down in article … (19)
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[.… ]
Arbitration agreement
[.… ]
Separability of arbitration agreement
Article 4 [Art. 16 in the final text]
47. The text of article 4 as considered by the Working Group was as follows:
[same as First Draft, supra].
48. The Working Group agreed that the text of article 4 was satisfactory. [.… ]
Award
[.… ]
Pleas as to arbitrator's jurisdiction
Article 28 [Art. 16 in the final text]
146. The text of article 28 as considered by the Working Group was as follows:
P 493
P 494
[same as First Draft, supra].
147. Under one view the policy expressed by paragraph (1), that court intervention on the
question of the jurisdiction of the arbitral tribunal should not be permitted prior to the
making of the final arbitral award, was correct. It was said that in many countries courts
are not prepared to act promptly on such questions with the result that the arbitration
might be unduly delayed.
148. Under the prevailing view, however, while arbitral tribunals should have the power to
rule on their own jurisdiction, as is recognized under article 29, it would be improper to
divest the courts of a concurrent power to rule on the jurisdiction of the arbitral tribunal. In
regard to the wording of paragraph (1), this result was achieved by deletion of the word
“only” in the first sentence. It was noted, however, that this deletion did not affirmatively
state the power of the courts in this regard.
149. It was suggested that it should be made clear in the model law that the arbitral
tribunal could proceed with the case during the period a court was considering whether
the arbitral tribunal had jurisdiction over the dispute.

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 150. With this recognition of the concurrent power of the court and the arbitral tribunal the
rest of paragraphs (1) and (2) were generally acceptable to the Working Group.
151. The prevailing view was in favour of deleting paragraph (3). It was recognized, however,
that paragraph (3) derived from an existing convention and that it should not therefore be
discarded without a second consideration. As a possible solution the Secretariat was
requested to draft a text incorporating the basic idea of paragraph (3) into expanded
article 5 [Art. 8 in the final text].
Article 29 [Art. 16 in the final text]
152. The text of article 29 as considered by the Working Group was as follows:
[same as First Draft, supra].
153. The Working Group was in general agreement with this article. Some support was
expressed for an additional provision that a ruling by the arbitral tribunal on jurisdiction
as a preliminary question should always be made in the form of an interlocutory award so
as to allow an appeal to the courts from the interlocutory award.
Article 30 [Art. 16 in the final text]
154. The text of article 30 as considered by the Working Group was as follows:
[same as First Draft, supra].
P 494
P 495 155. Under one view it was not necessary to regulate the time for appeal against a ruling
by the arbitral tribunal since the decision of the Working Group in respect of article 28
would permit a party to resort directly to a court at any time. The prevailing view, however,
was that, despite the possibility of direct resort to a court, it would be useful to regulate
the time for appeal for those cases in which a party chose to raise its objections regarding
jurisdiction before the arbitral tribunal. Nevertheless, it was generally agreed that the final
decision on this point could be taken only after the final wording of article 28 had been
established.
156. Under the prevailing view a party should be able to contest a ruling by the arbitral
tribunal that it had jurisdiction only by recourse against the final award, as provided in
alternative A.
157. The Working Group was divided as to whether the parties should have the possibility of
contesting a ruling by the arbitral tribunal that it had no jurisdiction. The Working Group
reserved its final position on this point.
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
C. Arbitration and the courts
[.… ]
Article IV [Arts. 8 & 9 in the final text]
[Editors' Note: For paragraphs 1 and 2, see the section on Article 8, p. 314 supra.]
(3) Where arbitration proceedings have commenced and such a plea [a plea that the
court has no jurisdiction because of the existence of a valid arbitration agreement] is
raised before the court or a party requests from [a court] [the Court specified in
article V [Art. 6 in the final text]] a ruling that the arbitral tribunal has no jurisdiction
the arbitral tribunal may either continue or suspend the arbitration proceedings
until its jurisdiction is decided on by that court.
[Editors' Note: For paragraph 4, see the section on Article 9, p. 339 supra.]
Article V [Art. 6 in the final text]
(1) The special Court entrusted by this Law with functions of arbitration assistance and
control [under articles VIII(2), (3), X(2)/(3), XI(2), XIII(3), XIV, XXV, XXVI … [Arts. 11, 13, 14,
16, 17 and 35 in the final text] shall be the … (blanks to be filled by each State when
enacting the model law). (9)
(2) Unless otherwise provided in this Law,
(a) this Court shall act upon request by any party or the arbitral tribunal; (10) and
(b) the decisions of this Court shall be final. (11)
P 495
P 496
[.… ]
E. Competence of arbitral tribunal
Article XIII [Art. 16 in the final text]
(1) The arbitral tribunal has the power to rule on its own jurisdiction, including any
objections with respect to the existence or validity of the arbitration agreement. For
that purpose, an arbitration clause which forms part of a contract shall be treated as
an agreement independent of the other terms of the contract. A decision by the

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 arbitral tribunal that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later
than in the [statement of defence or, with respect to a counter–claim, in the reply to
the counter–claim] [reply to the claim or the counter–claim]. A party is not precluded
from raising such plea by the fact that he has appointed, or participated in the
appointment, of an arbitrator. A plea that the arbitral tribunal has exceeded its
terms of reference shall be raised promptly after the matter, allegedly outside the
mandate, is taken up. The arbitral tribunal may admit a later plea if it deems the
delay justified.
(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) either as a
preliminary question or in the final award. In either case, a ruling by the arbitral
tribunal that it has jurisdiction may be contested by any party only in an action for
setting aside the arbitral award. [A ruling by the arbitral tribunal that it has no
jurisdiction may be contested by any party within 30 days before the Court specified
in article V [Art. 6 in the final text]].
THIRD WORKING GROUP REPORT
A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[.… ]
C. Arbitration and the courts
[.… ]
Article IV [Arts. 8 &9 in the final text]
[.… ]
Paragraph (3)
P 496 79. It was noted that this provision was related to the issue dealt with in article XIII. It
P 497 might, therefore, have to be reconsidered in the light of the discussion on that article. It
was also suggested to consider rearranging the order of the provisions.
80. As regards the alternatives placed between square brackets, the Working Group was
divided on which was the better solution and decided, for the time being, to adopt the first
alternative (i.e., “ a court”) . The Working Group was agreed that the arbitral tribunal should
have the procedural power to either continue or suspend the arbitration proceedings when
its jursidiction was challenged before a court. It was noted, however, that the possibility of
a suspension might encourage a party to challenge the jurisdiction merely for dilatory
purposes. It was, therefore, suggested to seek a wording which could meet this concern.
[.… ]
Article V [Art. 6 in the final text]
[.… ]
Paragraph (2)
84. Divergent views were expressed as to the appropriateness of a provision along the lines
of paragraph (2). Under one view, the provision was useful in that it regulated some basic
features of the procedure to be followed by the Court, with the possibility of making
exceptions thereto in the model law itself. In support of subparagraph (b), it was pointed
out that it would serve the purpose of expediting the proceedings which was of special
importance in international commercial arbitration.
85. Under the prevailing view, however, the provision should not be retained. It was
pointed out that paragraph (2), in particular its subparagraph (b), infringed upon
fundamental concepts and rules of court procedure. Nevertheless, its procedural features
(right to request and finality of decision) might be included in individual provisions of the
model law entrusting the Court with certain functions.
86. The Working Group, after deliberation, decided not to retain paragraph (2) and to
consider settling the procedural questions in the context of the individual provisions
referring to the Court specified in article V.
[Editors' Note: Article XIII was not considered at this session of the Working Group and did
not appear in the Third Draft.]
THIRD DRAFT
A/CN.9/WG.II/WP.45 (13 JUNE 1983)
C. Arbitration agreement and the courts
[.… ]
Article IV [Arts. 8 & 9 in the final text]15
[Editors' Note: For the text of draft Article IV and footnote 15, see the section on Article 8, pp.

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 316–17 supra. Only a footnote to that draft Article — footnote 17 — pertains to the subject
matter of Article 16:]
P 497
P 498
17. It is suggested that the provision previously contained in paragraph (3) of article IV be
transferred, with some modifications, to article XIII [Art. 16 in the final text] as new
paragraph (4):
(4) Where, after arbitral proceedings have commenced, a party invokes before a
court lack of jurisdiction of the arbitral tribunal, whether impliedly by bringing
a substantive claim or expressly by requesting a decision on the jurisdiction of
the arbitral tribunal directly from the court without first raising this plea before
the arbitral tribunal, the arbitral tribunal may continue the proceedings while
the issue is pending with the court.
In this context, the Working Group may wish to consider the relationship between the two
ways of pleading lack of jurisdiction of the arbitral tribunal as envisaged in article XIII (2),
(3), i.e. plea raised before arbitral tribunal, with later control by court, and in above
paragraph (4), i.e. direct resort to court without first requesting a ruling by the arbitral
tribunal on its jurisdiction. The main question would be whether these two procedures are
provided cumulatively or alternatively. In the latter case, a party who has chosen one of
the procedures would be precluded from using the other one.
[.… ]
Article V [Art. 6 in the final text] (18)
[Editors' Note: For the text of Article V, see the section on Article 6, pp. 245–46 supra.]
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[.… ]
Article XIII [Art. 16 in the final text]
58. The text of article XIII as considered by the Working Group was as follows:
[same as Second Draft, supra].
Paragraph (1)
59. The Working Group adopted this paragraph.
Paragraph (2)
60. The Working Group adopted this paragraph, subject to the following modifications. In
the first sentence, the wording between the first square brackets was preferred to the
alternative wording between the second square brackets. In the penultimate sentence, the
words “taken up” were considered as too vague; acccordingly, the Secretariat was
requested to propose a clearer wording.
P 498 61. In this connexion, a question was raised as to the legal consequences of the failure of a
P 499 party to invoke lack of jurisdiction in accordance with paragraph (2). If the legal
consequence was that such party was precluded from later invoking lack of jurisdiction, it
was doubted whether such solution was compatible with paragraph (1)(a) of article XXVII or
XXVIII [these were combined into Art. 36(1)(a)(i) in the final text] and article XXX(1) [Art. 34 in
the final text] under which lack of a valid arbitration agreement could be relied on,
although it was recognized that such reliance might be limited by operation of the waiver
rule embodied in draft article I quater [Art. 4 in the final text]. It was felt that this question
could appropriately be dealt with in an over–all review of the various provisions of the
model law relating to jurisdiction and validity of arbitration agreement.
Paragraph (3)
62. The Working Group accepted the policy underlying this paragraph, except for the last
sentence which was placed between square brackets.
63. As regards this last sentence, there was some support for allowing a party to contest
before a court the ruling of an arbitral tribunal that it has no jurisdiction. It was suggested
that the aim of such recourse need not be to have the same arbitrators continue the
proceedings but could be limited to a decision on the existence of a valid arbitration
agreement.
64. The prevailing view, however, was that the last sentence of paragraph (3) should not be
retained. It was stated that the ruling of an arbitral tribunal that it lacked jurisdiction was
final and binding as regards these arbitral proceedings but did not finally settle the
question whether the substantive claim was to be decided by a court or by an arbitral
tribunal. It was also suggested that the substantive claim would consequently be
submitted to a court which would then be able to rule on this question. Yet another view
was that any formal ruling by the arbitral tribunal was in the form of an award against

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 which a party might bring an action for setting aside, although it was noted by others that
the present wording of draft article XXX [Art. 34 in the final text] did not make it sufficiently
clear whether such an award would be covered.
65. One delegation proposed to add to article XIII a paragraph along the lines of previous
draft paragraph (3) of article 28 (set forth in [the First Draft,] document
A/CN.9/WG.II/WP.38).
Suggested new paragraph (4)
66. The Working Group considered in this context the revised version of paragraph (3) of
article IV which the Secretariat had suggested as new paragraph (4) of article XIII (see,
[Third Draft,] A/CN.9/WG.II/WP.45, foot– note 17): [text same as Third Draft, supra].
67. The Working Group agreed with the two policies underlying this provision. One policy
was that the arbitral tribunal should be empowered to continue the proceedings while the
question of its jurisdiction was pending with a court, although it was understood that this
provision should not preclude a court from ordering a stay or suspension of the arbitral
proceedings. The other policy was that a party had the right, in addition to the plea
regulated in paragraphs (2) and (3) of article XIII, to request a ruling on the competence of
the arbitral tribunal directly from a court.
P 499
P 500
68. It was felt, however, that the wording of paragraph (4) was not sufficiently clear, in
particular, as regards its relationship to article IV [Art. 8 in the final text]. It was suggested,
therefore, to deal separately with the case where lack of jurisdiction was invoked impliedly
by bringing a substantive claim before the court, which was dealt with in article IV, and, on
the other side, with the case where the question of competence was expressly (and solely)
brought before the court. It was suggested that this important right of the party — and the
concurrent power of the court — deserved a more direct expression and treatment than at
present accorded in draft paragraph (4). Finally, it was noted that this provision would
have to be examined in an over–all review of the provisions relating to jurisdiction and
validity of arbitration agreement.
69. The Working Group requested the Secretariat to revise this provision in the light of the
above discussion.
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Chapter IV. Jurisdiction of arbitral tribunal
Article 16. Competence to rule on own jurisdiction
(1) The arbitral tribunal has the power to rule on its own jurisdiction, including any
objections with respect to the existence or validity of the arbitration agreement. For
that purpose, an arbitration clause which forms part of a contract shall be treated as
an agreement independent of the other terms of the contract. A decision by the
arbitral tribunal that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later
than in the statement of defence or, with respect to a counter–claim, in the reply to
the counter–claim. A party is not precluded from raising such plea by the fact that he
has appointed, or participated in the appointment of, an arbitrator. A plea that the
arbitral tribunal has exceeded its terms of reference shall be raised promptly after
the arbitral tribunal has indicated its intention to [deal with] [decide on] the matter
alleged to be outside the terms of reference. The arbitral tribunal may admit a later
plea if it deems the delay justified.
(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) either as a
preliminary question or in an award on the merits. [In either case, a ruling by the
arbitral tribunal that it has jurisdiction may be contested by any party only in an
action for setting aside the arbitral award.]
Article 17. Concurrent court control [incorporated in Art. 16 in the final text]
(1) [Notwithstanding the provisions of article 16,] [a party may] at any time [request the
Court specified in article 6 to decide whether or not there exists a valid arbitration
agreement and], if arbitral proceedings have commenced, whether or not the arbitral
tribunal has jurisdiction [with regard to the dispute referred to it].
P 500
P 501
(2) While such issue is pending with the Court, the arbitral tribunal may continue the
proceedings [unless the Court orders a stay or suspension of these proceedings].
FOURTH SECRETARIAT NOTE
COMMENTS AND SUGGESTIONS ON THE FOURTH DRAFT
A/CN.9/WG.II/WP.50 (16 DECEMBER 1983)
E. Effect of failure to invoke existence or non–existence of valid arbitration agreement
(articles 8, 16, 17 [Art. 16 in the final text], 34, 36)

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 15. The Working Group may wish to consider the effect of a party's failure to invoke the
arbitration agreement in the case of article 8(1) or, conversely, to plead in the case of
article 16(2) that the arbitral tribunal lacks jurisdiction. In the first case, there may be
some doubt as to whether failure to make a timely request of referral to arbitration should
preclude a party from relying on the arbitration agreement in other contexts or forums
since, for example, its recognition or its scope in terms of arbitrability of the subject–
matter may vary from one place to another. However, for the sake of preventing parallel
proceedings and conflicting decisions, one might consider treating the failure to request
referral as a waiver of the right to rely anywhere on the arbitration agreement. This would
then, for example, bind the Court which is asked under article 17 to decide whether or not
there exists a valid arbitration agreement.
16. In the reverse case, i.e., article 16(2), the answer seems to be less difficult. It is
submitted that a party who fails to raise the plea as required under article 16(2) should be
precluded from raising objections with respect to the existence or validity (or scope) of the
arbitration agreement also in other contexts, including the court control envisaged under
article 17 and, in particular, the post–award stage (i.e. articles 34(2)(a)(i) and 36(1)(a)(i)).
However, such waiver by submission should be subject to certain limits such as public
policy including arbitrability.
F. Court control of arbitral tribunal's jurisdiction (articles 16, 17)
17. Where the arbitral tribunal has ruled on a plea referred to in article 16(2) as a
preliminary question and has decided that it has jurisdiction, such ruling may be
contested, according to paragraph (3) of that article, only in an action for setting aside the
arbitral award. The Secretariat has placed this provision between square brackets, not
because it wished to indicate any doubts as to the appropriateness of this very rule, but in
order to invite reconsideration of the relationship between this rule and article 17.
18. From a formal point of view, the two provisions deal with different matters since article
16(3) provides recourse to a court only against a ruling of the arbitral tribunal while article
17 envisages direct resort. However, from a substantive point of view and for all practical
purposes, these two provisions deal with the same issue and are, it is submitted, in conflict
with each other. There would seem to be two possible approaches to avoid any conflict.
P 501
P 502
19. One possibility is to delete the last sentence of article 16(3). In this case, one may
consider adding to article 17(2) the device adopted in article 13(3) for accelerating matters,
i.e. that the Court's decision shall be final. The other possibility is to exclude the
concurrent court control under article 17 to the extent it would be in conflict with article
16(3). Article 17 would, then, be limited to those cases where the arbitral proceedings have
not yet commenced or where they have been terminated by a ruling of the arbitral tribunal
that it lacks jurisdiction. Where the proceedings have been terminated by a final award
which is based on a ruling that the arbitral tribunal has jurisdiction, the court control
would be exercised in the proceedings governed by article 34 and articles 35(2) and 36.
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[.… ]
Chapter IV. Jurisdiction or arbitral tribunal
Article 16
49. The text of article 16 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
50. The Working Group adopted that article, subject to the revision of the third sentence in
paragraph (2) as follows: “A plea that the arbitral tribunal is exceeding the scope of its
authority shall be raised promptly after the arbitral tribunal has indicated its intention to
decide on the matter alleged to be beyond the scope of its authority.”
51. It was observed, with reference to the question raised in the note prepared by the
Secretariat ([Fourth Secretariat Note,] A/CN.9/WG.II/ WP.50, para. 16), that a party who
failed to raise the plea as required under article 16(2) should be precluded from raising
such objections not only during the later stages of the arbitral proceedings but also in
other contexts, in particular, in setting aside proceedings or enforcement proceedings,
subject to certain limits such as public policy, including arbitrability.
52. As regards paragraph (3) of that article, the Working Group decided to retain that
paragraph in the light of its decision to delete article 17 (see paras. 54–56, below).
Article 17
53. The text of article 17 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
54. The Working Group decided to delete that article.

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 P 502 55. It was noted that the concurrent court control provided for in that article was to a large
P 503 extent in conflict with the provision in the last sentence of paragraph (3) of article 16,
which precluded a party from contesting an affirmative ruling by the arbitral tribunal on
its jurisdiction until the final award on the merits was made. There was some support for
retaining the provision on concurrent court control for the sake of a speedy and cost–
saving settlement of any controversy about the arbitral tribunal's jurisdiction. However,
the prevailing view was in favour of deleting article 17 since it might have adverse effects
throughout the arbitral proceedings by opening the door to delaying tactics and
obstruction and because it was not in harmony with the principle underlying article 16 that
it was initially and primarily for the arbitral tribunal to decide on its competence, subject
to ultimate court control.
56. As to the way of providing ultimate court control over the power of an arbitral tribunal
to decide on its jurisdiction, there was some support for the view that the arbitral tribunal
may make the ruling on its jurisdiction in the form of an award, which could then be
reviewed by the court in setting aside proceedings under article 34. The proponents of that
view were divided on whether this approach should be expressly regulated in the model
law. The prevailing view, however, was to allow the ultimate court control only after the
final award on the merits was made, as provided for in the last sentence of paragraph (3) of
article 16.
[.… ]
B. Other issues
[.… ]
4. Counter–claim
196. The Working Group decided to delete, in article 16(2), the words “or, with respect to a
counter–claim, in the reply to the counter–claim,” on the understanding that any provision
of the model law referring to the claim would apply, mutatis mutandis, to a counter–claim.
[Editors' Note: This “understanding” ultimately was explicitly stated in Article 2(f) of the
Model Law. See generally the section on that Article, supra].
FIFTH DRAFT
A/CN.9/246 (ANNEX) (6 MARCH 1984)
Chapter IV. Jurisdiction of arbitral tribunal
Article 16. Competence to rule on own jurisdiction
(1) The arbitral tribunal has the power to rule on its own jurisdiction, including any
objections with respect to the existence or validity of the arbitration agreement. For
that purpose, an arbitration clause which forms part of a contract shall be treated as
an agreement independent of the other terms of the contract. A decision by the
arbitral tribunal that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later
P 503 than in the statement of defence. A party is not precluded from raising such a plea by
P 504 the fact that he has appointed, or participated in the appointment of, an
arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority
shall be raised promptly after the arbitral tribunal has indicated its intention to
decide on the matter alleged to be beyond the scope of its authority. The arbitral
tribunal may, in either case, admit a later plea if it considers the delay justified.
(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this article
either as a preliminary question or in an award on the merits. In either case, a ruling
by the arbitral tribunal that it has jurisdiction may be contested by any party only in
an action for setting aside the arbitral award.
SIXTH SECRETARIAT NOTE
ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[.… ]
Article 16. Competence to rule on own jurisdiction
Article 16, paragraph (1)
1. Cyprus, noting that under its law an arbitration clause which forms part of a contract
which is void is itself void, supports the provision in article 16 that a decision by the
arbitral tribunal that the contract is null and void shall not entail ipso iure the invalidity of
the arbitration clause. However, it is suggested that provision ought to be made for the
matter to be decided by the court.
2. India suggests adding at the end of the first sentence of paragraph (1) of this article the
words, “or the identity of any party to the arbitration agreement.” This amendment is
suggested to cover the problem of accountability of shipowners in the context of open–

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 registry shipping.
Article 16, paragraph (2)
3. The Soviet Union is of the view that the intention of the arbitral tribunal to exceed the
scope of its authority would normally only be clear once there is an award covering that
matter and that the point of time for raising a plea that the arbitral tribunal is exceeding
the scope of its authority should be defined with more precision. The provision would be
more precise if the plea had to be raised by a party promptly as soon as the matter which
is beyond the scope of the arbitral tribunal's authority is raised during the arbitral
proceedings (as provided, for example, in article V(1) of the 1961 Geneva Convention
[European Convention on International Commercial Arbitration, 484 U.N.T.S. 349]).
4. In the view of Sweden, the meaning of the provision on the point of time for raising a
plea that arbitrators are exceeding their authority is not entirely clear. The question of the
arbitral tribunal's authority may have been discussed during the arbitral proceedings and
P 504 at that time the arbitral tribunal may have indicated its intention to rule on the
P 505 controversial issue. However, the arbitral tribunal can hardly be considered bound by
such indication. Normally, it is only when the award is made that a party knows with
certainty that the scope of the arbitral tribunal's authority has been exceeded. Therefore,
the party should be able to raise the plea during the period of time for the application for
setting aside the award.
5. Norway expresses the view that a party who fails to raise the plea regarding jurisdiction
as required under article 16(2) should not be allowed to raise this plea in proceedings for
setting aside or enforcement. Observing that this view was also expressed in the Working
Group, (23) Norway suggests that this should be explicitly provided either in article 16 or in
articles 34 and 36.
6. Cyprus proposes the following modification of the first sentence of paragraph (2): “A plea
that the tribunal does not have jurisdiction shall be raised not later than the statement of
defence; such plea may be raised in the statement of defence.”
Article 16, paragraph (3)
7. Austria, India, Norway, Poland and IBA [International Bar Association] object to the rule
contained in the last sentence of paragraph (3) and express the view that a ruling by the
arbitral tribunal that it has jurisdiction should be open to immediate court review.
(a) Austria notes that under the present text the parties are, in fact, forced to continue
the proceedings, which sometimes causes considerable cost and loss of time before
the parties are able to apply for setting aside the award on the ground of lack of
jurisdiction of the arbitral tribunal. Therefore, Austria expresses the view that the
arbitral tribunal should have the possibility to rule on its jurisdiction as a
preliminary question in the form of an award. Such a ruling by the arbitral tribunal
could then immediately be contested by any party in an action for setting aside
under article 34. Austria observes that under article 13(3) the party who has not been
successful in challenging an arbitrator may immediately request the Court to decide
on the challenge and that a similar approach would be more appropriate in the more
important case of contested jurisdiction of the arbitral tribunal.
(b) Norway, although agreeing with the prevailing view in the Working Group that there
ought not to be a free hand for concurrent court control, (24) suggests that in some
cases there may be a genuine need for a court decision on the jurisdiction of the
arbitral tribunal at an early stage and that the model law should allow for some
flexibility. Norway proposes to replace paragraph (3) of article 16 by the following
provisions:
“(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this
article either as a preliminary question or in an award on the merits. If the
tribunal rules on the plea as a preliminary question, the tribunal may state its
ruling in a preliminary award.
P 505 “(4) Unless otherwise agreed by the parties, a party may apply to a court for setting
P 506 aside a preliminary award referred to in paragraph (3) of this article. Such an
application shall be made within the time limit referred to in paragraph (3) of
article 34.
“(5) Unless otherwise agreed by the parties, the arbitral tribunal decides whether
the arbitral proceedings shall continue while the issue of its jurisdiction is
pending with the court.
“(6) A ruling by the arbitral tribunal that it has jurisdiction may be contested only in
an action referred to in paragraph (4) of this article, in an action for setting
aside an award on the merits or as a defence against an action for recognition
or enforcement of the award.”
(c) Poland is of the view that article 16(3) is in contradiction with the leading rule of
commercial arbitration directed to fast and non–expensive proceedings. It suggests
that a plea that the arbitral tribunal does not have jurisdiction should be decided by
the State court as soon as possible. For example, one could envisage an obligatory
preliminary award of the arbitral tribunal which would be subject to instant contest
before the State court.

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 (d) IBA accepts that the primary authority for the determination of jurisdiction issues,
including questions of arbitrability, the validity of the arbitration agreement and so
forth, should be the arbitral tribunal itself. However, since the arbitral tribunal's
decision on these matters are ultimately subject to court control, it seems sensible
that the intervention of the courts on such issues should be permitted at an early
stage, rather than only at the end of the arbitration. This would avoid unnecessary
delay and costs. Accordingly, it is suggested that article 16(3) should be reconsidered,
and that article 17, as it was discussed and deleted by the Working Group, (25) might
be reviewed with a view to reinstating it. It is observed that many practising lawyers
feel that concurrent court control should also be available in a more general sense, in
addition to the question of recourse of matters of the jurisdiction of the Court, in
order to prevent arbitral tribunals from exceeding their authority, or failing to
comply with the requirements of due process. Under the present text of article 16(3)
(as explained in the report of the seventh session of the Working Group (26) ), it seems
that there can be no recourse against any interim award or decision of the Court. The
policy of limiting court control to the minimum is, of course, well understood (and, it
is said, probably accepted by the majority of IBA members) but it is suggested that a
policy should not be applied so rigidly as to lead to extreme situations which may
result in unnecessary disruption, delay and costs to the parties.
8. Norway and IBA suggest that it should be mentioned in article 16(3) that a ruling by an
P 506 arbitral tribunal that it has jurisdiction could also be contested by way of defence against
P 507 recognition or enforcement of the award. It is pointed out by IBA that under article 16(3)
it appears that questions of jurisdiction may only be raised in an action for setting aside,
and not by way of defence to an action for recognition or enforcement of the award. This
could lead to an absurd result if the losing party is unable to take an action for setting
aside simply because the winner stepped in first with an action for enforcement.
9. Mexico suggests that it should be made clearer that the provisions of paragraph (3)
apply not only to the plea that the arbitral tribunal does not have jurisdiction but also to
the plea that the arbitral tribunal is exceeding the scope of its authority.
10. The Soviet Union, in the context of its proposal made in respect of article 8(2) (see
paragraph 6 of the compilation of comments on article 8 [appearing in the section on that
Article, pp. 321–22 supra]), is of the view that the last sentence of article 16(3) might be
deleted as unnecessary.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[.… ]
Article 16. Competence to rule on own jurisdiction
1. AALCC [Asian–African Legal Consultative Committee] recommends that this article be
entitled “Competence.”
2. Canada expresses the view that paragraph (3) seems unduly restrictive in limiting the
right of a party to contest a finding of jurisdiction to an action to set aside the award. The
acceptance of such a principle is unlikely in any Canadian jurisdiction because it is
considered that the resolution of jurisdictional issues should not have to await the final
award. A party should be able to deal with the question of jurisdiction as a preliminary
matter. The problem with leaving it to the enforcement State is that there will be a
difference between those States which are parties to the 1958 New York Convention and
those that are not. Furthermore, the recent decision of the French Court of Appeal in Paris
in the case Arab Republic of Egypt v. Southern Pacific Properties, Ltd. et al. (International
Legal Materials, vol. 23, no. 5, September 1984, pp. 1048–1061) illustrates the importance of
resolving such questions at an early stage. Paragraph (3) should be revised to address this
problem, perhaps by providing that an arbitral tribunal can refer the question of its
jurisdiction to the Court.
A/CN.9/263/ADD.2 (21 MAY 1985)
(UK COMMENTS)
The jurisdiction of the arbitrator
17. The United Kingdom attaches great importance to the reintroduction into the text of the
previous Article 17. Without it, an incorrect ruling by an arbitrator in favour of his having
jurisdiction can only be challenged in an action for setting aside under Article 34. By the
P 507 time the award has been made the parties will have been put to a great deal of expense
P 508 and to have to litigate the matter further will cause considerable delay. Instead of
preventing dilatory tactics by a defendant the deletion of Article 17 provides for them.
Sufficient safeguard against abuse of Article 17 was contained in Article 17(2), which
allowed the arbitration proceedings to continue during the challenge before the court
(except where the court ruled otherwise — which it would no doubt refrain from doing save
in a clear case). A discretionary power for the tribunal to make an interim award is not a
sufficient protection for the parties.
[Editors' Note: For another comment relating to Article 16, see the Sixth Secretariat Note
(Comments of Egypt), A/CN.9/263/Add.3, paras. 18–20, appearing in the section on Article 34,

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 pp. 962–63 infra; these paragraphs discuss the various opportunities for court review provided
by Articles 8, 16, 34 and 36 of the Model Law.]
SEVENTH SECRETARIAT NOTE
ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1985)
Article 16. Competence to rule on own jurisdiction
Commentary
[.… ]
A. “Kompetenz–Kompetenz” and separability doctrine, paragraph (1)
1. Article 16 adopts the important principle that it is initially and primarily for the arbitral
tribunal itself to determine whether it has jurisdiction, subject to ultimate court control
(see below, paras. 12–14). Paragraph (1) grants the arbitral tribunal the power to rule on its
own jurisdiction, including any objections with respect to the existence or validity of the
arbitration agreement. This power, often referred to as “Kompetenz–Kompetenz,” is an
essential and widely accepted feature of modern international arbitration but, at present,
is not yet recognized in all national laws.
2. The same is true with regard to the second principle adopted in article 16(1), i.e., the
doctrine of separability (or autonomy) of the arbitration clause. This doctrine
complements the power of the arbitral tribunal to determine its own jurisdiction in that it
calls for treating such a clause as an agreement independent of the other terms of the
contract. A finding by the arbitral tribunal that the contract is null and void, therefore,
does not require the conclusion that the arbitration clause is invalid. The arbitral tribunal
would, thus, not lack jurisdiction to decide on the nullity of the contract (and on further
issues submitted to it) unless it finds that the defect which causes the nullity of the
contract affects also the arbitration clause itself. It may be mentioned that the principle of
separability as adopted in article 16(1), in contrast to some national laws which distinguish
in this respect between initial defects and later grounds of nullity, applies whatever be the
nature of the defect.
3. Article 16 does not state according to which law the arbitral tribunal would determine
P 508 the various possible issues relating to its jurisdiction. It is submitted that the applicable
P 509 law should be the same as that which the Court specified in article 6 would apply in
setting aside proceedings under article 34, since these proceedings constitute the ultimate
court control over the arbitral tribunal's decision (article 16(3)). This would mean that the
capacity of the parties and the validity of the arbitration agreement would be decided
according to the law determined pursuant to the rules contained in article 34(2)(a)(i) and
that the question of arbitrability and other issues of public policy would be governed by
the law of “this State” (see present text of article 34(2)(b)). (52) As regards these latter
issues, including arbitrability, it is further submitted that the arbitral tribunal, like the
Court under article 34(2)(b), should make a determination ex officio, i.e., even without any
plea by a party as referred to in article 16(2). (53)
B. Time–limits for raising objections, paragraph (2)
4. Paragraph (2) deals with the possible plea of a party that the arbitral tribunal does not
have jurisdiction to decide the case before it or that it is exceeding the scope of its
authority. It aims, in particular, at ensuring that any such objections are raised without
delay.
5. The respondent may not invoke lack of jurisdiction after submitting his statement of
defence (as referred to in article 23(1)), unless the arbitral tribunal admits a later plea
since it considers the delay justified. With respect to a counter–claim, which is no longer
dealt with expressly in the text, (54) the relevant cut–off point would be the time at which
the claimant submits his reply thereto.
6. As stated in the second sentence of paragraph (2), the respodent is not precluded from
invoking lack of jurisdiction by the fact that he has appointed, or participated in the
appointment of, an arbitrator. Thus, if, despite his objections, he prefers not to remain
passive but to take part in, and exert influence on, the constitution of the arbitral tribunal,
which would eventually rule on his objections, he need not make a reservation, as would be
necessary under some national laws for excluding the effect of waiver or submission.
7. The second type of plea dealt with in paragraph (2), which is that the arbitral tribunal is
exceeding the scope of its authority, must be raised promptly after the tribunal has
indicated its intention to decide on the matter alleged to be beyond the scope of its
authority; here again, a later plea may be admitted if the arbitral tribunal considers the
delay to the justified. While any instance of the arbitral tribunal's exceeding its authority
P 509 may often occur or become certain only in the context of the award or other decision, the
P 510 above time–limit would be relevant and useful in those cases where there are clear
indications at an earlier stage, for example, where the arbitral tribunal requests evidence
relating to an issue not submitted to it.
C. Effect of failure to raise plea

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 8. The model law does not state whether a party's failure to raise his objections within the
time–limit set by article 16(2) has effect at the post–award stage. The pertinent
observation of the Working Group was that a party who failed to raise the plea as required
under article 16(2) should be precluded from raising such objections not only during the
later stages of the arbitral proceedings but also in other contexts, in particular, in setting
aside proceedings, or enforcement proceedings, subject to certain limits such as public
policy, including those relating to arbitrability. (55)
9. It is submitted that this observation accords with the purpose underlying paragraph (2)
and might appropriately be expressed in the model law. (56) It would mean, in practical
terms, that any objection, for example, to the validity of the arbitration agreement may
not later be invoked as a ground for setting aside under article 34(2)(a)(i) or for requesting,
under article 36(1)(a)(i), refusal of recognition or enforcement of an award (made under this
Law); these provisions on grounds for setting aside or refusing recognition or enforcement
would remain applicable and of practical relevance to those cases where a party raised
the plea in time but without success or where a party did not participate in the arbitration,
at least not submit a statement or take part in hearings on the substance of the dispute.
10. As expressed in the above observation of the Working Group, there are limits to the
effect of a party's failure to raise his objections. These limits arise from the fact that
certain defects such as violation of public policy, including non–arbitrability, cannot be
cured by submission to the proceedings. Accordingly, such grounds for lack of jurisdiction
would be decided upon by a court in accordance with article 34(2)(b) or, as regards awards
made under this Law, article 36(1)(b) even if no party had raised any objections in this
respect during the arbitral proceedings. It may be added that this result is in harmony with
the understanding (stated above, para. 3) that these latter issues are to be determined by
the arbitral tribunal ex officio.
D. Ruling by arbitral tribunal and judicial control, paragraph (3)
11. Objections to the arbitral tribunal's jurisdiction go to the very foundation of the
arbitration. Jurisdictional questions are, thus, antecedent to matters of substance and
usually ruled upon first in a separate decision, in order to avoid possible waste of time and
P 510 costs. However, in some cases, in particular, where the question of jurisdiction is
P 511 intertwined with the substantive issue, it may be appropriate to combine the ruling on
jurisdiction with a partial or complete decision on the merits of the case. Article 16(3),
therefore, grants the arbitral tribunal discretion to rule on a plea referred to in paragraph
(2) either as a preliminary question or in an award on the merits.
12. As noted earlier (above, para. 1), the power of the arbitral tribunal to rule on its own
competence is subject to judicial control. Where a ruling by the arbitral tribunal that it has
jurisdiction is, exceptionally, included in an award on the merits, it is obvious that the
judicial control of that ruling would be exercised upon an application by the objecting
party for the setting aside of that award. The less clear, and in fact controversial, case is
where such affirmative ruling is made on a plea as a preliminary question. The solution
adopted in article 16(3) is that also in this case judicial control may be sought only after
the award on the merits is rendered, namely in setting aside proceedings (and, although
this is not immediately clear from the present text, (57) in any recognition or enforcement
proceedings).
13. It was for the purpose of preventing dilatory tactics and abuse of any immediate right
to appeal that this solution was adopted, reinforced by the deletion of previous draft
article 17, which provided for concurrent court control. (58) The disadvantage of this
solution, as was pointed out by the proponents of immediate court control, is that it may
lead to considerable waste of time and money where, after lengthy proceedings with
expensive hearings and taking of evidence, the Court sets aside the award for lack of
jurisdiction.
14. It is submitted that the weight of these two conflicting concerns, i.e., fear of dilatory
tactics and obstruction versus waste of time and money, is difficult to assess at a general
level imagining all possible cases. It seems that the assessment could better be made with
respect to each particular case. Thus, it may be worth considering giving the arbitral
tribunal discretion, based on its assessment of the actual potential of these concerns, to
cast its ruling in the form either of an award, which would be subject to instant court
control, (59) or of a procedural decision which may be contested only in an action for
setting aside the later award on the merits. In considering this suggestion, which would
help to avoid the present inconsistency between article 16(3) and article 13(3), thought may
be given to adopting the special elements of article 13(3) designed to minimize the risk of
dilatory tactics, i.e., short time–limit for resort to court, finality of court decision, discretion
of arbitral tribunal to continue proceedings.
P 511
P 512
15. Article 16(3) does not regulate the case where the arbitral tribunal rules that it has no
jurisdiction. A previous draft provision which allowed recourse to the court, not necessarily
with the aim of forcing the arbitrators to continue the proceedings but in order to obtain a
decision on the existence of a valid arbitration agreement, was not retained by the
Working Group. (60) It was stated that such ruling of the arbitral tribunal was final and
binding as regards these arbitral proceedings but did not settle the question whether the

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 substantive claim was to be decided by a court or by an arbitral tribunal. It is submitted
that it thus depends on the general law on arbitration or civil procedure whether court
control on such ruling may be sought, other than by way of request in any substantive
proceedings as referred to in article 8(1).
SUMMARY RECORD
A/CN.9/SR.315–.316, .320, .332
[10 June 1985, 9:30 a.m., A/CN.9/SR.315]
Article 16. Competence to rule on own jurisdiction
Paragraph (1)
24. Mr. SEKHON (India) suggested that the words “unless otherwise agreed by the parties”
should be inserted at the beginning of the paragraph, with a view to the provision gaining
wider acceptance.
25. The CHAIRMAN [Mr. LOEWE (Austria)] said he felt that the Commission might prefer to
indicate in the report that parties could contract out of the provision in paragraph (1).
26. Mr. BONELL (Italy) supported the Chairman's suggestion.
27. Mr. MTANGO (United Republic of Tanzania) said that the words “the arbitral tribunal has
the power to rule on its own jurisdiction” were too strong and might conflict with national
laws. If the Commission's aim was to provide a model law for Governments and not to
change the existing pattern of national legislation, it should perhaps use less forceful
wording for provisions which might give rise to conflicts of that kind. He therefore
suggested amending the words “has the power” to read “may be granted the power.”
28. Mr. SZURSKI (Observer for Poland) said that the first sentence of paragraph (1) might
give the impression that an arbitral tribunal would not be competent to rule on its own
jurisdiction unless an objection had been raised by one of the parties. In that connection,
paragraph 3 of section A of the Secretariat's commentary on the article ([Seventh
Secretariat Note,] A/CN.9/264, [Art. 16]) suggested that the tribunal should be able to make
certain determinations ex officio, for example on the arbitrability of a dispute. He
therefore suggested that the word “objections” should be replaced by the word “questions.”
P 512
P 513
29. The CHAIRMAN agreed that the tribunal should be able to take such decisions of its own
motion — they would not of course be final ones, because of the judicial setting–aside
procedure — but he doubted whether the change suggested by the Observer for Poland
would make the matter any clearer.
30. Mr. RAMADAN (Egypt) said that his delegation read article 16 as implying that the
parties could resort to the court under article 8 for a decision on the validity of an
arbitration agreement. However, the draft text also contained article 34, the aim of which
was that only one opportunity for judicial recourse should be available to them. His
delegation would make a proposal under article 34 designed to eliminate the possibility of
objections to the validity of an arbitration agreement being made to a court more than
once.
31. He did not think it was necessary for the Commission to adopt the Tanzanian suggestion
since the national legislator would be able to eliminate conflicts between the model law
and existing national legislation.
32. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that article 16 was
very important for arbitrators: an arbitral tribunal must be clear about its power to rule on
its own competence. The Tanzanian representative had suggested that the rule should be
expressed less forcefully. He himself did not think that the present wording would create a
problem for the Institute or for most States, but perhaps the point might be met by
substituting the word “may” for the words “has the power to.”
33. Mr. MTANGO (United Republic of Tanzania) accepted that suggestion.
34. Mr. MATHANJUKI (Kenya) said that the Working Group on International Contract
Practices had deleted from the model law the article dealing with concurrent court
control, namely article 17. It therefore seemed necessary for the Commission to clarify the
role of the court in the event of a dispute between the parties concerning jurisdiction.
Under article 5, the court could not intervene except where the model law so provided.
Article 16 should therefore provide some linkage with the court system in regard to
decisions by an arbitral tribunal about its competence.
35. Mr. HOLTZMANN (United States of America) said that he could accept the substitution of
the word “may” for the words “has the power to” provided that it was understood that it
would not render the paragraph weaker than article 21(1) of the UNCITRAL Arbitration
Rules, which used the words “shall have the power to.”
36. The CHAIRMAN noted that there was no objection to the suggestion made by the
Chartered Institute of Arbitrators, and that this formulation was no weaker than the
original.
P 513
P 514

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 P 514
Paragraph (2)
37. Mr. LEBEDEV (Union of Soviet Socialist Republics) referred the Commission to his
delegation's written comments, reproduced in [the Sixth Secretariat Note (Government
Comments),] document A/CN.9/263 ([Art. 16], para. 3). In order to meet the need for
promptness in raising pleas of excess of authority, his delegation proposed that the third
sentence of paragraph (2) should be replaced by the following wording, taken from article
V(1) of the 1961 European Convention [on International Commercial Arbitration, 484 U.N.T.S.
349 (Geneva)]: “Pleas based on the fact that an arbitrator has exceeded his terms of
reference shall be raised during the arbitration proceedings as soon as the question on
which the arbitrator is alleged to have no jurisdiction is raised during the arbitral
procedure.” That change would not affect the substance of the paragraph and would make
its intention clearer.
38. Mr. MOELLER (Observer for Finland), Mr. LOEFMARCK (Sweden) and Mr. HOELLERING
(United States of America) supported the Soviet Union proposal.
39. Mr. LAVINA (Philippines) said that in some legal systems objections to jurisdiction could
be raised at any stage of the proceedings, but he agreed that under the model law they
should be made as early as possible.
40. Mr. ILLESCAS ORTIZ (Spain) said that paragraph (2) was generally acceptable to his
delegation. He suggested that in the Spanish version of the second sentence the
expression “cuestión de competencia” should be substituted for the term “declinatoria.”
41. Mr. BONELL (Italy) supported the Soviet Union proposal. The present wording of the
third sentence of paragraph (2) might be misunderstood to mean that the question of
acting in excess of authority could not be raised until the arbitrators themselves had
declared their intention of so acting. It was possible, however, that during the proceedings
a party might raise a matter falling outside the scope of the original arbitration
agreement. If the other party did not agree to the arbitrators' terms of reference being
broadened to include it he should raise his objection immediately. The wording of the 1961
European Convention brought that out more cogently than the present draft of the
paragraph. It was important that the paragraph should make it clear that a plea of excess
of authority could be made as a result not only of an initiative by the arbitrators but also
of an act of a party.
42. Mr. ROEHRICH (France) said that his delegation supported the Soviet Union proposal,
for the reasons given by the representative of Italy.
43. Mr. SEKHON (India) also supported the Soviet Union proposal. He suggested the
deletion of the word “in” from the first sentence of paragraph (2) on the grounds that it was
superfluous and also misleading, as suggesting that a plea to the jurisdiction could be
raised only in the statement of defence.
44. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that paragraph (2)
dealt adequately with two possibilities — that the arbitral tribunal had no jurisdiction and
that it was exceeding the scope of its authority. He could accept the Soviet Union proposal
but marginally preferred the text as it was.
P 514
P 515
45. Sir Michael MUSTILL (United Kingdom) said that the Working Group had had good
reasons for adopting the present wording. However, there appeared to be a strong feeling
in the Commission in favour of the Soviet Union proposal and his delegation would not
oppose it.
46. Mr. SZASZ (Hungary) supported the Soviet Union proposal but observed that the system
provided for in the 1961 European Convention was less flexible than what the model law
proposed.
47. Mr. LAVINA (Philippines) pointed out that the Convention referred to an arbitrator
exceeding his terms of reference, whereas the model law was speaking of an arbitral
tribunal. He was not sure how the Soviet Union proposal would overcome that discrepancy.
48. Mr. MTANGO (United Republic of Tanzania) said that if the Commission adopted the
wording of the Convention it would be introducing a rigid procedure that might create
problems, especially for the developing countries, where persons involved in arbitral
proceedings might lack the experience to realize the need for promptness. He preferred
the present text, which was more flexible.
49. Mr. MARTINEZ CELAYA (Observer for Argentina) supported the proposed Soviet
amendment. With regard to the drafting change suggested for the Spanish version, his
delegation would prefer the word “declinatoria” to be retained, since it was quite
appropriate in the context.
50. Mr. ALLIN (Observer for Canada) and Mr. STROHBACH (German Democratic Republic)
also supported the Soviet Union proposal.
51. Mr. BONELL (Italy) asked whether a party's failure to raise an objection under article 16
would later preclude him from seeking to have the award set aside or from refusing to
recognize it or accept its enforcement. The Secretariat's commentary ([Seventh Secretariat
Note,] A/CN.9/264, [Art. 16], para. 9) appeared to support that interpretation. The model

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 law should distinguish between an objection that the arbitral tribunal had exceeded its
authority, which could not be taken before the court designated in article 6, and an
objection on any other ground, which could.
52. The CHAIRMAN proposed that this matter be discussed in connection with articles 34
and 36, and noted that there was no objection.
Paragraph (3)
53. Mr. SAWADA (Japan) said he agreed with the Secretariat's remarks in paragraph 14 of its
commentary on the article ([Seventh Secretariat Note,] A/CN.9/264, [Art. 16]) and its
suggestion that the arbitral tribunal should be free to cast its ruling either as an award,
subject to court control, or as a procedural decision which could only be contested in an
action for setting the award aside.
54. Mr. MOELLER (Observer for Finland) said that the second sentence of article 16(3) was
inconsistent with article 8 and should be deleted.
55. Mr. REINSKOU (Observer for Norway) said that his Government's written proposal,
P 515 reproduced in [the Sixth Secretariat Note (Government Comments),] document A/CN.9/263
P 516 ([Art. 16], para. 7(b)), was a compromise between the present text of article 16(3) and the
article 17 deleted by the Working Party. It would allow the arbitral tribunal to make a ruling
on its own jurisdiction in a final decision or in a separate preliminary decision.
Alternatively, the procedure provided for in article 13 could be used.
56. Sir Michael MUSTILL (United Kingdom) said that the statement in article 16(3) to the
effect that a ruling by the arbitral tribunal that it had jurisdiction could not be contested
except in an action for setting the award aside was not correct, since a party could also
apply for refusal of recognition or enforcement of the award under article 36.
57. In the view of his delegation, article 16(3) should not be considered without the deleted
article 17. There was no question of the right of the court to intervene on matters
concerning the jurisdiction of the arbitral tribunal; the only doubt concerned the stage at
which its intervention should be allowed. If article 17 were reinstated, the suggestion made
by the Secretariat in paragraph 14 of its commentary would be acceptable.
58. Mr. MARTINEZ CELAYA (Observer for Argentina) said that the arbitral tribunal's ruling on
its own jurisdiction should be made at an early stage in the case in order to save the
parties money, ensure due process and prevent what was called “forum shopping.”
59. Mr. HOLTZMANN (United States of America) said that to his knowledge an arbitral
tribunal could always leave the question of its own competence in its award on the merits,
so that it could only be reviewed by a court first in an action for setting aside the award on
the merits. The compromise solution suggested by the Secretariat ([Seventh Secretariat
Note,] A/CN.4/264, [Art. 16], para. 14) would enable the arbitral tribunal to decide the
matter of its own jurisdiction either in an interlocutory award, which would allow the
parties immediate recourse to the court, or in a less formal decision, which would not.
60. Mr. SCHUETZ (Austria) said that the question of an arbitral tribunal's jurisdiction should
be decided at a very early stage. His delegation considered that article 16(3) should
contain a provision similar to article 13(3); it should set a short period of time for the
court's decision and stipulate that it would be final.
61. Mr. STALEV (Observer for Bulgaria) said that his delegation supported article 16(3), even
without article 17, since the claimant was not likely to raise a claim unless the arbitration
agreement was valid.
62. Mr. BROCHES (Observer, International Council for Commercial Arbitration) said that an
arbitral tribunal was often reluctant to declare that it did not have jurisdiction in a case
because the claimant might have no other remedy. He suggested that a fourth paragraph
should be added to article 16 to the effect that, notwithstanding paragraph (3), an arbitral
tribunal which had ruled that it had jurisdiction over a case might authorize the parties to
ask the court mentioned in article 6 to review that ruling. In regard to the suggestion that
P 516 an arbitral tribunal should be free to make either a preliminary award or a procedural
P 517 decision, it did not seem right that the court's power to intervene should depend
merely on the name given to the tribunal's decision. The Austrian representative had
suggested that the court should be empowered to take a final decision on the arbitral
tribunal's jurisdiction, but the parties would then have no further recourse.
[10 June 1985, 2:00 p.m., A/CN.9/SR.316]
Article 16. Competence to rule on own jurisdiction (continued)
1. Mr. GRIFFITH (Australia) said that his delegation was in favour of the reinstatement of
article 17. In that case, the second point in article 16(3) need not be considered.
2. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that the restoration of article 17
after its deletion by the Working Group would remove a substantial element of the
compromise that had been arrived at. His delegation had accepted the decision to keep
article 8 on the understanding that the whole compromise would be maintained. It should
therefore be adhered to in respect of the other articles. Article 16 should be regarded as
an indispensable element of the compromise in regard to the substantive question of the
relationship between the arbitral tribunal and the court.

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 3. Mr. MTANGO (United Republic of Tanzania) said he strongly supported the restoring of
article 17.
4. Mr. SZASZ (Hungary) was prepared to accede to giving more control to the courts than in
the draft prepared by the Working Group. One way of doing so would be to restore article
17.
5. Mr. MOELLER (Observer for Finland) thought that article 17 should be restored. He was not
sure that it had been the right course to treat article 16 separately.
6. Mr. GRAHAM (Observer for Canada) favoured restoring article 17, but as modified on the
lines suggested by Austria and Norway.
7. Mr. PAES de BARROS LEAES (Brazil) thought that article 17 should be reconsidered as
originally drafted.
8. Mr. HOLTZMANN (United States of America) said that his delegation's first preference
was for the draft of the Working Group without article 17. It was prepared to consider as an
alternative the proposal put forward in paragraph 14 of the Secretariat's comments,
[Seventh Secretariat Note,] in the form described by the observer for the International
Council for Commercial Arbitration. If that solution was adopted, there would be a need for
article 17 with regard to those situations in which there was an appeal to the court. The
third and least acceptable solution would be on the lines suggested by Austria and
endorsed by Canada. His delegation reserved the right to discuss the drafting suggestions
made in respect of article 17 at a future stage.
9. His delegation also agreed with the Norwegian and other delegations which had
P 517 suggested that challenges to jurisdiction when made should be regarded not simply as
P 518 actions for setting aside but also as a form of defence in an enforcement action.
Regarding the Secretariat's comments in paragraphs 11 and 12 [of the Seventh Secretariat
Note] on the ruling by the arbitral tribunal and judicial control, he noted that jurisdictional
questions were “more often” rather than “usually” ruled upon first, and that it was not
particularly exceptional for an arbitral tribunal to include in an award on the merits a
ruling to the effect that it had jurisdiction.
10. Mr. ROEHRICH (France) said that, in his delegation's view, the future of international
commercial arbitration did not lie in continual recourse to the court of the place of
arbitration. It therefore had great difficulty in respect of article 17. It was nevertheless
ready to try to find a compromise. It did not think, however, that the solution lay in giving
the arbitrators discretionary power to decide whether there could be recourse to the court
on the question of jurisdiction during the arbitral proceedings. The suggestion of the
observer from the International Council for Commercial Arbitration was very dangerous. If
some formula could be found for setting a time–limit, his delegation could accept it, in a
spirit of compromise, but it could not accept that the decision should be left to the
arbitral tribunal itself. Questions of competence should be dealt with only at the time of
an action for setting aside an award. If there was to be continual recourse to the court of
the place of arbitration, there was a great risk that arbitration would cease to exist in
countries where it was all too easy to paralyse the proceedings by turning for one reason or
another to the State courts.
11. The CHAIRMAN [Mr. LOEWE (Austria)] said that there seemed to be no clear majority
either for reinstating article 17 as it stood or for deleting article 17 and keeping article 16(3)
unchanged. He suggested, as a possible compromise, a system in which the parties could
require the arbitrators to rule on their own jurisdiction in a preliminary matter but in which
that ruling could be the object of recourse to the court, though perhaps confined to a single
level of jurisdiction in order to save time; in the mean time the arbitrators would be able
to continue their proceedings.
12. Mr. HOLTZMANN (United States of America) said that if the parties were empowered to
demand that the question of jurisdiction should be settled as a preliminary matter they
would be able to dictate to the arbitrators the time when they would decide the issues
before them and thereby infringe on their power to deal with the issues as they thought
best. Arbitral tribunals operating under the UNCITRAL Arbitration Rules found it valuable
to allow for the intertwining of the question of jurisdiction and the substantive issue.
13. Mr. MATHANJUKI (Kenya) favoured reintroducing article 17. Regarding the Chairman's
proposal, he said that article 16(3) might be amended to ensure that the parties had the
right to require a preliminary decision.
14. Mr. BARRERA GRAF (Mexico) said it needed to be made clear whether article 16(3)
applied to the plea that the arbitral tribunal was exceeding its authority as well as to the
P 518 plea that it had no jurisdiction. Also, in respect of article 16(3), his delegation felt that the
P 519 problem of jurisdiction was so important that it should be decided by the arbitral
tribunal as a preliminary question. The decision, however, should not prevent the
continuation of the proceedings, unless otherwise provided for in the arbitration
agreement. The question of the tribunal having exceeded the scope of its authority, as
referred to in article 16(2), could be decided either as a preliminary question or jointly
with an award on the merits. If article 16(3) was redrafted, it should incorporate the terms
of the deleted article 17, to the effect that a party could request the court to decide
whether a valid arbitration agreement existed. Unlike article 17(1), however, it would rest

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 with the arbitration agreement whether the proceedings should continue or be suspended.
15. Mr. SZURSKI (Observer for Poland) supported the opinion that the question of the
jurisdiction of the arbitral tribunal should be settled as soon as possible and that the
parties should not be deprived of the possibility of objecting to the prolongation of the
arbitral proceedings if they believed the tribunal lacked jurisdiction. There were occasions
on which the arbitrators were interested in prolonging the proceedings for their own
reasons and the parties should be protected in cases where they were convinced that the
arbitral tribunal had no jurisdiction. Article 16(3) should therefore be amended in the way
suggested by the Chairman: on the request of a party, the arbitral tribunal should be
obliged to render a preliminary decision on the question of jurisdiction, so that immediate
recourse to the court would become possible. There should, however, be a time–limit so as
to prevent abuse and dilatory tactics.
16. Sir Michael MUSTILL (United Kingdom) said that the Chairman's suggested solution
seemed in essence to be the same as that of the representative of Austria. The parties
would proceed in two stages: first, there would be a challenge before the tribunal, to be
followed secondly by a rapid approach to the court, subject to the conditions laid down in
article 13. If the two proposals were indeed the same, his delegation would be able to
support the Chairman's suggestion. He noted in passing that, although article 16(3) said
that a ruling by the arbitral tribunal that it had jurisdiction could be contested in the
court, none of the proposals so far had addressed a situation in which the arbitrators
decided that they had no jurisdiction. Could the parties then claim that they did? He
believed that article 13 operated in both directions and there seemed to be no logical
reason why article 16 should not do the same.
17. The CHAIRMAN thought that there was a substantive reason, in that the arbitrators could
not be forced to continue their arbitration if they believed that they had no jurisdiction.
The arbitration proceedings would thus be terminated.
18. Sir Michael MUSTILL (United Kingdom) said that the party making the plea could then
take the matter to the court. The question would then arise before the court whether the
arbitration agreement was operative, and whether the matter should then be stayed under
article 8.
19. The CHAIRMAN said that, in his opinion, the arbitration proceedings were clearly
terminated and the arbitration agreement could no longer be invoked before a court.
P 519
P 520
20. Mr. GOH (Singapore) said that his delegation supported the reintroduction of article 17.
Since it might be abused for delaying purposes, however, he also saw merit in the Austrian
proposal as amplified by the representative of the United Kingdom.
21. Mr. RAMADAN (Egypt) was in favour of maintaining article 16(3) as it stood. If a party
wished to dispute the arbitral tribunal's ruling that it had jurisdiction, it must wait until
after the issuing of the award.
22. Mr. SEKHON (India) said that his delegation had originally preferred the revival of
article 17 but could accept the compromise solution suggested by the Chairman. There had
been some debate on whether the court would have jurisdiction to intervene in the case of
an interlocutory order as well as in that of an interim award. His delegation believed that
it was the substance of the order which mattered and not the form.
23. Mr. HOLTZMANN (United States of America) said that his delegation considered the
question extremely serious from the point of view of the acceptability of the model law
and of the whole future of the institution of arbitration. Given the potential for delay in the
system suggested, he thought it unlikely that anyone would choose to go to arbitration at
all. The suggested compromise incorporated some of the worst features of the possibilities
for delay.
24. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that a solution
residing in the retaining article 16(3) without article 17 would be totally unacceptable to
the profession as it would place arbitrators in an impossible position. For example, a
question raised as to the jurisdiction of an arbitral tribunal might involve many difficult
points, including both elaborate questions of fact to be tried on evidence and difficult
points of law. It was altogether unacceptable to force the arbitrators in these
circumstances to go on with the proceedings and reach an award after a long and
expensive hearing only to have the award challenged under articles 34 and 36. In his
experience, far from resisting applications to the court, arbitrators were in favour of a
court ruling. They would make their own ruling on a point of law to the best of their ability
but they would not wish to proceed further until it had been decided whether that ruling
was right or wrong. Some possibility of control by the court at an early stage was thus
desirable. The arbitrators should certainly have the option, at their discretion, of joining
the question of jurisdiction to the merits of the case, but they should also have the option
of giving their best ruling on the legal question and then having it decided by the court.
Since, according to the Chairman's suggestion, the arbitration would end if the arbitrators
were to decide that they had no jurisdiction, they would almost certainly rule that they
had, despite any doubts they might have, in the understanding that there would be a court
decision on the matter at an early stage. His organization could therefore support an

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 optional intermediate solution. Whether to go further and respect the wishes of the parties
to force the arbitrators to go to the court depended how far arbitrators were trusted. He
concurred in the view of the observer for the International Council for Commercial
Arbitration that, in general, arbitrators were to be trusted. The provisions of the model law
ought to go further only if it was believed to be absolutely necessary in the interests of the
parties.
P 520
P 521
25. Mr. SCHUMACHER (Federal Republic of Germany) supported the Austrian proposal. His
main concern was that whatever solution was adopted, the arbitration procedure should
not be stopped by an appeal to the court.
26. Mr. SCHUETZ (Austria), explaining his proposal, said that his delegation's basic idea had
been that there should be court control as early as possible but its position was a flexible
one. If the arbitral tribunal made a ruling on jurisdiction in conjunction with the award on
the merits, the decision on jurisdiction would be taken in the setting aside procedure. If,
however, the arbitral tribunal made a preliminary decision on jurisdiction, his delegation
would propose a system similar to that set out in article 13(3).
27. Mr. LOEFMARCK (Sweden) said he was in favour of retaining article 16(3) as it stood and
did not wish article 17 to be reintroduced. If the arbitral tribunal found that it had no
jurisdiction, then the competent body must be the court according to the rules of general
jurisdiction. No one could be prevented from bringing a dispute before a court, unless
there was a valid arbitration clause but it was precisely that question which the court had
to decide if the parties were not agreed. If article 17 was reintroduced, it might be possible
for the court specified in article 6 to reach a different decision from the court which should
properly take up the dispute. His delegation found that possibility quite unacceptable.
28. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that in the course of
deliberations it had been pointed out that the arbitration proceedings might continue and
that the arbitral tribunal might even take a decision on substance while the question of
jurisdiction was still under consideration by the court. It should, however, be realized that
in such a case, the arbitral award would be deprived of legal significance pending the
court decision on jurisdiction. It was impossible to set a limit on the time it might take for
that matter to be decided by the court of first instance and even more so by the appeal
court. In fact, the attempt to speed up proceedings might merely result in considerable
delay. However, he had been impressed by the argument of the observer for the Chartered
Institute of Arbitrators that in difficult cases the arbitrators themselves were interested in
having the question of jurisdiction settled by the court. As a compromise, the model law
might therefore cover the possibility of the arbitral tribunal taking, at its discretion, an
interlocutory decision on jurisdiction in complex cases which could be appealed to the
court. But at the same time, there should not be a rule making it possible in all cases
without exception to resort to the court for a decision on the arbitrator's jurisdiction.
29. The CHAIRMAN said the majority appeared to favour allowing the question of the
jurisdiction of the arbitral tribunal to be decided by a court at an earlier stage than the
award. However, not many members of the Commission were in favour of the
reintroduction of article 17. It would appear to be easiest to find a compromise on the
basis of the Austrian proposal. It was true that it might be used for delaying tactics but if
the court proceedings on jurisdiction were sufficiently delayed, they could always be
P 521 joined to the appeal proceedings against the award. He therefore suggested that the
P 522 Secretariat, with the assistance of the Austrian representative, should draft a text for
further consideration by the Commission.
30. Mr. GRIFFITH (Australia) observed that both the United Kingdom delegation and his own
delegation had associated themselves with the Austrian proposal if article 17 was not to be
reintroduced. He suggested that the United Kingdom representative might assist the
Secretariat together with the Austrian representative.
31. The CHAIRMAN suggested that the Australian representative might also assist the
Secretariat.
32. Mr. MTANGO (United Republic of Tanzania) said that the possibility of resurrecting
article 17 should be left open in case the Austrian proposal did not prove satisfactory.
33. Mr. HOLTZMANN (United States of America) said that no one had spoken against the
Norwegian proposal to the effect that a challenge to jurisdiction should not only be
regarded as an action to set aside an award but also as a defence to a court action for
recognition and enforcement of an award. The Austrian representative's draft might
include that point.
34. The CHAIRMAN suggested that matter would be more appropriately discussed in
conjunction with article 36.
35. It was so agreed.
[12 June 1985, 2:00 p.m., A/CN.9/SR.320]
Article 16. Competence to rule on its own jurisdiction (continued)
Article 16(3) (A/CN.9/XVIII/CRP.8)

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 12. The CHAIRMAN [Mr. LOEWE (Austria)], introducing the proposed amendment to article
16(3) (A/CN.9/XVIII/CRP.8), (*) said it constituted a reasonable compromise between two
divergent approaches. He drew attention to the two alternative time–limits indicated in
square brackets.
13. Mr. SZURSKI (Observer for Poland) said that he had doubts about certain expressions in
the proposed amendment. First, the reference in the second sentence to “a preliminary
ruling” was inappropriate; the reference should be rather to a ruling on a preliminary
P 522 question, which ruling should be final. Secondly, mention was made of a “notice of that
P 523 ruling” but it was not clear what kind of notice was intended: was it to be an order of the
court? Thirdly, it would be preferable to replace the phrase “to decide the matter” by “to
decide on the jurisdiction.” However, in his view, any decision or intervention by the court
in the proceedings of the arbitral tribunal should be provided for only at the stage of
setting aside the award. He would suggest a text on the following lines: “At the request of a
party, the ruling, as a preliminary question, should be made in the form of a preliminary
award, from which each party may resort to the court specified in article 6 within 30 days
after its receipt. While the question of jurisdiction is pending with the court, the arbitral
tribunal may, and at the request of a party shall, continue the arbitral proceedings.”
14. The CHAIRMAN said it was impossible to reopen the original debate on the article. He
asked the Commission to concentrate on the question of the desirable time–limit to be
imposed.
15. Mr. REINSKOU (Observer for Norway) said his delegation would prefer 30 days. He had
difficulty in accepting that the court specified in article 6 should be empowered to give a
final decision on such an important matter as the jurisdiction of the arbitral tribunal. There
should either be provision for appeal to a higher court under article 16 or it should be
possible to reopen the matter under the setting aside procedure.
16. Mr. BROCHES (Observer, International Council for Commercial Arbitration) enquired
what would happen if a party did not take advantage of its right of recourse to the court
under article 16(3). Could that fact be regarded as a waiver if that party subsequently
wished to act under article 34 to set aside the entire award, including jurisdiction?
17. The CHAIRMAN said that it would be a question of national procedural law on the
authority of judicial decisions (res judicata).
18. Mr. GRIFFITH (Australia) said 15 days was too short a period for his country in the
context of international arbitration. It was his delegation's understanding that article 21(4)
of the UNCITRAL Arbitration Rules was subsumed in article 16(3). If such was the case, he
did not wish to suggest any change in the text and would leave the matter to the discretion
of the arbitrators in each particular case.
19. Mr. MOELLER (Observer for Finland) said that a period of 15 days was somewhat short,
although the period need not necessarily be as long as 30 days. With regard to the
concluding phrase, it was his understanding that the continuation of the arbitral
proceedings could include the making of the award. He did not wish any change in the text,
a record in the report would suffice.
20. Mr. de HOYOS GUTIERREZ (Cuba) pointed out that, owing to an error in the Spanish text,
the decision had been described as subject to appeal.
21. The CHAIRMAN said that the point had been noted by the Secretariat.
P 523 22. Sir Michael MUSTILL (United Kingdom) said that in the United Kingdom for many years
P 524 the challenge time had been six weeks. In the interests of speeding up arbitration
proceedings, it had been shortened to three weeks but that had generally been regarded
as a mistake in the context of international arbitration. He also noted that the text made
no provision for the court to extend the period in cases of hardship. He did not think that
15 days was a practical possibility.
23. Mr. SAMI (Iraq) said that 15 days was very short; he favoured 30 days. The phrase “such a
request is pending” was ambiguous and he suggested that it should be replaced by: “which
request has not been decided by the court.”
24. Mr. ROEHRICH (France) said he had considerable difficulty with the compromise of
introducing a new recourse to the courts in article 16(3), which meant that article 34 would
no longer provide the only means of recourse as the Secretariat's commentary on that
article suggested ([Seventh Secretariat Note,] A/CN.9/264, [Art. 16], para. 1). However, since
such was the case, he thought that the additional recourse should be as limited as
possible. There should certainly be no question of appeal from the decision of the court
and the period should not be longer than 15 days. There were specific provisions in
national legislation for extending that period in cases where the distance separating the
parties concerned was considerable.
25. Mr. GRIFFITH (Australia) said that the same arguments were valid for extending the
period in article 13 from 15 to 30 days.
26. Mr. SZURSKI (Observer for Poland) said that 15 days was not a practical period not only
for reasons of distance but also because of the need for consultations.
27. Mr. HOLTZMANN (United States of America) noted that so far only one speaker had

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 favoured a period of 15 days. He himself supported a 30–day period.
28. The CHAIRMAN said that, if there were no further comments, he would take it that the
Commission agreed to specify a period of 30 days in article 16(3) and, for reasons of
consistency, also in article 13; it was understood that 30 days meant 30 calendar days.
29. It was so decided.
[20 June 1985, 3:00 p.m., A/CN.9/SR.332]
Article 16 [as revised by the Drafting Group] (*)
40. Mr. SAMI (Iraq) said that paragraph (3) of the Arabic version still referred in brackets to
alternative periods of 15 or 30 days. The reference to 15 days and the brackets should be
deleted.
41. Mr. VOLKEN (Observer for Switzerland) noted that in the French version the word
“pouvoir” in the heading of the article had been changed to “compétence.” He thought that
the word “pouvoir” should be retained; the drafting group had not altered it in the heading
of article 18.
P 524
P 525
42. After a discussion in which the CHAIRMAN [Mr. LOEWE (Austria)], Mr. ROEHRICH (France)
and Mr. VOLKEN (Observer for Switzerland) took part, the CHAIRMAN asked if the French–
speaking delegations would accept the present wording of the French version of the
heading.
43. It was so agreed.
44. Mr. HERRMANN (International Trade Law Branch) suggested that the Commission,
bearing in mind the discussion earlier in the meeting on article 6, might wish to delete the
words “or other authority.” [Editors' Note: In the discussion referred to, the Commission
agreed that the functions referred to in Article 16(3) could be performed only by a court and
not by another authority. See pp. 254–55 supra.]
45. Mr. VOLKEN (Observer for Switzerland) said that if a State wished to appoint an
authority other than a court to perform the function referred to in article 16(3), it should
not be prevented from doing so.
46. Mr. GRIFFITH (Australia) said that the words “or other authority” should be retained, in
order to ensure consistency with article 13(3).
47. Mr. SEKHON (India) pointed out that, as indicated in the draft report
(A/CN.9/XVIII/CRP.2/Add.9, para. 13 (*) ), the Commission had decided to provide for
instant court control in article 16(3) along the lines of the solution adopted in the article
13(3).
48. Mr. LEBEDEV (Union of Soviet Socialist Republics) suggested that the words “court or
other authority specified in article 6” should be amended to read “competent court.”
49. Mr. SAMI (Iraq) said that the functions referred to in article 16(3) could only be
performed by a court. An explanatory note to article 16(3) might be provided to that effect.
50. The CHAIRMAN said that, if there were no objections, he would take it that the
Commission wished to delete the words “or other authority.”
51. It was so decided.
52. Article 16, as amended, was adopted, subject to the correction in the Arabic version
requested by the representative of Iraq.
COMMISSION REPORT
A/40/17 (21 AUGUST 1985)
Article 16. Competence to rule on own jurisdiction
149. The text of article 16 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
P 525
P 526
Paragraph (1)
150. The Commission was agreed that the words “including any objections with respect to
the existence or validity of the arbitration agreement” were not intended to limit the
“Kompetenz–Kompetenz” of the arbitral tribunal to those cases where a party had raised an
objection. Consequently, the arbitral tribunal could decide on its own motion if there were
doubts or questions as to its jurisdiction, including the issue of arbitrability.
151. As regards the power given to the arbitral tribunal in paragraph (1), concern was
expressed that the provision would not be acceptable to certain States which did not grant
such power to arbitrators or to those parties who did not want arbitrators to rule on their
own jurisdiction. It was stated in reply that the principle embedded in the paragraph was
an important one for the functioning of international commercial arbitration; nonetheless,
it was ultimately for each State, when adopting the model law, to decide whether it wished

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 to accept the principle and, if so, possibly to express in the text that parties could exclude
or limit that power.
152. It was noted that the apparent vigor of the English words “has the power to rule” were,
for example, not reflected in the French wording “peut statuer.” The Commission, after
deliberation, decided to use in all languages the less vigorous wording “may rule” without
thereby intending to deviate in substance from the corresponding wording used in article
21(1) of the UNCITRAL Arbitration Rules.
153. The Commission adopted paragraph (1) as so amended.
Paragraph (2)
154. It was stated that the third sentence of paragraph (2) was too imprecise in that it
referred to the indication of the arbitral tribunal's intention to decide on a matter alleged
to be beyond the scope of its authority. It was pointed out that such intention would
normally be clear only when there was an award covering that matter. It was, therefore,
suggested that the sentence should be replaced by a provision modeled on article V(1) of
the 1961 Geneva Convention [European Convention on International Commercial Arbitration,
484 U.N.T.S. 349,] to the effect that the plea must be raised as soon as the question on
which the arbitral tribunal was alleged to have no jurisdiction was raised during the
arbitral proceedings.
155. It was recognized that the proposed text was more precise but also more rigid than the
current text. For instance, it would cover not only those instances where there was an
indication of the intention of the arbitral tribunal itself, e.g., where it requested or
examined evidence relating to a matter outside its scope of authority, but also the case
where one party in its written or oral statements raised such a matter. In such a case,
under the proposed text the other party would have to raise his objection promptly. The
concern was expressed that parties who were not sophisticated in international
commercial arbitration might not realize that a matter exceeding the arbitral tribunal's
jurisdiction had been raised and that they were compelled to object promptly. Moreover,
it was suggested that in some cases the governing law, and therefore limitations on
arbitrability of certain disputes, might not be determined until the time of award, making
P 526 an earlier plea impossible. As a result, failure to raise the plea at an earlier time should
P 527 not necessarily preclude its use in setting aside proceedings or in recognition and
enforcement proceedings.
156. The Commission, after deliberation, adopted paragraph (2), subject to modification of
the third sentence along the following lines: “A plea that the arbitral tribunal has exceeded
the scope of its authority shall be raised as soon as the question on which the arbitral
tribunal is alleged to have no jurisdiction is raised during the arbitral proceedings.”
Paragraph (3)
157. The Commission adopted the principle underlying paragraph (3), namely that the
competence of the arbitral tribunal to rule on its own jurisdiction was subject to court
control. However, there was a divergence of views as to when and under what
circumstances such resort to a court should be available.
158. Under one view, the solution adopted in paragraph (3) was appropriate in that it
permitted such court control only in setting aside proceedings and, as should be clarified
in the text, in the context of recognition and enforcement of awards. That solution was
preferred to instant court control since it would prevent abuse by a party for purposes of
delay or obstruction of the proceedings.
159. Under another view, paragraph (3) should be modified so as to empower the arbitral
tribunal to grant leave for an appeal to the court or in some other way, for instance by
making its ruling in the form of an award, permit instant court control. It was stated in
support that such flexibility was desirable since it would enable the arbitral tribunal to
assess in each particular case whether the risk of dilatory tactics was greater than the
opposite danger of waste of money and time. As regards that possible danger, the
suggestion was made to reduce its effect by providing some or all of the safeguards
envisaged in the context of court control over a challenge of an arbitrator in article 13(3),
i.e., short time–period, finality of decision, discretion to continue the arbitral proceedings
and to render an award.
160. Under yet another view, it was necessary to allow the parties instant resort to the
court in order to obtain certainty in the important question of the arbitral tribunal's
jurisdiction. Various suggestions were made for achieving that result. One suggestion was to
adopt the solution found in article 13(3) and thus to allow immediate court control in each
case where the arbitral tribunal ruled on the issue of its jurisdiction as a preliminary
question. Another suggestion was to require the arbitral tribunal, if so requested by a party,
to rule on its jurisdiction as a preliminary question, which ruling would be subject to
immediate court control. Yet another suggestion was to reintroduce in the text previous
draft article 17. (8) It was pointed out that, if draft article 17 were reintroduced in the
model law, it might not be necessary to adopt for the concurrent court control in article
16(3) the strict solution which would exclude any discretion on the part of the arbitral
tribunal.
P 527
P 528

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 P 528
161. The Commission, after deliberation, decided not to reintroduce previous draft article
17 but to provide for instant court control in article 16(3) along the lines of the solution
adopted in article 13(3). The Commission adopted article 16(3) in the following modified
form, subject to redrafting by the Drafting Group:
“(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this
article either as a preliminary question or in an award on the merits. If the
arbitral tribunal determines in a preliminary ruling that it has jurisdiction, any
party may request, within thirty days after having received notice of that ruling,
the Court specified in article 6 to decide the matter, which decision shall not be
subject to appeal; while such a request is pending, the arbitral tribunal may
continue the arbitral proceedings.”
162. The Commission decided to align article 13(3) to that modified version of article 16(3)
and thus to replace in article 13(3) the time–period of fifteen days by a time–period of
thirty days and the expression “final” by such words as “not subject to appeal.”
163. It was noted that the second sentence of article 16(3) did not cover the case where the
arbitral tribunal ruled that it had no jurisdiction. Consequently, in such a case article 16(3),
read together with article 5, did not preclude resort to a court for obtaining a decision on
whether a valid arbitration agreement existed. It was recognized that a ruling by the
arbitral tribunal that it lacked jurisdiction was final as regards its proceedings since it was
inappropriate to compel arbitrators who had made such a ruling to continue the
proceedings.
[Editors' Note: In connection with the discussion of Article 34, the Commission touched on the
question of the effect of a party's failure to raise a jurisdictional objection under Article 16.
After discussing the question briefly, the Commission “decided not to embark on an in-depth
discussion with a view to elaborating a comprehensive provision covering all eventualities
and details.” See paragraphs 288–89 of this document, pp. 1000–01 infra, and Summary
Record, A/CN.9/SR.317, paras. 44–48, pp. 972–73 infra, both appearing in the section on Article
34.]
P 528

References
1) 484 U.N.T.S. 349 (Geneva 1961).
2) 575 U.N.T.S. 159 (Washington 1965).
3) Seventh Secretariat Note, A/CN.9/264, Art. 16, para. 1, p. 508 infra.
4) Commission Report, A/40/17, para. 151, p. 526 infra.
5) See First Draft, A/CN.9/WG.II/WP.38, Art. 29, n. 17, p. 493 infra.
6) The phrase in the Model Law that the tribunal's power includes ruling on “any
objections” to the existence and validity of the arbitration agreement gives merely a
nonexhaustive example of an important type of jurisdictional problem, and does not
limit the tribunal's competence to those cases in which a party has raised an
objection. See Commission Report, A/40/17, para. 150, p. 526 infra; see also Szurski,
Arbitration Agreement and Competence of the Arbitral Tribunal, in UNCITRAL's Project
for a Model Law on International Commercial Arbitration 53, 75 (ICCA Congress Series No.
2, P. Sanders ed. 1984).
7) Commission Report, A/40/17, para. 152, p. 526 infra.
8) Id., para. 151.
9) Id.; see Summary Record, A/CN./9/SR.315, paras. 24–26, p. 512 infra.
1) . The provision on this last point was modeled on Article 18(4) of the Strasbourg
Uniform Law, European Convention Providing a Uniform Law on Arbitration, Europ. T.S.
No. 56 (Annex) (Strasbourg 1966). First Draft, A/CN.9/WG.II/WP.38, Art. 28(2), n. 15, p. 492
infra. See also Seventh Secretariat Note, A/CN.9/264, Art. 16, para. 6, p. 509 infra.
11) See generally Szurski, supra, at 76–77. The Model Law provision was modeled on Article
21(2) of the UNCITRAL Arbitration Rules. First Draft, A/CN.9/WG.II/WP.37, Art. 4, n. 13, p.
492 infra.
12) See Seventh Secretarial Note, A/CN.9/264, Art. 16, para. 2, p. 508 infra; First Secretariat
Note, A/CN.9/207, para. 58, p. 488 infra.
13) See Seventh Secretariat Note, A/CN.9/264, Art. 16, para. 3, pp. 508–09 infra.
14) See Commission Report, A/40/17, para. 155, pp. 526–27 infra.
15) Id.
16) Id. (“failure to raise the plea at an earlier time should not necessarily preclude its use
in setting aside proceedings or in recognition and enforcement proceedings”).
17) As already noted, not all pleas made for the first time in a setting aside or
enforcement proceeding will be untimely. Some matters that are outside the scope of
authority of the arbitral tribunal might be raised for the first time in the award.
Moreover, a court should probably feel free to admit an otherwise late plea if the
delay is justified, just as the arbitral tribunal is empowered to do under Article 16(2).
See id. The question now to be considered is the effect of complete noncompliance
with Article 16(2), that is, of inadmissible, not admissible, delay in raising a plea.

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 18) Fifth Working Group Report, A/CN.9/246, para. 51, p. 502 infra.
19) The Secretariat suggested that this interpretation might appropriately be expressed in
the text of the Law. Seventh Secretariat Note, A/CN.9/264, Art. 16, paras. 8–10, p. 510
infra. See also Fourth Working Group Report, A/CN.9/245, para. 61, pp. 498–99 infra.
20) Commission Report, A/40/17, para. 288, appearing in the section on Article 34, p. 1000
infra.
21) Id., para. 289. The Commission nevertheless recognized that any preclusion would be
limited by the same exceptions noted by the Working Group and the Secretariat:
arbitrability and public policy. Id. (“It was recognized that the failure to raise such
plea could not have the effect of a waiver in all circumstances, especially where the
plea under sub–paragraph (2)(b) was that the dispute was non–arbitrable or that the
award was in conflict with public policy.”). The discussion is reflected in the Summary
Record at A/CN.9/ SR.317, paras. 44–48, appearing in the section on Article 34, pp. 972–
73 infra.
22) Commission Report, A/40/17, para. 57, appearing in the section on Article 4, p. 215
supra.
23) See Seventh Secretariat Note, A/CN.9/264, Art. 16, para. 3, pp. 508–09 infra.
24) See the commentary on Article 4, p. 200 supra.
25) The Working Group added the condition that the provision be a nonmandatory one
specifically in order to “soften” the effect of the implied–waiver rule. See Fourth
Working Group Report, A/CN.9/245, para. 178, appearing in the section on Article 4, pp.
203–04 supra. “The prevailing view … was to retain a waiver rule but in a less rigid form
in order to exclude its operation in cases of fundamental violations of procedural
provisions.” Id. para. 177.
There is relatively little legislative history on the requirement that the objecting party
have “proceed[ed] with the arbitration.” See the commentary on Article 4, p. 200 supra.
26) The argument advanced here would also apply to certain objections that could form
the basis of challenges to arbitrators under Article 13. See the commentary on that
Article, pp. 408–10 supra.
27) First Working Group Report, A/CN.9/216, para. 82, p. 491 infra; Commission Report,
A/40/17, para. 157, p. 527 infra.
28) See, e.g., Commission Report, A/40/17, paras. 158–159, p. 527 infra; Seventh Secretariat
Note, A/CN.9/ 264, Art. 16, para. 13, p. 511 infra.
29) First Draft, A/CN.9/WG.II/WP.38, Arts. 28(3), 30, pp. 492–93 infra.
30) Second Draft, A/CN.9/WG.II/WP.40, Arts. IV(3), XIII(3), pp. 495–96 infra.
31) Fourth Draft, A/CN.9/WG.II/WP.48, Arts. 16, 17, pp. 500–01 infra. The Third Draft did not
deal with the question addressed by Article 16.
32) Fourth Secretariat Note, A/CN.9/WG.II/WP.50, para. 18, p. 501 infra.
33) Fifth Draft, A/CN.9/246 (Annex), Art. 8, appearing in the chapter on Article 8, pp. 321–22
supra and Art. 16(3), p. 504 infra.
34) See Commission Report, A/40/17, paras. 159, 161, pp. 527, 528 infra.
35) Cf. UNCITRAL Arbitration Rules, Art. 21(4) (“In general, the arbitral tribunal should rule
on a plea concerning its jurisdiction as a preliminary question.”).
36) Commission Report, A/40/17, para. 163, p. 528 infra; Seventh Secretariat Note,
A/CN.9/264, Art. 16, para. 15, p. 512 infra.
37) See Commission Report, A/40/17, para. 163, p. 528 infra; accord Seventh Secretariat
Note, A/CN.9/ 264, para. 15, p. 512 infra; Fourth Working Group Report, A/CN.9/245,
para. 64, p. 499 infra; see also Second Working Group Report, A/CN.9/232, para. 157, p.
495 infra.
22) Cf. e.g. article 21 UNCITRAL Arbitration Rules.
12) Discussion and conclusion of the Working Group in [the First Working Group Report,]
A/CN.9/216, para. 34.
13) This draft provision is modeled on article 21(2) of the UNCITRAL Arbitration Rules. The
related issue “Pleas as to arbitrator's jurisdiction” will be dealt with under V.4,
following the classification scheme adopted in the report [First Secretariat Note].
However, it may well be combined later with the provision on separability.
12) Relevant discussion and conclusions of the Working Group in [the First Working Group
Report,] A/CN.9/216, paras. 81–83.
13) This sentence is modeled on article 21(3) of the UNCITRAL Arbitration Rules.
14) The two sentences in parenthesis are modeled on article V(1) of the European
Convention on International Commercial Arbitration [484 U.N.T.S. 349] (Geneva, 1961;
hereinafter referred to as 1961 Geneva Convention).
15) This draft provision is modeled on article 18(4) of the Uniform Law annexed to the
European Convention [Providing a Uniform Law on Arbitration, Europ. T.S. No. 56]
(Strasbourg, 1966).
16) This draft provision is modeled on article VI(3.) of the 1961 Geneva Convention.
17) This draft article is modeled on article 21(1) and (4) of the UNCITRAL Arbitration Rules.
18) The reference to article 4 need not be retained if draft article 4 itself is incorporated
here (cf. foot–note 13 in [the First Draft,] A/CN.9/WG.II/WP.37).
19) The reference is to a future draft article on the subject “VI. Setting aside or annulment
of award,” still to be considered by the Working Group [Art. 34 in the final text].
19) The reference is to a future draft article on the subject “VI. Setting aside or annulment
of award,” still to be considered by the Working Group [Art. 34 in the final text].
9) [Editors' Note: Footnote 9 appears in the section on Article 6, p. 244 supra.]

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 10) Provisions which “provide otherwise” may either restrict the rule under (a), e.g., article
X(3) [Art. 13 in the final text] which entitles only a party to resort to this Court, or widen
the rule by entitling others, such as individual arbitrators, e.g., article VIII(3) [Art. 11] or
XI(2) [Art. 14].
11) Provisions which “provide otherwise,” i.e., allow an appeal, might, for example, be
envisaged in respect of decisions on setting aside, or on recognition and enforcement,
of arbitral awards (to be dealt with in [a second part of the Second Draft,]
A/CN.9/WG.II/WP.42 [see the sections on Arts. 34 & 36, pp. 931–34, 1077–80 infra]).
18) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 83–86. It may be recalled here that, according to a decision
by the Group, the procedural issues previously dealt with in (now deleted) paragraph
(2), i.e. right to request the Court to act and finality of the Court's decision, should be
considered in the context of the individual provisions entrusting certain functions to
the Court.
23) [Fifth Working Group Report,] A/CN.9/246, para. 51.
24) [Fifth Working Group Report,] A/CN.9/246, para. 55.
25) [Fifth Working Group Report,] A/CN.9/246, paras. 53–56. The text of article 17, as
considered by the Working Group, was as follows:
[same as Fourth Draft, supra].
26) [Fifth Working Group Report,] A/CN.9/246, para. 56.
52) As regards sub–paragraph (i), the reference to the law of “this State” is tentative and
controversial; see commentary to article 34, para. 12 [pp. 966–67 infra].
53) If the Commission were to accept this interpretation, it may wish to consider
expressing this understanding in the text of article 16, possibly combined with a
provision on the effect, and its limits, of a waiver or submission, as discussed below,
paras. 8–10.
54) The Working Group, at its seventh session, decided to delete, at the end of the first
sentence of article 16(2), the words “or, with respect to a counter–claim, in the reply to
the counter–claim,” on the understanding that any provisions of the model law
referring to the claim would apply, mutatis mutandis, to a counter–claim ([Fifth
Working Group Report,] A/CN.9/246, para. 196).
55) [Fifth Working Group Report,] A/CN.9/246, para. 51.
56) This understanding would also be in line with the one accepted by the Working Group
on the effect of a waiver under article 4, concerning non–compliance with a non–
mandatory provision of the model law or a clause of the arbitration agreement (see
commentary to article 4, para. 6 [p. 209 supra]).
57) The reason for referring in article 16(3) only to the application for setting aside was
that the thrust of this provision concerns the faculty of an objecting party to attack the
arbitral tribunal's ruling by initiating court proceedings for review of that ruling.
However, the Commission may wish to consider the appropriateness of adding, for the
sake of clarity, a reference to recognition or enforcement proceedings, which, although
initiated by the other party, provide a forum for the objecting party to invoke lack of
jurisdiction as a ground for refusal (under article 36(1)(a)(i)).
58) [Fifth Working Group Report,] A/CN.9/246 paras. 52–56. The text of article 17, which
covered not only the case of article 16(3), i.e., ruling of arbitral tribunal affirming its
jurisdiction, was as follows: [same as Fourth Draft, supra].
59) It may be noted that the present solution in article 16(3) does not give the arbitral
tribunal that option, irrespective of whether a ruling on jurisdiction would be
classified as an “award”; as to the desirability of including in the model law a
definition of “award,” see commentary to article 34, para. 3 [p. 964 infra; see also the
section on Article 2, in which materials on the proposed definition of the term “award” are
collected, pp. 150–82 supra].
60) [Fourth Working Group Report,] A/CN.9/245, paras. 62–64. The deleted provision read
as follows: “A ruling by the arbitral tribunal that it has no jurisdiction may be
contested by any party within 30 days before the Court specified in article [6].”
*) [Editors' Note: This Conference Room Paper, dated 10 June 1985, read:
Article 16(3)
PROPOSAL BY THE SECRETARIAT
Based on the proposal made by the representative of Austria and tentatively adopted by
the Commission, the following modified wording of article 16(3) is submitted for
consideration by the Commission:
“(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this
article either as a preliminary question or in an award on the merits. If the
arbitral tribunal determines in a preliminary ruling that it has jurisdiction, any
party may request, within [fifteen] [thirty] days after having received notice of
that ruling, the Court specified in article 6 to decide the matter, which
decision shall not be subject to appeal; while such a request is pending, the
arbitral tribunal may continue the arbitral proceedings.”]

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 *) [Editors' Note: The Drafting Group's revision was the same as the final text except that it
included the words “or other authority” after the word “court” in paragraph 3.]
*) [Editors' Note: The “draft report” was the draft text of the final Commission Report. The
draft report was distributed in segments during the Commission's session and was
discussed and adopted at the end of the session. The paragraph of the draft report
referred to here was identical to paragraph 161 of the final Commission Report, p. 528
infra, except for a minor wording change: the draft report did not contain the phrase
“subject to redrafting by the Drafting Group” following the word “form.”]
8) The text of draft article 17, which was deleted by the Working Group at its last session
([Fifth Working Group Report,] A/CN.9/246, paras. 52–56), was as follows: [same as
Fourth Draft, pp. 500–01 supra].

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Document information
UNCITRAL Model Law, Chapter IV, Article 17 – original
Publication version [Power of arbitral tribunal to order interim
A Guide to the UNCITRAL measures]
Model Law on International
Commercial Arbitration: Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a
Legislative History and party, order any party to take such interim measure of protection as the arbitral tribunal
Commentary may consider necessary in respect of the subject–matter of the dispute. The arbitral
tribunal may require any party to provide appropriate security in connection with such
measure.
Organization
Commentary
United Nations Commission
on International Trade Law Article 17 provides that, unless otherwise specified by the parties, the arbitral tribunal has
the power to order interim measures of protection in respect of the subject matter of the
dispute. The Article is related to, but distinct from, Article 9, which states that it is not
Promulgation incompatible with the arbitration agreement for a party to request from a court — or for
the court to grant — an interim measure of protection. Unlike Article 17, Article 9 does not
21 June 1985 grant any authority but only states the principle that certain action, if permitted under
other law, is not inconsistent with arbitration. As noted below, the Model Law does not
touch on questions of court enforcement of any interim measures ordered under Article 17.
Legislation number (1)
United Nations Document The legislative history of Article 17 reflects the Working Group's resolution of several
A/40/17, Annex I fundamental issues of policy. First, differing views were expressed at several sessions over
whether the power of the arbitral tribunal to order interim measures should be deemed to
be implied in an arbitration agreement unless otherwise specified, or whether the parties
should be required to confer this power explicitly. (2) Ultimately, the Working Group opted
Bibliographic reference for an implied power. (3)
'UNCITRAL Model Law, Second, the Working Group addressed several times the scope of this implied power. There
Chapter IV, Article 17 – was some sentiment for specifically limiting the measures that could be taken to
original version [Power of “measures for conserving, or maintaining the value of, the goods forming the subject–
arbitral tribunal to order
interim measures]', in P 530 matter in dispute,” (4) but ultimately a broader power was approved that provided for any
Howard M. Holtzmann and P 531 measures of protection in respect of the subject matter of the dispute. (5) At various
times during the legislative history the following such measures were mentioned as
Joseph Neuhaus , A Guide to possibly within the scope of this power: measures to preserve goods such as by depositing
the UNCITRAL Model Law on them with a third person or selling perishable items; (6) opening bank letters of credit; (7)
International Commercial using or maintaining machines or completing phases of construction where necessary to
Arbitration: Legislative prevent irreparable harm; (8) preserving evidence until a later stage of the proceedings; (9)
History and Commentary, and measures to protect trade secrets and proprietary information. (10) At no time, though,
(© Kluwer Law International; was it suggested that this list was exclusive or even that it covered the most common forms
Kluwer Law International of interim relief.
1989) pp. 530 - 547
A third question of policy that was addressed was the question of the arbitral tribunal's
power to enforce an interim measure it orders. The Secretariat drafted a sentence to
provide that the arbitral tribunal could request a court to render executory assistance. (11)
The Working Group ultimately decided not to address this question because it touched on
matters dealt with in laws of national procedure and court competence and would
probably be unacceptable to many States. (12) The question of execution of interim
measures is thus not dealt with in the Law and is governed by other provisions of domestic
law. In its commentary on the Working Group's draft, however, the Secretariat noted that
an arbitral tribunal was empowered to take a failure to obey an order for interim measures
into account in its final decision, particularly in any assessment of damages. (13)
The text of Article 17 was modeled on Article 26(1) and (2) of the UNCITRAL Arbitration
Rules. (14) The Working Group and the Commission made a number of changes in that
model. These changes, though, serve more to clarify than to narrow or expand the power
provided to the arbitral tribunal.
First, the provision in the Model Law omits the nonexclusive list of examples provided by
the Rule: “including measures for the conservation of the goods forming the subject–matter
in dispute, such as ordering their deposit with a third person or the sale of perishable
P 531 goods.” This list was dropped in the process of the debate on whether the arbitral
P 532 tribunal's power should be limited to such measures, or to a similar specified list of
measures. (15) In deciding that the tribunal's power should not be so limited, the Working
Group also suggested that the list of examples was “too much geared to only one type of
transaction, i.e., sale of goods,” and the list was dropped. (16) The operative tests in the two
documents are nevertheless effectively identical: “any interim measure [that the arbitral
tribunal] deems necessary in respect of the subject–matter of the dispute” in the case of
the Rules, and “such interim measure of protection as the arbitral tribunal may consider
necessary in respect of the subject–matter of the dispute” in the Law.
A second change from the UNCITRAL Arbitration Rule provision was that the sentence

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 regarding security in Article 17 uses more general language — “appropriate security in
connection with such measure” instead of “security for the costs of such measure.” The
Commission made this change to make clear that the security required could cover not
only the direct costs of imposing the measure itself but also consequential damages to a
winning party resulting from imposition of the measure against that party. (17) In making
the change, however, the Commission noted that the modification should not be
interpreted to suggest that the UNCITRAL Rules provision did not cover such security for
damages. (18)
Third, the provision in the Model Law is explicitly limited to orders directed to the parties,
not to third parties. Although this limitation was said to make the Model Law more
restrictive than the UNCITRAL Rules Provision, (19) it is unlikely that an arbitral tribunal
operating under the Rules—which are, after all, merely an agreement among parties—has
the power to order a third party to take any action unless a law permits it; in a later
Secretariat report, the restriction was said to follow from the private contractual nature of
arbitration. (20)
Finally, the Model Law provision is limited to measures that the arbitral tribunal can order,
excluding any measures that the arbitral tribunal might itself take. (21) It is true that this
change gives rise to a theoretical difference between the Rules and the Law: for example
the arbitral tribunal may not under the Law itself attach or seize goods and may not itself
hire packers and shippers for the purpose of preserving goods. Because it can, however,
P 532 order the parties to deliver the goods and to hire the packers and shippers, and because
P 533 an arbitral tribunal generally requires the cooperation of the parties to make interim
measures effective even if it takes them itself, there would seem to be little practical
significance to this change.

Legislative History
FIRST SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW
A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[.… ]
IV. Arbitral procedure
[.… ]
5. Interim measures of protection
77. It is suggested that the model law contain provisions on interim measures such as
ordering the deposit of goods with a third person or the sale of perishable goods or
attachments or seizures of assets. One issue to be settled is whether the arbitral tribunal
may take such measures even without being specifically empowered to do so by the
parties. Then, it should be determined what types of measures would be included and
whether any executory assistance by courts should be provided for.
78. A court may be involved not only by lending its executory force to measures taken by
the arbitral tribunal but also by taking itself such decision in the first place if so requested
by a party. It may be considered whether such court measures and their conditions could
be regulated in the model law or whether these issues should better be left to the general
law on procedure. In either case, however, it would seem desirable to answer, probably in
the affirmative, the question whether a request for such interim measures is compatible
with the arbitration agreement and does not constitute a waiver thereof. [ … ] [Editors'
Note: This last issue — whether a request to a court for an interim measure of protection is
compatible with the arbitration agreement — was ultimately addressed in Article 9. See
generally the section on that article, pp. 332–46 supra.]
SECOND SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW:
QUESTIONS FOR DISCUSSION
A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
IV. Arbitral procedure
[.… ]
5. Interim measures of protection
P 533 25. As indicated in the report [First Secretariat Note, supra] (paras. 77–78), there are two
P 534 different types of interim measures possibly to be dealt with in the model law. First,
there are interim measures of protection which may be taken by the arbitral tribunal (e.g.,
conservation of goods or sale of perishable goods). Here the main question is whether the
arbitral tribunal may so act even without special authorization by the parties. Then, there
are interim measures (e.g., attachment and seizure of assets) which a court may take. The
question, here, is whether the availability of such relief and the procedure should be dealt

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 with in the model law at all.
Question
4–10: Should the arbitral tribunal be empowered to take interim measures of protection
even without special authorization by the parties?
Question
4–11: Should the model law deal with the involvement of courts in this respect?
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[.… ]
IV. Arbitral procedure
[.… ]
5. Interim measures of protection
Question 4–10: Should the arbitral tribunal be empowered to take interim
measures of protection even without special authorization by the parties?
65. The Working Group was of the view that the arbitral tribunal should have the power to
take certain interim measures of protection. However, divergent views were expressed as
to the scope of, and conditions to be attached to, such power.
66. As regards the scope, under one view the rule of the model law should be in accordance
with article 26, paragraph 1 of the UNCITRAL Arbitration Rules. The prevailing view,
however, was that the scope should be more restrictively defined, either by limiting the
power of the arbitral tribunal to those measures which the parties should or could
themselves take, or by listing the specific permissible measures (e.g., conservation of
goods, sale of perishable merchandise). In this connexion, it was also noted that provisions
concerning the duties of parties to preserve merchandise which are contained in the law
applicable to the substance of the dispute may have some influence on the measures
which the arbitral tribunal might take. A further possible restriction was to empower the
arbitral tribunal only to order such conservation measures, but not to take them itself.
67. The Working Group was divided on whether the arbitral tribunal should be empowered
to take interim measures of protection only upon authorization by both parties (including
P 534 reference by the parties to arbitration rules setting forth such authorization, as e.g., art. 26,
P 535 para. 1 of the UNCITRAL Arbitration Rules) or whether, failing such agreement, a request
by one party sufficed. The Working Group deferred its decision on this question.
Question 4–11: Should the model law deal with the involvement of courts in this
respect?
[Editors' Note: Paragraph 68 addresses whether to include in the Model Law a provision
stating that a request to a court for interim measures is compatible with an agreement to
arbitrate. The paragraph appears in the section on Article 9, p. 337 supra.]
69. The Working Group was agreed that, apart from such provision on compatibility, the
model law should not contain any rule dealing with the involvement of courts in taking any
interim measure of protection. As regards interim measures which only a court could take
(e.g., attachment or seizure of assets or those measures affecting third parties), it was
thought that these were an integral part of the general procedural law applied by the
court. As regards interim measures which an arbitral tribunal might take (cf. para. 66
above), it should be left to the domestic procedural law to determine whether such
measures could be enforced. It was suggested that parties who wanted enforceable
measures of protection should directly resort to the courts. It was further noted that the
legal justification and consequences of an interim measure taken by the arbitral tribunal
were linked to issues to be discussed later, such as recourse against arbitral decisions and
the effect of an (interim) award. [Editors' Note: The Working Group eventually decided not to
deal separately with “interim” awards as such, see the commentary on Article 32, pp. 867–69
infra; the question of recourse against arbitral decisions generally is dealt with in Articles 34–
36 of the Model Law.]
FIRST DRAFT
A/CN.9/WG.II/WP.37 (15 JULY 1982)
IV. Arbitral procedure
[.… ]
2.–4. Arbitration proceedings in general, evidence, experts (32)
Article 19 [Arts. 19 & 26 in the final text]
(1) The arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate

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 (a) subject to the provisions of articles 20 to 24 [Arts. 17, 20(2), 24, 25 & 26 in the final
text] and any instructions given by the parties in the arbitration agreement; (33)
[…]
P 535
P 536
[.… ]
5. Interim measures of protection (40)
Article 23 [Art. 17 in the final text] (41)
The arbitral tribunal [, if so authorized by the parties,] may order [or take], at the request
of either party, [any interim measures it deems necessary in respect of the subject–matter
of the dispute, including] measures for the conservation of the goods forming the subject–
matter in dispute, such as their deposit with a third person or the sale of perishable goods.
The arbitral tribunal shall be entitled to require security for the costs of such measures.
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .…]
Arbitral procedure
[.… ]
Arbitration proceedings in general, evidence, experts
Article 19 [Arts. 19 & 26 in the final text]
[.… ]
103. The Working Group agreed to decide to what extent the provisions of articles 20 to 24
[Arts. 17, 20(2), 24, 25 & 26 in the final text] should be mandatory in deliberations on each of
those articles.
[.… ]
Interim measures of protection
Article 23 [Art. 17 in the final text]
119. The text of article 23 as considered by the Working Group was as follows:
[same as First Draft, supra].
120. Different views were expressed whether the existence of an arbitration agreement
implied that the arbitral tribunal had the right to order an interim measure of protection.
Under one view the arbitral tribunal could order such measures only if it had been
P 536
P 537
authorized to do so by the parties. Under another view the authorization to order such
measures is presumed unless the parties excluded it expressly.
121. As to the type of interim measures which the arbitral tribunal should be authorized to
order, the view was expressed that the arbitral tribunal should be empowered to order any
interim measures of protection it deemed necessary. Under another view the interim
measures of protection which could be ordered by the arbitral tribunal should be limited,
e.g., to measures for the conservation of the goods forming the subject–matter in dispute.
122. It was suggested that as the basis for further discussion a text might be drafted which
recognized that an arbitral tribunal had an implied authority to order interim measures of
protection but that the types of interim measures of protection which could be ordered by
an arbitral tribunal should be limited. It was further suggested that it might facilitate the
agreement on the policy to be followed if the question of ordering interim measures of
protection was separated from the question of enforcement of the order.
123. It was agreed to delete the words “or take” in the second square brackets.
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
C. Arbitration and the courts
[.… ]
Article V [Art. 6 in the final text]
(1) The special Court entrusted by this Law with functions of arbitration assistance and
control [under articles VIII(2), (3), X(2)/(3), XI(2), XIII(3), XIV, XXV, XXVI … ] [Arts. 11, 13,
14, 16, 17, and 35 in the final text] shall be the … (blanks to be filled by each State
when enacting the model law). (9)
(2) Unless otherwise provided in this Law,
(a) this Court shall act upon request by any party or the arbitral tribunal; (10) and
(b) the decisions of this Court shall be final. (11)
P 537

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 P 537
P 538
[.… ]
E. Competence of arbitral tribunal
[.… ]
Article XIV [Art. 17 in the final text]
Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party,
order interim measures for conserving, or maintaining the value of, the goods forming the
subject–matter in dispute, such as their deposit with a third person or the sale of
perishable merchandise. The arbitral tribunal may require [of a party or the parties]
security for the costs of such measures. If enforcement of any such interim measure
becomes necessary, the arbitral tribunal may request [a competent court] [the Court
specified in article V [Art. 6 in the final text]] to render executory assistance.
THIRD WORKING GROUP REPORT
A/CN.9/233 (28 MARCH 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[.… ]
C. Arbitration and the courts
[.… ]
Article V [Art. 6 in the final text]
82. The text of Article V as considered by the Working Group was as follows:
[same as Second Draft, supra].
[Editors' Note: Paragraph 83 appears in the section on Article 6, p. 245 supra.]
Paragraph (2)
84. Divergent views were expressed as to the appropriateness of a provision along the lines
of paragraph (2). Under one view, the provision was useful in that it regulated some basic
features of the procedure to be followed by the Court, with the possibility of making
exceptions thereto in the model law itself. In support of subparagraph (b), it was pointed
out that it would serve the purpose of expediting the proceedings which was of special
importance in international commercial arbitration.
85. Under the prevailing view, however, the provision should not be retained. It was
pointed out that paragraph (2), in particular its subparagraph (b), infringed upon
fundamental concepts and rules of court procedure. Nevertheless, its procedural features
(right to request and finality of decision) might be included in individual provisions of the
model law entrusting the Court with certain functions.
P 538
P 539
86. The Working Group, after deliberation, decided not to retain paragraph (2) and to
consider settling the procedural questions in the context of the individual provisions
referring to the Court specified in article V.
[Editors' Note: Article XIV was not considered at this session of the Working Group nor
included in the Third Draft.]
THIRD DRAFT
A/CN.9/WG.II/WP/45 (13 JUNE 1983)
C. Arbitration and the courts
[.… ]
Article V [Art. 6 in the final text] (18)
[Editors' Note: For the text of Article V, see the section on Article 6, pp. 245–46 supra.]
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
IV. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[.… ]
Article XIV [Art. 17 in the final text]
70. The text of article XIV as considered by the Working Group was as follows:
[same as Second Draft, supra].
71. The Working Group adopted the policy underlying article XIV according to which the
arbitral tribunal had an implied power to order certain interim measures of protection.
While there was some support for the scope of possible measures as laid down in article
XIV, the prevailing view was that this scope was too limited and too much geared to only

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 one type of transaction, i.e., sale of goods. It was decided, therefore, to adopt a more
general formula (e.g., “interim measures of protection”), with a possible restriction to those
measures which the parties themselves could have achieved by agreement, thus excluding
any measures affecting the rights of third parties.
72. Divergent views were expressed on the question of enforceability as dealt with in the
last sentence of article XIV. Under one view, executory assistance by courts was desirable
P 539 and should be available not only to the arbitral tribunal but also to a party, in particular
P 540 the one favoured by the interim measure. Under another view, which the Working Group
adopted after deliberation, the last sentence should be deleted since it dealt in an
incomplete manner with a question of national procedural law and court competence and
was unlikely to be accepted by many States. It was noted that the model law, in its article
IV(2) [Art. 9 in the final text], evisaged enforcement of interim measures ordered by a court
and that the power of the arbitral tribunal under article XIV was of practical value even
without executory assistance by courts. It was understood that the deletion of the last
sentence should not be read as a preclusion of such executory assistance in those cases
where a State was prepared to render such assistance under its procedural law.
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 18. Power of arbitral tribunal to order interim measures [Art. 17 in the final text]
Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party,
order any interim measure [of protection it deems necessary in respect of the subject–
matter of the dispute]. The arbitral tribunal may require of a party or the parties security
for the costs of such measure.
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[.… ]
Article 18 [Art. 17 in the final text]
57. The text of article 18 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
58. The Working Group adopted that article, subject to the revision of the first sentence as
follows: “Unless otherwise agreed by the parties, the arbitral tribunal may, at the request
of a party, order the other party or the parties to take any interim measure of protection
which the arbitral tribunal considers necessary in respect of the subject–matter of the
dispute.”
59. The words “the other party or the parties” were inserted in order to make clear that the
power of the arbitral tribunal, which was derived from the parties, was limited to the
parties and that, therefore, such orders could not be addressed to third persons.
P 540
P 541
FIFTH DRAFT
A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 18. Power of arbitral tribunal to order interim measures [Art. 17 in the final text]
Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party,
order any party to take such interim measure of protection as the arbitral tribunal may
consider necessary in respect of the subject-matter of the dispute. The arbitral tribunal
may require any party to provide security for the costs of such measure.
SIXTH SECRETARIAT NOTE
ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[.… ]
Article 18. Power of arbitral tribunal to order interim measures [Art. 17 in the final text]
1. Austria proposes to delete this provision. Most of the national legislations relating to
perishable goods contain regulations permitting an urgent sale of the goods, and there is
no need for rules besides the existing ones. An interim measure ordered by the arbitral
tribunal (e.g., to stop the construction of a building) could put the arbitrators in a difficult
position and expose them to a claim for damages if the measure proves to be unjustified.
Therefore, the power to order interim measures of protection should only lie with the
ordinary courts.
2. India is of the view that an arbitral tribunal may be empowered to enforce interim
measures of protection.

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 3. Mexico suggests providing that the security which the arbitral tribunal may require from
a party, should cover, in addition to the costs for the interim measure of protection which
the arbitral tribunal orders, possible damage suffered by the other party if that party wins
the case.
4. Norway expresses its understanding that there has been no intention to deal in the
model law with the question of the limitation of the kind of interim measures which an
arbitral tribunal may order or the question of enforcement of the measures or the question
of the consequences of non-compliance with the measures.
5. Sweden observes that, under the Swedish legislation, a court may decide on a measure
at the request of a party who considers that he has a claim against another person and this
applies also if the dispute is to be settled by arbitration and regardless of whether the
arbitration proceedings have commenced or not. Sweden notes that article 18, if viewed in
P 541 the light of article 5, appears to give the arbitral tribunal exclusive authority to order an
P 542 interim measure of protection. The provision should be clarified so as to show what is
really intended. It should also be made clear whether an interim measure ordered by an
arbitral tribunal is mandatory or what the consequences are if a party does not comply
with the order.
6. Norway proposes to use a different expression for the measures dealt with in this article
in order to avoid confusion with the measures ordered by a court as dealt with in article 9.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[.… ]
Article 18. Power of arbitral tribunal to order interim measures [Art. 17 in the final text]
1. The Sudan proposes the following text, which is an amalgamation of different
international arbitration rules, in replacement of the text of this article:
“Unless otherwise agreed by the parties, the arbitral tribunal, on its own motion
or at the request of either party, may take any interim measure of protection as
it considers fit in respect of the subject–matter of the dispute, such as ordering
the deposit of goods, if any, with a third party or the opening of a banker's
credit or the sale of perishable goods.”
2. AALCC [Asian–African Legal Consultative Committee] recommends that the title of this
article be “Interim measures,” and proposes re–formulating the text of the article as
follows:
“Unless otherwise agreed by the parties, the arbitral tribunal may, at the
request of one of the parties, order such interim measures of protection as the
arbitral tribunal may consider necessary in respect of the subject-matter of the
dispute. The arbitral tribunal may require any party to provide security for the
cost of such measures.”
3. Canada suggests, in the interest of clarity, that this article be combined with article 9.
SEVENTH SECRETARIAT NOTE
ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1985)
Article 18. Power of arbitral tribunal to order interim measures [Art. 17 in the final text]
1. According to article 18, the arbitral tribunal has the implied power, unless excluded by
agreement of the parties, to order any party to take such interim measure of protection as
the arbitral tribunal considers necessary in respect of the subject–matter of the dispute.
The general purpose of such order would be to prevent or minimize any disadvantage
which may be due to the duration of the arbitral proceedings until the final settlement of
the dispute and the implementation of its result.
P 542
P 543
2. Practical examples of interim measures designed to prevent or mitigate loss include the
preservation, custody or sale of goods which are the subject-matter of the dispute.
However, article 18 is not limited to sales transactions and would, for example, cover
measures designed provisionally to determine and “stabilize” the relationship of the
parties in a long–term project. Examples of such “modus vivendi” orders include the use or
maintenance of machines or works or the continuation of a certain phase of a construction
if necessary to prevent irreparable harm. Finally, an order may serve the purpose of
securing evidence which would otherwise be unavailable at a later stage of the
proceedings.
3. As is clear from the text of article 18, the interim measure must relate to the subject–
matter of the dispute and the order may be addressed only to a party (or both parties).
This restriction, which follows from the fact that the arbitral tribunal derives its jurisdiction
from the arbitration agreement, constitutes one of the main factors narrowing the scope of

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 article 18 as compared with the considerably wider range of court measures envisaged
under article 9. (61)
4. Another major difference is that article 18 neither grants the arbitral tribunal the power
to enforce its orders nor provides for judicial enforcement of such orders of the arbitral
tribunal; an earlier draft provision envisaging court assistance in this respect was not
retained by the Working Group. Nevertheless, it was understood that a State would not be
precluded from rendering such assistance under its procedural law, (62) whether by
providing judicial enforcement or by empowering the arbitral tribunal to take certain
measures of compulsion.
5. Yet, even without such possibility of enforcement, the power of the arbitral tribunal
under article 18 is of practical value. It seems probable that a party will comply with the
order and take the measure considered necessary by the arbitrators who, after all, will be
the ones to decide the case. This probability may be increased by the use of the power to
require any party to provide security for the costs of such measure, in particular where the
arbitral tribunal would order the other party to provide such security, which, it is
submitted, may also cover any possible damages. Finally, if a party does not take the
interim measure of protection as ordered by the arbitral tribunal, such failure may be
taken into account in the final decision, in particular in any assessment of damages.
P 543
P 544
SUMMARY RECORD
A/CN.9/SR.316, .332
[10 June 1985, 2:00 p.m., A/CN.9/SR.316]
Article 18. Power of arbitral tribunal to order interim measures [Art. 17 in the final text]
36. Mr. SEKHON (India) said that article 18 appeared to overlap with article 9 as far as the
subject–matter of the dispute was concerned. Both the court and the arbitral tribunal had
power to order interim measures. In the event of contradictory orders, presumably the
court order would prevail on penalty of contempt of court. Would an order by the arbitral
tribunal be enforceable?
37. Mr. HERRMANN (International Trade Law Branch) said the question had been raised
before. The main consideration was whether the Commission wished to deal with the
matter in the model law. The two articles, as far as purpose was concerned, were not in
conflict. Article 9, as the Commission had already agreed, dealt merely with the question of
compatibility between the agreement of the parties to arbitrate and the request to a court
for interim measures or the decision of that court to grant such measures. It did not relate
to the question of which measures might be available under a given legal system. In that
context, it was his understanding that the Commission had wished article 9 to have a
global scope of application. The court, if it wished to grant an interim measure, ought not
to be precluded from doing so by the existence of an arbitration agreement, irrespective
of where the arbitration was taking place, and the request to a court of whatever country
was compatible with, and did not constitute a waiver of, an arbitration agreement
governed by the model law.
38. Article 18 merely stated that the arbitral tribunal had an implied power to order
certain interim measures, unless otherwise agreed by the parties. Since under some
national legislations, an arbitral tribunal did not have such powers, that point should be
clarified. If properly analysed, the articles in themselves did not create a conflict, but
there was always the possibility that a conflict might arise, bearing in mind the global
scope of article 9, which covered the possibility for a party to request a decision from a
court in a country other than that under consideration.
39. Mr. BARRERA GRAF (Mexico) noted that in the comments by Governments, Austria had
suggested the deletion of article 18 ([Sixth Secretariat Note (Government Comments),]
A/CN.9/263, [Art. 18], para. 1). In any case, the powers of the arbitral tribunal under that
article would have to be restricted. However, article 18 was probably not required at all in
view of the clarification on the scope of article 9 just given by the Secretariat. If, however,
it was retained, it should be amended, as Mexico had already suggested, so as to provide
that the security which the arbitral tribunal might require from a party should cover
possible damage suffered by the other party as well as the costs of the interim measure
itself.
P 544 40. Mr. HOELLERING (United States of America) suggested that, as previously agreed with
P 545 regard to interim measures available from a court [see Summary Record, A/CN.9/SR.312,
para. 44, and Commission Report, A/40/17, para. 96, appearing in the section on Article 9, pp.
344, 345–46 supra], the record of the discussion on article 18 should also reflect that, under
appropriate circumstances, the arbitral tribunal would be entitled to order the protection
of trade secrets and proprietary information.
41. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators), referring to the
Mexican proposal, pointed out that the Secretariat commentary on article 18 stated that
the security required by the arbitral tribunal “may also cover any possible damages”
([Seventh Secretariat Note,] A/CN.9/264, [Art. 18], para. 5). It was not clear whether that was
intended to mean that the present wording of article 18 covered that contingency or to

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 recommend that it should be extended to do so. He would be in favour of the inclusion of a
provision on damages.
42. Mr. ILLESCAS ORTIZ (Spain) said he was disposed to support the Mexican proposal
regarding damages; the damages might also cover loss of profit by the affected party. It
would not, however, be an easy matter to assess the cost of either the interim measure or
the necessary cover for damages.
43. The CHAIRMAN [Mr. LOEWE (Austria)] said that it would be better not to enter into detail
but to refer to “reasonable security,” leaving it to the arbitrators to determine what was
reasonable for the purpose.
44. Mr. HOLTZMANN (United States of America) drew attention to article 26(2) of the
UNCITRAL Arbitration Rules, which contained language nearly identical to the present
draft. In the absence of any strong reason for thinking that those Rules were inadequate,
they should be retained, in order to minimize confusion.
45. Mr. TANG Houzhi (China) said it was his understanding that under articles 9 and 18, a
party might submit a request for interim measures either to the court or to the arbitral
tribunal. Under the Chinese legal system, a party had to submit such a request to the
arbitral tribunal, which, if it deemed the request receivable, referred it to the court for a
ruling. He asked whether it was possible to submit a request for interim measures both to
the court and to the arbitral tribunal.
46. The CHAIRMAN said that in theory the answer was in the affirmative, but it would be a
matter of court procedure whether the court was competent to consider a request for
interim measures while a request for such measures was pending with the arbitral tribunal.
An affirmation of the UNCITRAL Arbitration Rules would imply that parties might address
themselves to one or to the other body.
47. Mr. ROEHRICH (France) said that his delegation had no objection to the suggestion
made by the representative of Mexico but thought that the amount of the damages should
be indicated in the text. He did not agree with the representative of the United States that
the Commission must use the UNCITRAL Arbitration Rules as its ultimate authority in
P 545 drafting the model law. These Rules covered certain specific situations and the
P 546 Commission was not necessarily bound by them, especially if it could arrive at a better
formulation more relevant to the specific purpose which the model law was intended to
serve.
48. Mr. HOLTZMANN (United States of America) said that the term “reasonable security” or
“appropriate security” was acceptable because the UNCITRAL Arbitration Rules were quite
broad and allowed recovery of all damages that resulted.
49. After a procedural discussion in which Mr. ROEHRICH (France), Mr. HOLTZMANN (United
States of America) and the CHAIRMAN took part, the CHAIRMAN noted that during the
Commission's discussions, it had been suggested that the formulation of the final sentence
of article 18 would be slightly improved if “reasonable” were inserted before “security.” If
there were no objection, he would take it that the Commission agreed to keep article 18
with that improvement.
50. It was so agreed.
[10 June 1985, 3:00 p.m., A/CN.9/SR.332]
Article 18 [as revised by the Drafting Group]
53. Mr. VOLKEN (Observer for Switzerland) proposed that the words “order any party to take
such interim measure” should be amended to read “order such interim measure.”
54. The CHAIRMAN said that the change did not seem essential. He invited the Commission
to adopt article 18.
55. Article 18 was adopted without change and renumbered as article 17.
COMMISSION REPORT
A/40/17 (21 AUGUST 1985)
Article 18. Power of arbitral tribunal to order interim measures [Art. 17 in the final text]
164. The text of article 18 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
165. A suggestion was made that the provision should not be retained since its scope was
not clearly defined and because it was of limited practical relevance in view of the
availability of enforceable interim measures by courts. Furthermore, the power granted to
the arbitral tribunal could operate to the detriment of a party if it later turned out that the
interim measure was not justified. Therefore, if the provision were to be retained, that risk
should be reduced by enlarging the extent of the security referred to in the second
sentence to cover not only the costs of such interim measure but also any possible or
foreseeable damage to a party.
166. The Commission, after deliberation, decided to retain the article since it was useful in
confirming that the arbitral tribunal's mandate included the faculty of ordering such

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 measures, unless the parties had agreed otherwise. As regards the suggestion to enlarge
P 546 the extent of the security which the arbitral tribunal might require from a party or the
P 547 parties, the Commission was agreed that, on the one hand, any implied limitation on
security for the costs of such measure should not be maintained but that, on the other
hand, a reference to the damages of a party was not appropriate since the model law
should not deal with questions relating to the basis or extent of possible liability for
damages. The Commission, therefore, decided to use more general wording and to say that
the arbitral tribunal might require any party to provide “appropriate security.” (*) It was
pointed out that the modification should not lead to an interpretation of the words
“security for the costs of such measures,” as used in article 26(2) of the UNCITRAL
Arbitration Rules, as excluding the possibility of including in the amount of such security
any foreseeable damage of a party.
167. As regards the range of interim measures covered by the provision, it was observed
that one of the possible measures was, under appropriate circumstances, an order relating
to the protection of trade secrets and proprietary information.
168. It was noted that the range of interim measures covered by article 18 was
considerably narrower than that envisaged under article 9 and that article 18 did not
regulate the question of enforceability of such measures taken by the arbitral tribunal. It
was observed that, nonetheless, there remained an area of overlapping and possible
conflict between measures by the arbitral tribunal and by a court. Therefore, a suggestion
was made that the model law should provide a solution for such conflicts, for instance, by
according priority to the decision of the courts.
169. The Commission, after deliberation, was agreed that the model law should not
embody a solution for such conflicts. It was stated that any such solution was a matter for
each State to decide in accordance with its principles and laws pertaining to the
competence of its courts and the legal effects of court decisions. It was noted, in that
context, that article 9 itself neither created nor aggravated the potential of such conflict
since it did not regulate whether and to what extent court measures were available under
a given legal system but only expressed the principle that any request for, and the granting
of, such interim measure, if available in a legal system, was not incompatible with the fact
that the parties had agreed to settle their dispute outside the courts by arbitration.
P 547

References
1) Article 27 of the Law provides a tribunal with power to call on courts for assistance in
taking evidence. This power is distinct from the power to seek court assistance in
enforcing measures of protection in respect of the subject matter of the dispute,
although in some cases. of course. exercise of the Article 27 power may have the effect
of protecting the subject matter of the dispute.
2) First Working Group Report, A/CN.9/216, para. 67, pp. 534–35 infra; Second Working
Group Report, A/CN.9/232, para. 120, pp. 536–37 infra.
3) Fourth Working Group Report, A/CN.9/245, para. 71, p. 539 infra.
4) Second Draft, A/CN.9/WG.II/WP.40, Art. XIV, p. 538 infra.
5) See First Working Group Report, A/CN.9/216, para. 66, p. 534 infra; Second Working
Group Report, A/CN.9/232, para. 121, p. 537 infra; Fourth Working Group Report,
A/CN.9/245, para. 71, p. 539 infra.
6) E.g., First Working Group Report, A/CN.9/216, para. 66, p. 534 infra; First Draft,
A/CN.9/WG.II/WP.37, Art. 23, p. 536 infra.
7) Sixth Secretariat Note (Government Comments), A/CN.9/263/Add.1, Art. 18, para. 1, p.
542 infra. A related example might be an order barring a party from calling a bank
letter of credit. See, e.g., Sperry Int'l Trade, Inc. v. Government of Israel, 689 F.2d 301 (2d
Cir. 1982) (U.S. Court of Appeals).
8) Seventh Secretariat Note, A/CN.9/264, Art. 18, para. 2, p. 543 infra.
9) Id.
10) Commission Report, A/40/17, para. 167, p. 547 infra.
11) Second Draft, A/CN.9/WG.II/WP.40, Art. XIV, p. 538 infra. The Working Group had
requested a draft on the matter. See Second Working Group Report, A/CN.9/232, para.
122, p. 537 infra.
12) Fourth Working Group Report, A/CN.9/245, para. 72, pp. 539–40 infra. It was understood
that States would not be precluded from offering such assistance, however. Id.
13) Seventh Secretariat Note, A/CN.9/264, Art. 18, para. 5, p. 543 infra.
14) First Draft, A/CN.9/WG.II.WP.37, Art. 23 n. 41, p. 536 infra.
15) See generally the sources cited notes 4 & 5, supra.
16) Fourth Working Group Report, A/CN.9/245, para. 71, p. 539 infra.
17) Commission Report, A/40/17, para. 165–166, pp. 546–47 infra; see Seventh Secretariat
Note, A/CN.9/264, Art. 18, para. 5, p. 543 infra.
18) Commission Report, A/40/17, para. 166, pp. 546–47 infra.
19) First Working Group Report, A/CN.9/216, para. 66, p. 534 infra; see also Fourth Working
Group Report, A/CN.9/245, para. 71, p. 539 infra.

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 20) Seventh Secretariat Note, A/CN.9/264, Art. 18, para. 3, p. 543 infra.
21) See First Working Group Report, A/CN.9/216, para. 66, p. 534 infra; Second Working
Group Report, A/CN.9/232, para. 123, p. 537 infra.
32) [Editors' Note: The full text of draft Article 19 and footnote 32 appear in the section on
Article 19, pp. 575–76 infra.
33) Consideration of this sub–paragraph may be combined with the discussion on the
articles referred to therein. When discussing articles 20 to 24, the Working Group may
wish to consider to what extent these provisions should be mandatory. [ … ]
40) Discussion and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, paras. 65–67.
41) This draft article is modeled on article 26(1) and (2) of the UNCITRAL Arbitration Rules,
with some alternative wording reflecting the views expressed in the Working Group.
9) [Editors' Note: Footnote 9 appears in the section on Article 6, p. 244 supra.]
10) Provisions which “provide otherwise” may either restrict the rule under (a), e.g., article
X(3) [Art. 13 in the final text] which entitles only a party to resort to this Court, or widen
the rule by entitling others, such as individual arbitrators, e.g., article VIII(3) [Art. 11] or
XI(2) [Art. 14].
11) Provisions which “provide otherwise,” i.e., allow an appeal, might, for example, be
envisaged in respect of decisions on setting aside, or on recognition and enforcement,
of arbitral awards (to be dealt with in [a second part of the Second Draft,]
A/CN.9/WG.II/WP.42 [see the sections on Articles 34 & 36, pp. 931–34, 1077–80 infra]).
18) Relevant discussion and conclusions by the Working Group in [the Third Working Group
Report,] A/CN.9/233, paras. 83–86. It may be recalled here that, according to a decision
by the Group, the procedural issues previously dealt with in (now deleted) paragraph
(2), i.e., right to request the Court to act and finality of the Court's decision, should be
considered in the context of the individual provisions entrusting certain functions to
the Court.
61) See [the Seventh Secretariat Note,] commentary to article 9, paras. 4–5 [appearing in the
section on that Article, pp. 343–44 supra].
62) [Fourth Working Group Report,] A/CN.9/245, para. 72.
*) [Editors' Note: The choice of the word “appropriate,” instead of the term “reasonable”
mentioned in the Summary Record, A/CN.9/SR.316, para. 49, p. 546 supra, is not
explained in the Report.]

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 KluwerArbitration

Document information
UNCITRAL Model Law, Chapter IV.A (Articles 17 – 17J) – as
Publication amended [Interim measures and preliminary orders]
A Guide to the 2006 [Editors' Note: The 2006 amendments to the Model Law amended Article 17, added Articles 17
Amendments to the A – J, and created a new Chapter IV A. The text below shows the changes to Article 17 and the
UNCITRAL Model Law on text of the new Articles (additions are double-underlined while deletions are crossed out). For
International Commercial legislative history of, and commentary concerning, the prior version of Article 17, see Howard
Arbitration: Legislative M. Holtzmann and Joseph E. Neuhaus, A Guide to the UNCITRAL Model Law on International
History and Commentary Commercial Arbitration: Legislative History and Commentary, pp. 530–47 (1989).]

Chapter IV A Interim Measures And Preliminary Orders (Articles 17 – 17 J)

Organization
United Nations Commission Section 1 Interim Measures
on International Trade Law
Article 17 Power of Arbitral Tribunal to Order Interim Measures
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a
Promulgation party, grant interim measures. (*)
21 June 1985 (2) An interimmeasure is any temporary measure, whether in the form of an award or in
another form, by which, at any time prior to the issuance of the award by which the
dispute is finally decided, the arbitral tribunal orders a party to:
Legislation number (a) Maintain or restore the status quo pending determination of the dispute;
United Nations Documents (b) Take action that would prevent, or refrain from taking action that is likely to cause,
A/40/17, Annex I, and current or imminent harm or prejudice to the arbitral process itself;
A/61/17, Annex I (c) Provide a means of preserving assets out of which a subsequent award may be
satisfied; or
(d) Preserve evidence that may be relevant and material to the resolution of the
Bibliographic reference dispute.
P 159
'UNCITRAL Model Law, P 160
Chapter IV.A (Articles 17 – 17J)
– as amended [Interim Article 17 A Conditions for Granting Interim Measures
measures and preliminary (1) The party requesting an interim measure under article 17(2)(a), (b) and (c) shall satisfy
orders]', in Howard M. the arbitral tribunal that:
Holtzmann , Joseph Neuhaus
, et al., A Guide to the 2006 (a) Harm not adequately reparable by an award of damages is likely to result if the
Amendments to the measure is not ordered, and such harm substantially outweighs the harm that is
UNCITRAL Model Law on likely to result to the party against whom the measure is directed if the measure is
International Commercial granted; and
Arbitration: Legislative (b) There is a reasonable possibility that the requesting party will succeed on the
History and Commentary, merits of the claim. The determination on this possibility shall not affect the
(© Kluwer Law International; discretion of the arbitral tribunal in making any subsequent determination.
Kluwer Law International
2015) pp. 159 - 586 (2) With regard to a request for an interim measure under article 17(2)(d), the
requirements in paragraphs (1)(a) and (b) of this article shall apply only to the extent the
arbitral tribunal considers appropriate.

Section 2 Preliminary Orders

Article 17 B Applications for Preliminary Orders and Conditions for Granting Preliminary
Orders
(1) Unless otherwise agreed by the parties, a party may, without notice to any other party,
make a request for an interim measure together with an application for a preliminary
order directing a party not to frustrate the purpose of the interim measure requested.
(2) The arbitral tribunal may grant a preliminary order provided it considers that prior
disclosure of the request for the interim measure to the party against whom it is directed
risks frustrating the purpose of the measure.
(3) The conditions defined under article 17A apply to any preliminary order, provided that
the harm to be assessed under article 17A(1)(a), is the harm likely to result from the order
being granted or not.
P 160
P 161
Article 17 C Specific Regime for Preliminary Orders
(1) Immediately after the arbitral tribunal has made a determination in respect of an
application for a preliminary order, the arbitral tribunal shall give notice to all parties of

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 the request for the interim measure, the application for the preliminary order, the
preliminary order, if any, and all other communications, including by indicating the
content of any oral communication, between any party and the arbitral tribunal in relation
thereto.
(2) At the same time, the arbitral tribunal shall give an opportunity to any party against
whom a preliminary order is directed to present its case at the earliest practicable time.
(3) The arbitral tribunal shall decide promptly on any objection to the preliminary order.
(4) A preliminary order shall expire after twenty days from the date on which it was issued
by the arbitral tribunal. However, the arbitral tribunal may issue an interim measure
adopting or modifying the preliminary order, after the party against whom the
preliminary order is directed has been given notice and an opportunity to present its
case.
(5) A preliminary order shall be binding on the parties but shall not be subject to
enforcement by a court. Such a preliminary order does not constitute an award.

Section 3 Provisions Applicable to Interim Measures and Preliminary Orders

Article 17 D Modification, Suspension, Termination
The arbitral tribunal may modify, suspend or terminate an interim measure or a
preliminary order it has granted, upon application of any party or, in exceptional
circumstances and upon prior notice to the parties, on the arbitral tribunal's own
initiative.
P 161
P 162
Article 17 E Provision of Security
(1) The arbitral tribunal may require the party requesting an interim measure to provide
appropriate security in connection with the measure. (**)
(2) The arbitral tribunal shall require the party applying for a preliminary order to provide
security in connection with the order unless the arbitral tribunal considers it
inappropriate or unnecessary to do so.
Article 17 F Disclosure
(1) The arbitral tribunal may require any party promptly to disclose any material change
in the circumstances on the basis of which the measure was requested or granted.
(2) The party applying for a preliminary order shall disclose to the arbitral tribunal all
circumstances that are likely to be relevant to the arbitral tribunal's determination
whether to grant or maintain the order, and such obligation shall continue until the party
against whom the order has been requested has had an opportunity to present its case.
Thereafter, paragraph (1) of this article shall apply.
Article 17 G Costs and Damages
The party requesting an interim measure or applying for a preliminary order shall be
liable for any costs and damages caused by the measure or the order to any party if the
arbitral tribunal later determines that, in the circumstances, the measure or the order
should not have been granted. The arbitral tribunal may award such costs and damages
at any point during the proceedings.
P 162
P 163
Section 4 Recognition and Enforcement of Interim Measures
Article 17 H Recognition and Enforcement
(1) An interim measure issued by an arbitral tribunal shall be recognized as binding and,
unless otherwise provided by the arbitral tribunal, enforced upon application to the
competent court, irrespective of the country in which it was issued, subject to the
provisions of article 17 I.
(2) The party who is seeking or has obtained recognition or enforcement of an interim
measure shall promptly inform the court of any termination, suspension or modification
of that interim measure.
(3) The court of the State where recognition and enforcement is sought may, if it considers
it proper, order the requesting party to provide appropriate security if the arbitral
tribunal has not already made a determination with respect to security or where such a
decision is necessary to protect the rights of third parties.
Article 17 I Grounds for Refusing Recognition or Enforcement (1)
(1) Recognition or enforcement of an interim measure may be refused only:
(a) At the request of the party against whom it is invoked if the court is satisfied that:

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 (i) Such refusal is warranted on the grounds set forth in article 36(1)(a)(i), (ii), (iii)
or (iv); or
(ii) The arbitral tribunal's decision with respect to the provision of security in
connection with the interim measure issued by the arbitral tribunal has not
been complied with; or
(iii) The interim measure has been terminated or suspended by the arbitral
tribunal or, where so empowered, by the court of the State in which the
arbitration takes place or under the law of which that interim measure was
granted; or
P 163
P 164 (b) If the court finds that:
(i) The interim measure is incompatible with the powers conferred upon the court
unless the court decides to reformulate the interim measure to the extent
necessary to adapt it to its own powers and procedures for the purposes of
enforcing that interim measure and without modifying its substance; or
(ii) Any of the grounds set forth in article 36(1)(b)(i) or (ii), apply to the recognition
and enforcement of the interim measure.
(2) Any determination made by the court on any ground in paragraph (1) of this article
shall be effective only for the purposes of the application to recognize and enforce the
interim measure. The court where recognition or enforcement is sought shall not, in
making that determination, undertake a review of the substance of the interim measure.

Section 5 Court-Ordered Interim Measures

Article 17 J Court-Ordered Interim Measures
A court shall have the same power of issuing an interim measure in relation to arbitration
proceedings, irrespective of whether their place is in the territory of this State, as it has
in relation to proceedings in courts. The court shall exercise such power in accordance
with its own procedures in consideration of the specific features of international
arbitration.

Commentary
The Commission adopted Chapter IV A on interim measures and preliminary orders (the
Model Law term for ex parte interim measures) in 2006. Chapter IV A expands Article 17 of
the 1985 Model Law. Article 17 of the 1985 Law consists of two sentences. The first sentence
authorizes arbitral tribunals to, “at the request of a party, order any party to take such
interim measure of protection as the arbitral tribunal may consider necessary in respect of
P 164 the subject-matter of the dispute.” The second sentence provides that the arbitral tribunal
P 165 “may require any party to provide appropriate security in connection with such
measure.” Chapter IV A retains the substance of the two sentences of the original Article 17
and adds new provisions organized as Articles 17 through 17 J.
The innovations of the amendment of Chapter IV A include a relatively detailed
enumeration of authorized interim measures and the conditions under which such
measures may be granted, express authorization of preliminary orders and court-ordered
interim measures, and a regime for the recognition and enforcement of interim measures
(but not preliminary orders). The Working Group agreed that these amendments were
necessary in light of reports from practitioners and arbitral institutions that parties are
increasingly requesting interim measures, but that the effectiveness of international
arbitration as a tool for dispute resolution might be compromised by uncertainty under
the 1985 Model Law and certain national laws about the scope of available interim
measures, the conditions for their issuance, and the absence of provisions to enforce
interim measures. (2) With respect to the need for enforceability, the Commission reported
the view that in some circumstances an enforceable interim measure may in practice be as
important as a final award on the merits. (3)
The original and amended Article 17 are related to, but distinct from, Article 9, which states
in the 1985 and 2006 Laws that it is not incompatible with the arbitration agreement for a
party to request from a court—or for the court to grant—an interim measure of protection.
Unlike Article 17, Article 9 does not grant any authority but only states the principle that
court-ordered interim measures, if permitted under other law, are not inconsistent with
arbitration. Article 17 J of the 2006 Law added provisions expressly authorizing court-
ordered interim measures. (4)
P 165
P 166
Section 1. Interim measures
Article 17. Power of arbitral tribunal to order interim measures
Article 17 of the 2006 Law defines the scope of the arbitral tribunal's power to order
interim measures. The amended Article 17 retains three fundamental components of the
original Article 17: that the power of the arbitral tribunal to order interim measures is
implied in an arbitration agreement unless otherwise specified; that the implied power is
limited to orders directed to the parties, not to third parties; and that the provision is

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 limited to measures that the arbitral tribunal can order, excluding any measures that the
arbitral tribunal might itself take. (5) The Working Group retained these elements of the
original Article with little discussion.
The 2006 Law expands the scope of authority granted under Article 17 by deleting the
requirement in the original Article 17 that the interim measure be “in respect of the
subject-matter of the dispute.” The Working Group agreed that the “subject-matter”
requirement should be deleted because it might be considered to limit the authority of
the arbitral tribunal to issue certain measures, such as anti-suit injunctions and measures
for freezing assets that were not necessarily the subject matter of the dispute. (6)
On the other hand, the Working Group added detailed provisions defining the scope of
interim measures available. The amended Article defines an interim measure as “any
temporary measure” by which the arbitral tribunal orders a party to take one or more
categories of measures enumerated under Article 17(2)(a)–(d). (7) The Working Group
considered these categories to cover “all possible circumstances in which an interim
measure might be sought.” (8)
Some members of the Working Group initially opposed the inclusion of categories of
measures in Article 17 because the categories might inappropriately limit the discretion of
the arbitral tribunal. (9) The view that prevailed within the Working Group was that the
P 166 inclusion of categories of measures would enhance the certainty as to the power of the
P 167 arbitral tribunal to issue interim measures of protection. (10) The Working Group thus
set forth four broad categories of interim measures:
(a) “Maintain or restore the status quo pending determination of the dispute.” The Working
Group was of the view that the concept of maintaining the status quo was well
established and understood in many legal systems as a purpose of interim measures.
(11)
(b) “Take action that would prevent, or refrain from taking action that is likely to cause,
current or imminent harm or prejudice to the arbitral process itself.” The Working Group
intended this category to clarify that an arbitral tribunal has the power to prevent
obstruction or delay of the arbitral process, including by issuing anti-suit injunctions.
(12) The Working Group debated at length whether anti-suit injunctions should be
authorized under Article 17. It was noted in opposition that anti-suit injunctions were
not recognized in many legal systems and that anti-suit injunctions are not always
provisional in nature, as are interim measures. (13) In favor of anti-suit injunctions, it
was argued that anti-suit injunctions were becoming more common and served an
important purpose in protecting the arbitral process. (14) It was also observed in the
Working Group that, to the extent there were concerns about the overall acceptability
of anti-suit injunctions in some states, the recognition and enforcement provisions of
Article 17 I(1)(b) offer safeguards that allow state courts to refuse to recognize or
enforce interim measures that are incompatible with the powers conferred upon the
court or contrary to the state's public policy. (15)
In regard to the evidentiary proof required under this category of measures, the
Working Group specifically chose the words “is likely to cause, … harm” instead of
“would cause, … harm” to account for the fact that, at the time an interim measure is
sought, there are often insufficient facts known to provide proof that harm will result
unless a particular action is taken or not taken. (16) The Working Group did not insert
“likely” in the parallel clause “[t]ake action that would prevent,” which refers to
P 167 interim measures that require affirmative action as opposed to measures directing a
P 168 party to refrain from taking action. The distinction is not explained in the drafting
history. It may be ventured that a tribunal must have a greater level of certainty
about the efficacy of its measure where it is directing affirmative steps as opposed to
preventing action. While there is not always a bright line between affirmative and
negative injunctions, there is some sense to the view that a tribunal should be more
cautious in directing action, the effects of which are not always apparent and which
can be difficult to monitor, than in directing that action not be taken.
(c) “Provide a means of preserving assets out of which a subsequent award may be
satisfied.” The Working Group intended that “preserving assets” be interpreted to
include, but not be limited to, securing assets, which could be understood to require
a legal guarantee or security. (17)
(d) “Preserve evidence that may be relevant and material to the resolution of the dispute.”
In limiting this category to “relevant and material” evidence, the Working Group
observed that the same limit was adopted by the 1999 IBA Rules on the Taking of
Evidence in International Commercial Arbitration, and that the limit was commonly
used and understood in international arbitration. (18) In particular, the Working
Group noted that the term “relevant” was understood to require that the evidence be
connected to the dispute, and the term “material” referred to the significance of the
evidence. (19)
In addition to defining the scope of interim measures available under the Model Law,
Article 17 refers to the form of interim measures. The Working Group chose to address the
form of an interim measure in the amended Article 17 (which was not addressed in the 1985
Law), in acknowledgement of the requirement in some legal systems that an interim
measure be in the form of an award in order for the measure to be recognized or enforced.

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 (20) Instead of requiring that interim measures take the form of an award, however, the
Working Group preferred the broad formulation of an interim measure as “any temporary
P 168 measure, whether in the form of an award or in another form.” (21) The prevailing view
P 169
within the Working Group was that it would be undesirable for the Model Law to be
overly prescriptive in respect of the form of an interim measure. (22) It was said that the
tribunal's characterization of the interim measure was not necessarily determinative of
whether the measure was an “award” for the purposes of proceedings to set aside or
enforce an interim measure, because the applicable law of the forum would define an
“award.” (23) As noted below, the provisions in Article 17 H do not condition the recognition
or enforcement of an interim measure on the form of the measure. (24)
Article 17 A. Conditions for granting interim measures
Paragraph 1. Paragraph 1 of Article 17 A sets forth mandatory conditions for granting
interim measures under the amended Article 17, with the exception of interim measures to
preserve evidence, which are addressed under paragraph 2 of this article. Generally, an
interim measure may be granted pursuant to Article 17 A if the “party requesting an interim
measure” has “satisf[ied]” the arbitral tribunal that: (1) the party requesting the measure is
“likely” to suffer “harm not adequately reparable by an award of damages” if the measure
is not granted; (2) such harm “substantially outweighs” the harm that is “likely” to be
suffered by the party against whom the measure is directed if the measure is granted; and
(3) there is a “reasonable possibility” that the requesting party will succeed on the merits
of the arbitration. Article 17 A clearly places the burden of satisfying the arbitral tribunal
that these conditions are present on the party requesting the measure. (25) The Working
Group intended the requirement that the arbitral tribunal be “satisf[ied]” to be a “neutral
formulation” of the standard of proof that the requesting party must provide. (26)
Subparagraph 1(a). The Working Group considered conditioning interim measures on the
requirement that the harm that would be suffered absent an interim measure rise to the
P 169 level of “irreparable harm,” which was recognized as an ordinary prerequisite for granting
P 170 interim measures in some legal systems. (27) At various points in the legislative history
the following examples were given of events that would result in irreparable harm: loss of a
priceless or unique work of art; a business becoming insolvent; loss of essential evidence;
loss of an essential business opportunity, such as the conclusion of a large contract; and
harm being caused to the reputation of a business as a result of trademark infringement.
(28) There was concern, however, that the “irreparable harm” standard may be susceptible
to divergent interpretations, including the restrictive interpretation that interim measures
may only be granted in circumstances in which the potential harm cannot be remedied by
monetary compensation. (29) Such an interpretation was said to conflict with current
arbitral practice, in which it is “not uncommon” for an arbitral tribunal to issue an interim
measure in circumstances where it would be “comparatively complicated” to compensate
harm with an award of damages. (30) Ultimately, the Working Group agreed to the “harm
not adequately reparable by an award of damages” standard, which it viewed as providing
a lower threshold than “irreparable harm” and establishing the discretion of the arbitral
tribunal to determine the level of harm necessary to merit issuance of an interim measure.
(31)
As with the assessment of harm under Article 17(2)(b), the Working Group specifically chose
to require proof that the necessary harm under Article 17 A only be “likely” to occur. Again,
this standard of proof was chosen to account for the fact that, at the time an interim
measure is sought, there are often insufficient facts known to provide proof that harm will
result unless a particular action is taken or not taken. (32) The Working Group observed that
the requirement that the likely harm to the requesting party “substantially outweighs” the
likely harm to the “party against whom the [requested] measure is directed” would
function as a “balance of convenience” test. (33) Further, it was said that the phrase “party
P 170 against whom the measure is directed,” whose interests are to be balanced, should be
P 171 interpreted literally; it should not be limited to those parties opposing the interim
measure nor expanded to include any party affected by an interim measure. (34)
Notably, the Working Group purposely excluded “urgency” as a condition for granting
interim measures under Article 17. (35) Given the requirement that harm is likely to result if
the measure is not ordered, however, the need for the interim measure must at least be
sufficiently urgent that the harm that the measure is intended to prevent cannot be
avoided by an award on the merits of the arbitration.
Subparagraph 1(b). Subparagraph 1(b) requires the tribunal to perform a preliminary
evaluation of the merits, what the Working Group called a threshold “determination
regarding the seriousness” of the merits of the requesting party's claims. (36) The Working
Group viewed the requirement that there be a “reasonable possibility” of success on the
merits as a standard that provided an arbitral tribunal with “the required level of
flexibility” to make a determination in the circumstances of the case. (37) Subparagraph
1(b) specifies that an arbitral tribunal's determination of the possibility that a party may
succeed on the merits “shall not affect the discretion of the arbitral tribunal in making any
subsequent determination.” (38)
Paragraph 2. Paragraph 2 of Article 17 A makes the conditions set forth in paragraph 1
permissive for requests for interim measures to preserve evidence. The Working Group
intended for an arbitral tribunal to consider the conditions defined in paragraph 1 in

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 relation to the granting of an interim measure to preserve evidence, but for the tribunal to
have the discretion to determine the extent to which those conditions should apply under
the circumstances of the case before it. (39) It was noted in particular that the requirement
that the moving party demonstrate what the Working Group termed “exceptional harm”—
harm not adequately reparable by an award of damages—should not always apply to
P 171 requests to direct preservation of evidence. (40) This point is not further explained in the
P 172
drafting history but it can be ventured that threats to evidence are different from most
other harms that prompt interim measures in several ways: the value at stake—the fairness
of the proceeding—is a particular concern of the arbitral tribunal; the significance of the
evidence at risk to the outcome or fairness of the procedures can often not be determined
early in a case; if the destruction of evidence would render the proceeding unfair, that
damage is by definition irreparable by an award of damages; and, finally, there is a
background expectation, often explicit in domestic law, that evidence relevant to a legal
proceeding should be preserved, so a lesser showing of harm is appropriate when there is
adequate reason to believe the expectation is not being fulfilled. While there was general
agreement that a tribunal might not apply the “exceptional harm” requirement, it was
noted that another aspect of the terms set forth in subparagraph 1 probably would apply:
“[a]n arbitral tribunal having to decide on the granting of an interim measure to preserve
evidence would likely engage in balancing the degree of harm suffered by the applicant”
and opposing party, respectively. (41)
Section 2. Preliminary orders
Article 17 B. Applications for preliminary orders and conditions for granting preliminary
orders
Article 17 B authorizes a party to an arbitration to request an ex parte order “directing a
party not to frustrate the purpose” of a requested interim measure. The Working Group
agreed after lengthy debate to include such ex parte measures in the Model Law pursuant
to a “compromise” by which preliminary orders would be authorized subject to a number
of “safeguards,” including that the parties could agree to disallow preliminary orders, and
that preliminary orders would be temporary and unenforceable in court, as provided in
Article 17 C. (42) Some members of the Working Group opposed preliminary orders on the
basis that ex parte measures would violate the principle of equal treatment of the parties
P 172 set forth in Article 18, and may “open an avenue for dilatory and unfair practices.” (43) The
P 173 prevailing view, however, was that the addition of preliminary orders to the Model Law
would “meet the needs of arbitration practice,” (44) and make arbitration under the Model
Law “more effective as a method of dispute settlement.” (45)
Although Article 17 B refers only to orders “directing a party not to frustrate the purpose of
the interim measure requested,” it was understood that the scope of preliminary orders
available included both orders to refrain from taking an action and orders requiring
affirmative action, such as orders “to protect goods from deterioration or some other
threat.” (46) The Working Group agreed that the arbitral tribunal has discretion under
Article 17 B to issue a preliminary order that is appropriately tailored to the circumstances
of the case. (47)
Paragraphs 2 and 3 of Article 17 B define the conditions for granting preliminary orders. The
conditions for granting a preliminary order are the same as the conditions defined under
Article 17 A for granting interim measures, with the additional requirement that an ex parte
order is only justified if the arbitral tribunal concludes that “prior disclosure of the request
for the interim measure to the party against whom it is directed risks frustrating the
purpose of the measure.” The Working Group also considered mandating that a tribunal, in
issuing a preliminary order, require the party requesting the order to provide security.
Concerned that such a rule would be too rigid, the Working Group instead decided to
require in Article 17 E only that the tribunal consider the issue of security, while the
ultimate decision was left to the tribunal's discretion. (48)
Article 17 C. Specific regime for preliminary orders
Paragraph 1. Paragraph 1 of Article 17 C reiterates the principle established in Article 24(3)
of the Model Law that any information supplied to the arbitral tribunal by one party shall
P 173 be communicated to the other party. (49) This obligation applies under Article 17 C
P 174 regardless of whether the arbitral tribunal granted the requested preliminary order.
(50) Paragraph 1 requires the arbitral tribunal to fulfill this obligation “[i]mmediately” after
the tribunal has made a determination with respect to an application for a preliminary
order. The Working Group did not define the term “[i]mmediately.” In view of the fact that,
pursuant to paragraph 4 of Article 17 C, a preliminary order expires within twenty days from
the date it is issued, the Working Group likely intended for the arbitral tribunal to disclose
all communications concurrently with its notice to all parties of a request for a preliminary
order, or shortly thereafter.
Paragraph 1 requires the arbitral tribunal to disclose all written communications, and the
existence and “content” of any oral communications pertaining to a preliminary order. The
Working Group agreed that it is within the discretion of the arbitral tribunal to determine
how best to disclose the “content” of oral communications, and that “verbatim records” of
oral communications are not necessary to satisfy Article 17 C. (51)
Paragraph 2. Paragraph 2 establishes that the party against whom a preliminary order is

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 directed shall have the right to “present its case at the earliest practicable time.” In
drafting the provision, the Working Group replaced the phrase “opportunity to be heard”
with the phrase “opportunity … to present its case” so as to make clear that the right
encompasses both written and oral submissions. (52) The Working Group did not specify
what would constitute “the earliest practicable time.” It considered proposals to specify
that the party must be given that opportunity within 48 hours and a proposal that the
tribunal confirm the preliminary order within a similar period of time. (53) The Working
Group ultimately omitted both requirements, fearing that they would “over-regulat[e]” the
issue, and suggested that the two-day period might be cited in explanatory material as an
illustration of the period of time intended. (54)
Paragraph 3. It was noted in the Working Group that the requirement in paragraph 3 that
P 174 the arbitral tribunal “promptly” decide any objection to a preliminary order would
P 175 necessarily have to be applied in light of the twenty-day time limit on preliminary
orders under paragraph 4. (55)
Paragraphs 4 and 5. Paragraphs 4 and 5 provide two of the “safeguards” discussed above
that were central to the Working Group's agreement to authorize preliminary orders in the
Model Law. (56) These safeguards are that preliminary orders are temporary and not
subject to enforcement in court. Paragraph 4 requires that a preliminary order expire
twenty days from the date on which the arbitral tribunal issued the order. (57) Paragraph 5
establishes that preliminary orders issued under Articles 17 B and C are binding on the
parties, but that such preliminary orders are not awards and may not to be enforced by a
court. (58)
The limitation on court enforcement applies only to preliminary orders; paragraph 4
authorizes the arbitral tribunal to adopt a preliminary order as an interim measure
enforceable in court to the same extent as other interim measures. The arbitral tribunal
may not do so, however, until after the party against whom the preliminary order is
directed has been given notice of the order and an opportunity to present its case on the
merits of the preliminary order. (59)
Concern was voiced within the Working Group that a party could delay the presentation of
its objections to a preliminary order with the intention of taking advantage of the twenty-
day time limit on preliminary orders to frustrate a request for an interim measure of
protection. (60) In response, it was suggested Article 17 C should not “over regulate[]” the
issue, and that the Model Law should grant the arbitral tribunal sufficient discretion to
address such behavior. (61) It may be noted in this regard that Article 17 C requires only
that the objecting party be given the “opportunity to present its case,” providing the
tribunal with some flexibility to ensure both the fairness and efficacy of its orders.
P 175
P 176
Section 3. Provisions applicable to interim measures and preliminary orders
Article 17 D. Modification, suspension, termination
Article 17 D regulates an arbitral tribunal's authority to modify, suspend or terminate
interim measures or preliminary orders that the tribunal has itself granted. (62) An arbitral
tribunal may not modify, suspend or terminate an interim measure or preliminary order
granted by a court or another arbitral tribunal. (63) An arbitral tribunal's scope of
discretion under Article 17 D to modify, suspend or terminate an interim measure or
preliminary order varies depending on whether the tribunal is acting upon a request of a
party or on its own initiative. An arbitral tribunal that is acting upon a request of a party
has full discretion to modify, suspend or terminate a measure or order that it has granted.
(64) In contrast, an arbitral tribunal may only modify, suspend or terminate an interim
measure on its own initiative in “exceptional circumstances and upon prior notice to the
parties.”
The Working Group considered allowing an arbitral tribunal acting on a request of a party
to modify, suspend or terminate a measure or order only if there was a change in the
circumstances under which the measure or order had been granted or the conditions for
granting the measure or order were otherwise no longer met. (65) The Working Group
concluded, however, that such conditions would “unduly” restrict arbitral discretion. (66)
Some members of the Working Group argued that providing the arbitral tribunal with even
limited authority to modify, suspend or terminate interim measures or preliminary orders
on its own initiative was inconsistent with the consensual nature of arbitration, might be
seen as exhibiting partiality, and might frustrate the legitimate expectations of the party
P 176 that had obtained the order. (67) But the prevailing view was that an arbitral tribunal
P 177 should be granted limited discretion to modify, suspend or terminate an interim
measure or preliminary order on its own initiative, particularly it was said, “where that
measure [or order] appeared to have been granted on an erroneous or fraudulent basis.”
(68) The Working Group Report also drew an analogy to Article 33(2), which provides the
tribunal with power to correct, on its own initiative, computational, clerical, typographical
or other minor errors in an arbitration award. (69) The Working Group noted as well that the
tribunal's power to modify, suspend or terminate a preliminary order or interim measure
on its own initiative was linked to the obligation of the party that obtained the order or
measure to update the tribunal on changes and other circumstances as now set forth in
Article 17 F. (70) That is, the tribunal must be able to react to what it is told.

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 Article 17 E. Provision of security
Article 17 E reserves to the discretion of the arbitral tribunal decisions regarding provision
of security in varying degrees depending on whether the security is to be provided in
connection with an interim measure or a preliminary order. Paragraph 1 of Article 17 E
grants the arbitral tribunal full discretion in connection with interim measures. (71) In the
case of preliminary orders, Paragraph 2 obligates the arbitral tribunal to require security
unless the arbitral tribunal considers it inappropriate or unnecessary to do so. (72) It was
repeatedly observed that, while the provision of security in connection with interim
measures is the “norm,” there are situations in which a party requesting an interim
measure or preliminary order should not be required to provide security, such as when the
requesting party has been deprived of assets enabling it to pay security by the party
against whom the measure or order would be directed. (73)
P 177 Paragraph 1 largely replicates the security provision of Article 17 of the original Model Law.
P 178 When drafting the 1985 Law, the Working Group intended for the phrase “security in
connection with” the measure to be construed broadly so that the security required could
cover not only the direct costs of imposing the measure itself but also consequential
damages to the affected party resulting from imposition of the measure against that party.
(74) The Working Group presumably intended for the same level of security to be available
under Article 17 E for interim measures and preliminary orders.
While drafting Article 17 E, the Working Group's concerns ran in the other direction: a
limitation such as the phrase “security in connection” with a measure was said to be
desirable to ensure that the provision would “not be interpreted as a free-standing
provision allowing the tribunal to order security at any time during the procedure” but
rather “to ensure that the fate of the interim measure was linked to the provision of
security.” (75) The Working Group purposefully did not define a point in time by which
security must be posted, however, in order to accommodate situations in which, for
example, the need for an interim measure or preliminary order is immediate, but the
tribunal determines that a party should be given more time to arrange security. (76) Thus,
security may be a condition precedent or a condition subsequent to a grant of an interim
measure or preliminary order.
It may be noted that paragraph 1 authorizes an arbitral tribunal to require “appropriate
security” in connection with an interim measure, and paragraph 2 requires simply
“security” in connection with a preliminary order. There is no indication in the legislative
history that the Working Group intended to authorize different kinds of security for interim
measures and preliminary orders. Indeed, the legislative history suggests that the Working
Group deleted the word “appropriate” from paragraph 2 because of the view that the use
of the words “appropriate security” and “inappropriate” in the same sentence would be
confusing. (77)
P 178
P 179
Article 17 F. Disclosure
Article 17 F creates a two-tier disclosure standard for interim measures and preliminary
orders. Paragraph 1 authorizes an arbitral tribunal to order “any party promptly to disclose
any material change in the circumstances on the basis of which [an interim] measure was
requested or granted.” In contrast, paragraph 2 temporarily obligates a party applying for
a preliminary order to “disclose to an arbitral tribunal all circumstances that are likely to
be relevant to the arbitral tribunal's determination whether to grant or maintain” a
preliminary order. The disclosure obligation under paragraph 2 applies from the time a
preliminary order is requested until the party against whom the order has been requested
has had an opportunity to present its case. (78) The paragraph 2 obligation thereupon
terminates (regardless of whether that party avails itself of the opportunity to present its
case), and the more limited disclosure standard under paragraph 1 applies. (79)
The Working Group intended the scope of information required to be disclosed under
paragraph 2 to be broader than the scope under paragraph 1. While paragraph 1 is limited
to “material changes” to the circumstances that form the “basis” on which an interim
measure was requested or granted, paragraph 2 requires the disclosure of any
circumstances that are “likely to be relevant” to the arbitral tribunal's determination to
grant or maintain an order. This latter standard is broader both in that the term “relevant”
encompasses more than the term “material” and in that the circumstances to be disclosed
need not be related to the grounds on which the preliminary order was granted, but rather
to the decision whether to maintain the order. That decision might, at least in theory, be
affected by matters entirely independent of the grounds on which the order was granted.
(80)
The scope under paragraph 2 includes a duty to disclose facts that are both helpful and
harmful to a party's application for a preliminary order. (81) While it was acknowledged
that “under many national laws, the obligation for a party to present arguments against its
P 179 position was unknown and contrary to general principles of procedural law,” (82) the
P 180 Working Group considered this requirement to be a “fundamental safeguard” and an
“essential condition” to the acceptability of preliminary orders, (83) because an arbitral
tribunal considering an application for a preliminary order does not have the opportunity
to hear from both parties. (84)

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 If a party fails to comply with disclosure obligations under paragraphs 1 or 2, it was said
that an arbitral tribunal may sanction the party by modifying, suspending or terminating
the measure or order pursuant to Article 17 D, awarding damages against the offending
party pursuant to Article 17 G, or both. (85) In addition, the applicable national law may
grant an arbitral tribunal other powers to sanction an offending party. (86)
Article 17 G. Costs and damages
Article 17 G creates a single liability regime for interim measures and preliminary orders.
(87) The article establishes the basic principles that a party that requests an interim
measure or preliminary order “shall be liable for any costs and damages caused by the
measure or order to any party” if the arbitral tribunal subsequently determines that the
measure or order “should not have been granted.” It was said that the scope of liability
under Article 17 G, such as whether “any costs or damages” is to be interpreted to include
attorney's fees, the costs of implementing a measure or order, or direct and indirect
consequential damages, is to be resolved according to the applicable national law. (88)
The arbitral tribunal has the discretion to determine when, “in the circumstances” of a
case, a measure or order “should not have been granted.” (89) The Working Group discussed
whether a party should only be held liable if it acted negligently or fraudulently, or
whether a party may also be liable if an arbitral tribunal acted in error. (90) It did not
P 180 come to an agreement on these variables, but the Working Group Report states that “it was
P 181 strongly felt” that the final decision on the merits should not be an “essential element”
of a determination of whether a measure or order should have been granted. (91)
The Working Group agreed that costs and damages may be awarded to “any party,”
regardless of whether the interim measure or preliminary order was directed at the party,
(92) and that costs and damages should be issued as an “award,” so that the arbitral
tribunal's decision may be challenged or enforced. (93) The allowance that the arbitral
tribunal may award costs and damages at “any point during the proceedings” was said to
refer to any point during the arbitral proceedings, not limited only to the proceedings
relating to the preliminary order or interim measure. (94)
Section 4. Recognition and enforcement of interim measures
Articles 17 H and 17 I are modeled on Articles 35 and 36 of the Model Law, which in turn
were modeled on the New York Convention. Article 17 H provides the procedure for
obtaining recognition and enforcement of an interim measure; Article 17 I sets out the
limited grounds under which a court may decline to recognize or enforce a measure.
Articles 17 H and 17 I are distinct from Articles 35 and 36 in two important ways: consistent
with the Working Group's decision in Article 17 not to define the form of interim measures,
(95) while Articles 35 and 36 refer to an “arbitral award,” Article 17 H does not condition
recognition or enforcement of an interim measure on the form of the measure; (96) and
where Articles 35 and 36 assign the burden of proof for the recognition or enforcement of
an award, Article 17 I is silent as to the burden of proof. (97) Allocation of the burden of
proof in the enforcement of interim measures was said to be a matter that is to be
determined in accordance with the applicable national law. (98)
P 181
P 182
The decision not to address the burden of proof in Article 17 I, when it is addressed in
Article 36, is not entirely satisfactory draftsmanship, but it was more or less forced by the
complexity of the issue. It was said, for example, in connection with the specific ground for
non-enforcement that a party did not receive proper notice of the proceeding, that it was
unnecessary to specify the burden of proof because “it was apparent that it was for the
party against whom the interim measure was sought to show that it was not given proper
notice.” (99) Later in the same session, the precisely opposite view was expressed. (100)
The Working Group Report hints elsewhere at some of the difficulties that addressing the
burden of proof was thought to present. In addressing the standard of proof, the Report
notes:
“Regarding the standard of proof, a widely shared opinion was that the urgent
need for enforcement and the ephemeral character of an interim measure
would seem to indicate that the court should apply a prima facie standard when
examining the issue of enforcement of such a measure, as opposed to the more
stringent standard of proof that would typically be required when considering
the enforcement of an arbitral award on the merits of the case. The prevailing
view, however, was that the issue of the standard of proof should not be dealt
with in any detail in the draft enforcement provision and would better be left to
applicable law.” (101)
In the end, the Secretariat urged that the significance of the distinction between Articles 17
I and 36 on the burden of proof be explained in “any explanatory material” that might be
P 182 issued in conjunction with the revised Model Law. (102) No such explanatory material was
P 183 ultimately prepared. In the event that other domestic law provides little guidance on
this specific problem, it is likely that a court will need to develop its own allocation and
standards of burden of proof based on the particular case before it.
Article 17 H. Recognition and enforcement

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 Paragraph 1. Paragraph 1 of Article 17 H establishes that an interim measure issued by an
arbitral tribunal, regardless of the form in which the measure is issued, shall be recognized
as binding on the parties, and shall be enforced upon application to a competent court
“unless otherwise provided” by the arbitral tribunal or the court finds that grounds exist
under Article 17 I to refuse enforcement. (103) A party does not need the permission of the
arbitral tribunal to request recognition or enforcement of an interim measure, and an
interim measure may be recognized and enforced in multiple jurisdictions. (104) As noted
under Article 17 C, preliminary orders are binding on the parties, but not enforceable in a
court.
Article 17 H applies to all interim measures issued by an arbitral tribunal, whether the
place of arbitration is the State where recognition or enforcement is sought, outside that
State, or even not yet determined. (105) Similarly, recognition or enforcement may not be
denied on the basis that the place of arbitration has not enacted the Model Law or that an
interim measure does not comply with the requirements of Article 17. (106)
Paragraph 2. Paragraph 2 requires a party that is seeking or has obtained recognition or
enforcement of an interim measure to “promptly inform the court” of any termination,
suspension or modification of the interim measure by the arbitral tribunal. (107) The
purpose of this duty is to enable the court to terminate, suspend or modify its enforcing
order, (108) and the duty continues for the duration of the measure. (109) The
P 183 circumstances under which a court may terminate, suspend or modify its enforcing order,
P 184 and a party's liability for breach of this duty to inform, are governed by the applicable
national law. (110)
Paragraph 3. Paragraph 3 authorizes a court to order a party requesting recognition or
enforcement of an interim measure to provide “appropriate security” if the court considers
it “proper” and either the arbitral tribunal that issued the measure has not made a
determination with respect to security or security is “necessary” to protect the rights of
third parties. If an arbitral tribunal has made a determination, either positive or negative,
as to security, the court may not review the arbitral tribunal's decision or otherwise
reconsider whether security is necessary to protect the rights of the parties to the
arbitration. (111)
When the court is authorized to consider granting security, it is within the court's discretion
to determine the level of security that constitutes “appropriate security” in the
circumstances of a case, though the Working Group agreed that “security for costs” was “too
narrow” a description of the level of security that a court may order under Article 17 H. (112)
Similarly, other than the conditions expressly provided in paragraph 3, the Working Group
did not express a view as to when it may be “proper” for a court to order security. An
example that was discussed by the Secretariat early in the drafting of the 2006
amendments was when the jurisdiction of the arbitral tribunal has been challenged, as in
that circumstance there might be reason to question the viability of the interim measure.
(113)
Article 17 I. Grounds for refusing recognition or enforcement
Paragraph 1. Paragraph 1 of Article 17 I enumerates the grounds under which a court may
refuse to recognize or enforce an interim measure. The Working Group expressly chose to
use the word “only” in the first sentence of paragraph 1 to emphasize that the
circumstances under which a refusal may occur are limited to those provided in paragraph
1. (114) The grounds for refusing recognition or enforcement of an interim measure are
P 184 divided into two general categories: grounds that a court may consider at the request of
P 185 the party against whom the interim measure is invoked, and grounds that the court may
consider of its own accord.
The Working Group included a footnote to the title of Article 17 I addressed to legislators in
prospective Model Law jurisdictions stating that the conditions set forth in the article “are
intended to limit the number of circumstances in which the court may refuse to enforce an
interim measure,” and that “[i]t would not be contrary to the level of harmonization sought
to be achieved … to adopt fewer circumstances in which enforcement may be refused.”
This footnote was modeled on a similar footnote to Article 35(2) of the Model Law, dealing
with recognition and enforcement of final awards. (115) Some reservations were expressed
about importing that sentiment into an article on enforcement of interim measures on the
ground that “interim measures were often issued without a complete appreciation by the
arbitral tribunal of the circumstances of the dispute.” (116) The Working Group chose to
include the footnote, however, noting that the situations, both of which involved measures
that provided the affected parties with an opportunity to be heard, were sufficiently
comparable and that the risk of abuse was sufficiently low that the desirability of aligning
like provisions should prevail. (117)
Subparagraph 1(a): opening language. Subparagraph 1(a) provides three general grounds
for refusal of an interim measure that a court may consider at the request of the party
against whom the interim measure is invoked. These grounds are modeled on the
provisions of Article 36(1)(a), with modifications and additions to account for the
temporary nature of interim measures. As noted, neither Article 17 H nor Article 17 I
indicates which party carries the burden of providing the evidence necessary to satisfy the
court or the standard of proof to be met, concluding that these questions were left to other
applicable law. (118) Instead, the Working Group chose to condition a court's refusal to

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 recognize or enforce a measure under subparagraph 1(a) simply on the court being
“satisfied” that a ground for refusal is present. (119)
P 185
P 186
Subparagraph 1(a)(i). The first circumstance under which recognition or enforcement of an
interim measure may be refused by a court is if refusal is merited under the grounds set
forth in Article 36(1)(a)(i)–(iv). These grounds for refusal are restricted to certain errors in
arbitral procedure and defects in the arbitration tribunal's jurisdiction. (120) In early
drafts, the Secretariat had replicated those grounds, with small variations, in the text of
what became Article 17 I. (121) Ultimately, the Working Group concluded that it was
preferable to reference Article 36(1)(a)(i)–(iv), in order to ensure that the respective
grounds under Articles 17 and 36 for refusing enforcement of interim measures and final
arbitration awards would be interpreted uniformly. (122)
It was suggested that the reference to Article 36(1)(a)(i) should be deleted because it
invites the court to inquire about—and possibly rule prematurely on—the jurisdiction of
the arbitration tribunal while the arbitration procedure is pending. (123) This suggestion
was rejected on the basis that, as addressed below, paragraph 2 of Article 17 I “guarded
against that risk” by providing that the court's decision under paragraph 1 would be
effective only for purposes of the recognition and enforcement of the interim measure.
(124) Thus, a court's ruling that, for example, a tribunal lacked jurisdiction to issue an
interim measure need not finally resolve the question of the tribunal's jurisdiction more
generally, though, depending on the grounds and record before the court, such a finding
might have the same practical effect as a final ruling on jurisdiction.
Subparagraph 1(a)(ii). This subparagraph provides that recognition or enforcement may be
denied if a tribunal decision that the proponent of the interim measure post security has
not been complied with. Some argued that this ground for refusal was unnecessary
because an arbitration tribunal would often order the party requesting an interim measure
P 186 to provide security as a condition precedent to the issuance of a measure. (125) It was
P 187 suggested, however, that in practice a tribunal may give immediate effect to an interim
measure and allow a party a period of time to provide security. (126) To address that
possibility, the Working Group agreed that a court must be able to refuse to recognize or
enforce an award if an arbitration tribunal's “decision” with respect to security has not
been complied with. (127) The Working Group expressly chose the word “decision” to ensure
that this provision would be interpreted to apply equally to all decisions of an arbitration
tribunal as to security regardless of whether the decision took the form of an order or
award or another form. (128)
Subparagraph 1(a)(iii). The Model Law does not authorize the courts of an enacting State to
set aside an interim measure. (129) Subparagraph 1(a)(iii) acknowledges, however, that an
interim measure may be suspended or terminated by the arbitral tribunal that issued the
measure, or by a court applying the law of the State where the “arbitration takes place or
under the law of which that interim measure was granted.” A court might do that under a
law at the place of arbitration other than the Model Law that permits courts to set aside an
interim measure issued by an arbitral tribunal. (130) The Working Group agreed that if an
interim measure was suspended or terminated under either scenario, a court operating
under the Model Law should be permitted to refuse recognition or enforcement of the
interim measure. (131) The reference to the law of the State where the “arbitration takes
place” or “under the law of which that interim measure was granted” refers to the lex arbitri
of the arbitration, and was adopted in order to be consistent with the language of Article
36(1)(a)(v). (132)
Subparagraph 1(b)(i). The court's power to modify an interim measure under subparagraph
1(b)(i) is intended to be limited to making the interim measure enforceable according to
the procedural law of the court, and does not include the authority to modify the
substance of an interim measure. (133) The Working Group expressed the view that a court
P 187 should decline enforcement of an interim measure that it considers to be unenforceable
P 188 absent modification of the substance of the measure. (134) Examples of procedural
modifications that were noted by the Secretariat were when an interim measure addresses
or fails to address specific details to be presented in an enforcement order under the rules
and practices of the enforcing court or the process by which enforcement is to be carried
out. (135) Another more specific example cited was when an interim measure directing a
party to produce documents to another party must be modified to exclude documents
containing information that is protected by the laws of privacy or privilege that bind the
court. (136)
Subparagraph 1(b)(ii). As in subparagraph 1(a)(i), the Working Group considered it
preferable to expressly reference the provisions of Article 36(1)(b)(i)–(ii) on arbitrability
and public policy, rather than to replicate the language of those rules under Article 17 I.
Directly referencing Article 36(1)(b)(i)–(ii) was thought to increase the likelihood that the
respective arbitrability and public policy grounds under Articles 17 and 36 for refusing
enforcement of interim measures and final arbitration awards would be applied uniformly.
(137)
There was resistance within the Working Group to including Article 36(1)(b)(i) as a ground
for refusal under subparagraph 1(b)(ii) because a court may not have sufficient information
at the time enforcement of an interim measure is sought to determine whether the dispute

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 addresses a subject matter that is not arbitrable under the applicable law. (138) The view
prevailed, however, that arbitrability should be a ground for refusal because, when the
subject matter of the dispute is clear at the interim measures phase, and that subject
matter is not arbitrable under the law of the enforcing State, it would be inconsistent for
the enforcing court to enforce the interim measure. (139)
The Working Group considered whether a third ground should be included under
subparagraph 1(b) so as to expressly authorize a court to refuse recognition or enforcement
P 188 of an interim measure if the law of the place of arbitration, the law under which the interim
P 189 measure was granted, or the arbitration agreement did not permit arbitral tribunals to
grant interim measures. The Group concluded that the additional ground was unnecessary,
however, because recognition or enforcement of interim measure granted under those
circumstances could be refused under Article 36(1)(a)(iii), which, as noted above, is
incorporated by reference into subparagraph 1(a)(i). (140)
Paragraph 2. Paragraph 2 limits the scope and effect of the court's review of an interim
measure. The Working Group agreed that the scope of a court's review of an interim
measure under paragraph 1 is to be limited to the procedural aspects of the interim
measure, and is not to include the factual conclusions of the arbitration tribunal or the
substance of the measure. (141) Furthermore, the effect of a court's decision on any ground
under paragraph 1, whether the decision is positive or negative, is confined to the
application to recognize or enforce the interim measure. Although the grounds under
paragraph 1 for refusing recognition or enforcement of an interim measure incorporate the
grounds under Article 36(1)(a)(i)–(iv), some of which address the jurisdiction of the
arbitration tribunal, a court's conclusions as to any of those grounds in the context of
reviewing an interim measure are not supposed to affect the arbitral tribunal's
competence to decide its jurisdiction in the first instance, or any subsequent review by a
court in proceedings to recognize or enforce a final award. (142)
Section 5. Court-ordered interim measures
Article 17 J. Court-ordered interim measures
The purpose of Article 17 J is twofold: to clarify that a competent court is authorized to
issue interim measures with respect to pending arbitration proceedings; and to extend the
court's authority to issue interim measures in support of arbitration to all arbitration
P 189 proceedings, regardless of whether the proceedings are taking place in the State where the
P 190 court is located or in another State. Though Article 9 of the Model Law establishes that,
if permitted under the applicable national law, it is not incompatible with an arbitration
agreement for a party to request court-ordered interim measures of protection and for a
court to grant such measures, the Secretariat reported that there was uncertainty in some
jurisdictions as to whether courts could be authorized to issue interim measures in support
of arbitrations in which there was a valid arbitration agreement. (143)
The Working Group viewed the extension of the court's authority to issue interim measures
in support of arbitrations taking place in other jurisdictions as necessary to meet the
needs of modern international arbitration practice. (144) It was noted that it was a feature
of international arbitration to seek to “secure assets, follow a vessel, preserve evidence, or
ask for actions to be taken” in jurisdictions other than the place of the arbitration. (145) In
addition to expressly providing this authority in the text of Article 17 J, the Working Group
amended Article 1(2) to reflect that Article 17 J is an exception to the territorial limitation
of the Model Law. (146)
Members of the Working Group proposed harmonizing the scope and procedure for issuing
court-ordered interim measures with the rules applicable to interim measures granted by
the arbitral tribunal, (147) including addressing whether to allow courts to grant ex parte
measures (148) and whether an arbitral tribunal or court should defer to the other when
they hold concurrent jurisdiction to issue interim measures. (149) The Group concluded,
however, that such harmonization was too ambitious to be achieved at that time by an
international instrument. (150) Instead, the Working Group agreed that courts should have
the same authority to issue interim measures in support of arbitration as they do in
P 190 litigation, and that courts should exercise such power in accordance with their own
P 191 procedures, subject to the caveat that a court's procedure should be applied with
consideration of the “specific features of international arbitration.” (151)
P 191
P 192

Legislative History
1985 MODEL LAW PROVISION

Article 17 Power of Arbitral Tribunal to Order Interim Measures

Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a
party, order any party to take such interim measure of protection as the arbitral tribunal
may consider necessary in respect of the subject-matter of the dispute. The arbitral
tribunal may require any party to provide appropriate security in connection with such
measure.
Articles 17 – 17 J (Common Materials)

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 [Editors' Note: The legislative history section on Articles 17 – 17 J is divided into four parts. The
materials that follow concern matters common to Articles 17 – 17 J of three kinds: materials
on the background to the decision to undertake the revisions, materials on the format of the
provisions (e.g., in separate articles, an annex, a footnote), and government comments on the
amendments as a whole. For materials on Articles 17 – 17 G (dealing with the issuance of
interim measures by arbitral tribunals), see pp. 206–435 infra. For materials on Articles 17 H –
17 I (dealing with recognition and enforcement of such interim measures), see pp. 436–547
infra. For materials on Article 17J (dealing with court-ordered interim measures), see pp. 548–
86 infra.]
MATERIALS ON DECISION TO UNDERTAKE REVISIONS
1999 COMMISSION REPORT A/54/17 (ADOPTED 4 JUNE 1999)
l. Enforceability of interim measures of protection (discussing [the April 1999 Secretariat
Note,] A/CN.9/460, paras. 115–27[, reprinted in the section on Arts. 17 H – 17 I, pp. 436–39
infra])
371. It was generally agreed in the Commission that the question of enforceability of
interim measures of protection issued by an arbitral tribunal was of utmost practical
importance and in many legal systems was not dealt with in a satisfactory way. It was
considered that solutions to be elaborated by the Commission on that topic would
constitute a real contribution to the practice of international commercial arbitration. It
was agreed that the issue should be addressed through legislation. While suggestions were
made that a convention was the appropriate vehicle for dealing with this matter, support
was also expressed for the suggestion that model legislation be prepared.
P 192
P 193
372. As to the substance of future work, several observations and suggestions were made.
One was that, in addition to the enforcement of interim measures of protection in the State
where the arbitration took place, enforcement of those measures outside that State should
also be considered. It was said that, while the possible objective of future work was to
make interim measures of protection enforceable in a similar fashion as arbitral awards, it
should be borne in mind that interim measures of protection in some important respects
differed from arbitral awards (e.g. an interim measure might be issued ex parte, and might
be reviewed by the arbitral tribunal in light of supervening circumstances). As to ex parte
measures, it was observed that under some legal systems they could only be issued for a
limited period of time (e.g. 10 days), and a hearing had to be held thereafter to reconsider
the measure. Court assistance to arbitration (in the formof interim measures of protection
issued by a court before the commencement of, or during, arbitral proceedings) was also
suggested for study.
373. It was agreed that the topic should be accorded high priority.
APRIL 2000 WORKING GROUP REPORT A/CN.9/468 (10 APRIL 2000)
II. Deliberations and Decisions
[.…]
B. Enforceability of interim measures of protection
[Editors' Note: Relevant excerpts from the January 2000 Secretariat Note,
A/CN.9/WG.II/WP.108, that was before the Working Group are reprinted at pp. 209–212
(issuance of interim measures by arbitral tribunals) and 206–08, 439–46 (enforcement of such
measures) infra.]
1. General considerations
60. There was general recognition in the Working Group of the fact that interim measures of
protection were increasingly being found in the practice of international commercial
arbitration and that the effectiveness of arbitration as a method of settling commercial
disputes depended on the possibility of enforcing such interim measures. In some cases
the very usefulness of the award for the winning party depended on whether the party had
been able to enforce the interim measure designed to facilitate later enforcement of the
award.
61. It was noted that in many legal systems a party to arbitral proceedings might request
interim measures of protection from either the arbitral tribunal or a court, and there was
no doubt in the Working Group that such a dual availability of those measures should be
preserved. At the same time, it was noted that in some States there were no adequate
regulations in that field.
62. It was observed that interim measures of protection ordered by arbitral tribunals were
P 193 often combined with orders for the provision of appropriate security designed to protect
P 194 one or both parties against misuse of interim measures. Such security was considered
essential for the good functioning of interim measures and it was agreed that the uniform
provisions to be prepared should take that into account.
63. A proposal was made, in particular, for elaboration of a general regime covering the
adoption of interim measures of national and foreign courts in the period before the
arbitral tribunal had been constituted and, at the choice of a party, by a court or the

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 arbitral tribunal after it had been constituted (see below paras. 85– 87[, reprinted in the
section on Art. 17 J, p. 548 infra]).
64. It was further observed that interim measures of protection were temporary in nature
in that any such measure ordered by an arbitral tribunal might be reviewed or altered if
the circumstances of the case or the progress of arbitral proceedings required. That salient
feature should be reflected in any uniform provision to be prepared. Yet another
circumstance to be borne in mind was that interim measures of protection ordered by an
arbitral tribunal may only be directed to a party or parties bound by the arbitration
agreement and not to third parties. On the other hand, it was noted that, even if not
directed at a third party, an interim measure may nevertheless affect third persons
holding, for example, money or other assets of the party concerned, since they may be
obliged to take some action in respect of that property by virtue of the order directed to
the party.
65. It was noted that under the procedures used in some jurisdictions the arbitral tribunal
might order a party to make an “interim payment” or “interim partial payment” to the
other party (insofar as it was beyond doubt that the amount of the interim payment was
due) and that such payment was to be merged into the final award. There was general
agreement that such orders for interim payment were not to be considered interim
measures of protection as discussed by the Working Group and were not to be a subject
matter of any uniform provisions to be prepared.
66. At various stages of the discussion of enforceability of interim measures of protection
reference was made to the power of the arbitral tribunal to issue such measures, the scope
of that power and procedures for issuing interim measures. Noting that a model legislative
provision dealing with that power was contained in article 17 of the UNCITRAL Model Law
on International Commercial Arbitration, it was recognized that the issue of enforceability
of interim measures of protection should be considered separately from the issue of the
power of the arbitral tribunal to order interim measures of protection and related
procedural questions. (See below, paras. 80–84[, reprinted in the section on Arts. 17 – 17 G,
pp. 213–14 infra], for the discussion on the scope of interim measures that may be issued by
an arbitral tribunal and conditions for issuance.)
2. Need for a uniform regime
67. There was general support in the Working Group for the proposition to prepare a
legislative regime governing the enforcement of interim measures of protection ordered by
arbitral tribunals([January 2000 Secretariat Note,] A/CN.9/WG.II/WP. 108, para. 76[, reprinted
P 194 in the section on Arts. 17 H – 17 I, pp. 440–41 infra]). It was generally considered that that
P 195 legislative regime should apply to enforcement of interim measures issued in
arbitrations taking place in the State where enforcement was sought as well as outside that
State (ibid., para. 92 [p. 443 infra]).
[Editors' Note: The discussion that followed concerned (i) the scope of interim measures to be
issued by arbitral tribunals and procedures for their issuance, and those materials are
reprinted at pp. 213-14 infra; (ii) recognition and enforcement of such measures by court, pp.
446–50 infra; and (iii) rules for the issuance of interim measures by courts, p. 548 infra.]
MATERIALS ON FORMAT OF THE PROVISIONS
JANUARY 2005 WORKING GROUP REPORT A/CN.9/573 (27 JANUARY 2005)
VII. Other business
[.…]
99. As to the relationship between the existing text of the Model Law and the draft revised
articles, the Secretariat was requested to consider the issue of the form in which the
current and the revised provisions could be presented, with possible variants to be
considered by the Working Group at a future session.
2005 COMMISSION REPORT A/60/17 (26 JULY 2005)
V. Arbitration: progress report of Working Group II
[.…]
176. The Commission noted that the Working Group had yet to finalize its work on draft
articles 17 [Arts. 17 –17 G in the final text], 17 bis [Arts. 17 H –17 I in the final text] and 17 ter
[Art. 17 J in the final text], including the issue of the form in which the current and the
revised provisions could be presented in the Arbitration Model Law. In respect of the
structure of draft article 17, it was proposed that the issue of preliminary orders should be
dealt with in a separate article in order to facilitate the adoption of draft article 17 by
States that did not wish to adopt provisions relating to preliminary orders. As a matter of
drafting, the Commission also took note of a proposal that the revised text of draft articles
17, 17 bis and 17 ter should not be included in the body of the Model Law but in an annex.
[…]
P 195
P 196
AUGUST 2005 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.138 (8 AUGUST 2005)
Part IV

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 Possible options on the issue of the form in which the current and revised provisions
could be presented in the Model Law
65. At its forty-second session, the Working Group requested the Secretariat to consider the
issue of the form in which the current and the revised provisions could be presented, with
possible variants to be considered by the Working Group at a future session ([January 2005
Working Group Report,] A/CN.9/573, para. 99).
66. The Working Group might wish to consider two different issues in relation to the form in
which the current and the revised provisions could be presented. The first one relates to
the structuring of the provisions, the second one to the placement of those provisions in
the Model Law.
A. Structuring of the revised provisions
(1) Placement of definition
67. Article 17, paragraph (2), contains a definition of interim measures of protection. One
approach could be to include that definition under article 2 of the Model Law, which
relates to the definitions and rules of interpretation of the Model Law. That approach
would simplify the drafting of article 17 [Arts. 17 – 17 G in the final text]. However, the
Working Group might wish to further consider whether the definition of “interim measures”
currently contained in article 17, paragraph (2), which applies in respect of interim
measures granted by arbitral tribunals, should be redrafted so as to apply also to interim
measures granted by State courts under article 9 and article 17 ter [Art. 17 J in the final text]
of the Model Law.
(2) Preliminary orders
68. At its thirty-eighth session, the Commission heard a proposal that the issue of
preliminary orders should be dealt with in a separate article to facilitate the adoption of
draft article 17 by States that would not wish to adopt provisions relating to preliminary
orders ([2005 Commission Report,] A/60/17, para. 176). If that proposal were to be accepted
by the Working Group, then the following options for the presentation of that new article
might be considered by the Working Group:
– The article on preliminary orders might be included following article 17, and articles
17 bis [Arts. 17 H –17 I in the final text] and 17 ter would then be renumbered
accordingly; or
– Due to the wide divergence of views expressed in the discussions on that matter, the
P 196 Working Group might wish to consider whether the article should appear as a
P 197 footnote along the lines adopted, for example, in article X as appended to article
4 of the UNCITRAL Model Law on International Commercial Conciliation.
B. Placement of the revised provisions in the Model Law
69. Concerning the placement of the revised provisions in the text of the Model Law,
various options might be considered, as follows.
(1) Placement of the revised provisions under chapter IV or IV bis of the Model Law
70. A first option would be to replace the current article 17 by the revised provisions on
interim measures of protection and include articles 17, 17 bis and 17 ter in the current
chapter IV of the Model Law. That option presents the advantage of simplicity. However, it
should be noted that, whilst chapter IV deals with the jurisdiction of arbitral tribunal,
articles 17 bis and 17 ter relate to State court intervention and, for that reason, might be
better placed in a new chapter.
71. If a new chapter entitled “Interim Measures of Protection” (possibly numbered chapter
IV bis) and containing articles 17 to 17 ter were created, that chapter could include an
indication of the date at which that chapter was adopted by the Commission. A similar
approach was taken in respect of article 5 bis of the Model Law on Electronic Commerce.
Inclusion of the date at which the chapter was adopted by the Commission would give an
indication to enacting States of the reason why the drafting style of the revised provisions
differs from the remaining provisions of the Model Law. If the Working Group agreed to
include a new chapter, the current chapter IV would only contain article 16 and the
question of whether or not to renumber both the chapters and the articles of the Model
Law might need to be considered.
(2) Placement of the revised provisions as ancillary text to the Model Law
72. Another option would be to include the revised provisions on interim measures as a
footnote to the current article 17 or in an annex to the Model Law. Explanatory material
should then clarify that the revised provisions should be read as replacing the current
provision on interim measures. One advantage of that option would be to avoid any
restructuring of the Model Law. That annex might also be used to insert additional
revisions that might be made to the Model Law. However, the Working Group may wish to
consider whether such a presentation would not create the false impression that there are
two classes of provisions, namely those contained in the annex being of secondary
importance compared to those contained in the text of the Model Law itself.
(3) Presentation of the revised provisions as a separate set of model legislative provisions on

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 interim measures of protection in international commercial arbitration
73. Another option would be to present the revised provisions on interim measures of
protection as a discrete set of provisions, formally distinct from the Model Law, and
P 197 dealing with a specific procedural aspect of arbitration. Indication could be made that
P 198 those provisions are intended to build upon the current article 17 of the Model Law.
Such an approach would offer an advantage to enacting States that deal with interim
measures of protection in legislation separate from that dealing with international
arbitration.
C. Explanatory material
74. The Working Group expressed the wish that explanatory material be prepared in
relation to the revised provisions. The Working Group might wish to consider various
options for the presentation of the explanatory material. The explanatory material could
be drafted along the lines of the current explanatory note, which accompanies the Model
Law, and replace paragraph 26 of the current explanatory note. Another option would be to
provide more detailed information on interim measures of protection to enacting States
and to prepare a legislative guide on the revised provisions. The Working Group might wish
to further consider whether it would be appropriate to also prepare a legislative guide for
the remaining provisions of the Model Law.
OCTOBER 2005 WORKING GROUP REPORT A/CN.9/589 (12 OCTOBER 2005)
VI. Possible options on the issue of the form in which the current and revised provisions
could be presented in the UNCITRAL Model Law on International Commercial Arbitration
[.…]
105. The Working Group agreed that the provisions of articles 17 [Arts. 17 –17 G in the final
text], 17 bis [Arts. 17 H –17 I in the final text] and 17 ter [Art. 17 J in the final text] be placed in
a new chapter, numbered chapter IV bis. Diverging views were expressed on whether the
title of that new chapter should refer to “interim measures” only or include as well the
words “preliminary orders”.
106. It was suggested that paragraph (7) [Arts. 17 B, C, E(2) and F(2) in the final text] of draft
article 17 on preliminary orders be dealt with in a separate article. Another suggestion was
that draft articles 17 and 17 bis should be restructured by grouping paragraphs relating to
similar issues under separate articles. It was said that the advantage of that presentation
would be that the drafting style of the Arbitration Model Law could thereby be preserved
and it would allow for a more logical presentation of the provisions. Cautioning that
restructuring of these provisions could prove to be a time-consuming exercise, the Working
Group requested the Secretariat to prepare a revised draft of articles 17 and 17 bis taking
account of these comments and agreed to consider that presentation at its next session.
VII. Report of the drafting group
107. The Working Group having completed its deliberations regarding draft articles 17 [Arts.
17 –17 G in the final text], 17 bis [Arts. 17 H –17 I in the final text] and 17 ter [Art. 17 J in the final
P 198 text], a drafting group was established by the Secretariat to implement decisions by the
P 199 Working Group and ensured consistency between the various language versions of the
text. The report of the drafting group, as adopted by the Working Group is annexed to this
report.
[Editors' Note: The draft prepared by the drafting group appears at pp. 404–06, 535–36 and
579 infra.]
5 DECEMBER 2005 SECRETARIAT NOTE A/CN.9/WG.II/WP.141 (5 DECEMBER 2005)
I. Proposal on the form in which the legislative provisions on interim measures and
preliminary orders could be presented in the Model Law
4. The following text sets out a proposal as to the presentation of the draft legislative
provisions on interim measures and preliminary orders, recognition and enforcement of
interim measures and court-ordered interim measures. Modifications to the earlier draft
contained in the annex to the report of the Working Group on the work of its forty-third
session (annex to [the October 2005 Working Group Report,] A/CN.9/589) have been
underlined in the text below. As well, a comparative table outlining the concordance of the
numbering between articles of the earlier draft and articles of the text below has been
annexed to this note.
[Editors' Note For the texts of these draft provisions, see pp. 404–06, 535–36 and 579 infra.]
II. Notes on the form in which the legislative provisions on interim measures and
preliminary orders could be presented in the Model Law
Structure of the provisions
5. As agreed by the Working Group, the provisions on interim measures, preliminary orders,
recognition and enforcement of interim measures and court-ordered interim measures are
placed in a new chapter, numbered chapter IV bis ([October 2005 Working Group Report,]
A/CN.9/589, para. 105). As suggested by the Working Group, those provisions have been
restructured by grouping paragraphs relating to similar issues under separate articles
([October 2005 Working Group Report,] A/CN.9/589, para. 106). In order to better clarify the

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 proposed structure of the revised text, section headings have been included. This structure
has the advantage of providing a logical presentation of the provisions, and avoids
creating an article on interim measures that is of inordinate length as compared to other
articles in the Model Law.
FEBRUARY 2006 WORKING GROUP REPORT A/CN.9/592 (27 FEBRUARY 2006)
IV. Draft legislative provisions on interim measures and preliminary orders
[.…]
P 199
P 200
Location and structure of chapter IV bis
14. The Working Group agreed that the draft legislative provisions on interim measures and
preliminary orders should be located in a new chapter of the Arbitration Model Law and
agreed that the articles could be grouped into sections as suggested in [the 5 December
2005 Secretariate Note,] A/CN.9/WG.II/WP.141.
Numbering of provisions
15. A comment was made that the Latin numbering of articles could be problematic for
users unfamiliar with such numbering. In response, it was noted that the Latin numbering
was consistent with the approach taken in other UNCITRAL instruments, such as, for
example, article 5 bis of the UNCITRAL Model Law on Electronic Commerce.
16. After discussion, the Working Group agreed to retain the numbering of the draft
legislative provisions, as set out in [the 5 December 2005 Secretariate Note,]
A/CN.9/WG.II/WP.141.
[Editors' Note: The Latin numbering of the articles that followed Article 17 was changed to
letter-style (e.g., Article 17 A instead of Article 17 bis) in printing the final adopted text as an
Annex to the 2006 Commission Report, A/60/17. No explanation for the change appears in the
Report, but the Commission adopted a new Article 2 A at that session using the letter-style
numbering. See the 2006 Commission Report, A/61/17, para. 175, in the section on the new Art.
2 A, p. 27 supra.]
GOVERNMENT COMMENTS ON REVISIONS AS A WHOLE
MAY 2006 SECRETARIAT NOTE GOVERNMENT COMMENTS A/CN.9/609 (4 MAY 2006)
II. Comments received from Member States and international organizations
A. Member States
[.…]
Italy
Comments on Draft legislative provisions on interim measures and preliminary orders
(Annex I)
Under the present status of Italian law on arbitration, arbitrators are not granted the
power to issue interim measures or preliminary orders. The Italian view of the matter is
that such power ought to be reserved to the exclusive benefit of the Court of competent
jurisdiction. This fundamental choice of the Italian legal system is not expected to change
in the near or foreseeable future. Thus, the proposed new UNCITRAL rules on interim
P 200 measures and preliminary orders are unlikely to be adopted, in whole or in part, by the
P 201 Republic of Italy. This would be even more stringent for interim measures recognized
inaudita altera parte. The Italian Delegation had already submitted in the past comments
and proposals on the above, that are reiterated and recalled here.
Assuming however that, notwithstanding the above, the Commission may still find it useful
to receive comments from an Italian perspective on such proposed new rules, the following
comments are offered.
1. The entire Chapter IV bis (from Article 17 to Article 17 undecies [Art. 17 J in the final text])
is drafted in a very detailed and analytical form and in a legal style that, it is submitted, is
likely to be accepted without difficulties only by countries which belong to the common
law tradition.
Adoption by countries, such as Italy, belonging to the civil law tradition would encounter
less difficulties, if a more concise style were adopted and more reliance were placed on
the traditional gap-filling function of national procedural rules governing in each country
the exercise of summary jurisdiction on grounds of urgency.
2. It would be appropriate to make it clear (whether in the text of the Draft provisions or in
an official Commentary or in the Guide to Enactment) that in Chapter IV bis the word
“party” may only mean a “party to the arbitration agreement”, not a third party whose
position may be affected by the interim measure or the preliminary order, but whose
consent to being subjected to the jurisdiction of the arbitral tribunal is lacking.
Article 17 quater (2) [Art. 17 C(2) in the final text] provides a good illustration of a provision
whose legal certainty would benefit, it is submitted, from the insertion of the above
suggested clarification.

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 A/CN.9/609/ADD.1 (4 MAY 2006)
II. Comments received from Member States and international organizations
A. Member States
2. China
[.…]
I. Revised Legislative Provisions on Interim Measures and Preliminary Orders
(I) General comments on the text as a whole
The present draft represents an extensive expansion of the provisions in Article 17 of the
1985 UNCITRAL Model Law on International Commercial Arbitration regarding the power of
the arbitral tribunal to order interim measures. The terms “interim measures” and
“preliminary orders” are similar in meaning to “preservative measures” known in China's
legal system, which include preservative measures towards property and preservative
P 201 measures with regard to evidence. The Arbitration Law of China states in its Article 28 that
P 202 “… If one of the parties applies for property preservation, the arbitration commission
shall submit to a people's court the application of the party in accordance with the
relevant provisions of the Civil Procedure Law”; and in its Article 46 that “… If the parties
apply for such preservation, the arbitration commission shall submit the application to the
basic-level people's court of the place where the evidence is located.” In other words, the
Chinese law has not accorded the arbitral tribunal the power to order preservative
measures, nor the power to order interim measures or issue preliminary orders. In this
connection, therefore, the present draft is in conflict with the relevant provisions of the
Chinese civil procedure law and the arbitration law. There is no legal basis for courts in
China to recognize and enforce interim measures and preliminary orders from foreign
arbitral tribunals.
A/CN.9/609/ADD.2 (10 MAY 2006)
II. Comments received from Member States and international organizations
A. Member States
3. Germany
[.…]
1. Interim measures, article 17 et seq.
The German Government welcomes the Draft of article 17 et seq. now put forward. We
therefore do not intend to make any suggestions regarding changes.
A/CN.9/609/ADD.4 (18 MAY 2006)
II. Comments received from Member States and international organizations
A. Member States
5. United Kingdom
United Kingdom comments on Article 17 of the Model Law and the future work of UNCITRAL
Following the last meeting of the Working Group in New York, we agreed to send comments
on the work of UNCITRAL, in light of its recent project on interim measures and in particular
“preliminary orders”.
As we noted at the meeting, the United Kingdom has mixed feelings about the completion
of this project.
On the one hand, we are of course happy that the Working Group has finally arrived at an
agreed draft, which can go forward to the Commission next month, leaving the way clear, at
last, for new projects. We would particularly like to congratulate the Chairman and the
Secretariat for the tireless work and drafting skills in arriving at a final solution after many
difficult sessions.
P 202
P 203
On the other hand, however, it is the nature of this process itself that gives rise to serious
concerns—quite apart from the United Kingdom's reservations on the substance of the new
provision (which are now a matter of record, and need not be restated).
On any view, the Working Group's draft on “preliminary orders” has been the subject of
extraordinary controversy inside and (more troublingly) outside UNCITRAL. Even ahead of
the Commission's consideration, it is already apparent that the new provision will be met
with a substantial body of criticism in the international field. This is not to say that it does
not also have a body of support, but the key question for us is whether this is really a
position in which UNCITRAL should ever find itself. We cannot think of any previous project
(short of the Model Law itself) that has had such a difficult gestation, and required so many
resources for what, so far as “preliminary orders” are concerned, may be considered a
somewhat modest result.
Early on in this particular project, it became manifest that there was no international

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 consensus on “ex parte” measures. On the contrary there was—and remains—profound
disagreement amongst specialists. The result was inevitable: lengthy debates; difficult
Working Group sessions; and a final draft that has the weaknesses of any hard fought
compromise.
Our fear, which we have expressed previously, is that the end result may damage
UNCITRAL's international standing and future influence. UNCITRAL has a unique reputation
worldwide in the development of commercial law. In our view, a key element in its success
has been its acceptance as a neutral and expert body, able to express an international
consensus, and therefore of significant influence across diverse cultures and legal
traditions. It has been and should be a source of innovation, but within careful bounds. As
soon as its work is perceived as controversial, or a vehicle for the interests of a few
dominant delegations, it may lose this standing. Equally, as soon as its processes are seen
as inefficient in terms of cost and time, it may be that much harder to attract and maintain
international participation.
This is all the more regrettable in this case, given that the relatively minor “ex parte”
element of our work has been allowed to overshadow the rest of the project, and what is
certainly a commendable draft on “inter partes” measures.
Our suggestion is that this experience be borne in mind in structuring UNCITRAL's future
work. In particular, it is our hope that UNCITRAL will continue to innovate, and to push the
international consensus as far as it will go. At the same time, however, it is vital that
UNCITRAL avoids “trouble spots”, internal division, and the expenditure of
disproportionate resources where this is avoidable.
The United Kingdom strongly supports the work of UNCITRAL, and will continue to do so. We
hope that these few observations will be understood, as they are intended, as constructive
comments, and we look forward to working closely with UNCITRAL in its future work in this
area.
P 203
P 204
A/CN.9/609/ADD.5 (30 MAY 2006)
II. Comments received from Member States and international organizations
A. Member States
6. France
General remarks
1. The French delegation notes with regret that the Working Group's method of functioning
did not fully meet its expectations. It felt that, on numerous occasions, every effort had not
been made to reach truly consensus solutions. For example, the Working Group
unfortunately did not take into account the reservations expressed—by a majority at the
last plenary session—regarding “preliminary orders” and preferred to make no
amendments whatsoever to the provisions drafted on this issue. Also, it adopted a
provision on “anti-suit injunctions” despite the reservations expressed by many
delegations. The reports of the Working Group are sometimes elliptical on these matters
and do not sufficiently make the point that a compromise could be achieved only under
particularly difficult conditions.
2. As to substance, the French delegation gives a mixed appraisal of the work of the
Working Group, in which it nonetheless participated positively and constructively. While
the definitions of interim measures that can be ordered by an international arbitrator are
generally welcome, many provisions are overly cumbersome—as a comparison with the
original provisions of the Model Law reveals—if not questionable from the perspective of
arbitration practice.
3. From the viewpoint of France, all of this compromises the quality and desired universal
scope of the new model legislative provisions. A symposium held last February at the
Senate in Paris on the UNCITRAL project showed that for a good many French legal writers
and arbitration practitioners the model provisions gave rise to numerous, strong
reservations, which are largely in line with those formulated by the French delegation
during the course of the work.
A/CN.9/609/ADD.6 (19 JUNE 2006)
II. Comments received from Member States and international organizations
A. Member States
Austria
Comments on draft legislative provisions on interim measures and on the form
requirement for arbitration agreements
[.…]
In general Austria can go along with the draft text as it currently stands and avails itself of
this opportunity to congratulate the secretariat for its excellent work in the course of and
in between the Working Group meetings related to this topic.
P 204

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 P 204
P 205
2006 COMMISSION REPORT A/61/17 (14 JULY 2006)
IV. Finalization and adoption of legislative provisions on interim measures and the form
of arbitration agreement and of a declaration regarding the interpretation of articles II (2)
and VII (1) of the 1958 New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards
[.…]
B. Consideration of the draft legislative provisions on interim measures
1. General comments
88. The Commission recalled that the provisions had been drafted in recognition not only
that interim measures were increasingly being found in the practice of international
commercial arbitration, but also that the effectiveness of arbitration as a method of
settling commercial disputes depended on the possibility of enforcing such interim
measures (see [December 2000 Working Group Report,] A/CN.9/485 and Corr.1, para. 78[, p.
458 infra]). General agreement was expressed as to the need for a harmonized and widely
acceptable model legislative regime governing interim measures granted by arbitral
tribunals and their enforcement as well as interim measures ordered by courts in support
of arbitration. The Commission recalled that the draft legislative provisions on interim
measures and preliminary orders were the result of extensive discussion in the Working
Group. The Commission recalled as well that the Working Group, at its forty-second session
(New York, 10–14 January 2005), had agreed to include a compromise text of the provisions
on preliminary orders, on the basis that those provisions would apply unless otherwise
agreed by the parties; that it be made clear that preliminary orders had the nature of
procedural orders and not of awards; and that no enforcement procedure would be
provided for such orders in section 4 ([January 2005 Working Group Report,] A/CN.9/573,
para. 27[, p. 371 infra]).
P 205
P 206
Articles 17 – 17G
[Editors' Note: The legislative history section on Articles 17 – 17 J is divided into four parts. The
materials that follow concern Articles 17 – 17 G (dealing with the issuance of interim measures
by arbitral tribunals). For materials on background and formatting, and government
comments, common to Articles 17 – 17 J, see pp. 159–205 supra. For materials on Articles 17 H
– 17 I (dealing with recognition and enforcement of interim measures ordered by arbitral
tribunals), see pp. 436–547 infra. For materials on Article 17 J (dealing with court-ordered
interim measures), see pp. 548–86 infra.]
JANUARY 2000 SECRETARIAT NOTE POSSIBLE UNIFORM RULES A/CN.9/WG.II/WP.108 (14
JANUARY 2000)
II. Enforceability of interim measures of protection
A. General remarks
63. Arbitral tribunals, in response to a request of a party, often order interim measures of
protection before issuing an award in the dispute. Such measures, directed to one or both
of the parties, are referred to by expressions such as “interim measures of protection”,
“provisional orders”, “interim awards”, “conservatory measures” or “preliminary injunctive
measures”. The purposes of such measures differ and may include the following:
(a) Measures aimed at facilitating the conduct of arbitral proceedings, such as orders
requiring a party to allow certain evidence to be taken (e.g. to allow access to
premises to inspect particular goods, property or documents); orders for a party to
preserve evidence (e.g. not to make certain alterations at a site); orders to the
parties and other participants in arbitral proceedings to protect the privacy of the
proceedings (e.g. to keep files in a certain place under lock or not to disclose the
time and place of hearings);
(b) Measures to avoid loss or damage and measures aimed at preserving a certain state of
affairs until the dispute is resolved, such as orders to continue performing a contract
during the arbitral proceedings (e.g. an order to a contractor to continue construction
works despite its claim that it is entitled to suspend the works); orders to refrain from
taking an action until the award is made; orders to safeguard goods (e.g. to take
specific safety measures, to sell perishable goods or to appoint an administrator of
assets); orders to take the appropriate action to avoid the loss of a right (e.g. to pay
the fees needed to extend the validity of an intellectual property right); orders
relating to the cleanup of a polluted site;
(c) Measures to facilitate later enforcement of the award, such as attachments of assets
and similar acts that seek to preserve assets in the jurisdiction where enforcement of
P 206 the award will be sought (attachments may concern, for example, physical property,
P 207 bank accounts or payment claims); orders not to move assets or the subject-
matter of the dispute out of a jurisdiction; orders for depositing in a joint account the
amount in dispute or for depositing movable property in dispute with a third person;
orders to a party or parties to provide security (e.g. a guarantee) for costs of

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 arbitration or orders to provide security for all or part of the amount claimed from
the party.
64. Interim measures of protection may concern assets or property located in the
jurisdiction where the arbitration takes place or outside that jurisdiction.
65. The above enumeration of possible interim measures of protection is not exhaustive.
Arbitration rules that provide for their issuance typically do not provide a hard and fast
definition of the scope of measures that an arbitral tribunal may issue. Often the
formulations in the arbitration rules are rather broad; for example, they provide generally
that the arbitral tribunal is allowed to take the interim measures it deems necessary in
respect of the subject-matter of the dispute; in some cases examples of measures that may
be ordered are included (for example, art. 26(1) of the UNCITRAL Arbitration Rules). Some
rules empower the arbitral tribunal in broad terms to order on a provisional basis, subject
to final determination in the award, any relief which the arbitral tribunal would have
power to grant in an award.
66. The temporary nature of interim measures of protection is reflected in the expectation
(which is also stated in some arbitration laws) that any interim measure ordered by an
arbitral tribunal may be reviewed and altered by the arbitral tribunal and that, in any
event, it should be subject to the arbitral tribunal's final adjudication, with the award
taking account of any previously ordered interim measure of protection. However, an
interim measure, in its own terms, may have final and significant consequences that cannot
be reversed even if the measure is later modified or turns out to be unnecessary in the
light of the final award.
67. Some interim measures of protection are issued ex parte, that is on the application of
one party without hearing the other affected party before ordering the measure.
Arbitration statutes usually do not contain provisions on the possibility of ordering ex parte
measures and do not specify which types of measures may be ordered ex parte. Among the
reasons given in arbitral awards for issuing ex parte measures are the following: showing
that irreparable loss or damage will occur without the measure, particular urgency that
does not allow hearing the other party (e.g. measures concerning perishable goods) or
desirability of not giving advance notice of the measure to the party to whom the measure
is directed (e.g. a hearing on a requested measure not to remove assets from the
jurisdiction may allow the party to remove the assets before the measure is issued).
68. Neither statutory provisions governing arbitral procedures nor arbitration rules
normally contain express provisions as to whether a decision on an interim measure of
protection should state the reasons upon which it is based. Generally, it appears, arbitral
tribunals issue reasoned decisions.
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P 208
B. Power to order interim measures
69. Legislative solutions regarding the power of the arbitral tribunal to order interim
measures of protection are not uniform. In some jurisdictions, the power is implied. In
other jurisdictions there are express provisions empowering the arbitral tribunal to order
interim measures. Such is the case, for example, in jurisdictions that have adopted
legislation based on the UNCITRAL Model Law on International Commercial Arbitration.
Article 17 of the Model Law provides the following:
“Unless otherwise agreed by the parties, the arbitral tribunal may, at the
request of a party, order any party to take such interim measure of protection
as the arbitral tribunal may consider necessary in respect of the subject-matter
of the dispute. The arbitral tribunal may require any party to provide
appropriate security in connection with such measure.”
70. According to some arbitration laws, the power of the arbitral tribunal to order interim
measures of protection depends on the agreement of the parties, and the law limits itself
to recognizing the effectiveness of parties' agreement to grant such power to the arbitral
tribunal. There are also jurisdictions where the arbitral tribunal is deemed not to have the
power to order interim measures and it is considered that the parties cannot confer such
power on the arbitral tribunal.
71. Pursuant to many sets of arbitration rules, an arbitral tribunal is given the power to
order interim measures. For example, article 26(1) of the UNCITRAL Arbitration Rules
provides as follows:
“At the request of either party, the arbitral tribunal may take any interim
measures it deems necessary in respect of the subject-matter of the dispute,
including measures for the conservation of the goods forming the subject matter
in dispute, such as ordering their deposit with a third person or the sale of
perishable goods.”
72. In many jurisdictions the parties can choose between requesting an interim measure of
protection from the arbitral tribunal and requesting it from a court. When the arbitral
tribunal has not yet been constituted, and a party wishes an interim measure of
protection, approaching the court is the only possibility. This possibility of requesting an

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 interim measure from the arbitral tribunal or from the court is envisaged also in the
UNCITRAL Model Law, which, in addition to empowering the arbitral tribunal to issue
interim measures (see above cited art. 17), provides in article 9:
“It is not incompatible with an arbitration agreement for a party to request,
before or during arbitral proceedings, from a court an interim measure of
protection and for a court to grant such measure.”
Article 9 of the Model Law limits itself to declaring that it is not incompatible with the
arbitration agreement for the court to issue an interim measure. Whether and to what
extent the court is in fact empowered to issue such measure in favour of an ongoing
arbitration is left to legislative provisions outside the Model Law.
P 208
P 209
[Editors' Note: The discussion that followed relates to the enforcement of interim measures
issued by arbitral tribunals and is reprinted in the section on Arts. 17 H – 17 I, pp. 439–46 infra.]
G. Scope of interim measures that may be issued by arbitral tribunal and procedures for
issuance
102. In connection with the discussion on the enforcement of interim measures of
protection, the Working Group may also wish to give consideration to the desirability and
feasibility of preparing a harmonized text on the scope of interim measures of protection
that an arbitral tribunal may issue and procedural rules for their issuance.
103. Many laws have broad formulations empowering the arbitral tribunal to order interim
measures of protection. In this group are the jurisdictions that have adopted article 17 of
the Model Law, according to which the arbitral tribunal may order “such interim measure
of protection as the arbitral tribunal may consider necessary in respect of the subject-
matter of the dispute”. In some laws the formulations are more specific; for example,
arbitrators are expressly empowered to issue attachment orders or to order the property
in dispute to be deposited with a third party. Other laws have more restrictive
formulations; for instance, it is provided that arbitrators do not have the power to issue
attachments of property.
104. Reports from practitioners and arbitral institutions indicate that parties are seeking
interim measures in an increasing number of cases. This trend and the lack of clear
guidance to arbitral tribunals as to the scope of interim measures that may be issued and
the conditions for their issuance may hinder the effective and efficient functioning of
international commercial arbitration. To the extent arbitral tribunals are uncertain about
issuing interim measures of protection and as a result refrain from issuing the necessary
measures, this may lead to undesirable consequences, for example, unnecessary loss or
damage may happen or a party may avoid enforcement of the award by deliberately
making assets inaccessible to the claimant. Such a situation may also prompt parties to
seek interim measures from courts instead of the arbitral tribunals in situations where the
arbitral tribunal would be well placed to issue an interim measure; this causes
unnecessary cost and delay (e.g. because of the need to translate documents into the
language of the court and the need to present evidence and arguments to the judge).
105. The Working Group may wish to consider whether it would be desirable to prepare a
harmonized text dealing with the issuance of interim measures by arbitral tribunals. Such
a text might be in the form of uniform legislative provisions or in the form of a non-
legislative text such as model contractual rules on which parties could agree. A further
possibility might be to prepare guidelines or practice notes to assist parties and
arbitrators. Such guidelines or practice notes might describe and analyse the differences
in various types of interim measures, the criteria applied by arbitral tribunals in
determining whether to order particular interim measures, the procedures relating to
P 209 seeking and ordering interim measures and means by which an arbitral tribunal can itself
P 210 apply sanctions to enforce certain interim measures as contrasted with other types of
measures where court assistance is needed.
106. If it is considered that work should be undertaken in this direction, some inspiration
may be drawn from the Principles on Provisional and Protective Measures in International
Litigation, which were adopted in 1996 by the Committee on International Civil and
Commercial Litigation of the International Law Association (ILA). (7) The Principles,
reproduced below in paragraph 108, are limited to provisional and protective measures
that may be issued by courts; however, a number of ideas underlying the Principles appear
to be relevant, mutatis mutandis, also to interim measures ordered by arbitral tribunals.
107. If work regarding the issuance of interim measures by arbitral tribunals appears
promising, the Working Group may wish to exchange views on the topic, including on the
possible form of the text to adopted, and request the Secretariat to prepare a study to
facilitate its further considerations. This topic appears sufficiently separate from the topic
of the enforcement of interim measures (discussed above in paragraphs 63 to 102), so that
it might be found that the two topics should be dealt with differently; for example, one in a
non-legislative text while the other in a legislative text.
108. The text of the ILA Principles on Provisional and Protective Measures in International
Litigation is as follows:

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 Scope of Principles
1. Provisional and protective measures perform two principal purposes in civil and
commercial litigation:
(a) to maintain the status quo pending determination of the issues at trial; or
(b) to secure assets out of which an ultimate judgment may be satisfied.
2. These Principles are intended to be of general application in international litigation. But
they were drafted bearing in mind a paradigm case under category (b) above of measures
to freeze the assets of the defendant held in the form of sums on deposit in a bank account
with a third party bank.
Nature of the Remedy
3. States should make available without discrimination provisional and protective
measures with the objective of securing assets out of which an ultimate judgment may be
satisfied.
4. The grant of such relief should be discretionary. It should be available:
(a) on a showing of a case on the merits on a standard of proof which is less than that
required for the merits under the applicable law; and
P 210
P 211
(b) on a showing that the potential injury to the plaintiff outweighs the potential injury to
the defendant.
5. The defendant should not be entitled to hide his assets behind a corporate veil or other
subterfuge.
6. The plaintiff should ensure that the defendant be informed promptly of the order,
notwithstanding any formal legal requirements for service of the order and the legal
consequences which may flow from service.
7. The defendant should have the right to be heard within a reasonable time and to object
to the provisional and protective measure ordered.
8. The court should have authority to require security or other conditions from the plaintiff
for the injury to the defendant or to third parties which may result from the granting of the
order. In determining whether to order security, the court should consider the availability
of the plaintiff to respond to a claim for damages for such injury.
9. Provision should be made for access to information either through operation of law or by
court order in appropriate cases as to the defendant's assets.
Ancillary Proceedings
10. The jurisdiction to grant provisional and protective measures should be independent
from jurisdiction on the merits.
11. The mere presence of assets within a country should be a sufficient basis for the
jurisdiction to grant provisional and protective measures in respect of those assets.
12. It should be a condition for the court exercising jurisdiction to grant provisional and
protective measures that a substantive action is filed within a reasonable time either in
the forum (if it has substantive jurisdiction) or abroad (but the court shall not act in aid of
a substantive action abroad if there is no reasonable possibility of the judgment rendered
on the substance in the foreign court being enforceable in the forum).
13. The provisional and protective measure should be valid for a specified limited time.
The court should consider renewal in the light of developments in the court where the
substantive action is underway.
14. There may be scope for the court exercising substantive jurisdiction to play a
supervisory role, on the application of the defendant, over provisional and protective
measures granted in other countries, considering in particular whether in aggregate those
measures are justifiable in the light of the action as a whole, and the amount claimed in it.
15. The applicant for provisional and protective measures must inform the requested court
of the current status of proceedings for provisional and protective measures and on the
merits in other countries. The possibility is not even excluded of states conferring on their
courts permission, where authorized, to communicate directly with relevant judicial
authorities in other countries.
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P 212
Territorial Scope
16. Where the court is properly exercising jurisdiction over the substance of the matter, it
should have the power to issue provisional and protective orders addressed to a
defendant personally to freeze his assets, irrespective of their location.
17. Where the court is not exercising jurisdiction over the substance of the matter, and is
exercising jurisdiction purely in relation to grant of provisional and protective measures,
its jurisdiction shall be restricted to assets located within the jurisdiction. Subject to

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 international law, national rules (including rules of the conflict of laws) will determine the
location of assets.
Cross Border Recognition and International Judicial Assistance
18. At the request of a party, a court may take into account orders granted in other
jurisdictions.
19. Further, a court should co-operate where necessary in order to achieve the efficacy of
orders issued by other courts, and consider the appropriate local remedy.
20. This may require an extended recognition of foreign court orders. The fact that an order
is provisional in nature, rather than final and conclusive, should not by itself be an
obstacle to recognition or enforcement.
Forum Arresti and Forum Patrimonii
21. The fact that the court has granted a provisional and protective measure does not in
itself found jurisdiction over the substantive claim, whether or not limited to the value of
the frozen assets.
Interim Payments
22. The procedure in domestic law under which the court may order an interim payment
(i.e. an outright payment to the plaintiff which may be subsequently revised on final
judgment) is not a provisional and protective measure in the context of international
litigation.
APRIL 2000 WORKING GROUP REPORT A/CN.9/468 (10 APRIL 2000)
II. Deliberations and Decisions
[.…]
B. Enforceability of interim measures of protection ([discussing the January 2000
Secretariat Note,] A/CN.9/WG/WP.108, paras. 63–101)
[.…]
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P 213
2. Need for a uniform regime
[Editors' Note: In the course of discussion of court enforcement of interim measures ordered
by arbitral tribunals, reprinted at pp. 193–95 supra, the Working Group Report touched on the
kinds of interim measures that might be issued by a tribunal.]
69. During the discussion reference was often made to paragraph 63 of [the January 2000
Secretariat Note,] A/CN.9/WG.II/WP.108, which distinguished three groups of interim
measures of protection: (a) measures aimed at facilitating the conduct of arbitral
proceedings, (b) measures to avoid loss or damage and measures aimed at preserving a
certain state of affairs until the dispute is resolved, and (c) measures to facilitate later
enforcement of the award. While noting that that classification was one of a number of
possible alternatives and that the examples of measures given under each category were
not exhaustive, it was pointed out that the need for an enforcement mechanism was the
greatest for measures under (c) (e.g. attachments of assets, orders not to remove the
subject matter of the dispute out of the jurisdiction or orders to provide security) and for
some of the measures under (b) (e.g. orders to continue performing a contract during the
arbitral proceedings or orders to refrain from taking an action until the award was made).
As to measures under (a) it was noted that, because the arbitral tribunal might “draw
adverse conclusions” from the failure of the party to comply with the measure or might
take the failure into account in the final decision on costs of the arbitral proceedings,
there was less need to seek court intervention in the enforcement of the measure.
However, no firm view was reached at that stage of the discussion as to whether, and if so
in what way, those differences among interim measures should influence the drafting of the
future enforcement regime.
[Editors' Note: The discussion that followed relates to the enforcement of interim measures
issued by arbitral tribunals and is reprinted at pp. 447–50 infra.]
C. Scope of interim measures that may be issued by arbitral tribunal and procedures for
issuance
80. The Working Group considered the desirability and feasibility of preparing a
harmonized non-legislative text on the scope of interim measures of protection that an
arbitral tribunal might order and procedural rules therefor.
81. Wide support was expressed for preparing a non-legislative text, such as guidelines or
practice notes, which would discuss issues such as the types of interim measures of
protection that an arbitral tribunal might order, discretion for ordering such measures, and
guidelines on how the discretion was to be exercised or the conditions under which, or
circumstances in which, such measures might be ordered. It was suggested that
clarification provided by such guidelines should be broad in scope and should cover all
interim measures of protection mentioned in paragraph 63 of [the January 2000 Secretariat
Note,] A.CN.9/WG.II/WP.108 (i.e. (a) measures aimed at facilitating the conduct of arbitral

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 proceedings, (b) measures to avoid loss or damage and measures aimed at preserving a
P 213 certain state of affairs until the dispute is resolved, and (c) measures to facilitate later
P 214 enforcement of the award). However, it was added that the guidelines would be
particularly useful for measures with respect to which court enforcement was more
frequently needed.
82. An observation was made that guidelines clarifying how the power of arbitral tribunals
to order interim measures of protection was exercised would foster the acceptance by
States of uniform legislative provisions on enforcement of those measures, which the
Working Group had decided to prepare (see above, para. 67[, reprinted in the section on
materials common to Arts. 17 – 17 J, p. 194–5 supra]). However, it was noted that those
uniform legislative provisions would be prepared, and would apply, independently from
the future non-legislative text discussing interim measures of protection that might be
issued by an arbitral tribunal and procedures for their issuance.
83. It was suggested that in preparing the proposed text account should be taken of the
inter-relationship between interim measures that might be ordered by a court and interim
measures that might be ordered by the arbitral tribunal (e.g. the question whether a party
might request an interim measure from a court after the arbitral tribunal had been
constituted and was able to issue the requested measure itself, or whether a party, after
unsuccessfully seeking an interim measure from the arbitral tribunal, might request such a
measure from the court).
84. It was agreed that the Secretariat should prepare a document that would analyse rules
and practices regarding interim measures of protection issued by arbitral tribunals and
provide elements for the future harmonized non-legislative text. The Working Group was
aware that the information needed for the preparation of the document was not readily
available and therefore requested the States and international organizations participating
in the considerations of the Working Group as well as experts interested in its work to send
to the Secretariat relevant information (e.g. arbitration rules, academic and practice
writings, as well as examples of texts of interim measures of protection ordered omitting
the names of parties and other confidential information).
OCTOBER 2000 SECRETARIAT NOTE POSSIBLE FUTURE WORK A/CN.9/WG.II/WP.111 (12
OCTOBER 2000)
II. Scope of interim measures that may be issued by arbitral tribunals
30. Legislative solutions regarding the power of the arbitral tribunal to order interim
measures of protection are not uniform. In some jurisdictions, the power is implied. In
other jurisdictions there are express provisions empowering the arbitral tribunal to order
interim measures. According to some arbitration laws, the power of the tribunal to order
interim measures depends on the agreement of the parties, and the law limits itself to
recognizing the effectiveness of the parties' agreement to grant such power to the arbitral
tribunal. There are also jurisdictions where the arbitral tribunal is deemed not to have the
power to order interim measures and it is considered that the parties cannot confer such
P 214 power on the arbitral tribunal. Many sets of arbitration rules empower the arbitral tribunal
P 215 to issue interim measures of protection (e.g., article 26 of the UNCITRAL Rules). The rules
and laws that do empower the arbitral tribunal to issue interim measures typically leave a
broad discretion to the arbitral tribunal as to how it should exercise that power.
31. The Working Group considered (at its thirty-second session in March 2000) the
desirability and feasibility of preparing a harmonized non-legislative text on the scope of
interim measures of protection that an arbitral tribunal might order and the
accompanying procedural rules ([April 2000 Working Group Report,] A/CN.9/468, paras. 80–
84). In that discussion wide support was expressed for the preparation of a non-legislative
text, such as guidelines or practice notes, which would discuss issues such as the types of
interim measures of protection that an arbitral tribunal might order; discretion for
ordering such measures; and guidelines on how the discretion is to be exercised or the
conditions under which, or circumstances in which, such measures might be ordered. It was
suggested that the clarification provided by such guidelines should be broad in scope and
should cover all interim measures of protection mentioned in paragraph 63 of document
[January 2000 Secretariat Note] A/CN.9/WG.II/WP.108 (i.e. (a) measures aimed at facilitating
the conduct of arbitral proceedings, (b) measures to avoid loss or damage and measures
aimed at preserving a certain state of affairs until the dispute is resolved, and (c)
measures to facilitate later enforcement of the award). However, it was added that the
guidelines would be particularly useful for measures with respect to which court
enforcement was more frequently needed.
32. It was agreed that the Secretariat should prepare a document that would analyse rules
and practices regarding interim measures of protection issued by arbitral tribunals and
set forth elements for a future harmonized non-legislative text. The Working Group was
aware that the information needed for the preparation of the document was not readily
available and therefore requested the States and international organization participating
in the considerations of the Working Group as well as experts interested in its work to send
to the Secretariat relevant information (e.g. arbitration rules, academic and practice
writings, as well as examples of texts of interim measures of protection ordered omitting
the names of parties and other confidential information). The Secretariat is currently
collecting that information and preparing a study, which includes a draft outline of

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 possible guidelines, for consideration by the Working Group at a future session. Preliminary
work indicates that the following issues might be included in possible guidelines: the types
of interim measures that might be ordered by an arbitral tribunal; the procedural steps
preceding the issuance of an interim measure of protection; the exercise of the discretion
to order an interim measures and matters relating to the order once it has been issued,
such as the content of the order, the consequences of a failure to comply, and modification
of the measure. The Working Group may wish to consider the study being prepared at a
future session with a view to deciding whether any action by the Commission is warranted.
P 215
P 216
DECEMBER 2000 WORKING GROUP REPORT A/CN.9/485 (20 DECEMBER 2000)
IV. Model legislative provisions on the enforcement of interim measures of protection
[Editors' Note: In the course of discussion of enforcement of interim measures issued by an
arbitral tribunal, reprinted in full at pp. 458–63 infra, the Working Group Report touched on
the definition of interim measures that arbitral tribunals might issue:]
82. The Working Group discussed the approach to defining the interim measures of
protection to be covered by the model legislative provision. Views were expressed that the
definition should be formulated broadly, similarly to article 17 of the Model Law on
Arbitration and article 26 of the UNCITRAL Arbitration Rules; to the extent examples were
to be included, they should be illustrative rather than limiting. It was also suggested that
such a definition might be clearer if there was some indication of decisions that were not
intended to be covered such as awards for advance payment (which constituted final
decisions resolving a part of the claim to the extent it was beyond doubt) or procedural
decisions. It was noted that some interim measures of protection concerning evidence
might be regarded as covered by article 27 of the Model Law on Arbitration, and that it was
necessary to clarify the relationship between article 27 and the draft model provision. The
suggestion not to formulate a definition of interim measures but instead to refer to the law
of the State of enforcement for such a definition did not receive support.
83. It was noted that in practice arbitrators issued their decisions on interim measures of
protection in different forms and under different names, including as orders or interim
awards. Sometimes the purpose of designating the decision as an order (as distinguished
from an award) was to prevent it being challenged in court, whereas the purpose of
designating it as an award was to allow it to be treated as an award. It was, however,
observed that different labels did not necessarily ensure different treatment of interim
measures of protection in courts and that therefore the model provision should apply to
interim measures of protection irrespective of the label given to it by the arbitral tribunal.
To the extent it was desirable to leave a degree of control to the arbitral tribunal over
whether the party might request its enforcement in court, this might be achieved by
providing that enforcement may be requested with the approval of the arbitral tribunal
only (in a manner similar to article 27 of the Model Law on Arbitration).
[Editors' Note: In the course of discussion of enforcement of interim measures issued by an
arbitral tribunal, reprinted in full at pp. 458–63 infra, the Working Group Report touched on
issues relating to whether ex parte interim measures could be issued:]
Variant 1, subparagraph (iii)
89. It was pointed out that subparagraph (iii) was intended to address two distinct
P 216 situations, namely: the one where the party against whom the interim measure was
P 217 invoked was not given proper notice of the appointment of an arbitrator or of the
arbitral proceedings as a whole and the one where that party had not been able to present
its case in respect of issuance of an ex parte interim measure.
90. Allowing the enforcement of ex parte interim measures was opposed on the basis that
such interim measures were not entitled to enforcement under the Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels,
1968). In response it was noted that that Convention only addressed foreign decisions and
that no distinction should be drawn between enforcement of domestic and foreign interim
measures. A further ground for opposing enforcement of ex parte interim measures was that
their issuance was not allowed in the practice followed, for example, by some major
international arbitration institutions, without notice, (such notice might be given by
serving the application for the interim measure or by serving of the interim measure on the
respondent prior to any application to a court for its enforcement). That objection was
based on the fundamental importance to arbitration of the principle of equal treatment of
parties as set forth in article 18 of the Model Law on Arbitration.
91. The need to preserve the element of surprise for ensuring the effectiveness of some
interim measures was generally recognized (with a view to preventing, for example, the
destruction of evidence or, more generally, to address any situations requiring urgent
action). It was suggested that objections based upon the equal treatment of parties could
possibly be addressed by providing that the validity of ex parte interim measures be
limited to a fixed time period, upon expiration of which the responding party should be
entitled to fully present its case before any decision was made on maintenance or
revocation of the measure. That suggestion of a two-step procedure, combining an ex parte
phase with a subsequent inter partes phase, received some support. It was observed that

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 such a procedure (irrespective of whether the inter partes phase was to be held before the
arbitral tribunal, the court or both) could counterbalance the risks potentially implied in
ex parte interim measures.
92. To ensure equal treatment of the parties and address the potentially great impact that
an ex parte interim measure might have on the responding party, a suggestion was made
that enforcement of the measure be preceded by some kind of judicial examination or, as
an alternative, that the granting of counter-security might be envisaged. It was also
proposed that those issues could be adequately addressed within subparagraph (vi) on the
basis of public policy; the prevailing view was that that proposal was unacceptable as it
placed too much emphasis on the public policy exception.
93. A further issue for consideration was the degree to which the court would be entitled to
evaluate an ex parte measure prior to enforcing it. One view was that it could be
distinguished from the review of the validity of the arbitration agreement where the
evaluation was “at arm's length” and that in the case of the interim measure the
respondent should be given the opportunity to present its case. A different view was that in
evaluating an ex parte interim measure a court should, as much as possible, not review the
decision of the arbitral tribunal.
P 217
P 218
94. Following discussion, the Working Group decided that agreement could not be reached
on a specific solution at the current session of the Working Group. The Secretariat was
requested to prepare a revised provision which would address the various concerns
expressed with a view to preserving both the element of surprise and the principle of
equal treatment of the parties.
[.…]
C. Future work
[Editors' Note: In the course of discussing likely items for future work, the Working Group
Report discussed the decision to address the scope of interim measures that might be issued
by arbitral tribunals:]
105. At the current session Working Group considered [the October 2000 Secretariat Note,]
A/CN.9/WG.II/WP.111, which described the preparatory work in the Secretariat with respect
to three of those topics:
(a) court-ordered interim measures of protection in support of arbitration (with a view to
preparing uniform rules addressed to courts when they order such measures) (paras.
2–29[, reprinted in the section on Art. 17 J, pp. 549–56 infra]);
(b) the scope of interim measures that may be issued by arbitral tribunals (with a view to
preparing an empirically based text that would provide guidance to arbitral
tribunals when a party requested an interim measure of protection) (paras. 30–32
[see supra]); and
(c) the validity of the agreement to arbitrate (a study of uniform rules on the
interrelationship between the principle according to which “the arbitral tribunal may
rule on its own jurisdiction, including any objections with respect to the existence or
validity of the arbitration agreement” (art. 16(1) of the Model Law on Arbitration) and
the scope of the court's terms of reference in deciding whether to refer the parties to
arbitration when the respondent in the court proceedings invoked an arbitration
agreement and the claimant argued that the arbitration agreement was invalid (para.
33 [reprinted in the section on Matters Not Addressed in the Final Text, pp. 714–15 infra]).
106. Broad support was expressed for future work on all three topics. It was said that
building upon the success of texts such as the UNCITRAL Arbitration Rules, the Model Law
on Arbitration and the Notes on Organizing Arbitral Proceedings, the Commission could
further enhance the effectiveness of arbitration in international trade. While it was noted
that topics (a) and (b) concerned court procedure, an area where harmonization had been
traditionally difficult to achieve, it was said that more legal certainty in those areas was
desirable for the good functioning of international commercial arbitration. As to topic (b),
it was considered that the text to be prepared should analyse arbitration practice and
that the analysis would in itself be useful and might lead to a text in the nature of
nonbinding practice notes. It was noted that in particular the work on topic (b) as well as
P 218 on the other two topics would have to be founded on broad empirical information and that
P 220 the Secretariat would contact arbitration organizations and Governments with a view to
obtaining such information. The Working Group called on Governments and relevant
organizations to provide the necessary information to the Secretariat. While the Working
Group heard some indications that topic (a) should be given the highest priority, it took no
decision as to the relative priority among the topics, and it requested the Secretariat to
prepare for a future session of the Working Group preliminary studies and proposals.
MARCH 2001 SECRETARIAT NOTE PREPARATION OF UNIFORM PROVISIONS
A/CN.9/WG.II/WP.113 (23 MARCH 2001)
II. Model legislative provisions on the enforcement of interim measures of protection
[.…]

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 18. The draft provision presented below consists of current article 17 of the UNCITRAL
Model Law on Arbitration as paragraph (1) with additions to accommodate views in the
Working Group that the provision contain a definition of interim measures of protection
(see paragraphs 82 and 83 in [the December 2000 Working Group Report,] A/CN.9/485) and
perhaps additional provisions on ex parte interim measures (see paragraphs 91 to 94 in
[the December 2000 Working Group Report,] A/CN.9/485).
Draft article 17. Power of arbitral tribunal to order interim measures (21)
[Unchanged text of article 17:] (1) Unless otherwise agreed by the parties, the arbitral
tribunal may, at the request of a party, order any party to take such interim measure of
protection as the arbitral tribunal may consider necessary in respect of the subject-matter
of the dispute. The arbitral tribunal may require any party to provide appropriate security
in connection with such measure.
(2) An interim measure of protection is any temporary measure [,whether it is established
in the form of an arbitral award or in another form,] (22) ordered by the arbitral tribunal
pending the issuance of the award by which the dispute is finally decided. [The arbitral
tribunal may, in order to ensure that any such measure is effective, grant the measure
without notice to the party against whom the measure is directed for a period not to
exceed [30] days; such a measure may be extended after that party has been given notice
and an opportunity to respond.] (23)
JUNE 2001 WORKING GROUP REPORT A/CN.9/487 (15 JUNE 2001)
IV. Model legislative provisions on the enforcement of interim measures of protection
64. The Working Group proceeded to consider draft article 17 of the Model Law, which
contained a definition of interim measures of protection and additional provisions on ex
parte interim measures. The text considered by the Working Group was as follows:
[same as March 2001 Secretariat Note, A/CN.9/WG.II/WP.113]
Paragraph (1)
65. According to one view, paragraph (1) was satisfactory in that it allowed the arbitral
tribunal a broad scope for the issuance of different types of interim measures of protection
as might be considered necessary by the arbitral tribunal. In the light of that view, it was
argued that the text should be left unchanged and that perhaps the guide to enactment
P 220 should explain the scope of the provision. It was noted in that connection that the Working
P 221 Group had decided to prepare a non-legislative empirically based text that would
provide guidance to arbitral tribunals in a situation when a party requested that an
interim measure of protection be issued (see [October 2000 Secretariat Note,]
A/CN.9/WG.II/WP.111, paras. 30–32, and [the December 2000 Working Group Report,]
A/CN.9/485, paras. 104–106 [para. 104 not reprinted]). Another view, however, was that the
expression “in respect of the subject matter of the dispute” narrowed the scope of the
interim measures that the arbitral tribunal might issue. Since the paragraph established
the power of the arbitral tribunal to issue interim measures, it was necessary to consider
how that power should be most appropriately expressed in the paragraph. If necessary, the
wording should be amended to clarify the scope of that power.
66. In the context of the discussion relating to the power to issue interim measures of
protection, it was suggested to draft language that would address the conditions or the
criteria for the issuance of those measures. It was also suggested that the draft provision
should set out in a generic way the types of interim measures of protection that were
intended to be covered. Those additions (which would enhance the certainty as to the
power of the arbitral tribunal to issue interim measures of protection) were thought to be
desirable because they would also enhance the acceptability of the provision establishing
an obligation on courts to enforce those measures. The opposing view was that those
additions were unnecessary and even counter-productive since paragraph (1) allowed a
broad scope for the issuance of interim measures and providing additional detail would
undesirably limit the discretion of the arbitral tribunal, invite argument and hamper the
development of arbitration practice. If any explanatory detail was considered necessary, a
guide to enactment was the proper place for such detail.
67. Another view taken was that the appropriate place for including the criteria on which,
and the circumstances required, to allow an order for interim measures was within the
model legislative provision itself. After discussion, it was agreed that the Secretariat
should seek to establish the terms, conditions and circumstances in which an arbitral
tribunal could or should issue interim measures of protection. This could be drafted as a
new paragraph (3), which could be considered at future sessions of the Working Group. It
was pointed out that this list should be illustrative rather than exhaustive. However, it was
noted by several delegations that even a non-exhaustive list ran the risk of being read in
such a way as to be limiting and that it also could impede the autonomy of arbitral
tribunals in determining the type of interim measures to order. It was suggested that, to
avoid this risk, the draft should avoid the use of any detailed list and instead aim for
listing general categories following the approach taken in other international instruments,
such as the Conventions on Jurisdiction and the Enforcement of Judgements in Civil and
Commercial Matters (Brussels, 1968, and Lugano, 1988). The point was made that the model
legislative provisions should include a provision requiring that the party seeking the

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 interim measure provide appropriate security for enforcement of the measure.
68. After discussion, the Working Group did not reach a firm conclusion and requested the
P 221 Secretariat to prepare alternative texts for consideration at a future session of the Working
P 222 Group. Any drafting to be prepared should take care not to interfere with the autonomy
of the arbitral tribunal and also to leave broad scope for the autonomy of the parties. It
was stressed that the requirement for appropriate security to be given by the party seeking
interim measures was crucial for the acceptability of the provision. The Secretariat was
requested to review national enactments of article 17 that might be helpful in future
considerations of the provision.
Paragraph (2)
69. In respect of the text allowing an arbitral tribunal to make a temporary interim
measure of protection on an ex parte basis (i.e., without notice to the party against whom
the measure was directed), broad support was expressed as a matter of principle. While
the element of surprise inherent in ex parte measures of protection was described as being
more in line with the nature of court proceedings than with the philosophy and the
practice of arbitration, it was pointed out that the words “unless otherwise agreed by the
parties” in paragraph (1) took care of the situation where the parties would decide to rule
out the possibility that such provisional measures would be granted. Subject to such a
determination by the parties, the aim of the model legislative provisions should be to
allow as much parity as possible between the powers of the arbitral tribunal and those of
the court that might be called upon to rule on the same dispute.
70. However, serious concerns were raised as to whether it was appropriate to include a
provision allowing ex parte measures at all in the model legislative provisions. These
concerns focused on the fact that such a measure had far-reaching consequences for the
party against whom it was made and yet the order could be made quickly, without a review
of the merits of the case. In addition, it was considered that ex parte orders were
completely novel and thus untested, and presented real dangers for commercial users and
had the potential to impact negatively on third parties. Support was expressed in favour of
eliminating any reference to ex parte measures of protection in the model legislative
provision. It was pointed out that the situation of a court of justice was different from that
of an arbitral tribunal as far as enforcement of interim measures abroad was
concerned.While the application of the model legislative provisions under consideration
(or even of the New York Convention) might result in an obligation to enforce foreign
measures of protection awarded by the arbitral tribunal, that obligation did not exist to
the same extent in respect of interim measures ordered by a foreign court. The Working
Group was urged to exercise extreme caution in extending the enforceability of such
measures.
71. After discussion, it was generally felt that the acceptability of an express recognition of
ex parte measures of protection would largely depend on the safeguards that might be
introduced with respect to both the granting and the enforcement of such measures in
article 17 and in the proposed new article.
72. A strong view was expressed that, given the ex parte nature of the order and the
potentially serious negative impact on the party against whom such a measure was taken,
P 222 it was important to include certain safeguards in the provision. Such safeguards might
P 223 include the requirement that the party seeking such a measure should provide
appropriate financial security to avoid frivolous claims and that such an order should only
be made in exceptional or urgent circumstances. It was suggested, in addition, that the
party seeking such an order should be obliged to provide a full and frank disclosure of all
relevant information, including information that might be taken as an argument against
the issuance of the interim measure. A drafting suggestion was made to replace the words
“The arbitral tribunal may, in order to ensure that any such measure is effective, grant” by
such words as “The arbitral tribunal may, where it is necessary to ensure that any such
measure is effective, grant” in order to better reflect that ex parte measures were the
exception rather than the rule. There was some discussion as to whether the 30– day
period for the application of interim measures was appropriate or whether the time period
should be left to national legislatures.
73. Further suggestions were made as to how the issue of the enforcement of ex parte
measures of protection should be dealt with. One suggestion was that the matter should be
dealt with in paragraph (4) of the suggested new article, which should be redrafted along
the following lines:
“(4) Paragraph (1)(a)(iii) does not apply to an interim measure of protection that
was ordered without notice to the party against whom the measure is invoked,
provided that such interim measure is confirmed by the arbitral tribunal after
the other party has been given notice of the making of the order and an
opportunity to contest the continuation of the order.”
74. Another suggestion was that a provision be prepared based on the following reasoning:
“In cases in which an arbitral tribunal grants a temporary protective measure ex
parte, the party granted the measure may seek court enforcement either inter
partes or ex parte. When enforcement is sought ex parte, the court shall have

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 discretion to determine whether the circumstances are sufficiently urgent to
justify its acting ex parte. If the court decides that acting ex parte is justified in
the circumstances, it shall decide the issue of enforcement applying the same
standards as apply to enforcement of measures granted by an arbitral tribunal
inter partes. If the court enforces the measure, the enforcement order shall be
served on the other party, and the arbitral tribunal shall be required to conduct
an inter partes proceeding to determine whether the temporary measure shall
be terminated or continued. If, after receiving the views of both sides, the
arbitral tribunal decides that the temporary measure shall be continued, any
request for court enforcement shall be handled in the same way as any other
measure granted inter partes.”
75. After discussion, the Working Group requested the Secretariat to prepare revised draft
provisions, with possible variants, for continuation of the discussion at a later stage.
P 223
P 224
JANUARY 2002 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.119 (30 JANUARY
2002)
Introduction
[.…]
Arbitral tribunal-ordered interim measures
6. At its thirty-fourth session (21 May–1 June 2001) the Working Group considered a draft
article which contained an express power for arbitral tribunals to order interim measures
of protection and a definition of the interim measures that might be ordered (para. 64,
[June 2001 Working Group Report,] A/CN.9/487). For consideration at a future session the
Secretariat was requested to prepare alternative texts which would establish the terms,
conditions and circumstances in which an arbitral tribunal could or should issue interim
measures of protection. The texts should be illustrative rather than exhaustive in order to
avoid the risk of being read in a limiting way. It was suggested that the draft should list
general categories following the approach taken in other international instruments such as
the Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial
Matters (Brussels, 1968, and Lugano, 1988). It was also suggested that the model legislative
provision contain a provision requiring that the party seeking the interim measure provide
appropriate security for enforcement of the measure.
7. To assist the Secretariat in its work on interim measures issued by arbitral tribunals, a
short questionnaire was prepared and sent to arbitrators and counsel in arbitral
proceedings to gather information on interim measures that had been issued in arbitral
proceedings.
[Editors' Note: Paragraphs 8–12 concern issuance of interim measures by courts, including a
discussion of a questionniare that the Secretariat had forwarded to Governments regarding
the powers of courts to order interim measures in support of arbitration. Those paragraphs
are reprinted in the section on Art. 17 J, p. 557 infra.]
13. Part 1 of this note summarises the information obtained from the surveys on interim
measures issued by both courts and arbitral tribunals. Part 2 provides a summary of work
being undertaken by other international organizations in respect of interim measures
ordered by courts. Part 3 proposes ways in which some of the issues raised may be
addressed, based upon the discussion in the Working Group and a revision of the draft text
considered by the Working Group at its thirty-fourth session in 2001.
P 224
P 225
I. Background information regarding interim measures of protection under domestic law
A. General Remarks
14. Interim measures of protection play an essential role in many legal systems in
facilitating the traditional litigation process, as well as arbitration. Courts and arbitral
tribunals often receive requests from a party to arbitral proceedings for interim measures
of protection. When issued by a court, such measures may be directed to one or both of the
parties involved in the dispute or to third parties. When issued by an arbitral tribunal,
such measures may generally not be directed to third parties. Interim measures of
protection are generally temporary in nature, covering only the period up to entry of the
arbitration award. Depending upon the measure, the circumstances justifying its continued
existence no longer apply at the time the award is made or the interim measure is merged
into the award. Referred to by different expressions (interim measures of protection,
provisional orders, interim awards, conservatory measures, and preliminary injunctive
relief) their aims are broadly twofold. First, they are intended to preserve the position of
the parties pending resolution of their dispute, a function often referred to as “preserving
the status quo”. A second aim is to ensure that the final award or judgement can be
enforced by preserving, in the jurisdiction in which enforcement will be sought, assets or
property which can be applied to satisfy the award or judgement. There is no evidence to
suggest that the objectives differ in the international commercial arbitration context from
those sought in the context of domestic litigation.

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 15. In considering how some of the issues related to the ordering of interim measures by
courts in support of arbitration may be addressed, the Working Group may wish to note the
importance of ensuring that parties choosing to resolve their disputes through arbitration
do not forfeit any rights to avail themselves of any interim relief measure that they would
have had in litigation. Such an approach would help to achieve the goals of greater
coherence and uniformity.
B. Classification of interim measures
16. Interim measures may be divided into different categories. Although the distinction
between these different categories of measures is not always clear and specific measures
can fall into more than one of the categories, the division between the different types may
assist in understanding the extent to which certain domestic laws may restrict the power to
issue certain types of measures, such as attachments. It is not suggested that the uniform
provisions to be prepared by UNCITRAL should reflect any such classification or encourage
any such restriction. Broadly speaking, interim measures are sometimes divided into two
principal categories—those aimed at avoiding prejudice, loss or damage and those which
are intended to facilitate later enforcement of the award.
1. Measures to avoid or minimize prejudice, loss or damage
P 225 17. These measures aim to avoid or minimize loss or damage by, for example, preserving a
P 226 certain state of affairs until a dispute is resolved by the rendering of a final award and
avoiding prejudice, for instance, by preserving confidentiality. They include:
(i) orders that the goods that are the subject matter of the dispute are to remain in a
party's possession but be preserved, or be held by a custodian (in some legal systems
referred to as sequestration);
(ii) orders that the respondent hand over property to the claimant on condition that the
claimant post security for the value of the property and that the respondent may
execute upon the security if the claim proves to be unfounded;
(iii) orders for inspection at an early stage where it is clear that a given situation may
change before the arbitral tribunal addresses the issue relating to it. For example, if
a dispute turned upon the berthing of vessels at a port, and it is known that the port
is going to become a construction zone, the arbitral tribunal may make orders for
inspection of the port at an early stage;
(iv) orders that one party provide to the other party certain information, such as a
computer access code, that would enable, for example, certain work to be continued
or completed;
(v) orders for the sale of perishable goods with the proceeds to be held by a third
person;
(vi) appointment of an administrator to manage income-producing assets in dispute, the
cost of which is to be borne as directed by the arbitral tribunal;
(vii) orders that performance of the contract in dispute be continued;
(viii) orders to take appropriate action to avoid the loss of a right, such as by paying the
fees needed to renew a trade mark or a payment to extend a licence of software; and
(ix) orders directing certain information to be kept confidential and measures to be
taken to ensure that confidentiality.
2. Enforcement facilitation measures
18. These measures aim to facilitate later enforcement of an award and include:
(i) orders which are intended to freeze assets pending determination of the dispute, as
well as orders not to move assets or the subject matter of the dispute out of a
jurisdiction and orders not to dispose of assets in the jurisdiction where enforcement
of the award will be sought;
(ii) orders concerning property belonging to a party to the arbitration which is under the
control of a third party (e.g. to prevent a party's funds from being released by a
bank);
(iii) security for the amount in dispute involving, for example, an order to pay a sum of
money into a specified account, the provision of specified property, or the
presentation of a guarantee by a third person such as a bank or surety; or
P 226
P 227
(iv) security for costs of arbitration which might require, for example, depositing a sum of
money with the arbitral tribunal or the provision of a bond or guarantee, usually to
cover the respondent's costs if the claimant is unsuccessful.
C. Power to order interim measures in support of arbitration
19. Though each State's procedural rules may differ, the process of applying for interim
measures from a court may involve several steps to determine both the conditions and the
extent to which a court may be empowered to order interim measures relating to an
international commercial arbitration. First, the power to grant interim measures may be
shared between the arbitral tribunal and domestic courts. Secondly, there is an issue of
the boundaries between the arbitral tribunal's and the court's respective competences to
issue a particular interim measure The question of how to resolve the issue of enforcement

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 of the interim relief is also important (this issue is currently being considered by the
Working Group—see [the June 2001 Working Group Report,] A/CN.9/487, paras. 76–87
[reprinted in the section on Arts. 17 H – 17 I, pp. 466–69 infra]).
20. Legal systems take different approaches to the issue of interim measures in support of
arbitration and the institution that may be empowered to issue such measures. Broadly
speaking, these fall into three main categories: those where the power is reserved to the
court; where it is reserved to the arbitral tribunal once it has been constituted or arbitral
proceedings initiated; and those where both the court and the arbitral tribunal have such
powers. There are also a number of laws where the power of the court is not specifically
provided in law and it is therefore uncertain whether interim measures can be ordered by
the court in support of arbitration. In some of these countries, the courts have nevertheless
interpreted the absence of a prohibition as allowing them to issue such measures. In some
federal or non-unitary jurisdictions, the power to issue interim measures may be divided
between different levels of the courts, with some interim measures in the competence of a
State, province or canton and the detail of the laws differing between them.
1. Power exclusive to the courts
21. Many legal systems recognize as a general principle that courts may issue interim
measures in support of arbitration proceedings. The power to issue such measures is often
included explicitly in arbitration or civil procedure laws and may allow interim relief to be
ordered by the courts both before and during arbitral proceedings. Some of these laws
provide that only the court has the power to issue interim measures, whether before or
after initiation of arbitral proceedings or constitution of the arbitral tribunal. (7) Among
these laws are some that specifically preclude the arbitral tribunal from issuing interim
measures, even to the extent of refusing to enforce the parties' agreement to confer the
power to issue these measures on the arbitral tribunal.
P 227
P 228
2. Power exclusive to the arbitral tribunal
22. Other laws provide that the authority to issue interim relief is vested exclusively in the
arbitral tribunal and the courts do not have the power to issue interim measures in
support of arbitration. The court's lack of jurisdiction may be the result of provisions that
oust the jurisdiction of the court where there is an arbitration agreement. The power of the
arbitral tribunal arises from the interpretation of the arbitration agreement as an
agreement to seek a final and binding resolution of disputes by an impartial third party
and this agreement cannot co-exist with the right of either party to alter the subject matter
of the dispute in such a way as to destroy or obstruct the arbitral tribunal in making a final
and effective award. (8) Some courts have regarded the existence of a valid arbitration
agreement as a decision by the parties to completely exclude court jurisdiction, including
the jurisdiction to grant interim measures. (9) Under some laws where the power to issue
interim measures is reserved for the arbitral tribunal, the court may nevertheless assist
the arbitral tribunal in the interests of the parties to the arbitration. This assistance may
include ensuring the effectiveness of the future arbitral procedure by ordering urgent
measures for preparing the case or safeguarding the enforcement of the award.
23. The court's lack of jurisdiction may also arise because the law does not specifically
address the issue of interim measures in the period before initiation of arbitral
proceedings or constitution of the arbitral tribunal. Interim relief may not be available
from the arbitrators because the arbitral tribunal is not yet constituted, or because
arbitrators do not have authority to order the specific relief requested.
24. Given that the authority of an arbitral tribunal derives from the parties' agreement, it
follows that an arbitral tribunal's powers must be determined by first examining the terms
on which the parties have agreed to arbitrate. Parties may have agreed on either
institutional or ad hoc arbitration under an established set of rules such as the UNCITRAL
Arbitration Rules. In both cases, the arbitral tribunal's powers will be determined by an
established set of rules. It may also be necessary to examine the substantive law governing
the proceedings where this law either overrides the parties' agreement or supplements it.
3. Concurrent powers
25. Under a third approach, the arbitral tribunal and the courts have concurrent power to
issue interim measures, with the parties deciding where to apply for interim relief,
although the court will generally be the only body with the power to order interim
measures before the arbitral tribunal has been constituted. In some laws where the power
is concurrent the range of measures available from the court is sometimes broader before
the arbitral tribunal has been constituted than after it has been constituted. Conservatory
P 228 measures, for example, may be requested before and after constitution of the arbitral
P 229 tribunal, while some measures having both conservatory and executory purposes may
only be issued before constitution of the arbitral tribunal.
26. A number of institutional arbitration rules recognize the power of arbitrators to issue
interim measures and address the division of power between the arbitral tribunal and the
court, generally providing that an application to a judicial authority after transmission of
the file to the arbitral tribunal or constitution of the arbitral tribunal is not inconsistent
with or deemed to be a waiver of the agreement to arbitrate. (10) A number of those rules

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 require the applicant for the measure to promptly inform the arbitral tribunal of the
application to the court.
4. Consecutive powers
27. A further approach divides the powers between the court and arbitral tribunal by
reference to the constitution of the latter or the initiation of arbitral proceedings. Under
these laws, the court has the power to issue interim measures before the arbitral tribunal
is constituted but not after it has been constituted, on the basis that once constituted it is
for the arbitral tribunal to issue interim measures if required[.]
5. Power of courts to issue is uncertain
28. In some legal systems the power of the courts to issue interim measures in support of
arbitration is not certain because it is not explicitly stated in either arbitration laws or
civil procedure laws or rules. These systems require interpretation of the laws of civil
procedure, with some courts deriving the power from the absence of a prohibition against
issuing interim measures.
6. Limitations on powers
(a) Courts
29. The courts in a number of countries have tried to establish the limits of the powers of
the courts in issuing interim measures. A number of precedents are slowly building up,
defining the situations in which the court may legitimately intervene to support the work of
the arbitral tribunal without usurping its authority. The conclusions reached, however, vary
from country to country, making it difficult to predict the extent to which a national court
may be prepared to intervene. As noted above, courts often draw a distinction between
the time before and the time after the arbitral tribunal has been constituted or the
arbitration initiated. (11)
30. Other limitations on the power of the court to issue interim measures relate to the
existence of certain specified circumstances. These might include limiting the power of the
court to issue interim measures to those circumstances where the rights of a third party are
involved; an ex parte application is involved; or the court's powers will be more effective
than those of an arbitrator.
P 229
P 230
31. A further limitation on which there appears to be a consensus is where the relief
requested goes to the heart of the substantive dispute. Some legislation provides, and
courts in some countries have held, that the court has the power to issue interim measures,
but that in doing so its power does not extend to a discussion of, or preliminary decision
on, the substantive dispute. Where the party requesting the interim measure is in effect
seeking to obtain a ruling on the merits of the dispute, courts will deny the request.
According to some reports, even where arbitrators have broad authority, they use it
reluctantly so as not to appear to be deciding on the merits or in favour of one party.
Courts seem similarly reluctant to use their coercive powers to avoid making a decision
that may turn out to be premature—that is, before the facts and the law of the case have
been fully presented to the arbitral tribunal. Courts will generally avoid prejudicing the
essence of the case by issuing, for example, a measure that effectively interprets the
contract. Some courts, in refusing to exercise their interim relief powers, focus on the
parties' expressed intent to submit their dispute to the confidential, neutral arbitration
forum.
(b) Arbitral tribunals
32. A number of limitations operate in respect of the arbitral tribunal's power to order
interim measures. The first is the point at which the power of the arbitral tribunal arises
(whether by reference to the constitution of the arbitral tribunal or transmission of the file
to the arbitral tribunal or to some other time as defined in the law or applicable
arbitration rules). This power may arise some time after the dispute commences and after
the interim measure may be required.
33. A second limitation is that an arbitral tribunal has no enforcement power of its own and
enforcement of a measure ordered by an arbitral tribunal must be sought in the courts. A
third limitation is that an arbitrator or arbitral tribunal has no power to bind any person
not a party to the arbitration and thus cannot issue a measure directed to any third
person.
D. The applicant for interim measures
34. Where the court has exclusive authority, there are two distinct approaches to the
question of who may apply to the court for interim measures in support of arbitration.
Some laws require the arbitral tribunal or arbitrator to make the request to the court (a
party to the proceedings is specifically prohibited), but generally it is a party to the
arbitration who will be the applicant. A request to an arbitral tribunal to issue an interim
measure would be made by a party to the proceedings.
35. Many laws provide for ex parte applications for interim measures, provided that the
applicant gives security for damages in case it is later determined that the order should
not have been issued. To obtain ex parte relief, the applicant is most often required to

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 show requisite urgency—that is, that irreparable harm will result if the applicant is
required to seek the requested relief under customary procedures requiring many days'
notice. In exceptional cases, some laws allow the requirement of security to be waived.
P 230 Where the interim relief is sought before the arbitral tribunal is constituted, some laws
P 231 require that the arbitral proceedings be commenced within a fixed period, which may
vary from a number of days to a number of months.
36. Where the application for interim relief is denied, a number of laws permit the
applicant to appeal either with or without leave of court. Other laws simply deny the right
to appeal.
E. Types of interim measures that may be ordered
1. Courts
37. Different legal systems have characterized interim measures of protection in different
ways and using different classifications. While the terminology “provisional and
conservatory measures” is often used, the distinction between the two is not always clear
and there is no universally accepted classification of interim relief. This distinction may,
however, be important because some laws allow courts to order one type of measure but
not the other, or distinguish between the two in terms of what orders may be made before
and after constitution of the arbitral tribunal (see, for example, para. 25 above). In
addition, countries adopt different approaches to the scope and variety of interim
measures available from a court in support of arbitration and may draw a distinction
between measures that may be ordered in support of domestic and foreign arbitration
(see, for example, para. 45 below, footnote 17).
38. The types of measures that may be ordered by courts vary. Orders against an entity's
property that direct an authority to seize or take control of the property, and orders
compelling a party to do or refrain from doing a specified act, appear to be the type of
measures most commonly issued. In some discussions, however, the general notion of
interim measures is intended to include any procedural measures or measures concerned
with the management of the arbitral process that may be issued.
39. Some arbitration laws enumerate the types of specific measures available, while in
others they are described by reference to a general formulation, such as measures which
are “conservatory or preventive and concretely adequate to secure the effectiveness of the
threatened right.” In some of the examples where the measures are not enumerated in the
arbitration law, interim measures in the arbitral context are afforded the same treatment
as in other court-supervised adversary matters as provided in civil procedure laws and
rules of court.
40. Despite differences in terminology, standard types of measures widely available from
courts in support of arbitration typically include:
(a) Orders to protect the property in dispute or protect certain rights of a nonmonetary
nature, typically addressed to the parties to the dispute (referred to as “attachment”
in certain jurisdictions);
(b) Orders to prevent a party from removing assets or money kept by that party or
placed with a third party (referred to as “injunctions” in certain jurisdictions);
(c) Preservation, custody or sale of perishable goods;
P 231
P 232
(d) Orders requiring a party to conserve goods in it its possession (referred to as
“sequestration” in certain jurisdictions);
(e) Property inspection orders;
(f) Appointment of a receiver to hold property that should not be in either party's
possession until the dispute is resolved;
(g) Orders requiring a party to post security for the costs of the other party should the
action prove to be unsuccessful.
2. Arbitral tribunals
41. In line with article 17 of the UNCITRAL Model Law on International Commercial
Arbitration, many national laws limit the types of interim measures that may be ordered
by an arbitral tribunal by requiring that any such measure be “in respect of the subject
matter of the dispute”. In that respect, it may be recalled that article 17 of the Model Law
was drafted against the background of article 26 of the UNCITRAL Arbitration Rules, which
refer to the arbitral tribunal taking, at the request of either party, any interim measures “it
deems necessary in respect of the subject-matter of the dispute, including measures for
the conservation of the goods forming the subject matter in dispute, such as ordering their
deposit with a third person or ordering the sale of perishable goods”. The reference in
those texts to “the subject-matter of the dispute” and the illustration provided in the
UNCITRAL Arbitration Rules regarding the sale of perishable goods is generally not
understood as restricting the power of the arbitral tribunal to order any type of interim
measure it deems appropriate. However, such references to “the subject-matter of the
dispute” and to “conservation of goods forming the subject-matter of the dispute” have
suggested to at least one commentator that the measures contemplated related to the
preservation or sale of goods rather than preventing the transfer of assets to another

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 jurisdiction. By comparison, the language used in the ICC Rules which allows an arbitral
tribunal to “order any interim or conservatory measure it deems appropriate” is seen as
possibly providing a broader discretion. The AAA Rules also may be broader by allowing
the arbitral tribunal to “take whatever interim measures he or she deems necessary” and
not making any reference to the subject matter of the dispute. The revision of the text of
article 17 of the Model Law may provide the occasion to clear any misunderstanding, either
through redrafting of the provision or by way of appropriate explanations in the guide to
enactment.
F. Elements to be satisfied for issuance of interim measures
42. Many laws establish a number of prerequisites for the issuance of interim measures by
courts in support of arbitration, the most common of which are:
(a) That appropriate security be posted by the applicant for damages that may arise
from the order issued;
(b) That there is an urgent need for the measure applied for;
P 232
P 233
(c) That the applicant for the measure demonstrate that a significant degree of harm will
result if the interim measure is not ordered, generally called “irreparable” or
“substantial” harm (12) ; and
(d) In most jurisdictions, that there is a likelihood of the applicant succeeding on the
merits of the underlying case.
43. The prerequisites for the issue of interim measures by the arbitral tribunal depends on
the applicable law and the rules governing the arbitration proceedings. The preconditions
for the granting of interim measures are generally set out in the applicable law although
there is no uniformity in this area and the laws and rules do not provide any detail on the
prerequisites even though interim measures of protection have potentially farreaching
consequences. In many of the international rules, an arbitral tribunal is given a broad
discretion to determine if a requested interim measure is appropriate (13) or necessary.
(14) Typical preconditions include that the issue sought to be addressed in the interim
measure requires urgent redress, that there is a risk to the subject matter in the dispute,
that there would be irreparable harm or serious or actual damage if the measure
requested is not granted, that no other remedy is available and that security is provided.
(15)
G. Interim measures from courts in support of foreign arbitration
44. In an international dispute where the interim relief is sought in a country other than the
country where the arbitration takes place, the question of jurisdiction arises: do the
national courts have jurisdiction to grant interim relief in support of foreign arbitration
and on what grounds? As a general principle, a form of relief that is directed towards
specified property, or a third party holding it, is more likely to be territorially restricted
than an injunction against the party personally. The injunction against the party will apply
irrespective of where the property is situated.
45. Countries have adopted different approaches to the issue of measures in support of
foreign arbitration. The laws of some countries allow recourse to the court not only in cases
where the arbitration takes place in the country of the court, but also in cases where the
arbitration takes place outside the country. Those laws generally refer to the need to be
able to enforce the measure within the jurisdiction of the court issuing the measure, such
as requiring the presence of assets in its territory (whether of a resident or non-resident)
P 233 (16) or they may require the presence of the respondent to the application for interim
P 234 measures. (17) In some countries, for example, the law requires that the court have
jurisdiction over the respondent before an interim measure can be ordered or enforced.
46. Other examples of conditions required by some national laws for the granting of
interim measures in support of foreign arbitration include: that the foreign arbitral award
would be enforceable in that jurisdiction of the court issuing the measure; (18) that full
disclosure of the existence of the arbitration agreement has been made; (19) that the
request for the interim measure has been made by the arbitral tribunal; or that the
conditions of the legislation of the country in which the measure is sought are met. (20)
There are also laws that provide that interim measures to be enforced outside the country
may be ordered only if there is a chance that they will be enforced in the foreign
jurisdiction.
47. In many countries, however, the law does not provide that this type of assistance may
be granted by local courts. In some laws, an application to the courts for protective
measures may only be granted where an application has already been made to that court
for a decision on the merits, clearly not possible where there is an arbitration agreement
in existence. In other laws, the court may order protective measures in cases where the
arbitration takes place within the jurisdiction of the court, but not abroad. (21)
48. In a further category of countries, the position is not clear either because the relevant
legislation does not address the issue or because there have been no reports of cases in
which such an order has been sought. (22)
P 234
P 235

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 [Editors' Note: Part 2 on work by other international organizations on provisional measures
issued by courts is reprinted in the section on court-ordered interim measures, Article 17 J, pp.
558–68, infra.]
III. Possible provisions
72. The material discussed above suggests that, with respect to interim measures in
support of arbitration issued by both courts and arbitral tribunals, there are a number of
issues that the Working Group may wish to address.
73. Those issues are: whether there is the power to order interim measures and if so, the
scope and extent of that power; the relationship between the court and the arbitral
tribunal once the arbitral tribunal has been constituted and their respective powers to
issue interim measures (including before the arbitral tribunal is constituted); the pre-
conditions for issue of such measures; and the conditions that may attach to the interim
measures issued; the type and scope of measures that may be issued; and whether the
measures can be enforced in a foreign jurisdiction. In respect of court ordered measures
there is an additional issue of whether the power to order interim measures extends to
both domestic and foreign arbitration.
A. Arbitral-tribunal ordered interim measures
74. At its thirty-fourth session in 2001, the Working Group discussed the question of interim
measures of protection issued by an arbitral tribunal on the basis of draft provisions
prepared by the Secretariat. The considerations of the Working Group are reflected in
paras. 65–76 of [the June 2001 Working Group Report,] A/CN.9/487 [paras. 65–75 are reprinted
at pp. 220–23 supra; para. 76 at p. 466 infra]. The revised draft provisions presented below
have been prepared on the basis of the considerations in the Working Group elaborating
on article 17 of the UNCITRAL Model Law on International Commercial Arbitration.
Draft article 17 [Arts. 17 –17 E in the final text]
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a
party, order any party to take such interim measure of protection as the arbitral tribunal
may consider necessary [in respect of the subject-matter of the dispute].
(2) [Art. 17 A in the final text] The party requesting the interim measure should furnish proof
that:
(a) there is an urgent need for the measure applied for;
(b) a significant degree of harm will result if the interim measure is not ordered; and
(c) there is a likelihood of the applicant for the measure succeeding on the merits of the
underlying case.
P 235
P 236
(3) [Art. 17 E in the final text] The arbitral tribunal may require any party to provide
appropriate security in connection with such measure.
(4) [Art. 17(2) in the final text] An interim measure or protection is any temporary measure [,
whether it is established in the form of an arbitral award or in another form,] ordered by
the arbitral tribunal pending the issuance of the award by which the dispute is finally
decided. For the purposes of this article reference to an interim measure includes: (40)
Variant
1
(a) a measure to maintain the status quo pending determination of the questions at
issue;
(b) a measure providing a preliminary means of securing assets out of which an
award may be satisfied; or
(c) a measure to restrain conduct by a defendant to prevent current or imminent
future harm. (41)
Variant
2
(a) a measure to avoid or minimize prejudice, loss or damage; or
(b) a measure to facilitate later enforcement of an award.
(5) [Art. 17 B in the final text] The arbitral tribunal may, where it is necessary to ensure that
an interim measure is effective, grant a measure [for a period not exceeding […] days]
[without notice to the party against whom the measure is directed] [before the party
against whom the measure is directed has had an opportunity to respond] only where:
(a) it is necessary to ensure that the measure is effective;
(b) the applicant for the measure provides appropriate security in connection with the
measure;
(c) [Art. 17 E(2) in the final text] the applicant for the measure can demonstrate the urgent
necessity of the measure; and
(d) [the measure would be supported by a preponderance of considerations of fairness
(42) ].

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 [(6) [Art. 17 C in the final text] The party to whom the measure under paragraph (5) is
directed shall be given notice of the measure and an opportunity to be heard at the
earliest practicable time.]
P 236
P 237
(7) [Art. 17 C in the final text] A measure granted under paragraph (5) may be extended or
modified after the party to whom it is directed has been given notice and an opportunity
to respond.
[(8) [Art. 17 D in the final text] An interim measure of protection may be modified or
terminated [on the request of a party] if the circumstances referred to in paragraph (2)
have changed after the issuance of the measure.]
[(9) [Art. 17 F in the final text] The party who requested the issuance of an interim measure
of protection shall, from the time of the request onwards, inform the court promptly of any
substantial change of circumstances referred to in paragraph (2).]
[Editors' Note: Draft provisions on enforcement of interim measures and court-ordered
interim measures are reprinted at pp. 469–71 and 569–70, infra, respectively.]
APRIL 2002 WORKING GROUP REPORT A/CN.9/508 (12 APRIL 2002)
III. Interim measures of protection
51. The Working Group continued its work on draft article 17 of the UNCITRAL Model Law on
Arbitration, which contained a definition of interim measures of protection and additional
provisions on ex parte interim measures. The text considered by the Working Group was as
follows:
[same as the January 2002 Secretariat Note, A/CN.9/WG.II/WP.119, para. 74]
Paragraph (1)[Art. 17(1) in the final text]
52. The Working Group considered a proposal for deleting the phrase in square brackets in
the draft paragraph. That phrase was said to lend itself to a restrictive interpretation, for
instance, if it were understood to mean that an arbitral tribunal could only order interim
measures of protection that were directly related to the assets under dispute. In response
to that proposal it was said that the phrase similar to the phrase in question had been
used in article 26 of the UNCITRAL Arbitration Rules and should be kept in draft article 17
for purposes of consistency. It was pointed out that, in the context of the UNCITRAL
Arbitration Rules, that phrase was meant to be liberally interpreted and, in practice, had
not posed an obstacle to the exercise by arbitral tribunals of their power to order interim
measures of protection that were appropriate to any given case. Therefore, it was
suggested that the phrase in square brackets in paragraph (1) should be retained.
53. Nevertheless, the prevailing view in the Working Group was that the phrase in square
brackets should be deleted since it might lead to an undue restriction on the power of the
arbitral tribunal to issue interim measures (e.g., in that it might be considered not to cover
measures for freezing of assets that were strictly speaking not the subject-matter of the
dispute).
P 237 54. The Working Group, however, stressed that the streamlining of paragraph (1) should not
P 238 be understood as an indication that the current wording of article 17 of the UNCITRAL
Model Law on Arbitration and article 26 of the UNCITRAL Arbitration Rules excluded
measures that did not relate directly to the goods in dispute.
Paragraph (2)[Art. 17 A in the final text]
55. General support was expressed in favour of the structure and contents of paragraph (2).
Various comments and suggestions were made for improvement of the text. With respect to
the opening words of the paragraph, a question was raised as to whether the paragraph
should be phrased in terms of obligations binding on the party applying for the interim
measure. As a possible alternative, it was suggested that the provision should be
formulated as criteria to be applied by the arbitral tribunal when making a decision upon
request for an interim measure. Another suggestion was to phrase the provision in more
neutral terms, for example through a statement that an interim measure may only be
granted if certain conditions were met. The Working group agreed that those various
alternatives might need to be reconsidered at a future session. There was general
agreement that the verb “should” should be replaced by a stricter formulation, such as
“shall” or “must”. As to the use of the words “furnish proof”, it was observed that the
provision should not interfere with the various standards of proof that might be applied in
different jurisdictions or within the same jurisdiction. The view was also expressed that
requiring “proof” might be excessively cumbersome in the context of interim measures.
With a view to avoiding a reference to “proof”, the words “establish”, “demonstrate” or
“show” were proposed as possible alternatives to the words “furnish proof”.
56. With respect to subparagraph (b), it was widely felt that the provision should be based
on a “balance of convenience” under which the assessment of the degree of harm suffered
by the applicant if the interim measure was not granted should be balanced against an
evaluation of the harm suffered by the party opposing the measure if that measure was
granted. In addition, it was felt that the quantitative approach reflected in the words “a
significant degree of harm” might create uncertainties as to how a degree of harm should

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 be considered to be sufficiently “significant” to justify certain provisional measures. It was
suggested that a reference to the more qualitative notion of “irreparable harm” should be
used.
57. With respect to subparagraph (c), it was suggested that the words “substantial
possibility” were preferable to the word “likelihood”. At the close of the discussion, a
question was raised as to whether provisional measures should be available in
circumstances where a contradiction would exist between the requirements of
subparagraphs (a), (b), and (c). A suggestion was made that, at a future session, the Working
Group might need to reopen the debate as to whether those three subparagraphs should
be made cumulative or alternative requirements.
58. After discussion, the Working Group decided that the following text should be
considered by the Secretariat, together with other possible alternatives, when preparing a
revised version of paragraph (2) for continuation of the discussion at a future session:
P 238
P 239
“(2) Variant A
The party requesting the interim measure must [show][demonstrate] [prove]
[establish] that:
Variant B
The arbitral tribunal shall only issue an interim measure if it is satisfied that:
Variant C
An interim measure may only be ordered if:
“(a)
Variant
X there is [a] [an urgent] need for the measure applied for;
Variant
Y the interim measure applied for is necessary in the particular
circumstances of the case;
“(b) irreparable harm to the applicant [will] [is likely to] result if the interim
measure is not ordered and that harm substantially outweighs the harm, if
any, that [would] [is likely to] result to the party opposing the interim
measure if the measure were ordered; [and] [or]
“(c) there is a substantial possibility that the applicant for the measure will
succeed on the merits of the [dispute] [underlying case]”.
Paragraph (3) [Art. 17 E in the final text]
“The arbitral tribunal may require”
59. The suggestion was made that the provision of some form of security in connection with
interim measures should be made mandatory so as to offer adequate protection to the
party against whom such interim measures might be enforced and to reduce the risk of
abuse in the use of interim measures.
60. The prevailing view within the Working Group, however, was that, while the provision of
security in connection with interim measures was the norm, it should not be made
mandatory. It was pointed out, in that connection, that in some legal systems the question
of whether or not security needed to be provided might not be for the arbitral tribunal to
decide, but rather for the authority competent for the enforcement of the interim measure.
It was also stated that, in practice, there might be situations where the party requesting
the interim measure might not be in a position to readily offer appropriate security, for
instance, where such party had been deprived of funds by the other party. From a policy
perspective, it was felt that it would be preferable to keep the matter within the discretion
of the arbitral tribunal.
61. A proposal to add, for purposes of clarity, words such as “if damage is likely to be
sustained by the party against whom the measure is requested” at the end of the draft
paragraph did not attract sufficient support, since the Working Group felt that the purpose
for which security was required was not only to provide a safeguard in the event of damage
resulting from the interim measure.
P 239
P 240
“any party”
62. Questions were raised as to the exact meaning of the words “any party” in the draft
paragraph. Some speakers regarded those words as being vague and suggested that they
should be replaced with a more precise formulation, such as “the applicant for the interim
measure”. The Working Group, however, was not in favour of replacing those words with
another phrase. It was felt that the words “any party” afforded the desirable degree of
flexibility to encompass, for example, the submission of alternative guarantees by the
party against whom the measure was requested in order to avoid the interim measure
being ordered.

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 63. Subject to linguistic changes to ensure consistency among the language versions, the
Working Group therefore adopted the substance of the draft paragraph. It was suggested
that the above discussion should be reflected in the guide to enactment of the model
legislative provision.
Paragraph (4) [Art. 17(2) in the final text]
64. As a general comment, it was suggested that, to the extent that draft paragraph (4)
defined the scope of interim measures, it should be placed immediately after draft
paragraph (1). That suggestion was adopted by the Working Group.
“[, whether it is established in the form of an arbitral award or in another form,]”
65. The Working Group began its substantive discussion of the draft paragraph by
considering a proposal to delete the entire phrase within square brackets in the chapeau
of the draft paragraph. In support of that proposal it was said that the phrase in question
was not needed since the possible spectrum of interim measures mentioned therein was
already covered by the words “any temporary measure”. The Working Group did not follow
that proposal, however, since it was of the view that the phrase in question substantially
added to the draft paragraph by clarifying that, depending on the circumstances and on
the jurisdiction, interim measures might be issued in a variety of forms. The Working Group
proceeded to consider proposed amendments to that phrase.
66. One suggestion was that the words “arbitral award” should be replaced by the words
“partial or interim award”. In support to [sic] that proposal it was stated that the words
“arbitral award” were often understood as referring to the final award in the arbitration
proceedings, whereas an order of interim measures, even if issued in the form of an award,
was typically an interlocutory decision. Some support was expressed for that proposal,
although most speakers objected to the use of the words “partial award”, since those words
typically referred to a final award that disposed of part of the dispute, but would not
appropriately describe an interim measures [sic]. Doubts were expressed as to whether the
words “interlocutory award” would adequately cover the various types of interim measures
that might be issued in the form of an award. After discussion, the preference within the
Working Group was for simply deleting the word “arbitral” without further qualifying the
nature of the award.
P 240 67. Another proposal was to delete the words “or in another form” after the word “award”.
P 241 Such deletion was justified, it was said, in the interest of ensuring due process and the
orderly conduct of the arbitral proceedings. As currently drafted, the provision
contemplated the issuance of interim measures in a form other than a formal award. That
situation was said to be problematic since in some legal systems only formal awards and
not every procedural order or decision of an arbitral tribunal was subject to judicial review
in the course of setting-aside or enforcement procedures. If the provision allowed the
issuance of interim measures by means other than a formal award, the party against whom
the interim measure was requested might be deprived of the rights it might otherwise have
under the applicable law, for instance, to challenge the validity or enforceability of the
arbitral award. That, it was said, was the reason why some of the jurisdictions that had
enacted the UNCITRAL Model Law on Arbitration had expressly provided that an order of
interim measures had to be issued as a formal award.
68. The prevailing view within the Working Group, however, was not in favour of deleting the
words “or in another form”. It was said that it would be undesirable for the draft paragraph
to be overly prescriptive in respect of the form that an interim measure had to take. The
fact that the draft paragraph did not require the order of interim measures to be issued as
a formal award, it was said, could not be regarded as diminishing any recourse or other
legal means available to the party against whom such measure was ordered. It was pointed
out, in that connection, that the question of whether an order of interim measures
constituted an “award” for the purposes of setting-aside or enforcement rules of the forum
State was not predicated upon the title or form given to the order by the arbitral tribunal.
That question was settled by applicable domestic law. The draft model legislative
provision, it was stated, should not interfere with any power that the competent court
might have to qualify such an order as an award despite the form or title given to it by the
arbitral tribunal. In that connection, it was pointed out that the question as to whether an
interim measure, whether or not qualified as an “award”, was subject to setting aside under
article 34 of the UNCITRAL Model Law on Arbitration might need to be further considered in
the context of future discussions on enforcement of interim measures.
“pending the issuance of the award”
69. In view of the fact that interim measures might be requested or issued at different
stages of arbitral proceedings, it was suggested that the words “pending issuance of the
award” should be replaced by words such as “at any time prior to the issuance of the
award”. The Working Group accepted that suggestion.
Variants 1 and 2
70. As a general comment it was said that, since the lists of measures contained in both
variants could only be of an illustrative and non-exhaustive nature, it would be preferable
to present them in the guide to enactment, rather than in the body of the provision. The
Working Group was invited to consider, in that connection, whether variants 1 and 2 were

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 indeed mutually exclusive or whether they could not be usefully merged into a single list.
P 241 71. The Working Group was of the view, however, that it would be useful for the draft
P 242 paragraph to list, albeit in a non-exhaustive fashion, types of measures that might be
ordered by an arbitral tribunal, rather than simply offering such illustration in the relevant
portion of the guide to enactment. The Working group agreed that the opening words of
paragraph (4) should make it abundantly clear that the list of provisional measures
provided in the various subparagraphs was intended to be non-exhaustive.
72. In that connection, although support was expressed in favour of the more general
formulation of Variant 2, the preference of the Working Group was generally for the more
descriptive approach followed under Variant 1.
Subparagraph (a)
73. While general support was expressed for the substance of the subparagraph, it was felt
that the purpose of the provisional measure might be not only to maintain but also to
restore the status quo. It was agreed that subparagraph (a) should be redrafted
accordingly.
Subparagraph (b)
74. It was widely agreed that subparagraph (b) should be reformulated along the following
lines “a measure providing a preliminary means of securing or facilitating the enforcement
of the award”.
Subparagraph (c)
75. It was generally felt that the ambit of the provision should be broadened to cover also
cases where the purpose of the interim measure was not to restrain but to order
affirmative conduct. Along the same lines, it was felt that the scope of the provision should
not cover only measures ordered against the defendant but also measures addressed to
other parties. The Working Group agreed that subparagraph (c) should read along the
following lines: “a measure to restrain or order conduct of any party to prevent current or
imminent future harm”.
Proposed new subparagraph (d)
76. With a view to facilitating the issuance of interim measures aimed at preventing
destruction of evidence, it was suggested that among the illustrative list contained in
paragraph (4), mention should be made of “a measure intended to provide a preliminary
means of preserving evidence”. That suggestion was accepted by the Working Group.
Paragraph (5) [Art. 17 B in the final text]
77. Diverging views were expressed as to whether, as a matter of general policy, it would be
suitable for a revision of the UNCITRAL Model Law on Arbitration to establish the
possibility for interim measures to be ordered ex parte by an arbitral tribunal. Under one
view, in line with existing arbitration laws in a number of countries, the possibility of
ordering an interim measure of protection on an ex parte basis should be reserved only to
courts of justice. It was stated that no exception should be made to the principle that each
party should have equal access to the arbitral tribunal and a full opportunity of presenting
its case, as expressed in article 18 of the Model Law. Recognizing the possibility that ex
P 242 parte measures might be ordered by the arbitral tribunal was said to open an avenue
P 243 for dilatory and unfair practices that should be avoided. It was also said that ex parte
interim measures could have a damaging effect on third parties. However, the contrary
view was widely expressed that the same principles that parties should be treated with
equality and be given a full opportunity of presenting their case generally applied to
courts of justice and in many countries were not regarded as sufficient grounds for refusing
the possibility of ordering ex parte measures in exceptional circumstances. The prevailing
view was that introducing a provision dealing with such ex parte interim measures into the
Model Law would constitute a useful addition to the text and meet the needs of arbitration
practice.
78. Various suggestions were made with a view to limiting the occurrence of possibly
abusive applications for ex parte interim measures. One suggestion, inspired by rules
applied by the International Centre for Settlement of Investment Disputes (ICSID), was that
the authority of the arbitral tribunal to grant interim measures ex parte should be made
contingent on a previous agreement being concluded to that effect by the parties. It was
pointed out in response that, in the more general context of commercial arbitration, it was
unrealistic to imagine that parties would agree on such a procedural rule either before of
[sic] after the dispute had arisen. Another proposal was that only provisional measures
intended to maintain the status quo pending determination of the question at issue could
be ordered ex parte by the arbitral tribunal. That proposal was objected to on the grounds
that it would not cover the situation where the interim measure was aimed at restoring a
situation altered by the aggressive action of a party. Yet another proposal was that ex
parte interim measures should only be regarded as acceptable where circumstances made
it impossible to notify the other party. A further proposal, which attracted support from a
number of delegations, was that the revised text of article 17 of the Model Law should
establish an obligation for any party who sought an ex parte interim measure to inform the
arbitral tribunal of all circumstances, including circumstances adverse to its position, that

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© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 the arbitral tribunal was likely to find relevant and material to its determination whether
the requirements of paragraph (5) had been met. Such an obligation was referred to as “full
and frank disclosure”, and described as already known to certain legal systems. Doubts
were expressed, however, by delegations familiar with other legal systems as to whether
the proposed obligation would be entirely covered by the more widely known concept of
“good faith”. Concerns were raised regarding the acceptability of such an obligation if it
resulted in requiring a party to act positively against its own interests. Questions were also
raised regarding the exact contents of the obligation and regarding the consequences that
might flow from failure by the applicant to comply. It was suggested that further research
might be needed as to such consequences, which might include revocation of the interim
measure or damages if the interim measure had been improperly procured.
79. Also with a view to limiting the possibly negative impact of ex parte interim measures,
another suggested approach was to limit or exclude the possibility of court enforcement of
ex parte interim measures. Support was expressed in favour of exploring the ways in which
P 243 the court enforcement of an interim measure initially ordered ex parte could be made
P 244 subordinate to its later confirmation inter partes by the arbitral tribunal. Support was
also expressed in favour of establishing the ex parte nature of a provisional measure as a
possible ground for refusing enforcement. Doubts were expressed, however, as to whether
interim measures ordered ex parte by an arbitral tribunal would still present any
attractiveness to practitioners if the revised text of the Model Law made them
unenforceable. In that connection, it was pointed out that in certain countries where the
court system would experience difficulties in reacting expeditiously to a request for an ex
parte interim measure, it would be essential to establish the enforceable character of such
an interim measure when ordered by an arbitral tribunal. The Working Group did not come
to a conclusion regarding the enforcement of ex parte interim measures. It was agreed that
the issue would need to be considered further in the context of the general discussion
regarding enforcement of interim measures.
Chapeau of draft paragraph (5)
80. Turning its attention to the specific formulation of paragraph (5), the Working Group,
discussed the definition of ex parte interim measures in the chapeau of draft paragraph (5).
A suggestion was made that the chapeau of draft paragraph (5) should be prefaced with the
words “In exceptional circumstances”. While the view was generally shared that ex parte
interim measures should only be considered in exceptionally urgent circumstances,
doubts were expressed as to whether the inclusion of the suggested words in the draft
provision would be sufficiently clear to provide an objective criterion. As a matter of
drafting, it was pointed out that the words “where it is necessary to ensure that an interim
measure is effective” were redundant with subparagraph (a) and should be deleted.
81. With respect to the words “[for a period not exceeding […] days]”, the view was
expressed that the matter of time-limitation of the measure should be left to the
discretion of the arbitral tribunal. Another view was that the issue of time limitation would
be more appropriately dealt with in the context of a limitation of the time set forth to
notify the defendant of the interim measure under draft paragraph (6). The prevailing view
was that the duration of any ex parte interim measure should be limited and that the
words should be retained. It was suggested that the limitation on the duration of an
interim measure of protection granted under paragraph (5) should not affect the authority
under paragraph (2) of the arbitral tribunal to grant, confirm, extend, or modify an interim
measure of protection after the party against whom the measure was directed had been
given notice and an opportunity to respond.
82. With respect to the alternative wordings between square brackets ([without notice to
the party against whom the measure is directed] [before the party against whom the
measure is directed has had an opportunity to respond]), some preference was expressed
for the more descriptive wording along lines of: “before the party against whom the
measure is directed has had an opportunity to respond”. The view was expressed that the
two wordings might be combined to reflect the situation where the applicant was unable
to give notice to the respondent, for example where the respondent could not be located
P 244 on time, as distinct from the situation where the applicant chose not to give notice to the
P 245 respondent so as not to undermine the effectiveness of the interim measure, for
example where the respondent could be expected to transfer assets out of the jurisdiction.
83. As to the requirements that should be met for an interim measure to be granted ex
parte, it was generally agreed that interim measures considered under draft paragraph (5)
should at least meet all the prerequisites for the issuance of an interim measure set forth
under draft paragraph (2).
Subparagraph (a)
84. The substance of subparagraph (a) was found generally acceptable. The view was
expressed, however, that the notion that the measure should be “effective” was
insufficiently precise. It was suggested to use the words “in order to ensure that the
execution of the order is not frustrated”.
Subparagraph (b)
85. The production by the applicant of appropriate security in connection with the interim
measure was regarded by a number of delegations as essential to avoid abusive

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 applications for ex parte interim measures. Doubts were expressed, however, as to whether
the existence of such security should be made a mandatory pre-requisite for the issuance
of an ex parte interim measure or whether the issue should be left to the discretion of the
arbitral tribunal.
Subparagraph (c) [Art. 17 E(2) in the final text]
86. While the view was expressed that the reference to the urgent necessity of the measure
should be the determining factor for envisaging the issuance of an ex parte interim
measure, concern was expressed regarding the possible redundancy of subparagraph (c) of
draft paragraph (5) with subparagraph (a) of draft paragraph (2). To the extent that urgency
would be retained as a general criterion under draft paragraph (2), it should be deleted
from draft paragraph (5), unless it could be qualified so as to provide a distinct criterion in
the context of ex parte interim measures.
Subparagraph (d)
87. In view of its earlier deliberations regarding draft paragraph (2), the Working Group
agreed that subparagraph (d) was not needed and should be deleted.
88. With a view to reflecting some of the above-mentioned views and concerns, various
suggestions were made for simplifying the text of draft paragraph (5). One suggestion read
as follows: “Upon receipt of a request to issue an interim measure, the arbitral tribunal
shall have the power to take any measure as it deems necessary in order to assure the
effectiveness of the interim measure in case it is granted”. Another proposal read as
follows: “The arbitral tribunal may, where the requirements of paragraph (2) are met and
where it is necessary to ensure that an interim measure is effective, grant a measure
before the party against whom the measure is directed has had an opportunity to
P 245 respond”. Yet another proposal was made for a redraft of paragraph (5) and the remainder
P 246 of draft article 17 as follows:
“Para (5)
“[In exceptional circumstances,] the arbitral tribunal may grant an interim
measure of protection for a period not exceeding [… days], without notice to the
party against whom the measure is directed or before the party against whom
the measure is directed has had an opportunity to respond, where:
“(a) the requirements of paragraph (2) are met; and
“(b) the arbitral tribunal determines [, and so states in a written finding,] that
it is necessary to proceed in such manner in order to ensure that the
measure is effective.
“New Para (6)[Art. 17 F(2) in the final text]
“A party who seeks an interim measure of protection under paragraph (5) shall
have an obligation to inform the arbitral tribunal of all circumstances, including
circumstances adverse to its position, that the arbitral tribunal is likely to find
relevant and material to its determination whether the requirements of that
paragraph have been met.
“At the beginning of present paragraph (6) [Art. 17 C in the final text], to be
renumbered, add the following text
“Unless the arbitral tribunal makes a determination under paragraph (5)(b) that
it is necessary to proceed without notice to the party against whom the measure
is directed in order to ensure that the measure is effective, that party shall.
“Reformulation of present paragraph (7) [Art. 17 C in the final text], to be
renumbered –
“The limitation on the duration of an interim measure of protection granted
under paragraph (5) shall not affect the authority under paragraph (2) of the
arbitral tribunal to grant, confirm, extend, or modify an interim measure of
protection after the party against whom the measure is directed has been given
notice and an opportunity to respond.
“Present paragraph (3) should be placed here if the consensus is to make the
order of security discretionary in all cases, whether ex parte or not.
“Reformulation of present paragraph (8) [Art. 17 D in the final text], to be
renumbered
“The arbitral tribunal may modify or terminate an interim measure of
protection at any time in light of additional information or a change of
circumstances.
“Reformulation of present paragraph (9) [Art. 17 F in the final text], to be
renumbered
“Delete “court” and substitute “arbitral tribunal”
“Add “in these circumstances” after “substantial change”
P 246

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 P 246
P 247
“Delete “referred to in paragraph (2) and substitute “on the basis on which the
application sought or the arbitral tribunal granted the interim measure of
protection.
“Proposal on Enforcement
“A court before which recognition or enforcement of an award or order of an
interim measure of protection issued under article 17(5) is sought [shall not]
[need not] refuse recognition or enforcement on the grounds set forth in article
36(1)(a)(ii) if the court determines that it is necessary to proceed without notice
to the party against whom the measure is directed in order to ensure that the
measure is effective”.
89. Some support was expressed in favour of the three proposals. The discussion focused
on the suggested revision of paragraph (5) and the suggested wording for a new paragraph
(6) in the latter proposal. For lack of sufficient time, the Working Group did not consider
the remainder of that proposal.
90. With respect to the words: [, and so states in a written finding], doubts were expressed
as to whether the proposed text was intended simply to refer to the fact that the decision
of the arbitral tribunal should be reasoned (in which case the additional wording was
probably superfluous), or whether it would result in the obligation for the arbitral tribunal
to express in an additional writing the reasons for which it found it necessary to proceed ex
parte (in which case the obligation could be regarded as excessively burdensome). It was
stated in response that it was essential to ensure that explanations in writing would be
produced by the arbitral tribunal and specifically address the reasons for which it
considered it necessary to proceed ex parte.
91. The view was expressed that a limit should be stated regarding the duration of a
provisional measure ordered ex parte. While it was widely realized that it might be difficult
to achieve consensus as to a precise duration, it was suggested that including words along
the lines of “for a limited period of time” to be determined by the arbitral tribunal might
sufficiently cover the point. Another view that attracted support was that in the case of ex
parte interim measures, the provision of appropriate security by the applicant should be
mandatory, particularly since a question might arise as to whether any claim for damages
that could result from harm caused to the respondent as a result of the ex parte interim
measure would constitute a new claim or fall within the scope of the arbitration. It was
suggested that that question would need to be answered in the context of the revision of
the Model Law.
92. A suggestion was made to reverse the order of new subparagraphs (a) and (b).
93. With respect to suggested new paragraph (6), a suggestion was made that the words
“including circumstances adverse to its position” should be deleted. Another suggestion
was that wording along the lines of “all circumstances of which the party who seeks the
interim measure was or should have been aware” should be used. It was pointed out that
P 247 such wording might avoid the ambiguities and uncertainties that might be associated with
P 248 the words, “circumstances […] that the arbitral tribunal is likely to find relevant and
material to its determination whether the requirements of that paragraph have been met”.
94. The Working Group did not come to a conclusion on the issue of paragraph (5). The
Secretariat was requested to prepare a revised draft, with possible variants, to reflect the
various views, concerns and proposals expressed at the current session.
SEPTEMBER 2002 SECRETARIAT NOTE UNITED STATES PROPOSAL A/CN.9/WG.II/WP.121 (24
SEPTEMBER 2002)
Annex. Proposal by the United States of America
1. The Report of the Working Group on Arbitration on the work of its thirty-sixth session
(New York, 4–8 March 2002) ([April 2002 Working Group Report,] A/CN.9/508) sets forth in
paragraph 88 the text of a proposal for a redraft of paragraph (5) and the remainder of the
draft article 17 [Arts. 17 –17 G in the final text]. As noted in paragraph 90 of the Report,
discussion of this text and other suggestions was not completed for lack of sufficient time.
2. At the Congress of the International Council for Commercial Arbitration (ICCA) in May
2002, a proposal to refine the text in paragraph 88 was discussed. The text discussed at
ICCA is as follows:
Power of arbitral tribunal to order interim measures
(1) [Art. 17(1) in the final text] Unless otherwise agreed by the parties, the arbitral tribunal
may, at the request of a party, order another party to take interim measures of protection.
(2) [Art. 17(2) in the final text] An interim measure of protection is any temporary measure,
whether reflected in an interim award or otherwise, by which, at any time prior to the
issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a
party to
(a) maintain or restore the status quo pending determination of the dispute, in order to
ensure or facilitate the effectiveness of an eventual award;

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 (b) take action that would prevent, or refrain from taking action that would cause,
current or imminent harm, in order to ensure or facilitate the effectiveness of an
eventual award;
(c) provide security for the enforcement of an eventual award, including an award of
costs; or
(d) preserve evidence that may be relevant and material to the resolution of the
dispute.
(3) [Art. 17 A in the final text] The arbitral tribunal may order an interim measure of
protection when the requesting party has demonstrated that
(a) there is an urgent need for the measure;
P 248
P 249
(b) irreparable harm will result if the measure is not ordered, and that harm
substantially outweighs the harm that will result to the party opposing the measure if
the measure is granted; and
(c) there is a substantial possibility that the requesting party will succeed on the merits
of the dispute.
(4) [Arts. 17 B, C and F in the final text]
(a) The arbitral tribunal may grant an interim measure of protection without notice to
the party against whom the measure is directed or before the party against whom the
measure is directed has had an opportunity to respond when, in addition to meeting
the requirements of paragraph (3), the requesting party demonstrates that it is
necessary to proceed in that manner in order to ensure that the measure is effective.
(b) Any interim measure of protection ordered under this paragraph shall be effective for
no more than twenty days, which period cannot be extended. This subparagraph shall
not affect the authority of the arbitral tribunal to grant, confirm, extend, or modify an
interim measure of protection under paragraph (1) after the party against whom the
measure is directed has been given notice and an opportunity to be heard.
(c) Except to the extent that the arbitral tribunal has determined under paragraph (4)(a)
that it is necessary to proceed without notice to the party against whom the interim
measure of protection is directed in order to ensure that the measure is effective,
that party shall be given notice of the measure and an opportunity to be heard at the
earliest practicable time.
(d) [A party requesting an interim measure of protection under this paragraph shall have
an obligation to inform the arbitral tribunal of all circumstances that the arbitral
tribunal is likely to find relevant and material to its determination whether the
requirements of this paragraph have been met.]
(5) [Art. 17 E in the final text] The arbitral tribunal may require the requesting party to
provide appropriate security as a condition to granting an interim measure of protection.
(6) [Art. 17 F in the final text] The requesting party shall, from the time of the request
onwards, inform the arbitral tribunal promptly of any material change in the
circumstances on the basis of which the party sought or the arbitral tribunal granted the
interim measure of protection.
(7) [Art. 17 D in the final text] The arbitral tribunal may modify or terminate an interim
measure of protection at any time.
P 249
P 250
NOVEMBER 2002 WORKING GROUP REPORT A/CN.9/523 (11 NOVEMBER 2002)
III. Interim measures ordered by the arbitral tribunal
15. […] The proposed text as considered by the Working Group ([September 2002 Secretariat
Note,] A/CN.9/WG.II/WP.121, also referred to in this report as “the proposal”) was as follows:
[reprinted supra]
A. General remarks on interim measures ordered on an ex parte basis
16. The Working Group was invited to focus its attention on the most contentious issue of
the power of an arbitral tribunal to order ex parte interim measures of protection as set
forth in paragraph (4) of the proposal [Arts. 17 B, C and F in the final text].
17. The Working Group recalled that at its thirty-sixth session diverging views were
expressed as to whether, as a matter of general policy, it would be suitable for a revision of
the Model Law to establish the possibility for interim measures to be ordered ex parte by
an arbitral tribunal ([April 2002 Working Group Report,] A.CN.9/508, paras. 77–94). The
Working Group recalled that a number of delegations had expressed the view that this
power should be reserved for State courts. That view was reiterated. Other delegations felt
that this power should be given to an arbitral tribunal provided that the ex parte order
only applied for a limited time period. Other delegations took the view that, given the
potential adverse impact of an ex parte order against the affected party, empowering an
arbitral tribunal to issue such an order would be acceptable if strict conditions were
imposed to ensure that the power was not subject to abuse. A widely shared view was that,

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 even if ex parte measures were eventually dealt with in a revised version of article 17 of the
Model Law, they should be so drafted as to indicate that ex parte measures should only be
granted in exceptional circumstances.
18. The Working Group heard a presentation on the history and content of the proposal. It
was noted that the proposal took the approach that the arbitral tribunal should be granted
the authority to issue an ex parte interim measure of protection on a provisional basis and
for a limited period. It was stated that there were at least two situations where it would be
justified for an arbitral tribunal to order interim measures of protection on an ex parte
basis, notwithstanding the fundamental principle of due process and equality of parties in
arbitration. The first such situation was where a party applying for the interim measure in a
case where it was urgently needed was prepared to provide notice to the other party but,
for practical reasons, had not yet been able to give effective notice. The second, and more
difficult, circumstance was where a party seeking the interim measures of protection
contended it was necessary to withhold notice in order to ensure that the interim measure
would be effective or that the other party would not frustrate the measure. It was said that
the fundamental question of policy to be decided at the outset was whether the authority
to order interim measures of protection on an ex parte basis should be granted to arbitral
tribunals in addition to courts.
P 250
P 251
19. In support of giving such power to arbitral tribunals it was said that if the Working Group
agreed that a necessary component of an arbitral tribunal's ability to resolve disputes
included the power to order interim measures generally, then it would necessarily follow
that an arbitral tribunal should have the discretion to do so on an ex parte basis where
circumstances so required. It was suggested that the main argument against granting such
power was the concern for the possible abuse of such a power. It was noted that the risk of
abuse applied equally whether the ex parte interim measures of protection were sought
from a court or from an arbitral tribunal. It was recognized that the power to order ex parte
interim measures of protection would need to work in tandem with the enforcement
provisions yet to be considered by the Working Group. Given that the enforcement regime
set out in the proposal envisaged that a national court would be permitted to examine the
circumstances of the granting of the ex parte order, in some cases a party would have to
successfully mislead both an arbitral tribunal and a court for there to be abuse of the
measure. It was said that this risk was reduced by the fact that the potential review by a
national court provided an appropriate and effective safeguard against abuse. Also, it was
stated that the order of an arbitral tribunal could not directly affect third parties and that
the party seeking the interim measures of protection could be placed under an obligation
to provide security to safeguard against harm to the party against whom the measure was
made. It was pointed out that there was some evidence, albeit anecdotal, that the
judiciary in some States was in favour of providing arbitral tribunals with the power to
address interim measures of protection. However, it was also pointed out that, in certain
legal systems, an interim measure rendered on an ex parte basis would be regarded as a
procedural decision that could not be enforced by State courts.
20. More specifically, it was explained that the general authority to grant ex parte interim
measures of protection in paragraph 4(a) of the proposal included safeguards against
potential abuse. Paragraph 4(b) provided that the ex parte interim measures of protection
would be effective only for a maximum of twenty days and paragraph 4(c) provided that
notice of the measure and an opportunity to be heard should be given to the responding
party at the earliest practicable time. Further, paragraph 4(d) set out the obligation of the
party seeking the measure to inform the tribunal of all circumstances that were relevant
and material to the determination.
21. A number of reservations were expressed in respect of the proposal. First, it was said
that such a power could potentially undermine the fundamental principle of agreement of
parties upon which arbitration was based. It was suggested that allowing an arbitral
tribunal to order ex parte interim measures of protection was contrary to the whole
principle of arbitration which was based on the consensus of two parties permitting one or
more persons to decide their dispute. It was said that conferring such a power on an
arbitral tribunal would run counter to party expectations that arbitration respected party
equality and the expectation that the powers of an arbitral tribunal were limited. In this
respect, it was said that consensus between the parties and confidence in the arbitrators
were fundamental to arbitration as a dispute settlement method. As such, it was said that
parallels between national courts and private arbitral tribunals were not appropriate in
P 251 the context of ex parte interim measures of protection. It was noted that the text as
P 252 originally drafted referred to a “likelihood of the applicant for the measure succeeding on
the merits” ([April 2002 Working Group Report,] A/CN.9/508, para. 51) whilst the proposal
provided in paragraph 3(c) that there be “a substantial possibility that the requesting
party will succeed on the merits” ([September 2002 Secretariat Note,] A/CN.9/WG.II/WP.121).
It was suggested that the original draft risked inviting the arbitral tribunal to prejudge the
case in its examination of the merits and that the language of the proposal increased this
risk. It was noted that this could undermine confidence in the arbitral process and create a
misleading perception regarding the impartiality of an arbitral tribunal. A suggestion was
made to delete paragraph 3(c) to avoid this problem. Contrary views were expressed, and
deletion was objected to on the grounds that such a requirement was generally well

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 established in existing law governing the issuance of ex parte interim measures by State
courts, and also amounted to an additional safeguard.
22. A suggestion was made that the power of the arbitral tribunal to order ex parte interim
measures should only apply when the parties had expressly agreed to its application, for
example in the arbitration agreement, in a set of arbitration rules, or through a
determination of the national law that would govern the arbitration. There was some
support for that suggestion. However, it was recalled that a similar suggestion had been
objected to at the previous session of the Working Group on the grounds that “it was
unrealistic to imagine that parties would agree on such a procedural rule either before or
after the dispute had arisen” ([April 2002 Working Group Report,] A/CN.9/508, para. 78). It
was pointed out that, particularly where one of the parties to the arbitration was a State or
State entity, it might be difficult to elicit such express agreement. However, it was pointed
out that a State party to a transaction with a private party might wish to be able to seek
protective interim measures. As an alternative to the view that ex parte interim measures
of protection should only be permitted if expressly agreed to by the parties, some
delegations suggested that the power to order such measures should be subject to an
opting out by the parties. In this respect it was suggested that it should be clarified that
paragraph (1) of the proposal, which provided that the power to order interim measures of
protection was subject to contrary agreement by the parties, should also apply to the
power to order ex parte interim measures of protection in paragraph (4) of the proposal.
23. Additional concerns were expressed regarding the suitability of allowing a private
arbitral tribunal to order ex parte interim measures. It was stated that determining
appropriate safeguards against abuse was a complex matter that could take years to
refine. In that respect, it was pointed out that the proposal did not provide that the
applicant for the ex parte interim measures of protection should systematically provide a
cross-undertaking to pay compensation to the respondent in the event that the ex parte
measure was found to be unjustified. It was stated that, in such circumstances, some
jurisdictions must allow a party to seek compensation from the arbitrator who ordered the
measure. It was pointed out that this issue fell outside the scope of an arbitration law. A
second concern was that the proposal did not make it clear whether such compensation for
P 252 damages would be a matter arbitrable before the same tribunal. A third concern was that
P 253 the proposal failed to recognize the possibility that third parties, although not party to
the arbitration, could be affected by the ex parte measure.
24. In support of the proposal to confer a power on arbitral tribunals to order interim
measures of protection on an ex parte basis, it was said that providing such a power would
make an important contribution to the development of international arbitration that
would make it more effective as a method of dispute settlement. It was stated that whilst
traditionally the right to issue ex parte interim measures of protection was restricted to
national courts, there was a trend in a number of national laws to confer such a power on
arbitral tribunals. In addition to the safeguards already included in the proposal, it was
suggested that there should be a mandatory requirement that security be given by the
party applying for the ex parte order to cover possible damages resulting from the
measure. It was also suggested that there should be a separate obligation imposed upon
the party applying for an ex parte measure to provide compensation in the event that the
measure was later shown to have been unjustified.
25. A widely supported view was that provisions on ex parte interim measures could only be
included in article 17 if appropriate safeguards were established. Discussion proceeded on
that basis. Some delegations indicated that the proposal might become acceptable if the
safeguards were further refined, for example by providing for prompt inter partes
consideration of the matter by the arbitral tribunal as soon as any objection was raised by
the other party. In that respect objections were raised against establishing a blanket time
limit of twenty days. It was stated that such a provision might be misread as establishing a
rule for the duration of the ex parte measure rather than an outside limit and that, in the
commercial world, twenty days could be unduly burdensome, or that in some jurisdictions,
twenty days would not provide sufficient time to bring the matter before a national court.
It was suggested that a better approach would be to state that the ex parte measure should
only be effective for a limited time adjusted according to the circumstances of the case.
However, it was said that a mere reference to a reasonable period of time would be too
vague. It was suggested that the provision should clarify that a respondent affected by the
ex parte measure should not have to wait twenty days before it could challenge it, but that
such a challenge could be heard at any time after the decision granting the measure. In
addition, it was suggested that the tribunal that ordered the measure should be under an
obligation to hear the party challenging the measure on short notice, for example within 48
hours of such a challenge.
26. In response to the concerns expressed, it was pointed out that the draft could be
revised to confirm that the power to order ex parte interim measures of protection was
subject to contrary agreement by the parties. It was also pointed out that the reference in
proposed draft paragraph 3(c) to “a substantial possibility” of success on the merits of the
dispute was intended to provide more neutral language than the original reference to
“substantial likelihood” so as to guard against the risk that an arbitral tribunal might
consider itself invited to prejudge the case in its examination on the merits while deciding
P 253 on ex parte measures. It was agreed that whilst the language should be revised to further
P 254

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 P 254
guard against prejudgement, the arbitral tribunal would nevertheless be required to
undertake some analysis of the merits of the dispute in determining whether to grant ex
parte interim measures of protection.
27. There was wide agreement in the Working Group that, by strengthening and increasing
the safeguards, a provision on ex parte interim measures of protection might be more
acceptable. In this respect, it was suggested that conditions beyond those listed in
paragraph (3) should be fulfilled in seeking an ex parte measure.
B. Paragraph (4)(a) [Art. 17 B in the final text]
28. The Working Group proceeded with a detailed discussion of paragraph 4(a). Whilst a
number of delegations continued to oppose the inclusion of the power of tribunals to grant
ex parte interim measures of protection, the Working Group nevertheless agreed to
continue its examination of the proposal. In addition, questions were raised as to the
status of the proposal given that the Working Group had at its thirty-sixth session, revised
text on this issue which varied in some significant ways from the proposal under
consideration. These questions were noted by the Working Group but it was suggested that
a detailed examination of the proposal would be appropriate to develop views on the
question of ex parte measures. The Working Group heard that the intention of the proposal
had been to take into account the views expressed at its thirty-sixth session.
29. Three issues were raised in respect of paragraph 4(a). First, the manner in which the
parties could avoid the application of paragraph (4) altogether by way of an opting-in or
an opting-out clause. Second, whether the requirements in paragraph (3) [Art. 17 A in the
final text] of the proposal should also apply in the case of ex parte measures. It was
suggested that each of the conditions that were required to be demonstrated in respect of
inter partes interim measures of protection should also be required to be demonstrated in
ex parte cases. For example, a suggestion had been made that the requirement in
paragraph 3(c) that there be a “substantial possibility of success on the merits” amounted
to prejudging the dispute and thus should not be a condition for an ex parte measure. In
response, it was said that paragraph 3(c) was intended to be the threshold required for
obtaining interim measures of protection, and that any risk regarding prejudgement could
be cured through drafting, for example, through the use of language such as requiring a
prima facie case. It was further suggested that the need for urgency set out in paragraph
3(a) of the proposal was not needed for the general test for inter partes interim measures of
protection, but it should be a necessary requirement for ex parte measures, where the
urgency made notice to the other party impracticable. Wide support was expressed for
that suggestion.
30. The third issue raised with respect to paragraph 4(a) was which additional
requirements were necessary where ex parte relief was sought. In addition to those
conditions listed in paragraph 3(c) for inter partes interim measures of protection, it was
suggested that five additional conditions should be required in the case of ex parte
measures. First, there should be a mandatory requirement that security should be put up
P 254 by the party requesting the measure to compensate the respondent if the measure was
P 255 later found to have been unjustified. Second, there should be a duty to compensate the
party against whom the measure was taken on a strict liability basis for loss resulting from
a measure wrongfully granted. In respect of this second proposed condition it was noted
that it would be important that the issue of that liability be arbitrable before the same
tribunal that granted the original measure. A problem was noted in respect of this second
proposed condition being, whether the tribunal would have the jurisdiction to resolve an
issue of compensation for loss due to an ex parte measure, particularly in the case where
no such jurisdiction might be implied from a general arbitration agreement or where the
arbitration agreement was narrowly drafted. A third proposed condition was that the party
seeking the ex parte measure should be able to demonstrate the non-existence of any
other legal remedy and that this was a remedy of last resort. Fourth, although not
specifically a condition, it was suggested that paragraph 4(a) should open with words along
the lines of “in exceptional circumstances” to emphasize the exceptional nature of ex parte
measures. Finally, it was also said that principles of reasonableness and proportionality
should apply in the case of ex parte measures.
31. After discussion, the Working Group agreed that a revised text should be prepared
taking note of the views and concerns expressed in the Working Group. In particular, the
revised text should include a provision recognizing the parties' freedom of contract by
allowing them to contract out of a provision giving a tribunal the power to grant an ex parte
interim measure of protection. The revised text should also recognize that the conditions
that applied to inter partes measures as set out in paragraph 3 of the proposal should also
apply to ex parte measures but that the requirement in paragraph 3(c) of “a substantial
possibility” of success on the merits, should be softened by using more neutral language.
Also the revised draft should ensure that the requirement that the party seeking the
measure give security be mandatory and that the requesting party be considered strictly
liable for damages caused to the responding party by an unjustified measure. Such strict
liability should be the subject of further determination by the same tribunal.
32. A number of delegations volunteered to prepare a revised draft of paragraph (4)(a). The
Working Group suspended its deliberations regarding paragraph (4) until such a new draft
paragraph (4)(a) could be considered (for continuation of the discussion, see paras. 53–69

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 below).
33. With respect to subparagraphs (b) to (d) [Arts. 17 C and F in the final text], the Working
Group took note of the following suggestions: (1) that the draft provisions should clarify the
time when the running of the twenty-day period commenced; (2) that the provisions on ex
parte measures should mention the continuing obligation of the party seeking the measure
to give full and frank disclosure to the tribunal; (3) that the responding party should have
an opportunity to challenge the measure within a short time frame; and (4) that further
consideration should be given to the possibility of lifting the measure where a responding
party provided sufficient security.
C. Paragraph (1) [Art. 17(1) in the final text]
P 255 34. It was observed that paragraph (1) as redrafted in [the September 2002 Secretariat Note,
P 256 A/CN.9/WG.II/WP.121] was in line with the text previously discussed by the Working
Group ([April 2002 Working Group Report,] A/CN.9/508, paras. 51–54). The Working Group
found the substance of the redrafted paragraph generally acceptable. As a matter of
drafting, the view was expressed that the words “order another party to take interim
measures of protection” might unduly limit the scope of the provision. It was suggested
that those words should be replaced by “grant interim measures of protection”. The
Working Group took note of that suggestion.
D. Paragraph (2) [Art. 17(2) in the final text]
35. It was explained that paragraph (2) as redrafted in [the September 2002 Secretariat
Note,] A/CN.9/WG.II/WP.121 was intended to reflect the discussion at the previous session
of the Working Group ([April 2002 Working Group Report,] A/CN.9/508, paras. 51 and 64–76).
36. The reference to the notion of “interim award” was questioned as contrary to the view
that had prevailed at the previous session of the Working Group not to qualify the award as
“partial” or “interim” (see [April 2002 Working Group Report,] A/CN.9/508, para. 66). Doubts
were also expressed with respect to the notion of an interim measure being “reflected” in
an award. It was suggested that wording previously considered by the Working Group along
the lines of “An interim measure of protection is any temporary measure, whether in the
form of an award or in another form” was preferable. That suggestion was generally
accepted.
37. The discussion focused on subparagraph (c). The view was expressed that subparagraph
(c), while it was based on the approach previously taken by the Working Group (“a measure
providing a preliminary means of securing or facilitating the enforcement of the award”:
see [the April 2002 Working Group Report,] A/CN.9/508, para. 74), extended considerably
and possibly unduly the scope of the provision. In particular, the reference to “an award of
costs” was criticized on the grounds that it could be misinterpreted as allowing an order
for security for costs to be made not only against a claimant or counter-claimant but also
against a defendant, which would run counter to established principles of law in a number
of countries. It was stated in response that deposits for costs might be requested from any
party, for example under article 41 of the UNCITRAL Arbitration Rules. However, it was
further objected that a clear distinction should be made between (1) the question as to
which party would ultimately bear the costs of the arbitration proceedings; (2) the question
as to which party could be required to make deposits for costs, for example under article
41 of the UNCITRAL Arbitration Rules; and (3) the question as to which party should supply a
guarantee for costs, for example under article 25.2 of the Arbitration Rules of the London
Court of International Arbitration (LCIA Arbitration Rules). It was stated that, while deposits
for costs were normally required from both parties to ensure that the arbitral tribunal was
in funds to conduct the proceedings, the idea of a guarantee for costs being required was
often associated with the claim being apparently frivolous. Such a guarantee could only be
required from the claimant and should in no case be imposed on the defendant, who
should be under no obligation to provide a guarantee simply to defend itself. A widely
shared view was that the provision should not deal in general terms with the costs of
P 256 arbitration but limit itself to securing the enforcement of the award. Considerable
P 257 support was expressed for the deletion of the words “including an award for costs”. It was
pointed out that under Article 38 of the UNCITRAL Arbitration Rules, and various other
rules, an award may include costs. After discussion, the Working Group decided to replace
the entire text of subparagraph (c) by wording along the lines of “provide a preliminary
means of securing assets out of which an award may be satisfied”.
38. At the close of the discussion, it was recalled that, at its previous session, the Working
Group had agreed that it should be made abundantly clear that the list of provisional
measures provided in the various subparagraphs was intended to be non-exhaustive ([April
2002 Working Group Report,] A/CN.9/508, para. 71). It was pointed out that, as redrafted, the
list contained in paragraph (2) was exhaustive. It was explained in response that, as
redrafted, paragraph (2) no longer provided a list of the individual interim measures that
could be granted by a tribunal. Instead, the revised provision mentioned “any temporary
measure”, thus offering an open-ended formulation. In addition, the provision listed the
various purposes for which a provisional measure could be granted. To the extent that all
such purposes were covered by the revised list, it was no longer necessary to make the list
non-exhaustive. While that explanation was generally accepted, the Working Group
decided to consult further before making a final decision as to whether all conceivable
grounds for which an interim measure of protection might need to be granted were

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 covered by the current formulation. It was agreed that the discussion in that regard would
be reopened at a future session.
E. Paragraph (3) [Art. 17 A in the final text]
39. It was explained that paragraph (3) as redrafted in [the September 2002 Secretariat
Note, A/CN.9/WG.II/WP.121] was intended to reflect the discussion at the previous session
of the Working Group ([April 2002 Working Group Report,] A/CN.9/508, paras. 51 and 55–58).
40. A concern was expressed that the word “demonstrated” in the opening words of the
paragraph might connote a high standard of proof. It was recalled that a similar debate
had taken place at the previous session of the Working Group and that the verbs “show”,
“prove” and “establish” had been suggested together with the verb “demonstrate”, without
the Working Group making a decision in that regard ([April 2002 Working Group Report,]
A/CN.9/508, para. 58). The Working Group decided that all those verbs should be retained
in square brackets for continuation of the discussion at a later stage.
41. General support was expressed for the deletion of subparagraph (a) from paragraph (3)
and its relocation in paragraph (4). It was agreed that the urgency of the need for the
measure should not be a general feature of interim measures of protection but rather that
it should be made a specific requirement for granting an interim measure ex parte.
42. With respect to subparagraph (b), it was suggested that, as a matter of drafting, the
P 257 words “the party opposing the measure” should be replaced by the words “the party
P 258 affected by the measure”. Another drafting suggestion was that the words “and that
harm” should be replaced by the words “and such harm”. General support was expressed in
favour of those suggestions. A view was expressed that the words “irreparable harm” might
lend themselves to confusion with the words “current or imminent harm” in subparagraph
(b) of paragraph (2), thus creating the risk that the criteria set forth in paragraph (3) might
be read as applying only to those measures granted for the purposes of subparagraph (b)
of paragraph (2). The Working Group took note of the view.
43. With respect to subparagraph (c), it was generally agreed that the words “there is a
substantial possibility” could easily be misinterpreted as requiring the tribunal to make a
prejudgement on the merits of the case. It was agreed that the provision should make it
abundantly clear that the determination to be made under subparagraph (c) should be
limited to a determination regarding the seriousness of the case without in any way
prejudicing the findings to be made by the tribunal at a later stage. It was suggested that
wording along the lines of “there is a reasonable prospect that the requesting party will
succeed on the merits, provided that any determination on this issue shall not prejudice
any subsequent determination by the tribunal” might better reflect the threshold function
of the provision. Support was expressed in favour of that suggestion.
44. The Secretariat was requested to take the above suggestions, views and concerns into
consideration when preparing a future draft of the provision.
F. Paragraph (5) [Art. 17 E in the final text]
45. In the context of the discussion of paragraph (5), a suggestion was made regarding the
structure of the article. It was pointed out that, to the extent that paragraphs (5), (6) and (7)
were intended to apply to interim measures in general and not only to those measures that
might be granted ex parte under paragraph (4), paragraphs (5) to (7) should be relocated
before paragraph (4). The Working Group generally found that suggested restructuring to be
reasonable.
46. Against the background of the generally accepted view that, in respect of ex parte
measures, security should be mandatory, the Working Group discussed the interplay
between paragraph (5) and paragraph (4). A concern was expressed that, as currently
drafted, paragraph (5) might create a possibility to avoid supplying mandatory security
under paragraph (4), since paragraph (4) was based on the idea that in respect of inter
partes measures, the requirement for security should be within the discretion of the
arbitral tribunal. To alleviate that concern, it was suggested that paragraph (5) should be
made subject to paragraph (4). Another suggestion was that paragraph (5) and the relevant
provision intended for addition in paragraph (4) might be merged into a single paragraph.
The Working Group took note of those suggestions.
47. A suggestion was made that paragraph (5) should create the possibility for the party
affected by an interim measure (whether granted ex parte or inter partes) to obtain the
lifting of the interim measure against payment of an adequate countersecurity. The
following wording was suggested for inclusion in paragraph (5): “The party against whom an
P 258 interim measure is directed may opt to provide an equivalent security when appropriate,
P 259 provided that this substitution does not imply a substantial modification of the
purpose for which the interim measure was granted”. That suggestion did not appear to
receive sufficient support in the Working Group. The Working Group was reminded that
paragraph (7) gave the tribunal broad discretion to modify or terminate interim measures
of protection at any time so that the suggestion with respect to counter-security might in
fact be dealt with under that paragraph.
48. A suggestion was made that the words “the requesting party” should be changed to “any
party” in paragraph (5) for reasons of consistency with the language used in article 17 of the
Model Law. In response it was said that the general principle should be that the requesting

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 party should be required to provide security for the interim measure. It was suggested that
the words “the requesting party or any other party, except the party against whom the
interim measure is being granted” should be used. However, it was observed that, even if
the words “any party” were used, the text of paragraph (5) would still refer to security being
provided “as a condition to granting an interim measure of protection”, thus avoiding any
risk that the security would be required from the defendant. In support of the proposal to
include the term “any party”, it was said that this would provide the tribunal with a
discretion that would accommodate certain situations in multiparty arbitration, for
example the situation where there were numerous claimants, each of whom would benefit
from the interim measure, but the request for interim measures was made by only one
claimant having no assets. In that situation, the tribunal would have the discretion to
request security from the other claimants. In addition, the reference to “any party” could
accommodate the situation where a party provided counter-security. The Working Group
expressed preference for using the words “the requesting party and any other party”.
G. Paragraph (6)[Art. 17 F in the final text]
49. A suggestion was made that, if it were agreed to include the term “or any other party” in
paragraph (5), then this phrase should also be added to paragraph (6). The view was
expressed that this could however invite additional argument between the parties. A
suggestion was made that whilst there was a duty to inform the arbitral tribunal of any
material changes in the circumstances affecting the granting of the interim measure, there
was no sanction if this duty was breached. In response it was agreed that this matter could
adequately be dealt with under paragraph (7). On that basis, no decision was made to
change the text of paragraph (6).
H. Paragraph (7)[Art. 17 D in the final text]
50. Some support was expressed for the draft provision on the ground that it was drafted in
general terms and did not overregulate the matter. A question was raised whether the
provision was also intended to include an interim measure of protection that had
previously been enforced by a court. Further questions were raised whether the provision
should be amended to clarify that the arbitral tribunal would have the power to modify or
terminate an interim measure of protection either upon its own motion or upon request by
P 259 any other party. It was said that if the arbitral tribunal could act upon its own motion, it
P 260 might need to be further clarified that the tribunal would be required to inform the
requesting party of its modification or termination of the measure.
51. Further, it was said that it was not clear whether the power to modify or terminate an
interim measure should only be recognized when the conditions for granting an interim
measure were no longer met or whether the tribunal should have full discretion in this
regard. Some opposition was expressed to allowing the arbitral tribunal to act without a
request by the parties and without hearing from the parties. In this respect it was recalled
that in the event that a modification or termination of a measure caused damage to a
party, it was not clear who would be liable for such damages. For this reason it was said
that the discretion to modify or terminate a measure should be subject to a request by the
parties. Some opposition was expressed on the basis that it appeared to complicate the
matter as it was not clear whether such a request would need to be made by one or all
parties. A suggestion was also made that the power to modify or terminate a measure
should be limited to situations where there had been a change in the circumstances.
52. Taking account of the above discussion the following text was proposed for addition at
the end of paragraph (7): “upon application by any party or of its own motion, after hearing
from the parties”. However, it was suggested that the discretion to modify or terminate an
interim measure should not be limited. It was observed that, given the extraordinary
nature of such measures, if a tribunal had the power to grant such measures then it should
also have the power to modify or terminate them. It was further said that, given that the
intention in paragraph (7) appeared to be to also cover ex parte measures, the
circumstances in which the arbitrator might wish to terminate or change could occur
during the ex parte period and that therefore the requirement to inform parties could
frustrate the measure. It was suggested that further consideration might be necessary to
examine whether a distinction should be made depending upon whether the interim
measure was inter partes or ex parte, in which case a separate provision might need to be
prepared to deal with ex parte measures. No decision was made to change the text of
paragraph (7).
I. Paragraph (4)(a) (continued)
53. With a view to facilitating continuation of the discussion on paragraph (4), a number of
delegations prepared a revised draft for consideration by the Working Group. The revised
draft was aimed at reflecting the views and concerns expressed in the context of the
earlier discussion of paragraph (4)(a) (see above, paras. 28–32). The Working Group
resumed its deliberations on paragraph (4)(a) based on the following draft text
(hereinafter “paragraph (4)(a) redraft”):
“(4)(a) Unless otherwise agreed, the arbitral tribunal may grant an interim
measure of protection without notice to the party against whom the measure is
directed or before the party against whom the measure is directed has had an
opportunity to respond provided that:

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 “(i) the requesting party demonstrates that it is necessary to proceed without
notice, [in order to ensure that the measure is effective] [because the
measure would be defeated if notice is given]; and
P 260
P 261
“(ii) there is an urgent need for the measure; and
“(iii) irreparable harm will result if the measure is not ordered, and that such
harm substantially outweighs the harm that will result to the party
affected by the measure if the measure is granted; and
“(iv) there is a [substantial possibility] [reasonable prospect] that the
requesting party will succeed on the merits], [provided that any
determination on this issue shall not prejudice any subsequent
determinations by the Tribunal]; and
“(v) the requesting party shall be [strictly] liable for any costs and losses
caused by the measure to the party against whom it is directed [in light of
the final disposition of the claims on the merits]; and
“(vi) the requesting party provides [a guarantee] [a cross-indemnity itself
secured in such manner as the arbitral tribunal considers appropriate]
[security in such form as the arbitral tribunal may determine], [for any
costs and losses that the party against whom the measure is directed may
suffer in complying with the order] [for any costs and losses pursuant to
subparagraph (v) above]
“Additional paragraph
“The arbitral tribunal shall have jurisdiction, inter alia, to determine all issues
arising out of or relating to subparagraphs (v) and (vi) above”.
Chapeau of paragraph (4)(a) redraft
54. As a matter of drafting, it was suggested that after the opening phrase “Unless
otherwise agreed”, the phrase “by the parties” should be included. Another suggestion was
that the word “and” should be deleted after each subparagraph of paragraph (4)(a) redraft,
except for the penultimate subparagraph. No objection was made to those suggestions.
55. Regarding substance, the view was expressed that the chapeau of paragraph (4)(a)
redraft raised an anomaly since it referred not only to the situation where an interim
measure of protection was sought without notice but also where notice was given but the
responding party had not had the opportunity to respond, yet subparagraph (4)(a)(i) did
not appear to encompass the second situation.
Paragraph (4)(a)(i) and (ii) redraft
56. It was noted that, as redrafted, the provision required that the requesting party
“demonstrate” that it was necessary to proceed without notice. It was suggested that, to
allay concerns regarding the standard of proof to be met, subparagraph (i) should be
redrafted as follows: “the tribunal is satisfied that it is necessary to proceed on an ex parte
basis”. Some support was expressed for this approach. However, it was recalled that, at its
previous session, the Working Group had agreed to consider expressions such as
“establish”, “demonstrate” or “show”, which were considered as preferable alternatives to
P 261 requiring “proof” of the necessity to proceed without notice ([April 2002 Working Group
P 262 Report,] A/CN.9/508, para. 55). The Working Group agreed that all of the above
suggestions should be reflected in the revised draft to be prepared by the Secretariat for
continuation of the discussion at a later stage.
57. In respect of the two bracketed alternatives in paragraph (4)(a)(i) redraft, support for
the first alternative text was expressed on the basis that it established a broad standard
and that the language was consistent with other provisions. A suggestion based on the first
alternative text was that using the words “necessarily ineffective” might be more
appropriate. Overall preference was expressed for a formulation based on the second
bracketed alternative. However, concern was expressed over the use of the word
“defeated”, which might be appropriately replaced by the word “frustrated”.
58. It was submitted that paragraph (4)(a)(i) redraft could be deleted in its entirety since
the notion of urgency in paragraph (4)(a)(ii) redraft was a sufficient basis upon which the
tribunal could act. However, it was argued that both the need for urgency in paragraph (4)
(a)(ii) redraft and the principle of avoiding the frustration of the measure in paragraph (4)
(a)(i) redraft should be required for an ex parte measure. Broad support was expressed for
the inclusion of both these elements. It was noted that merely requiring urgency of the
measure would not properly indicate why the application must be made ex parte. It was
said that subparagraph (i) expressed the real reason for an ex parte request, namely that
providing notice would thwart the entire purpose of the measure.
59. In light of the comments made, it was suggested that the chapeau and subparagraphs
(i) and (ii) of paragraph (4)(a) redraft should be revised as follows:
“(4)(a) Unless otherwise agreed by the parties, the arbitral tribunal may grant
an interim measure of protection without notice to the party against whom the
measure is directed or before the party against whom the measure is directed

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 has had an opportunity to respond when the requesting party shows that it is
necessary to proceed in that manner in order to ensure that the [measure is
effective] [purpose of the measure is not frustrated before the order is granted],
provided that:
(i) there is an urgent need for the measure; and”.
60. A widely shared view was that the first part of the newly revised chapeau appropriately
dealt with a genuine ex parte situation, namely when an arbitral tribunal decided to grant
the measure without notice to the other party. However, the words “or before the party
against whom the measure is directed has had an opportunity to respond” was not a
genuine ex parte scenario, since in that case, notice had already been provided to the
responding party. It was suggested that the chapeau should only deal with the
circumstance where it was appropriate to proceed without notice. It was said that if the
Working Group intended to cover the second scenario, further thought should be given to
the structure of the paragraph. It was acknowledged that the phrase “or before the party
against whom the measure is directed has had an opportunity to respond” was intended to
cover the situation where notice had been given to the responding party but that it either
P 262 did not have time or was unable to respond or that it did not want to respond and could
P 263 thereby frustrate the granting of an interim measure. Support was expressed for the
view that that situation was in fact adequately covered by the words “may grant an interim
measure of protection without notice to the party against whom the measure is directed”
as well as by the rules on default. It was agreed that the words “or before the party against
whom the measure is directed has had an opportunity to respond” should be deleted on
the assumption that the text sufficiently covered the situation where notice was given but
the responding party either could not or had not responded to that notice.
61. Whilst some support was expressed for the first bracketed text in the revised chapeau
(“[measure is effective]”), strong preference was expressed for the second bracketed text
(“[the purpose of the measure is not frustrated before the order is granted]”) on the ground
that it more appropriately addressed the condition that should be satisfied in the granting
of an ex parte measure.
Paragraph (4)(a)(iii) redraft
62. It was agreed that subparagraph (iii) should be deleted on the basis that it was
adequately covered by paragraph (3)(c) because the subparagraph set out conditions that
should apply to both inter partes and ex parte measures. The Working Group was reminded
that reference to meeting the requirements of paragraph (3) should be added to the
chapeau in the paragraph (4)(a) redraft.
63. A proposal that the chapeau be redrafted using conditional language, such as, “if the
arbitral tribunal grants an interim measure of protection” to more closely reflect the
exceptional situation wherein an interim measure would be sought ex parte, did not
receive support.
Paragraph (4)(a)(iv) redraft
64. The Working Group considered the two bracketed texts appearing in subparagraph (iv),
i.e. “[substantial possibility]” or “[reasonable prospect]” that the requesting party will
succeed on the merits. Whilst some support was expressed for each of these alternative
texts, the prevailing view was that neither text adequately addressed the concerns
expressed earlier (see paragraph 26, above) that these words appeared to invite the
arbitral tribunal to prejudge the dispute at a time which might be very early in the arbitral
proceedings, and could thus compromise the neutrality of the arbitrators or the
perception of that neutrality by the parties. It was suggested that the Working Group
should consider text that would guard against frivolous claims for ex parte measures being
made, but that would not require the arbitral tribunal to make a judgement on the merits.
One proposal to achieve this was that the subparagraph simply require the arbitral
tribunal to decide, in the light of all the available facts, that an interim measure of
protection was appropriate. An alternative proposal was that the subparagraph be revised
to state that “there is a reasonable possibility that the requesting party will succeed on the
merits provided that any determination in this connection shall not affect any subsequent
determinations by the arbitral tribunal”. A further proposal was that more neutral and
objective language could be used, employing illustrative examples, which would not
require prejudgement, along the lines of “that there be a substantial issue for
P 263 determination”. It was further suggested that the opening phrase of the subparagraph read
P 264 “there is at least a reasonable possibility” rather than “there is a reasonable possibility”
and also that the language “will succeed on the merits” be replaced by “may succeed on
the merits”. After discussion, it was suggested that the text be revised to read as follows:
“there is a reasonable possibility that the requesting party may succeed on the merits,
provided that any determination in this connection shall not affect any subsequent
determinations by the arbitral tribunal.” The Secretariat was requested to prepare the
revised text as a new paragraph (3)(b) to follow the renumbering due to the fact that
paragraph (3)(a) had been subsumed into paragraph 4(a).
Paragraph (4)(a)(v) redraft
65. It was observed that subparagraph (v) provided an additional safeguard for the

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 responding party for costs and losses arising from an ex parte measure. Such a safeguard
would operate following the final decision on the merits of the case. It was recalled that
the liability of the requesting party for an inter partes interim measure of protection was
agreed not to be covered by the provision as this would be left to other law. A widely
shared view was that it was more logical to refer to “damages and costs” than to “costs and
losses”. It was suggested that the reference to “costs” should be clarified so as to cover
“costs of arbitration caused by the interim measure”. Concern was expressed as to any
draft which suggested that costs and losses arising from an ex parte interim measure
should depend on the final outcome of the dispute. It was said that the question whether a
requesting party should be liable for such losses or damages should be a question left to
the discretion of the arbitral tribunal but disassociated from the final decision on the
merits of the case. In this respect it was said that, even if a requesting party ultimately
received an award in its favour in the arbitration, it might still be liable for losses or
damages in respect of an ex parte interim measure of protection that was found to be
unjustified. It was suggested that to ensure flexibility and a broad discretion for the
arbitral tribunal, words such as “to the extent appropriate, taking into account all of the
circumstances of the case, including the final disposition of the claim on the merits”
should be considered for a future revision of the provision. Alternatively, it was suggested
that the revision should take account of the approach taken in paragraph 17.1.3 of the Draft
Fundamental Principles and Rules of Transnational Civil Procedure prepared by the
American Law Institute and UNIDROIT, as reflected in paragraph 69 of [the January 2002
Secretariat Note,] A/CN.9/WG.II/WP.119[, reprinted in the section on Art. 17 J, pp. 563–64 infra].
66. It was suggested that, given that the notion of “strict liability” was a term of art that was
not understood in all jurisdictions, and in the interests of creating a flexible provision, the
term “strictly” should be deleted from the provision. Another suggestion was that the verb
“shall” be replaced by “may”. Whilst the first suggestion was found to be generally
acceptable, the Working Group agreed to retain the verb “shall”. The Working Group was
reminded that the purpose of the provision should be borne in mind in any redraft. It was
said that the provision should be assessed against the objective to impose liability on a
requesting party for damages caused by an ex parte measure where that measure was
found to be unjustified. It was said that further thought might need to be given to
P 264 determining what the trigger for liability was, namely whether the provision was intended
P 265 to cover the situation where the requesting party had acted negligently or fraudulently,
or whether it also covered the situation where an arbitral tribunal had acted in error.
67. It was agreed that the words “to the extent appropriate, taking into account all of the
circumstances of the case, in light of the final disposition of the claim on the merits”
should be included in square brackets in a future revision of the provision for continuation
of the discussion.
Paragraph (4)(a)(vi) redraft
68. Questions were raised regarding the different shades of meaning attached to the words
“guarantee”, “cross-indemnity” and “security”, which were offered as alternatives in
paragraph (4)(a)(vi) redraft. While support was expressed for retaining the word
“guarantee”, it was observed that the word “security” had been used in article 17 of the
Model Law and translated as “guarantee” in certain language versions. A widely shared
view was that the new provision should not unnecessarily deviate from the language used
in the Model Law. Preference was expressed for wording along the following lines: “security
in such form as the arbitral tribunal considers appropriate”.
69. With respect to the words “costs and losses” a widely shared view was that
subparagraph (vi) should mirror the language used in subparagraph (v). It was pointed out
that both provisions should make it clear that they dealt only with those costs of the
arbitration related to the interim measure and with those damages suffered in complying
with the interim measure. Overall preference was expressed for using language in
subparagraph (vi) along the lines of: “for any damages and any costs of the arbitration
referred to in subparagraph (v) above”.
Additional paragraph
70. A suggestion was made that the words “For the avoidance of doubt” should be inserted
at the beginning of the proposed additional subparagraph. While some support was
expressed for that suggestion, it was pointed out that such wording was generally
inappropriate in a legislative text. In addition, it was pointed out that in many countries,
the effect of the subparagraph would not be to dispel a doubt but to create jurisdiction for
the arbitral tribunal beyond the confines of the jurisdiction conferred upon the arbitral
tribunal by the parties in the arbitration agreement. A decision was made to introduce the
words “For the avoidance of doubt” in square brackets as the opening words of the
additional paragraph for continuation of the discussion at a future session.
71. The view was expressed that in formulating a provision extending the jurisdiction of the
arbitral tribunal in connection with interim measures of protection ordered on an ex parte
basis, the Working Group should avoid suggesting that such a provision should be
interpreted a contrario in the context of those interim measures that were ordered inter
partes.
72. While it was generally agreed that the cross-reference to subparagraph (v) was
P 265

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 P 265 appropriate, a question was raised as to whether a cross-reference to subparagraph (vi)
P 266 was necessary. It was pointed out that paragraph (5) already conferred jurisdiction upon
the arbitral tribunal regarding the issues of securities. The working group took note of that
point. The cross-references to both subparagraphs (v) and (vi) were placed between square
brackets for continuation of the discussion at a future session.
J. Paragraph (4)(b)[Art. 17 C in the final text]
73. The Working Group proceeded to consider para. (4)(b) as it appeared in [the September
2002 Secretariat Note,] A/CN.9/WG.II/WP.121. It was recalled that concerns had been
expressed earlier (see paragraph 25 above) that a reference to a period of time, such as
twenty days, could become a default rule rather than a maximum period during which the
respondent should have an opportunity to be heard. Earlier objections to the
establishment of a fixed period were reiterated. It was pointed out that as currently
drafted the provision might not avoid a situation where the interim measure could in
practice be prolonged through a new application for a measure of the same kind after
expiry of the twenty-day period. A widely shared view was that the purpose of the
paragraph was to provide a rebalancing of the arbitral procedure following the granting of
an ex parte measure by providing the responding party with an opportunity to be heard
and have that measure reviewed as soon as possible. Concern was expressed that, as
currently drafted, paragraph (4)(b) did not achieve that purpose as it concentrated on
restricting the duration of the ex parte measure to twenty days. It was stated that the
objective of restoring the balance of the arbitral procedure was dealt with under
paragraph (c). In that connection, it was generally felt that the order of paragraphs (b) and
(c) could be reversed. The Secretariat was invited to bear the above discussion in mind
when preparing a revised draft of the provision. A request was also made to clarify whether
paragraph (4)(b) related solely to ex parte interim measures, or to all interim measures,
because this paragraph contained a general reference to paragraph (1).
K. Paragraph (4)(c)[Art. 17 C in the final text]
74. Based on earlier comments (see above, para. 33) the Working Group proceeded to
consider a newly redrafted version of subparagraph (c) as follows: “The party against whom
the interim measure is directed shall be given notice of the measure and an opportunity to
be heard as soon as it is no longer necessary to proceed on an ex parte basis in order to
ensure that the measure is effective.”
75. Various views were expressed regarding the substance of the proposal. One view was
that the words “an opportunity to be heard”, should be replaced by a reference to the
“right” of the party to be heard in order to make it clear that an arbitral tribunal having
issued an ex parte measure of protection should stand ready to be activated on short
notice by the affected party. Another view was that the reference to the measure being
“effective” might need to be reviewed to take into account earlier deliberations regarding
paragraph 4(a)(i) (see above, paras. 56–61). Yet another view was that the provision should
specify a time frame within which the arbitral tribunal should hear the party affected by
the interim measure. The following wording was suggested for inclusion in paragraph 4(c):
P 266 “that party shall be given notice of the measure and [an opportunity] [the right] to be hear
P 267 by the arbitral tribunal [as soon as it is no longer necessary to proceed on an ex parte
basis in order to ensure that the measure is effective] [within forty-eight hours of the
notice, or on such other date and time as is appropriate in the circumstances]”. The
Secretariat was invited to consider the above discussion when redrafting the provision. It
was suggested that future consideration should be given to determining whether
paragraph 4(c) should apply only in the context of interim measures ordered on an ex parte
basis or more generally to all types of interim measures.
L. Paragraph (4)(d)[Art. 17 F in the final text]
76. The Working Group proceeded to consider paragraph (4)(d) as contained in [the
September 2002 Secretariat Note,] A/CN.9/WG.II/WP.121. The view was expressed that, as
currently drafted, this paragraph did not serve any purpose and should be deleted. In that
connection, the view was expressed that it would be essential for the provision to provide
a time limit within which the party requesting an interim measure should disclose a
change in circumstances to the arbitral tribunal. Another view was that the provision
should impose a sanction for failure to perform the obligation set forth in paragraph (4)(d).
It was further suggested that a future redraft of the provision should establish a clear link
between the obligation to disclose change in circumstances and the liability regime
applicable to the party requesting the interim measure. The Secretariat was requested to
bear the above suggestions in mind when preparing a revised provision for continuation of
the discussion at the next session.
APRIL 2003 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.123 (3 APRIL 2003)
2. At the start of its thirty-seventh session in October 2002, a decision was made that the
Working Group would continue its deliberations on the basis of a proposal submitted by
the United States of America ([September 2002 Secretariat Note,] A/CN.9/WG.II/WP.121)
(hereinafter referred to as “the United States proposal”) setting out a revision of draft
article 17 of the UNCITRAL Model Law on International Commercial Arbitration, also having
regard to the Secretariat proposal.
3. This note has been prepared on the basis of discussions and decisions of the thirty-

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 seventh session of the Working Group. To facilitate the resumption of discussions, the
following text (hereinafter referred to as “the revised draft”), sets out a newly revised
version of article 17 [Arts. 17 –17 G in the final text] of the UNCITRAL Model Law on
International Commercial Arbitration, taking account of discussions and decisions made at
the thirty-seventh session of the Working Group.
P 267
P 268
Revised draft of article 17 of the UNCITRAL Model Law on International Commercial
Arbitration regarding the power of an arbitral tribunal to grant interim measures of
protection
(1) [Art. 17(1) in the final text] Unless otherwise agreed by the parties, the arbitral tribunal
may, at the request of a party, grant interim measures of protection.
(2) [Art. 17(2) in the final text] An interim measure of protection is any temporary measure,
whether in the form of an award or in another form, by which, at any time prior to the
issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a
party to:
(a) Maintain or restore the status quo pending determination of the dispute [, in order to
ensure or facilitate the effectiveness of a subsequent award];
(b) Take action that would prevent, or refrain from taking action that would cause,
current or imminent harm [, in order to ensure or facilitate the effectiveness of a
subsequent award];
(c) Provide a preliminary means of securing assets out of which a subsequent award may
be satisfied; or
[(d) Preserve evidence that may be relevant and material to the resolution of the
dispute.]
(3) [Art. 17 A in the final text] The party requesting the interim measure of protection shall
[demonstrate] [show] [prove] [establish] that:
(a) Irreparable harm will result if the measure is not ordered, and such harm
substantially outweighs the harm that will result to the party affected by the measure
if the measure is granted; and
(b) There is a reasonable possibility that the requesting party will succeed on the merits,
provided that any determination on this possibility shall not affect the discretion of
the arbitral tribunal in making any subsequent determinations.
(4) [Art. 17 E(1) in the final text] [Subject to paragraph (7) (b) (ii),] [except where the provision
of a security is mandatory under paragraph (7) (b) (ii),] the arbitral tribunal may require the
requesting party and any other party to provide appropriate security as a condition to
granting an interim measure of protection.
(5) [Art. 17 D in the final text] The arbitral tribunal may modify or terminate an interim
measure of protection at any time [in light of additional information or a change of
circumstances].
(6) [Art. 17 F(1) in the final text] The requesting party shall, from the time of the request
onwards, inform the arbitral tribunal promptly of any material change in the
circumstances on the basis of which the party sought or the arbitral tribunal granted the
interim measure of protection.
(7)
P 268 (a) [Art. 17 B in the final text] Unless otherwise agreed by the parties, the arbitral tribunal
P 269 may [, in exceptional circumstances,] grant an interim measure of protection,
without notice to the party [against whom the measure is directed] [affected by the
measure], when:
(i) There is an urgent need for the measure;
(ii) The circumstances set out in paragraph (3) are met; and
(iii) The requesting party shows that it is necessary to proceed in that manner in
order to ensure that the purpose of the measure is not frustrated before it is
granted.
(b) The requesting party shall:
(i) [Art. 17 G in the final text] Be liable for any costs and damages caused by the
measure to the party [against whom it is directed] [affected by the measure] [to
the extent appropriate, taking into account all of the circumstances of the case,
in light of the final disposition of the claims on the merits]; and
(ii) [Art. 17 E(2) in the final text] Provide security in such form as the arbitral tribunal
considers appropriate [, for any costs and damages referred to under
subparagraph (i),] [as a condition to granting a measure under this paragraph];
[(c) [For the avoidance of doubt,] the arbitral tribunal shall have jurisdiction, inter alia, to
determine all issues arising out of or relating to [subparagraph (b)] above;]
[(d) [Art. 17 C in the final text] The party [against whom the interim measure of protection
is directed] [affected by the measure granted] under this paragraph shall be given

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 notice of the measure and an opportunity to be heard by the arbitral tribunal [as
soon as it is no longer necessary to proceed on an ex parte basis in order to ensure
that the measure is effective] [within forty-eight hours of the notice, or on such other
date and time as is appropriate in the circumstances];]
[(e) [Art. 17 C in the final text] Any interim measure of protection ordered under this
paragraph shall be effective for no more than twenty days [from the date on which
the arbitral tribunal orders the measure] [from the date on which the measure takes
effect against the other party], which period cannot be extended. This subparagraph
shall not affect the authority of the arbitral tribunal to grant, confirm, extend, or
modify an interim measure of protection under paragraph (1) after the party [against
whom the measure is directed] [affected by the measure] has been given notice and
an opportunity to be heard;]
[(f) [Art. 17 F(2) in the final text] A party requesting an interim measure of protection under
this paragraph shall have an obligation to inform the arbitral tribunal of all
circumstances that the arbitral tribunal is likely to find relevant and material to its
determination whether the requirements of this paragraph have been met;]
P 269
P 270
Notes
Paragraph (1)
4. At its thirty-seventh session, the Working Group observed that paragraph (1) of the
United States proposal was in line with the text previously discussed by the Working
Group. The Working Group found the substance of the redrafted paragraph generally
acceptable but suggested that the words “order another party to take interim measures of
protection” might unduly limit the scope of the provision and suggested that these words
be replaced by “grant interim measures of protection” ([November 2002 Working Group
Report,] A/CN.9/523 para. 34). The revised draft takes account of this suggestion.
Paragraph (2)
Placement of paragraph (2) and general remark
5. The text currently contained in paragraph (2) of the revised draft (formerly paragraph (4)
of the Secretariat proposal) was discussed at the thirty-sixth session of the Working Group
and it was agreed that it be placed immediately after paragraph (1) ([April 2002 Working
Group Report,] A/CN.9/508, para. 64). The substance of this paragraph was, in part, inspired
by the draft Convention on Jurisdiction and Foreign Judgements in Civil and Commercial
Matters, interim text 2001 of the Hague Conference on Private International Law
(reproduced in part in [the January 2002 Secretariat Note,] A/CN.9/WG.II/WP.119, para. 71
[reprinted in the section on Art. 17 J, pp. 565–66 infra]).
Chapeau—Notion of “interim measure of protection”
6. At its thirty-seventh session, the Working Group heard that paragraph (2) of the United
States proposal was intended to reflect the discussion at the thirty-sixth session of the
Working Group ([April 2002 Working Group Report,] A/CN.9/508, paras. 64–76). The reference
to an “interim award” was said to be contrary to the view that had prevailed at that session
not to qualify an award as “partial” or “interim” (see ([the April 2002 Working Group Report,]
A/CN.9/508, para. 66 and [the November 2002 Working Group Report,] A/CN.9/523, para. 36).
Doubts were also expressed with respect to the notion of an interim measure being
“reflected” in an award. In line with the decision taken at the thirty-seventh session of the
Working Group, paragraph (2) of the revised draft includes the following words: “An interim
measure of protection is any temporary measure, whether in the form of an award or in
another form” ([November 2002 Working Group Report,] A/CN.9/523, para. 36).
Subparagraphs (a) and (b)—“in order to ensure or facilitate the effectiveness of a subsequent
award”
7. The words “in order to ensure or facilitate the effectiveness of a subsequent award” in
both subparagraphs (a) and (b) of the revised draft were introduced into the text by the
United States proposal. The wording appears to incorporate language used in a variant
considered by the Working Group at its thirty-sixth session as a separate paragraph to
P 270 describe an interim measure (see para. 4 (b) of Variant 2, [January 2002 Secretariat Note,]
P 271 A/CN.9/WG.II/WP.119, para. 74 and reproduced in [the April 2002 Working Group Report,]
A/CN.9/508, para. 51). However, these words, as incorporated within subparagraphs (a) and
(b) of the revised draft were not fully discussed and the Working Group may wish to
consider whether this wording unduly restricts the scope of these provisions.
Subparagraphs (a), (b) and (c)—“a subsequent award”
8. In order to avoid the difficulty of defining the term “eventual award”, as contained in the
text of the United States proposal under paragraphs 2 (a), (b) and (c), more neutral
language has been used (“subsequent award”) in paragraphs (2) (a), (b) and (c) of the
revised draft to indicate any award that might be ordered at a subsequent point in time.
Subparagraph (b)—Scope of the provision
9. At its thirty-sixth session, the Working Group generally felt that the ambit of
subparagraph (b) of the revised draft (formerly para. (4) (c) of Variant 1, [January 2002

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 Secretariat Note,] A/CN.9/WG.II/WP.119, para. 74) should be broadened to cover also cases
where the purpose of the interim measure was not to restrain but to order affirmative
conduct ([April 2002 Working Group Report,] A/CN.9/508, para. 75). Along the same lines, it
was felt that the scope of the provision should not cover only measures ordered against the
defendant but also measures addressed to other parties to the arbitration. The Working
Group may wish to consider whether the text in the revised draft appropriately addresses
these suggestions.
Subparagraph (c)
10. At its thirty-seventh session, the Working Group agreed to replace the entire text of
subparagraph (c) of the United States proposal being, “provide security for the
enforcement of an eventual award, including an award of costs”, by wording along the lines,
“provide a preliminary means of securing assets out of which an award may be satisfied”
([November 2002 Working Group Report,] A/CN.9/523, para. 37). That decision restored the
language used in the Secretariat proposal (formerly para. (4) (b) of Variant 1 in [the January
2002 Secretariat Note,] A/CN.9/WG.II/WP.119, para. 74 and reproduced in [the April 2002
Working Group Report,] A/CN.9/508, para. 51).
Subparagraph (d)
11. At its thirty-sixth session, the Working Group agreed that, to facilitate the issuance of
interim measures aimed at preventing destruction of evidence, paragraph (2) should also
refer to “a measure intended to provide a preliminary means of preserving evidence”
([April 2002 Working Group Report,] A/CN.9/508, para. 76). Subparagraph (d) of the revised
draft, which refers to “preserve evidence that may be relevant and material to the
resolution of the dispute” was not discussed at the thirty-seventh session of the Working
Group. The Working Group may wish to consider if that wording is appropriate.
Non-exhaustive nature of list of provisional measures
P 271 12. At the close of the discussion at the thirty-seventh session of the Working Group, it was
P 272 recalled that, at its thirty-sixth session, the Working Group had agreed that it should be
made abundantly clear that the list of provisional measures provided in the various
subparagraphs was intended to be non-exhaustive ([April 2002 Working Group Report,]
A/CN.9/508, para. 71). It was pointed out that, as redrafted, the list was exhaustive. It was
explained in response that, as redrafted, paragraph (2) no longer provided a list of the
individual interim measures that could be granted by a tribunal. Instead, the revised
provision mentioned “any temporary measure”, thus offering an open-ended formulation.
In addition, the provision listed the various purposes for which a provisional measure
could be granted. To the extent that all such purposes were covered by the revised list, it
was no longer necessary to make the list non-exhaustive. While that explanation was
generally accepted, the Working Group decided to consult further before making a final
decision as to whether all conceivable grounds for which an interim measure of protection
might need to be granted were covered by the current formulation. It was agreed that the
discussion, in that regard, would be reopened at a future session ([November 2002 Working
Group Report,] A/CN.9/523, para. 38).
Paragraph (3)
Chapeau
13. The chapeau of paragraph (3) of the revised draft has been simplified to avoid
unnecessarily repeating the content of paragraph (1) and now reflects the original text as
contained in paragraph (2) of the Secretariat proposal. Paragraph (3) has also been revised
to include a number of other verbs other than the word “demonstrate” because concern
was expressed that this term might connote a high standard of proof ([November 2002
Working Group Report,] A/CN.9/523, para. 40; for earlier discussion, see [April 2002 Working
Group Report,] A/CN.9/508, para. 55).
Deletion of the reference to the “urgent need for the measure”
14. At its thirty-seventh session, the Working Group agreed that the urgency of the need for
the measure should not be a general feature of interim measures of protection but rather
it should be made a specific requirement for granting an interim measure ex parte where
urgency made notice to the other party impracticable ([November 2002 Working Group
Report,] A/CN.9/523, paras. 29 and 41). The reference to the urgency of a measure has been
relocated into paragraph (7) (a) (i) of the revised draft (formerly paragraph 4 of the United
States proposal) which deals with ex parte interim measures.
Subparagraph (a)
15. Paragraph 3 (a) of the revised draft (formerly paragraph 3 (b) of the United States
proposal) has been revised to take account of the suggestion that the words “the party
opposing the measure” be replaced by “the party affected by the measure” and that the
words “and that harm” should be replaced by the words “and such harm” ([November 2002
Working Group Report,] A/CN.9/523, para. 42). A view was expressed that the words
“irreparable harm” might lend themselves to confusion with the words “current or
imminent harm” in paragraph (2) (b) thus creating the risk that the criteria set forth in
P 272 paragraph (3) might be read as applying only to those measures granted for the purposes
P 273 of paragraph (2) (b). The Working Group took note of that view ([November 2002 Working

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 Group Report,] A/CN.9/523, para. 42). It should be recalled that, at the thirty-sixth session
of the Working Group, it was widely felt that the provision should be based on a “balance of
convenience” under which the assessment of the degree of harm suffered by the applicant
if the interim measure was not granted should be balanced against an evaluation of the
harm suffered by the party opposing the measure if that measure was granted. In addition,
it was felt that the quantitative approach reflected in the words “a significant degree of
harm” might create uncertainties as to how a degree of harm should be considered to be
sufficiently “significant” to justify certain provisional measures. It was suggested that a
reference to the more qualitative notion of “irreparable harm” should be used ([April 2002
Working Group Report,] A/CN.9/508, para. 56). The text in the revised draft mirrors this
earlier decision of the Working Group. It is submitted that the broad definition of interim
measures under paragraph (2) does not conflict with the need for the party requesting the
interim measure to show evidence of irreparable harm.
Subparagraph (b)
16. Consistent with a suggestion made at the thirty-seventh session of the Working Group,
paragraph (3) (b) of the revised draft (formerly paragraph (3) (c) of the United States
proposal) has been revised to replace the words “there is a substantial possibility that the
requesting party will succeed on the merits of the dispute” with “there is a reasonable
possibility that the requesting party will succeed on the merits, provided that any
determination on this possibility shall not affect the discretion of the arbitral tribunal in
making any subsequent determinations” ([November 2002 Working Group Report,]
A/CN.9/523, para. 64; for earlier discussion, see para. 43 and [April 2002 Working Group
Report,] A/CN.9/508, para. 57).
Paragraph (4)
Placement of paragraph (4)
17. Paragraph (4) of the revised draft (formerly paragraph (5) of the United States proposal)
has been relocated in the text to reflect the fact that it is intended to apply to interim
measures in general and not only to those measures that might be granted ex parte under
paragraph (7) of the revised draft ([November 2002 Working Group Report,] A/CN.9/523,
para. 45). The Working Group also agreed that paragraphs (6) and (7) of the United States
proposal (paragraphs (5) and (6) of the revised draft) be relocated to appear before the
paragraph dealing with the ex parte interim measures ([November 2002 Working Group
Report,] A/CN.9/523, para. 45).
Interplay between paragraph (4) and paragraph (7) (b) (ii)
18. At the thirty-seventh session of the Working Group, concern was expressed that, as
previously drafted, this text might create a possibility to avoid supplying mandatory
security in respect of ex parte interim measures of protection ([November 2002 Working
Group Report,] A/CN.9/523, para. 46). It was agreed that this text was based on the idea
P 273 that, in respect of inter partes measures, the requirement for security should be within the
P 274 discretion of the arbitral tribunal ([November 2002 Working Group Report,] A/CN.9/523,
para. 46). To meet this concern, two alternative texts, namely, “Subject to paragraph (7) (b)
(ii)” or “Except where a provision of security is required under paragraph (7) (b) (ii)” have
been included in the revised draft in square brackets. These alternatives seek to clarify the
decision of the Working Group that paragraph (4) be subject to paragraph (7) (b) (ii) and to
distinguish between the situation where the granting of security results from the exercise
of a discretion of the arbitral tribunal and the situation where the arbitral tribunal is
obliged to require security from the party requesting the ex parte interim measure of
protection.
“and any other party”
19. At its thirty-seventh session, the Working Group also agreed to include the words “and
any other party” after the words “the requesting party” to provide the arbitral tribunal with
a discretion that would accommodate certain situations in a multiparty arbitration, for
example, the situation where there were numerous claimants, each of whom would benefit
from the interim measure, but the request was made by only one claimant having no
assets. In that situation, the tribunal would have the discretion to request security from the
other claimants. In addition, the reference to “any party” could accommodate the situation
where a party provided counter-security ([November 2002 Working Group Report,]
A/CN.9/523, para. 48).
Paragraph (5)
“in light of additional information or a change of circumstances”
20. At the thirty-seventh session of the Working Group, it was said that the discretion to
modify or terminate an interim measure should not be limited. It was observed that, given
the extraordinary nature of such measures, if a tribunal had the power to grant such
measures then it should also have the power to modify or terminate them. The Working
Group may wish to consider whether the text currently included in square brackets being
“in light of additional information or a change of circumstances”, originally used in the
Secretariat proposal (see [April 2002 Working Group Report,] A/CN.9/508, paras. 88–89)
should be included to avoid establishing an arbitrary discretion.

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 Application to ex parte measures
21. It was further said that, given that the intention in paragraph (5) appeared to also cover
ex parte measures, the circumstances in which the arbitral tribunal might wish to modify
or terminate an interim measure could occur during the ex parte period and that therefore
the requirement to inform the party affected by the measure as required under paragraph
(7) (e) could frustrate the measure. It was suggested that further consideration might be
necessary to examine whether a distinction should be made depending upon whether the
interim measure was inter partes or ex parte, in which case a separate provision might
need to be prepared to deal with ex parte measures ([November 2002 Working Group
Report,] A/CN.9/523, para. 52).
P 274
P 275
Sanction
22. The Working Group may wish to consider whether paragraph (5) should be revised to
provide a clear sanction if the duty under paragraph (6) is not complied with ([November
2002 Working Group Report,] A/CN.9/523, para. 49; see also para. 24 below).
Paragraph (6)
“or any other party”
23. A suggestion was made at the thirty-seventh session of the Working Group that, if the
term “or any other party” was included in paragraph (4), then this phrase should also be
added to the text now contained in paragraph (6) ([November 2002 Working Group Report,]
A/CN.9/523, para. 49). The view was expressed that this could however invite additional
argument between the parties. The Working Group may wish to give further consideration
to this issue.
Sanction
24. A suggestion was made that whilst there was a duty to inform the arbitral tribunal of
any material changes in the circumstances affecting the granting of the interim measure,
there was no sanction if this duty was breached. In response, it was agreed that this matter
could be adequately dealt with under paragraph (5) ([November 2002 Working Group
Report,] A/CN.9/523, para. 49). On that basis, no decision was made, at the thirty-seventh
session of the Working Group, to change the text of paragraph (6). If the Working Group
agrees that paragraph (5) should provide a sanction in the event that paragraph (6) is
breached, the Working Group may also wish to consider whether the order of these
paragraphs should be reversed.
25. The Working Group may wish to consider whether the language used in paragraph (6),
which refers to “any material change”, as compared to the language used in paragraph (5),
which refers to “a change of circumstances”, is appropriate.
Paragraph (7)
General remark
26. The issue of the power of an arbitral tribunal to order ex parte interim measures of
protection was the subject of extensive discussion at the thirty-seventh session of the
Working Group ([November 2002 Working Group Report,] A/CN.9/523, paras. 16–27). The view
stated at the thirty-sixth session of the Working Group, that the power to order ex parte
interim measures of protection should be reserved for State courts, was reiterated at the
thirty-seventh session of the Working Group ([November 2002 Working Group Report,]
A/CN.9/523, para. 17). Whilst a number of delegations continued to oppose the inclusion of
the power of arbitral tribunals to grant ex parte interim measures of protection, the
Working Group nevertheless agreed to continue its examination of the United States
proposal ([November 2002 Working Group Report,] A/CN.9/523, para. 28).
P 275
P 276
Subparagraph (a)
27. The text contained in paragraph (7) (a) of the revised draft (formerly paragraph (5) of the
Secretariat proposal and paragraph (4) (a) of the United States proposal) received
considerable attention at the thirty-seventh session of the Working Group ([November 2002
Working Group Report,] A/CN.9/523, paras. 28–33). At that session, the Working Group took
note, inter alia, of the suggestion that further consideration be given to the possibility of
lifting the ex parte interim measure of protection where a responding party provided
sufficient security ([November 2002 Working Group Report,] A/CN.9/523, para. 33). The
revised draft does not address this point.
28. The Working Group may wish to consider whether, in the interests of consistency, the
language used in paragraph 3 (a) namely “the party affected by the measure” should also
be reflected in paragraphs 7 (a), (b) (i), (d) and (e), to replace the phrase “the party against
whom the measure is directed”. Both alternatives are included in square brackets in the
revised draft.
29. A widely shared view of the Working Group at its thirty-seventh session was that, if ex
parte measures were included, then the provision should indicate that such measures only
be granted in exceptional circumstances ([November 2002 Working Group Report,]

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 A/CN.9/523, para. 17). The words “in exceptional circumstances” have been included after
the words “the arbitral tribunal may”. The Working Group agreed that paragraph (4) (a) of
the United States proposal should be revised to take account of the views and concerns
expressed by the Working Group and, in particular, to recognize the parties' freedom of
contract by allowing them to contract out of the provision giving the tribunal the power to
grant an ex parte interim measure of protection ([November 2002 Working Group Report,]
A/CN.9/523, para. 31). To give effect to this decision, paragraph (7) (a) of the revised draft
includes the phrase “by the parties” after the opening phrase, “Unless otherwise agreed” as
suggested at the thirty-seventh session of the Working Group ([November 2002 Working
Group Report,] A/CN.9/523, para. 54).
30. At the thirty-seventh session of the Working Group, a revised draft of paragraph (4) (a) of
the United States proposal was prepared ([November 2002 Working Group Report,]
A/CN.9/523, paras. 32 and 53–69) (hereinafter referred to as “the paragraph (4) (a) redraft”)
and the following decisions and suggestions made at that session have been included in
the revised draft:
– Preference was expressed for the second bracketed alternative in the paragraph (4)
(a) (i) redraft (paragraph (7) (a) (iii) of the revised draft), with the term “defeated”
being replaced by the term “frustrated” ([November 2002 Working Group Report,]
A/CN.9/523, paras. 57 and 61);
– Paragraph (7) (a) (ii) of the revised draft (formerly subparagraph (iv) of the paragraph
(4) (a) redraft) was revised in accordance with the suggestions made at the thirty-
seventh session of the Working Group ([November 2002 Working Group Report,]
A/CN.9/523, para. 64);
P 276
P 277
– The words “or before the party against whom the measure is directed has had an
opportunity to respond” were deleted on the assumption that the text sufficiently
covered the situation where notice was given but the responding party either could
not or had not responded to the notice ([November 2002 Working Group Report,]
A/CN.9/523, para. 60);
– It was agreed that the conditions that applied to inter partes measures as set out in
paragraph (3) of the United States proposal should also apply to ex parte measures
but that the requirement in paragraph 3 (c) of a “substantial possibility” of success on
the merits should be softened by using more neutral language ([November 2002
Working Group Report,] A/CN.9/523, para. 31); a reference to meeting the
requirements of paragraph (3) has been added to the paragraph (7) (a) of the revised
draft ([November 2002 Working Group Report,] A/CN.9/523, para. 62);
– Subparagraph (a) now lists the conditions to be satisfied by the party requesting the
ex parte interim measure and subparagraph (b) refers to obligations to be complied
with by the party requesting the ex parte interim measure; the Working Group may
wish to consider if this new structure is appropriate;
– Other suggestions made included that there be a mandatory requirement that
security be provided by the party requesting the measure to compensate the
respondent if the measure is later found to have been unjustified; that the person
seeking the ex parte measure be able to demonstrate the non-existence of any other
legal remedy and that this is a remedy of last resort; and that reasonableness and
proportionality apply in the case of ex parte measures ([November 2002 Working
Group Report,] A/CN.9/523, para. 30). The Working Group may wish to consider further
these suggestions.
Subparagraph (b)
31. The text in paragraph (7) (b) (i) of the revised draft (formerly subparagraph (v) of the
paragraph (4) (a) redraft) has been redrafted to delete the reference to “strictly” and to
include, in square brackets, the words “to the extent appropriate, taking into account all of
the circumstances of the case, in light of the final disposition of the claim on the merits”
([November 2002 Working Group Report,] A/CN.9/523, paras. 31 and 66–67).
32. The text in paragraph (7) (b) (ii) of the revised draft (formerly paragraph (4)(a) (vi)
redraft) was redrafted to take account of the preference expressed at the thirty-seventh
session of the Working Group for the words “security in such form as the arbitral tribunal
considers appropriate”. Also preference was expressed for the use of language along the
following lines “for any damages and any costs of arbitration referred to in subparagraph
(i)” ([November 2002 Working Group Report,] A/CN.9/523, paras. 68–69). For the sake of
consistency with the wording of paragraph 4 of the revised draft, paragraph 7 (b)(ii) refers
to providing security “as a condition to granting a measure under this paragraph”. It was a
generally accepted view of the Working Group at its thirty-seventh session that the security
P 277 to be provided in respect of ex parte interim measures be mandatory ([November 2002
P 278 Working Group Report,] A/CN.9/523, para. 46). The Working Group may wish to consider
whether this subparagraph adequately reflects this view.
Subparagraph (c)
33. The Working Group agreed to place the cross-reference to subparagraph (b) of the
revised draft (formerly a cross reference to paragraph (4) (a) (v) and (vi) redraft) between
square brackets following the concern that a cross reference to subparagraph (b) (ii)

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 (formerly subparagraph (vi) of the paragraph 4 (a) redraft) was necessary ([November 2002
Working Group Report,] A/CN.9/523, para. 72). The Working Group may wish to continue its
discussion on this matter at its thirty-eighth session.
34. The words “For the avoidance of doubt” have been included as the opening words of
subparagraph (c) of the revised draft for continuation of discussion at a future session
([November 2002 Working Group Report,] A/CN.9/523, para. 70). At the thirty-seventh session
of the Working Group, some support was expressed for this suggestion but it was pointed
out that such wording was generally inappropriate in a legislative text and, in many
countries, the effect of the subparagraph would not be to dispel a doubt but to create
jurisdiction for the arbitral tribunal beyond the confines of the jurisdiction conferred upon
the arbitral tribunal by the parties in the arbitration agreement ([November 2002 Working
Group Report,] A/CN.9/523, para. 70). The view was expressed that, in formulating a
provision extending the jurisdiction of the arbitral tribunal in connection with interim
measures of protection ordered on an ex parte basis, the Working Group should avoid
suggesting that such a provision should be interpreted a contrario in the context of those
interim measures that were ordered inter partes ([November 2002 Working Group Report,]
A/CN.9/523, para. 71).
Subparagraph (d)
35. Paragraph (7) (d) of the revised draft (formerly paragraph 4 (c) of the United States
proposal) has been redrafted taking account of comments and suggestions set out in
paragraphs 74–75 of [the November 2002 Working Group Report,] A/CN.9/523. This redrafting
includes reversing the order of subparagraphs (b) and (c) of paragraph (4) of the United
States proposal as requested by the Working Group ([November 2002 Working Group
Report,] A/CN.9/523, para. 73). It should be noted that paragraph 7 (d) refers to “an
opportunity” for the responding party to be heard either “as soon as it is no longer
necessary to proceed on an ex parte basis in order to ensure that the measure is effective”
or “within forty-eight hours of the notice, or on such other date and time as is appropriate
in the circumstances”. The first option provides some flexibility. However, if the Working
Group prefers the second option, it should be noted that it will then be necessary to revert
back to the question when notice should be given. As currently drafted, paragraph (7) (d)
applies only to ex parte measures. However, at the thirty-seventh session of the Working
Group, it was suggested that future consideration should be given to determining whether
this paragraph should apply only in the context of the interim measures ordered on an ex
parte basis or more generally to all interim measures ([November 2002 Working Group
Report,] A/CN.9/523, para. 75).
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P 279
Subparagraph (e)
36. The text of paragraph (7) (e) of the revised draft (formerly paragraph (4) (b) of the
United States proposal) has been redrafted taking account of the discussion of the Working
Group at its thirty-seventh session ([November 2002 Working Group Report,] A/CN.9/523,
para. 73). Paragraph (7) (e) provides that an interim measure of protection shall be
effective for no more than twenty days and provides two options for determining the
commencement of this twenty-day period. At the thirty-seventh session of the Working
Group, concerns were expressed about the inclusion of a blanket period of effectiveness of
an interim measure, such as twenty days ([November 2002 Working Group Report,]
A/CN.9/523, paras. 20, 25 and 73). Concern was expressed that, as drafted, the paragraph
did not meet its purpose of providing a rebalancing of the arbitral procedure following the
granting of an ex parte measure by giving the responding party an opportunity to be heard
and having that measure reviewed as soon as possible. It was stated that the objective of
restoring the balance of the arbitral procedure was dealt with under paragraph (4) (c) of
the United States proposal (paragraph (7) (d) of the revised draft) which gave the
responding party an opportunity to be heard ([November 2002 Working Group Report,]
A/CN.9/523, para. 73). The Working Group may wish to consider whether the text as
currently drafted meets these concerns. The Working Group should note that the words
“This subparagraph shall not affect the authority of the arbitral tribunal to grant, confirm,
extend or modify an interim measure of protection under paragraph (1) after the party
against whom the measure is directed has been given notice and an opportunity to be
heard” differ from the text that appeared in paragraph (7) at the Secretariat proposal,
which provided “A measure granted under paragraph (5) may be extended or modified
after the party to whom it is directed has been given notice and an opportunity to
respond”. It should be noted that, whilst the Secretariat proposal was directed at
extending or modifying the ex parte interim measure after the responding party had been
heard, the current text refers to interim measures in general and includes granting or
confirming either the ex parte interim measure or a new interim measure altogether.
Subparagraph (f)
37. In respect of paragraph (7) (f) of the revised draft (formerly paragraph (4) (d) of the
United States proposal), it was suggested that a further redraft of the provision should
establish a clear link between the obligation to disclose a change in circumstances and the
liability regime applicable to the party requesting the interim measure ([November 2002
Working Group Report,] A/CN.9/523, paras. 49 and 76). The Working Group may wish to
consider further this suggestion.

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 38. The Working Group should note that paragraph (7) (f) provides a similar obligation to
that imposed under paragraph (6), although paragraph (7) (f) appears to impose a slightly
broader obligation to inform. At the [thirty-seventh session] of the Working Group, it was
suggested that, if maintained, the text contained in paragraph (7) (f) should provide a time
limit within which the party requesting the interim measure should disclose a change in
circumstances to the arbitral tribunal. As noted above (para. 24), the Working Group may
P 279 consider whether an express sanction should be included for the breach of paragraph (6). If
P 280 the Working Group does decide to include such a sanction, it will be also necessary to
decide if the duty to disclose under paragraph (6) should apply to both inter partes and ex
parte measures or, if paragraph (7) (f) should be maintained, a separate sanction should be
provided where it is breached. It is submitted that the result expected from paragraph (7)
(f) (namely to impose a strict obligation to inform upon the party requesting an ex parte
measure) is already achieved by the application of paragraph (6) and that duplication of
this obligation would affect the readability and internal logic of the text.
2003 COMMISSION REPORT A/58/17 (22 JULY 2003)
V. Arbitration
[.…]
203. The Commission agreed that it was unlikely that all the topics, namely, the written
form for arbitration agreements and the various issues to be considered in the area of
interim measures of protection, could be finalized by the thirty-seventh session of the
Commission, in 2004. It was the understanding of the Commission that the Working Group
would give a degree of priority to interim measures of protection and the Commission
noted the suggestion that the issue of ex parte interim measures, which the Commission
agreed remained a point of controversy, should not delay progress on that topic.
DECEMBER 2003 WORKING GROUP REPORT A/CN.9/545 (8 DECEMBER 2003)
III. Revised draft of article 17 of the UNCITRAL Model Law on International Commercial
Arbitration on the power of an arbitral tribunal to grant interim measures of protection
19. The text of draft article 17 as considered by the Working Group was as follows:
[same as the April 2003 Secretariat Note, A/CN.9/WG.II/WP.123]
Paragraph (1)[Art. 17(1) in the final text]
20. The Working Group found the substance of paragraph (1) to be generally acceptable.
Paragraph (2)[Art. 17(2) in the final text]
Exhaustive nature of the list of functions characteristic of interim measures
21. The Working Group recalled that, at its thirty-seventh session, it had agreed that it
should be made abundantly clear that the list of provisional measures provided in the
P 280 various subparagraphs was intended to be non-exhaustive ([April 2002 Working Group
P 281 Report,] A/CN.9/508, para. 71). The Working Group noted that, as redrafted, the list
appeared exhaustive. The Working Group proceeded to consider whether all conceivable
grounds for which an interim measure of protection might need to be granted were
covered by the current formulation. It was suggested that a subparagraph could be added
to leave open the possibility that an arbitral tribunal might order an interim measure in
exceptional circumstances not currently covered by paragraph (2). Although some support
was expressed for that suggestion, it was widely felt that the suggested addition was
unnecessary. It was recalled that the paragraph, as previously drafted, attempted to list
all types of interim measures, whereas the current draft provided generic broadly cast
categories describing the functions or purposes of various interim measures without
focusing on specific measures. The current draft thus provided a flexible approach
covering all possible circumstances in which an interim measure might be sought. It was
also pointed out that an exhaustive generic list was preferable because it provided clarity
in respect of the powers of the arbitral tribunal and might reassure courts at the point of
recognition or enforcement of an interim measure. After discussion, the Working Group
agreed that, to the extent that all the purposes for interim measures were generically
covered by the revised list contained in paragraph (2), it was no longer necessary to make
that list non-exhaustive.
Subparagraphs (a) and (b)
“[in order to ensure or facilitate the effectiveness of a subsequent award]”
22. It was suggested that the bracketed text in both subparagraphs (a) and (b) namely “in
order to ensure or facilitate the effectiveness of a subsequent award” should be deleted. In
support of that suggestion, it was said that paragraph (2) provided a definition of an
interim measure rather than the conditions required to order an interim measure which
were set out in paragraph (3) of the draft article. It was said that retaining the bracketed
text in subparagraphs (a) and (b) could be read as imposing an additional condition to be
met before an interim measure could be granted. In addition, it was said that there might
be circumstances where an interim measure could be sought for purposes other than to
ensure or facilitate the effectiveness of a subsequent award, for example where a party
sought an interim measure preventing one party from aggravating the dispute by initiating
proceedings in another forum. The Working Group agreed that the bracketed text in

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 subparagraphs (a) and (b) should be deleted.
“maintain or restore the status quo”
23. A suggestion was made that subparagraphs (a) and (b) should be merged since the need
to maintain or restore the status quo should only be regarded as a subcategory of a
broader set of circumstances where an interim measure would be necessary to preclude
harm to the party seeking such interim measure. A more fundamental question was raised
as to whether preservation or restoration of the status quo should be regarded as a natural
function of an arbitral tribunal in the absence of any of the circumstances covered by
P 281 subparagraph (b). However, it was strongly felt that it was necessary to maintain
P 282 subparagraph (a), which set out the concept of maintaining the status quo, since that
concept was well-established and understood in many systems as one purpose of an
interim measure.
“current or imminent harm”
24. The view was expressed that, if the Working Group agreed to the deletion of the
bracketed text in subparagraph (b), this would leave a very broad definition referring to
“harm” without any indication as to the nature of such harm or the person that would be
harmed. It was suggested that this could lead to arbitral tribunals making orders for
interim measures that would not be upheld by courts and also could encourage arguments
regarding what harm was required before the enforcement court. After discussion, however,
the Working Group agreed that, while there was undoubtedly some overlap between
subparagraphs (a) and (b), retaining both subparagraphs was unlikely to create harm and
might be regarded as particularly helpful in certain legal systems.
25. A question was raised as to whether the words “would cause, current or imminent harm”
in subparagraph (b) were appropriate or whether they could create problems of proof
given that, at the time an interim measure was sought, there were often insufficient facts to
provide proof that, unless a particular action was taken or refrained from being taken,
harm would inevitably result. It was proposed that wording along the lines of “is likely to
cause” or “could cause” could address this concern. A number of delegations expressed
concern that such a formulation might make the threshold for obtaining an interim
measure too low and result in excessive discretion being granted to the arbitral tribunal
with respect to the issuance of an interim measure. After discussion, however, the Working
Group decided that the words “would cause” should be replaced by wording along the lines
of “is likely to cause”.
Subparagraph (c)
26. Clarification was sought as to the meaning of subparagraph (c) and in particular as to
the use of the phrase “securing assets”. It was said that this term could be incorrectly
understood as requiring the giving of a legal guarantee or security. The Working Group
agreed that the term merely referred to the securing of assets and should not be
interpreted as requiring a legal guarantee or security in all cases. The Working Group
generally agreed that the intention in subparagraph (c) was to refer to the preservation of
assets. The Working Group took note of the suggestion that the drafting group to be
established at a later stage by the Secretariat to ensure consistency between the various
linguistic versions should consider the possibility of using wording along the lines of
“preserving assets” instead of “securing assets”. The Working Group also took note of a
suggestion that the word “preliminary” in subparagraph (c) was unnecessary, potentially
misleading, and should be deleted.
Subparagraph (d)
27. The Working Group recalled that subparagraph (d) of the revised draft had not been
P 282 discussed at the thirty-seventh session. It was agreed that the text contained in
P 283 subparagraph (d) should be retained in substance and that the brackets should be
omitted. While the view was expressed that in certain legal systems subparagraph (d) was
superfluous, the text was considered important as the preservation of evidence was not
necessarily dealt with to a sufficient extent by all domestic rules of civil procedure.
Paragraph (3)[Art. 17 A in the final text]
“[demonstrate] [show] [prove] [establish]”
28. The Working Group recalled that, at its thirty-eighth session, a concern was expressed
that the word “demonstrate” in the opening words of the paragraph might connote a high
standard of proof. It was recalled that a similar debate had taken place at the thirty-
seventh session of the Working Group and that the verbs “show”, “prove” and “establish”
had been suggested together with the verb “demonstrate”, without the Working Group
making a decision in that regard ([April 2002 Working Group Report,] A/CN.9/508, para. 58).
At its current session, the Working Group agreed that the chapeau of paragraph (3) should
be redrafted in order to better reflect the intention of the Working Group to provide a
neutral formulation of the standard of proof. Wording along the following lines was
suggested: “The party requesting the interim measure of protection shall satisfy the
arbitral tribunal that:”. Broad support was expressed in favour of the suggested wording. As
an alternative drafting suggestion, the words “The party requesting the interim measure of
protection shall produce evidence that:” were proposed. A view was expressed that an
even more neutral formulation might read along the lines of “The arbitral tribunal is

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 satisfied that”. It was stated in response that, while neutrality in respect of the standard of
proof was desirable, the provision should clearly establish that the burden of convincing
the arbitral tribunal that the conditions for issuing an interim measure were met should be
borne by the requesting party. After discussion the Working Group decided that the words
“The party requesting the interim measure of protection shall satisfy the arbitral tribunal
that” should be used.
Subparagraph (a)
“irreparable harm”
29. Concerns were raised about the use of the term “irreparable harm”. It was suggested
that, in the commercial context, most occurrences could be cured with monetary
compensation and the term “irreparable harm” might be too narrow. Alternative proposals
were made to refer to “significant”, “exceptional” or “considerable” harm. It was pointed
out, however, that the notion of “irreparable harm” was well known in many legal systems
and constituted an ordinary prerequisite for ordering an interim measure. Interim
measures of protection were an exceptional form of relief granted when damages might
not constitute an adequate alternative remedy. The Working Group agreed that this
wording should be retained, possibly with an explanatory note in any accompanying guide
to the Model Law as to the meaning of “irreparable harm”. It was acknowledged, however,
that the notion of irreparable harm might lend itself to various interpretations. In the view
of some delegations, the term should be used only to refer to a truly irreparable damage
P 283
P 284
such as the loss of a priceless work of art. Other delegations referred to the notion of
“irreparable damage” as a means of describing particularly serious types of damage that
would outweigh the damage that the party against whom the interim measure would be
granted could be expected to suffer if that measure was effectively granted. The Working
Group noted that the discussion might need to be reopened at a later stage.
“will result”
30. The Working Group recalled that, in the context of paragraph (2), it had decided that
the draft provision should avoid creating problems of proof that might arise given that, at
the time an interim measure was sought, there were often insufficient facts to provide
proof that, unless a particular action was taken or refrained from being taken, harm would
inevitably result. For that reason, the words “would cause” in paragraph (2) had been
replaced by the words “is likely to cause” (see para. 25, above). For a similar reason, it was
decided that in subparagraph (a) of paragraph (3), the words “will result” should be
replaced by wording along the lines of “is likely to result”.
Subparagraph (b)
“will succeed”
31. It was suggested that a similar change should be made to subparagraph (b) in respect
of the words “will succeed”, which could be replaced by wording along the lines of “is likely
to succeed”. After discussion, it was generally agreed that the suggested change was
unnecessary in view of the fact that the introductory words “There is a reasonable
possibility” provided the required level of flexibility.
“provided that any determination on this possibility shall not affect the discretion of the
arbitral tribunal in making any subsequent determinations”
32. The Working Group considered whether the proviso in subparagraph (b) that “any
determination on this possibility shall not affect the discretion of the arbitral tribunal in
making any subsequent determinations” should be maintained. It was pointed out that, for
the sake of simplifying drafting, this phrase should be deleted and included in an
explanatory guide to the Model Law. It was widely felt, however, that the Model Law itself
should provide guidance to the arbitrators and give them the necessary level of comfort
when they were called upon to decide on the issuance of an interim measure of protection.
After discussion, it was agreed that the substance of the proviso should be retained.
Paragraph (4)[Art. 17 E(1) in the final text]
33. This paragraph was based on the idea that, in respect of inter partes measures, the
possibility of requiring security should be within the discretion of the arbitral tribunal
([November 2002 Working Group Report,] A/CN.9/523, para. 46). In order to clarify that
paragraph (4) was not intended to create a possibility to avoid supplying mandatory
security in respect of ex parte interim measures of protection ([April 2002 Working Group
Report,] A/CN.9/523, para. 46), two alternative texts had been included in the revised draft
in square brackets.
P 284
P 285
34. The Working Group considered paragraph (4) and agreed that the wording in square
brackets was unnecessary and should be deleted, as the remainder of paragraph (4) makes
it clear that the arbitral tribunal retains the right, in all circumstances, to require the
provision of security as a condition to granting an interim measure of protection.
Paragraph (5)[Art. 17 D in the final text]
“modify or terminate”

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 35. It was suggested that, for the sake of completeness and for better consistency between
draft articles 17 and 17 bis, the words “modify or terminate” should be amended to read
“modify, suspend or terminate”. The Working Group adopted that suggestion.
“[in light of additional information or a change of circumstances]”
36. While some support was expressed for the retention of the words between square
brackets (“[in light of additional information or a change of circumstances]”), it was widely
felt that those words were superfluous. Among the reasons given for the deletion of those
words, it was stated that arbitrators would generally explain in the text of their decision
the reasoning they followed when deciding to grant the interim measure. It was also felt
that those words in square brackets should be deleted since they might be misread as
unduly restricting the discretion of arbitrators when making the decision to grant an
interim measure. After discussion, the Working Group decided that the words between
square brackets should be deleted.
Modification of an interim measure on the initiative of the arbitral tribunal
37. Diverging views were expressed as to whether an interim measure could be modified or
terminated by the arbitral tribunal only upon request by a party or whether such
modification or termination could be ordered by the tribunal acting of its own initiative.
One view was that the text of draft article 17 should make it abundantly clear that the
tribunal could only act upon request by a party. It was stated that a party who had sought
and obtained an interim measure had a legitimate expectation that the measure would
produce its intended effect over its intended duration. In that context an interim measure
granted at the request of a party could only be terminated at the request of that party.
More generally, it was stated that such a rule was necessary to ensure consistency with the
consensual nature of arbitration as understood in many countries. It was pointed out that,
should an arbitral tribunal acting on its own initiative decide to terminate an interim
measure granted at the request of a party, it might be seen as unduly protecting the
interests of the other party, thus deviating from the impartiality that should be strictly
observed by the arbitral tribunal.
38. A contrary view, however, was that a degree of discretion was necessary to make it
possible for the arbitral tribunal to correct the serious consequences of an interim
measure, particularly where that measure appeared to have been granted on an erroneous
P 285 or fraudulent basis. It was pointed out that a useful precedent might be found in article
P 286 33(2) of the Model Law, which stated, in respect of awards on the merits, that “The
arbitral tribunal may correct any error of the type referred to in paragraph (1)(a) of this
article on its own initiative within thirty days of the date of the award”.
39. With a view to reconciling the various opinions on that matter, it was suggested that the
order of paragraphs (5) and (6) could be reversed. It was stated that placing paragraph (6)
before paragraph (5) would appropriately emphasize the obligation of parties to inform
the arbitral tribunal of any change in the circumstances on the basis of which the interim
measure had been granted. That suggestion was generally accepted by the Working Group.
In addition, various suggestions were made for improving the current text of paragraph (5).
One suggestion was that the arbitral tribunal should only be allowed to modify or
terminate an interim measure on its own initiative where such power had been expressly
conferred upon the arbitral tribunal through prior agreement of the parties. The Working
Group took note of that suggestion. Another suggestion was that the following text should
replace the current text of paragraph (5):
“The arbitral tribunal may modify or terminate an interim measure of
protection at any time upon application of any party or upon the tribunal's own
motion upon prior notice to the parties.”
40. Broad support was expressed for the proposed text. However, it was suggested that, in
order not to leave too much discretion to the arbitral tribunal acting of its own initiative,
paragraph (5) should clearly establish that, while under normal circumstances an interim
measure could only be terminated or modified at the request of a party, specific
circumstances might justify modification or termination of an interim measure by the
arbitral tribunal on its own initiative. To that effect, it was suggested that the words “or
upon the tribunal's own motion upon prior notice to the parties” in the proposed text
should be replaced by the words “or, in exceptional circumstances, on the tribunal's own
initiative, upon prior notice to the parties”. A view was expressed that a reference to
“exceptional circumstances” might be overly restrictive. A suggestion was made that
broader wording along the lines of “in light of additional information or a change of
circumstances” (see above, para. 36) might be preferable. After discussion, however, the
Working Group decided that paragraph (5) should be renumbered paragraph (6) and read
along the following lines:
“The arbitral tribunal may modify or terminate an interim measure of
protection at any time upon application of any party or, in exceptional
circumstances, on the tribunal's own initiative, upon prior notice to the parties.”
\
41. A concern was expressed that the revised text of the paragraph might be misread as

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 establishing the right for the arbitral tribunal to terminate or modify interim measures
granted by another tribunal or by a State court. It was generally agreed that the provision
should be further amended to clarify that, irrespective of whether it acted at the request of
a party or on its own initiative, the arbitral tribunal could only modify or terminate the
P 286 interim measures issued by that arbitral tribunal. The Secretariat was requested to
P 287 implement the common understanding of the Working Group when preparing a revised
draft for further consideration at its next session.
Situation where a respondent objects to the jurisdiction of the arbitral tribunal
42. A question was raised with respect to the operation of paragraph (5) regarding the
power of the arbitral tribunal to modify an interim order already made by the tribunal in
the situation where a respondent would not submit to the jurisdiction of the arbitral
tribunal. It was stated that this question raised a broader issue with respect to the position
of a respondent who objected to the jurisdiction of the arbitral tribunal on the merits of
the case but wished to oppose or sought to modify an interim order. It was widely felt that,
in such a situation, the respondent should not be regarded as having waived its objection
to the jurisdiction of the arbitral tribunal by appearing before the tribunal in connection
with the interim order only. With a view to reflecting that policy in draft article 17, the
following text was proposed:
“(6) bis
(a) When a party against whom such an application, or an interim order, is
made, objects or does not submit to the jurisdiction of the Tribunal in
respect of [the merits of] the claim made against him [in the arbitration
proceedings], that party may
(i) oppose the application, or
(ii) request the Tribunal to exercise its power [to modify etc.] under
subparagraph (5), without thereby waiving the objection or
submitting to the jurisdiction of the Tribunal in respect of [the merits
of] the claim.
(b) In such a case, the Tribunal may exercise its power [to modify etc.] under
subparagraph (5) notwithstanding that no request [therefore] has been
made by the party against whom the interim order was made.”
43. The Working Group took note of the proposal. It was widely felt, however, that, as
redrafted to provide for modification or termination of the interim measure on the
initiative of the arbitral tribunal in exceptional circumstances (see above, paras. 40 and
41), the paragraph sufficiently addressed the above concern.
Paragraph (6)[Art. 17 F(1) in the final text]
Numbering of paragraphs
44. For the reasons expressed in the context of the discussion of paragraph (5), (para. 39,
above), the Working Group decided that paragraph (6) would be renumbered paragraph
(5), and paragraph (5) renumbered paragraph (6).
Communication of information to both parties
45. A concern was expressed that paragraph (6) did not require the requesting party to
notify the other party of a material change in the circumstances. The Working Group noted
P 287 that paragraph (3) of article 24 of the Model Law provided that “all statements, documents
P 288 or other information supplied to the arbitral tribunal by one party shall be
communicated to the other party”. As well, article 18 of the Model Law provided that the
parties “shall be treated with equality and each party shall be given a full opportunity of
presenting his case”. A concern was expressed that duplication of these principles in draft
paragraph (6) could be detrimental and that the issue should instead be addressed in a
commentary to the Model Law. After discussion, the Working Group agreed that,
notwithstanding the obligations set out in article 24(3) and article 18 of the Model Law, it
would be useful to require expressly in paragraph (6) that all information supplied to the
arbitral tribunal by one party pursuant to that paragraph should also be communicated to
the other party.
“From the time of the request onward”
46. It was suggested that the words “from the time of the request onward” could be deleted
given that the point at which the duty to inform arose was evident from the remainder of
the paragraph, namely from the words “on the basis of which the party sought the interim
measure of protection”. It was further suggested that, to clarify the duty to inform, the word
“sought” should be replaced by “made the request for”. The Working Group agreed to
delete the words “from the time of the request onward” and replace the term “sought” with
“made the request for”.
“change in the circumstances”
47. The view was expressed that, as a matter of consistency, the language used in respect of
an arbitral tribunal's power to modify or terminate an interim measure “in light of
additional information or a change of circumstances” should be harmonized with that used

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 in paragraph (6) regarding the requesting party's duty to inform “of any material change in
circumstances”. However, it was recalled in that respect that the words “in light of
additional information or a change of circumstances” had been deleted from paragraph (5)
by the Working Group (see above, para. 36).
“Liability of the requesting party”
48. Concern was expressed that, in contrast to subparagraph (7)(b), which imposed a
mandatory requirement that security be given by the party applying for the ex parte order
to cover possible damages resulting from the measure, no liability provision was included
in the context of inter partes interim measures of protection which were subsequently
shown to have been unjustified. The Working Group agreed to defer discussion on liability
for unjustified interim measures issued in the context of inter partes proceedings to a later
stage in its deliberations.
Paragraph (7)[Arts. 17 B, C, E(2), F(2) and G in the final text]
General remarks
49. The Working Group recalled that, at the thirty-seventh session, the question whether to
include a provision allowing for interim measures to be ordered ex parte by an arbitral
tribunal had been extensively discussed and that opposing views had been expressed as
P 288 to whether this matter should be included in draft article 17 ([November 2002 Working
P 289 Group Report,] A/CN.9/523, paras. 16–27). The Working Group also recalled that, at its
thirty-sixth session, the Commission noted the suggestion that the issue of ex parte interim
measures, which the Commission agreed remained a point of controversy, should not delay
progress on the finalization of draft article 17 ([2003 Commission Report,] A/58/17, para.
203).
50. Strong opposition was expressed to discussing the text of paragraph (7) before having
first a discussion on whether, as a matter of general policy, it would be suitable for a
revision of the Model Law to establish the possibility of interim measures to be ordered ex
parte by an arbitral tribunal. However, the Working Group was reminded that, at its thirty-
seventh session, there had been wide agreement that, by strengthening and increasing the
safeguards, a provision on ex parte interim measures of protection might be more
acceptable ([November 2002 Working Group Report,] A/CN.9/523, para. 27). On that basis,
the Working Group agreed to proceed with an examination of the text and following that to
consider whether, as a matter of general policy, a provision on interim measures granted
ex parte should be retained in draft article 17.
51. A proposal was made to add to subparagraph 7(a) new wording to cover the question of
jurisdictional immunities of States and their property, along the following lines : “This
subparagraph is without prejudice to the immunities enjoyed by States or their various
organs under international law in relation to measures of protection.”
Subparagraph (a) [Art. 17 B in the final text]
Opt in or opt out
52. As currently drafted, the power to order interim measures applied “Unless otherwise
agreed by the parties”. It was proposed that these words should be deleted from the text
and replaced by “If expressly agreed by the parties”. It was stated that the suggested
wording was more apt to preserve the consensual nature of arbitration. It was suggested
that this approach which provided that parties “opt in” to a provision allowing ex parte
interim measures was more consistent with the expectation of the parties in an arbitration
given that ex parte provisions were not specifically provided for in a large number of
domestic arbitration laws. The Working Group took note of that suggestion, for which some
support was expressed. It was stated that experience gathered by one major international
arbitral centre over many years indicated that parties never requested ex parte interim
measures.
“in exceptional circumstances”
53. Divergent views were expressed as to whether or not to retain the bracketed words “in
exceptional circumstances”. It was suggested that the words were redundant and should
be deleted given that the circumstances listed in subparagraphs (a)(i) to (iii) only referred
to exceptional circumstances. As an alternative to deletion, it was suggested that the
words “in exceptional circumstances” could be retained, provided that appropriate
P 289 clarification was introduced in the text that “exceptional circumstances” referred to those
P 290 circumstances listed in subparagraphs (a)(i) to (iii). Such clarification was said to be
necessary in order not to suggest that the reference to “exceptional circumstances” should
be interpreted as establishing a further condition to the issuance of an interim measure ex
parte in addition to those already listed in subparagraphs (a)(i) to (iii). A contrary view was
that the words should be retained to underscore that the ex parte measure should only be
granted in truly exceptional circumstances. In support of that view, it was said that the
circumstances listed in subparagraph (a) were not necessarily exceptional circumstances.
The Working Group did not reach consensus on that issue and decided that the words “in
exceptional circumstances” should be retained in square brackets for continuation of the
discussion at a future session.
“[against whom the measure is directed][affected by the measure]”

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 54. The Working Group agreed that the words “against whom the measure is directed” were
preferable to the words “affected by the measure”. It was said that the latter phrase was
ambiguous in view of the multiplicity of parties potentially “affected” by an interim
measure. In the light of that decision, it was suggested that the language used in paragraph
(3)(a) and in other parts of draft article 17 might need to be reviewed to ensure consistency
in terminology, where appropriate.
Subparagraph (a)(i)
55. The Working Group found the substance of subparagraph (a)(i) to be generally
acceptable.
Subparagraph (a)(ii)
56. The Working Group agreed to replace the word “circumstances” with the word
“conditions” to better reflect the nature of the list contained in paragraph (3). A view was
expressed that subparagraph (a)(ii) which only referred to “the circumstances set out in
paragraph (3)” could be misinterpreted as excluding the application of paragraphs (5) and
(6) to ex parte interim measures. It was recalled that subparagraph (a)(ii) had been
included for the avoidance of any doubt that all the prerequisites applying to the granting
of an inter partes interim measure should also apply to an interim measure that was
ordered ex parte. It was said that, if re-emphasizing that point cast doubt on whether or
not the other paragraphs applied, then paragraph (a)(ii) should be deleted. The Working
Group made no final decision regarding that issue and noted that it might need to be
further discussed at a later stage.
Subparagraph (a)(iii)
57. It was suggested that the words, “the requesting party shows” should be harmonized
with the amended text agreed to in the chapeau of paragraph (3) which provided that “the
requesting party satisfies the arbitral tribunal” (see para. 28, above). Some opposition was
expressed to that proposal on the basis that a higher standard of proof should be required
in respect of ex parte interim measures. The Working Group made no final decision
regarding that issue and noted that it might need to be further discussed at a later stage.
P 290
P 291
58. A suggestion was made that the phrase “the requesting party shows” or any phrase as
might be agreed should be transposed to the chapeau of paragraph 7(a) to make it clear
that it applied to all the elements of paragraph 7(a) and not only to subparagraph (a)(iii).
The Working Group took note of that suggestion.
Subparagraph (b) [Art. 17 E(2) and G in the final text]
General remarks
59. The Working Group recalled that, at its thirty-seventh session, it had agreed that the
revised draft should ensure that the requirement that the party seeking the measure give
security be mandatory and that the requesting party be considered strictly liable for
damages caused to the responding party by an unjustified measure ([November 2002
Working Group Report,] A/CN.9/523, para. 31).
60. The question was raised whether a general liability provision should apply not only to
interim measures ordered on an ex parte basis but also to those ordered on an inter partes
basis. In support of establishing such a general liability provision, it was stated that in
either case, the measure could ultimately be found to have been unjustified to the
detriment of the responding party. However, some opposition was expressed to the
suggestion that subparagraph (b)(i) should apply generally to both ex parte and inter partes
measures. It was said that the strict liability imposed under subparagraph (b)(i) was
appropriate given the nature of an ex parte measure, due to the risks inherent in such
procedure. However, it was said that misrepresentation or fault in relation to the inter
partes regime could be dealt with by procedural national laws. As a general remark, it was
said that the scope of subparagraph (b)(i) should be limited to establishing the basic
principles of a liability regime, without dealing in any detail with substantive issues
covered by national laws. After discussion, the Working Group agreed that, at its next
session, its deliberations should continue on the basis of both subparagraph (7)(b)(i)
regarding the liability of the party requesting an ex parte measure, and a new paragraph
(provisionally numbered (6 bis)), which should mirror the text of subparagraph (7)(b)(i) in
the context of inter partes measures.
61. In preparation for the continuation of its deliberations on this topic, it was felt that
additional research on the liability regimes in the context of national laws on interim
measures of protection was needed. Some reservations were expressed as to the
usefulness of further research given the scarcity of arbitration laws that included a regime
on liability in the context of interim measures of protection, and the possibility that civil
procedural laws applicable to State courts might not provide rules that could
appropriately be transposed in the context of arbitration proceedings. Nonetheless, after
discussion the Working Group agreed that the matter could profit from additional
information regarding national law on that matter. Delegations were invited to make such
information available to the Secretariat by mid-December 2003 for circulation and
translation in preparation for the next session of the Working Group.

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 P 291 62. As a matter of drafting, it was suggested that subparagraphs (b)(i) and (ii) should not be
P 292 grouped together in one paragraph since those subparagraphs dealt with different
issues, respectively liability and security. The Working Group took note of that suggestion.
Subparagraph (b)(i) [Art. 17 G in the final text]
Costs
63. Diverging views were expressed as to the need for a reference to costs. It was suggested
that the scope of the subparagraph should be restricted to damages, since it was aimed at
providing compensation to the responding party for damages arising from an ex parte
interim measure, under certain conditions. The Working Group was alerted to the danger of
including costs, which could be understood very broadly in some jurisdictions and narrowly
elsewhere, and which could be interpreted in a variety of ways covering, for example, legal
costs, including attorney's fees, or costs associated with implementing the measure. It was
suggested that the word “costs” should be interpreted strictly and replaced by the word
“expenses”. However, there was a suggestion to retain the reference to costs, as the term
was defined under the UNCITRAL Arbitration Rules.
Damages
64. Concerns were raised that, as currently drafted, the reference to damages was not
sufficiently defined as it could cover both direct and indirect or consequential damages
caused by the measure. It was suggested that it might be preferable to define more clearly
the scope of the damages intended to be covered. Diverging views were expressed as to
whether a wider definition of damages (which would provide appropriate safeguards) or a
more limited one (restricting the ambit of the rule to direct damages) should be retained.
65. The Working Group considered the circumstances when damages might be payable in
respect of an ex parte measure. A question was raised as to whether merely requesting an
ex parte interim measure should make the requesting party liable for damages caused,
irrespective of whether the measure was found to be justified or unjustified and
irrespective of whether there was any fault by the requesting party. In response, it was
widely felt that, irrespective of whether or not the liability rule established in respect of
the requesting party was based on fault or not, the application for an ex parte interim
measure should not be regarded in itself as creating a damage that should be
compensated. The view was expressed that the issue of damages should be left to
domestic law. The prevailing view, however, was that the requesting party should be liable
only if the measure was ultimately found to have been unjustified. Questions were raised
as to the meaning to be attributed to the word “unjustified” and whether the notion of an
“unjustified” measure should be considered per se, or in the light of the results on the
merits. It was strongly felt in that respect that the final decision on the merits should not
be an essential element in determining whether the interim measure was justified or not.
66. It was suggested that the point in time when compensation for damages could be
obtained should be defined. It was pointed out that damages could arise prior to the
P 292 rendering of the final award. In that connection, it was said that, as an additional
P 293 safeguard to the regime of ex parte measures, the language of the revised draft should
include the possibility for the responding party to claim for compensation immediately
after the ex parte interim measure had been granted by the arbitral tribunal and to obtain
immediate awarding of damages. It was also pointed out that damages for ex parte
measures would apply only for the time in which the measure was in effect on an ex parte
basis.
“[against whom it is directed] [affected by the measure]”
67. Support was expressed for the retention of the first bracketed text for the sake of
consistency with the words used in paragraph 3 and subparagraph 7(a). However, it was
suggested that, in the context of subparagraph 7(b)(i), it could be preferable to retain the
second bracketed text “affected by the measure” as it would allow a party, other than the
party against whom the measure was directed, to claim damages. It was also suggested
that the words “the party affected by the measure” could, in this context, be replaced by
the words “any party affected by the measure”. It was explained that wording establishing
the principle of a guarantee on the part of the requesting party would provide appropriate
protection to arbitrators against third party's incurring damages as a result of the ex parte
interim measure and seeking compensation. In reply to the above suggestions, it was
recalled that an arbitral tribunal would not have jurisdiction over third parties not bound
by the arbitration agreement.
“[to the extent appropriate, taking into account all of the circumstances of the case, in light
of the final disposition of the claims on the merit]”
68. Diverging views were expressed as to the need to retain the last bracketed text of
subparagraph (b)(i). It was said that the phrase “to the extent appropriate” should be
maintained, to show that the measure is legitimate. Other views were expressed stating
that the bracketed text was not necessary, as it did not provide any new element. For that
reason, it should be replaced by a provision on the possibility for the responding party to
claim for compensation immediately after the ex parte interim measure was granted by
the arbitral tribunal. The Working Group took note of those views.
Subparagraph (b)(ii) [Art. 17 E(2) in the final text]

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 69. The Working Group agreed that the provision of security should be mandatory in the
context of ex parte interim measures. It was pointed out that, as a matter of consistency,
the wording of this subparagraph should be aligned with the wording used in paragraph (4)
relating to the provision of security in the context of inter partes interim measures, except
for the word “may” which could be replaced by the word “shall”.
70. It was suggested that, in order to enhance the safeguards necessary in the context of ex
parte interim measures, subparagraph b(ii) should be made a condition for granting an ex
parte interim measure.
P 293
P 294
Subparagraph (c)
71. It was suggested that the subparagraph was unnecessary given that the jurisdiction of
the arbitral tribunal was implicitly established by subparagraph (7)(b)(i). The prevailing
view, however, was that subparagraph (c) served a useful purpose and should be retained.
It was agreed that, if both subparagraph (b)(i) and a general provision on liability were
included in draft article 17, it should be made clear that subparagraph (c) applied to both
inter partes and ex parte interim measures.
72. A concern was expressed that an application under subparagraph (b)(i) could be made
by the responding party well after the final award had been rendered. A suggestion was
made that the subparagraph should make it clear that the jurisdiction only applied until
the award was decided. In response to the above concern, it was recalled that article 32(3)
of the Model Law provided that “the mandate of the arbitral tribunal terminates with the
termination of the arbitral proceedings subject to the provisions of article 33 and 34(4)”.
However, since the claim under subparagraph (b)(i) could be regarded as a new claim, it
was suggested that subparagraph (c) was necessary. A suggestion was made that, since
there was no doubt that the arbitral tribunal had jurisdiction on the issue of security under
subparagraph (b)(ii), the scope of subparagraph (c) should be restricted to subparagraph
(b)(i). The following text was suggested as a possible alternative to the current formulation
of subparagraph (c): “A party may bring a claim under subparagraph (b)(i) and may do so at
any time during the arbitration proceedings”. The Working Group took note of the
suggested wording and decided that it should be further discussed at its next session,
together with the current text of subparagraph (c).
73. It was suggested that the words “for the avoidance of doubt,” should be deleted.
Concern was expressed that, if those words were omitted, this could lead to uncertainty
regarding the existence of arbitral authority under subparagraph (b), particularly in
jurisdictions that would not enact subparagraph (c). It was said that the broad drafting of
paragraph (c), including the reference to “inter alia”, reduced the risk of any
misinterpretation of the provision, the meaning of which could be further clarified in a
commentary to article 17. On that basis, the Working Group decided that the opening words
“for the avoidance of doubt” should be deleted. The Secretariat was requested to provide
a revised draft taking account of the views expressed and the suggestions made.
Subparagraph (d) [Art. 17 C in the final text]
74. It was pointed out that subparagraph (d) was central to the overall regime applying to
ex parte interim measures. It was suggested that, to the extent an ex parte measure could
impact upon parties other than the party against whom it was directed, the second
bracketed text would better accommodate this situation along with substituting the
opening words “The party” with the words “Any party”. The Working Group, however, agreed
P 294 that in the interests of consistency with the drafting agreed to in respect of subparagraph
P 295 (b)(i), the first bracketed text (“against whom it is directed”) should be retained in a
future draft of this provision.
75. In respect of the second set of bracketed texts “[as soon as it is no longer necessary to
proceed on an ex parte basis in order to ensure that the measure is effective] [within forty-
eight hours of the notice, or on such other date and time as is appropriate in the
circumstances]”, various views were expressed. One view distinguished the first of these
texts as referring to the giving of notice to the responding party whereas the second text
was said to refer to the responding party's opportunity to be heard. It was suggested that,
given that the two texts had different functions, both should be retained but that the
ordering of the language should be amended to read:
“The party against whom the interim measure is directed under this paragraph
shall be given notice of the measure as soon as it is no longer necessary to
proceed on an ex parte basis in order to ensure that the measure is effective
and an opportunity to be heard by the arbitral tribunal within forty-eight hours
of the notice, or on such other date and time as is appropriate in the
circumstances.”
76. In response, it was said that the term “as soon as it is no longer necessary” was
ambiguous and that it was not clear whether the corresponding judgement was to be made
by the requesting party or the arbitral tribunal. It was recalled that the only reason to
include such a wording was to address the situation where the requesting party sought
enforcement of the ex parte interim measure. It was suggested that the subparagraph
should be redrafted along the following lines:

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 “The party against whom the interim measure of protection is directed shall be
given immediate notice of the measure and an opportunity to be heard by the
arbitral tribunal at the earliest possible opportunity and in any event no later
than forty-eight hours after that notice, or on such other date and time as is
appropriate in the circumstances.”
77. Whilst support was expressed for that proposal as it provided flexibility and some
discretion for the tribunal in respect of when the responding party should be heard,
concern was expressed that the proposal did not make sufficiently clear the point of time
at which notice should be given.
78. Clarifying that issue was considered crucial given that notification was an essential first
step to converting an ex parte interim measure into an inter partes interim measure. It was
proposed that paragraph (d) should be amended to provide that the party against whom
the interim measure was directed should be given notice of the measure immediately
after the arbitral tribunal ordered the measure. Following that notice, the responding
party should be given an opportunity to put forward its arguments in writing and, at the
request of the responding party, be heard by the arbitral tribunal. It was suggested that
that approach avoided any need to refer to either time period mentioned in the last two
bracketed texts of paragraph (d). That proposal was objected to on the grounds that giving
notice immediately after the interim measure was ordered might not satisfy the
requirement of surprise needed to give efficacy to ex parte measures, including time to
seek enforcement in court.
P 295
P 296
79. Some reservations were expressed as to the inclusion of a time period of fortyeight
hours or any other specific time period, which might prove too rigid and inadequate,
depending on the circumstances. It was also pointed out that introducing wording to allow
the tribunal to consider another time and date as was appropriate in the circumstances
might provide appropriate flexibility but might also make it illogical to maintain in the
same provision a reference to a fixed period of time. A widely shared view, however, was
that the inclusion of a specific time period served two purposes, being to underscore that
the opportunity to be heard was urgent and, also to put the arbitral tribunal on notice that
it should be ready to reconvene to allow an opportunity for the responding party to be
heard.
80. It was suggested that the words “opportunity to be heard” might need to be amended
to encompass both a hearing of the responding party and a written submission from that
party. It was agreed that these words should be replaced by “opportunity to present its
case”.
81. After discussion, the Working Group decided that its deliberations in respect of
subparagraph (d) should be continued at its next session on the basis of the text
reproduced in paragraph 76 above (subject to the replacement of the words “an
opportunity to be heard by” by the words “opportunity to present its case before”) and of
the following alternative text:
“Any party affected by the interim measure of protection granted under this
paragraph shall be given immediate notice of the measure and an opportunity
to be heard by the arbitral tribunal within [forty-eight] hours of the notice, or on
such other date and time as is appropriate in the circumstances.”
82. At the close of the discussion, the Working Group was reminded that the drafting of
subparagraph (d) would need to be revisited when the Working Group examined the
question whether enforcement of an ex parte interim measure should be permitted.
Subparagraph (e) [Art. 17 C in the final text]
83. The Working Group considered various drafting improvements on the current text of
subparagraph (e). It was agreed that the text could be simplified and include wording
along the lines of “expire after twenty days” instead of “be effective for no more than
twenty days”. It was also agreed that the reference to “paragraph (1)” was inappropriate. In
respect of the second set of alternative bracketed texts, preference was expressed for the
first formulation, namely, “from the date on which the arbitral tribunal orders the
measure”. In support of that wording, it was pointed out that it would be difficult to
identify the date on which a measure took effect against the other party, as proposed by
the second alternative text. In keeping with its earlier decision in respect of equivalent
language in subparagraph (b)(i), the Working Group agreed to retain the text “against whom
the measure is directed” in preference to “affected by the measure”.
84. It was suggested that the second sentence of the subparagraph was unnecessary. It was
P 296 pointed out, however, that the final sentence in subparagraph (e) effectively allowed for
P 297 the conversion of an ex parte interim measure into an inter partes interim measure after
the party against whom the measure was directed had been given notice and an
opportunity to present its case. Clarification was sought as to the point at which an interim
measure was converted from an ex parte to an inter partes one. It was suggested that, for
the sake of clarity, subparagraph (e) could be simplified by adopting a wording along the
following lines:

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 “Any interim measure of protection ordered under this paragraph shall expire
after twenty days from the date on which the arbitral tribunal orders the
measure, unless that measure has been confirmed, extended or modified by the
arbitral tribunal after the party against whom the measure is directed has been
given notice and an opportunity to present its case.”
After discussion, that formulation was adopted to replace subparagraph (e).
85. It was observed that the subparagraph had been drafted with procedural orders in
mind as shown by the words “confirm, extend or modified”, when, in fact, it was
contemplated that it could also apply to interim measures in the form of awards.
86. A suggestion was made that subparagraph (e) could also include a requirement that the
requesting party should provide the material on which the application was based to the
responding party. In support of that suggestion, it was said that, in light of the obligation to
inform contained in subparagraph (f), inclusion of a requirement to provide the material
upon which the application was made and the measure granted would improve the
operation of subparagraph (f). Whilst the suggestion was considered to be useful, it was
noted that article 24(3) already required that information supplied to the arbitral tribunal
be communicated to the other party. It was suggested that the Working Group should avoid
overburdening the text in the revised draft by restating procedural elements that were
already provided for in the Model Law and that the matter could be addressed in any
accompanying guide to the Model Law. In response it was said that it was important to
restate the requirement that information supplied to the arbitral tribunal be
communicated to the other party in paragraph (e) because in an ex parte situation, the
measure could have been made without any document being provided to the tribunal. It
was suggested that, even though article 24(3) of the Model Law could be interpreted as
covering oral communications, the requirement should nevertheless be included given
that that article could be interpreted restrictively. In response, it was stated that there
should be no implication that a tribunal would be under an obligation to make a transcript
of oral proceedings for every ex parte request.
87. It was said that the paragraph could also better clarify who bore the burden of
requesting the maintenance of the order, an issue for which it was important to decide
whether the same measure initially issued ex parte was maintained in an inter partes
context or whether a new measure inter partes replaced the original ex parte measure. It
was suggested that the party benefiting from the measure should bear that burden. A note
of caution was struck about opening up a variety of procedural matters that would
P 297 unnecessarily burden the provision. The Secretariat was requested to envisage the
P 298 possibility of expressing the notion that the party benefiting from the measure should
bear the burden of seeking its maintenance beyond twenty days.
Subparagraph (f) [Art. 17 F(2) in the final text]
General remarks
88. It was said that the current draft, which referred to an obligation to inform the arbitral
tribunal of all the circumstances that it was “likely to find relevant and material to its
determination” was ambiguous and difficult to apply in practice, as it would require the
requesting party to anticipate the subjective reasoning of the arbitral tribunal. Support
was expressed for deletion of subparagraph (f). The prevailing view, however, was that the
subparagraph should be retained as a fundamental safeguard and an essential condition
to the acceptability of ex parte interim measures. In that context, it was recalled that the
subparagraph was inspired from the rule in existence in certain jurisdictions that counsel
had a special obligation to inform the court of all matters, including those that spoke
against its position. It was also recalled, however, that under many legal systems, there
existed no such specific obligation to inform.
Placement of subparagraph (f)
89. Diverging views were expressed as to where this provision should be placed. One view
expressed was that, as the subparagraph imposed an obligation on the requesting party, it
would be better if it were relocated as the first subparagraph under subparagraph (b). The
obligation of the requesting party would therefore consist in informing the arbitral
tribunal, providing security and being liable for any costs and damages caused to the
responding party. The prevailing view was that the subparagraph should remain in its
present location, as it concluded the paragraph on ex parte measures with an obligation
that referred to various subparagraphs therein.
Sanctions
90. The Working Group recalled that, at its thirty-seventh session, it was suggested that a
further redraft of the provision should establish a clear link between the obligation to
disclose a change in circumstances and the liability regime applicable to the party
requesting the interim measure ([November 2002 Working Group Report,] A/CN.9/523, paras.
49 and 76). The Working Group agreed that the consequence for not complying with the
obligation of information should be left to be decided by the general regime provided for
in paragraph 7 (including termination or liability where the interim measure was
unjustified) and otherwise provided by the applicable substantive law.

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 Redrafting proposals
91. Sympathy was expressed for the concern that, as currently drafted, the subparagraph
appeared to require the requesting party to read the mind of the arbitral tribunal. A
number of suggestions were made to reduce the ambiguities of the current draft. One
proposal was to replace the phrase “shall have an obligation to inform” by “shall promptly
P 298
P 299
inform”. However, it was said that the word “promptly” was more appropriate in the
context of a continuous obligation to inform of any change in circumstances. Another
proposal was to replace the entire text in the paragraph by wording along the following
lines:
“A party requesting an interim measure of protection under this paragraph shall
inform the arbitral tribunal of all material circumstances known to the party,
adverse to the party's case, that the requirements of this paragraph have been
met.”
It was suggested that that proposal was preferable to the existing text because it did not
depend on a subjective opinion of the tribunal and also addressed the party's knowledge
at the time that the request was made. That proposal was objected to on the grounds that
it might only be properly applied and understood by the States from an adversarial
regime, as opposed to an inquisitorial one. It was added that the word “material” could
exclude certain information that might be useful for the arbitral tribunal. As well, it was
said that the proposal introduced further uncertainty into the scope of the duty, as it was
not clear what would constitute information adverse to the requesting party's case. Also it
was said that the proposal might be construed to include adverse matters that might arise
in the discussion of the merits. It was suggested that the Working Group should seek a more
flexible formulation to encourage full and frank disclosure of relevant and material
information.
92. It was proposed that the paragraph could be redrafted along the following lines:
“A party requesting an interim measure of protection under this paragraph shall
promptly inform the arbitral tribunal of all circumstances relevant and material
to the arbitral tribunal's determination whether the requirements of this
paragraph have been met.”
Support was expressed for that proposal. With a view to clarifying that the arbitral tribunal
retained the discretion whether or not to order an interim measure of protection, it was
suggested that the reference to “whether the requirements of this paragraph have been
met”, could be replaced by “whether the arbitral tribunal should make the order
requested”. A view was also expressed that the requirement to “inform the arbitral
tribunal” might be too narrow and that wording along the lines of “place before the
tribunal” might be preferable. Another view was that an effort should be made to introduce
in the proposed text some of the flexibility reflected in the original formulation of
subparagraph (f). The Secretariat was asked to prepare a revised draft, taking account of
the above suggestions.
IV. Revised draft of article 17 bis [Arts. 17 H and 17 I of the final text] of the UNCITRAL Model
Law on International Commercial Arbitration on the recognition and enforcement of
interim measures of protection
93. The Working Group recalled that it had agreed that, following its completion of
paragraph 7, it would revert to a general discussion on whether the inclusion of a provision
on ex parte interim measures was acceptable or not (see above, para. 50). However, it was
agreed that that general debate would take place after the provisions on recognition and
enforcement of interim measures had been reviewed.
P 299
P 300
27 JANUARY 2004 SECRETARIAT NOTE INTERIM MEASURES — LIABILITY REGIME
A/CN.9/WG.II/WP.127 (27 JANUARY 2004)
Introduction
[Editors' Note: The Secretariat's summary of the discussions at the prior Working Group
sessions, regarding the posting of security by the party seeking measures and liability for
damages to the responding party (reported supra in the November 2002 Working Group
Report, A/CN.9/523, para. 31, and the December 2003 Working Group Report, A/CN.9/545,
paras. 60–65) is not reprinted.]
3. In preparation for the continuation of its deliberations on this topic, the Working Group
agreed that the matter could profit from additional information regarding the liability
regimes in the context of national laws on interim measures of protection and all
delegations were invited to make such information available to the Secretariat in
preparation for the fortieth session of the Working Group ([December 2003 Working Group
Report,] A/CN.9/545, para. 61).
4. Part I of this note reproduces the information received from States on that matter in the
form in which such information was communicated. Part II provides a summary of texts
being drafted by other international organizations in respect of this issue. Earlier drafts of

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 these texts are reproduced in [the January 2000 Secretariat Note,] A/CN.9/WG.II/WP.108,
para. 108 and [the January 2002 Secretariat Note,] A/CN.9/WG.II/WP.119, paras. 68–71
[reprinted in the section on Art. 17 J, pp. 562–68 infra].
I. National legislation communicated to the Secretariat by delegations
A. Austria
5. According to the present legislation on arbitration (articles 577–599 of the Austrian Code
of Civil Procedure), an arbitral tribunal is not empowered to issue an interim measure of
protection and only courts can issue interim measures. The court has to decide whether to
grant the measure upon application by the requesting party, on the basis of immediately
available evidence provided simultaneously by the requesting party to support the claim.
The decision to hear the party against whom the measure is directed lies within the
discretion of the court. In any case, the court has to make sure that the hearing does not
jeopardize the success of the interim measure.
6. Interim measures which are granted before the claim becomes due or before judicial
proceedings are initiated, must be justified in the main judicial proceedings. When
granting the interim measure, the court will set a time-limit for the requesting party to
initiate judicial proceedings. Should the requesting party fail to initiate proceedings
within this time-limit, the court ex officio will set aside the interim measure.
7. The liability regime under Austrian law applies generally to both ex parte and inter
P 300 partes measures. According to article 394 of the Code of Execution, the requesting party is
P 301 liable for all pecuniary damages caused by the measure to the party against whom it is
directed, if the claim, for which the interim measure has been granted, proves to be
unfounded in the subsequent main proceedings or if the requesting party fails to institute
legal proceedings within due time. The Austrian provision imposes strict liability. The
requesting party is liable to compensate all pecuniary damages caused by the interim
measure. The pecuniary damages cover all pecuniary losses, prevented gains and the
necessary costs of the party against whom the interim measure is directed to defend its
case. Legal costs for representation of the party against whom the interim measure is
directed must also be compensated.
B. Canada (Province of Quebec)
8. Article 755 of the Code of Civil Procedure provides that:
“Unless, for good reason, the court or the judge granting an interlocutory
injunction decides otherwise, the applicant must be ordered to give security, in
a prescribed amount, to pay the costs and damages which may result
therefrom. The certificate of the clerk that the security has been given must be
attached to the order before it is served.
A judge may at any time increase or reduce the amount of such security [1965
(1st sess.), c. 80, s. 755; 1992, c. 57, s. 420].”
C. Czech Republic
9. The power to grant interim measure is exclusively allocated to courts. The courts have
the same power to provide interim measure of protection to arbitration parties, as they
have for parties to court proceedings.
10. Section 22 of Act No. 216/1994, Statute Books of the Parliament of the Czech Republic,
on Arbitral Proceedings and Enforcement of Arbitral Awards (approved on 1.11.1994,
entered into force as of 1.1.1995) provides that “If pending the proceedings, or before their
commencement, circumstances emerge, likely to jeopardise the execution of the arbitral
award, a Court of Law, acting on application of any of the parties, may order a preliminary
measure (injunction).” According to this provision, which is mandatory, arbitral tribunals
are not allowed to issue any interim measure at any time.
11. The legislation in the Czech Republic does not provide for cross-border enforcement of
arbitrator-granted interim relief. Under the Czech law, any arbitrator-granted interim
relief cannot be enforced in the Czech Republic.
D. Finland
12. Chapter 7, section 11, of the Finnish Code of Judicial Proceedings provides that, if an
interim measure of protection is later found unjustified, the party who has requested the
measure shall pay compensation to the other party for any damage that the measure or its
enforcement has caused the latter as well as compensation for those costs that he paid in
order to cancel the measure (e.g. costs for providing a security). This provision means that
P 301 the party upon whose request the measure has been granted and possibly enforced has a
P 302 strict liability (sine culpa) for any damage—both direct and indirect—the measure or its
enforcement has caused the other party.
E. France
13. Below is an extract of the New Code of Civil Procedure on interim measures of
protection granted by courts, as translated under the official legal web site of the French
Government (“legifrance. gouv. fr”).

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 “Article 489 (Decree No. 81-500 of 12 May 1981, sec.18, Official Journal of 14 May
1981 amendment JORF 21, May 1981): The summary interlocutory procedure
orders shall be provisionally enforceable. The judge may notwithstanding the
above, subject its provisional enforcement to the providing of an undertaking in
the manner as specified under Articles 517 to 522.
Should the occasion arise, the judge may order the enforcement to be executed
upon the mere production of the original.
Article 517: Provisional enforcement may be made subject to the providing of
undertakings relating to real or personal property sufficient to cover
restitutions and damages.
Article 518: The nature, extent and conditions of the undertakings shall be
specified in the decision which prescribes that they be provided.
Article 519 (Decree No. 76–714 of 29 July 1976, sec. 2, Official Journal of 30 July
1976): Where the undertakings shall consist in a sum of money, the same shall be
deposited at the Deposits and Consignation Office; it may be deposited also at
the request of one of the parties in the hands of a third party appointed for that
purpose.
In the latter case, the judge, where he accedes to the request, shall state in his
decision the conditions of such deposit.
Where the third party refuses to accept such a deposit, the sum shall be
deposited, without any fresh decision to that effect, at the Deposits and
Consignation Office.
Article 520: Where the value of the security may not be immediately
determined, the judge shall invite the parties to appear before him with their
evidence at a date which he shall specify.
It shall be determined without any right of review.
A note of the decision shall be made on the original and on the certified copies
of the judgment.
Article 521 (Decree No. 81-500 of 12 May 1981, sec.21, Official Journal of 14 May
1981 amendment JORF of 21 May 1981), (Decree No. 84-618 of 13 July 1984, sec.3
and 31, Official Journal of 18 July 1984 amendment JORF of 18 August 1984): The
party ordered to pay a sum other than in view of maintenance, compensatory
P 302 annuities or interim payment may avoid provisional execution by depositing,
P 303 on leave granted to that effect by the judge, cash or title of sufficient value
to provide a security for the amount of the award with respect to the principal
claim, interest and costs.
In the event of a judgment ordering the payment of a lump sum as indemnity in
cases of personal injury, the judge may also order that it be remitted to a
sequester under the condition that he shall pay to the victim such installments
as the judge shall specify.
Article 522: The judge may, at any time, authorise the substitution of the original
security for one of an equal value.”
14. The principle adopted by the courts when granting interim measures of protection is as
follows:
“Provisional execution of interim measures of protection is effected at the risk
of the petitioner and, where the ruling is set aside, he shall be responsible for
reparation of any damage caused by such execution.”
F. Germany
15. Section 1041, sub. 4 of the Arbitration Law provides that:
“If a measure ordered under subsection 1 (interim measure ordered by an
arbitral tribunal) proves to have been unjustified from the outset, the party who
obtained its enforcement is obliged to compensate the other party for damage
resulting from the enforcement of such measure or from his providing security in
order to avoid enforcement. This claim may be put forward in the pending
arbitral proceedings.”
16. This provision reflects the statutory provisions under German law for interim measures
granted unjustly by state courts and is an expression of a general principle of law. Thus it
was included in the Arbitration Act—according to general consensus—for the sake of
clarification and to reiterate the idea that a party seeking interim measures of protection
without sufficient cause must compensate damages arising therefrom ipso jure, i.e. without
an express undertaking to do so.
17. Apart from this provision, there is no further specific statutory provision dealing with
the consequences of unjustified interim measures.

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 G. Singapore
18. The International Arbitration Act, 1995, which enacts the UNCITRAL Model Law on
International Commercial Arbitration with modifications, provides, in its section 12, that an
arbitral tribunal has the power to make orders, or give directions to any party, for:
– Security for costs
– Preservation, interim custody or sale of any property which is the subject matter of
the dispute
– Securing the amount in dispute
– Preventing dissipation of assets by a party
P 303
P 304
– An interim injunction or any other interim measure.
19. Orders and directions given by an arbitral tribunal are by leave of the High Court
enforceable in the same manner as orders made by a court. The High Court has power to
make similar orders for the purpose of, and in relation to, an arbitration as it has for the
purpose of, or in relation to, an action or matter in court. These matters are provided for in
section 12 of the International Arbitration Act.
20. With respect to liability for damages arising from interim orders, in the absence of
jurisprudence to the contrary, it is assumed that the practice in relation to interim orders
made in arbitration proceedings would follow the practice in relation to interim orders
issued by courts in relation to cases before courts.
21. A central feature in court practice is that the applicant is almost always required to
undertake to abide by any order the court may make as to damages in the event the order
is shown subsequently to have been unjustly made. In fact, the plaintiff when applying for
an order always offers the undertaking. On the application of the party to be affected, the
court may require the applicant to back up his undertaking with security, such as in the
form of a bank guarantee.
22. The court may order damages to be paid if, for example, at the end of the trial, the
plaintiff fails to establish his claim. This would be the case, for instance, if the plaintiff had
obtained an order securing the amount in dispute but at the end of the trial loses the case
altogether. In such an instance, the view may be taken that the interim order had been
wrongly applied for, and the defendant should be compensated for the consequence of
such a wrongly issued order.
23. An undertaking in respect of damages is required for interim orders obtained ex parte
as well as those obtained inter partes. In the case of an ex parte order, the plaintiff is
required to make full and frank disclosures of factors which might mitigate against the
granting of the order. If the plaintiff is later shown to have withheld material facts from the
court when applying for the order ex parte, the ex parte order may be discharged for that
reason alone whatever other merits it might have. In such a situation, too, the applicant
will have to make good his undertaking to pay damages.
24. Singapore's court practice in relation to interim orders of protection follows that of
England and other common law countries.
H. Spain
25. The Civil Procedure Act (Act 1/2000, 7 January) expressly provides that any person who is
party to arbitral proceedings abroad may appeal for interim measures of protection from
a Spanish court. Under article 733 of the Act, the party may request interim measures of
protection inaudita parte (ex parte) in cases of urgency or where the hearing may result in
successful referral to arbitration of the interim measure. Security must be provided in the
case of both inter partes and ex parte interim measures. Once an interim measure is
adopted and security provided, execution ensues automatically.
P 304
P 305
26. Inter partes interim measures: Under article 745 of the Act, in the event of acquittal, or
if the case is withdrawn or discontinued, “all the interim measures adopted shall be
withdrawn automatically” and, on application by the defendant, any “damages that the
defendant may have suffered” shall be determined. (1)
In the event of discharge or acquittal, all interim measures adopted shall automatically be
withdrawn and the provisions of article 742 concerning the damages that the defendant
may have suffered shall be implemented. The same procedure shall be adopted in the
event of withdrawal or abandonment of the case.
27. Inaudita parte (ex parte) interim measures: Under article 739 of the Act, the court is
obliged to inform the other party of the court order in which the measure was adopted, in
order to enable him to lodge objections. The deadline for objections is 20 days following
notification of the court order. The other party is provided with a copy of the document in
order that it may also formulate its submission.
Under article 741 of the Act, the court may, following the hearing:
(a) Maintain the interim measure. In such case, “the costs of objection shall be borne by

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 the objecting party”;
(b) Withdraw the interim measure. In such case, “the costs and damages resulting from
the interim measure shall be borne by the petitioner”. (2)
I. Switzerland
28. Article 364 of the New Act on Civil Procedure, on provisional measures, security and
damages, provides that:
“1. Unless the parties agree otherwise, the arbitral tribunal or the court may,
on application by a party, order interim measures, for the purpose, among
others, of preserving evidence.
2. Where the person targeted by the measures does not submit to them
voluntarily, the arbitral tribunal or a party, by agreement with the
tribunal, may apply to the court for the necessary order. The court shall
apply its own law.
3. The arbitral tribunal or the court may make the required interim measures
conditional on the provision of appropriate security, where such measures
may cause damage to the other party.
4. The petitioner is responsible for damage caused to the other party by
unjustified interim measures. If he can prove that the petition was made
in good faith, the tribunal may reduce or refuse to award damages. Claims
may be raised during arbitral proceedings that are pending.
P 305
P 306
5. Security shall be released once it is established that no action for
damages will be brought; in case of uncertainty, the arbitral tribunal shall
grant the interested party further time to take action.”
29. With few exceptions, federal and state courts in the United States hold a party liable
for damages suffered by another party due to a wrongfully issued interim measure of
protection. Federal and state law generally require that a party requesting a preliminary
injunction or temporary restraining order provide a security bond, which is then available
to indemnify the affected party for all costs and pecuniary injury resulting if the measure
turns out to have been wrongfully granted.
30. Rule 65 of the Federal Rules of Civil Procedure establishes the general procedures for
preliminary injunctions, permanent injunctions and temporary restraining orders under
federal law, including provisions to guard against abuse of the injunction remedy.
Specifically, 65(c) provides that parties requesting the imposition of a provisional remedy
tender a security bond to the court:
“No restraining order or preliminary injunction shall be issued except upon the
giving of security by the applicant, in such sum as the court deems proper, for
the payment of such costs and damages as may be incurred or suffered by any
party who is found to have been wrongfully enjoined or restrained.”
31. The requirement of a security bond is strictly enforced. Courts agree that the purpose of
the security bond is to guarantee the payment of costs and damages a party incurs, where
it is subsequently found the party was wrongfully enjoined or restrained. In Blumenthal v
Merrill Lynch, 910 F.2d 1049, 1055–1056 (2d Cir.1990) the United States Court of Appeals for
the Second Circuit held that former employees, vindicated on a central issue in an
arbitration dispute, were entitled to damages for losses proximately caused by the
imposition of a preliminary injunction. The Seventh, Ninth, and Eleventh Circuits have all
come to the same conclusion under similar circumstances.
32. A party has been wrongfully enjoined or restrained within the meaning of Rule 65(c)
when he had the right to do what he was enjoined from doing. Nintendo of America v. Lewis
Galoob Toys, Inc., 16 F.3d 1032, 1036. See also, Blumenthal, 910 F.2d at 1054 (“The focus of
the ‘wrongfulness’ inquiry is whether, in hindsight in light of the ultimate decision on the
merits after a full hearing, the injunction should not have been issued in the first
instance.”). In some circumstances, even a party that has not entirely won on the merits
and has been ordered to pay some damages may nonetheless also be awarded damages
for a wrongfully issued interim order (Id. at 1056).
33. Rule 65(c) mandates the issuance of security bonds, and a district court may dispense
with this requirement only in very limited circumstances. Failure even to consider the issue
of a security bond has been found to be reversible error. The 3d Circuit in Hoxworth v
P 306 Blinder, Robinson & Co, 903 F.2d 186, 209–211 (3d Cir.1990), for example, held that a court's
P 307 failure to require plaintiffs in a civil-RICO action to post a bond constituted reversible
error. The 4th Circuit, in District 17,U.M.W.A V. A & M Trucking, 991 F.2d 108, 110 (4th Cir.1993)
and the 5th Circuit in Philips v Chas. Schreiner Bank, 894 F.2d 127, 131 (5th Cir.1990) also
came to the same conclusion.
34. Where a party lacks the resources to pay a bond and a bond requirement may
discourage that party from enforcing important federal laws and rights (such as in
employment discrimination claims), or might affect the party's ability to exercise the right
to judicial review, a court may dispense with the bond requirement. Crowley v Local No. 82,

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 679 F.2d 978,1000 (1st Cir. 1982). Where litigation is in the public interest and the movant
lacks the resources to provide the bond, Pharmaceutical Society v New York Dep't of Soc.
Servs., 50 F.3d 1168, 1174–1175 (2d. Cir. 1995), a court may also dispense with the
requirement. Where there is no risk of monetary losses to the defendant, or where the
movant possesses the financial resources to pay whatever damages, Continental Oil Co. v
Frontier Ref. Co., 338 F.2d 780, 782–783 (10th Cir. 1964), courts have also dispensed with the
security bond requirement.
35. The amount of the security bond is left to the court's discretion. (Alexandria v Primerica
Holdings Inc, 811 F.Supp. 1025, 1038 (D.N.J. 1993), See also, Gateway E. Ry. v. Terminal R.R.
Ass'n, 35 F.3d 1134, 1141–1142 (7th Cir. 1994)).
II. Work of international organizations
A. International Law Association Principles
36. At its sixty-seventh Conference in 1996, the International Law Association (ILA) adopted
the “Principles of Provisional and Protective Measures in International Litigation” (3) (the
“ILA Principles”), which were drafted with the international litigation process in mind, as
opposed to interim measures granted by a court in support of an international arbitration
(the Principles were reproduced verbatim in paragraph 108 of [the January 2000 Secretariat
Note,] A/CN.9/WG.II/WP.108). The provision relating to liability and its related commentary
provides as follows:
Provision:
“The court should have authority to require security or other conditions from the
plaintiff for the injury to the defendant or to third parties which may result from
the granting of the order. In determining whether to order security, the Court
should consider the availability of the plaintiff to respond to a claim for
damages for such injury.”
Comments:
As a safeguard for the respondent, the court may need to have the authority to
require security or other conditions (such as an undertaking by the applicant to
indemnify the respondent if the measure proves to be unjustified) from the
applicant for the potential injury to the respondent or to third parties which
may result from the granting of the order, such as where the order is unjustified
P 307 or too broad. If an undertaking as to damages might prove insufficient and the
P 308 court considers ordering security, an additional consideration might relate
to the ability of the applicant to respond to a claim for damages for such injury
([January 2002 Secretariat Note,] A/CN.9/WG.II/WP.119, para. 58 [reprinted in the
section on Art. 17 J, p. 560 infra]).
B. American Law Institute/Unidroit: Draft Principles and Rules of Transnational Civil
Procedure
37. The Draft Principles and Rules of Transnational Civil Procedure is a joint project to set
up procedural rules that a country could adopt for adjudication of disputes arising from
international transactions. The April 2003 revision of the draft Principles contains the
following principles and comments relating to indemnification.
Provision:
“8.3 An applicant for provisional relief should be liable for full indemnification
of a person against whom the relief is issued if, upon subsequent
reconsideration with participation of other parties, the court determines that
the relief should not have been granted. The court may require the applicant for
provisional relief to post a bond or formally to assume a duty of
indemnification.”
Comments:
“P-8F Principle 8.3 authorizes the court to require a bond or other
indemnification, as protection against the disturbance and injury that may
result from an injunction. The particulars of such indemnification should be
determined by the law of the forum. An obligation to indemnify should be
express, not merely by implication, and could be formalized through a bond
underwritten by a third party.”
29 JANUARY 2004 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.128 (29 JANUARY
2004)
Introduction
[.…]
3. To facilitate the resumption of discussions, this note sets out a newly revised version of
article 17 of the UNCITRAL Model Law (“the revised draft”), taking account of discussions
and decisions made at the thirty-ninth session of the Working Group [December 2003
Working Group Report, A/CN.9/545)].
P 308

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 P 308
P 309
Newly revised draft of article 17 of the UNCITRAL Model Law on International Commercial
Arbitration regarding the power of an arbitral tribunal to grant interim measures of
protection
(1) [Art. 17(1) in the final text] Unless otherwise agreed by the parties, the arbitral tribunal
may, at the request of a party, grant interim measures of protection.
(2) [Art. 17(2) in the final text] An interim measure of protection is any temporary measure,
whether in the form of an award or in another form, by which, at any time prior to the
issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a
party to:
(a) Maintain or restore the status quo pending determination of the dispute;
(b) Take action that would prevent, or refrain from taking action that is likely to cause,
current or imminent harm;
(c) Provide a [preliminary] means of [securing] [preserving] assets out of which a
subsequent award may be satisfied; or
(d) Preserve evidence that may be relevant and material to the resolution of the dispute.
(3) [Art. 17 A in the final text] The party requesting the interim measure of protection shall
satisfy the arbitral tribunal that:
(a) [Irreparable harm] is likely to result if the measure is not ordered, and such harm
substantially outweighs the harm that is likely to result to the party against whom the
measure is directed if the measure is granted; and
(b) There is a reasonable possibility that the requesting party will succeed on the merits,
provided that any determination on this possibility shall not affect the discretion of
the arbitral tribunal in making any subsequent determination.
(4) [Art. 17 E(1) in the final text] The arbitral tribunal may require the requesting party and
any other party to provide appropriate security as a condition to granting an interim
measure of protection.
(5) [Art. 17 F(1) in the final text] The requesting party shall inform the arbitral tribunal
promptly of any material change in the circumstances on the basis of which the party
made the request for, or the arbitral tribunal granted, the interim measure of protection.
All statements, documents or other information supplied to the arbitral tribunal by one
party shall be communicated to the other party.
(6) [Art. 17 D in the final text] The arbitral tribunal may modify, suspend or terminate an
interim measure of protection [it has granted], at any time, upon application of any party
or, in exceptional circumstances, on the tribunal's own initiative, upon prior notice to the
parties.
[(6 bis) [Art. 17 G in the final text] The requesting party shall be liable for any costs and
damages caused by the interim measure of protection to the party against whom it is
P 309 directed from the date the measure has been granted and for as long as it is in effect [to
P 310 the extent appropriate, taking into account all of the circumstances of the case, in light
of the final disposition of the claims on the merits]. The arbitral tribunal may order an
immediate award of damages.]
(7)
(a) [Art. 17 B in the final text] [Unless otherwise agreed by the parties] [If expressly agreed
by the parties], the arbitral tribunal may [in exceptional circumstances,] grant an
interim measure of protection, without notice to the party against whom the measure
is directed, [when] [if the requesting party shows that]:
(i) There is an urgent need for the measure;
(ii) [The conditions set out in paragraph (3) are met]; and
(iii) The requesting party [shows] [satisfies the arbitral tribunal] that it is necessary
to proceed in that manner in order to ensure that the purpose of the measure is
not frustrated before it is granted;
(b) [Art. 17 G in the final text] The requesting party shall be liable for any costs and
damages caused by the interim measure of protection to the party against whom it is
directed from the date the measure has been granted and for as long as it is in effect
[to the extent appropriate, taking into account all of the circumstances of the case, in
light of the final disposition of the claims on the merits]. The arbitral tribunal may
order an immediate award of damages;
(c) [Art. 17 E(2) in the final text] The arbitral tribunal shall require the requesting party
and any other party to provide appropriate security as a condition to granting an
interim measure of protection;
(d)
Variant
1: The arbitral tribunal shall have jurisdiction, inter alia, to determine all issues
arising out of or relating to subparagraph (b) [and (c)] above, [at any time during

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 the arbitration proceedings];
Variant
2: A party may, at any time during the arbitration proceedings, bring a claim
under subparagraph (b);
(e) [Art. 17 C in the final text]
Variant
A: The party against whom the interim measure of protection is directed shall be
given immediate notice of the measure and an opportunity to present its case
before the arbitral tribunal at the earliest possible time and in any event no
later than [forty-eight] hours after that notice, or on such other date and time as
is appropriate in the circumstances;
Variant
B: Any party affected by the interim measure of protection granted under this
paragraph shall be given immediate notice of the measure and an opportunity
to present its case before the arbitral tribunal within [forty-eight] hours of the
notice, or on such other date and time as is appropriate in the circumstances.
(f) [Art. 17 C in the final text] Any interim measure of protection ordered under this
paragraph shall expire after twenty days from the date on which the arbitral tribunal
orders the measure, unless that measure has been confirmed, extended or modified
by the arbitral tribunal [, upon application by the requesting party and] after the
P 310 party against whom the measure is directed has been given notice and an
P 311 opportunity to present its case. All statements, documents or other information
supplied to the arbitral tribunal by one party shall be communicated to the other
party;
(g) [Art. 17 F(2) in the final text] A party requesting an interim measure of protection under
this paragraph shall [inform the arbitral tribunal of] [place before the arbitral
tribunal information relating to] all circumstances that the arbitral tribunal is likely
to find relevant and material to its determination [whether the requirements of this
paragraph have been met] [whether the arbitral tribunal should grant the measure].
Notes on the revised draft
Paragraph (1)
4. The Working Group adopted paragraph (1) without modification ([December 2003 Working
Group Report,] A/CN.9/545, para. 20).
Paragraph (2)
Exhaustive nature of the list of provisional measures
5. The Working Group agreed that, to the extent that the revised list of circumstances in
paragraph (2) generically covered all the purposes for which interim measures could be
ordered, it was not necessary to make the list nonexhaustive by providing a subparagraph
to leave open the possibility that an arbitral tribunal might order an interim measure in
exceptional circumstances ([December 2003 Working Group Report,] A/CN.9/545, para. 21).
Chapeau
6. The chapeau of paragraph (2) is reproduced without modification from the previous
draft.
Subparagraphs (a) and (b)—“[in order to ensure or facilitate the effectiveness of a subsequent
award]”
7. The Working Group decided to delete the bracketed text “[in order to ensure or facilitate
the effectiveness of a subsequent award]” because it could be misinterpreted as imposing
an additional condition to be met before an interim measure could be granted ([December
2003 Working Group Report,] A/CN.9/545, para. 22).
Subparagraph (a)—“maintain or restore the status quo”
8. It was agreed to retain subparagraph (a), which set out the concept of maintaining the
status quo, since that concept was well established and understood in many legal systems
as one purpose of an interim measure ([December 2003 Working Group Report,] A/CN.9/545,
para. 23).
Subparagraph (b)—“is likely to cause”
9. The words “is likely to cause” have replaced the words “would cause” to reflect the
P 311 decision of the Working Group that account be taken of the fact that, at the time an interim
P 312 measure is sought, there is often insufficient facts to provide proof that, unless a
particular action was taken or refrained from being taken, harm would inevitably result. A
number of delegations expressed concern that this formulation might make the threshold
for obtaining an interim measure too low and result in excessive discretion being granted
to the arbitral tribunal with respect to the issuance of an interim measure ([December 2003
Working Group Report,] A/CN.9/545, para. 25).
Subparagraph (c)—“[preserving] [securing] assets”
10. The Working Group took note that the drafting group, to be established at a later stage

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 by the Secretariat to ensure consistency between the linguistic versions, should consider
using wording along the lines of “preserving assets”, instead of “securing assets”, to
indicate that what is intended to be covered is the preservation of assets and that this
should not be interpreted as requiring a legal guarantee or security in all cases ([December
2003 Working Group Report,] A/CN.9/545, para. 26).
Subparagraph (c)—“preliminary”
11. The Working Group may wish to further consider whether to maintain or delete the word
“preliminary”, which was viewed as potentially misleading by some delegations at the
thirty-ninth session of the Working Group ([December 2003 Working Group Report,]
A/CN.9/545, para. 26).
Subparagraph (d)—preserving evidence
12. Notwithstanding the view that subparagraph (d) was superfluous in some legal systems,
the Working Group agreed to retain subparagraph (d) on the basis that the presentation of
evidence was not necessarily adequately dealt with by all domestic rules of civil
procedure ([December 2003 Working Group Report,] A/CN.9/545, para. 27).
Paragraph (3)
Chapeau
13. The inclusion of the phrase “The party requesting the interim measure of protection
shall satisfy the arbitral tribunal that” reflects the Working Group's decision to provide a
neutral formulation of the standard of proof, while establishing clearly that the burden of
proof lies on the requesting party ([December 2003 Working Group Report,] A/CN.9/545,
para. 28).
Subparagraph (a)—“[irreparable harm]”
14. The Working Group may wish to further discuss the term “irreparable harm”, which was
considered as too narrow in the commercial context where most harm may be cured by
monetary compensation, whereas others pointed out that the notion of “irreparable harm”
is well known in many legal systems and constitutes an ordinary prerequisite for ordering
an interim measure ([December 2003 Working Group Report,] A/CN.9/545, para. 29).
P 312
P 313
Subparagraph (a)—“is likely to result”
15. For the same reasons as explained above in paragraph 9, the words “will result” have
been replaced by the words “is likely to result” ([December 2003 Working Group Report,]
A/CN.9/545, para. 30).
Subparagraph (a)—“the party against whom the measure is directed”
16. The wording of this paragraph has been modified to ensure consistency with the
decision made by the Working Group that the phrase “the party against whom the measure
is directed”, should be retained instead of the phrase “the party affected by the measure”
([December 2003 Working Group Report,] A/CN.9/545, para. 54). For the sake of consistency,
this modification has been applied to paragraph 7, subparagraphs (a), (b) and Variant A of
subparagraph (e) of the revised draft (see paras. 35, 44 and 49, below).
Subparagraph (b)
17. The Working Group adopted subparagraph (b) without modification ([December 2003
Working Group Report,] A/CN.9/545, paras. 31 and 32).
Paragraph (4)
18. The drafting of paragraph (4) reflects the decision of the Working Group that the
wording in square brackets “[Subject to paragraph (7)(b)(ii),] [except where the provision of
a security is mandatory under paragraph (7)(b)(ii),]” should be deleted, as the remainder of
paragraph (4) makes it clear that the arbitral tribunal retains the right, in all
circumstances, to require the provision of security as a condition to granting an interim
measure of protection ([December 2003 Working Group Report,] A/CN.9/545, paras. 33 and
34).
Paragraph (5) (paragraph 6 of the previous draft)
Placement of paragraphs 5 and 6
19. The revised draft reflects the decision of the Working Group that placing paragraph (6)
before paragraph (5) would appropriately emphasize the obligation of the parties to
inform the arbitral tribunal of any change in the circumstances on the basis of which the
interim measure had been granted ([December 2003 Working Group Report,] A/CN.9/545,
paras. 39 and 44).
Communication of information to both parties
20. The second sentence of paragraph 5 mirrors the first sentence of article 24 (3) of the
UNCITRAL Model Law, in order to address the decision of the Working Group that all
information supplied to the arbitral tribunal by one party pursuant to that paragraph
should also be communicated to the other party ([December 2003 Working Group Report,]

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 A/CN.9/545, para. 45).
“from the time of the request onward”
21. As decided by the Working Group, the words “from the time of the request onward” in
P 313 the previous draft have been deleted given that the point in time at which the duty to
P 314 inform arises is evident from the remainder of the paragraph, particularly from the
words “on the basis of which the party sought the interim measure of protection”
([December 2003 Working Group Report,] A/CN.9/545, para. 46).
“sought”
22. To clarify the duty to inform, the word “sought” has been replaced by “made the request
for” ([December 2003 Working Group Report,] A/CN.9/545, para. 46).
Paragraph (6) (paragraph (5) of the previous draft)
Placement of paragraph (6)
23. For the reasons expressed in the context of the discussion of paragraph (5) of the
revised draft, (see above, para. 19), the Working Group decided that paragraph (6) would
be renumbered paragraph (5), and paragraph (5) be renumbered paragraph (6) ([December
2003 Working Group Report,] A/CN.9/545, paras. 39 and 44).
“modify or terminate”
24. For the sake of completeness and for better consistency between draft articles 17 and
17 bis, the words “modify or terminate” have been amended to read “modify, suspend or
terminate” ([December 2003 Working Group Report,] A/CN.9/545, para. 35).
“[in light of additional information or a change of circumstances]”
25. The Working Group agreed to delete the words “[in light of additional information or a
change of circumstances]” as contained in the previous draft, in view of the fact that
arbitrators would generally explain in the text of their decision the reasoning they
followed when deciding to grant an interim measure, and also that the words might be
misread as unduly restricting the discretion of arbitrators when making the decision to
grant an interim measure ([December 2003 Working Group Report,] A/CN.9/545, para. 36).
Modification of an interim measure of protection on the initiative of the arbitral tribunal
26. After discussion on whether the arbitral tribunal could modify or terminate on its own
motion an interim measure of protection and, in the affirmative, on the conditions to be
fulfilled ([December 2003 Working Group Report,] A/CN.9/545, paras. 37–40), the Working
Group agreed to amend the wording of paragraph 6, as reflected in the revised draft.
27. The Working Group may wish to consider whether the revised draft, which includes the
words in brackets “it has granted” reflects its decision that the arbitral tribunal could only
modify or terminate the interim measures issued by that arbitral tribunal, irrespective of
whether it acted at the request of a party or on its own initiative ([December 2003 Working
Group Report,] A/CN.9/545, para. 41).
P 314
P 315
Paragraph (6 bis)
General provision on liability
28. Concern was expressed that, in contrast to paragraph (7)(b), no liability provision was
included in the context of inter partes interim measures of protection, that were
subsequently shown to have been unjustified ([December 2003 Working Group Report,]
A/CN.9/545, paras. 48, 60 and 61). In support of establishing such a general liability
provision, it was stated that, in either case, the measure could ultimately be found to have
been unjustified to the detriment of the responding party. However, some opposition was
expressed to the suggestion that paragraph (7)(b) should apply generally to both ex parte
and inter partes measures, as the strict liability imposed under paragraph (7)(b) was
appropriate given the nature of an ex parte measure, due to the risks inherent in such
procedure. It was also said that misrepresentation or fault in relation to the inter partes
regime could be dealt with by procedural national laws.
29. Paragraph (6 bis) of the revised draft reflects the decision of the Working Group that a
new paragraph, mirroring the text of paragraph (7)(b) in the context of inter partes
measures should be included in the revised draft for further consideration ([December 2003
Working Group Report,] A/CN.9/545, para. 60). Paragraph (6 bis) also includes the following
modifications as agreed by the Working Group in respect of the corresponding provision for
ex parte interim measures (see comments in respect of paragraph (7)(b) of the revised
draft, paragraph 43, below and [December 2003 Working Group Report,] A/CN.9/545, para.
66):
– the party against whom the measure is directed has a right to claim for compensation
immediately after the interim measure has been granted by the arbitral tribunal and
to obtain immediate awarding of damages; and
– damages for the interim measure are available only for the time period starting when
the interim measure is granted and ending when the measure ceases to be in effect.

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 It should be noted that, as currently drafted, paragraph (6 bis) does not provide a solution
for a possible discrepancy between the time when the measure is granted and the time
when the measure enters into effect. The Working Group may wish to give further
consideration to that issue.
30. When discussing paragraph (6 bis), the Working Group may wish to bear in mind other
concerns that were raised at its previous session concerning the fact that the reference to
damages and the circumstances when damages might be payable was not sufficiently
defined as it could cover both direct and indirect or consequential damages caused by the
measure, or be granted depending on whether the measure was found to be justified or
unjustified. Diverging views were expressed as to whether a wider definition of damages
(which would provide appropriate safeguards) or a more limited one (restricting the scope
P 315 of the rule to direct damages) should be retained ([December 2003 Working Group Report,]
P 316 A/CN.9/545, para. 64) and as to whether the requesting party should be liable only if the
measure was ultimately found to have been unjustified. Questions were raised as to the
meaning to be attributed to the word “unjustified” and whether the notion of an
“unjustified” measure should be considered per se, or in the light of the results on the
merits. It was strongly felt that the final decision on the merits should not be an essential
element in determining whether the interim measure was justified or not ([December 2003
Working Group Report,] A/CN.9/545, para. 65). It was said that the phrase “to the extent
appropriate” should be maintained, to show that the measure is legitimate. Other views
were expressed stating that the bracketed text was not necessary, as it did not provide any
new element. The Working Group may wish to further discuss these issues ([December 2003
Working Group Report,] A/CN.9/545, para. 68).
31. In preparation for the continuation of the deliberations of the Working Group on this
topic, it was agreed that additional research on the liability regimes in the context of
national laws on interim measures of protection was needed. Delegations were invited to
provide information on the liability regimes contained in national laws relating to interim
measures of protection. The information provided by delegations is contained in [the 27
January 2004 Secretariat Note,] A/CN.9/WG.II/WP.127.
Paragraph (7)
Subparagraph (a)
“[Unless otherwise agreed by the parties] [If expressly agreed by the parties]”
32. The wording in square brackets “[Unless otherwise agreed by the parties] [If expressly
agreed by the parties]” reflects the discussion of the Working Group on whether ex parte
interim measures should be available by default or only when the parties have expressly
agreed to opt into the legal regime created by paragraph (7). Some support was expressed
for both options and the Working Group may wish to take a decision on that matter
([December 2003 Working Group Report,] A/CN.9/545, para. 52).
“in exceptional circumstances”
33. The Working Group did not reach consensus on whether the words “in exceptional
circumstances” should be retained ([December 2003 Working Group Report,] A/CN.9/545,
para. 53) and the Working Group may wish to continue its discussion on this matter.
34. The following views were expressed ([December 2003 Working Group Report,]
A/CN.9/545, para. 53):
– one view was that these words were redundant given that the circumstances listed in
subparagraphs (a)(i) to (iii) only referred to exceptional circumstances;
– another view was that it was necessary to clarify that the words “in exceptional
circumstances” referred to those circumstances listed in subparagraphs (a)(i) to (iii)
only;
P 316
P 317
– a contrary view was that the words should be retained to underscore that the ex parte
measure should only be granted in truly exceptional circumstances. In support of
that view, it was said that the circumstances listed in subparagraph (a) were not
necessarily exceptional circumstances.
“[against whom the measure is directed] [affected by the measure]”
35. The Working Group agreed that the words “against whom the measure is directed” were
preferable to the words “affected by the measure”, as the latter phrase was ambiguous in
view of the multiplicity of parties potentially “affected” by an interim measure ([December
2003 Working Group Report,] A/CN.9/545, para. 54). This modification has been applied to
paragraphs (3)(a), (7)(b) and Variant A of paragraph (7)(e) of the revised draft (see para. 16,
above, and paras. 44 and 49, below).
“[when] [if the requesting party shows that]”
36. This bracketed wording reflects the suggestion that the phrase “the requesting party
shows”, or any other phrase as may be agreed in the context of subparagraph (a)(iii) (see
below, para. 40), be transposed to the chapeau of paragraph (7)(a) to make it clear that it
applies to all the elements of paragraph (7)(a) and not only to subparagraph (a)(iii)
([December 2003 Working Group Report,] A/CN.9/545, para. 58). If this suggestion is adopted

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 by the Working Group, the wording in subparagraph (a)(iii) will need to be adjusted
accordingly.
Subparagraph (a)(i)
37. The Working Group found the substance of subparagraph (a)(i) to be generally
acceptable ([December 2003 Working Group Report,] A/CN.9/545, para. 55).
Subparagraph (a)(ii)
38. The drafting reflects the decision of the Working Group to replace the word
“circumstances” with the word “conditions” to better reflect the nature of the list contained
in paragraph (3) ([December 2003 Working Group Report,] A/CN.9/545, para. 56).
39. The Working Group made no final decision on whether to retain subparagraph (a)(ii). A
view was expressed that subparagraph (a)(ii), which only referred to “the circumstances set
out in paragraph (3)”, could be misinterpreted as excluding the application of paragraphs
(5) and (6) to ex parte interim measures. It was recalled that subparagraph (a)(ii) had been
included for the avoidance of any doubt that all the prerequisites applying to the granting
of an inter partes interim measure should also apply to an interim measure that was
ordered ex parte. It was said that, if re-emphasizing that point cast doubt on whether or
not the other paragraphs applied, then paragraph (a)(ii) should be deleted ([December
2003 Working Group Report,] A/CN.9/545, para. 56). The Working Group may wish to further
consider this issue.
P 317
P 318
Subparagraph (a)(iii)
40. The Working Group made no final decision on whether the words “the requesting party
shows” should be harmonized with the amended text agreed to in the chapeau of
paragraph (3), which provides that “the requesting party satisfies the arbitral tribunal” (see
above, para. 13). Some opposition was expressed to that proposal on the basis that a
higher standard of proof should be required in respect of ex parte interim measures
([December 2003 Working Group Report,] A/CN.9/545, para. 57). The Working Group may wish
to further discuss this matter.
41. However, the Working Group took note of a suggestion that the phrase “the requesting
party shows” should be transposed to the chapeau of paragraph 7(a) to make it clear that it
applies to all the elements of paragraph 7(a) and not only to subparagraph (a)(iii)
([December 2003 Working Group Report,] A/CN.9/545, para. 58). The revised draft takes
account of that suggestion.
Subparagraph (b) (subparagraph (b)(i) of the previous draft)
42. The current drafting reflects the suggestion that the provisions contained in
subparagraphs (b)(i) and (ii) of the previous draft should not be grouped together in one
paragraph since those subparagraphs deal with different issues, respectively liability and
security ([December 2003 Working Group Report,] A/CN.9/545, para. 62).
Specific liability provision for ex parte interim measures
43. As mentioned above under paragraphs 28 to 31, the Working Group agreed that it would
continue its deliberations on the issue of the liability regime having regard to the liability
provision to be discussed in the context of inter partes measures ([December 2003 Working
Group Report,] A/CN.9/545, para. 60). If a general liability regime is included, the Working
Group will need to consider whether an additional specific liability provision that applies
in respect of ex parte interim measures is required.
“[against whom it is directed] [affected by the measure]”
44. Support was expressed for the retention of the first bracketed text for the sake of
consistency with the words used in subparagraphs 3(a), 7(a) and Variant A of subparagraph
7(e) ([December 2003 Working Group Report,] A/CN.9/545, para. 67) (see paras 16 and 35,
above, and para. 49, below).
Subparagraph (c) (subparagraph (b)(ii) of the previous draft)
45. The drafting of this subparagraph reflects the decision of the Working Group that, as a
matter of consistency, it should be aligned with the wording used in paragraph (4) relating
to the provision of security in the context of inter partes interim measures, except for the
word “may” which could be replaced by the word “shall” ([December 2003 Working Group
Report,] A/CN.9/545, para. 69).
P 318 46. The revised draft reflects the decision of the Working Group that in order to enhance
P 319 the safeguards necessary in the context of ex parte interim measures, subparagraph (c)
be a mandatory condition to the granting [sic] an ex parte interim measure ([December
2003 Working Group Report,] A/CN.9/545, para. 70).
Subparagraph (d) (subparagraph (c) of the previous draft)
47. Subparagraph (d) of the revised draft contains two variants. Variant 1 is, with some
modification, based on the text contained in subparagraph (c) of the previous draft. As
decided by the Working Group, the words “For the avoidance of doubt”, have been deleted
([December 2003 Working Group Report,] A/CN.9/545, para. 73).

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 48. Variant 2 of subparagraph (d) gives effect to a suggestion made at the previous session
of the Working Group that, since there is no doubt that the arbitral tribunal has jurisdiction
on the issue of security under paragraph (7)(c), the scope of subparagraph (d) should be
restricted to paragraph (7)(b) ([December 2003 Working Group Report,] A/CN.9/545, para.
72). The Working Group agreed to further discuss whether paragraph (7)(d) should apply to
both subparagraphs (b) and (c) or only to paragraph (b), and to further consider a proposal
to make it clear that the jurisdiction of the arbitral tribunal only applies until the award is
made ([December 2003 Working Group Report,] A/CN.9/545, para. 72).
Subparagraph (e) (subparagraph (d) of the previous draft)
49. It is recalled that, after discussion, the Working Group decided that its deliberations in
respect of this subparagraph should be continued at its next session on the basis of the
two variants reproduced in the revised draft ([December 2003 Working Group Report,]
A/CN.9/545, paras. 75–79 and 81). It is recalled that whilst support was expressed for
Variant A of subparagraph (e) as it provided flexibility and some discretion for the tribunal
in respect of when the responding party should be heard, concern was expressed that the
proposal did not make sufficiently clear the point of time at which notice should be given.
Should Variant B of subparagraph (e) be retained, the Working Group may wish to confirm
whether the words “the party against whom it is directed” should also be retained
([December 2003 Working Group Report,] A/CN.9/545, para. 74) or whether, in the context of
paragraph (e), the words “any party affected by the interim measure of protection” are
preferred.
50. Some reservations were expressed as to the inclusion of a time period of forty-eight
hours or any other specific time period, which might prove too rigid and inadequate,
depending on the circumstances. It was also pointed out that introducing wording to allow
the tribunal to consider another time and date as was appropriate in the circumstances
might provide flexibility but might also make it illogical to maintain a reference to a fixed
period of time within that same provision. A widely shared view, however, was that the
inclusion of a specific time period served two purposes; first to underscore that the
opportunity to be heard was urgent and also to put the arbitral tribunal on notice that it
should be ready to reconvene to allow an opportunity for the responding party to be heard
([December 2003 Working Group Report,] A/CN.9/545, para. 79).
P 319
P 320
51. The Working Group agreed that the words “opportunity to be heard” should be replaced
by “opportunity to present its case”, in order to encompass both a hearing of the
responding party and a written submission from that party ([December 2003 Working Group
Report,] A/CN.9/545, para. 80).
52. The drafting of subparagraph (e) will need to be revisited when the Working Group
examines the question whether enforcement of an ex parte interim measure should be
permitted ([December 2003 Working Group Report,] A/CN.9/545, para. 82).
Subparagraph (f) (subparagraph (e) of the previous draft)
53. The revised draft reflects the decision of the Working Group to simplify this
subparagraph ([December 2003 Working Group Report,] A/CN.9/545, paras. 83 and 84) and
to include a requirement that the material on which the application was based should be
provided to the responding party [December 2003 Working Group Report,] (A/CN.9/545,
para. 86).
54. The Working Group may wish to further consider whether the party benefiting from the
measure should bear the burden of seeking its maintenance beyond twenty days
([December 2003 Working Group Report,] A/CN.9/545, para. 87), as provided for in the
bracketed text in the revised draft.
Subparagraph (g) (subparagraph (f) of the previous draft)
55. The draft paragraph has been revised, taking account of the following proposals:
([December 2003 Working Group Report,] A/CN.9/545, paras. 91 and 92):
– One proposal was to replace the phrase “shall have an obligation to inform” by “shall
promptly inform”. However, it was said that the word “promptly” was more
appropriate in the context of a continuous obligation to inform of any change in
circumstances. A view was also expressed that the requirement to “inform the arbitral
tribunal” might be too narrow and that wording along the lines of “place before the
tribunal” might be preferable.
– The paragraph was proposed to be redrafted along the following lines: “A party
requesting an interim measure of protection under this paragraph shall [promptly
inform] the arbitral tribunal of all circumstances relevant and material to the arbitral
tribunal's determination whether the requirements of this paragraph have been met”.
With a view to clarifying that the arbitral tribunal retained the discretion whether or
not to order an interim measure of protection, it was suggested that the reference to
“whether the requirements of this paragraph have been met”, could be replaced by
“whether the arbitral tribunal should make the order requested”. If this second
alternative is preferred by the Working Group, the Working Group may wish to
consider replacing the words “make the order requested” with the words “grant the

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 interim measure”, for the sake of consistency with paragraph (1).
P 320 – Another view was that an effort should be made to introduce in the proposed text
P 321 some of the flexibility reflected in the original formulation of subparagraph (f).To
that effect, language referring to “circumstances that the arbitral tribunal is likely to
find relevant and material to its determination” is maintained in the revised draft.
FEBRUARY 2004 SECRETARIAT NOTE ICC PROPOSAL A/CN.9/WG.II/WP.129 (3 FEBRUARY 2004)
Proposal by the International Chamber of Commerce
Note by the Secretariat
On 2 February 2004, the Secretariat received a proposal from the Secretary-General of the
International Court of Arbitration of the International Chamber of Commerce (“the ICC”) on
revised draft articles 17 [Arts. 17 – 17 G in the final text] and 17 bis [Arts. 17 H –17 I in the final
text] of the UNCITRAL Model Law on International Commercial Arbitration relating
respectively to interim measures of protection ordered by arbitral tribunals and
recognition and enforcement of interim measures of protection. The draft articles on which
those comments are based are reproduced in [the April 2003 Secretariat Note,]
A/CN.9/WG.II/WP. 123, [the October 2003 Secretariat Note,] A/CN.9/WG.II/WP.125 [reprinted
in the sections on Arts. 17 H – 17 I and 17 J, pp. 490–99 and 572–75 infra] and [the December
2003 Working Group Report,] A/CN.9/545. The text of the proposal, including proposed
revisions to articles 17 and 17 bis, is annexed to this note in the form in which it was
received by the Secretariat.
Annex
Comments and proposal from the Secretary-General of the International Court of
Arbitration of the ICC
As you know, the ICC International Court of Arbitration very much appreciates the
opportunity to participate as an Observer in the discussions of Working Group II
(Arbitration) regarding possible modifications to Article 17 of the UNCITRAL Model Law on
International Commercial Arbitration. We understand that the Model Law is designed to
reflect a worldwide consensus on the principles and important issues of international
arbitration practice that is acceptable to States of all regions. In this regard, we hope that
our experience in having administered over 13 000 arbitrations throughout the world over
the past eighty years may be useful to delegates as they consider whether or not to modify
Article 17 and, if so, how.
The ICC Rules of Arbitration expressly allow parties to seek interim measures from both
arbitral tribunals and State courts. In our cases, we have seen arbitral tribunals grant
interim measures of protection, among other things, requiring production of documents,
ordering a party to post a bank guarantee, enjoining a party from transferring shares and
enjoining a party from calling a bank guarantee.
Of parties that sought interim measures from arbitral tribunals in ICC arbitrations, none
P 321 did so on an ex parte basis (i.e., without giving notice to the other side). We did, however,
P 322 have a case in early 2000, where a party applied to an arbitral tribunal for interim
measures on an inter partes basis (i.e., giving notice to the other side) and the arbitral
tribunal granted the interim measure without first hearing from the opposing party. This,
however, was apparently done in error, and the arbitral tribunal retracted its order upon
the protest of the opposing party and apologized for acting prematurely.
We also had a case in 2001 where a party applied to an arbitral tribunal for an interim
measure on an inter partes basis and the arbitral tribunal asked the opposing party not to
take any steps concerning the assets at issue pending the arbitral tribunal's decision. The
opposing party voluntarily complied with the arbitral tribunal's request. After receiving
submissions from the opposing party, the arbitral tribunal granted the application for
interim measures.
In light of our experience, we believe that the practice with respect to interim measures—
particularly with regards to the way those applications are handled by arbitral tribunals—
is still evolving. Indeed, we can identify no worldwide consensus with respect to the
standards and practices concerning the granting of interim measures by arbitral tribunals.
Accordingly, we believe that caution should be exercised when considering changes to
Article 17, particularly if those changes would expand the existing power of arbitral
tribunals to grant interim measures. With this in mind, we have the following comments on
the current drafts of Article 17 and Article 17bis.
We believe that certain of the proposed modifications may well aid parties and arbitrators
in the practice with respect to interim measures. Specifically, we believe that the
articulation of standards for the issuance of interim measures (see draft Article 17,
paragraph 3 [Art. 17 A in the final text]) will help parties in formulating their applications
and help arbitral tribunals in evaluating the applications they receive. Similarly, we
believe that setting forth standards governing the enforceability of interim measures (see
draft Article 17bis, paragraphs 1 [Art. 17 H] and 2 [Art. 17 I]) could aid State courts in
evaluating the effect of such measures.
Other proposed changes, however, raise concerns for us. Specifically, those proposed
modifications that would: (1) permit arbitral tribunals to issue interim measures on an ex

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 parte basis (see draft Article 17, paragraph 7 [Art. 17 B, C, E(2), F(2) and G in the final text]);
and (2) allow such measures to be enforced by State courts—also, in certain circumstances,
on an ex parte basis (see draft Article 17bis, paragraph 6).
Inclusion of such provisions in the Model Law would make the Model Law materially
different from the arbitration laws in major centers of international arbitration (e.g., Paris,
Switzerland, London and New York). Such provisions would also conflict with many well-
established arbitration rules—including the UNCITRAL Arbitration Rules. This could
undermine the Model Law's serving as an international standard reflecting a worldwide
consensus, thereby making it less useful to countries seeking to harmonize their arbitration
law with that of other jurisdictions.
P 322
P 323
Based on our experience, we have no reason to believe that parties either expect or want
their arbitral tribunals to have ex parte powers. Were the Model Law amended to provide
for them (and the amended Model Law enacted by State legislatures), knowledgeable
parties might shy away from places of arbitration in Model Law countries and unwary
parties might be caught by surprise. We believe that the Model Law will best serve to
further the growth of international arbitration if its provisions are kept consistent with
parties' reasonable expectations and common intentions.
This is especially so as the prospect of an arbitral tribunal issuing interim measures on an
ex parte basis raises due process issues. The party that is excluded from an ex parte
proceeding may never know all of what was communicated to the arbitral tribunal—
particularly if communications were oral—and may have reasonable concerns that the
arbitral tribunal has, by virtue of deciding the ex parte application, prejudged substantive
issues in the case. In this way, an arbitral tribunal's granting of ex parte interim measures
could undermine parties' confidence in the arbitral process and make arbitration a less
attractive means of resolving disputes. Moreover, in those Model Law countries where the
local judiciary is cautious about the development of arbitration, the provision of such
powers may serve only further to undermine the development of arbitration.
In light of these concerns, we would suggest eliminating those provisions of the current
draft of Article 17 and Article 17bis that grant arbitral tribunals the power to issue interim
measures on an ex parte basis and make such measures enforceable by State courts. In
their place, delegates might consider including provisions that would address the situation
where an arbitral tribunal receives an inter partes application for interim measures upon
which it believes it must act before the other side has had a full opportunity to respond. As
mentioned above, we have had two cases where this situation has arisen. Permitting
arbitral tribunals to grant preliminary measures freezing the status quo—based on
applications that are communicated to all parties and granted with notice to all parties—
could aid arbitral tribunals that receive emergency applications requiring decision before
the opposing party can present its views. As the opposing party has yet to be heard, we
would recommend that such preliminary measures not be enforceable by State courts
pursuant to Article 17bis or other similar legislation. Rather, a party that violated such a
measure could be subject to a claim for damages in the pending arbitration. Once both
sides had been given an opportunity to be heard, the arbitral tribunal could issue an
interim measure that would be enforceable in State courts pursuant to Article 17bis or
similar legislation.
The following revised texts of Article 17 and Article 17bis reflect our suggestions. In so doing,
we note that we are not suggesting that our proposed texts be incorporated into the Model
Law itself. Rather, we believe that, in light of the evolving practice and absence of
worldwide consensus in this area, any alternative formulation of Article 17 (including
Article 17bis) that might ultimately be adopted would be best included in an appendix to
the Model Law.
P 323
P 324
Lastly, we wish to note that the Chairman of the ICC International Court of Arbitration, Dr
Robert Briner, has participated in the preparation of this letter and approved its contents.
Suggested changes to article 17, paragraph 7
(a) [Art. 17 B in the final text] Unless otherwise agreed by the parties, the arbitral tribunal
may grant an interim measure of protection, without giving the party [against whom
the measure is directed] [affected by the measure] an opportunity [to oppose the
measure] [to be heard], when:
(i) There is an urgent need for the measure;
(ii) The circumstances set out in paragraph (3) are met; and
(iii) The requesting party shows that it is necessary to proceed in that manner in
order to ensure that the purpose of the measure is not frustrated before it is
granted;
(b) The requesting party shall:
(i) [Art. 17 G in the final text] Be liable for any costs and damages caused by the
measure to the party [against whom it is directed] [affected by the measure] [to
the extent appropriate, taking into account all of the circumstances of the case,

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 in light of the final disposition of the claims on the merits]; and
(ii) [Art. 17 E(2) in the final text] Provide security in such form as the arbitral tribunal
considers appropriate [, for any costs and damages referred to under
subparagraph (i),] [as a condition to granting a measure under this paragraph];
(iii) Give notice of the application for the measure to the party [against whom it is
directed] [affected by the measure] at the time such application is made.
(c) [For the avoidance of doubt,] the arbitral tribunal shall have jurisdiction, inter alia, to
determine all issues arising out of or relating to [subparagraph (b)], above;]
(d) [Art. 17 C in the final text] [The party [against whom the interim measure of protection
is directed] [affected by the measure granted] under this paragraph shall be given
notice of the measure and an opportunity to [oppose the measure and to] be heard
by the arbitral tribunal [within forty-eight hours of the notice, or on such other date
and time as is appropriate in the circumstances];]
(e) [Art. 17 C in the final text] [Any interim measure of protection ordered under this
paragraph shall be effective for no more than twenty days [from the date on which
the arbitral tribunal orders the measure] [from the date on which the measure takes
effect against the other party], which period cannot be extended. This subparagraph
shall not affect the authority of the arbitral tribunal to grant, confirm, extend, or
modify an interim measure of protection under paragraph (1) after the party [against
whom the measure is directed] [affected by the measure] has been given an
opportunity [to oppose the measure] [and be heard;]
P 324
P 325
(f) [Art. 17 F(2) in the final text] [A party requesting an interim measure of protection
under this paragraph shall have an obligation to inform the arbitral tribunal of all
circumstances that the arbitral tribunal is likely to find relevant and material to its
determination whether the requirements of this paragraph have been met;]
APRIL 2004 WORKING GROUP REPORT A/CN.9/547 (16 APRIL 2004)
IV. Draft article 17 of the UNCITRAL Model Law on International Commercial Arbitration
regarding the power of an arbitral tribunal to grant interim measures of protection
General remarks
68. […] the Working Group turned its attention to the newly revised draft of article 17 of the
Model Law regarding the power of an arbitral tribunal to grant interim measures of
protection contained in [the 29 January 2004 Secretariat Note,] A/CN.9/WG.II/WP.128] in the
following terms:
[reprinted supra.]
Paragraph (1)[Art. 17(1) in the final text]
69. The Working Group found the substance of paragraph (1) to be generally acceptable.
Paragraph (2)[Art. 17(2) in the final text]
Chapeau “whether in the form of an award or in another form”
70. It was suggested that the phrase “whether in the form of an award or in another form”
should be deleted. It was stated that, in many legal systems, an interim measure would
never take the form of an award and was most likely to be issued in the form of a
procedural order. It was also stated that the reference to an award as the only expressed
example of the form such a measure could take could create the false impression that an
award was the most appropriate form for an interim measure. It was said that the inclusion
of the term “award” in the definition of interim measure would be inappropriate to those
jurisdictions whose legislation defined an award as a decision of the arbitral tribunal on
the substance of the dispute. In addition, it was suggested that the deletion of the phrase
from subparagraph (2) (b) would not take away from the effectiveness of the provision. A
proposal was made to delete the phrase and replace it with more neutral words, such as
“irrespective of the name and form of that measure”.
71. A contrary view was that the phrase should be maintained to acknowledge the fact that
in some legal systems, in order to be recognized and enforced, an interim measure was
required to be issued in the form of an award. As well, it was said that the phrase had been
understood as being broad enough to encompass any interim measure, regardless of the
P 325 title given to it. In support of retention of the phrase, it was said that the wording used to
P 326 refer to the form of interim measures originated from the UNCITRAL Arbitration Rules
and that the language was sufficiently neutral to reflect the intention of the Working Group
not to create any preferred form in which an interim measure should be issued.
72. The Working Group recalled that these words had been the subject of discussion at its
thirty-fifth session in 2002 (see [April 2002 Working Group Report,] A/CN.9/508, paras. 65–
68) and thirty-sixth session in 2003 (see [November 2002 Working Group Report,]
A/CN.9/523, para. 36) and that they had generally been accepted. After discussion, the
Working Group decided not to modify the chapeau of paragraph (2). In the context of that
discussion, it was suggested that any explanatory material to be prepared at a later stage,
possibly in the form of a guide to enactment of draft article 17, should make it clear that
the wording adopted regarding the form in which an interim measure might be issued

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 should not be misinterpreted as taking a stand in respect of the controversial issue as to
whether or not an interim measure issued in the form of an award would qualify for
enforcement under the New York Convention.
Subparagraph (c)
[Preliminary]
73. The Working Group agreed to delete the word “preliminary” on the basis that it was
confusing and added nothing to the meaning of the provision.
[Securing] [preserving]
74. The Working Group expressed its preference for the retention of the word “preserving”
rather than “securing” because the latter term could be interpreted as a particular method
for protecting assets. It was agreed to delete the word “securing” from the text and retain
the word “preserving”.
Anti-suit injunctions
75. A question was raised whether paragraph (2) of article 17, as presently drafted, could be
interpreted as encompassing a power of an arbitral tribunal to order an anti-suit
injunction (i.e. an interim measure by which an arbitral tribunal would order a party not to
pursue court proceedings or separate arbitral proceedings). In view of the fact that article
17 (2) contained a generic exhaustive list of provisional measures (see [December 2003
Working Group Report,] A/CN.9/545, para. 21), it was suggested that the Working Group
should clarify whether it was its intention that this list should encompass the ordering of
such an anti-suit injunction.
76. As a matter of general policy, reservations were expressed against article 17 directly or
indirectly allowing the use of anti-suit injunctions. It was said that these types of
injunctions were rather uncommon in international legal practice, unknown or not familiar
to many legal systems, and, under some national laws, would be regarded as contradicting
the fundamental constitutional right of a party to apply for court action. It was also stated
that there might be a danger in proposing a specific provision to cover anti-suit injunctions
and in descending into too much detail in this provision. Notwithstanding the express aim
P 326 of the Working Group to promote harmonization in international arbitration law, there was
P 327 a risk inherent in endorsing a juridical practice that was not yet settled. It was said that
inclusion of such a provision might jeopardize the chances of it being implemented, or
indeed jeopardize the overall acceptability of the Model Law, particularly in those
countries that did not recognize anti-suit injunctions. From a different perspective, it was
pointed out that, while the issue of anti-suit injunctions might be of growing importance in
the practice of international arbitration, it deserved careful study, including possible
consideration for the preparation of a discrete set of rules by UNCITRAL, but that it should
not be dealt with in an indirect and incomplete manner in the context of a provision
dealing with interim measures of protection, which might not do justice to the issue and
lead to the mistaken conclusion that anti-suit injunctions were merely a subset of interim
measures as defined in draft article 17.
77. In favour of dealing with anti-suit injunctions under draft article 17, it was stated that
these injunctions were becoming more common and served an important purpose in
international trade. It was suggested that the fact that such injunctions were not yet
familiar to some legal systems spoke in favour of covering such injunctions in the Model
Law, with a view to promoting the modernization and harmonization of legal practices. It
was stated that, notwithstanding that, in a number of countries, the law did not recognize
these injunctions, there was evidence that arbitral tribunals sitting in such countries were
increasingly considering such injunctions. It was also stated that anti-suit injunctions were
designed to protect the arbitral process and that it was legitimate for arbitral tribunals to
seek to protect their own process. It was pointed out that the issuance of an anti-suit
injunction was not to be understood as preventing a party from making an application to
the court of the seat of the arbitration seeking a decision as to whether there was a valid
arbitration agreement. It was also pointed out that, to the extent there existed concerns
about the overall acceptability of anti-suit injunctions, other provisions of the Model Law
might offer adequate safeguards, for example in the nature of grounds for refusal of
recognition and enforcement, notably through the reference to the law governing the
powers conferred upon the court in draft article 17 bis (2) (b) (i) [Art. 17 I in the final text], or
the reference to public policy in draft article 17 bis (2) (b) (ii).
78. It was stated that, at previous sessions, the Working Group had expressed a degree of
preference for not disallowing anti-suit injunctions in draft article 17. It was suggested that,
even if no express words were included in paragraph (2) (b) regarding the power to issue
anti-suit injunctions, there would nevertheless be implicit support for the existence of such
a power, particularly where the UNCITRAL Arbitration Rules applied. It was said that
paragraph (2) (a) of draft article 17 was flexible and open-ended and was probably broad
enough to encompass anti-suit injunctions. It was said that that interpretation had been
strengthened by the fact that the requirement that the interim measure be connected to
the subject matter of the dispute (as contained in the original version of article 17 of the
Model Law) had been deleted from draft article 17 at a previous session. It was noted that
the requirement that interim measures should be linked to the subject matter of the
P 327 dispute also appeared in article 26 of the UNCITRAL Arbitration Rules and had been

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 P 327
P 328 understood in some jurisdictions as limiting the availability of anti-suit injunctions.
However, some delegations recalled that the linking of interim measures to the “subject
matter of the dispute” had nevertheless permitted the ordering of anti-suit injunctions by
arbitral tribunals under the UNCITRAL Arbitration Rules.
79. For the sake of clarity, it was suggested that paragraph (2) should expressly confer a
power on arbitral tribunals to issue anti-suit injunctions. A number of proposals were made
regarding the manner in which anti-suit injunctions should be expressly covered in draft
article 17. One proposal was to insert a provision expressly allowing an arbitral tribunal to
issue such an injunction, together with an explanatory note stating that that provision
would only apply to the extent that such injunctions were permissible under the
procedural laws of the country concerned. However, it was said that a drawback of that
proposal was that, for countries that did not adopt the express provision, paragraph (2)
could be understood as forbidding the issuance of anti-suit injunctions.
80. Another proposal was to address the issue of anti-suit injunctions by adding to
paragraph (2) (b) of draft article 17 words along the lines of “or would seriously aggravate
the dispute between the parties”. It was stated that that formulation was recognized in
certain jurisdictions and had been used in a number of international arbitrations including
arbitrations undertaken pursuant to the UNCITRAL Arbitration Rules.
81. Yet another proposal was that the words “or prejudice the arbitral process itself” could
be added to the end of paragraph (2) (b) of article 17. It was stated that that proposal
would clarify and put beyond doubt the understanding expressed by a number of
delegations that the phrase “take action that would prevent, or refrain from taking action
that is likely to cause, current or imminent harm”, in paragraph (2) (b), already covered
anti-suit injunctions.
82. The view was expressed that the debate on the question of coverage of anti-suit
injunctions had proceeded largely on the basis that such injunctions would prevent a party
from bringing an action before a court. However, in some cases, these injunctions had been
used to prevent a party from bringing an action before another arbitral tribunal. It was
suggested that the draft text should encompass both situations.
83. After discussion, the Working Group agreed to amend subparagraph (2) (b) as follows:
“Take action that would prevent, or refrain from taking action that is likely to cause,
current or imminent harm, or to prejudice the arbitral process itself”. However, noting that
the Working Group had not fully considered the implications of the proposed wording, it
was agreed that this proposal should be retained in square brackets for further
consideration at a future session.
Paragraph (3)[Art. 17 A in the final text]
Subparagraph (a)—“Irreparable harm”
84. Concerns were expressed about the use of the term “irreparable harm” in subparagraph
P 328 (a). The Working Group recalled that the term had already been discussed at its thirty-fifth
P 329 session ([April 2002 Working Group Report,] A/CN.9/508, para. 56) and thirty-ninth
session ([December 2003 Working Group Report,] A/CN.9/545, para. 29).
85. A suggestion was made that the term “irreparable” was not a well-known concept in all
legal systems, was subject to divergent interpretations, and should be deleted. Another
suggestion was that the term “irreparable” should be replaced by the term “substantial”. It
was stated that a reference to “substantial harm” would more easily lend itself to
balancing the degree of harm suffered by the applicant if the interim measure was not
granted against the degree of harm suffered by the party opposing the measure if that
measure was granted.
86. However, strong support was expressed for the retention of the reference to
“irreparable harm”. It was stated that paragraph (3) (a) was intended to apply to a
particular type of harm occurring in a situation where, even at a preliminary stage when all
the facts of the dispute were not before the tribunal, it could be shown that the requesting
party should be protected against harm that could not be remedied by an award of
damages. By contrast, a reference to “substantial harm” would suggest that it could be
remedied by way of substantial damages. It was pointed out that the notion of “irreparable
harm” did not refer in quantitative terms to the magnitude of damages, but in qualitative
terms to the very nature of the harm. Various examples of “irreparable harm” were given. In
addition to the loss of a priceless or unique work of art already mentioned at the previous
session ([December 2003 Working Group Report,] A/CN.9/545, para. 29), it was explained
that “irreparable harm” would occur, for example, in situations such as a business
becoming insolvent, essential evidence being lost, an essential business opportunity (such
as the conclusion of a large contract) being lost, or harm being caused to the reputation of
a business as a result of a trademark infringement.
87. Notwithstanding that the notion of “irreparable harm” was well recognized in some
legal systems and constituted an ordinary pre-requisite for ordering an interim measure, it
was acknowledged, however, that the notion of irreparable harm might lend itself to
various interpretations, namely in countries which were not familiar with this notion. It was
proposed to replace the expression “irreparable harm” with a more neutral and
descriptive phrase. A number of proposals were suggested as follows: “harm that cannot be

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 adequately compensated or that cannot be compensated by an award of money”; “damage
that is difficult to repair”; “harm that cannot be compensated”; “important harm which
cannot be compensated by damages”; “inevitable harm”; “unavoidable harm” or “serious
harm”.
88. In addition to the concerns expressed above, it was stated that, if the Model Law was to
provide that interim measures of protection could be granted only to avoid harm that
could not be compensated for in monetary terms, there would be a risk that the provision
would be interpreted in a very restrictive manner. As a result, interim measures in
arbitration might be more difficult to obtain than similar measures in court proceedings,
while parties seeking enforcement of such interim measures would still need to engage in
additional proceedings before the competent court. The question was raised as to whether
it was the intention of the Working Group to adopt such a restrictive approach as to
P 329 potentially exclude from the field of interim measures any loss that might be cured by an
P 330 award of damages. It was also stated that, in current practice, it was not uncommon for
an arbitral tribunal to issue an interim measure merely in circumstances where it would be
comparatively complicated to compensate the harm with an award of damages.
89. With a view to providing a more flexible criterion, another proposal was made to
replace the words “irreparable harm” by the words: “harm not adequately reparable by an
award of damages”. It was stated that that proposal addressed the concerns that
irreparable harm might present too high a threshold and would more clearly establish the
discretion of the arbitral tribunal in deciding upon the issuance of an interim measure. The
Working Group found that proposal generally acceptable.
Subparagraph (a)—interplay with paragraph (2)
90. Comments were made in relation to the content of paragraph (3), when read in
conjunction with paragraph (2). A view was expressed that the reference to “harm” in
paragraph (3) might lend itself to confusion with the words “current or imminent harm” in
subparagraph (b) of paragraph (2), thus creating the risk that the criteria set forth in
paragraph (3) might be read as applying only to those measures granted for the purposes
of subparagraph (b) of paragraph (2).
91. More generally, a concern was expressed that the general requirements set forth in
paragraph (3) might not adequately apply to all types of interim measures listed under
paragraph (2). For example, it was stated that it would not be appropriate to require in all
circumstances that a party applying simply for an interim measure to preserve evidence
under paragraph (2) (d) should necessarily demonstrate that exceptional harm would be
caused if the interim measure was not ordered, or to require that requesting party to
otherwise meet the very high threshold established in paragraph (3). The Working Group
took note of that concern and agreed that the matter might need to be further considered
at a later stage.
Paragraph (4)[Art. 17 E(1) in the final text]
92. It was recalled that the Working Group had, when discussing paragraph (5) [Art. 17 H(3) in
the final draft] of article 17 bis (see above, paras. 54–60 [reprinted in the section on Arts. 17 H
– 17 I, pp. 512–14 infra]), examined the question whether security should be a condition for
the granting of an interim measure. A general view emerged that the granting of security
should not be a condition precedent to the granting of an interim measure. It was pointed
out that article 17 of the Model Law as well as article 26 (2) of the UNCITRAL Arbitration
Rules did not include such a requirement. Various proposals were made to amend
paragraph (4) accordingly.
93. One proposal was to adopt wording along the following lines: “The arbitral tribunal may
grant an interim measure of protection by having appropriate security furnished by the
requesting party and any other party”, or simply by providing that, “appropriate security
may be required to be provided by the requesting party and any other party before the
P 330 arbitral tribunal grants an interim measure”. That proposal was objected to on the ground
P 331 that requiring security to be provided before an interim measure could be granted was
said to be too strict a condition. Another proposal was that the words “as a condition for
granting an interim measure of protection” should be deleted from paragraph (4).
However, the view was expressed that the mere deletion of those words should be avoided,
since those words served a useful role as they provided guidance for practitioners. In
addition, it was pointed out that the above proposals gave the impression that the
tribunal had an independent authority to grant security at any time of the procedure.
94. To address the concern that the provision of security should not be interpreted as a
free-standing provision allowing the tribunal to order security at any time during the
procedure, a proposal was made to redraft paragraph (4) as follows: “The arbitral tribunal
may require the requesting party and any other party to provide appropriate security at
the time the arbitral tribunal grants the interim measure”. Yet another proposal was made
along the following lines: “The arbitral tribunal may require the requesting party and/or
any other party to provide appropriate security in connection with such interim measure of
protection”. It was said that, not only did this proposal address the concern raised, but
also ensured that the arbitral tribunal would not be limited to ordering security only at the
time that the application was brought. It was pointed out that the term “in connection
with” should be interpreted in a narrow manner to ensure that the fate of the interim

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 measure was linked to the provision of security. After discussion, that proposal was found
acceptable by the Working Group.
95. As a matter of drafting, it was stated that the use of the word “or” was more appropriate
than the word “and” to indicate that the arbitral tribunal could require either the
requesting party or any other party to provide appropriate security. The Working Group
agreed to that proposal.
96. Regarding the possibility for the arbitral tribunal to require “any party” to provide
appropriate security, it was pointed out that it was essential to preserve the possibility of
requiring the defendant (i.e. the party against whom the interim measure was directed) to
provide such security. It was said that that was in line with the principle of equality of
treatment between the parties underlying arbitration proceedings. While, admittedly, the
defendant would rarely be required to provide security, examples were given of situations
where, to obtain the lifting of an interim measure such as an arrest of ship, the defendant
would deposit security.
Paragraph (5)[Art. 17 F(1) in the final text]
97. A question was raised whether the second sentence of paragraph (5), which referred to
the communication by one party to the other of all statements, documents or other
information supplied to the arbitral tribunal, should be retained. It was suggested that
that obligation duplicated an obligation that already applied under article 24 (3) of the
Model Law. It was noted that, to the extent the current text would form part of the Model
Law, it was not necessary to duplicate any obligation already contained in the Model Law.
However, the view was expressed that the obligation of a party to inform the arbitral
P 331 tribunal was mentioned in article 17 and not in any other part of the Model Law. Thus, for
P 332 the sake of clarity, it was appropriate to link the obligation to inform the tribunal to the
general obligation to inform the other party.
98. Various proposals were made in respect of that provision. It was suggested that,
following the word “promptly”, words along the lines of “with copies to all other parties”
should be added and the second sentence of paragraph (5) should be deleted. Another
suggestion was that the opening words of the paragraph should be redrafted in the
following terms: “The requesting party shall promptly make disclosure of any material
change (…)” and that the second sentence of paragraph (5) should be deleted. It was
suggested that that approach expressed the obligation in a more neutral way and avoided
any inference being drawn that the paragraph excluded an obligation under article 24 (3)
of the Model Law. After discussion, the Working Group found the latter proposal to be
generally acceptable.
Sanction for non-compliance
99. It was remarked that, as drafted, paragraph (5) provided no sanction in case of non-
compliance with the obligation to inform. It was suggested that such a sanction could be
included in paragraph (6) such that a failure to comply with the obligation to disclose
would be a ground for modification, suspension or termination of the interim measure.
100. It was stated that the express inclusion of a sanction under paragraph (6) was not
necessary, as in any case the usual sanction for non-compliance with the obligation to
disclose was either the suspension or termination of the measure, or the award of
damages. It was noted, however, that an award of damages might not be a solution in all
cases, particularly where the other party was not capable of paying damages. It was
suggested that, to better reflect that reality, the following text could be added to the end
of paragraph (5): “and any failure to do so may be a ground for suspension or termination
under paragraph (6) of this article”. After discussion, the Working Group agreed that it was
not necessary to include a provision regarding sanctions in paragraph (5).
Paragraph (6)[Art. 17 D in the final text]
101. As a matter of drafting, it was pointed out that, whereas article 17 bis (4) [Art. 17 H(2) in
the final text] referred to “termination, suspension or amendment of that interim measure”,
paragraph (6) referred to “modify, suspend or terminate an interim measure”. It was
agreed that the texts should be aligned. Preference was expressed for the word “modify”
instead of “amend”.
“It has granted”
102. It was recalled that the words “it has granted” were inserted to reflect the decision of
the Working Group that the arbitral tribunal could only modify or terminate the interim
measure issued by that tribunal ([December 2003 Working Group Report,] A/CN.9/545, para.
41). On that basis, it was agreed that the words “it has granted” should be retained without
square brackets.
P 332 103. A question was raised whether an arbitral tribunal should be prohibited from
P 333 modifying an interim measure issued by a court given that a party to an arbitration
agreement could apply for an interim measure to a court before the arbitral tribunal had
been established. It was suggested that, in such circumstances, there could be good
reasons for allowing the tribunal, once constituted, to modify such measures. Some
support was expressed for that view.
104. It was noted that the issue of allowing an arbitral tribunal to review a court-ordered

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 interim measure was a contentious matter and raised sensitive issues regarding the role of
courts and balancing the role of private arbitral bodies against that of courts, which had
sovereign powers and an appellate regime. The Working Group noted that article 9 of the
Model Law appropriately addressed the concurrent jurisdiction of the arbitral tribunal and
the courts and unambiguously provided for the right of the parties to request an interim
measure of protection from a court, before or during the arbitral proceedings. The Working
Group agreed that that issue of possible review of a court-ordered interim measure by an
arbitral tribunal should not be dealt with in the Model Law. In that connection, it was
pointed out that there existed various techniques to address the issue. For example,
parties could, of their own initiative, revert to the court that had issued the measure to
seek review of that measure, or the parties could ask the court to include within the
interim measure, the right for the arbitral tribunal to modify that measure once it was
established. In addition, it was always open to the arbitral tribunal to require the parties
to revert to the court with the decision made by the arbitral tribunal.
Paragraph (6 bis)[Art. 17 G in the final text]
105. The Working Group recalled that, in order to assist deliberations on subparagraph (6
bis), the Secretariat had prepared a note ([27 January 2004 Secretariat Note,]
A/CN.9/WG.II/WP.127) containing information received from States on the liability regimes
that applied under their national laws in respect of interim measures of protection. It was
observed that, of the legislation contained therein, the national laws did not distinguish
between inter partes and ex parte measures in relation to the liability regimes that
applied. It was suggested that, for that reason, the square brackets around that
subparagraph should be deleted and the Working Group should consider possible
improvements to the text therein.
106. It was suggested that the words providing that liability for costs and damages arose
“from the date the measure has been granted and for as long as it is in effect” was
unnecessary because the requirement that costs and damages be ‘caused by’ the measure
already limited their scope”. It was also suggested that the present conditions set out in
paragraph (6 bis) might be confusing and the requirement that made liability dependent
on the final disposition of the claims on the merits might be inappropriate. In this respect,
the Working Group was reminded that, at its thirty-ninth session, it was strongly felt that
the final decision on the merits should not be an essential element in determining whether
the interim measure was justified or not ([December 2003 Working Group Report,]
A/CN.9/545, para. 68). For these reasons, a first proposal was made to replace the first
sentence of paragraph (6 bis) by the words “The requesting party shall be liable for any
P 333 costs and damages caused by the interim measure of protection to the party against whom
P 334 it is directed, if the arbitral tribunal later determines that, in the circumstances, the
interim measure should not have been granted.” Support was expressed for that proposal.
107. A concern was expressed that paragraph (6 bis) appeared to provide that the power of
the tribunal to order damages was triggered if the tribunal found that the interim measure
should not have been ordered, which might not provide a broad enough discretion, for
example, to allow an arbitral tribunal to exercise that power where it found that the
measure had been made on incorrect facts. To achieve that broader discretion, a second
alternative proposal was made to replace the entire text of paragraph (6 bis) by the
following: “The requesting party shall be liable for such costs and damages that is caused
by the interim measure of protection to the party against whom it is directed, as may be
awarded by the arbitral tribunal, at such time in the course of the proceedings and to such
extent as it considers appropriate having regard to all the relevant circumstances.” It was
stated that, if that formulation were accepted, the second sentence of paragraph (6 bis)
could be deleted. That proposal received little support. Preference was expressed for the
first proposal, which was said to address the concerns expressed and to provide more
guidance than the second proposal.
108. With respect to the last sentence of paragraph (6 bis) it was suggested that the term
“immediate” should be deleted as it could be misinterpreted as suggesting that the
damages would be awarded simultaneously with the interim measure. It was suggested
that the sentence be replaced by the following words: “The arbitral tribunal may order an
award of costs and damages at any point during the proceedings following the termination
of the interim measure.” It was suggested that the words “following the termination of the
interim measure” were unduly narrow given that they restricted the award of damages to
the time after the termination of the interim measure. It was agreed that the words
“following the termination of the interim measure” should be deleted. It was also agreed
that any explanatory material accompanying paragraph (6 bis) should clarify that the
reference to “proceedings” therein referred to the arbitral proceedings and not to the
proceedings relating to the interim measure. Subject to these modifications, the proposed
text was adopted in substance by the Working Group.
Paragraph (7)[Arts. 17 B, C, E(2), F(2) and G in the final text]
Ex parte measures
109. The Working Group recalled that, at previous sessions, the question whether to include
a provision allowing for interim measures to be ordered ex parte by an arbitral tribunal
had been extensively discussed and that opposing views had been expressed as to
whether this matter should be included in draft article 17. The Working Group also recalled

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 that the Commission, at its thirty-sixth session, noted the suggestion that the issue of ex
parte interim measures, which the Commission agreed remained a point of controversy,
should not delay progress on the finalization of draft article 17 ([2003 Commission Report,]
A/58/17, para. 203).
110. At its thirty-ninth session, the Working Group proceeded with a detailed review of
P 334 paragraph (7), and agreed that discussions as to whether, as a matter of general policy, a
P 335 provision on interim measures granted ex parte should be retained in draft article 17,
should be held at its next session ([December 2003 Working Group Report,] A/CN.9/545,
para. 50). It was also pointed out that ex parte interim measures were not dealt with
extensively in national laws, general principles of law and international commercial
practice. It was pointed out that it might be counter-productive for an UNCITRAL
instrument to attempt to regulate an issue for which little recognition existed.
111. Comments made during the current session indicated that there remained strongly
opposing opinions on the question of including a provision granting the arbitral tribunal
the power to grant ex parte measures. On the one hand, it was said that there was no
worldwide consensus with respect to the standards and practices concerning the granting
of ex parte interim measures by arbitral tribunals and that inclusion of such a provision in
the absence of such consensus could undermine the role of the Model Law as an
international standard reflecting worldwide consensus.
112. On the other hand, it was said that the role of UNCITRAL went beyond merely
harmonizing existing laws and that it had regularly taken the lead in developing new and
modern rules, looking at their potential economic impact and evaluating the best practice.
It was stated that the Working Group had an opportunity to address the emerging reality
that ex parte orders were being requested and a failure to include such rules would not
diminish their importance. The view was expressed that, while the need to regulate ex
parte measures might be questioned, attention should be given to avoid introducing into
the Model Law provisions that could inhibit the possible future development of practice
relying on such measures. Support was expressed for the idea that, notwithstanding the
absence of consensus, the Working Group could take account of the existing body of
opinion in favour of ex parte measures and produce a text for use by those jurisdictions
that wished to adopt legislation on that matter. It was also pointed out that a number of
international arbitral institutions had adopted emergency rules for arbitrators to
accommodate the increasing demand for such orders, for example, in the field of sport
arbitration.
113. The view was expressed that the current draft of paragraph (7), which had strengthened
and increased the safeguards against misuse of ex parte measures, might be acceptable to
the Working Group.
114. A number of alternative proposals were made to the present draft paragraph (7). One
proposal, as contained and explained in the proposal by the International Chamber of
Commerce ([February 2004 Secretariat Note,] A/CN.9/WG.II/WP. 129), read as follows:
[reprinted supra.]
115. An additional proposal for the replacement of paragraph (7) read as follows:
“In cases where the prior disclosure of the requested measure to the party
having to perform it risks prejudicing its implementation, the requesting party
may file its application without communicating it to any other party. Upon
receipt of such an application, the arbitral tribunal shall communicate it to the
P 335 other parties inviting their response. The arbitral tribunal may accompany this
P 336 communication with a provisional [order preventing the frustration of the
requested measures]/[for preserving the status quo] until it has heard the other
parties and has ruled on the application [provided that such provisional order
shall remain in force no longer than X days].”
116. Due to the absence of sufficient time, the Working Group did not discuss those
proposals in detail. The Working Group took note of the proposals and decided that the
discussion would be continued at its next session on the basis of the documentation
prepared for the current session and of the additional proposal, as well as any further
proposal that might be communicated to the Secretariat for the preparation of the next
session of the Working Group. It was pointed out that, in addition to discussing the contents
of a provision on ex parte measures, the Working Group would need to focus its attention on
the placement of such a provision. Suggestions for the placement included a footnote to
article 17, either in the form of an opt-in or opt-out provision, for consideration by national
legislators.
2004 COMMISSION REPORT A/59/17 (9 JULY 2004)
IV. Arbitration: progress report of Working Group II
[.…]
58. The Commission was informed that the Working Group intended to complete its review
of draft articles 17 [Arts. 17 –17 G in the final text] and 17 bis [Arts. 17 H –17 I in the final text]
of the Model Law, including finalizing its position on how to deal with ex parte interim
measures in the Model Law, at its next two sessions (see para. 136 (b) below [approving

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 schedule of Working Group's meetings, not reprinted]). The view was reiterated that the issue
of ex parte interim measures, which the Commission agreed remained an important issue
and a point of controversy, should not delay progress on the revision of the Model Law. (9)
It was observed, in response, that the Working Group had not spent much time discussing
the issue at its recent sessions. The hope was expressed that consensus could be reached
on the issue by the Working Group at its next session, based on a revised draft to be
prepared by the Secretariat.
JULY 2004 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.131 (26 JULY 2004)
Introduction
[.…]
3. This note contains two revised provisions based on the discussions and decisions made
P 336 by the Working Group at its fortieth session, one relating to article 17 of the Model Law
P 337 regarding the power of an arbitral tribunal to grant interim measures of protection (Part
I), the other relating to recognition and enforcement of interim measures of protection
(Part II [reprinted in the section on Arts. 17 H – 17 I, pp. 515–22 infra]).
I. Draft article 17 of the UNCITRAL Model Law on International Commercial Arbitration
regarding the power of an arbitral tribunal to grant interim measures of protection
A. Text of draft article 17
4. To facilitate the resumption of discussions, the following text sets out a newly revised
version of article 17 of the Model Law based on the discussions and decisions made by the
Working Group at its fortieth session ([April 2004 Working Group Report,] A/CN.9/547, paras.
68–116), (hereinafter referred to as “draft article 17”):
“(1) [Art. 17(1) in the final text] Unless otherwise agreed by the parties, the arbitral tribunal
may, at the request of a party, grant interim measures of protection.
“(2) [Art. 17(2) in the final text] An interim measure of protection is any temporary measure,
whether in the form of an award or in another form, by which, at any time prior to the
issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a
party to:
“(a) Maintain or restore the status quo pending determination of the dispute;
“(b) Take action that would prevent, or refrain from taking action that is likely to cause,
current or imminent harm [, or to prejudice the arbitral process itself];
“(c) Provide a means of preserving assets out of which a subsequent award may be
satisfied; or
“(d) Preserve evidence that may be relevant and material to the resolution of the dispute.
“(3) [Art. 17 A in the final text] The party requesting the interim measure of protection shall
satisfy the arbitral tribunal that:
“(a) Harm not adequately reparable by an award of damages is likely to result if the
measure is not ordered, and such harm substantially outweighs the harm that is likely
to result to the party against whom the measure is directed if the measure is granted;
and
“(b) There is a reasonable possibility that the requesting party will succeed on the merits,
provided that any determination on this possibility shall not affect the discretion of
the arbitral tribunal in making any subsequent determination.
“(4) [Art. 17 E(1) in the final text] The arbitral tribunal may require the requesting party or
any other party to provide appropriate security in connection with such interim measure of
protection.
P 337 “(5) [Art. 17 F(1) in the final text] The requesting party shall promptly make disclosure of any
P 338 material change in the circumstances on the basis of which the party made the request
for, or the arbitral tribunal granted, the interim measure of protection.
“(6) [Art. 17 D in the final text] The arbitral tribunal may modify, suspend or terminate an
interim measure of protection it has granted, at any time, upon application of any party or,
in exceptional circumstances, on the tribunal's own initiative, upon prior notice to the
parties.
“(6 bis) [Art. 17 G in the final text] The requesting party shall be liable for any costs and
damages caused by the interim measure of protection to the party against whom it is
directed, if the arbitral tribunal later determines that, in the circumstances, the interim
measure should not have been granted. The arbitral tribunal may order an award of costs
and damages at any point during the proceedings.
“(7)
(a) [Art. 17 B in the final text] [Unless otherwise agreed by the parties,] where prior
disclosure of an interim measure to the party against whom it is directed risks
frustrating the purpose of the measure, the requesting party may file its application
without notice to that party and request a preliminary order [directing that party to
preserve the status quo until the tribunal has heard from that party and ruled on the
application].

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 “(b) [Art. 17 B in the final text] The provisions of paragraphs [(2),] (3), (5), (6) and (6 bis) of
this article apply to any preliminary order that the arbitral tribunal may grant
pursuant to this paragraph.
“(c) [Art. 17 B in the final text] [The arbitral tribunal may grant a preliminary order if it
concludes that the purpose of the requested interim measure may otherwise be
frustrated before all parties can be heard.]
“(d) [Art. 17 C in the final text] After the arbitral tribunal has made a determination in
respect of a preliminary order, it shall give immediate notice to the party against
whom the preliminary order is directed of the application, the preliminary order, if
any, and all other communications between any party and the arbitral tribunal
relating to the application [,unless the arbitral tribunal determines [pursuant to
paragraph 7 (i) (1) ] that such notification should be deferred until court enforcement
or expiry of the preliminary order].
P 338
P 339
“(e) [Art. 17 C in the final text] The party against whom the preliminary order is directed
shall be given an opportunity to present its case before the arbitral tribunal at the
earliest possible time, and [in any event] no later than forty-eight hours after notice
is given, or on such [earlier] [other] date and time as is appropriate in the
circumstances.
“(f) [Art. 17 C in the final text] A preliminary order under this paragraph shall expire after
twenty days from the date on which it was issued by the arbitral tribunal, unless it
has been confirmed, extended or modified by the arbitral tribunal in the form of an
interim measure of protection [or in any other form]. Such confirmation, extension or
modification shall take place only after the party against whom the preliminary order
is directed has been given notice and an opportunity to present its case.
“(g) [Art. 17 E(2) in the final text] The arbitral tribunal shall require the requesting party to
provide appropriate security in connection with such preliminary order.
“(h) [Art. 17 F(2) in the final text] Until the party against whom the preliminary order is
directed has presented its case under subparagraph (7) (e), the requesting party shall
have a continuing obligation to inform the arbitral tribunal of all circumstances that
the arbitral tribunal is likely to find relevant to its determination whether to grant a
preliminary order under subparagraph (7) (c).”
B. Matters for further consideration
5. At its fortieth session, the Working Group agreed that the following matters of substance
might need further consideration.
Subparagraph (b) of paragraph (2)—Anti-suit injunctions
6. At its fortieth session, the Working Group heard diverging views on the question of
whether paragraph (2) of article 17 could be interpreted as encompassing the power of an
arbitral tribunal to order an anti-suit injunction ([April 2004 Working Group Report,]
A/CN.9/547, paras. 75–83). After discussion, the Working Group agreed to amend
subparagraph (b) of paragraph (2) to clarify that anti-suit injunctions were included in the
definition of interim measures of protection (see below, paragraph 12). Nevertheless,
noting that the implications of the proposed amendment have not been fully considered,
the Working Group agreed to further discuss that proposal at a future session ([April 2004
Working Group Report,] A/CN.9/547, para. 83).
Subparagraph (a) of paragraph (3)—interplay with paragraph (2)
7. The Working Group might wish to further consider whether or not the general
requirements set forth in paragraph (3) adequately apply to all types of interim measures
listed under paragraph (2). It is recalled that, at the fortieth session of the Working Group,
it was stated, for example, that it would not be appropriate to require in all circumstances
that a party applying for an interim measure to preserve evidence under paragraph (2) (d)
P 339
should necessarily demonstrate that exceptional harm would be caused if the interim
P 340 measure was not ordered, or to require that requesting party to otherwise meet the very
high threshold established in paragraph (3) ([April 2004 Working Group Report,] A/CN.9/547,
para. 91).
Paragraph (7)—Ex parte interim measures
8. At the fortieth session of the Working Group, there remained strongly opposing opinions
on the question of including a provision granting the arbitral tribunal the power to issue ex
parte interim measures ([April 2004 Working Group Report,] A/CN.9/547, paras. 109–112), and
this matter is further discussed below under paragraphs 27 to 45.
C. Notes on draft article 17
Paragraph (1)
9. Paragraph (1) has been adopted without modification from the previous draft as
contained in [the April 2004 Working Group Report,] A/CN.9/547, para. 68 ([April 2004
Working Group Report,] A/CN.9/547, para. 69). (3)
Paragraph (2) (4)

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 Chapeau—“whether in the form of an award or in another form”
10. It is recalled that, after discussing the form in which an interim measure might be
issued by an arbitral tribunal, the Working Group reiterated its decision not to modify the
chapeau of paragraph (2) ([April 2004 Working Group Report,] A/CN.9/547, paras. 70–72). On
that matter, the Working Group agreed that any explanatory material to be prepared at a
later stage, possibly in the form of a guide to enactment of draft article 17, should make it
clear that the wording adopted regarding the form in which an interim measure might be
issued should not be misinterpreted as taking a stand in respect of the controversial issue
as to whether or not an interim measure issued in the form of an award would qualify for
enforcement under the New York Convention ([April 2004 Working Group Report,]
A/CN.9/547, para. 72). (5)
Subparagraph (a)
11. Subparagraph (a) is reproduced without modification from the previous draft as
contained in [the April 2004 Working Group Report,] A/CN.9/547, para. 68.
Subparagraph (b)—Anti-suit injunction
12. The draft of subparagraph (b) reflects the decision of the Working Group that, for the
P 340 sake of clarity, the power to issue anti-suit injunctions should expressly be conferred upon
P 341 arbitral tribunals and that, for that purpose, the words “or to prejudice the arbitral
process itself” should be added at the end of subparagraph (b). However, for the reasons
mentioned under paragraph 6 above, that proposal has been inserted in square brackets,
for further consideration by the Working Group at a future session ([April 2004 Working
Group Report,] A/CN.9/547, para. 83).
Subparagraph (c)—[preliminary]; [securing]—[preserving]
13. The word “preliminary” has been deleted on the basis that it was confusing and added
nothing to the meaning of the provision ([April 2004 Working Group Report,] A/CN.9/547,
para. 73; for earlier discussion on that matter, see [the December 2003 Working Group
Report,] A/CN.9/545, para. 26) and the word “preserving” has been retained rather than
“securing” because the latter term could be interpreted as a particular method for
protecting assets ([April 2004 Working Group Report,] A/CN.9/547, para. 74). (6)
Subparagraph (d)
14. Subparagraph (d) is reproduced without modification from the previous draft as
contained in [the April 2004 Working Group Report,] A/CN.9/547, para. 68.
Paragraph (3) (7)
Subparagraph (a)—“Irreparable harm”
15. The draft subparagraph (a) follows the proposal made by the Working Group to replace
the words “irreparable harm” by the words: “harm not adequately reparable by an award of
damages” ([April 2004 Working Group Report,] A/CN.9/547, para. 89). It was stated that that
proposal addressed the concerns that irreparable harm might present too high a threshold
and would more clearly establish the discretion of the arbitral tribunal in deciding upon
the issuance of an interim measure ([April 2004 Working Group Report,] A/CN.9/547, paras.
84–89). (8)
Subparagraph (a)—interplay with paragraph (2)
16. At the fortieth session of the Working Group, a view was expressed that the reference to
“harm” in subparagraph (a) of paragraph (3) might lend itself to confusion with the words
“current or imminent harm” in subparagraph (b) of paragraph (2), thus creating the risk that
the criteria set forth in paragraph (3) might be read as applying only to those measures
granted for the purposes of subparagraph (b) of paragraph (2) ([April 2004 Working Group
Report,] A/CN.9/547, para. 90). It is however submitted that the broad definition of interim
P 341 measures under paragraph (2) does not conflict with the need for the party requesting the
P 342 interim measure to show evidence of “harm not adequately reparable by an award of
damages” (see [April 2003 Secretariat Note,] A/CN.9/WG.II/WP.123, para. 15). (9)
Subparagraph (b)
17. Subparagraph (b) is reproduced without modification from the previous draft as
contained in [the April 2004 Working Group Report,] A/CN.9/547, para. 68. (10)
Paragraph (4) (11)
18. The draft paragraph (4) takes account of the proposal made by the Working Group at its
fortieth session to amend paragraph (4) in such a manner that the provision of security
should not be considered as a condition precedent to the granting of an interim measure
([April 2004 Working Group Report,] A/CN.9/547, para. 92), and interpreted as a freestanding
provision allowing the tribunal to order security at any time during the procedure, or as
limiting the ordering of security only at the time that the application was brought ([April
2004 Working Group Report,] A/CN.9/547, para. 94).
“in connection with”
19. The Working Group clarified its understanding that, in draft paragraph (4), as adopted,
the term “in connection with” should be interpreted in a narrow manner to ensure that the

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 fate of the interim measure was linked to the provision of security ([April 2004 Working
Group Report,] A/CN.9/547, para. 94).
“or”
20. As a matter of drafting, it was stated that the use of the word “or” was more appropriate
than the word “and” to indicate that the arbitral tribunal could require either the
requesting party or any other party to provide appropriate security ([April 2004 Working
Group Report,] A/CN.9/547, para. 95).
Paragraph (5) (12)
Obligation to inform
21. The draft paragraph (5) reflects the decision of the Working Group that the obligation to
inform be expressed in a more neutral way and avoided any inference being drawn that
the paragraph excluded the obligation under article 24 (3) of the Model Law ([April 2004
Working Group Report,] A/CN.9/547, paras. 97–98). (13)
P 342
P 343
Sanction for non-compliance
22. It is recalled that the Working Group agreed that the express inclusion of a sanction
under paragraph (5) in case of non-compliance with the obligation to disclose any material
change in the circumstances or paragraph (6) was not necessary, as in any case the usual
sanction for non-compliance with that obligation was either the suspension or termination
of the measure, or the award of damages ([April 2004 Working Group Report,] A/CN.9/547,
paras. 99–100). (14)
Paragraph (6) (15)
“it has granted”
23. The words “it has granted” have been retained without square brackets, to reflect that
the arbitral tribunal may only modify or terminate the interim measure issued by that
arbitral tribunal ([April 2004 Working Group Report,] A/CN.9/547, paras. 102–104).
Paragraph (6 bis)
24. It is recalled that, in order to assist deliberations on paragraph (6 bis), the Secretariat
had prepared a note ([27 January 2004 Secretariat Note,] A/CN.9/WG.II/WP.127) containing
information received from States on the liability regimes that applied under their national
laws in respect of interim measures of protection. It was observed that, of the legislation
contained therein, the national laws did not distinguish between inter partes and ex parte
measures in relation to the liability regimes that applied. It was suggested that, for that
reason, the square brackets around that paragraph should be deleted and the Working
Group should consider possible improvements to the text ([April 2004 Working Group
Report,] A/CN.9/547, para. 105). (16)
25. Draft paragraph (6 bis) contains the proposal which was adopted by the Working Group
at its fortieth session ([April 2004 Working Group Report,] A/CN.9/547, paras. 106–108) and
reflects the agreement of the Working Group that the final decision on the merits should
not be an essential element in determining whether the interim measure was justified or
not.
26. It was also agreed that any explanatory material accompanying paragraph (6 bis)
should clarify that the reference to “proceedings” therein referred to the arbitral
proceedings and not to the proceedings relating to the interim measure ([April 2004
Working Group Report,] A/CN.9/547, para. 108).
P 343
P 344
Paragraph (7)
Ex parte measures
27. At its thirty-ninth session, the Working Group proceeded with a detailed review of
paragraph (7), and agreed that discussions as to whether, as a matter of general policy, a
provision on interim measures granted ex parte should be retained in draft article 17
should be held at its next session ([April 2004 Working Group Report,] A/CN.9/547, para.
110). The draft paragraph (7) reflecting the discussions of the Working Group at its thirty-
ninth session is reproduced in [the April 2004 Working Group Report,] A/CN.9/547, para. 68
and [the 29 January 2004 Secretariat Note,] A/CN.9/WG.II/WP.128 (“the Secretariat draft”).
28. At the fortieth session of the Working Group, a number of alternative proposals were
made in respect of the Secretariat draft ([April 2004 Working Group Report,] A/CN.9/547,
para. 68 and [29 January 2004 Secretariat Note,] A/CN.9/WG.II/WP. 128). These proposals are
reflected in the report of the fortieth session of the Working Group ([April 2004 Working
Group Report,] A/CN.9/547, paras. 114 and 115).
29. At the thirty-seventh session of the Commission (New York, 14–25 June 2004), the view
was reiterated that the issue of ex parte interim measures, which the Commission agreed
remained an important issue and a point of controversy, should not delay progress on the
revision of the Model Law, and the hope was expressed that consensus could be reached

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 on that issue by the Working Group at its forthcoming session, based on a revised draft to
be prepared by the Secretariat.
30. Taking into account the various proposals made at the fortieth session of the Working
Group, a revised draft of paragraph (7) has been prepared by the Secretariat with a view to
finding a consensus (“the revised draft”).
Subparagraph (a) of the revised draft
31. Subparagraph (a) of the revised draft defines ex parte interim measures. The main
modifications of the revised draft are as follows:
“[Unless otherwise agreed by the parties]”
32. The wording in square brackets “[Unless otherwise agreed by the parties]” reflects the
principle that ex parte interim measures should be available by default, an approach
which is consistent with that taken in the Model Law. The opt-in approach, which was
discussed by the Working Group at its thirty-ninth session and resulted in the inclusion in
the Secretariat draft ([April 2004 Working Group Report,] A/CN.9/547, para. 68 and [29
January 2004 Secretariat Note,] A/CN.9/WG.II/WP.128) of the bracketed words “[if expressly
agreed by the parties]”, would be unusual for a legislative instrument and has not been
included in the revised draft. That matter nevertheless remains an open issue that is to be
further considered by the Working Group ([December 2003 Working Group Report,]
A/CN.9/545, para. 52).
P 344
P 345
“Preliminary order”
33. The term “preliminary order” is used, instead of “interim measure”, to describe an
interim measure made on an ex parte basis. This term emphasizes the temporary and
extraordinary nature of the order.
34. The Working Group will need to decide whether or not “preliminary order” should be
defined and, if so, whether it should be limited to a measure that is both strictly limited in
its duration (see below paragraph 39) and exclusively aimed at preserving the status quo
until the tribunal has heard from the other party and ruled on the application as provided
for in square brackets in subparagraph (a) of the revised draft (see below paragraph 36).
“in exceptional circumstances”—“Urgent need for the measure”
35. The revised draft does not include a reference to “exceptional circumstances” and
“urgency”. The Working Group may wish to further discuss whether these are conditions
specific for the granting of an ex parte interim measure.
Subparagraph (b) of the revised draft
“Conditions under paragraph (3)”
36. Instead of retaining a reference to the application of the conditions set out under
paragraph (3), which was considered ambiguous and which could be misinterpreted as
excluding the application of paragraphs (5) and (6) to ex parte interim measures,
subparagraph (b) of the revised draft includes a wider reference to the application of
article 17, by providing that: “the provisions of paragraphs [(2),] (3), (5), (6) and (6 bis) of this
article apply to any preliminary order that the arbitral tribunal may grant pursuant to this
paragraph” (see also, [the December 2003 Working Group Report,] A/CN.9/545, para. 56). The
Working Group may wish to further confirm which of the general provisions applicable to
interim measures also apply to preliminary orders. Depending on the definition of
“preliminary order” under paragraph 7 (a), the reference to paragraph (2) in paragraph 7 (b)
would only need to be retained if the Working Group decided that the definition of a
preliminary order and an interim measure should be the same. If a preliminary order is
defined under paragraph 7 (a) as a subset category of interim measures, the reference to
paragraph (2) would be deleted. It is submitted that paragraph (4) would not apply to a
preliminary order, as the requirement for the provision of security in the context of a
preliminary order is set forth under paragraph 7 (g).
Subparagraph (c) of the revised draft
37. Subparagraph (c) has been inserted in order to provide some additional certainty
regarding the power of the arbitral tribunal to grant a preliminary order. The Working
Group may wish to decide whether or not such a provision is needed.
Subparagraph (d) of the revised draft
P 345 38. Subparagraph (d) of the revised draft deals with the issue of notice to the other party of
P 346 both the ex parte application and the preliminary order, if any. It partly mirrors
subparagraph (e) of the Secretariat draft ([April 2004 Working Group Report,] A/CN.9/547,
para. 68 and [29 January 2004 Secretariat Note,] A/CN.9/WG.II/WP.128), with the following
differences:
– The revised draft refers to notice of the application and all other communications,
and not only to notice of the measure;
– While providing some flexibility for the arbitral tribunal in respect of when the

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 responding party should be heard, the proposal clarifies the point of time at which
notice should be given;
– The second part of subparagraph (d) of the revised draft in square brackets deals
with the sensitive issue of enforcement of ex parte interim measures, and seeks to
address the view that giving notice immediately after the interim measure is ordered
may not satisfy the requirement of surprise needed to give efficacy to ex parte
measures, including time to seek enforcement in court ([December 2003 Working
Group Report,] A/CN.9/545, para. 78). Subparagraph (d) refers to subparagraph (i),
which is included as a footnote to the text. Subparagraph (i) relates to deferral of
notification for the purpose of court enforcement. The Working Group has not yet
discussed in detail the question whether or not to include a provision allowing court
enforcement of an ex parte interim measure. The Working Group may need to
consider the proposed paragraph (i) in tandem with its discussion on whether or not a
regime for court enforcement of an ex parte interim measure should be included in
the Model Law.
Subparagraph (e) of the revised draft
39. Subparagraph (e) of the revised draft deals with the issue of the responding party's
opportunity to present its case, and the corresponding time period. In that respect, it is
recalled that, at the thirty-ninth session of the Working Group, some reservations were
expressed as to the inclusion of a time period of forty-eight hours or any other specific
time period, which might prove too rigid and inadequate, depending on the circumstances.
It was also pointed out that introducing wording to allow the arbitral tribunal to consider
another time and date as was appropriate in the circumstances might provide flexibility
but might also make it illogical to maintain a reference to a fixed period of time within
that same provision. A widely shared view, however, was that the inclusion of a specific
time period served the purpose of underscoring that the opportunity to be heard was
urgent and also of putting the arbitral tribunal on notice that it should be ready to
reconvene to allow an opportunity for the responding party to be heard ([December 2003
Working Group Report,] A/CN.9/545, para. 79).
40. It is recalled that, at its thirty-ninth session, the Working Group agreed that the words
“opportunity to be heard” should be replaced by “opportunity to present its case”, in order
to encompass both a hearing of the responding party and a written submission from that
party ([December 2003 Working Group Report,] A/CN.9/545, para. 80).
P 346
P 347
41. The drafting of subparagraph (e) will need to be revisited after the Working Group has
examined the question whether enforcement of an ex parte interim measure should be
permitted.
Subparagraph (f) of the revised draft
42. The revised draft, which mirrors subparagraph (f) of the Secretariat draft ([April 2004
Working Group Report,] A/CN.9/547, para. 68 and [29 January 2004 Secretariat Note,]
A/CN.9/WG.II/WP.128), reflects the decision of the Working Group to simplify this
subparagraph ([December 2003 Working Group Report,] A/CN.9/545, paras. 83 and 84).
Subparagraph (g) of the revised draft
43. The drafting of subparagraph (g) reflects the decision of the Working Group that, as a
matter of consistency, it should be aligned with the wording used in draft paragraph (4)
relating to the provision of security in the context of inter partes interim measures, except
for the word “may” which could be replaced by the word “shall” ([December 2003 Working
Group Report,] A/CN.9/545, para. 69), and that subparagraph (g) be a mandatory condition
for the granting of an ex parte interim measure ([December 2003 Working Group Report,]
A/CN.9/545, para. 70).
44. The revised draft takes account of the decision of the Working Group that the granting
of security should not be a condition precedent for the granting of an interim measure
([April 2004 Working Group Report,] A/CN.9/547, paras. 92–94, see also above, paragraph 18).
Subparagraph (h) of the revised draft
45. Subparagraph (h) of the revised draft paragraph takes account of the proposals made
by the Working Group at its thirty-ninth session ([December 2003 Working Group Report,]
A/CN.9/545, paras. 91 and 92).
OCTOBER 2004 WORKING GROUP REPORT A/CN.9/569 (4 OCTOBER 2004)
III. Draft article 17 of the UNCITRAL Model Law on International Commercial Arbitration
regarding the power of an arbitral tribunal to grant interim measures of protection
12. The Working Group recalled that it had agreed to resume discussions on a revised
version of a provision regarding the power of an arbitral tribunal to grant interim measures
of protection. The Working Group considered the text of a newly revised version of article
17 of the Model Law prepared by the Secretariat on the basis of discussions and decisions
made by the Working Group at its fortieth session ([April 2004 Working Group Report,]
A/CN.9/547, paras. 68–116), hereinafter referred to as “draft article 17” ([July 2004
Secretariat Note,] A/CN.9/WG.II/WP.131):

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 [reprinted supra]
P 347
P 348
Paragraph (7)[Arts. 17 B, C, E(2) and F(2) in the final text]
General remarks
13. The Working Group recalled that, at its fortieth session (New York, 23–27 February 2004)
due to lack of time, the text of paragraph (7) of draft article 17 had not been discussed. It
was noted that the Commission, at its thirty-seventh session (New York, 14–25 June 2004),
had reiterated that the issue of ex parte interim measures, which the Commission agreed
remained an important issue and a point of controversy, should not delay progress on the
revision of the Model Law. The Commission however noted that the Working Group had not
spent much time discussing that issue at its recent sessions and expressed the hope that
consensus could be reached on that issue by the Working Group at its forthcoming session,
based on a revised draft to be prepared by the Secretariat ([2004 Commission Report,]
A/59/17, para. 58).
14. The Working Group recalled that the issue of including ex parte interim measures had
been the subject of earlier discussions in the Working Group (see [April 2000 Working Group
Report,] A/CN.9/468, para. 70 [reprinted in the section on Arts. 17 H – 17 I, p. 447 infra];
[December 2000 Working Group Report,] A/CN.9/485, paras. 89–94; [June 2001 Working Group
Report,] A/CN.9/487, paras. 69–76 [paras. 69–75, reprinted supra; para. 76, reprinted in the
section on Arts. 17 H – 17 I, p. 466 infra]; [April 2002 Working Group Report,] A/CN.9/508,
paras. 77–79; [November 2002 Working Group Report,] A/CN.9/523, paras. 15–76; [December
2003 Working Group Report,] A/CN.9/545, paras. 49–92 and [April 2004 Working Group
Report,] A/CN.9/547, paras. 109–116).
15. It was recalled that a provision allowing interim measures to be ordered on an ex parte
basis had arisen in part from the recognition that, in some cases, an element of surprise
was necessary, i.e. where it was possible that the affected party might try to pre-empt the
measure by taking action to make the measure moot or unenforceable ([September 2000
Secretariat Note,] A/CN.9/WG.II/WP.110, para. 69 [reprinted in the section on Arts. 17 H – 17 I,
pp. 454–55 infra]). It was also said that the granting of interim measures on an ex parte
basis was quite usual in State courts and that the fact that such measures were rarely
asked for in arbitration might be in part because of the lack of a statutory regime
supporting such measures. It was said that omission of the provision would force parties
that had chosen to resolve their dispute outside the court system to nevertheless revert to
courts on questions of ex parte interim measures.
16. Opposition was expressed against the inclusion of the provision. It was stated that the
inclusion of the ex parte provision ran counter to the principles of trust and consensus
underlying international arbitration and contradicted the principle that parties to arbitral
proceedings should be treated on the basis of fairness and equality. It was said that
inclusion of the provision would be extremely difficult to reconcile with existing provisions
of the Model Law, notably article 18 (which required that parties should be treated equally
and be given a full opportunity of presenting their case), article 24 (3) (which required that
P 348 all documents should be communicated to both parties) and paragraph 36 (a) (ii) (which
P 349 allowed refusal to recognize or enforce an award if a party had been unable to present
its case). As well, it was suggested that paragraph (7) introduced a level of complexity and
could create obstacles to enactment of the Model Law in certain countries, to the extent it
might be considered in those countries that ex parte measures ran counter to public
policy, constitutional rules or international treaties. It was pointed out that, in countries
where ex parte interim measures would be acceptable, such measures might be available
on the basis of contractual arrangement in the absence of any specific legislation. From
that perspective, the inclusion of a provision along the lines of paragraph (7) might even be
seen as limiting party autonomy. In addition, it was also stated that, in jurisdictions where
ex parte interim measures were rare or unknown, it might be difficult for State courts to
enforce interim measures ordered on an ex parte basis by an arbitral tribunal.
17. In response, additional arguments were put forward in favour of a provision recognizing
ex parte interim measures of protection. It was said that due process and equal treatment
of disputing parties were essential to most systems of justice but that, nevertheless, ex
parte practices had developed therein because it was recognized that, in certain
circumstances, the unfairness of one party's frustrating the arbitral proceedings could only
be avoided through ex parte proceedings. To meet concerns about ex parte measures,
courts had fashioned strict safeguards. It was pointed out that paragraph (7) took account
of such precedents in procedure before State courts and established strict safeguards,
including strict limitation in time, a requirement that the party against whom the measure
was ordered be given an opportunity to be heard as soon as possible, a requirement that
mandatory security be provided and a requirement for full disclosure of the facts.
However, it was recalled that, while ex parte proceedings were acceptable in the case of
State courts given their public nature, it might be less acceptable to create a parallel
mechanism for arbitral tribunals. It was also pointed out that attempts to equate fully
arbitral tribunals and State courts might be counter-productive and detrimental to the
development of international commercial arbitration in certain countries.
Opt-out/opt-in

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 18. With a view to bridging the gap between the opposing views expressed above, the
Working Group engaged in a discussion as to whether or not the Model Law should deal
with the issue of ex parte measures by way of a provision allowing the parties to opt-out or
opt-in.
19. The “opt-out” approach was reflected by the bracketed words “Unless otherwise agreed
by the parties” as the opening words of the provision. Some support was expressed for that
approach on the basis that it was more grounded in the contractual nature of arbitration. It
was said that the opt-out approach better reflected the legislative approach taken
elsewhere in the Model Law and that an opt-in provision was highly unusual in the
legislative tradition observed in many countries. It was also said that leaving the question
of ex parte measures to the choice of parties was not beneficial to providing uniformity on
this question.
P 349
P 350
20. However, a number of delegations spoke in favour of an “opt-in” approach, with a
proposal that the provision dealing with ex parte interim measures should open with
wording along the lines of “If expressly agreed by the parties” or “When the parties so
empower the arbitral tribunal”. It was said that the opt-in approach was more likely to
preserve the consensual nature of arbitration by limiting the possibility for automatic
application of the ex parte provision. It was also suggested that the inclusion of an opt-out
approach could raise public policy objections in some jurisdictions.
21. No consensus was reached at that stage as to whether the provision should allow the
parties to opt-out of, or opt-in to, the ex parte regime. Support was expressed for the view
that it might be impossible to deal with the issue by way of a harmonized rule. Thus, the
matter might need to be left for individual legislators in enacting States to decide upon. As
to practical formulations of paragraph (7) as an optional provision, it was suggested that
precedents might be found in the footnote to article 35 (2) of the Model Law, or in the
footnote to article 4 of the UNCITRAL Model Law on International Commercial Conciliation.
22. Before coming to a decision as to whether a specific mention of ex parte interim
measures of protection should appear in a revised version of article 17 of the Model Law
and, if so, what form such a mention might take, the Working Group proceeded with a
detailed review of the text of paragraph (7) of draft article 17 as it appeared in the note by
the Secretariat ([July 2004 Secretariat Note,] A/CN.9/WG.II/WP.131). In the course of its
deliberations, the Working Group also considered a text that was proposed by one
delegation as a possible alternative to draft article 17. Due to lack of time, the Working
Group only considered paragraph (7) of that proposal. The complete proposed text was as
follows:
“(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a
party, grant interim measures of protection or modify them.
“(2) An interim measure of protection is any temporary measure, whether in the form of an
award or in another form, by which, at any time prior to the issuance of the award by which
the dispute is finally decided, the arbitral tribunal orders a party to:
“(a) Maintain or restore the status quo pending determination of the dispute;
“(b) Take action that would prevent, or refrain from taking action that is likely to cause,
current or imminent harm;
“(c) Provide a means of preserving assets out of which a subsequent award may be
satisfied; or
“(d) Preserve evidence that may be relevant and material to the resolution of the dispute.
“(3) Except with respect to the measure referred to in sub-paragraph (d) of paragraph (2),
P 350 the party requesting the interim measure of protection shall satisfy the arbitral tribunal
P 351 that:
“(a) Harm not adequately reparable by an award of damages is likely to result if the
measure is not ordered, and such harm substantially outweighs the harm that is likely
to result to the party against whom the measure is directed if the measure is granted;
and
“(b) There is a reasonable possibility that the requesting party will succeed on the merits,
provided that any determination on this possibility shall not affect the discretion of
the arbitral tribunal in making any subsequent determination.
“(4) The arbitral tribunal may require the requesting party or any other party to provide
appropriate security in connection with such interim measure of protection.
“(5) If so ordered by the arbitral tribunal, the requesting party shall promptly make
disclosure of any material change in the circumstances on the basis of which the party
made the request for, or the arbitral tribunal granted, the interim measure of protection.
“(6) (deleted)
“(6 bis) The requesting party shall be liable for any costs and damages caused by the
interim measure of protection to the party against whom it is directed, if the arbitral
tribunal later determines that, in the circumstances, the interim measure was unjustified.
The arbitral tribunal may order an award of costs and damages at any point during the

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 proceedings.
“(7)
(a) Unless otherwise agreed by the parties, a party requesting an interim measure of
protection may file its request without notice to the other party, together with an
application for a preliminary order necessary to prevent the frustration of the
purpose of the interim measure requested.
“(b) The provisions of paragraphs [(2),] (3), (4), (5), (6) and (6 bis) of this article apply to any
preliminary order that the arbitral tribunal may grant pursuant to this paragraph.
“(c) [The arbitral tribunal may grant a preliminary order if it concludes that the purpose
of the requested interim measure may otherwise be frustrated before all parties can
be heard.]
“(d) After the arbitral tribunal has made a determination in respect of a preliminary
order, it shall give immediate notice to the party against whom the preliminary order
is directed of the application, the preliminary order, if any, and all other
communications between any party and the arbitral tribunal relating to the
application, unless the arbitral tribunal determines that such notification should be
deferred until court enforcement or expiry of the preliminary order.
“(e) The party against whom the preliminary order is directed shall be given an
opportunity to present its case before the arbitral tribunal at the earliest possible
time. Within 48 hours or such other short time period following the expiration of the
time for the other party to present its case, the arbitral tribunal shall decide whether
to confirm, extend or modify a preliminary order.
P 351
P 352
“(f) A preliminary order under this paragraph shall expire after twenty days from the date
on which it was issued by the arbitral tribunal, unless it has been confirmed,
extended or modified by the arbitral tribunal in the form of an interim measure of
protection [or in any other form].
“(g) (deleted)
“(h) (deleted)”
Subparagraph (a)[Art. 17 B(1) in the final text]
“[Unless otherwise agreed by the parties]”
23. The Working Group agreed to defer discussions on whether or not to include the words
“[Unless otherwise agreed by the parties]” until it had completed its review of paragraph 7.
Nature of preliminary orders
24. Doubts were expressed as to whether or not the notion of “preliminary order” should be
regarded as a subset of the broader notion of “interim measure”. It was suggested that,
should the two notions belong to the same legal category, the distinction between them
might be regarded as artificial and might lead to difficulties in implementation and
practice. It was suggested that, if the intention was that interim measures were the same in
nature and effect as preliminary orders then, to avoid any confusion, it might be
preferable to use the same term for both.
25. In support of the view that preliminary orders and interim measures shared the same
legal nature, it was observed that the reference in paragraph (7)(b) to paragraphs (2), (3),
(5), (6) and (6 bis) made the definition and the legal regime applicable to interim
measures also applicable to preliminary orders. It was explained that the definition of
interim measures under paragraph (2) was so broad that a preliminary order would
necessarily be encompassed by that definition.
Purpose, function and legal regime of preliminary orders
26. It was clarified that, although a preliminary order might be regarded as a subset of an
interim measure, it could be distinguished from any other interim measure in view of its
narrower purpose, which was limited to preventing the frustration of the specific interim
measure being applied for. Another distinguishing feature of a preliminary order was that
its function was limited to directing a party to preserving the status quo until the arbitral
tribunal had heard from the other party and ruled on the application for the interim
measure. Yet another distinctive characteristic of a preliminary order was to be found in
its legal regime, which made it subject to stricter time limits than other interim measures.
To summarize these specific characteristics of a preliminary order, it was stated that the
preliminary order was effectively limited to providing a bridging device until an inter
partes hearing could take place in respect of a requested interim measure.
Proposed redrafts of subparagraph (a)
P 352 27. With a view to clarifying the distinction between interim measures and preliminary
P 353 orders, and to further restricting the functions served by a preliminary order, support
was expressed in favour of the following alternative wording for subparagraph (a):
“Unless otherwise agreed by the parties, a party requesting an interim measure
of protection may file its request without notice to the other party, together
with an application for a preliminary order necessary to prevent the frustration

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 of the purpose of the interim measure requested.”
28. It was stated that such alternative wording was more likely to achieve consensus since
it appeared to provide a higher standard, limiting cases where a provisional order might
be issued to situations where the arbitral tribunal determined that an ex parte order was
necessary to prevent the frustration of the purpose of the interim measure. It was stated
that, by omitting the reference to preserving the status quo, the alternative wording
provided greater flexibility for the arbitral tribunal. It was also said that the proposal
represented an improvement on the draft text by clarifying the differences between an
interim measure and a preliminary order.
29. As a matter of drafting, it was suggested that the words “a preliminary order necessary”
should be replaced by “such preliminary order as may be necessary”. Another drafting
suggestion was made in response to a question as to whether the absence of notice to the
other party applied to both the request for the interim measure and the application for a
preliminary order. With a view to making it abundantly clear that both the request and the
application were made without notice to the other party, it was suggested that the words
“without notice to the other party” should be moved to the end of subparagraph (a). Some
support was expressed for these suggestions.
30. It was suggested that subparagraph (a) was intended to reflect an existing practice,
whereby arbitrators would notify a party of an application for a preliminary measure,
together with an order by the arbitral tribunal (sometimes referred to as a “stop order”)
requiring that party to refrain from taking any action that might affect the position of the
parties until both parties had been heard. With a view to further restricting the function of
an interim order to reflecting that practice, it was proposed that subparagraph (a) should
read along the following lines:
“Unless otherwise agreed by the parties, a party requesting an interim measure
of protection may file its request without notice to the other party, together
with an application for a preliminary order directing the other party to take no
action to frustrate the purpose of the interim measure requested.”
31. Although that proposal was too restrictive in the view of some delegations, it received
broad support as a formulation that could reconcile the opposing views expressed in
respect of ex parte interim measures. It was also pointed out that the proposed wording
would be particularly helpful in providing a distinction between the limited purpose of a
preliminary order and the more general functions served by interim measures. In response
to questions, it was explained that the reference to “directing the other part to take no
P 353 action to frustrate the purpose of the interim measure” should not be interpreted as only
P 354 requiring a party to refrain from acting but rather should be broadly understood to also
encompass a direction for an affirmative action. In addition, it was pointed out that the
term “order” should not be interpreted as imposing any procedural requirement as to the
form that a preliminary order should take.
32. After discussion, the Working Group adopted the alternative wording proposed above
under paragraphs 30 and 31, subject to its future deliberations regarding the placement of
paragraph (7) and the formulation of any opting-out or opting-in clause.
Subparagraph (b)[Art. 17 B(3) in the final text]
References to paragraphs (2), (3), (5), (6) and (6 bis)
33. Concern was expressed that the references in subparagraph (b) to paragraphs (2), (3),
(5), (6) and (6 bis) could be interpreted as creating a single regime for both interim
measures and preliminary orders. In response, it was said that references to paragraphs
(3), (5), (6) and (6 bis) were designed to build in the same safeguards and conditions that
applied to interim measures and should not be interpreted as equating a preliminary
order with any other interim measure.
34. Given that the Working Group agreed to delineate preliminary orders in a more limited
fashion (see above, paras. 30–32), the Working Group, after discussion, agreed to delete the
reference to paragraph (2) in subparagraph (b). It was also agreed to maintain the
reference to paragraphs (3), (5), (6) and (6 bis).
Possible reference to paragraph (4)
35. A proposal was made that subparagraph (b) should include a reference to paragraph (4)
which provided that the arbitral tribunal “may” require security in the context of an
application for an interim measure. As a consequence of that proposal, it was also
suggested that subparagraph (g) (under which an arbitral tribunal came under an
obligation to require security in connection with the issuance of a preliminary order)
should be deleted. It was recalled that the Working Group had, in earlier discussions,
concluded that the provision of appropriate security should be a mandatory requirement
to the granting of ex parte interim measures of protection (see [December 2003 Working
Group Report,] A/CN.9/545, para. 69). Some support was expressed for the retention of
security as a mandatory requirement given that it was one of the most important
safeguards in an ex parte situation.
36. However, concern was expressed that, in some circumstances, requiring security would

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 not be feasible, for example, where a claimant was in an impecunious state because of
action taken by the respondent or where injunctive relief was sought. In response, it was
said that paragraph (g) was already intended to accommodate these concerns through its
reference to “appropriate” security.
37. Nevertheless, strong support was expressed for the view that it would be preferable to
preserve a level of discretion for the arbitral tribunal to exercise when dealing with the
P 354 matter of security. To achieve that result, it was suggested that subparagraph (g) should be
P 355 modified so as to oblige the arbitral tribunal to consider the issue of security but leave
the decision on whether to require such security to its discretion. Concerns were expressed,
however, with the possible consequences of failure by the arbitral tribunal to meet such an
obligation. To alleviate those concerns, a proposal was made that no reference should be
made to paragraph (4) in subparagraph (b) and that, instead, the following words should
be added at the end of subparagraph (g): “unless it is satisfied that there are special
reasons not to do so”. Broad support was expressed for the substance of that proposal. As a
matter of drafting, a question was raised as to whether the word “special” should be used,
at the risk of suggesting that the arbitral tribunal ought to be presented with predefined
specific reasons. In response, it was suggested that words along the following lines might
be used: “unless the arbitral tribunal considers it inappropriate or unnecessary to do so”.
The Secretariat was requested to prepare a revised draft of subparagraph (g) taking
account of that discussion.
38. Concern was expressed that the point in time when security might be required was not
clearly defined. As well, concern was expressed that insufficient attention had been given
to date on the relationship between subparagraph (g) and provisions relating to
enforcement dealt with in draft article 17 bis. It was recalled that that matter had been the
subject of earlier discussions in the Working Group, but that the full implications of the
relationship between an order for security made by an arbitral tribunal and its impact or
relevance in later court proceedings for enforcement had not been fully considered (for
earlier discussions, see [the June 2003 Working Group Report,] A/CN.9/524, paras. 72–75
[reprinted in the section on Arts. 17 H – 17 I, pp. 488–90 infra]). It was agreed that the matter
might need to be further considered at a later stage.
Subparagraph (c)[Art. 17 B(2) in the final text]
39. The Working Group proceeded to consider subparagraph (c). It was suggested that
subparagraph (c) should be omitted for the reason that it merely repeated what was
already in subparagraph (a). Another suggestion was that, to the extent subparagraph (c)
offered guidance that might be useful to arbitrators, its content could be included in
explanatory material to clarify the meaning of subparagraph (a).
40. Views were expressed, however, for the retention of subparagraph (c) in the body of
paragraph (7). It was stated that subparagraph (a) dealt with the procedure to be followed
by a party when applying for a preliminary order whereas subparagraph (c) dealt with the
issue from the perspective of the arbitral tribunal's powers and provided guidance as to
the considerations to be taken into account by an arbitral tribunal when granting such an
order. In that way, subparagraph (c) could be seen as supporting and strengthening
subparagraph (a).
41. To emphasize the exceptional nature of preliminary orders and to ensure that
subparagraph (c) complemented rather than duplicated paragraph (a), it was suggested
that subparagraph (c) should be replaced by the following: “The arbitral tribunal may not
grant a preliminary order unless it concludes that there are grounds for concern that the
P 355 purpose of the requested interim measure will otherwise be frustrated before all parties
P 356 can be heard”. Support was expressed for that proposal, which was said to place
adequate emphasis on the exceptional circumstances that were required to justify the
issuance of a preliminary order. It was suggested that, to further emphasize the serious
implications of a preliminary order, the words “grounds for concern” (which were
considered imprecise and too broad in scope) should be replaced by the words
“substantial likelihood” or “reasonable basis for concern”. In that connection, it was
suggested that the draft provision should not only concern itself with the risk of frustration
of the measure but also with the appropriateness of the measure.
42. Concern was expressed that requiring arbitrators to apply standards such as
“substantial likelihood” or “reasonable basis for concern” might lead to uncertain results
and might not offer the simple guidance called for, in particular by less experienced
arbitrators. The Working Group took note of that concern.
43. Another suggestion was made that subparagraph (c) might be more helpful if it was to
be drafted in an affirmative rather than negative way. As a matter of drafting, it was
suggested that the term “concludes” should be replaced by the term “considers” and that
the word “otherwise” should be deleted as unnecessary. It was suggested that
subparagraph (c) should be redrafted along the following lines: “The arbitral tribunal may
only grant a preliminary order if it considers that there is a reasonable basis for concern
that the purpose of the requested interim measure will be frustrated before all parties can
be heard”. After discussion, the Working Group adopted the substance of that proposal.
Subparagraph (d)[Art. 17 C(1) in the final text]
Notice

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 44. The Working Group focused its attention on the first unbracketed text of subparagraph
(d). Noting that, in some cases, it would be difficult for an arbitral tribunal to give notice to
the party against whom the preliminary order was directed, it was suggested that, in line
with the approach taken elsewhere in the Model Law, the question of who shall give notice
should be left open. For example, article 24 (2) of the Model Law provided that the parties
“shall be given sufficient advance notice” and did not specify who would give such notice.
It was said that such an approach could allow the arbitral tribunal to direct the requesting
party to give notice. The Working Group agreed that subparagraph (d) should provide such
flexibility to the arbitral tribunal.
45. It was suggested that subparagraph (d) required that notice of the application for a
preliminary order should be given but did not expressly include an obligation that notice
should also be given of the request for an interim measure. It was suggested that, although
that request might already be covered by the term “all other communications”, the term “,
the request for an interim measure” should be added after the word “application” when
first appearing in subparagraph (d) to put that point beyond doubt. The Working Group
adopted the substance of that suggestion and requested the Secretariat to redraft
subparagraph (c) accordingly.
P 356
P 357
Deferral of notification and court enforcement
46. The Working Group then turned its attention to the issue of deferral of notification until
court enforcement of the preliminary order as set out in the bracketed text at the end of
subparagraph (d).
47. It was stated that including the bracketed text would permit a continuing dialogue
between the party applying for the preliminary order and the arbitral tribunal to the
exclusion of the other party and allow the arbitral tribunal to become enmeshed in
episodic renewals of the deferral of notification to the other party. It was submitted that
confidence in the arbitral process would be undermined by the inclusion of text that would
disregard the principle of due process by allowing an arbitral tribunal to make an enduring
decision against a party without first hearing from that party. In response, it was stated
that the issue was one of preventing frustration of the requested interim measure and, in
any event, the maximum period during which notification to the other party could be
deferred would be limited to twenty days under subparagraph (f). As to the view that
including the bracketed text would undermine confidence in arbitration, it was pointed
out that there were often times in the course of an arbitration when arbitrators made
decisions that were against the desire of one party, as for example, in setting terms of
reference and time periods. The view was expressed that confidence in arbitration came
from preventing one party from gaining an unfair advantage, not from avoiding unpopular
decisions. The view was expressed, however, that these examples were inapposite as such
matters were settled inter partes so that due process was not affected.
48. The view was also expressed that requiring an arbitral tribunal to take account of the
need for court enforcement presupposed a culture of cooperation between arbitral
tribunals and courts that did not exist in all countries. It was pointed out that, where it was
foreseen that court enforcement of a preliminary order would be necessary (i.e. where a
degree of surprise was required to prevent frustration of the purpose of the interim
measure), it would be more logical and practical for the requesting party to address a
request to the same effect directly to the competent State court rather than prolong the
unilateral phase before the arbitral tribunal. Against that view, it was stated that, in
certain complex arbitrations, it would be more efficient for parties to request a
preliminary order from the arbitral tribunal that already had knowledge of the case. It was
also stated that, in any event, the choice of whether to go to court or an arbitral tribunal to
request a preliminary order should be left to the parties.
49. It was noted that paragraph 7 (i), currently contained in a footnote to subparagraph (d),
set out a detailed procedure for the deferral of notification to allow court enforcement of
the preliminary order. It was pointed out by a number of delegations that the provision
delved into too much procedural details. Such details, it was said, did not easily lend
themselves to harmonization by way of uniform legislation, were unnecessarily complex,
risked burdening arbitrators with a procedural framework that was too rigidly inspired
from procedural rules followed by certain State courts, and might insufficiently cover the
P 357 broad range of practical circumstances that might arise in the context of interaction
P 358 between State courts and arbitral tribunals. The prevailing view was that the procedure
for deferral of notice should be simplified. To that end, it was agreed that the reference to
paragraph 7 (i) in subparagraph (d) and subparagraph (i) itself should be deleted.
50. As a matter of drafting, it was suggested that the words “until court enforcement or
expiry of the preliminary order” at the end of the bracketed part of subparagraph (d)
should be replaced by the words “until the court decides whether or not to enforce the
preliminary order or the order expires”. Another drafting suggestion was that, to clarify that
the deferral should be as short as possible, words along the lines of “whichever be the
earlier” should be added to the end of subparagraph (d). The Working Group took note of
those suggestions.
51. After discussion, the Working Group failed to reach consensus as to whether the issue of

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 court enforcement of preliminary orders should be dealt with in the revised draft of article
17. It was decided that the bracketed text at the end of subparagraph (d), subject to the
deletion of the reference to subparagraph (i), should remain in square brackets for
continuation of the discussion at a future session. The Secretariat was requested to
prepare a revised draft of subparagraph (d), taking into account the deliberations of the
Working Group. At the close of its deliberations, the Working Group was reminded that the
deletion of all provisions dealing with the court enforcement of preliminary orders might
make the entire text of paragraph (7), including the opting-out clause, more acceptable to
a number of delegations.
Subparagraph (e)[Art. 17 C(2) in the final text]
52. It was recalled that subparagraph (e) dealt with the opportunity for the responding
party to present its case after it had received notice from the arbitral tribunal and
established a corresponding time period. That period was specified to be the earliest
possible time and, in any event, no later than forty-eight hours after notice was given to
the responding party.
53. It was suggested that, in order to clarify that the arbitral tribunal had an obligation to
give the responding party an opportunity to present its case, the opening words of the
subparagraph should be redrafted in the active voice, along the following lines: “The
arbitral tribunal shall give an opportunity to the party against whom the preliminary order
is directed to present its case …”. The Working Group adopted that suggestion.
54. A concern was raised that the reference to the time limit of forty-eight hours might not
be appropriate given that a responding party might require a longer period to prepare and
present its case. It was explained, in response, that the reference to “the party against
whom the preliminary order is directed” being given “an opportunity to present its case”
was intended to establish the right of that party to be heard but not to burden that party
with an obligation to react within forty-eight hours.
55. With a view to introducing further clarity and to avoid the risk that the provision could
P 358 be misinterpreted as creating an obligation for the responding party to react within forty-
P 359 eight hours, various proposals were made. One proposal was that the time period for
the responding party to present its case should be more flexible and refer simply to “the
earliest possible time”. A related proposal was that the words “at the earliest possible
time” should be replaced by the words “at the earliest practicable time”. Another proposal
was that the reference to forty-eight hours or other short time period should be redrafted
to delimit the period during which the arbitral tribunal should decide on the measure
after having heard from the responding party. Under those combined proposals,
subparagraph (e) would read along the following lines: “The arbitral tribunal shall give to
the party against whom the preliminary order is directed an opportunity to present its
case before the arbitral tribunal at the earliest practicable time. Within forty-eight hours
or such other short time period, following the expiration of the time for the other party to
present its case, the arbitral tribunal shall decide whether to confirm, extend or modify a
preliminary order.”
56. As a matter of drafting, it was suggested that the words “to confirm, extend or modify a
preliminary order” in the proposed redraft of subparagraph (e) should be replaced by the
words “to confirm, extend or modify the preliminary order as an interim measure, or to
terminate the order” so that all occurrences could be covered. Yet another drafting
suggestion was that, with a view to avoiding possible confusion between a hearing on the
preliminary order and a hearing on the merits of the underlying application for the interim
measure, the words “to present its case” should be replaced by the words “to present its
case for termination of the preliminary order”.
57. While it was observed that that proposed redraft of subparagraph (e) provided greater
flexibility for the time period during which the responding party should present its case,
concern was expressed that the deletion of the forty-eight-hour period during which the
responding party should present its case removed a fundamental safeguard for that party.
To meet that concern, it was suggested that the words “, normally within forty-eight hours”
could be added at the end of the first sentence of the proposed redraft. While the concern
was widely shared, the view was also expressed that the term “normally” was not generally
used in legislative texts and that alternative wording should be sought, possibly inspired
from the original text of subparagraph (e) or otherwise referring to the time appropriate “in
the light of the circumstances”.
58. Another concern in relation to the proposed redraft of subparagraph (e) was that, once
the arbitral tribunal had heard from the responding party, the preliminary order became
obsolete and the regime of interim measures should then be applied. After discussion, the
second sentence of the proposed redraft was withdrawn by its proponents. However, it was
pointed out that the deletion of the second sentence might create a gap in that it was not
clear what happened to the preliminary order after the party had been given an
opportunity to present its case.
59. A further proposal was made to redraft subparagraph (e) as follows: “The arbitral
tribunal shall give to the party against whom the preliminary order is directed an
opportunity to present its case no later than forty-eight hours after notice is given or a
P 359 longer period of time if it is so required by that party.” It was explained that the purpose of
P 360

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 P 360 that proposal was to expressly provide for a longer period for the responding party to
present its case and, as well, to expressly allow that party to request that longer period
rather than leave that matter entirely to the judgement of the arbitral tribunal based on
the circumstances.
60. A comment was made that subparagraph (e) did not address the consequences of the
situation where a party intentionally sought to delay the presentation of its case to the
arbitral tribunal with the intention of taking advantage of the twenty-day time limit on
preliminary orders to frustrate the request for an interim measure of protection. In
response, it was pointed out that that issue should not be over regulated and the provision
should seek to provide a flexible procedure for the arbitral tribunal to deal with such a
case.
61. After discussion, the Working Group requested the Secretariat to prepare a revised
draft of subparagraph (e) taking into account the above concerns, proposals and
suggestions.
Subparagraph (f)[Art. 17 C(4) in the final text]
62. It was suggested that the second sentence of subparagraph (f) should be deleted, as its
content was already reflected in paragraph (6), which applied to a preliminary order by
virtue of paragraph (7)(b). It was agreed that the second sentence could be deleted on that
basis. However, it was pointed out that it might be important to keep a reference to the
“extension” of the preliminary order, as that term was not expressly contained in
paragraph (6). In response, it was suggested that the word “modification” implicitly
included the right for the arbitral tribunal to extend the preliminary order. The view was
expressed, however, that further clarification would need to be introduced in paragraph
(6) with respect to the possibility of an extension of an interim measure.
63. In respect of the first sentence of subparagraph (f), it was proposed that the phrase
starting with the word “unless” should be deleted. It was suggested that that provision was
not necessary, created a risk of confusion between the interim measure and the
preliminary order, and could contradict the principle that a preliminary order had a fixed
life span of twenty days. However, it was noted that the removal of those words posed the
risk that there could be a gap between the time when the preliminary order expired and
the time when the interim measure took effect. It was suggested that such a gap could
arise, for example, if the enforcement of a preliminary order took longer than twenty days.
In response, it was said that it might be necessary to clarify in subparagraph (f) that the
extension of a preliminary order would imply its conversion into an interim measure. To
achieve such clarification, it was proposed to replace the words “unless it has been
confirmed, extended or modified by the arbitral tribunal in the form of an interim measure
of protection [or in any other form]” by a new sentence along the following lines: “The
arbitral tribunal may convert the preliminary order into an interim measure.” While some
support was expressed for that view, it was suggested that it might be simpler to state that
an interim measure could be issued which contained all or part of the contents of a
preliminary order.
P 360 64. To strengthen the principle that an arbitral tribunal could not extend the ex parte
P 361 phase of the proceedings beyond the twenty-day limit (which was referred to as the
“drop dead date” to illustrate the view that a preliminary order could only be extended
beyond that limit in the form of an inter partes interim measure), it was proposed that
subparagraph (f) could be redrafted as follows: “In any event, a preliminary order under
this paragraph shall expire after twenty days from the date on which it was issued by the
arbitral tribunal.” Some support was expressed for that suggestion. The Secretariat was
requested to take account of the above proposals and suggestions when preparing a
revised draft of subparagraph (f) for further consideration by the Working Group.
Subparagraph (g)[Art. 17 E(2) in the final text]
65. The Working Group agreed that, as discussed above in relation to subparagraph (b) (see
above, paras. 35–38), subparagraph (g) should be modified by including wording along the
following lines at the end of subparagraph (g): “unless the arbitral tribunal considers it
inappropriate or unnecessary to do so”.
Subparagraph (h)[Art. 17 F(2) in the final text]
66. It was recalled that subparagraph (h) was inspired from the rule in existence in certain
jurisdictions that counsel had a special obligation to inform the court of all matters,
including those that spoke against its position and that it was considered as a fundamental
safeguard and an essential condition to the acceptability of ex parte interim measures (for
earlier discussions, see [the December 2003 Working Group Report,] A/CN.9/545, para. 88).
However, it was suggested that subparagraph (h) duplicated an obligation that was already
provided for under paragraph (5) and was included, pursuant to paragraph (7) (b), in the
list of provisions that applied to paragraph (7).
67. The view was expressed that a possible difference between the two provisions might be
the existence of a continuing obligation of disclosure under subparagraph (h) that was not
reflected under paragraph (5). Accordingly, a proposal was made in respect of paragraph
(5) to replace the words “The requesting party shall promptly make disclosure of” by the
words “The requesting party shall have a continuing obligation to disclose”. In response, it

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 was explained that, as currently drafted, paragraph (5) already established a continuing
obligation.
68. It was stated that subparagraph (h) established a broader obligation by requiring the
disclosure of all circumstances that the arbitral tribunal was likely to find relevant to its
determination, whether or not related to the application, as compared to paragraph (5),
which referred only to any material changes in the circumstances on the basis of which the
request was made or the interim measure was granted. In addition, it was said that while
paragraph (5) addressed material changes in the circumstances after the interim measure
had been granted, subparagraph (h) covered the obligation to inform until the responding
party had presented its case. Given those differences between the two provisions, the
Working Group agreed that subparagraph (h) should be retained to ensure that the
requesting party was under a strong obligation for full disclosure until the other party had
been heard. However, bearing in mind that, under many national laws, the obligation for a
party to present arguments against its position was unknown and contrary to general
P 361
P 362
principles of procedural law, it was suggested that further consideration might need to
be given to the possibility of adding a footnote inspired from the approach taken under
article 35 (2) of the Model Law. The Secretariat was invited to take note of that suggestion
when preparing a revised draft of subparagraph (h) for further consideration by the
Working Group.
General discussion and future course of action by the Working Group
69. Due to the lack of sufficient time, the Working Group did not discuss paragraphs (1) to (6
bis) of draft article 17 (see above, para. 12). It was noted that discussion of those draft
provisions, including proposals for alternative formulations (see above, para. 22) would
need to be reopened at a future session. At the close of its review of the individual
provisions contained in paragraph (7), the Working Group reverted to the general debate as
to whether a revised version of article 17 should seek to establish a legal regime for interim
measures issued ex parte by an arbitral tribunal and, if so, what form might be given to
such a legal regime. The view was reiterated that, in the absence of a consensus to
recognize such ex parte interim measures through model provisions that were described
by some delegations as potentially damaging to the Model Law and to commercial
arbitration in general, the option not to deal with ex parte measures at all should be kept
open. As an additional reason for refusing to recognize ex parte measures in commercial
arbitration, it was stated that a regime along the lines of paragraph (7) might be
particularly difficult to apply for non-lawyers (also described as “lay arbitrators”). The
hope was expressed that, even if no consensus could be found in respect of a legal regime
for ex parte interim measures, at least a number of options could be outlined in the
revised text of the Model Law for the benefit of national legislators and other users of that
instrument. The prevailing view, however, was that every effort should be made to preserve
the benefit of the progress achieved at the current session towards a consensus on a
limited recognition of ex parte interim measures in the form of preliminary orders.
70. The Secretariat was requested to prepare a revised draft of paragraph (7) outlining
various options that might need to be considered in finalizing a set of model statutory
provisions aimed at providing such limited recognition of ex parte measures. In particular,
it was agreed that variants of the text might need to be considered in respect of the
following four possible approaches that might be taken in respect of paragraph (7): opting-
in by the parties; opting-out by the parties; opting-in by the enacting State; opting-out by
the enacting State (see above, paras. 18–21). In that connection, it was pointed out that,
when preparing a revised draft, the following issues might need to be borne in mind: an
opting-in provision inserted in a set of rules along the lines of paragraph (7) should seek to
preserve the freedom of the parties to enter agreements containing other legal rules
governing ex parte interim measures; an opting-in regime should clarify whether it created
possibilities for the parties to derogate from the provisions of the Model Law in respect of
equality of the parties and the parties' right to be heard; the implications of such
derogations in respect of articles 34 and 36 of the Model Law should also be clarified; in
cases where an opting-in situation would be created for national legislators, explanations
P 362 might need to be provided as to whether, in the absence of any specific provision
P 363 regarding ex parte interim measures, the text should be interpreted as permitting or
not permitting arbitral tribunals to issue such measures.
71. It was also agreed that the Working Group would need to further consider options as to
whether or not court enforcement of preliminary orders might be sought and, if so, whether
detailed rules in that respect should be provided in draft article 17 bis.
NOVEMBER 2004 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.134 (19
NOVEMBER 2004)
3. To facilitate the resumption of discussions [on the issue of including ex parte measures],
this note sets out a newly revised version of paragraph (7) of draft article 17 of the
UNCITRAL Model Law (“the revised draft”), taking account of discussions and decisions
made at the forty-first session of the Working Group.
Revised draft of paragraph (7) of draft article 17 of the UNCITRAL Model Law on
International Commercial Arbitration regarding the power of an arbitral tribunal to grant
interim measures of protection

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 “(7)
(a) [Art. 17 B(1) in the final text][Unless otherwise agreed by the parties,][If expressly
agreed by the parties,] a party may file, without notice to the other party, a request
for an interim measure of protection together with an application for a preliminary
order directing the other party to take no action to frustrate the purpose of the
interim measure requested.
“(b) [Art. 17 B(3) in the final text] The provisions of paragraphs (3), (5), (6) and (6 bis) of this
article apply to any preliminary order that the arbitral tribunal may grant pursuant
to this paragraph.
“(c) [Art. 17 B(2) in the final text] The arbitral tribunal may only grant a preliminary order if
it considers that there is a reasonable basis for concern that the purpose of the
requested interim measure will be frustrated before all parties can be heard.
“(d) [Art. 17 C(1) in the final text] Immediately after the arbitral tribunal has made a
determination in respect of a preliminary order, the party against whom the
preliminary order is directed shall be given notice of the request for the interim
measure, the application for the preliminary order, the preliminary order, if any, and
all other communications between any party and the arbitral tribunal in relation
thereto [, unless the arbitral tribunal determines that such notification should be
deferred until either the court decides whether to enforce the preliminary order or
the order expires, whichever occurs earlier].
“(e) [Art. 17 C(2) in the final text] The arbitral tribunal shall give an opportunity to the party
against whom the preliminary order is directed to present its case
Variant
A: no later than forty-eight hours after notice is given, or a longer period of time if
so requested by that party [in light of the circumstances].
P 363
P 364
Variant
B: at the earliest practicable time after notice is given [in light of the
circumstances].
“(f) [Art. 17 C in the final text] The arbitral tribunal may issue an interim measure of
protection confirming, extending or modifying the preliminary order, or terminate
the preliminary order, after the party against whom the preliminary order is directed
has been given notice and an opportunity to present its case. In any event, a
preliminary order under this paragraph shall expire after twenty days from the date
on which it was issued by the arbitral tribunal.
“(g) [Art. 17 E(2) in the final text] The arbitral tribunal shall require the requesting party to
provide appropriate security in connection with such preliminary order, unless the
arbitral tribunal considers it inappropriate or unnecessary to do so.
“(h) [Art. 17 F(2) in the final text] Until the party against whom the preliminary order is
directed has presented its case under subparagraph (7) (e), the requesting party shall
have a continuing obligation to disclose to the arbitral tribunal all circumstances
that the arbitral tribunal is likely to find relevant to its determination whether to
grant a preliminary order under subparagraph (7) (c). (*) ”
Options
4. At its forty-first session, the Working Group agreed that various options might need to be
considered before finalizing a set of model statutory provisions aimed at providing a
limited recognition of ex parte measures. In particular, it is recalled that the following
options were considered as possible approaches in respect of paragraph (7) ([October 2004
Working Group Report,] A/CN.9/569, paras. 18–21 and para. 70):
– opting-in or opting-out by the parties:
• If the opting-in solution is adopted by the Working Group, the words “[If
expressly agreed by the parties,]” should then be retained in the text. In
addition, in order to preserve the freedom of the parties to enter into
agreements containing other legal rules governing ex parte interim measures,
the following words could be added for that option under subparagraph (b):
“Subject to the provisions of paragraphs (3) [Art. 17 A in the final text], (5) [Art. 17
F(1) in the final text], (6) [Art. 17 D in the final text] and (6 bis) [Art. 17 G in the final
text] of this article, the parties are free to agree on a procedure to allow the
arbitral tribunal to grant a preliminary order. Failing such agreement, the
provisions of paragraph (7) of this article shall apply.”
• If the Working Group adopts the opting-out solution, the words “[Unless
otherwise agreed by the parties,]” should then be retained in the text.
P 364
P 365 – opting-in or opting-out by the enacting State:
• An opt-in approach could be reflected by including paragraph (7) as a footnote
to the revised article 17 with the following sentence to introduce paragraph (7)
(inspired by article 4 of the UNCITRAL Model Law on International Commercial
Conciliation):
“The following text is suggested for States that might wish to adopt a

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 provision on preliminary orders:”
• An opt-out approach could be reflected by retaining paragraph (7) within the
main body of the revised article 17, but including a footnote (modelled on the
approach taken in article 35(2) of the Model Law) along the lines that:
“Paragraph 7 is intended to define the procedure applicable to
preliminary orders. It would not be contrary to the harmonization to
be achieved by the Model Law if a State decided not to include this
paragraph.”.
5. If the Working Group decides to adopt an opt-in or opt-out option for national legislators
then explanations might need to be provided as to whether, in the absence of any specific
provision regarding ex parte interim measures, the text should be interpreted as
permitting or not permitting arbitral tribunals to issue such measures.
Subparagraph (a)
6. The revised draft reflects the decision made by the Working Group at its forty-first
session to clarify the distinction between interim measures and preliminary orders, and to
further restrict the functions served by a preliminary order ([October 2004 Working Group
Report,] A/CN.9/569, paras. 30 and 31).
Subparagraph (b)
References to paragraphs (3), (5), (6) and (6 bis)
7. The revised draft reflects the decision of the Working Group to maintain the reference to
paragraphs (3), (5), (6) and (6 bis) in subparagraph (b) ([October 2004 Working Group
Report,] A/CN.9/569, para. 34).
Subparagraph (c)
8. The revised draft of subparagraph (c) reflects the following decisions of the Working
Group ([October 2004 Working Group Report,] A/CN.9/569, paras. 39–43):
– To draft that provision in an affirmative rather than negative way;
– To emphasize the exceptional nature of preliminary orders and to ensure that
subparagraph (c) complements rather than duplicates subparagraph (a). Whilst
subparagraph (a) deals with the procedure to be followed by a party when applying
P 365 for a preliminary order, subparagraph (c) deals with that issue from the perspective
P 366 of the arbitral tribunal's powers and provides guidance as to the considerations to
be taken into account by an arbitral tribunal when granting such an order;
– To ensure that the draft provision concerns itself with the risk of frustration of the
measure and with the appropriateness of the measure.
Subparagraph (d)
Notice
9. In line with the approach taken in other articles of the Model Law (as for instance under
article 24(2)), the revised draft of subparagraph (d) leaves open the question of who shall
give notice ([October 2004 Working Group Report,] A/CN.9/569, para. 44). In addition, as
agreed by the Working Group, the term “, the request for an interim measure” has been
added to put beyond doubt that subparagraph (d) requires that notice of the application
for a preliminary order be given ([October 2004 Working Group Report,] A/CN.9/569, para.
45).
Deferral of notification and court enforcement
10. It is recalled that the Working Group failed to reach consensus as to whether the issue
of court enforcement of preliminary orders should be dealt with in the revised draft of
article 17. It was decided that the bracketed text at the end of subparagraph (d) should
remain in square brackets for continuation of the discussion at a future session ([October
2004 Working Group Report,] A/CN.9/569, para. 51).
Subparagraph (e)
11. As agreed by the Working Group, in order to clarify that the arbitral tribunal has an
obligation to give the responding party an opportunity to present its case, the opening
words of the subparagraph have been redrafted in the active voice ([October 2004 Working
Group Report,] A/CN.9/569, para. 53).
12. The Working Group expressed concern that, whatever approach is taken with respect to
the requirement that the responding party be given an opportunity to present its case, the
approach should avoid the risk that the provision could be misinterpreted as creating an
obligation for the responding party to react within forty-eight hours ([October 2004 Working
Group Report,] A/CN.9/569, paras. 54 and 55). Variants A and B proposed in the revised
draft of paragraph (7) reflect the discussions of the Working Group on the appropriateness
of defining a time limit for the responding party to present its case.
13. Variant A provides for a forty-eight-hour period during which the responding party
should present its case. This limitation was regarded by some delegations in the Working

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 Group as a fundamental safeguard. The purpose of this Variant is to expressly provide a
longer period for the responding party to present its case and to allow that party to
request such longer period rather than leave that matter entirely to the judgement of the
arbitral tribunal based on the circumstances ([October 2004 Working Group Report,]
A/CN.9/569, para. 57).
P 366
P 367
14. Variant B does not include any time limitation or refers to the possibility that the
responding party might request a longer period in which to present its case.
15. The Working Group may wish to consider merging Variants A and B so that the provision
would read as follows: “at the earliest practicable time, but no later than forty-eight hours,
after notice is given, or a longer period of time if so requested by that party [in light of the
circumstances].”.
Subparagraph (f)
16. As agreed by the Working Group, the new draft of paragraph (7) includes a reference to
the notion of a preliminary order being modified by the arbitral tribunal ([October 2004
Working Group Report,] A/CN.9/569, para. 62).
17. The revised draft reflects the decision of the Working Group that subparagraph (f)
should unambiguously clarify that a preliminary order has a limited life span of twenty
days and strengthens the principle that an arbitral tribunal could not extend the ex parte
phase of the proceedings beyond the twenty-day limit. To that end, the sentence “In any
event, a preliminary order under this paragraph shall expire after twenty days from the
date on which it was issued by the arbitral tribunal” has been added ([October 2004
Working Group Report,] A/CN.9/569, paras. 63 and 64).
Subparagraph (g)
18. The revised draft of subparagraph (g) reflects the decision of the Working Group to grant
to the arbitral tribunal more flexibility on the question of the provision of security by the
requesting party. The following words have been added at the end of subparagraph (g):
“unless the arbitral tribunal considers it inappropriate or unnecessary to do so”. ([October
2004 Working Group Report,] A/CN.9/569, para. 65).
Subparagraph (h)
19. As decided by the Working Group, a footnote, inspired from the approach taken under
article 35 (2) of the Model Law, has been added to subparagraph (h) to take account of the
fact that, under many national laws, the obligation for a party to present arguments
against its position is unknown and contrary to general principles of procedural law. The
Working Group might wish to further consider that proposal ([October 2004 Working Group
Report,] A/CN.9/569, para. 68), taking account of the decision which will be made by the
Working Group on whether paragraph (7) in its entirety, should appear as an opt-in or opt-
out provision for the national legislators (see above, paragraph 4).
P 367
P 368
JANUARY 2005 WORKING GROUP REPORT A/CN.9/573 (27 JANUARY 2005)
III. Draft article 17 of the UNCITRAL Model Law on International Commercial Arbitration
regarding the power of an arbitral tribunal to grant interim measures of protection
11. The Working Group recalled that, at its forty-first session (Vienna, 13–17 September
2004), it had undertaken a detailed review of the text of paragraph (7) [Arts. 17 B –17 C in the
final text] of the revised version of article 17 regarding the power of an arbitral tribunal to
grant interim relief on an ex parte basis, before coming to a decision as to whether a
specific mention of preliminary orders should appear in draft article 17 [Arts. 17 –17 G in the
final text] (in draft article 17 and in this report, the notion of interim relief being granted on
an ex parte basis is generally reflected through use of the term “preliminary order(s)”). The
Working Group resumed discussions on paragraph (7) of draft article 17, on the basis of the
text prepared by the Secretariat to reflect the discussions of the Working Group and set
out in [the November 2004 Secretariat Note,] A/CN.9/WG.II/WP.134.
Paragraph 7[Arts. 17 B, C, E(2) and F(2) in the final text]
12. There remained division in the Working Group as to whether or not to include a
provision on preliminary orders in draft article 17.
13. It was said that international arbitration practice would benefit from allowing the
possibility for arbitral tribunals to grant preliminary orders, for a number of reasons,
including that:
– The parties to an arbitral proceeding might prefer to obtain preliminary orders from
the arbitral tribunal instead of requesting a State court to issue such an order;
– The power to grant ex parte interim relief already vested with State courts, and
arbitral tribunals should enjoy the same level of powers as State courts in that
respect;
– The absence of regulation regarding preliminary orders had the consequence of
leaving open the possibility that an arbitral tribunal might order and enforce a

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 preliminary order and the inclusion of paragraph 7 was important as it provided for
valuable safeguards and useful guidance for those States that were willing to adopt
legislation on preliminary orders.
14. However, opposition was expressed to its inclusion on a number of grounds, including
that:
– Paragraph (7) was contrary to the principle of equality of treatment of the parties as
provided for under article 18 of the Model Law and contrary to the provision of article
36 (1)(a)(ii) of the Model Law;
P 368 – There was no consensus as to whether, as a matter of general policy, the Model Law
P 369 should seek to establish full parity between the powers of the arbitral tribunals
and those of the State courts, as illustrated by the divergence of opinions in respect
of the issue of preliminary orders.
15. After discussion, the Working Group agreed to further consider the principles of whether
paragraph 7 should be drafted as an opt-in or opt-out for States and/or for the parties to
an arbitral proceeding and whether a court enforcement regime should apply to
preliminary orders.
Opt-in or opt-out for States
16. The view was expressed that it was illogical and unnecessary to include either an opt-in
or opt-out clause for States given that the draft instrument was in the form of a Model Law
and therefore States were free to enact or not, or to modify, any of its provisions.
17. However, the view was also expressed that the inclusion of an opt-out option for the
States should be given consideration in order to provide guidance to States that had
doubts about the usefulness of preliminary orders. That option could be reflected by
adding a footnote to paragraph (7), modelled on the approach taken in article 35 (2) of the
Model Law, along the lines that “paragraph (7) is intended to define the procedure
applicable to preliminary orders. It would not be contrary to the harmonization to be
achieved by the model law if a State decided not to include this paragraph”.
Opt-in or opt-out for the parties
18. The opt-in option was viewed as an advisable solution and, in particular, was strongly
supported by those delegations opposing preliminary orders. It was also pointed out that
an opt-in approach provided a legal foundation for preliminary orders as an expression of
the will of the parties. In addition, to answer concerns that an opt-in solution would result
in preliminary orders never being issued in practice, it was stated that there existed
examples of arbitration rules applied by arbitration institutions which contained such a
right to order ex parte interim relief and those rules could be incorporated in arbitration
clauses concluded by commercial parties. However, it was stated that where no such rules
were incorporated, the opt-in approach would result in preliminary orders being
unavailable in most cases.
19. Support was expressed for the opt-out option for the parties. The opt-out option was
described as more in line with the current structure of the Model Law, which contained
several instances of such default rules subject to contrary agreement by the parties. It was
further observed that while opt-out provisions were commonly used in codes and other
legislation of civil law countries, that was not the case for opt-in provisions. The opt-out
option was also thought to be more in line with efforts by the Working Group at previous
sessions to recognize preliminary orders provided that appropriate safeguards were in
place to prevent abuse of such orders.
Enforcement
P 369 20. It was recalled that draft article 17 bis [Arts. 17 H –17 I in the final text] (see [July 2004
P 370 Secretariat Note,] A/CN.9/WG.II/WP.131) contained in its paragraph (6) a provision on
court enforcement of preliminary orders. It was widely felt that the inclusion of paragraph
(7) in draft article 17 could be more acceptable to those opposing preliminary orders if no
provision was made for the court enforcement of such orders. It was understood that
parties to an arbitration typically complied with orders of the arbitral tribunal.
Proposals
21. A number of proposals were made for the structuring of paragraph (7).
22. One proposal was that the revised draft could be acceptable provided that it
combined an opt-in approach for the parties and the deletion of paragraph (6) of article 17
bis, which dealt with enforcement of preliminary orders. However, it was pointed out that
providing an enforcement regime for preliminary orders under paragraph (6) of article 17
bis would be more acceptable if the opt-in option was retained, and the parties
authorized the arbitral tribunal to apply preliminary orders.
23. To overcome the wide divergence of views between the opt-in approach and those
opposing that approach, another proposal was made that the words “unless otherwise
agreed by the parties” and “if expressly agreed by the parties” would be deleted and
explanations along the following terms be included as footnotes to paragraph (7):
– Arbitral institutions were free to set up their own rules and the parties were free to

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 agree on other provisions;
– Paragraph 7 was intended to define the procedure applicable to preliminary orders
and it was not contrary to harmonization to be achieved by the Model Law if a State
decided either:
- Not to include paragraph 7;
- Only to apply such a provision where the parties so agreed;
- Not to apply such a provision if the parties have agreed otherwise; or
- To establish less onerous conditions than those contained in paragraph 7.
24. With the same objective of overcoming the wide divergence in opinions regarding the
opt-in or opt-out solutions, yet another proposal was that, if the Working Group agreed to
retain the opt-out option for the parties, a footnote to paragraph 7 (a) could be added,
providing that it would not be contrary to the harmonization to be achieved by the Model
Law if a State decided to retain the opt-in approach for the parties.
25. Some support was expressed for the proposals that would leave open various
possibilities in a footnote. However, it was pointed out that spelling out all possible
options in a footnote to paragraph (7) would run contrary to the purpose of achieving
harmonization of legislation, and would deprive States from receiving clear guidance on
that issue.
P 370
P 371
26. A further proposal was that paragraph 7 should provide that a preliminary order was in
the nature of a procedural order (as opposed to an award). It was said that that
clarification would distinguish preliminary orders from interim measures of protection,
which according to article 17 (2) [Art. 17(2) in the final text] could be issued in the form of an
award or in another form. Thus, the enforcement regime provided for under article 17 bis
would apply only to interim measures of protection.
27. After discussion, the Working Group, notwithstanding the wide divergence of views,
agreed to include the revised draft of paragraph (7) in draft article 17, on the basis of the
principles that that paragraph would apply unless otherwise agreed by the parties, that it
should be made clear that preliminary orders had the nature of procedural orders and not
of awards, that no enforcement procedure would be provided for preliminary orders in
article 17 bis, and that no footnote would be added.
Subparagraph (a)
Opt-out option
28. In order to reflect the decision made by the Working Group concerning the retention of
the opt-out option for the parties (see above, paragraph 27), the Working Group agreed to
retain the words “unless otherwise agreed by the parties” and to delete the words “if
expressly agreed by the parties”.
“take no action”
29. A proposal was made to substitute the words “take no action” with the word “not” in
order to clarify that a preliminary order might be aimed not only at preventing a party
from taking an action but also at requiring a party to take an action such as, for instance, to
protect goods from deterioration or some other threat. It was said that that proposal might
render the distinction between preliminary orders and interim measures more difficult to
establish. After discussion, that proposal was adopted.
30. It was said that paragraph (7) (a) could be misunderstood as providing that the arbitral
tribunal could only direct the parties in general terms not to frustrate the purpose of the
interim measure. It was agreed that the arbitral tribunal had discretion to issue a
preliminary order that was appropriate and was in keeping with the circumstances of the
case and that such an understanding should be made clear in any explanatory material
relating to that provision.
Subparagraph (b)
31. A proposal to include the words “relating to interim measures also” after the word
“article” was agreed to on the basis that those words clarified that the intention of
subparagraph (b) was to make the obligations set out in paragraphs (3), (4), (5) (6) and (6
bis) applicable to preliminary orders.
P 371
P 372
Subparagraph (c)
Power of the arbitral tribunal to grant preliminary order
32. As a general remark concerning the structure of paragraph (7), it was pointed out that,
whereas the arbitral tribunal was expressly empowered to grant interim measures under
paragraph (1) [Art. 17(1) in the final text] of draft article 17, no equivalent provision was
included regarding the power of the arbitral tribunal to grant preliminary orders. It was
therefore proposed to modify subparagraph (c) so that the arbitral tribunal be expressly
granted that right, and for that purpose, to delete the words “only” appearing before the
word “grant” and to replace the word “if” by the word “provided”. That proposal was

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 adopted by the Working Group.
“reasonable basis for concern”
33. A suggestion was made that subparagraph (c) should be redrafted to emphasize the
exceptional nature of a preliminary order by only permitting such an order where there
were compelling reasons for concern that the requested interim measure would be
frustrated before all the parties could be heard.
34. The Working Group was reminded that the formulation of the standard that an arbitral
tribunal should apply in determining whether or not to grant a preliminary order had been
discussed at a previous session (see [October 2004 Working Group Report,] A/CN.9/569,
paras. 39–43) and that concerns had been expressed against using imprecise standards. It
was stated that a requirement that the arbitral tribunal should find compelling reasons to
grant a preliminary order could create a situation where it would be difficult for an arbitral
tribunal to either issue or lift the requested preliminary order. After discussion, the
Working Group agreed to retain the existing language, which would be simplified by
deleting the words “basis for”.
definition of the risk
35. It was suggested that the risk defined under subparagraph (c) that the measure be
frustrated before all the parties could be heard did not include the risk that the
preliminary order be disclosed to the party against whom it was made, and it was
therefore proposed to amend subparagraph (c) to better reflect that risk.
Accordingly, it was suggested that the words “before all parties can be heard” should be
deleted. In that connection, it was said that the formulation contained in a previous draft
of paragraph 7 (a), reproduced in [the July 2004 Secretariat Note,] A/CN.9/WG.II/WP.131,
para. 4 and [the October 2004 Working Group Report,] A/CN.9/569, para. 12, stating that
“where prior disclosure of an interim measure to the party against whom it is directed risks
frustrating the purpose of the measure”, was preferable. The Secretariat was requested to
take that suggestion into account when preparing a revised draft of that provision.
36. To reflect the decision that a preliminary order could only be issued as a procedural
order and not as an award (see above, paragraph 27), the Working Group agreed that
wording along the lines of “in the form of a procedural order” should be inserted after the
P 372 words “a preliminary order”. However, it was pointed out that the distinction between a
P 373 procedural order and an interim measure was not only a matter of form but also a
matter of substance, since procedural decisions were not enforceable under the New York
Convention or article 36 of the Model Law. The Secretariat was requested to consider
whether appropriate wording could be found to reflect the procedural nature of a
preliminary order, without suggesting that preliminary orders should be issued according
to any specific procedural form.
Subparagraph (d)
Communication of information
37. It was stated that the requirement to give notice to the party against whom the
preliminary order was directed of all communications between the requesting party and
the arbitral tribunal in relation to the request might be easily discharged in respect of
written communications. However, a concern was expressed that it was less clear how to
discharge that duty in respect of oral communications. To address that concern, it was
suggested that words along the lines of “including a verbatim transcription of any oral
communication” or “including a record of any verbal discussion” should be added at the
end of subparagraph (d). In response, it was stated that the suggested additional words
might create an excessively burdensome requirement, particularly in circumstances where
a preliminary order was sought in urgent circumstances and arrangements for verbatim
records were not practicable. With a view to achieving greater flexibility, it was suggested
that it should be clarified that the arbitral tribunal was obliged to disclose not only the
existence of the oral communications but also to indicate their contents. It was said that
that approach provided flexibility for the arbitral tribunal to determine how best to meet
its obligation of disclosure under subparagraph (d). The Secretariat was requested to
implement that approach through appropriate wording.
“A determination in respect of a preliminary order”
38. A suggestion was made to add the words “in respect of an application for” after the
words “a determination” for the sake of providing consistency with paragraph 7 (a), which
referred to “an application for a preliminary order”. The Secretariat was requested to take
account of that suggestion in revising the draft.
“the party against whom the preliminary order is directed”
39. It was stated that, because a determination might be for or against the granting of a
preliminary order, it might be more appropriate to refer to “the party against whom the
preliminary order is requested” or “is sought”, rather than to “the party against whom the
preliminary order is directed”. That proposal was adopted.
Notice
40. The Working Group recalled that, at its forty-first session (see [October 2004 Working

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 Group Report,] A.CN.9/569, para. 44), there had been a strong preference to leave open the
question as to who should bear the obligation to communicate the documents and
information referred to under subparagraph (d). However, after discussion, the Working
Group found that, as drafted, subparagraph (d) was ambiguous, and that it was preferable
P 373 to state that the arbitral tribunal in receipt of the request was under an obligation to
P 374 give notice of the documents and information to the other party. That proposal was
adopted.
41. It was suggested that it should be clarified that the obligation of the arbitral tribunal to
communicate documents and information to the party against whom the order was sought
applied whether the arbitral tribunal accepted or refused to issue the preliminary order.
The Working Group confirmed that obligation and the view was expressed that the current
wording adequately expressed it. However, the Working Group took note of the suggestion
that additional clarification might be further considered in the context of any explanatory
material that might be prepared at a later stage in respect of article 17.
[“unless the arbitral tribunal…whichever occurs earlier”]
42. The Working Group agreed to delete the bracketed text appearing at the end of
subparagraph (d) to reflect its earlier decision (see above, paragraph 27) that no judicial
enforcement regime should be provided for in the Model Law for preliminary orders.
Subparagraph (e)
Variants A and B
43. The Working Group considered Variants A and B and the question of the
appropriateness of defining a time limit for the responding party to present its case.
Support was expressed in respect of both Variants.
44. Variant A, which provided for a forty-eight hour period during which the responding
party should present its case was seen by certain delegations as presenting the
fundamental safeguard of delimiting a time frame, thus emphasizing for the benefit of the
arbitral tribunal that prompt action was required. Variant A was also considered to be
flexible, as it included the possibility for the party against whom the order was directed to
request another time period. A drafting suggestion was made that, in keeping with the
approach taken in the Model Law, it would be more appropriate to refer to “two days”
rather than “forty-eight hours”.
45. Variant B, which did not include any time limitation expressed in hours or days,
received support on the basis that the determination of a time limit was unnecessary, as
the party affected by the order would in most cases seek to be heard by the arbitral
tribunal as soon as was practicable. In addition, the definition of such a time limit was
considered as presenting the risk that the arbitral tribunal might not be able to grant a
preliminary order only because it was not able, for practical reasons, to hear the party
affected by the order within the strict time frame of forty-eight hours.
46. A proposal was made that Variants A and B could be merged along the following lines:
“at the earliest possible opportunity and, if at all practicable, within forty-eight hours after
notice is received or such longer period of time as is requested by the party against whom
the preliminary order has been made”. A concern was expressed that the draft proposal
was overly detailed and might result in over-regulating the matter.
P 374
P 375
47. Another proposal was that subparagraph (e) should be redrafted so that it was not left
to the party to determine a longer period but rather that the discretion remained with the
arbitral tribunal to provide such longer period as the arbitral tribunal might deem
appropriate. However, it was stated that the reference to “the earliest possible
opportunity” already afforded the arbitral tribunal discretion to fix a longer period even in
the absence of a request from the opposing party.
48. Yet another proposal was that a distinction should be made between the obligation of
the arbitral tribunal and the obligation of the party affected by the order. Under that
proposal, the party against whom the order was directed should be given an opportunity to
present its case “at the earliest practicable time” and wording should be added along the
lines of “the arbitral tribunal must decide as promptly as possible under the
circumstances”.
49. A concern was expressed that even in cases where a preliminary order was not granted,
the party against whom that order had been sought might still wish to be heard by the
arbitral tribunal and that possibility should be left open in subparagraph (e), by replacing
the word “the preliminary order is directed” by the words “the preliminary order is sought”.
It was stated in response that if an arbitral tribunal decided not to grant a preliminary
order against the party concerned, that party might still have recourse to the arbitral
tribunal at any later stage of the procedure, including in any inter partes hearing relating
to an interim measure.
50. After discussion, it was decided that subparagraph (e) should read along the following
lines: “The arbitral tribunal shall give an opportunity to the party against whom the
preliminary order is directed to present its case at the earliest practicable time. The
arbitral tribunal shall decide as promptly as required under the circumstances”. A

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 commentary or explanatory note that might be prepared at a later stage in respect of
article 17 could refer to two days as an illustration to indicate the intention of the
provision.
Notice
51. A question was raised as to whether the notice referred to under Variants A and B was
the notice to be given by the arbitral tribunal under subparagraph (d), or whether it
referred to another notice, occurring at another point in time, given by the arbitral tribunal
to the party affected by the preliminary order in order for that party to present its case. It
was suggested that greater clarity could be brought as to when the notice should be given,
by providing that the arbitral tribunal should give the opportunity to the party against
whom the order was directed to present its case at the same time as the notification under
subparagraph (d) occurred. It was proposed to add as the opening words of subparagraph
(e) the words “at the same time”. That proposal was accepted.
Subparagraph (f)
Twenty-day period
52. In response to a question, it was clarified that the twenty-day period referred to in
P 375 subparagraph (f) should be understood as running from the date when the preliminary
P 376 order was granted, and not from the date when that preliminary order was requested. It
was further explained that the purpose of subparagraph (f) was to define a time limit for
the validity of the preliminary order. When twenty days had lapsed, the preliminary order
would be automatically terminated. However, within those twenty days, the preliminary
order could be converted into an interim measure of protection issued inter partes after
the party against whom the preliminary order was directed had been given an opportunity
to be heard, and the arbitral tribunal had decided to confirm, extend or modify the
preliminary order in the form of an inter partes interim measure of protection, which
would not be affected by the twenty-day limit.
53. In order to reinforce the obligation of the arbitral tribunal to deal promptly with the
application for a preliminary order in the shortest possible time, a proposal was made to
modify subparagraph (f) as follows: “The arbitral tribunal shall confirm, extend, modify, or
terminate the preliminary order, within forty-eight hours if at all practicable, after the
party against whom the preliminary order is directed has been given notice and an
opportunity to present its case.” The proposed wording was found insufficiently flexible.
Structure of subparagraph (f)
54. Questions were raised as to whether the reference to the notion of an interim measure
of protection in the first sentence of paragraph 7 (f) could create confusion, as paragraph 7
was aimed solely at defining the regime of preliminary orders. A comment was made that
the time limit of twenty days referred to under subparagraph (f) might, in most cases, be
too short to allow an arbitral tribunal to issue an interim measure of protection, whether
confirming, extending or modifying the preliminary order granted.
55. With a view to alleviating any confusion as to the purpose of subparagraph (f), a
proposal was made to clarify that, as a matter of principle, a preliminary order should not
have a life span beyond twenty days, but that certain relief granted under the preliminary
order might be included in an inter partes interim measure of protection. A proposal was
therefore made to reverse the order of the two sentences of paragraph (f), so that
paragraph (f) would read as follows: “A preliminary order under this paragraph shall expire
after twenty days from the date on which it was issued by the arbitral tribunal. However,
the arbitral tribunal may issue an interim measure of protection confirming, extending or
modifying the preliminary order, after the party against whom the preliminary order is
directed has been given notice and an opportunity to present its case.” Support was
expressed in favour of that proposal.
56. The Working Group was cautioned that any revised wording should not be interpreted
as allowing arbitral tribunals to grant a preliminary order extending beyond the time limit
of twenty days, unless that preliminary order was converted into an inter partes interim
measure. It was suggested that the word “however”, used in the second sentence of that
proposal, might be understood as a derogation from the principle contained in the first
sentence of the proposed draft that a preliminary order could not last longer than twenty
days.
P 376
P 377
57. In order to reinforce the obligation of the arbitral tribunal, it was proposed to replace
the word “may” appearing after the words “the arbitral tribunal” by the word “shall”. It was
also proposed to replace the words “confirming, extending” by the word “adopting”, on the
basis that that term better expressed the fact that the preliminary order had to be
converted into an inter partes interim measure.
58. After discussion, the Working Group adopted the following revised version of
subparagraph (f): “A preliminary order under this paragraph shall expire after twenty days
from the date on which it was issued by the arbitral tribunal. However, the arbitral tribunal
may issue an interim measure of protection adopting or modifying the preliminary order,
after the party against whom the preliminary order is directed has been given notice and

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 an opportunity to present its case.”
Subparagraph (g)
Security as a condition precedent
59. It was suggested that subparagraph (g) should be redrafted to provide that the arbitral
tribunal should condition the granting of a preliminary order upon the requesting party's
providing appropriate security.
60. However, concern was expressed at creating such a rigid rule, which could create
difficulties in practice. The Working Group recalled that the issue of the provision of
security by the party requesting a preliminary order had previously been discussed by the
Working Group (see [October 2004 Working Group Report,] A/CN.9/569, paras. 35–38 and
[December 2003 Working Group Report,] A/CN.9/545, paras. 69–70) and that the Working
Group had agreed that, in order to enhance the safeguards necessary in the context of
preliminary orders, subparagraph (g) should reflect that the arbitral tribunal had an
obligation to consider the issue of security, but that the decision on whether to require
such security should be left to the discretion of the arbitral tribunal.
Time when security might be required
61. The Working Group recalled that, at its forty-first session, concern had been expressed
that the point in time when security might be required was not clearly defined (see
[October 2004 Working Group Report,] A/CN.9/569, para. 38). It was suggested that such lack
of precision was appropriate as it allowed the arbitral tribunal flexibility in respect of the
question of security, for example in situations where a party might require and be given
more time to arrange security but the need for the preliminary order was immediate.
“appropriate security”
62. It was stated that the use of the words “appropriate security” and “inappropriate” in
subparagraph (g) was confusing. In response, it was suggested that the word “appropriate”
could be deleted or replaced by the word “adequate”.
“unless the arbitral tribunal considers it inappropriate or unnecessary to do so”
P 377 63. It was suggested that the closing words “unless the arbitral tribunal considers it
P 378 inappropriate or unnecessary to do so” could also be deleted as they expressly
permitted an arbitral tribunal to decide not to ask for security. However, that proposal was
objected to given that, in some exceptional circumstances, requiring security would not be
appropriate, for example, where a claimant was deprived of assets enabling it to provide
security because of action taken by the respondent.
64. The Working Group agreed to retain the text of subparagraph (g), with the deletion of
the term “appropriate”.
Subparagraph (h)
Cross references to subparagraphs (c) and (e)
65. It was proposed and accepted by the Working Group to delete the cross-references to
subparagraphs (c) and (e) for the reason that these references were no longer necessary.
Interplay between subparagraph (h) and paragraph (5) of article 17
66. A question was raised as to whether the obligation contained under subparagraph (h)
was redundant given the obligation of disclosure as contained in draft article 17 (5) [Art. 17
F(1) in the final text]. In response, it was explained that the obligation contained in
subparagraph (h) differed from the obligation in draft article 17 (5) in that the latter
referred to disclosure of any material changes in the circumstances while subparagraph (h)
referred to full disclosure even of those facts that did not support the application for the
preliminary order. It was explained that the reason for the latter disclosure was that, in the
context of a preliminary order, the arbitral tribunal did not have the opportunity to hear
from both parties, and therefore an additional burden should be placed on the applicant
party to disclose facts that might not help its case but that were relevant to the arbitral
tribunal's determination.
“is directed”
67. A proposal was made and agreed to replace the words “is directed” appearing after the
words “the preliminary order is” by the words “has been requested” to clarify that the
obligation of disclosure of the requesting party applied from the moment that the request
for a preliminary order was lodged by the requesting party, and not from the moment the
arbitral tribunal made a determination thereon.
Footnote to subparagraph (h)
68. It was noted that the footnote to subparagraph (h) had been included to take account
of the fact that, under many national laws, the obligation for the party to present
information against its position was not recognized and was contrary to general principles
of procedural law ([October 2004 Working Group Report,] A/CN.9/569, para. 68). The Working
Group agreed that the footnote should be deleted for the reason that it was unnecessary
and that the reference to “less onerous conditions” was awkward to apply in respect of an
obligation to disclose.

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 Explanatory materials
P 378 69. At the close of the discussion of draft article 17 (7), views were exchanged as to whether
P 379 the new provisions being prepared by the Working Group for addition to the Model Law
should be accompanied by explanatory materials and, if so, what form such materials
might take. The Working Group tentatively agreed that explanations should be provided to
facilitate the enactment and use of those new provisions. In view of the fact that the new
provisions might become part of the Model Law, which was accompanied by an
“Explanatory note by the UNCITRAL secretariat” currently appearing in the United Nations
publication reproducing the Model Law (Sales No. E.95.V.18), it was also agreed that the
explanations covering the new model provisions could appear in a revised version of that
explanatory note or in another form.
[Editors' Note: The Explanatory Note appears as Appendix B to this book.]
2005 COMMISSION REPORT A/60/17 (26 JULY 2005)
V. Arbitration: progress report of Working Group II
[.…]
175. The Commission noted the Working Group's progress made so far regarding the issue of
interim measures of protection. The Commission also noted that, notwithstanding the wide
divergence of views, the Working Group had agreed, at its forty-second session, to include a
compromise text of the revised draft of paragraph 7 in draft article 17 [Arts. 17 B –17 C in the
final text], on the basis of the principles that that paragraph would apply unless otherwise
agreed by the parties, that it should be made clear that preliminary orders had the nature
of procedural orders and not of awards and that no enforcement procedure would be
provided for such orders in article 17 bis [Arts. 17 H –17 I in the final text]. The Commission
noted that the issue of ex parte interim measures remained contentious. Some delegations
expressed the hope that the compromise text reached was the final one. Other delegations
expressed doubts as to the value of the proposed compromise text, in particular in view of
the fact that it did not provide for enforcement of preliminary orders. Concerns were also
expressed that the inclusion of such a provision was contrary to the principle of equal
access of the parties to the arbitral tribunal and could expose the revised text of the
Arbitration Model Law to criticism. A proposal was made that, if the provision were to be
included, it should be drafted in the form of an opting-in provision, applying only where
the parties had expressly agreed to its application.
176. The Commission noted that the Working Group had yet to finalize its work on draft
articles 17 [Arts. 17 –17 G in the final text], 17 bis and 17 ter [Art. 17 J in the final text],
including the issue of the form in which the current and the revised provisions could be
presented in the Arbitration Model Law. In respect of the structure of draft article 17, it was
proposed that the issue of preliminary orders should be dealt with in a separate article in
order to facilitate the adoption of draft article 17 by States that did not wish to adopt
P 379
provisions relating to preliminary orders. As a matter of drafting, the Commission also took
P 380 note of a proposal that the revised text of draft articles 17, 17 bis and 17 ter should not
be included in the body of the Model Law but in an annex. […]
AUGUST 2005 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.138 (8 AUGUST 2005)
Part I
Draft article 17 of the UNCITRAL Model Law on International Commercial Arbitration
regarding the power of an arbitral tribunal to grant interim measures of protection
A. Text of draft article 17
5. The following text sets out a newly revised version of draft article 17 [Arts. 17 – 17 G in the
final text] of the Model Law (herein referred to as “draft article 17”). Paragraphs (1) to (6 bis)
of draft article 17 are based on discussions and decisions made by the Working Group at its
fortieth session ([April 2004 Working Group Report,] A/CN.9/547, paras. 68–116). Paragraph
(7) of draft article 17 is based on discussions and decisions made by the Working Group at
its forty-second session ([January 2005 Working Group Report,] A/CN.9/573, paras. 11–69):
“(1) [Art. 17(1) in the final text] Unless otherwise agreed by the parties, the arbitral tribunal
may, at the request of a party, grant interim measures of protection.
“(2) [Art. 17(2) in the final text] An interim measure of protection is any temporary
measure, whether in the form of an award or in another form, by which, at any time
prior to the issuance of the award by which the dispute is finally decided, the arbitral
tribunal orders a party to:
“(a) Maintain or restore the status quo pending determination of the dispute;
“(b) Take action that would prevent, or refrain from taking action that is likely to
cause, current or imminent harm [, or to prejudice the arbitral process itself];
“(c) Provide a means of preserving assets out of which a subsequent award may be
satisfied; or
“(d) Preserve evidence that may be relevant and material to the resolution of the
dispute.
“(3) [Art. 17 A in the final text] The party requesting the interim measure of protection shall

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 satisfy the arbitral tribunal that:
“(a) Harm not adequately reparable by an award of damages is likely to result if the
measure is not ordered, and such harm substantially outweighs the harm that is
likely to result to the party against whom the measure is directed if the
measure is granted; and
P 380
P 381
“(b) There is a reasonable possibility that the requesting party will succeed on the
merits, provided that any determination on this possibility shall not affect the
discretion of the arbitral tribunal in making any subsequent determination.
“(4) [Art. 17 E(1) in the final text] The arbitral tribunal may require the requesting party or
any other party to provide appropriate security in connection with such interim
measure of protection.
“(5) [Art. 17 F(1) in the final text] The requesting party shall promptly make disclosure of
any material change in the circumstances on the basis of which the party made the
request for, or the arbitral tribunal granted, the interim measure of protection.
“(6) [Art. 17 D in the final text] The arbitral tribunal may modify, suspend or terminate an
interim measure of protection it has granted, at any time, upon application of any
party or, in exceptional circumstances, on the arbitral tribunal's own initiative, upon
prior notice to the parties.
“(6
bis) [Art. 17 G in the final text] The requesting party shall be liable for any costs and
damages caused by the interim measure of protection to the party against whom it is
directed, if the arbitral tribunal later determines that, in the circumstances, the
interim measure should not have been granted. The arbitral tribunal may order an
award of costs and damages at any point during the proceedings.
“(7) [Arts. 17 B, C, E(2) and F(2) in the final text] (a) Unless otherwise agreed by the parties,
a party may file, without notice to the other party, a request for an interim measure
of protection together with an application for a preliminary order directing the other
party not to frustrate the purpose of the interim measure requested.
“(b) The provisions of paragraphs (3), (5), (6) and (6 bis) of this article relating to
interim measures also apply to any preliminary order that the arbitral tribunal
may grant pursuant to this paragraph.
“(c) The arbitral tribunal may grant a preliminary order provided it considers that
there is a reasonable concern that the purpose of the requested interim
measure will be frustrated where prior disclosure of the interim measure to the
party against whom it is directed risks frustrating the purpose of the measure.
“(d) Immediately after the arbitral tribunal has made a determination in respect of
an application for a preliminary order, the arbitral tribunal shall give notice to
the party against whom the preliminary order is requested of the request for the
interim measure, the application for the preliminary order, the preliminary
order, if any, and all other communications, including indicating the content of
any oral communication, between any party and the arbitral tribunal in relation
thereto.
“(e) At the same time, the arbitral tribunal shall give an opportunity to the party
P 381 against whom the preliminary order is directed to present its case at the
P 382 earliest practicable time. The arbitral tribunal shall decide as promptly as
required under the circumstances.
“(f) A preliminary order under this paragraph shall expire after twenty days from
the date on which it was issued by the arbitral tribunal. However, the arbitral
tribunal may issue an interim measure of protection adopting or modifying the
preliminary order, after the party against whom the preliminary order is
directed has been given notice and an opportunity to present its case.
“(g) The arbitral tribunal shall require the requesting party to provide security in
connection with such preliminary order, unless the arbitral tribunal considers it
inappropriate or unnecessary to do so.
“(h) Until the party against whom the preliminary order has been requested has
presented its case, the requesting party shall have a continuing obligation to
disclose to the arbitral tribunal all circumstances that the arbitral tribunal is
likely to find relevant to its determination whether to grant a preliminary
order.”
B. Notes on draft article 17
Paragraph (1)
6. At the fortieth session of the Working Group, the text of paragraph (1) as contained in [the
April 2004 Working Group Report,] A/CN.9/547, paragraph 68 was adopted ([April 2004
Working Group Report,] A/CN.9/547, para. 69). (5)
7. At the forty-first session of the Working Group ([October 2004 Working Group Report,]
A/CN.9/569, para. 22), a proposal was made to add at the end of paragraph 1 the words “or
modify them”, so that the paragraph would read:

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 “Unless otherwise agreed by the parties, the arbitral tribunal may, at the
request of a party, grant interim measures of protection or modify them.” That
proposal was not discussed by the Working Group.
Paragraph (2) (6)
Chapeau—”whether in the form of an award or in another form”
8. After discussing the form in which an interim measure might be issued by an arbitral
tribunal, the Working Group reiterated its decision not to modify the chapeau of paragraph
(2) ([April 2004 Working Group Report,] A/CN.9/547, paras. 70–72). The Working Group agreed
that any explanatory material to be prepared at a later stage, possibly in the form of a
guide to enactment of draft article 17, should make it clear that the wording used to
describe the form in which an interim measure might be issued should not be
misinterpreted as taking a stand in respect of the controversial issue as to whether or not
an interim measure issued in the form of an award would qualify for enforcement under the
New York Convention ([April 2004 Working Group Report,] A/CN.9/547, para. 72). (7)
P 382
P 383
Subparagraph (a)
9. Subparagraph (a) is reproduced without modification from the draft contained in [the
April 2004 Working Group Report,] A/CN.9/547, paragraph 68.
Subparagraph (b)—Anti-suit injunction
10. Subparagraph (b) reflects the decision of the Working Group that, in the interests of
clarity, the power to issue anti-suit injunctions should expressly be conferred upon arbitral
tribunals and that, for that purpose, the words “or to prejudice the arbitral process itself”
should be added at the end of subparagraph (b). Noting that the implications of the
proposed amendment had not been fully considered, the Working Group agreed to insert
that proposal in square brackets, for further consideration by the Working Group at a future
session ([April 2004 Working Group Report,] A/CN.9/547, para. 83).
Subparagraph (c)—[preliminary]; [securing]—[preserving]
11. The word “preliminary” has been deleted for the reason that it was considered to be
confusing and added nothing to the meaning of the provision ([April 2004 Working Group
Report,] A/CN.9/547, para. 73; for earlier discussion on that matter, see [December 2003
Working Group Report,] A/CN.9/545, para. 26) and the term “preserving” has been retained
instead of the term “securing” because it was considered that the latter term could be
interpreted narrowly as indicating a particular method for protecting assets [April 2004
Working Group Report,] (A/CN.9/547, para. 74). (8)
Subparagraph (d)
12. Subparagraph (d) is reproduced without modification from the draft contained in
document [April 2004 Working Group Report,] A/CN.9/547, paragraph 68.
Paragraph (3) (9)
Subparagraph (a)—interplay with paragraph (2)
13. The Working Group might wish to further consider whether or not the general
requirements set forth in paragraph (3) adequately apply to all types of interim measures
listed under paragraph (2). It is recalled that, at the fortieth session of the Working Group,
it was stated, for example, that it would not be appropriate to require in all circumstances
that a party applying for an interim measure to preserve evidence under paragraph (2) (d)
should necessarily demonstrate that exceptional harm would be caused if the interim
measure was not ordered, or to require that requesting party to otherwise meet the very
high threshold established in paragraph (3) ([April 2004 Working Group Report,] A/CN.9/547,
para. 91).
P 383
P 384
14. At the forty-first session of the Working Group ([October 2004 Working Group Report,]
A/CN.9/569, para. 22), a proposal was made to add as opening words to paragraph 3 the
words “Except with respect to the measure referred to in subparagraph (d) of paragraph
(2),” so that the chapeau of paragraph 3 would read:
“Except with respect to the measure referred to in subparagraph (d) of
paragraph (2), the party requesting the interim measure of protection shall
satisfy the arbitral tribunal that:”
That proposal was not discussed by the Working Group.
Subparagraph (a)—interplay with paragraph (2) (b)
15. At the fortieth session of the Working Group, a view was expressed that the reference to
“harm” in subparagraph (a) of paragraph (3) might lend itself to confusion with the words
“current or imminent harm” in subparagraph (b) of paragraph (2), thus creating the risk that
the criteria set forth in paragraph (3) might be read as applying only to those measures
granted for the purposes of subparagraph (b) of paragraph (2) ([April 2004 Working Group

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 Report,] A/CN.9/547, para. 90). It is however submitted that the broad definition of interim
measures under paragraph (2) does not conflict with the need for the party requesting the
interim measure to show evidence of “harm not adequately reparable by an award of
damages” (see [April 2003 Secretariat Note,] A/CN.9/WG.II/WP.123, para. 15). (10)
Subparagraph (a)—”Irreparable harm”
16. Subparagraph (a) follows the proposal made by the Working Group to replace the words
“irreparable harm” with the words “harm not adequately reparable by an award of
damages” ([April 2004 Working Group Report,] A/CN.9/547, para. 89). It was stated that that
proposal addressed the concerns that irreparable harm might present too high a threshold
and would more clearly establish the discretion of the arbitral tribunal in deciding upon
the issuance of an interim measure ([April 2004 Working Group Report,] A/CN.9/547, paras.
84–89). (11) At its fortieth session, the Working Group expressed concerns that that
provision could be interpreted in a very restrictive manner, potentially excluding from the
field of interim measures any loss that might be cured by an award of damages. The
Working Group also noted that, in current practice, it was not uncommon for an arbitral
tribunal to issue an interim measure merely in circumstances where it would be
comparatively complicated to compensate the harm with an award of damages. The
Working Group might wish to further consider whether the word “adequately” addresses
those concerns or whether to clarify, in any explanatory material accompanying paragraph
(3), that the paragraph should be interpreted in a flexible manner, keeping in mind
P 384 balancing the degree of harm suffered by the applicant if the interim measure was not
P 385 granted against the degree of harm suffered by the party opposing the measure if that
measure was granted.
Subparagraph (b)
17. Subparagraph (b) is reproduced without modification from the draft contained in [the
April 2004 Working Group Report,] A/CN.9/547, paragraph 68. (12)
Paragraph (4) (13)
18. Paragraph (4) takes account of the proposal made by the Working Group at its fortieth
session that the provision of security should not be considered as a condition precedent to
the granting of an interim measure ([April 2004 Working Group Report,] A/CN.9/547, para.
92), but rather as a free-standing provision allowing the tribunal to order security at any
time during the procedure, or as limiting the ordering of security only at the time that the
application was brought ([April 2004 Working Group Report,] A/CN.9/547, para. 94).
“in connection with”
19. The Working Group clarified its understanding that, in paragraph (4), as adopted, the
term “in connection with” should be interpreted in a narrow manner to ensure that the fate
of the interim measure was linked to the provision of security ([April 2004 Working Group
Report,] A/CN.9/547, para. 94).
“or”
20. As a matter of drafting, it was stated that the use of the word “or” was more appropriate
than the word “and” to indicate that the arbitral tribunal could require either the
requesting party or any other party to provide appropriate security ([April 2004 Working
Group Report,] A/CN.9/547, para. 95).
Paragraph (5) (14)
21. At the forty-first session of the Working Group ([October 2004 Working Group Report,]
A/CN.9/569, para. 22), a proposal was made to add as opening words to paragraph 5 the
words “If so ordered by the arbitral tribunal,”, so that paragraph 5 would read:
“If so ordered by the arbitral tribunal, the requesting party shall promptly make
disclosure of any material change in the circumstances on the basis of which the
party made the request for, or the arbitral tribunal granted, the interim
measure of protection.”
That proposal was not discussed by the Working Group.
P 385
P 386
Obligation to inform
22. Paragraph (5) reflects the decision of the Working Group that the obligation to inform be
expressed in a more neutral way to avoid any inference being drawn that the paragraph
excluded the obligation under article 24 (3) of the Model Law ([April 2004 Working Group
Report,] A/CN.9/547, paras. 97–98). (15)
Sanction for non-compliance
23. At its fortieth session, the Working Group agreed that the express inclusion of a sanction
under paragraph (5) in case of non-compliance with the obligation to disclose any material
change in the circumstances of paragraph (6) was not necessary, as in any case the usual
sanction for non-compliance with that obligation was either suspension or termination of
the measure, or the award of damages ([April 2004 Working Group Report,] A/CN.9/547,

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 paras. 99–100). (16)
Paragraph (6) (17)
“it has granted”
24. The words “it has granted” have been retained without square brackets, to reflect that
the arbitral tribunal may only modify or terminate the interim measure issued by that
arbitral tribunal ([April 2004 Working Group Report,] A/CN.9/547, paras. 102–104).
25. At the forty-first session of the Working Group ([October 2004 Working Group Report,]
A/CN.9/569, para. 22), an alternative proposal was made, and not discussed, to delete
paragraph 6.
Paragraph (6 bis)
26. In order to assist deliberations on paragraph (6 bis), the Secretariat had prepared a
note ([27 January 2004 Secretariat Note,] A/CN.9/WG.II/WP.127) containing information
received from States on the liability regimes that applied under their national laws in
respect of interim measures of protection. It was observed that, of the legislation
contained therein, the national laws did not distinguish between inter partes and ex parte
measures in relation to the liability regimes that applied. It was suggested that, for that
reason, the square brackets around that paragraph should be deleted and the Working
Group should consider possible improvements to the text ([April 2004 Working Group
Report,] A/CN.9/547, para. 105). (18)
P 386
P 387
27. Paragraph (6 bis) contains the proposal which was adopted by the Working Group at its
fortieth session ([April 2004 Working Group Report,] A/CN.9/547, paras. 106–108) and reflects
the agreement of the Working Group that the final decision on the merits should not be an
essential element in determining whether the interim measure was justified or not.
28. It was also agreed that any explanatory material accompanying paragraph (6 bis)
should clarify that the reference to “proceedings” referred to the arbitral proceedings and
not to the proceedings relating to the interim measure ([April 2004 Working Group Report,]
A/CN.9/547, para. 108).
29. At the forty-first session of the Working Group ([October 2004 Working Group Report,]
A/CN.9/569, para. 22), a proposal was made to replace the words “the interim measure
should not have been granted” at the end of the first sentence of paragraph 6 bis by the
words, “the interim measure was unjustified”, so that paragraph 6 bis would read:
“The requesting party shall be liable for any costs and damages caused by the
interim measure of protection to the party against whom it is directed, if the
arbitral tribunal later determines that, in the circumstances, the interim
measure was unjustified. The arbitral tribunal may order an award of costs and
damages at any point during the proceedings.”
Paragraph 7
30. At its forty-first (Vienna, 13–17 September 2004), and forty-second (New York, 10–14
January 2005) sessions, the Working Group undertook a detailed review of the text of
paragraph (7) of draft article 17 regarding the power of an arbitral tribunal to grant interim
relief on an ex parte basis. In draft article 17, the notion of interim relief being granted on
an ex parte basis is generally reflected by the term “preliminary order(s)”.
31. Notwithstanding the wide divergence of views, the Working Group agreed to include the
revised draft of paragraph (7) in draft article 17, on the basis of the principles that that
paragraph would apply unless otherwise agreed by the parties, that it should be made
clear that preliminary orders had the nature of procedural orders and not of awards, that
no enforcement procedure would be provided for preliminary orders in article 17 bis, and
that no footnote would be added ([January 2005 Working Group Report,] A/CN.9/573, para.
27).
32. The Working Group might wish to note that, at the thirty-eighth session of the
Commission, a proposal was made that, in respect of the structure of draft article 17, the
issue of preliminary orders should be dealt with in a separate article in order to facilitate
the adoption of draft article 17 by States that would not wish to adopt provisions relating
to preliminary orders ([2005 Commission Report,] A/60/17, para. 176). As well, it was said
P 387 that if paragraph (7) were to be included in draft article 17, it should be drafted in the form
P 388 of an opting-in provision, applying only where the parties had expressly agreed to its
application ([2005 Commission Report,] A/60/17, para. 175).
33. As well, the Working Group might wish to consider whether interim measures ordered ex
parte by an arbitral tribunal would still present any practical value to practitioners if the
revised text of the Model Law made them unenforceable. In that respect, the Working
Group might wish to recall that it was observed, at the thirty-sixth session of the Working
Group that, in certain countries where the court system would experience difficulties in
reacting expeditiously to a request for a preliminary order, it would be essential to
establish the enforceable character of such an interim measure when ordered by an
arbitral tribunal ([April 2002 Working Group Report,] A/CN.9/508, paragraph 79).

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 Subparagraph (a) [Art. 17 B in the final text]
Opt-out option
34. In order to reflect the decision made by the Working Group concerning the retention of
the opt-out option for the parties, the words “unless otherwise agreed by the parties” have
been retained and the words “if expressly agreed by the parties” deleted ([January 2005
Working Group Report,] A/CN.9 573, paragraph 28). In light of the comments made by the
Commission at its thirty-eighth session (see paragraph 32 above), the Working Group might
wish to give further consideration to that issue.
“take no action”
35. The revised draft reflects the decision of the Working Group to substitute the words
“take no action” with the word “not” in order to clarify that a preliminary order might be
aimed not only at preventing a party from taking an action but also at requiring a party to
take an action such as, for instance, to protect goods from deterioration or some other
threat ([January 2005 Working Group Report,] A/CN.9 573, paragraph 29).
Subparagraph (b) [Art. 17 B in the final text]
36. As agreed by the Working Group, the words “relating to interim measures also” have
been included after the word “article” on the basis that those words clarified that the
intention of subparagraph (b) was to make the obligations set out in paragraphs (3), (4), (5),
(6) and (6 bis) applicable to preliminary orders ([January 2005 Working Group Report,]
A/CN.9/573, paragraph 31).
Subparagraph (c) [Art. 17 B in the final text]
Power of the arbitral tribunal to grant preliminary orders
37. The revised draft reflects the decision of the Working Group that, in order to expressly
empower the arbitral tribunal to grant preliminary orders, the word “only” appearing
before the word “grant” be deleted, and the word “if” be replaced by the word “provided”
([January 2005 Working Group Report,] A/CN.9/573, paragraph 32).
P 388
P 389
“reasonable basis for concern”
38. The Working Group agreed to simplify the existing language by deleting the words
“basis for” ([January 2005 Working Group Report,] A/CN.9/573, paras. 33 and 34).
Definition of the risk
39. It was suggested that the risk defined under subparagraph (c) that the measure be
frustrated before all the parties could be heard did not include the risk that the
preliminary order be disclosed to the party against whom it was made, and it was
therefore proposed to amend subparagraph (c) to better reflect that risk. Accordingly, it
was suggested that the words “before all parties can be heard” should be deleted. In that
connection, it was said that the formulation contained in a previous draft of paragraph 7
(a), reproduced in [the July 2004 Secretariat Note] A/CN.9/WG.II/WP.131, paragraph 4 and
[the October 2004 Working Group Report,] A/CN.9/569, paragraph 12, stating that “where
prior disclosure of an interim measure to the party against whom it is directed risks
frustrating the purpose of the measure”, was preferable. The revised draft takes that
suggestion into account ([January 2005 Working Group Report,] A/CN.9/573, para. 35).
Subparagraph (d) [Art. 17 C in the final text]
Communication of information
40. A concern was expressed that giving notice of oral communications to the party against
whom the preliminary order was directed might not be easily discharged. In order to
clarify that the arbitral tribunal was obliged to disclose not only the existence of the oral
communications but also to indicate their contents, the words “including indicating the
content of any oral communication” have been added after the words “all other
communications” ([January 2005 Working Group Report,] A/CN.9/573, para. 37).
“A determination in respect of a preliminary order”
41. The revised draft takes account of the suggestion to add the words “in respect of an
application for” after the words “a determination” for the sake of providing consistency
with paragraph 7 (a), which referred to “an application for a preliminary order” ([January
2005 Working Group Report,] A/CN.9/573, para. 38).
“the party against whom the preliminary order is directed”
42. The Working Group agreed that it might be more appropriate to refer to “the party
against whom the preliminary order is requested” or “is sought”, rather than to “the party
against whom the preliminary order is directed”, as a determination might be for or
against the granting of a preliminary order ([January 2005 Working Group Report,]
A/CN.9/573, para. 39).
Notice
P 389 43. The revised draft makes it clear that, as decided by the Working Group, the arbitral

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 P 390 tribunal, in receipt of the request for a preliminary order, was under an obligation to
give notice of the documents and information to the other party ([January 2005 Working
Group Report,] A/CN.9/573, para. 40).
[“unless the arbitral tribunal…whichever occurs earlier”]
44. The Working Group agreed to delete the bracketed text appearing at the end of
subparagraph (d) to reflect its earlier decision (see above, paragraph 31) that no judicial
enforcement regime should be provided for in the Model Law for preliminary orders.
Subparagraph (e) [Art. 17 C in the final text]
Time limitation
45. Subparagraph (e) reflects the decision of the Working Group not to include any time
limitation expressed in hours or days. It was further agreed by the Working Group that a
commentary or explanatory note that might be prepared at a later stage in respect of
article 17 could refer to two days as an illustration to indicate the intention of the provision
([January 2005 Working Group Report,] A/CN.9/573, paras. 43–50) .
Notice
46. In order to clarify when the notice should be given, the Working Group agreed to add, as
the opening words of subparagraph (e), the words “at the same time”
([January 2005 Working Group Report,] A/CN.9/573, para. 51).
Subparagraph (f) [Art. 17 C in the final text]
47. With a view to preventing any confusion as to the purpose of subparagraph (f), a
proposal was made to clarify that, as a matter of principle, a preliminary order should not
have a life span beyond twenty days, but that certain relief granted under the preliminary
order might be included in an inter partes interim measure of protection. The revised draft
therefore reflects the decision of the Working Group to reverse the order of the two
sentences of paragraph (f) ([January 2005 Working Group Report,] A/CN.9/573, para. 58). The
Working Group also agreed to replace the words “confirming, extending” by the word
“adopting”, on the basis that that term better expressed the fact that the preliminary
order had to be converted into an inter partes interim measure ([January 2005 Working
Group Report,] A/CN.9/573, paras. 57–58).
Subparagraph (g) [Art. 17 E(2) in the final text]
“appropriate security”
48. The revised draft reflects the decision of the Working Group to retain the text of
subparagraph (g), with the deletion of the term “appropriate”.
Subparagraph (h) [Art. 17 F(2) in the final text]
Cross references to subparagraphs (c) and (e) and footnote
P 390 49. The cross-references to subparagraphs (c) and (e) have been deleted for the reason that
P 391 these references were no longer necessary ([January 2005 Working Group Report,]
A/CN.9/573, para. 65). As well, as agreed by the Working Group, the footnote has been
deleted for the reason that it was unnecessary and that the reference to “less onerous
conditions” was considered to provide an awkward standard to apply in respect of an
obligation to disclose ([January 2005 Working Group Report,] A/CN.9/573, para. 68).
“is directed”
50. A proposal was made and agreed to replace the words “is directed” appearing after the
words “the preliminary order is” by the words “has been requested” to clarify that the
obligation of disclosure of the requesting party applied from the moment that the request
for a preliminary order was lodged by the requesting party, and not from the moment the
arbitral tribunal made a determination thereon ([January 2005 Working Group Report,]
A/CN.9/573, para. 67).
[.…]
IV. Possible options on the issue of the form in which the current and revised provisions
could be presented in the Model Law
[.…]
A. Structuring of the revised provisions
(1) Placement of definition
67. Article 17, paragraph (2), contains a definition of interim measures of protection. One
approach could be to include that definition under article 2 of the Model Law, which
relates to the definitions and rules of interpretation of the Model Law. That approach
would simplify the drafting of article 17 [Arts. 17 – 17 G in the final text]. However, the
Working Group might wish to further consider whether the definition of “interim measures”
currently contained in article 17, paragraph (2), which applies in respect of interim
measures granted by arbitral tribunals, should be redrafted so as to apply also to interim
measures granted by State courts under article 9 and article 17 ter [Art. 17 J in the final text]

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 of the Model Law.
(2) Preliminary orders
68. At its thirty-eighth session, the Commission heard a proposal that the issue of
preliminary orders should be dealt with in a separate article to facilitate the adoption of
draft article 17 by States that would not wish to adopt provisions relating to preliminary
orders ([2005 Commission Report,] A/60/17, para. 176). If that proposal were to be accepted
by the Working Group, then the following options for the presentation of that new article
might be considered by the Working Group:
– The article on preliminary orders might be included following article 17, and articles
17 bis [Arts. 17 H –17 I in the final text] and 17 ter [Art. 17 J in the final text] would then
be renumbered accordingly; or
P 391 – Due to the wide divergence of views expressed in the discussions on that matter, the
P 392 Working Group might wish to consider whether the article should appear as a
footnote along the lines adopted, for example, in article X as appended to article 4 of
the UNCITRAL Model Law on International Commercial Conciliation.
OCTOBER 2005 WORKING GROUP REPORT A/CN.9/589 (12 OCTOBER 2005)
III. Draft article 17 of the UNCITRAL Model Law on International Commercial Arbitration
regarding the power of an arbitral tribunal to grant interim measures of protection
General remarks
[.…]
12. […] The Working Group resumed discussions on draft article 17 [Arts. 17 – 17 G in the final
text] , on the basis of the text prepared by the Secretariat to reflect the discussions of the
Working Group as set out in [the August 2005 Secretariat Note,] A/CN.9/WG.II/WP.138.
Paragraph (1) [Art. 17(1) in the final text]
13. A proposal was made to add the words “or modify them” at the end of paragraph (1) and
to delete paragraph (6) [Art. 17 D in the final text]. In support of the proposal, it was
suggested that these additional words were intended to extend the scope of paragraph (1)
to encompass the situation provided for in paragraph (6) where a party requested an
arbitral tribunal to modify, suspend or terminate an interim measure. The other situation
covered by paragraph (6) namely, the power of an arbitral tribunal to modify, suspend or
terminate an interim measure upon its own initiative was said to be inherent to the
arbitral process and therefore that part of paragraph (6) was said to be unnecessary.
14. While some support was expressed for that proposal, it was said that paragraphs (1) and
(6) dealt with the power of an arbitral tribunal to grant interim measures at the request of
the parties at different stages of the arbitral process and therefore both paragraphs should
be retained.
15. It was pointed out that the reference to modification, suspension or termination of an
interim measure by an arbitral tribunal on its own initiative, as provided for under
paragraph (6), was necessary to address the situation of nonparticipating respondents.
16. In the context of that discussion, it was also stated that the terms “suspend” or
“terminate” would not necessarily be encompassed within the term “modify”.
17. After discussion, the Working Group agreed to adopt paragraph (1) without modification.
It was agreed that the questions raised in relation to paragraph (6) might need to be
further discussed (see below, paras. 45 and 46).
P 392
P 393
Paragraph (2) [Art. 17(2) in the final text]
Chapeau
18. The Working Group adopted the substance of the chapeau of paragraph (2) without
modification.
Subparagraph (a)
19. The Working Group adopted the substance of subparagraph (a) without modification.
Subparagraph (b)
“[, or to prejudice the arbitral process itself]”
20. The Working Group considered whether the bracketed words “or to prejudice the
arbitral process itself”, at the end of subparagraph (b), should be retained in order to
clarify that an arbitral tribunal has the power to prevent obstruction or delay of the
arbitral process, including by issuing anti-suit injunctions.
21. The Working Group recalled its earlier discussions on the question whether paragraph
(2) of draft article 17 should be interpreted as encompassing a power of an arbitral tribunal
to order an anti-suit injunction (i.e., an interim measure by which an arbitral tribunal
would order a party not to pursue court proceedings or separate arbitral proceedings)
([April 2004 Working Group Report,] A/CN.9/547, paras. 84–92). It was suggested, however,

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 that the bracketed text should not be understood as merely covering injunctions against
suits but rather as more broadly covering injunctions against the large variety of actions
that existed and were used in practice to obstruct the arbitral process.
22. Reservations were expressed against draft article 17 directly or indirectly allowing the
use of anti-suit injunctions given that these types of injunctions were unknown or
unfamiliar in many legal systems and that there was no uniformity in practice relating
thereto. As well it was said that such anti-suit injunctions did not always have the
provisional nature of interim measures and related to the question of the competence of
the arbitral tribunal, which was a matter not to be confused with the granting of an interim
measure.
23. However, in favour of dealing with anti-suit injunctions under draft article 17, it was
stated that these injunctions were becoming more common and served an important
purpose in international trade. It was stated that, notwithstanding the fact that, in a
number of countries, the law did not recognize these injunctions, there was evidence that
arbitral tribunals sitting in such countries were increasingly faced with tactics aimed at
obstructing or undermining the arbitral process. It was also stated that it was legitimate
for arbitral tribunals to seek to protect their own process.
24. It was stated that, at previous sessions, the Working Group had expressed preference
for inclusion of anti-suit injunctions in draft article 17. It was suggested that, even if no
P 393 express words were included in paragraph (2) (b) regarding the power to issue anti-suit
P 394 injunctions, there would nevertheless be implicit support for the existence of such a
power. In that respect, it was noted that some State courts had identified the power to
order anti-suit injunctions and to prevent other obstructions of the arbitral process as an
inherent power of the arbitral tribunal. It was said that paragraph (2) (a) of draft article 17
was flexible, open-ended and probably broad enough to encompass anti-suit injunctions
but for the sake of clarity, it would be preferable to include the proposed words.
25. It was said that that interpretation had been strengthened by the fact that the
requirement that the interim measure be connected to the subject matter of the dispute
(as contained in the original version of article 17 of the Arbitration Model Law) had been
deleted from draft article 17 at a previous session. It was noted that the requirement that
interim measures should be linked to the subject matter of the dispute also appeared in
article 26 of the UNCITRAL Arbitration Rules and had been understood in some
jurisdictions as limiting the availability of anti-suit injunctions.
26. After discussion, the Working Group agreed to retain the bracketed words at the end of
paragraph (2) (b) and to delete the brackets, so that paragraph (2) (b) would, in substance,
read: “Take action that would prevent, or refrain from taking action that is likely to cause,
current or imminent harm, or to prejudice the arbitral process itself”.
Subparagraph (c)
27. The Working Group adopted the substance of subparagraph (c) without modification.
Subparagraph (d)
28. It was proposed that subparagraph (d) be deleted. It was said that the reference to
evidence that “may be relevant and material” was too broadly cast and could open the
floodgates of legal arguments relating to whether a matter was relevant but not material or
material but not relevant. As well, it was suggested that the question of evidence was
already covered by article 19 (2) of the Arbitration Model Law, which provided that the
power conferred upon the arbitral tribunal included a power to determine the
admissibility, relevance, materiality and weight of any evidence. It was said that the
arbitral tribunal should not be requested to prejudge the relevance and materiality of
evidence at the stage of a granting of an interim measure.
29. However, the Working Group observed that the phrase “relevant and material” was
already included in the IBA Rules on the Taking of Evidence in International Commercial
Arbitration (adopted by resolution of the IBA Council, June 1999), which had been the
product of much debate. It was noted that the phrase had taken on a meaning such that
the term “relevant” required that the evidence be connected to the dispute and the term
“material” referred to the significance of the evidence. In support of its retention, it was
said that the phrase was commonly used and understood in international arbitration.
P 394 30. It was said that subparagraph (d) did not in any way diminish the power contained in
P 395 article 19 (2) in the Arbitration Model Law but rather dealt with different issues. While
article 19 (2) dealt with the power of an arbitral tribunal to assess the admissibility and
value of evidence, subparagraph (d) dealt with the right of an arbitral tribunal at an earlier
stage to grant an order to preserve evidence.
31. After discussion, the Working Group agreed to retain the text of subparagraph (d)
unchanged.
Paragraph (3) [Art. 17 A in the final text]
Chapeau—interplay with paragraph (2) (d)
32. A proposal was made that the general requirements contained in paragraph (3) should
not apply to all types of interim measures described in paragraph (2). For example, it was

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 said that it would not be appropriate in all circumstances that a party applying for an
interim measure to preserve evidence under subparagraph (d) necessarily demonstrate
that exceptional harm would be caused if the interim measure was not ordered or to
require the requesting party to otherwise meet the very high threshold established in
paragraph (3) ([April 2004 Working Group Report,] A/CN.9/547, para. 91). For that reason, a
proposal was made to add, as opening words to paragraph (3), the words: “Except with
respect to the measure referred to in subparagraph (d) of paragraph (2),”. Support was
expressed for that proposal for the reason that the preservation of evidence should not be
subject to the tests contained in paragraph (3). An alternative proposal was to phrase the
chapeau of paragraph (3) in an affirmative form, so that it would read as follows: “The party
requesting the interim measure of protection under subparagraphs (2) (a), (b) and (c) shall
satisfy the arbitral tribunal that:”. That proposal was agreed to in substance by the Working
Group.
33. It was suggested that explanatory material accompanying article 17 could indicate that
the fact that the type of measure contained in subparagraph (d) was not subject to
paragraph (3) did not mean that an arbitral tribunal would not examine and weigh the
circumstances in determining the appropriateness of ordering the measure.
34. An arbitral tribunal having to decide on the granting of an interim measure to preserve
evidence would likely engage in balancing the degree of harm suffered by the applicant if
the interim measure was not granted with the degree of harm suffered by the party
opposing the measure if that measure was granted. It was generally felt by the Working
Group that that matter should be dealt with in article 17, instead of being left to
explanatory material accompanying article 17. Therefore, it was proposed to add a new
paragraph, after paragraph (3) providing as follows: “With regard to requests for interim
measures of protection under paragraph (2) (d), the requirements in paragraphs (3) (a) and
(3) (b) shall apply only to the extent the arbitral tribunal considers appropriate.” That
proposal was agreed to, in substance, by the Working Group.
35. It was pointed out that the granting of interim measures to preserve evidence might
P 395 have a negative effect, and the conditions defined under paragraph (3) (b) should
P 396 nevertheless apply in relation to the granting of an interim measure of protection on
the preservation of evidence. An alternative proposal was to add the proposed opening
words “Except with respect to the measure referred to in subparagraph (d) of paragraph
(2),” in paragraph (3) (a) instead of adding these words in the chapeau. That proposal did
not receive support.
Subparagraph (a)
36. The Working Group recalled that, at its fortieth session, concern had been expressed
that subparagraph (a) could be narrowly interpreted as excluding from the field of interim
measures any loss that might be cured by an award of damages.
37. The Working Group agreed to retain the word “adequately” and to clarify, in any
explanatory material accompanying paragraph (3), that the paragraph should be
interpreted in a flexible manner requiring a balancing of the degree of harm suffered by
the applicant if the interim measure was not granted against the degree of harm suffered
by the party opposing the measure if that measure was granted.
38. Taking account of these views, the Working Group agreed to retain the substance of
subparagraph (a) without modification.
Subparagraph (b)
39. Concern was expressed that subparagraph (b) did not sufficiently guard against the
danger or the perception that an arbitral tribunal might prejudge the merits of the dispute
at the stage of granting an interim measure. In order to address that concern, various
proposals were made.
40. A proposal was made to delete the words “provided that” and express the two limbs as
two separate sentences. An alternative proposal was to replace the words “provided that”
with the word “but” in order to clarify that a determination as to the possible success on
the merits of the requesting party should not be considered as a condition for the granting
of an interim measure but rather as a conclusion in respect thereof. Those proposals were
not widely supported.
41. Yet another proposal was to clarify that the words “any subsequent determination”
related to a determination on the merits and therefore to replace the words “any
subsequent determination” by words along the following lines: “determination as to the
merits”.
42. However, it was pointed out that the words “any subsequent determination” did not
only refer to an award as to the merits but also a procedural order. After discussion, it was
agreed to retain subparagraph (b) as drafted.
Paragraph (4) [Art. 17 E(1) in the final text]
43. The substance of paragraph (4) was adopted without modification.
Paragraph (5) [Art. 17 F(1) in the final text]
44. A proposal was made to add as opening words to paragraph (5): “If so ordered by the

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 P 396 arbitral tribunal” for the reason that, given the divergent rules in civil and common law
P 397 systems with respect to the duty of disclosure, it would be unwise to provide for a
general rule on that question. That proposal was not supported and the Working Group
adopted the substance of paragraph (5) without modification.
Paragraph (6) [Art. 17 D in the final text]
45. Taking account of its earlier related discussions under paragraph (1) (see above, paras.
13 to 17), the Working Group agreed that “suspension” or “termination” while possibly
encompassed by the term “modification” were special types of modification and thus
should be expressly mentioned.
46. In the interests of clarity, it was proposed that paragraph (6) be restructured as follows:
“The arbitral tribunal may modify, suspend or terminate an interim measure of protection
it has granted, at any time: (a) upon application of any party; or (b) in exceptional
circumstances, on the arbitral tribunal's own initiative, upon prior notice to the parties.”
That proposal was adopted by the Working Group.
Paragraph (6 bis) [Art. 17 G in the final text]
47. It was pointed out that, as drafted, the text did not appear to envisage liability in the
situation where the requirements for the granting of the interim measure had been met but
the measure was ultimately found to be unjustified. It was proposed that the words “the
interim measure should not have been granted” be replaced by the words “the interim
measure was unjustified”. That proposal was objected to on the ground that it might be
seen as inviting discussion about whether or not the arbitral tribunal had been justified in
granting the interim measure and potentially creating liability for the arbitral tribunal
itself. After discussion, the proposal was not adopted.
48. Another proposal was made to replace the words “order an award of” in the second
sentence of paragraph (6 bis) with the words “award” so that it would be clear that the
action was an award not an order. The sentence would read: “The arbitral tribunal may
award costs and damages at any point during the proceedings”. It was said that, in order to
permit a challenge of a decision of an arbitral tribunal regarding costs and damages it
should be made clear that such a decision should be rendered in the form of an award.
That proposal was adopted.
Paragraph (7) [Arts. 17 B, C, E(2) and F(2) in the final text]
General discussion
49. The Working Group recalled that, at its forty-first (Vienna, 13–17 September 2004), and
forty-second (New York, 10–14 January 2005) sessions, it undertook a detailed review of the
text of paragraph (7) of draft article 17 regarding the power of an arbitral tribunal to grant
protective measures on an ex parte basis. The Working Group also recalled that,
notwithstanding a wide divergence of views, it had reached agreement upon a compromise
text of paragraph (7) (referred to as “the compromise”) on the basis of the principles that,
that paragraph would apply unless otherwise agreed by the parties, that it should be made
clear that preliminary orders had the nature of procedural orders and not of awards, that
P 397 no enforcement procedure would be provided for preliminary orders in article 17 bis
P 398 [Arts.17 H – 17 I in the final text], and that no footnote would be added ([January 2005
Working Group Report,] A/CN.9/573, para. 27). That compromise was reflected in the note by
the Secretariat ([August 2005 Secretariat Note,] A/CN.9/WG.II/WP.138, para. 5) (referred to
as “the compromise text”).
50. The Working Group observed that, at its thirty-eighth session, the Commission had
noted that the issue of ex parte interim measures remained contentious. While some
delegations had expressed the hope that the compromise text reached was the final one,
other delegations had expressed doubts as to the value of that compromise, in particular
in view of the fact that it did not provide for enforcement of preliminary orders ([2005
Commission Report,] A/60/17, para. 175).
51. Repeating a proposal that had been made at that session, it was suggested that
paragraph (7) be redrafted in the form of an opt-in provision, applying only where the
parties had expressly agreed to its application ([2005 Commission Report,] A/60/17, para.
175). Another proposal was to place the provision on preliminary orders, including any
aspect of an enforcement regime applicable to those measures, in a separate article to
draft article 17. It was said that that proposal would also facilitate the adoption of draft
article 17 by States that did not wish to adopt provisions relating to preliminary orders
([2005 Commission Report,] A/60/17, para. 176). In addition to the proposals made at the
Commission, it was suggested that paragraph (7) be optional for States, for example,
providing for an opt-in mechanism modelled on article X as appended to article 4 of the
UNCITRAL Model Law on Conciliation ([August 2005 Secretariat Note,] A/CN.9/WG.II/WP.138,
para. 68).
52. Some delegations urged the Working Group to reconsider whether it was still
appropriate to retain the compromise text. It was said that there remained strong and
enduring opposing views on the notion of interim measures being granted on an ex parte
basis and that the Working Group should be careful not to create a controversy in the
Commission on that matter, which might be harmful to the reputation of the Arbitration
Model Law and that of UNCITRAL. It was also felt that the compromise text might create

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 potential disharmony or confusion for countries having adopted or wishing to adopt the
Arbitration Model Law. It was also stated that key bodies, active in the field of arbitration,
had voiced concerns on the compromise text.
53. The largest number of delegations who spoke expressed strong opposition to any
proposal which sought to revisit and reopen discussion on the compromise text. It was
recalled that the compromise text was the result of lengthy discussions, and of significant
efforts from both those opposing and those supporting ex parte measures. It was observed
that the compromise text represented an innovative approach and provided carefully
drafted safeguards, including limiting the availability and duration of measures granted
under paragraph (7) which were characterized as preliminary orders rather than as interim
measures granted on an ex parte basis. It was said that the doubts and concerns expressed
at the Commission, as well as the proposals made at that session reflected debate that
had already taken place in the Working Group, but did not raise any new developments or
compelling reasons to revisit the compromise.
P 398
P 399
54. In response to the suggestion that that provision be presented as an “opt-in” provision
for States, it was said that it would be unnecessary given that the very nature of a model
law provided States with the freedom to adopt certain provisions or not and that such an
opt-in format had been discussed and rejected in reaching the compromise.
55. Following a lengthy discussion, the Working Group agreed that the compromise should
be retained without modification. The Working Group also agreed that questions relating to
the placement of paragraph (7) and the overall structure of draft article 17 would be further
considered in the context of the discussion regarding the form in which the revised
provisions (comprising draft articles 17, 17 bis and 17 ter [Art. 17 J in the final text]) could be
presented in the Arbitration Model Law. In determining the final structure of draft article
17 and the placement of paragraph (7), it was suggested that the Working Group keep in
mind that the terms “interim measures” and “preliminary orders” represented different
legal concepts, and, therefore, it would be advisable to place the provisions dealing with
those concepts in separate articles. On the other hand, it was said by some delegations
that the provisions regarding preliminary orders should not be separated from the rest of
draft article 17 in a way that made them a target for deletion.
Subparagraph (a) [Art. 17 B in the final text]
56. To reflect the principle contained in the compromise text that a preliminary order
could only be issued as a procedural order and not as an award, a proposal was made that
subparagraph (a) should expressly clarify that a preliminary order could only be issued in
the form of a procedural order. It was suggested that wording along the lines of “in the form
of a procedural order” should be inserted in subparagraph (a). It was said that that
clarification would distinguish preliminary orders from interim measures, which, according
to draft article 17 (2), could be issued in the form of an award or in another form (eventually
inserted in subparagraph (c) by the drafting group: see Annex).
57. It was recalled that the Working Group, at its thirty-second session, already pointed out
that the distinction between a procedural order and an interim measure was not only a
matter of form but also a matter of substance, since it was said by some that procedural
decisions were not enforceable under the 1958 New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (“the New York Convention”) or article 36 of the
Arbitration Model Law, and that it was difficult to rule on procedural matters ([January
2005 Working Group Report,] A/CN.9/573, para. 36). Also, it was pointed out that the
meaning of “procedural” was often disputed and therefore the use of that term should be
avoided. After discussion, the Working Group agreed that, to avoid any uncertainty
regarding the scope and nature of procedural orders, subparagraph (a) should indicate
that a preliminary order should not be issued in the form of an award.
Subparagraph (b) [Art. 17 B in the final text]
58. The Working Group adopted the substance of subparagraph (b) without modification.
P 399
P 400
Subparagraph (c) [Art. 17 B in the final text]
59. The Working Group noted that, as presently drafted, subparagraph (c) appeared to
duplicate the test that the interim measure would be frustrated. To address that concern,
a proposal was made to amend subparagraph (c) along the following lines: “The arbitral
tribunal may grant a preliminary order provided it considers that there is a reasonable
concern that the purpose of the requested interim measure will be frustrated by prior
disclosure of the interim measure to the party against whom it is directed.” That proposal
did not receive support. Another proposal was made to redraft subparagraph (c) to remove
the words: “that there is a reasonable concern that the purpose of the requested interim
measure will be frustrated where” such that subparagraph (c) would then read: “The
arbitral tribunal may grant a preliminary order provided it considers that prior disclosure
of the request for the interim measure to the party against whom it is directed risks
frustrating the purpose of the measure.” After discussion, that proposal was adopted by the
Working Group.

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 Subparagraph (d) [Art. 17 C in the final text]
60. The Working Group adopted the substance of subparagraph (d) without modification.
Subparagraph (e) [Art. 17 C in the final text]
“at the same time”
61. A proposal was made to delete the words “at the same time” for the reason that the
formulation appeared to be redundant in light of the words “at the earliest practicable
time,” at the end of the first sentence in subparagraph (e). In response, the Working Group
was reminded that, when this provision had been discussed at its forty-second session, a
distinction had been made between the obligation of the arbitral tribunal to decide on the
preliminary order as promptly as required under the circumstances and the obligation of
the party against whom the preliminary order was directed to present its case at the
earliest practicable time ([January 2005 Working Group Report,] A/CN.9/573, para. 48). After
discussion, the Working Group agreed to retain the words “at the same time”.
“any party”—“a preliminary order”
62. For the sake of consistency with subparagraph (d), which referred to “any party”, it was
proposed that the reference in the first sentence to “the party” should be changed to “any
party”. Also, given that subparagraph (d) envisaged that an arbitral tribunal might not have
granted the preliminary order, it was proposed that the reference to “the preliminary
order” be changed to refer to “a preliminary order”. Both proposals were agreed to by the
Working Group.
“The arbitral tribunal shall decide as promptly as required under the circumstances”
63. It was noted that, as drafted, subparagraph (e) was ambiguous in that it was not clear,
P 400 in the second sentence, to what decision the words “the arbitral tribunal shall decide as
P 401 promptly as required under the circumstances” referred. It was widely felt that that
matter ought to be clarified. The view was expressed that that sentence was intended to
refer to the decision of the arbitral tribunal to adopt or modify the preliminary order after
the party against whom it is directed had been given notice and an opportunity to be
heard, as provided for under subparagraph (f). Consistent with that view, it was proposed
to either include in the second sentence of subparagraph (e) a reference to subparagraph
(f) or to merge the second sentence of subparagraph (e) with the second sentence of
subparagraph (f). Those proposals did not receive support.
64. The prevailing view was that the words “the arbitral tribunal shall decide as promptly
as required under the circumstances” was intended to refer to the decision to be made by
the arbitral tribunal in response to any objection that might be raised by the party
affected by the preliminary order. In accordance with that view, it was suggested that the
second sentence of subparagraph (e) should be expanded in a separate subparagraph and
reworded as follows: “The arbitral tribunal shall decide on any objection to the preliminary
order as promptly as required under the circumstances.”
65. It was pointed out that the drafting of that proposed new subparagraph could be
simplified by removing the words “as promptly as required under the circumstances” as, in
any case, a decision on a preliminary order ought to be prompt, as shown by the time limit
of twenty days for the validity of a preliminary order provided under the existing
subparagraph (f). The Working Group adopted the following text as a new subparagraph:
“The arbitral tribunal shall decide promptly on any objection to the preliminary order.”
Multi-party arbitration
66. It was suggested that paragraph (7) appeared to contemplate only situations where
there were two parties to the arbitration proceedings and thus did not accommodate
multi-party arbitrations. For that reason, it was proposed that, for example, in
subparagraph (a), the reference to “the other party” could be changed to “any other party”.
As well, it was pointed out that the communication of information as contemplated under
subparagraph (d) only referred to the party against whom the preliminary order was
requested. It was pointed out that, in the case of multi-party arbitrations, all parties might
have an interest in receiving such information. Similarly, it was said that subparagraph (e)
only provided the party against whom the measure was requested the opportunity to be
heard and thus did not accommodate multi-party situations. It was suggested that the
drafting pattern followed by the text of the Arbitration Model Law, as adopted in 1985,
appeared to refer to two-party arbitrations, leaving the question of multi-party
arbitrations to the enacting jurisdictions to decide upon. It was suggested that the issues
raised by multi-party arbitrations might need to be resolved uniformly in the text of the
Arbitration Model Law as a whole and not just in provisions relating to interim measures.
67. While the Working Group agreed that an arbitral tribunal had no jurisdiction to bind
P 401 parties that were not party to the arbitration agreement, it noted that that matter was of
P 402 particular importance in the context of granting of preliminary orders. It was
highlighted that there had been developments, for example, in a case involving
investment arbitration where standing had been given to third parties that might be
affected by a decision of the arbitral tribunal. The Working Group agreed that these
matters could be considered as items for future work of the Working Group.
Subparagraph (f) [Art. 17 C in the final text]

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 68. The Working Group adopted the substance of subparagraph (f) without modification.
Subparagraph (g) [Art. 17 E(2) in the final text]
“shall”—“may”
69. In response to a question as to whether the rules contained in paragraph (4) and
subparagraph (g) led to different results in practice, it was explained that there was a
difference of emphasis between paragraph (4) [Art. 17 E(1) in the final text] and
subparagraph (g). Whereas subparagraph (g) provided that the arbitral tribunal “shall”
require the provision of security, paragraph (4) provided that the arbitral tribunal “may”
require the provision of security. To explain that difference, it was recalled that the
Working Group had, in earlier discussions, concluded that the provision of security should
be a mandatory requirement, and was an important safeguard, to the granting of a
preliminary order ([October 2004 Working Group Report,] A/CN.9/569, para. 35). It was
recalled as well that the Working Group agreed to add discretionary language to
subparagraph (g), namely “unless the arbitral tribunal considers it inappropriate to do so”
in order to address the concern that, in some circumstances, requiring security in
connection with the granting of a preliminary order would not be feasible ([October 2004
Working Group Report,] A/CN.9/569, paras. 36 and 37). While it was widely recognized that
in practice the two rules might produce largely similar results, it was agreed that the two
provisions should be maintained.
“any other party”
70. It was noted that, whereas paragraph (4) of draft article 17 referred to the arbitral
tribunal requiring the requesting party “or any other party” to provide appropriate
security, subparagraph (g) merely referred to “the requesting party”. It was suggested that
the words “or any other party” be included following the words “requesting party” in
subparagraph (g) to cover situations where it would be appropriate to seek security from a
party other than the requesting party, for example, where the requesting party had no
funds, was a shell company or was insured. After discussion, that proposal was withdrawn
as it was agreed that a decision of the arbitral tribunal could only bind the requesting
party regardless of whether a third party, such as a bank or an insurance company,
provided that security on behalf of the requesting party.
P 402
P 403
Subparagraph (h) [Art. 17 F(2) in the final text]
Interplay between paragraph (5) and subparagraph (h)
71. The view was expressed that paragraph (5) [Art. 17 F(1) in the final text] and
subparagraph (h) contained overlapping obligations and that, therefore, subparagraph (h)
might be redundant. In response, it was observed that subparagraph (h) established a
broad obligation requiring disclosure of all circumstances that the arbitral tribunal was
likely to find relevant to its determination, whether or not related to the application,
whereas paragraph (5) only referred to any material change in the circumstances on the
basis of which the request was made or the interim measure was granted. In addition, it
was said that, while paragraph (5) as incorporated by paragraph (7) (b) addressed any
material change in the circumstances after the interim measure had been granted,
subparagraph (h) provided a broader duty of disclosure that applied from the time the
preliminary order was sought until the responding party had presented its case. Given the
different purpose and scope of these provisions, the Working Group agreed that
subparagraph (h) should be retained to ensure that the requesting party was obliged to
provide full disclosure until the other party had been heard
([October 2004 Working Group Report,] A/CN.9/569, para. 68).
72. It was observed that there appeared to be a lack of clarity concerning the obligation to
disclose in that the obligation under subparagraph (h) was described as only applying until
the party against whom the preliminary order had been requested had presented its case
without stating when the obligation began. As well, it was said that subparagraph (h) did
not contemplate the situation where the party against whom the preliminary order was
requested was a non-participating party.
73. In order to address those concerns, a proposal was made to amend subparagraph (h) as
follows: “Any party applying for a preliminary order shall disclose to the arbitral tribunal
all circumstances that are likely to be relevant to the arbitral tribunal in reaching its
determination whether to grant a preliminary order and such obligation shall continue
until the party against whom the preliminary order has been requested has had an
opportunity to present its case.” It was said that the proposal did not intend to effect any
substantive change in the purpose and scope of subparagraph (h) and paragraph (5) but
was intended merely to determine precisely the time when the disclosure obligation in
relation to a preliminary order began and ended. As well, the proposal acknowledged the
reality that, in certain circumstances, a party might choose not to present its case, and for
that reason it would be more appropriate to refer to that party being given an opportunity
to present its case. A further proposal was made to include the word “or maintain” after the
word “grant”.
74. It was suggested that, to better address the uncertainties raised by the interaction

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 between paragraph (5) and subparagraph (h), the following text could be added to the end
of the proposal: “Thereafter, the applying party shall have the same disclosure obligation
P 403 with respect to the preliminary order that the requesting party has with respect to an
P 404 interim measure under paragraph (5).” It was explained that the term “applying party”
had been used in the proposal to be consistent with the fact that the draft provisions
referred to an “application” for a preliminary order but referred to a “request” in relation
to an interim measure. It was suggested that a consequential amendment flowing from that
proposal would be the deletion of the reference to paragraph (5) in paragraph (7) (b).
75. Those proposals were accepted in substance. Subparagraph (h) would therefore read as
follows: “Any party applying for a preliminary order shall disclose to the arbitral tribunal
all circumstances that are likely to be relevant to the arbitral tribunal in reaching its
determination whether to grant or maintain a preliminary order and such obligation shall
continue until the party against whom the preliminary order has been requested has had
an opportunity to present its case. Thereafter, the applying party shall have the same
disclosure obligation with respect to the preliminary order that the requesting party has
with respect to an interim measure under paragraph (5).”
[Editors' Note: The Working Group Report continued with a discussion of the form of the
revised articles and various options for how to divide the topics into separate articles. That
material is reprinted in the section on Arts. 17 H – 17 I, pp. 530–34 infra.]
VII. Report of the drafting group
107. The Working Group having completed its deliberations regarding draft articles 17 [Arts.
17 –17 G in the final text], 17 bis [Arts. 17 H –17 I in the final text] and 17 ter [Art. 17 J in the final
text], a drafting group was established by the Secretariat to implement decisions by the
Working Group and ensured consistency between the various language versions of the text.
The report of the drafting group, as adopted by the Working Group is annexed to this
report.
[.…]
Annex
Report of the drafting group
Chapter IV bis. Interim measures and preliminary orders
Draft article 17
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a
party, grant interim measures.
(2) An interim measure is any temporary measure, whether in the form of an award or in
another form, by which, at any time prior to the issuance of the award by which the dispute
is finally decided, the arbitral tribunal orders a party to:
(a) Maintain or restore the status quo pending determination of the dispute;
(b) Take action that would prevent, or refrain from taking action that is likely to cause,
current or imminent harm or prejudice to the arbitral process itself;
P 404
P 405
(c) Provide a means of preserving assets out of which a subsequent award may be
satisfied; or
(d) Preserve evidence that may be relevant and material to the resolution of the dispute.
(3) The party requesting the interim measure under paragraphs (2) (a), (b) and (c) shall
satisfy the arbitral tribunal that:
(a) Harm not adequately reparable by an award of damages is likely to result if the
measure is not ordered, and such harm substantially outweighs the harm that is likely
to result to the party against whom the measure is directed if the measure is granted;
and
(b) There is a reasonable possibility that the requesting party will succeed on the merits,
provided that any determination on this possibility shall not affect the discretion of
the arbitral tribunal in making any subsequent determination.
(4) With regard to requests for interim measures under paragraph (2) (d), the requirements
in paragraphs (3) (a) and (b) shall apply only to the extent the arbitral tribunal considers
appropriate.
(5) The arbitral tribunal may require the requesting party to provide appropriate security
in connection with such interim measure.
(6) The requesting party shall promptly disclose any material change in the circumstances
on the basis of which the party made the request for, or the arbitral tribunal granted, the
interim measure.
(7) The arbitral tribunal may modify, suspend or terminate an interim measure it has
granted, upon application of any party or, in exceptional circumstances and upon prior
notice to the parties, on the arbitral tribunals own initiative.
(8) The requesting party shall be liable for any costs and damages caused by the interim

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 measure to the party against whom it is directed if the arbitral tribunal later determines
that, in the circumstances, the interim measure should not have been granted. The arbitral
tribunal may award such costs and damages at any point during the proceedings.
(9)
(a) Unless otherwise agreed by the parties, a party may file, without notice to any other
party, a request for an interim measure together with an application for a preliminary
order directing a party not to frustrate the purpose of the interim measure requested;
(b) The provisions of paragraphs (3), (4), (7) and (8) of this article relating to interim
measures also apply to any preliminary order that the arbitral tribunal may grant
pursuant to this paragraph;
(c) The arbitral tribunal may grant a preliminary order provided it considers that prior
disclosure of the request for the interim measure to the party against whom it is
directed risks frustrating the purpose of the measure. Such preliminary order does
not constitute an award;
P 405
P 406
(d) Immediately after the arbitral tribunal has made a determination in respect of an
application for a preliminary order, the arbitral tribunal shall give notice to all
parties of the request for the interim measure, the application for the preliminary
order, the preliminary order, if any, and all other communications, including
indicating the content of any oral communication, between any party and the arbitral
tribunal in relation thereto;
(e) At the same time, the arbitral tribunal shall give an opportunity to any party against
whom a preliminary order is directed to present its case at the earliest practicable
time;
(f) The arbitral tribunal shall decide promptly on any objection to the preliminary order;
(g) A preliminary order under this paragraph shall expire after twenty days from the date
on which it was issued by the arbitral tribunal. However, the arbitral tribunal may
issue an interim measure adopting or modifying the preliminary order, after the
party against whom the preliminary order is directed has been given notice and an
opportunity to present its case;
(h) The arbitral tribunal shall require the applying party to provide security in
connection with such preliminary order unless the arbitral tribunal considers it
inappropriate or unnecessary to do so;
(i) Any party applying for a preliminary order shall disclose to the arbitral tribunal all
circumstances that are likely to be relevant to the arbitral tribunals determination
whether to grant or maintain a preliminary order, and such obligation shall continue
until the party against whom the preliminary order has been requested has had an
opportunity to present its case. Thereafter, the applying party shall have the same
disclosure obligation with respect to the preliminary order that a requesting party
has with respect to an interim measure under paragraph (6);
(j) A preliminary order made under this paragraph shall be binding on the parties, but
shall not be subject to enforcement by a court.
5 DECEMBER 2005 SECRETARIAT NOTE A/CN.9/WG.II/WP.141 (5 DECEMBER 2005)
I. Proposal on the form in which the legislative provisions on interim measures and
preliminary orders could be presented in the Model Law
4. The following text sets out a proposal as to the presentation of the draft legislative
provisions on interim measures and preliminary orders, recognition and enforcement of
interim measures and court-ordered interim measures. Modifications to the earlier draft
contained in the annex to the report of the Working Group on the work of its forty-third
session (annex to [October 2005 Working Group Report,] A/CN.9/589) have been underlined
P 406 in the text below. As well, a comparative table outlining the concordance of the numbering
P 407 between articles of the earlier draft and articles of the text below has been annexed to
this note.
Chapter IV bis. Interim measures and preliminary orders
Section 1—Interim measures
Article 17—Power of arbitral tribunal to order interim measures
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a
party, grant interim measures.
(2) An interim measure is any temporary measure, whether in the form of an award or in
another form, by which, at any time prior to the issuance of the award by which the dispute
is finally decided, the arbitral tribunal orders a party to:
(a) Maintain or restore the status quo pending determination of the dispute;
(b) Take action that would prevent, or refrain from taking action that is likely to cause,
current or imminent harm or prejudice to the arbitral process itself;
(c) Provide a means of preserving assets out of which a subsequent award may be
satisfied; or

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 (d) Preserve evidence that may be relevant and material to the resolution of the dispute.
Article 17 bis—Conditions for granting interim measures [Art. 17 A in the final text]
(1) The party requesting an interim measure under article 17 (2)(a), (b) and (c) shall satisfy
the arbitral tribunal that:
(a) Harm not adequately reparable by an award of damages is likely to result if the
measure is not ordered, and such harm substantially outweighs the harm that is likely
to result to the party against whom the measure is directed if the measure is granted;
and
(b) There is a reasonable possibility that the requesting party will succeed on the merits
of the claim, provided that any determination on this possibility shall not affect the
discretion of the arbitral tribunal in making any subsequent determination.
(2) With regard to a request for an interim measure under article 17 (2)(d), the
requirements in paragraphs (1)(a) and (b) of this article shall apply only to the extent
the arbitral tribunal considers appropriate.
Section 2—Preliminary orders
Article 17 ter—Applications for preliminary orders [Art. 17 B in the final text]
P 407 (1) Unless otherwise agreed by the parties, a party may, without notice to any other party,
P 408 make a request for an interim measure together with an application for a preliminary
order directing a party not to frustrate the purpose of the interim measure requested.
(2) The arbitral tribunal may grant a preliminary order provided it considers that prior
disclosure of the request for the interim measure to the party against whom it is directed
risks frustrating the purpose of the measure.[]
(3) The conditions defined under article 17 bis apply to any preliminary order [], provided
that the harm to be assessed under article 17 bis, paragraph (1)(a), is the harm likely to
result from the order's being granted or not.
Article 17 quater—Specific regime for preliminary orders [Art. 17 C in the final text]
(1) Immediately after the arbitral tribunal has made a determination in respect of an
application for a preliminary order, the arbitral tribunal shall give notice to all parties of
the request for the interim measure, the application for the preliminary order, the
preliminary order, if any, and all other communications, including by indicating the
content of any oral communication, between any party and the arbitral tribunal in relation
thereto.
(2) At the same time, the arbitral tribunal shall give an opportunity to any party against
whom a preliminary order is directed to present its case at the earliest practicable time.
(3) The arbitral tribunal shall decide promptly on any objection to the preliminary order.
(4) A preliminary order [] shall expire after twenty days from the date on which it was
issued by the arbitral tribunal. However, the arbitral tribunal may issue an interim
measure adopting or modifying the preliminary order, after the party against whom the
preliminary order is directed has been given notice and an opportunity to present its case.
(5) A preliminary order [] shall be binding on the parties but shall not be subject to
enforcement by a court. Such a preliminary order does not constitute an award.
Section 3—Provisions applicable to interim measures and preliminary orders
Article 17 quinquies—Modification, suspension, termination [Art. 17 D in the final text]
The arbitral tribunal may modify, suspend or terminate an interim measure or a
preliminary order it has granted, upon application of any party or, in exceptional
circumstances and upon prior notice to the parties, on the arbitral tribunal's own
initiative.
Article 17 sexies—Provision of security by the arbitral tribunal [Art. 17 E in the final text]
(1) The arbitral tribunal may require the party requesting an interim measure to provide
appropriate security in connection with the [] measure.
P 408
P 409
(2) The arbitral tribunal shall require the party applying for a preliminary order to provide
security in connection with the [] order unless the arbitral tribunal considers it
inappropriate or unnecessary to do so.
Article 17 septies—Disclosure [Art. 17 F in the final text]
(1) The party requesting an interim measure shall promptly disclose any material change in
the circumstances on the basis of which the measure was requested or granted.
(2) The party applying for a preliminary order shall disclose to the arbitral tribunal all
circumstances that are likely to be relevant to the arbitral tribunal's determination
whether to grant or maintain the [] order, and such obligation shall continue until the party
against whom the [] order has been requested has had an opportunity to present its case.
Thereafter, the applying party shall have the same disclosure obligation with respect to

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 the preliminary order that a requesting party has with respect to an interim measure under
paragraph (1) of this article.
Article 17 octies—Costs and damages [Art. 17 G in the final text]
The party requesting an interim measure or applying for a preliminary order shall be liable
for any costs and damages caused by the measure or the order to the party against whom
it is directed if the arbitral tribunal later determines that, in the circumstances, the
measure or the order should not have been granted. The arbitral tribunal may award such
costs and damages at any point during the proceedings.
[.…]
II. Notes on the form in which the legislative provisions on interim measures and
preliminary orders could be presented in the Model Law
Structure of the provisions
5. As agreed by the Working Group, the provisions on interim measures, preliminary orders,
recognition and enforcement of interim measures and court-ordered interim measures are
placed in a new chapter, numbered chapteV bis ([October 2005 Working Group Report,]
A/CN.9/589, para. 105[, reprinted in the section on materials common to Arts. 17 – 17 J, p. 198
supra]). As suggested by the Working Group, those provisions have been restructured by
grouping paragraphs relating to similar issues under separate articles ([October 2005
Working Group Report,] A/CN.9/589, para. 106[, reprinted in the section on materials
common to Arts. 17 – 17 J, p. 198 supra]). In order to better clarify the proposed structure of
the revised text, section headings have been included. This structure has the advantage of
providing a logical presentation of the provisions, and avoids creating an article on interim
measures that is of inordinate length as compared to other articles in the Model Law.
Article 17 bis, paragraph (1)(b)
P 409 6. The Working Group might wish to note that the words “of the claim” have been added
P 410 after the word “merits” in order to clarify that the merits to be considered might relate
to the main claim and not to the interim measure requested. Clarifying that what is being
considered is the main claim of the dispute may limit unnecessary arguments as to
whether there exists a reasonable possibility of success in respect of the granting of the
interim measure (or the preliminary order under article 17 ter (3)). However, the reasonable
possibility of success on the merits of the claim will be assessed differently in view of the
different information available to the arbitral tribunal at different stages of the arbitral
proceedings, ranging from the early stage where the preliminary order is being applied for
until the time when the issuance of the interim measure is discussed inter partes.
Article 17 ter, paragraph (1)
7. The word “file” has been deleted from article 17 ter, paragraph 1, and replaced by the
word “make”. The Working Group might wish to consider whether this word provides a more
neutral requirement in relation to application for preliminary orders.
Article 17 ter, paragraph (2)—Article 17 quater, paragraph (5)
8. The words “such preliminary order does not constitute an award” have been removed
from article 17 ter, paragraph (2) and relocated under article 17 quater, paragraph (5). The
Working Group might wish to consider whether these words are more appropriately located
within article 17 quater, paragraph (5) given that paragraph (5) deals with the nature and
effect of a preliminary order.
Article 17 ter, paragraph (3)
9. Article 17 ter, paragraph (3) provides that the provisions of article 17 bis (relating to
interim measures) also apply to preliminary orders. The Working Group might wish to
consider whether the proposed revised draft of that paragraph clarifies how article 17 bis
is to be applied in the context of preliminary orders, namely that the harm to be assessed
by the arbitral tribunal in that context is the harm resulting if the preliminary order is not
granted, and not the harm resulting if the interim measure is not granted.
Article 17 septies, paragraph (2)
10. The word “any” appearing before “party” has been replaced by the word “the” for the
sake of consistency with paragraph (1) of the same article.
[.…]
P 410
P 411
AnnexTable of concordance

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 Provisions on interim measures and Newly revised provision on interim measures
preliminary orders as contained in the annex and preliminary orders as contained in this
to the report of the Working Group on the note
work of its forty-third session ([October 2005
Working Group Report,] A/CN.9/589)
Article 17 (1) Article 17 (1)
Article 17 (2) Article 17 (2)
Article 17 (3) Article 17 bis (1)
Article 17 (4) Article 17 bis (2)
Article 17 (5) Article 17 sexies (1)
Article 17 (6) Article 17 septies (1)
Article 17(7) Article 17 quinquies
Article 17 (8) Article 17 octies
Article 17 (9) (a) Article 17 ter (1)
Article 17 (9) (b) Article 17 ter (3)
Article 17 (9) (c) Article 17 ter (2)
Last sentence of subparagraph (c) Article 17 quater (5)
Article 17 (9) (d) Article 17 quater (1)
Article 17 (9) (e) Article 17 quater (2)
Article 17 (9) (f) Article 17 quater (3)
Article 17 (9) (g) Article 17 quater (4)
Article 17 (9) (h) Article 17 sexies (2)
Article 17 (9) (i) Article 17 septies (2)
Article 17 (9) (j) Article 17 quater (5)
[.…]

FEBRUARY 2006 WORKING GROUP REPORT A/CN.9/592 (27 FEBRUARY 2006)

IV. Draft legislative provisions on interim measures and preliminary orders
[.…]
P 411
P 412
13. The Working Group resumed discussions on the draft legislative provisions on interim
measures and preliminary orders on the basis of the text prepared by the Secretariat to
reflect the discussions of the Working Group, as set out in [the 5 December 2005 Secretariat
Note,] A/CN.9/WG.II/WP.141.
[.…]
Article 17
Paragraph (1)
17. The substance of paragraph (1) was adopted by the Working Group without modification.
Paragraph (2)
18. Reservations were expressed about paragraph (2) (b) directly or indirectly allowing the
use of anti-suit injunctions given that such injunctions were unknown or unfamiliar in many
legal systems and that there was no uniformity in practice relating thereto. As well, it was
said that anti-suit injunctions did not always have the provisional nature of interim
measures. It was suggested that there were already a number of rules that protected the
arbitral process and that a reference to anti-suit injunctions under paragraph (2) (b) was
therefore unnecessary.
19. The Working Group recalled that it had already considered that matter at its forty-third
session and agreed to adopt the text of paragraph (2) (b) ([October 2005 Working Group
Report,] A/CN.9/589, paras. 20–26). It was observed that the provisions as contained in [5
December 2005 Secretariate Note,] A/CN.9/WGII/ WP.141 represented a package and the
Working Group should not reopen discussions on substantive issues that might affect that
package.
20. The substance of paragraph (2) was adopted without modification.
Article 17 bis [Art. 17 A in the final text]
Paragraphs (1) and (2)

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 21. The substance of paragraphs (1) and (2) was adopted without modification by the
Working Group.
Article 17 ter [Art. 17 B in the final text]
Title
22. A proposal was made to amend the title of article 17 ter so that it would read:
“applications for preliminary orders and conditions for granting preliminary orders” in
order to better reflect the content of the provision. That proposal was adopted by the
Working Group.
Paragraphs (1) and (2)
23. The substance of paragraphs (1) and (2) was adopted without modification.
P 412
P 413
Paragraph (3)
24. For linguistic reasons, the Working Group agreed to reformulate paragraph (3) along the
following lines:
“(3) The conditions defined under article 17 bis apply to any preliminary order,
provided that the harm to be assessed under article 17 bis, paragraph (1) (a), is
the harm likely to result from the order being granted or not.”
Article 17 quater [Art. 17 C in the final text]
Paragraphs (1), (2), (3) and (4)
25. The substance of paragraphs (1), (2), (3) and (4) was adopted without modification.
Paragraph (5)
26. It was suggested that the reference to “preliminary order binding on the parties” was
ambiguous in that it appeared to require all parties to comply with the preliminary order
rather than only the party against whom the order was requested. It was further observed
that, if the intention was to bind all parties, that formulation did not sufficiently clarify the
nature of the obligations of the parties. In response, it was said that the plural reference to
“the parties” should be retained to reflect the fact that an order would be binding not only
on the party against whom the measure was directed but also on the party applying for the
measure (for example, in relation to providing information or security).
27. Another proposal was made to add the following text to paragraph (5), “a party shall not
be prevented from seeking any relief in a court because it has obtained such a preliminary
order from the arbitral tribunal.” It was suggested that that proposal would be better dealt
with in article 17 undecies, which related to court-ordered interim measures. As well, it was
suggested that article 9 of the Arbitration Model Law already protected the right of a party
to arbitral proceedings to request from a court an interim measure. In response, it was
observed that article 9 dealt with interim measures and not preliminary orders. It was
suggested that this proposal merely clarified the operation of provisions and did not seek
to reopen substantive questions relating thereto. The Working Group took note of that
proposal.
28. After discussions, the Working Group retained the text of paragraph (5), without
modification.
Article 17 quinquies [Art. 17 D in the final text]
29. The substance of article 17 quinquies was adopted without modification.
Article 17 sexies [Art. 17 E in the final text]
Title
30. A proposal was made to delete the words “by the arbitral tribunal” from the title of
article 17 sexies. That proposal was adopted.
P 413
P 414
Paragraphs (1) and (2)
31. The substance of paragraphs (1) and (2) was adopted without modification.
Article 17 septies [Art. 17 F in the final text]
Paragraphs (1) and (2)
32. The substance of paragraphs (1) and (2) was adopted without modification.
Article 17 octies [Art. 17 G in the final text]
33. It was decided to replace the words, “the party against whom it is directed” with the
words, “any party” for the reason that the measure could impact upon any party.
[.…]
Annex I

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 Revised legislative provisions on interim measures and preliminary orders
Chapter IV bis. Interim measures and preliminary orders
Section 1—Interim measures
Article 17—Power of arbitral tribunal to order interim measures
(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a
party, grant interim measures.
(2) An interim measure is any temporary measure, whether in the form of an award or in
another form, by which, at any time prior to the issuance of the award by which the dispute
is finally decided, the arbitral tribunal orders a party to:
(a) Maintain or restore the status quo pending determination of the dispute;
(b) Take action that would prevent, or refrain from taking action that is likely to cause,
current or imminent harm or prejudice to the arbitral process itself;
(c) Provide a means of preserving assets out of which a subsequent award may be
satisfied; or
(d) Preserve evidence that may be relevant and material to the resolution of the dispute.
Article 17 bis—Conditions for granting interim measures [Art. 17 A in the final text]
(1) The party requesting an interim measure under article 17 (2)(a), (b) and (c) shall satisfy
the arbitral tribunal that:
P 414 (a) Harm not adequately reparable by an award of damages is likely to result if the
P 415 measure is not ordered, and such harm substantially outweighs the harm that is
likely to result to the party against whom the measure is directed if the measure is
granted; and
(b) There is a reasonable possibility that the requesting party will succeed on the merits
of the claim, provided that any determination on this possibility shall not affect the
discretion of the arbitral tribunal in making any subsequent determination.
(2) With regard to a request for an interim measure under article 17 (2)(d), the requirements
in paragraphs (1)(a) and (b) of this article shall apply only to the extent the arbitral
tribunal considers appropriate.
Section 2—Preliminary orders
Article 17 ter—Applications for preliminary orders and conditions for granting preliminary
orders [Art. 17 B in the final text]
(1) Unless otherwise agreed by the parties, a party may, without notice to any other party,
make a request for an interim measure together with an application for a preliminary
order directing a party not to frustrate the purpose of the interim measure requested.
(2) The arbitral tribunal may grant a preliminary order provided it considers that prior
disclosure of the request for the interim measure to the party against whom it is directed
risks frustrating the purpose of the measure.
(3) The conditions defined under article 17 bis apply to any preliminary order, provided
that the harm to be assessed under article 17 bis, paragraph (1)(a), is the harm likely to
result from the order being granted or not.
Article 17 quater—Specific regime for preliminary orders [Art. 17 C in the final text]
(1) Immediately after the arbitral tribunal has made a determination in respect of an
application for a preliminary order, the arbitral tribunal shall give notice to all parties of
the request for the interim measure, the application for the preliminary order, the
preliminary order, if any, and all other communications, including by indicating the
content of any oral communication, between any party and the arbitral tribunal in relation
thereto.
(2) At the same time, the arbitral tribunal shall give an opportunity to any party against
whom a preliminary order is directed to present its case at the earliest practicable time.
(3) The arbitral tribunal shall decide promptly on any objection to the preliminary order.
(4) A preliminary order shall expire after twenty days from the date on which it was issued
by the arbitral tribunal. However, the arbitral tribunal may issue an interim measure
adopting or modifying the preliminary order, after the party against whom the preliminary
order is directed has been given notice and an opportunity to present its case.
P 415
P 416
(5) A preliminary order shall be binding on the parties but shall not be subject to
enforcement by a court. Such a preliminary order does not constitute an award.
Section 3—Provisions applicable to interim measures and preliminary orders
Article 17 quinquies—Modification, suspension, termination [Art. 17 D in the final text]
The arbitral tribunal may modify, suspend or terminate an interim measure or a
preliminary order it has granted, upon application of any party or, in exceptional

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 circumstances and upon prior notice to the parties, on the arbitral tribunal's own
initiative.
Article 17 sexies—Provision of security [Art. 17 E in the final text]
(1) The arbitral tribunal may require the party requesting an interim measure to provide
appropriate security in connection with the measure.
(2) The arbitral tribunal shall require the party applying for a preliminary order to provide
security in connection with the order unless the arbitral tribunal considers it inappropriate
or unnecessary to do so.
Article 17 septies—Disclosure [Art. 17 F in the final text]
(1) The party requesting an interim measure shall promptly disclose any material change in
the circumstances on the basis of which the measure was requested or granted.
(2) The party applying for a preliminary order shall disclose to the arbitral tribunal all
circumstances that are likely to be relevant to the arbitral tribunal's determination
whether to grant or maintain the order, and such obligation shall continue until the party
against whom the order has been requested has had an opportunity to present its case.
Thereafter, the applying party shall have the same disclosure obligation with respect to
the preliminary order that a requesting party has with respect to an interim measure under
paragraph (1) of this article.
Article 17 octies—Costs and damages [Art. 17 G in the final text]
The party requesting an interim measure or applying for a preliminary order shall be liable
for any costs and damages caused by the measure or the order to any party if the arbitral
tribunal later determines that, in the circumstances, the measure or the order should not
have been granted. The arbitral tribunal may award such costs and damages at any point
during the proceedings.
P 416
P 417
25 APRIL 2006 SECRETARIAT NOTE A/CN.9/605 (25 APRIL 2006)
I. Draft legislative provisions on interim measures and preliminary orders
4. The text of chapter IV bis on interim measures and preliminary orders, as adopted by
the Working Group at its forty-fourth session, (15) reads as follows:
[reprinted supra.]
II. Remarks on the draft legislative provisions on interim measures and preliminary
orders
Remarks on section 1—Interim measures
Article 17, paragraph (2)
Form of issuance of an interim measure
5. At its thirty-sixth (New York, 4–8 March 2002), (16) thirty-seventh (Vienna, 7–11 October
2002) (17) and fortieth (New York, 23–27 February 2004) (18) sessions, the Working Group
considered at length the form in which an interim measure should be issued by an arbitral
tribunal. The Working Group agreed that the phrase “whether in the form of an award or in
another form”, which was inspired from the UNCITRAL Arbitration Rules, was sufficiently
neutral to reflect the intention of the Working Group not to create any preferred form in
which an interim measure should be issued. It was said that it would be undesirable for the
draft paragraph to be overly prescriptive in respect of the form that an interim measure
should take. The Commission might wish to note the suggestion that any explanatory
material to be prepared, possibly in the form of a guide to enactment and use of the new
legislative provisions, make it clear that the wording adopted should not be
misinterpreted as taking a stand in respect of the issue as to whether or not an interim
measure issued in the form of an award would qualify for enforcement under the New York
Convention (see below, para. 17). (19)
Exhaustive nature of the list of functions characteristic of interim measures
6. At its thirty-sixth (New York, 4–8 March 2002) (20) and thirty-ninth (Vienna, 10–14
November 2003) (21) sessions, the Working Group considered whether all possible grounds
for which an interim measure might need to be granted were covered by the current
formulation under article 17, paragraph (2). After discussion, the Working Group agreed
that, to the extent that all the purposes for interim measures were generically covered by
the revised list contained in paragraph (2), the list could be expressed as an exhaustive
one. (22) The Commission might wish to note the decision of the Working Group to provide
explanation on that matter in any explanatory material accompanying that provision.
P 417
P 418
Article 17 bis
7. At its forty-third session (Vienna, 3–7 October 2003), the Working Group agreed to retain
the word “adequately” in subparagraph (a) of article 17 bis (1) and to clarify, in any
explanatory material, that the subparagraph should be interpreted in a flexible manner by

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 balancing the degree of harm suffered by the applicant if the interim measure was not
granted against the degree of harm suffered by the party opposing the measure if that
measure was granted. (23)
8. It was suggested as well that explanatory material accompanying article 17 bis could
indicate that the fact that the requirements in paragraphs (1)(a) and (b) of article 17 bis
only applied to the type of measure contained in paragraph (2)(d) of article 17 to the
extent the arbitral tribunal considered appropriate did not mean that an arbitral tribunal
would not examine and weigh the circumstances in determining the appropriateness of
ordering the measure. (24)
“Urgent need for the measure”
9. The Working Group considered, after discussion, that the need for urgency should not be
a general feature of interim measures. (25) The Commission might wish to decide whether
guidance should be provided in explanatory material indicating how urgency impacts
upon the operation of the provisions in Section 1.
Remarks on section 2—Preliminary orders
General remarks
10. At its forty-first (Vienna, 13–17 September 2004), (26) and forty-second (New York, 10–14
January 2005) (27) sessions, the Working Group undertook a detailed review of the
provisions regarding the power of an arbitral tribunal to grant interim relief on an ex parte
basis. In the legislative provisions, the term “preliminary order” is used, instead of “interim
measure”, to describe a measure issued on an ex parte basis. This term emphasizes the
temporary and extraordinary nature of the order, as well as its distinct scope and purpose.
11. At its forty-second session (New York, 10–14 January 2005), after extended discussion,
the Working Group agreed to include a compromise text of the provisions on preliminary
orders, on the basis of the principles that: those provisions would apply unless otherwise
agreed by the parties; it be made clear that preliminary orders had the nature of
procedural orders and not of awards; and no enforcement procedure would be provided
for such orders in section 4. (28)
P 418
P 419
Article 17 ter
Purpose, function and legal regime of preliminary orders
12. At the forty-first session of the Working Group (Vienna, 13–17 September 2004), doubts
were expressed as to whether or not the notion of “preliminary order” should be regarded
as a subset of the broader notion of “interim measure”. It was suggested that, if a
preliminary order was understood to be a subset of an interim measure, then the
distinction between them might be regarded as artificial and might lead to difficulties in
implementation and practice. (29) The Working Group noted that, although a preliminary
order might be regarded as a subset of an interim measure, it should be distinguished
from an interim measure in view of its narrower purpose, which was limited to preventing
the frustration of the specific interim measure being applied for. Another distinctive
feature of a preliminary order was that it was subject to strict time limits as set out in
article 17 quater. It was stated that a preliminary order was effectively to provide a
“bridging device” until an inter partes hearing could take place in respect of the requested
interim measure. (30) The Commission might wish to decide whether explanatory material
accompanying article 17 ter should include an explanation of the distinction between an
interim measure and a preliminary order.
13. At the forty-second session of the Working Group (New York, 10–14 January 2005), it was
said that article 17 ter could be misunderstood as providing that the arbitral tribunal
could only direct the parties in general terms not to frustrate the purpose of the interim
measure. Notwithstanding that view, it was understood that the arbitral tribunal had a
more general discretion to issue a preliminary order that was appropriate and was in
keeping with the circumstances of the case and that such an understanding should be
made clear in any explanatory material. (31)
Article 17 quater
Obligation of arbitral tribunal to give notice (article 17 quater, paragraph (1))
14. At the forty-second session of the Working Group (New York, 10–14 January 2005), it was
noted that the arbitral tribunal had an obligation to communicate documents and
information to the party against whom the preliminary order was sought and it was
suggested that it be clarified that that obligation applied whether the arbitral tribunal
issued or refused to issue the order. The Commission might wish to note that the Working
Group agreed that clarification of that obligation might be included in any explanatory
material accompanying article 17 quater. (32)
P 419
P 420
Non-enforceability of preliminary orders (article 17 quater, paragraph (5))
15. The Working Group considered at length whether an enforcement regime should be
provided in respect of preliminary orders. The need for including such a regime was

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 questioned given the temporary nature of a preliminary order (33) and the fact that it
could raise practical difficulties, such as whether notification to the other party of the
preliminary order should be deferred until after the order had been enforced by a court.
(34) The Commission might wish to note that non-enforceability of preliminary orders was
central to the compromise reached at the forty-second session of the Working Group (see
above, paragraph 11).
Recourse to courts
16. The Commission might wish to consider a proposal made at the forty-fourth session of
the Working Group (New York, 23–27 January 2006) to add the following text to paragraph (5)
of article 17 quater: “a party shall not be prevented from seeking any relief in a court
because it has obtained such a preliminary order from the arbitral tribunal”. The Working
Group took note of that proposal. It was suggested that this proposal merely clarified the
operation of the provision and did not seek to reopen substantive questions relating
thereto. (35)
MAY 2006 SECRETARIAT NOTE GOVERNMENT COMMENTS A/CN.9/609 (4 MAY 2006)
II. Comments received from Member States and international organizations
A. Member States
Guatemala
[.…]
Article 17 (1)
The following wording is suggested: (1) Unless otherwise agreed by the parties, the arbitral
tribunal may, at the request of any party, grant interim measures (it is suggested that the
word A be replaced by ANY).
This semantic change creates a broader or more balanced impression of the situation for
all parties to the arbitral process.
Article 17 (2)
No actual change in wording is suggested, but it is suggested that thought be given to the
P 420 use of the word “laudo” [award] to denote the means by which an interim measure might
P 421 be granted. Although the reason for using that word is clear, being linked principally to
the executive force of the word when used in a State's jurisdictional tribunals, in some
jurisdictions it may give rise to confusion insofar as it refers to the final conclusion of legal
proceedings (“laudo” is equivalent to “sentencia” [judgement], and in ordinary or
jurisdictional proceedings interim measures are granted through preliminary orders or
decisions). Perhaps the expression “laudo interino” [interim award] could be used, as, I
believe, it is in other jurisdictions, and, if it were used, perhaps a definition of this type of
“laudo” [award] could be added to the article of the Model Law containing the definitions.
If the use of the expression “laudo interino” [interim award] were accepted, where
reference is made in Article 17 (2) to “a subsequent award” the expression “laudo
definitivo” [final award] would have to be used in the subparagraph in question.
Article 17 bis [Art. 17 A in the final text]
Subparagraph (1) (a)
It is suggested that, instead of the words “no resarcible” [not reparable], use be made of
“no reversible” [irreversible] or “irreparable”.
Subparagraph (1) (b)
It is suggested that this subparagraph be deleted. In the Guatemala jurisdiction it could be
used as a means of impugning or discrediting the arbitrators on the grounds that they had
advanced in some way or other an opinion about the claims of one of the parties. Perhaps
it would be better simply to indicate, in this or some other provision of the Model Law
amendment proposal, that the arbitrators shall decide on the measures in respect of
which they are competent, or to establish a higher standard of care for the arbitrators as
regards their decision whether or not to grant such measures.
Section 2
It is suggested that in the first line “a toda demanda” [to a request] be replaced by “a todo
requerimiento” [the English version would probably not be affected]. If this change were
acceptable, it would have to be made in other provisions as well—for example, in Article 17
ter. Similarly, it is suggested that in various articles of the proposal the word
“demandante” in the phrase “demandante de una medida cautelar” [party requesting an
interim measure] or “demandante de una orden preliminar” [party requesting a
preliminary order] (*) be replaced by “solicitante” or “requirente”.
Article 17 ter [Art. 17 B in the final text]
As the term “Órdenes preliminares” [Preliminary orders] is not used in all jurisdictions in
their laws relating to legal procedure, (1) perhaps, as with “medidas cautelares”, a
definition of that term should be included.
P 421

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 P 421
P 422
It would be useful to know more about the relationship, in the case in question, between
preliminary orders and interim measures, in order to decide whether it is necessary to
make further comments regarding this and other articles.
Further to the previous comment, the regulation relating to the recognition and
enforcement of interim measures should be examined more thoroughly, as it would appear
that these are thought of principally in the context of international arbitrations, whereas in
some jurisdictions, such as that of Guatemala, the Model Law has been adopted as
domestic legislation covering both international and national arbitrations. It will be
necessary to determine whether the proposed regulation applies equally to national
arbitrations. Finally, as regards the revised legal provisions relating to the form of the
arbitral agreement there is only one comment, as follows.
[.…]
Italy
Comments on Draft legislative provisions on interim measures and preliminary orders
(Annex I)
Under the present status of Italian law on arbitration, arbitrators are not granted the
power to issue interim measures or preliminary orders. The Italian view of the matter is
that such power ought to be reserved to the exclusive benefit of the Court of competent
jurisdiction. This fundamental choice of the Italian legal system is not expected to change
in the near or foreseeable future. Thus, the proposed new UNCITRAL rules on interim
measures and preliminary orders are unlikely to be adopted, in whole or in part, by the
Republic of Italy. This would be even more stringent for interim measures recognized
inaudita altera parte. The Italian Delegation had already submitted in the past comments
and proposals on the above, that are reiterated and recalled here.
[.…]
2. It would be appropriate to make it clear (whether in the text of the Draft provisions or in
an official Commentary or in the Guide to Enactment) that in Chapter IV bis the word
“party” may only mean a “party to the arbitration agreement”, not a third party whose
position may be affected by the interim measure or the preliminary order, but whose
consent to being subjected to the jurisdiction of the arbitral tribunal is lacking.
Article 17 quater (2) [Art. 17 C(2) in the final text] provides a good illustration of a provision
whose legal certainty would benefit, it is submitted, from the insertion of the above
suggested clarification.
3. In the light of the strong opposition that was voiced by a number of delegations within
P 422 the Working Group against the opt-out formula which was ultimately selected in Article 17
P 423 (1) and Article 17 ter (1), the Commission may wish to reconsider the advisability of
offering a final text, in which an opt-in formula may be added as an alternative solution.
Thus, as an alternative to “Unless otherwise agreed by the parties”, the final text could also
offer the possibility of choosing, as an opening statement of Article 17 (1) and Article 17 ter
(1), the words “If so agreed by the parties” or any other equivalent wording.
A/CN.9/609/ADD.1 (4 MAY 2006)
II. Comments received from Member States and international organizations
A. Member States
2. China
[.…]
I. Revised Legislative Provisions on Interim Measures and Preliminary Orders
(I) General comments on the text as a whole
The present draft represents an extensive expansion of the provisions in Article 17 of the
1985 UNCITRAL Model Law on International Commercial Arbitration regarding the power of
the arbitral tribunal to order interim measures. The terms “interim measures” and
“preliminary orders” are similar in meaning to “preservative measures” known in China's
legal system, which include preservative measures towards property and preservative
measures with regard to evidence. The Arbitration Law of China states in its Article 28 that
“… If one of the parties applies for property preservation, the arbitration commission shall
submit to a people's court the application of the party in accordance with the relevant
provisions of the Civil Procedure Law”; and in its Article 46 that “… If the parties apply for
such preservation, the arbitration commission shall submit the application to the basic-
level people's court of the place where the evidence is located.” In other words, the
Chinese law has not accorded the arbitral tribunal the power to order preservative
measures, nor the power to order interim measures or issue preliminary orders. In this
connection, therefore, the present draft is in conflict with the relevant provisions of the
Chinese civil procedure law and the arbitration law. There is no legal basis for courts in
China to recognize and enforce interim measures and preliminary orders from foreign
arbitral tribunals.

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 (II) Comments on specific provisions
Within the extent of our general views as above, we make the following suggestions for
amendment of specific provisions:
1. For paragraph (1)(b), Article 17 bis—Conditions for granting interim measures [Art. 17 A in
the final text] in Annex I, Revised legislative provisions on interim measures and
P 423 preliminary orders, it is suggested that subparagraph (b) “There is a reasonable possibility
P 424 that the requesting party will succeed on the merits of the claim, …” be deleted in its
entirety, as it is no easy task to make an accurate prejudgement on the likelihood of
success of the claim at the time of application for interim measures. Besides, who is going
to determine such likelihood and how should it be determined remains a tough issue. It
takes time to make such determinations. And interim measures are of such an urgent
nature that does not allow for longer periods of time to decide on the possible existence of
the likelihood of success. Delay in time will defeat the purpose of the provisions on interim
measures.
2. For paragraph (5), Article 17 quater—Specific regime for preliminary orders [Art. 17 C in
the final text], it is suggested that the clause “but shall not be subject to enforcement by a
court” be deleted from the paragraph “A preliminary order shall be binding on the parties
but shall not be subject to enforcement by a court …” for a preliminary order that is not
subject to enforcement by a court will bring about no real effect.
3. For the second line in Article 17 quinquies—Modification, suspension, termination [Art. 17
D in the final text], it is suggested to insert the words “if it is justified” after “upon
application of any party”, since it is unacceptable for an application not to be justified.
4. For paragraph (1), Article 17 novies—Recognition and enforcement [Art. 17 H in the final
text], it is suggested to delete the phrase “unless otherwise provided by the arbitral
tribunal”, since there should be no provision otherwise by the arbitral tribunal once it has
issued an order for “interim measures”. The phrase lends little room for reasonable
understanding.
A/CN.9/609/ADD.4 (18 MAY 2006)
II. Comments received from Member States and international organizations
A. Member States
5. United Kingdom
United Kingdom comments on Article 17 of the Model Law and the future work of UNCITRAL
Following the last meeting of the Working Group in New York, we agreed to send comments
on the work of UNCITRAL, in light of its recent project on interim measures and in particular
“preliminary orders”.
As we noted at the meeting, the United Kingdom has mixed feelings about the completion
of this project.
On the one hand, we are of course happy that the Working Group has finally arrived at an
agreed draft, which can go forward to the Commission next month, leaving the way clear, at
last, for new projects. We would particularly like to congratulate the Chairman and the
Secretariat for the tireless work and drafting skills in arriving at a final solution after many
difficult sessions.
P 424
P 425
On the other hand, however, it is the nature of this process itself that gives rise to serious
concerns—quite apart from the United Kingdom's reservations on the substance of the new
provision (which are now a matter of record, and need not be restated).
On any view, the Working Group's draft on “preliminary orders” has been the subject of
extraordinary controversy inside and (more troublingly) outside UNCITRAL. Even ahead of
the Commission's consideration, it is already apparent that the new provision will be met
with a substantial body of criticism in the international field. This is not to say that it does
not also have a body of support, but the key question for us is whether this is really a
position in which UNCITRAL should ever find itself. We cannot think of any previous project
(short of the Model Law itself) that has had such a difficult gestation, and required so many
resources for what, so far as “preliminary orders” are concerned, may be considered a
somewhat modest result.
Early on in this particular project, it became manifest that there was no international
consensus on “ex parte” measures. On the contrary there was—and remains—profound
disagreement amongst specialists. The result was inevitable: lengthy debates; difficult
Working Group sessions; and a final draft that has the weaknesses of any hard fought
compromise.
Our fear, which we have expressed previously, is that the end result may damage
UNCITRAL's international standing and future influence. UNCITRAL has a unique reputation
worldwide in the development of commercial law. In our view, a key element in its success
has been its acceptance as a neutral and expert body, able to express an international
consensus, and therefore of significant influence across diverse cultures and legal
traditions. It has been and should be a source of innovation, but within careful bounds. As

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 soon as its work is perceived as controversial, or a vehicle for the interests of a few
dominant delegations, it may lose this standing. Equally, as soon as its processes are seen
as inefficient in terms of cost and time, it may be that much harder to attract and maintain
international participation.
This is all the more regrettable in this case, given that the relatively minor “ex parte”
element of our work has been allowed to overshadow the rest of the project, and what is
certainly a commendable draft on “inter partes” measures.
Our suggestion is that this experience be borne in mind in structuring UNCITRAL's future
work. In particular, it is our hope that UNCITRAL will continue to innovate, and to push the
international consensus as far as it will go. At the same time, however, it is vital that
UNCITRAL avoids “trouble spots”, internal division, and the expenditure of
disproportionate resources where this is avoidable.
The United Kingdom strongly supports the work of UNCITRAL, and will continue to do so. We
hope that these few observations will be understood, as they are intended, as constructive
comments, and we look forward to working closely with UNCITRAL in its future work in this
area.
P 425
P 426
A/CN.9/609/ADD.5 (30 MAY 2006)
II. Comments received from Member States and international organizations
A. Member States
6. France
General remarks
1. The French delegation notes with regret that the Working Group's method of functioning
did not fully meet its expectations. It felt that, on numerous occasions, every effort had not
been made to reach truly consensus solutions. For example, the Working Group
unfortunately did not take into account the reservations expressed—by a majority at the
last plenary session—regarding “preliminary orders” and preferred to make no
amendments whatsoever to the provisions drafted on this issue. Also, it adopted a
provision on “anti-suit injunctions” despite the reservations expressed by many
delegations. The reports of the Working Group are sometimes elliptical on these matters
and do not sufficiently make the point that a compromise could be achieved only under
particularly difficult conditions.
2. As to substance, the French delegation gives a mixed appraisal of the work of the
Working Group, in which it nonetheless participated positively and constructively. While
the definitions of interim measures that can be ordered by an international arbitrator are
generally welcome, many provisions are overly cumbersome—as a comparison with the
original provisions of the Model Law reveals—if not questionable from the perspective of
arbitration practice.
3. From the viewpoint of France, all of this compromises the quality and desired universal
scope of the new model legislative provisions. A symposium held last February at the
Senate in Paris on the UNCITRAL project showed that for a good many French legal writers
and arbitration practitioners the model provisions gave rise to numerous, strong
reservations, which are largely in line with those formulated by the French delegation
during the course of the work.
Interim measures of protection
Draft article 17 (2) (b): anti-suit injunctions
4. The French delegation is opposed to the inclusion of “anti-suit” measures among
ordinary interim measures. Measures of this type do not fall into the category of interim
measures. Also, they are alien to the continental law tradition. Anti-suit injunctions are
questionable since they deny a party the legal remedies to which it is normally entitled.
Hence such a course of action is challengeable within the European Union. (1)
P 426 5. The French delegation wishes to request the deletion of this provision, which was
P 427 inserted in the revised provisions without any extensive discussion of the potential
consequences on the structure of the provisions as a whole (cf. point 1 above).
Draft article 17 ter: preliminary orders [Art. 17 B in the final text]
6. A large group of countries shared the French delegation's major objections to such
measures, believing that they ran counter to party autonomy, the foundation of
international commercial arbitration. These measures might also infringe the principle of
equal treatment of parties. The French delegation thus proposes once again—this
suggestion having received the support of many delegations at the previous session—that
such measures be permitted only if they have previously been accepted by the parties in
their arbitration agreement. This positive option would not in any way preclude the
possibility of the effective use of these measures since it could be inserted in a model
arbitration agreement to which the parties may refer for the settlement of their disputes. It
therefore constitutes a genuine compromise arrangement which could make acceptable
the introduction in arbitration law of ex parte measures which have been accepted in the

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 form of preliminary orders.
Draft article 17 quater, paragraph (4): unenforceable nature of preliminary orders [Art. 17 C in
the final text]
7. Somewhat illogically, given the Working Group's interest in this innovative extension of
the arbitrator's powers, it has been stipulated that “[a] preliminary order shall be binding
on the parties but shall not be subject to enforcement by a court”. This would rob these
measures of much of their effectiveness since juridical persons, in particular banking
establishments, which the arbitrator will approach to obtain the execution of such orders,
would be unable to comply without a writ of enforcement. It would therefore be desirable
to delete that sentence while retaining the following one, which states that a preliminary
order does not constitute an award.
A/CN.9/609/ADD.6 (19 JUNE 2006)
II. Comments received from Member States and international organizations
A. Member States
Austria
Comments on draft legislative provisions on interim measures and on the form
requirement for arbitration agreements
[.…]
In general Austria can go along with the draft text as it currently stands and avails itself of
this opportunity to congratulate the secretariat for its excellent work in the course of and
in between the Working Group meetings related to this topic.
There are, however, two elements in the draft text Austria is not really content with:
P 427
P 428
First, Austria would like to reiterate its position that it is neither desirable nor appropriate
to confer on arbitral tribunals the power to grant preliminary orders on an ex parte basis.
The party against which an interim measure is invoked should always be given the
possibility to present its position prior to the issuance of such a measure.
Therefore, Austria remains critical of draft article 17 ter [Art. 17 B in the final text] of the
Model Law even taking into account the specific precautions set out by article 17 quater
[Art. 17 C in the final text], in particular paragraph 5 of this article. The opt-out solution in
article 17 ter (1) seems to be not sufficient to protect the rights of the parties. As a rule
parties to an arbitration agreement might not be aware of the danger of being later faced
by a preliminary order directed against them and might therefore not be prepared to opt-
out via a respective clause in their arbitration agreement.
[Editors' Note: Austria's second point addressed Article 7 of the Model Law and is reprinted in
the section on that Article, p. 150 supra.]
2006 COMMISSION REPORT A/61/17 (14 JULY 2006)
IV. Finalization and adoption of legislative provisions on interim measures and the form
of arbitration agreement and of a declaration regarding the interpretation of articles II (2)
and VII (1) of the 1958 New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards
[.…]
B. Consideration of the draft legislative provisions on interim measures
1. General comments
88. The Commission recalled that the provisions had been drafted in recognition not only
that interim measures were increasingly being found in the practice of international
commercial arbitration, but also that the effectiveness of arbitration as a method of
settling commercial disputes depended on the possibility of enforcing such interim
measures (see [December 2000 Working Group Report,] A/CN.9/485 and Corr.1, para. 78
[reprinted in the section on Arts. 17 H – 17 I, p. 458 infra]). General agreement was expressed
as to the need for a harmonized and widely acceptable model legislative regime governing
interim measures granted by arbitral tribunals and their enforcement as well as interim
measures ordered by courts in support of arbitration. The Commission recalled that the
draft legislative provisions on interim measures and preliminary orders were the result of
extensive discussion in the Working Group. The Commission recalled as well that the
Working Group, at its forty-second session (New York, 10–14 January 2005), had agreed to
include a compromise text of the provisions on preliminary orders, on the basis that those
P 428 provisions would apply unless otherwise agreed by the parties; that it be made clear that
P 429 preliminary orders had the nature of procedural orders and not of awards; and that no
enforcement procedure would be provided for such orders in section 4 ([January 2005
Working Group Report,] A/CN.9/573, para. 27).
2. Consideration of draft articles
89. The text of the draft legislative provisions considered by the Commission at the current

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 session was as contained in document [25 April 2006 Secretariat Note] A/CN.9/605.
Section 1. Interim measures
Article 17. Power of arbitral tribunal to order interim measures
Paragraph 1
90. It was recalled that paragraph 1 reproduced in part the wording of article 17 of the 1985
UNCITRAL Model Law on International Commercial Arbitration (5) (the “Arbitration Model
Law”).
91. Paragraph 1 was adopted in substance by the Commission without modification.
Paragraph 2
Subparagraph (b)
92. A question was raised whether the words “or prejudice to the arbitral process itself”, at
the end of subparagraph (b), should be retained.
93. It was recalled that the purpose of those words was to clarify that an arbitral tribunal
had the power to prevent obstruction or delay of the arbitral process, including by issuing
anti-suit injunctions. It was also recalled that, in the Working Group, anti-suit injunctions
had given rise to serious reservations on the part of many delegations. In support of
deletion, it was stated that anti-suit injunctions did not always have the provisional nature
of interim measures but could also relate to substantive matters such as questions relating
to the competence of the arbitral tribunal. It was also said that such a provision derogated
from the fundamental principle that a party should not be deprived of any judicial remedy
to which it was entitled.
94. In response, the Commission noted that, at previous sessions, the Working Group had
expressed a preference for the inclusion of anti-suit injunctions in draft article 17. It was
also recalled that the words in question should not be understood as merely covering anti-
suit injunctions but rather as more broadly covering injunctions against the large variety of
actions that existed and were used in practice to obstruct the arbitral process.
95. After discussion, paragraph 2 was adopted in substance by the Commission without
modification.
P 429
P 430
Exhaustive nature of the list of functions characteristic of interim measures
96. The Commission recalled that the Working Group, at its thirty-sixth (New York, 4–8
March 2002) and thirty-ninth (Vienna, 10–14 November 2003) sessions, had considered
whether all possible grounds for which an interim measure might need to be granted were
covered by the current formulation under article 17, paragraph 2 (see [April 2002 Working
Group Report,] A/CN.9/508, paras. 70–76, and [December 2003 Working Group Report,]
A/CN.9/545, para. 21). It was recalled that the Working Group agreed that, to the extent that
all the purposes for interim measures were generically covered by the revised list
contained in paragraph 2, the list could be expressed as exhaustive ([December 2003
Working Group Report,] A/CN.9/545, para. 21). The Commission decided that clarification of
that matter should be included in any explanatory material accompanying article 17.
Article 17 bis. Conditions for granting interim measures [Art. 17 A in the final text]
Paragraph 1
General remark
“Urgent need for the measure”
97. The Commission took note of the decision by the Working Group that the need for
urgency should not be a general feature of interim measures. The Commission decided that
guidance should be provided in explanatory material indicating how urgency impacted on
the operation of the provisions in section 1.
Subparagraph (a)
“Substantially”
98. A suggestion was made to delete the word “substantially” for the reason that it might
introduce an unnecessary and unclear requirement, making it more difficult for the arbitral
tribunal to issue an interim measure. In support of that proposal, it was said that it would
be preferable to leave it to arbitral practice over time to determine how the balance of
inconvenience reflected in subparagraph (a) should be used as a standard.
99. In response, it was pointed out that the text of subparagraph (a), including the word
“substantially” was consistent with existing standards in many judicial systems for the
granting of an interim measure.
100. After discussion, the Commission decided to retain the word “substantially”.
Subparagraph (a) was adopted in substance by the Commission without modification.
P 430
P 431

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 Subparagraph (b)
“Prima facie”
101. A proposal was made to delete subparagraph (b) on the basis that interim measures
might need to be granted as a matter of urgency and a requirement for an arbitral tribunal
to make a determination as to the possibility of success on the merits of the claim might
unnecessarily delay matters or appear as a prejudgement of the case. That proposal was
not supported for the reason that subparagraph (b) was considered to constitute a
necessary safeguard for the granting of interim measures. It was said that that
subparagraph was drafted with the intention that the arbitral tribunal would make a
preliminary judgement based on the information available to it at the time of its
determination.
102. A proposal to add the words “prima facie” to subparagraph (b) so that the arbitral
tribunal would not be required to make a full determination on the question of possibility
of success on the merits was not supported. In rejecting that proposal, the Commission
noted that the term “prima facie” was susceptible to differing interpretations. It was
recalled that the Working Group's intention in drafting that subparagraph was to provide a
neutral formulation of the standard of proof.
“provided that”
103. It was observed that the words “provided that” suggested that the second part of the
sentence was a condition for the first part and therefore did not reflect the intention of the
Working Group. In order to address that concern, a proposal was made to delete those
words and split the subparagraph into two sentences.
104. After discussion, it was agreed that subparagraph (b) should read as follows: “There is
a reasonable possibility that the requesting party will succeed on the merits of the claim.
The determination on this possibility shall not affect the discretion of the arbitral tribunal
in making any subsequent determination”.
Paragraph 2
105. Paragraph 2 was adopted in substance by the Commission without modification.
Section 2. Preliminary orders
Article 17 ter. Applications for preliminary orders and conditions for granting preliminary
orders [Art. 17 B in the final text]
106. Article 17 ter was adopted in substance by the Commission without modification.
Article 17 quater. Specific regime for preliminary orders [Art. 17 C in the final text]
Paragraph 1
107. Paragraph 1 was adopted in substance by the Commission without modification.
P 431
P 432
Paragraph 2
108. It was noted that paragraph 2 required the arbitral tribunal to give the party against
whom a preliminary order was directed an opportunity to present its case at the earliest
practicable time. It was noted that while paragraph 1 required the arbitral tribunal to give
notice to “all parties”, paragraph 2, which referred to “any party against whom a
preliminary order is directed to present its case”, appeared to be more limited. A proposal
was made to extend the application of paragraph 2 by adding after the word “directed” the
words “or to any other party”. An alternative proposal was made to replace the words “any
party against whom a preliminary order is directed”, with “the party affected by the
preliminary order”.
109. It was stated in response that the proposed amendments could unnecessarily
complicate the arbitral process. Concern was expressed that the addition of wording such
as “any affected party” could provide a person that was not a party to the arbitral
proceedings, but nevertheless affected by the preliminary order (for example, a bank),
with a right to present its case. It was said that the existing text in paragraph 2 was
appropriate in that it gave priority to the party most affected by the preliminary order and
did not exclude the possibility that other arbitral parties could respond to the preliminary
order if they so wished. It was agreed that the substance of paragraph 2 should be retained
but that clarification should be included in explanatory material relating thereto. It was
proposed that such explanatory material could indicate that, when an arbitral tribunal
invited a party against whom the preliminary order was directed to present its case, that
invitation should be copied to all parties and, consistent with general arbitration practice,
those parties that wished to react to the preliminary order would do so, even in the
absence of a specific invitation. It was also suggested that the explanatory material could
clarify that paragraph 2 was not intended to extend to persons that were not party to the
arbitration.
110. After discussion, paragraph 2 was adopted in substance by the Commission without
modification.
Paragraph 3

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 111. Paragraph 3 was adopted in substance by the Commission without modification.
Paragraph 4
112. Paragraph 4 was adopted in substance by the Commission without modification.
Paragraph 5
Time when a preliminary order becomes binding
113. A question was raised as to when a preliminary order would become binding on the
parties. It was recalled that the arbitral tribunal could, at the same time that it grants a
preliminary order, also establish a deadline for the requesting party to put security in
P 432 place and that this possibility was the reason for the flexible wording “in connection with”
P 433 under article 17 sexies, paragraph 2. It was therefore considered that a preliminary
order could become binding on the parties when granted by the arbitral tribunal.
Non-enforceability of preliminary orders
114. The Commission recalled that the Working Group had considered at length whether an
enforcement regime should be provided in respect of preliminary orders. The need for
including such a regime was questioned given the temporary nature of a preliminary order
and the fact that it could raise practical difficulties, such as whether notification of the
preliminary order to the other party should be deferred until after the order had been
enforced by a court. Further, it was said that parties usually honour interim measures out
of respect for the arbitrators' authority and a desire not to antagonize them. The
Commission noted that non-enforceability of preliminary orders was central to the
compromise reached at the forty-second session of the Working Group (see para. 88
above).
Seeking relief in a court
115. The Commission considered a proposal made at the forty-fourth session of the Working
Group (New York, 23–27 January 2006) to add the following text, either to paragraph 5 of
article 17 quater or in explanatory material: “a party shall not be prevented from seeking
any relief in a court because it has obtained such a preliminary order from the arbitral
tribunal” (see [February 2006 Working Group Report,] A/CN.9/592, para. 27). Doubts were
expressed as to the need to include such a clarification as it was said that the provision
could only operate in exceptional circumstances. It was however pointed out that article 9
of the Arbitration Model Law already protected the right of a party to arbitral proceedings
to request from a court an interim measure. It was suggested that that proposal merely
clarified the operation of provisions in respect to preliminary orders.
116. The Commission agreed that wording along the following lines: “a party shall not be
prevented from seeking any relief it would otherwise be entitled to seek in a court because
it has obtained such a preliminary order from the arbitral tribunal” should be included in
any explanatory material.
117. After discussion, paragraph 5 was adopted in substance by the Commission without
modification.
Section 3. Provisions applicable to interim measures and preliminary orders
Article 17 quinquies. Modification, suspension, termination [Art. 17 D in the final text]
118. Article 17 quinquies was adopted in substance by the Commission without
modification.
P 433
P 434
Article 17 sexies. Provision of security [Art. 17 E in the final text]
Paragraph 1
119. Paragraph 1 was adopted in substance by the Commission without modification.
Paragraph 2
120. Paragraph 2 was adopted in substance by the Commission without modification.
Article 17 septies. Disclosure [Art. 17 F in the final text]
General remarks
121. The view was expressed that, under many national laws, the obligation for a party to
present facts or arguments against its position was unknown. In addition, it was said that
that provision did not contain any sanction in case of non-compliance by the party
requesting the measure of its disclosure obligation. A proposal was made to delete
paragraph 1 and the second sentence of paragraph 2.
122. It was recalled that the two paragraphs of article 17 septies reflected two distinct
disclosure obligations that operated in distinct circumstances. Whereas the obligation in
paragraph 1 to disclose changed circumstances related to interim measures, the obligation
to disclose all “relevant” circumstances in article 17 septies, paragraph 2, was inspired
from the rule in existence in certain jurisdictions that counsel had a special obligation to
inform the court of all matters, including those that spoke against its position and that it

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 was considered as a fundamental safeguard and an essential condition, namely to the
acceptability of preliminary orders. Similarly, in many other legal systems, a comparable
obligation arose from the recognized requirement that parties act in good faith. It was
observed that article 17 septies was a result of lengthy discussions in the Working Group
and it was recalled that those two paragraphs were carefully drafted, taking account of the
type of measures they related to.
123. In support of retaining paragraph 1, it was recalled that the essential purpose of
article 17 septies, paragraph 1, was to ensure that a decision to grant an interim measure
would be made by the arbitral tribunal on the basis of the most complete record of the
facts. Given that the interim measure might be granted at an early stage of the arbitral
proceedings, an arbitral tribunal might often be faced with an imperfect record and wish
to be informed of any changes concerning the facts on the basis of which the interim
measure was granted.
124. Various proposals were made in order to address the objection that the obligation of
disclosure contained in article 17 septies, paragraph 1, would be unfamiliar to certain
jurisdictions, and therefore difficult to enact in those jurisdictions. In order to provide a
more flexible duty of disclosure, adapted to the circumstances of each arbitral
proceeding, it was proposed to include as opening words to article 17 septies, paragraph 1,
the following words “[i]f so ordered by the arbitral tribunal”.
P 434
P 435
125. A further proposal was made to replace the words at the end of article 17 septies,
paragraph 1, “or granted” with the words “if it becomes aware of such a change”. That
proposal was objected to on the ground that it was implicit in article 17 septies that the
obligation to disclose would only arise where a party became aware of such a change. As
well, it was suggested that inclusion of those words would create difficulties in practice. It
was suggested that, if the proposal were retained, additional words were necessary to
require the party requesting the interim measure to disclose material changes in
circumstances where it should have been aware of such changes.
126. A related proposal was made to amend article 17 septies, paragraph 1, along the
following lines: “The arbitral tribunal may require any party promptly to disclose any
material change in the circumstances on the basis of which the measure was requested or
granted.” The second sentence of paragraph 2 would then be amended as follows:
“Thereafter, paragraph 1 of this article shall apply.”
127. After discussion, the Commission adopted the related proposal referred to under
paragraph 126 above, and agreed that the explanatory material should clarify the scope of
application of the disclosure obligation contained in article 17 septies.
Article 17 octies. Costs and damages [Art. 17 G in the final text]
128. Article 17 octies was adopted in substance by the Commission without modification.
[Editors' Note: The Commission Report included an Annex setting out the revised text of all
the Model Law articles addressed by the 2006 Amendments. For materials relating to Latin
versus letter-style numbering of the articles, see the February 2006 Working Group Report,
A/CN.9/592, paras. 15–16, in the section on materials common to Arts. 17 – 17 J, p. 582 infra.].
P 435
P 436
Articles 17 H – 17 I
[Editors' Note: The legislative history section on Articles 17 – 17 J is divided into four parts. The
materials that follow concern Articles 17 H – 17 I (dealing with recognition and enforcement of
interim measures ordered by arbitral tribunals). For materials on background and formatting,
and government comments, common to Articles 17 – 17 J, see pp. 159–205 supra. For materials
on Articles 17 – 17 G (dealing with the issuance of interim measures by arbitral tribunals), see
pp. 206–435 supra. For materials on Article 17 J (dealing with court-ordered interim measures),
see pp. 548–86 infra.]
APRIL 1999 SECRETARIAT NOTE POSSIBLE FUTURE WORK A/CN.9/460 (6 APRIL 1999)
L. Enforceability of interim measures of protection
115. According to many sets of arbitration rules, an arbitral tribunal may, at the request of a
party, order interim measures intended to preserve the status quo until the arbitral award
is made. Such measures are referred to by expressions such as “interim measures of
protection”, “provisional orders”, “interim awards”, “conservatory measures” or
“preliminary injunctive measures”. For example, article 26(1) of the UNCITRAL Arbitration
Rules provides as follows:
“At the request of either party, the arbitral tribunal may take any interim
measures it deems necessary in respect of the subject-matter of the dispute,
including measures for the conservation of the goods forming the subject matter
in dispute, such as ordering their deposit with a third person or the sale of
perishable goods.”
116. Interim measures of protection, often not defined in rules providing for their issuance,

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 can encompass a wide variety of measures including: orders for not removing goods or
assets from a place or jurisdiction; preserving evidence; selling goods; and, posting a
monetary guarantee. An interim measure may be imposed for the duration of the
arbitration or it may be of a more temporary nature and expected to be modified as
matters evolve. The measure may be in the form of an order by the arbitral tribunal or in
the form of an interim “award”.
117. The question often discussed by practitioners is the enforceability of such measures,
both in the State where the arbitration is taking place and in other States. The need for
enforceability is usually supported by the argument that a final award may be of little
value to the successful party if, in the meantime, action or inaction on the part of a
recalcitrant party has rendered the outcome of the proceedings largely useless (e.g., by
dissipating assets or removing them from the jurisdiction). It has been noted that,
therefore, an interim order can be at least as or even more important than an award. (28)
P 436
P 437
118. There are, however, also views querying whether interim measures issued by the
arbitral tribunal should be enforceable. It has been said that, as a practical matter,
parties tend to comply with such measures anyway, for example, in order to avoid
responsibility for costs caused by the failure to implement the measure, or because they
are reluctant to displease the arbitral tribunal. In addition, if interim measures are
treated as executory titles, there would be a need to apply to them provisions (the same
as or similar to those governing the setting aside of arbitral awards) designed to cure
certain serious violations of procedure, which would overly formalize the process. However,
in response, it has been said that there are many cases where the party refuses to comply
with the interim measure without regard to the potential adverse consequences, such as
responsibility for costs. Furthermore, the provisions on judicial enforcement of interim
measures, including the prerogatives of the court in the enforcement process, may reflect
the interim nature of the measures and do not necessarily have to be the same as the rules
governing the enforceability of final awards.
119. Some propose that arbitrating parties in need of interim measures should resort to the
judicial process, as is possible under many national laws. However, in response, it is
pointed out that this may pose certain difficulties. For example, obtaining a measure may
be a lengthy process, in particular, because the court may require arguments on the issue
or because the court decision is open to appeal. Furthermore, the courts of the place of
arbitration may not have effective jurisdiction over the parties or the assets; since
arbitrations are often conducted in a “neutral” territory that has little or nothing to do with
the subject-matter in dispute, a court in another jurisdiction may have to be approached
with a request to consider and issue a measure. Moreover, in some jurisdictions a party
may not be able to request the court to issue an interim measure of protection on the
ground that the parties, by concluding an arbitration agreement, are deemed to have
excluded the courts from intervening in the dispute.
120. It is therefore argued that resources would be used more efficiently if parties were
able to make their requests for enforceable interim measures directly to the arbitral
tribunal, rather than to the court, as the tribunal is already familiar with the case and is
usually more technically apprised of the subject-matter.
1. Current legislative solutions
(a) New York Convention
121. Sometimes arbitral tribunals issue interim measures of protection in the form of
interim awards. Such a possibility is expressly envisaged, for example, in article 26(2) of
the UNCITRAL Arbitration Rules. This raises the question whether the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards covers also such interim awards.
P 437 As the Convention does not define the term “award”, it is not clear whether the Convention
P 438 applies to interim awards as well. The prevailing view, confirmed also by case law in
some States, appears to be that the Convention does not apply to interim awards.
(b) UNCITRAL Model Law
122. The UNCITRAL Model Law on International Commercial Arbitration expressly deals in
article 17 with the power of the arbitral tribunal to order such interim measure of
protection as it may consider necessary and also to require a party to provide appropriate
security in connection with such measure. The Model Law, however, is silent on the matter
of enforcement.
123. When during the preparation of the Model Law the substance of article 17 was
considered by the Working Group, it contained a sentence that “if enforcement of any such
interim measure becomes necessary, the arbitral tribunal may request [a competent court]
[the Court specified in article V] to render executory assistance”. (29) Under one view in the
Working Group, executory assistance by courts was considered desirable and should be
available. Under another view, which the Working Group adopted after deliberation, the
sentence was to be deleted since it dealt in an incomplete manner with a question of
national procedural law and court competence and was unlikely to be accepted by many
States. It was understood by the Working Group, however, that the deletion of the sentence
should not be read as a preclusion of executory assistance in those cases where a State

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 was prepared to render such assistance under its procedural law. (30)
(c) National laws
124. In respect of enforceability of interim measures issued by an arbitral tribunal, a
variety of approaches have been taken by legislatures. In many States the legislation is
silent on this point. In others, including some of those that have incorporated article 17 of
the Model Law empowering the arbitral tribunal to order interim measures of protection,
there are express provisions for enforcement of those interim measures. For example, in
one case a clause has been added so that the court may, at the request of a party, permit
enforcement of the interim measure ordered by the tribunal, unless application for a
corresponding interim measure has already been made to a court. In a few States, the
legislation stipulates that the provisions modelled on chapter VIII of the Model Law on
recognition and enforcement of awards (arts. 35 and 36) apply also to orders made under
the provision modelled on article 17 of the Model Law.
125. As regards the powers that have been granted to the court enforcing an interim
measure issued by the arbitral tribunal, a variety of approaches can also be noted. In at
least one State, it is provided that the court may review the basis of the interim order
made by the tribunal. In a few other cases, it is stated that the court is to give preclusive
P 438 effect to the findings of fact made by the tribunal. In one country, the law provides that the
P 439 court may recast the order issued by the arbitral tribunal if necessary for the purpose of
enforcing the measure; in addition the court may, upon request, repeal or amend its
decision to permit enforcement.
126. One of the concerns with respect to court-ordered enforcement of measures issued by
an arbitral tribunal may be the liability where there has been an abuse of rights. For such a
case, it has been provided in one national law, for example, that if a measure ordered by
the arbitral tribunal proves to have been unjustified from the outset, the party who
obtained its enforcement is obliged to compensate the other party for damage resulting
from the enforcement of such measure. It is further provided that such a claim for
compensation may be put forward in the pending arbitral proceedings.
2. Conclusion
127. The Commission may wish to consider wither the question of enforceability of interim
measures of protection ordered by an arbitral tribunal should be further studied by the
Secretariat. The Secretariat might be requested to explore the relevant practice in
international commercial arbitration and court practice, and, with regard to the
desirability and feasibility of uniform legislative provisions, to present first tentative
solutions for consideration by the Commission.
1999 COMMISSION REPORT A/54/17 (ADOPTED 4 JUNE 1999)
I. Enforceability of interim measures of protection (discussing [the April 1999 Secretariat
Note,] A/CN.9/460, paras. 115–127)
371. It was generally agreed in the Commission that the question of enforceability of
interim measures of protection issued by an arbitral tribunal was of utmost practical
importance and in many legal systems was not dealt with in a satisfactory way. It was
considered that solutions to be elaborated by the Commission on that topic would
constitute a real contribution to the practice of international commercial arbitration. It
was agreed that the issue should be addressed through legislation. While suggestions were
made that a convention was the appropriate vehicle for dealing with this matter, support
was also expressed for the suggestion that model legislation be prepared.
JANUARY 2000 SECRETARIAT NOTE POSSIBLE UNIFORM RULES A/CN.9/WG.II/WP.108 (14
JANUARY 2000)
II. Enforceability of Interim Measures of Protection
[Editors' Note: The Secretariat Note discusses in paras. 63–72 the range of interim measures
that might be issued by arbitral tribunals and the power to issue them. That discussion is
reprinted in the section on Arts. 17 – 17 G, pp. 206–09 supra.]
P 439
P 440
C. Arguments in favour of enforceability of interim measures ordered by arbitral tribunal
73. As arbitrators do not have coercive powers to enforce interim measures of protection,
practitioners have in recent years argued in various forums that the question of
enforceability of interim measures of protection is an issue to be considered by legislators.
The need for enforceability is usually supported by arguments such as that the final award
may be of little value to the successful party if actions of the recalcitrant party have
rendered the outcome of the proceedings largely useless (e.g. by dissipating assets or
removing them from the jurisdiction); or that preventable loss or damage should not be
allowed to happen (e.g. if a party refuses to take precautionary measures at the
construction site or it fails to continue construction works while the dispute is being
resolved). Thus, it is argued, in some cases an interim order may in practice be as
important as the award.
74. In connection with arguments in favour of enforceability of interim measures of
protection, it has been pointed out that international arbitrations are often held in places

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 where neither party has assets or commercial operations (so called “neutral” places). This
often means that the action to be taken pursuant to an interim measure ordered by the
arbitral tribunal is to be taken outside of the jurisdiction where the arbitration takes
place. Therefore, to the extent it is possible to establish a regime for court assistance in
enforcing interim measures, there should be a possibility for enforcement by courts in both
the State of arbitration as well as outside that State.
75. It should be noted, however, that, as a practical matter, interim measures issued by
arbitral tribunals are often effective without any court coercion. Circumstances fostering
the effectiveness of measures are, for example, that the party does not wish to displease
the arbitral tribunal, whom the party wishes to convince that its position is justified; that
the arbitral tribunal may draw adverse inferences from a refusal to comply with the
measure (e.g. in case of an order to preserve a certain piece of evidence); that the arbitral
tribunal may proceed to make an award on the basis of materials before it; and that the
arbitral tribunal might hold the recalcitrant party liable for costs or damages arising from
its non-compliance with the measure and include that liability in the award. Nevertheless,
it has been pointed out that there are many instances where interim measures of
protection remain unheeded, and that the incentives just mentioned may not be sufficient
or effective.
76. Some propose that arbitration parties in need of enforceable interim measures should
resort to the judicial process, as is possible under many national laws. However, in
response, it is pointed out that this may pose difficulties. For example, obtaining a court
measure may be a lengthy process, in particular, because the court may require arguments
on the issue or because the court decision is open to appeal. Furthermore, the courts of the
place of arbitration may not have effective jurisdiction over the parties or the assets. Since
arbitrations are often conducted in a State that has little or nothing to do with the subject-
matter in dispute, a court in another State may have to be approached with a request to
consider and issue a measure. Moreover, the law in some jurisdictions may not offer
parties the option of requesting the court to issue interim measures of protection, on the
P 440 ground that the parties, by agreeing to arbitrate, are deemed to have excluded the courts
P 441 from intervening in the dispute; even if the courts would have the jurisdiction to order
an interim measure, a court may be reluctant to order it on the ground that it is more
appropriate for the arbitral tribunal to do so.
77. It is therefore argued that resources would be used more efficiently if parties were able
to make their requests for interim measures directly to the arbitral tribunal rather than to
the court and if measures would be enforceable by intervention of the court in an
expedited fashion. Such a possibility is said to be desirable, in particular since the
arbitral tribunal is already familiar with the case, is often technically apprised of the
subject-matter and may make a decision in a shorter time than the court.
78. In discussing these arguments, the Working Group might wish to bear in mind that the
need for efficient court-assisted enforceability of interim measures is not the same for all
interim measures that may be issued by an arbitral tribunal. For example, when arbitral
tribunals order interim measures mentioned under (a) in paragraph 63 (those aimed at
facilitating the conduct of arbitral proceedings), and a party fails to comply with one of
those measures, the arbitral tribunal may “draw adverse inferences” from the failure and
make the award on the basis of information and evidence before it. In addition or
alternatively, the arbitral tribunal may take the party's failure to comply with the measure
into account in its final decision on costs of the proceedings. Thus, with respect to these
kinds of measures, the arbitral tribunal may have considerable leverage over the parties,
which may reduce the need for court intervention.
79. When the measure is of the kind mentioned under (b) in paragraph 63 (a measure to
avoid irreparable loss or damage or to preserve a certain state of affairs until the dispute
is resolved), the arbitral tribunal would also normally be able to hold the party liable for
costs or damages caused by its failure to comply with the order. Nevertheless, despite the
possibility of liability for costs and damages, the failure to comply with the measure may
have severe and irreparable consequences, and it might be regarded as being in the
interests of an orderly administration of justice that there exist a possibility of court
assistance in the enforcement of such a measure ordered by an arbitral tribunal.
80. When the measure is one of those mentioned under (c) in paragraph 63 (a measure to
facilitate later enforcement of the award), and a party is determined to attempt to thwart
the enforcement of the award, the arbitral tribunal or the interested party may have no
effective means to avoid the negative consequences of a party's failure to abide by the
interim measure. In practice, this may mean that the award will remain largely useless to
the winning party. Thus, in view of the magnitude of the problem potentially resulting from
a recalcitrant party and the lack of effective means available to the arbitral tribunal or the
other party to avoid the problem, the need for court assistance in enforcing interim
measures of this type may be the greatest.
D. Considerations of the Commission
P 441 81. When the Commission discussed the question of enforceability of interim measures of
P 442 protection ordered by arbitral tribunals ([1999 Commission Report,] A/54/17, para. 371),
it was generally agreed that this question was of utmost practical importance which in
many legal systems was not dealt with in a satisfactory way. It was considered that

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 solutions to be elaborated by the Commission on that topic would constitute a real
contribution to the practice of international commercial arbitration. It was also agreed
that the issue should be addressed through legislation.
[.…]
E. Current legislative solutions
(a) New York Convention
83. Sometimes arbitral tribunals issue interim measures of protection in the form of
interim awards. Such a possibility is expressly envisaged, for example, in article 26(2) of
the UNCITRAL Arbitration Rules. This raises the question of whether the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards covers also such interim awards.
As the Convention does not define the term “award”, it is not immediately clear whether
the Convention applies to interim awards as well. The prevailing view, confirmed also by
case law in some States, is that the Convention does not apply to interim awards.
(b) UNCITRAL Model Law
84. The UNCITRAL Model Law on International Commercial Arbitration expressly deals in
article 17 with the power of the arbitral tribunal to order such interim measure of
protection as it may consider necessary and also to require a party to provide appropriate
security in connection with such measure. The Model Law, however, is silent on the matter
of enforcement.
85. When, during the preparation of the Model Law, the substance of article 17 was
considered by the Working Group, it contained a sentence that “if enforcement of any such
interim measure becomes necessary, the arbitral tribunal may request [a competent court]
[the Court specified in article V] to render executory assistance”. (5) Under one view in the
Working Group, executory assistance by courts was considered desirable and should be
available. Under another view, which the Working Group adopted after deliberation, the
sentence was to be deleted since it dealt in an incomplete manner with a question of
national procedural law and court competence and was unlikely to be accepted by many
States. It was understood by the Working Group, however, that the deletion of the sentence
should not be read as a precluding executory assistance in those cases where a State was
prepared to render such assistance under its procedural law. (6)
(c) National laws
P 442 86. In respect of enforceability of interim measures issued by an arbitral tribunal, a variety
P 443 of approaches have been taken by legislatures. In many States the legislation is silent
on this point. In others, there are express provisions for enforcement of those interim
measures.
87. In several jurisdictions, the legislation provides that the provisions on recognition and
enforcement of awards apply also to orders made by the arbitral tribunal.
88. In some jurisdictions the law provides that, when a party does not comply with the
order by the arbitral tribunal, the arbitral tribunal may request assistance from the court
for the enforcement of the order; in other jurisdictions, a party may request such
assistance, and in yet others either the arbitral tribunal or the party may request it.
89. One law provides that the court may make an order requiring a party to comply with a
“peremptory” order made by the tribunal. The application can either be made by the
tribunal upon notice to the parties or by a party with permission of the tribunal and upon
notice to the other party. This procedure can only be followed once any available arbitral
process has been exhausted and a reasonable period of time has been given to the other
party to comply with the order.
90. Another law states that a court may permit enforcement of an arbitrator-granted
interim measure of protection unless application for a corresponding interim measure of
protection has already been made to a court. The court is empowered to recast such an
order if necessary for the purpose of enforcing the measure. The court may also, upon
request, repeal or amend the decision to enforce the order. Furthermore, it is provided
that if a measure ordered by the arbitral tribunal proves to have been unjustified from the
outset, the party who obtained its enforcement is obliged to compensate the other party
for damage.
91. In several jurisdictions it is stated that when a party applies to a court for interim
measures and the arbitral tribunal has already ruled on any matter relevant to the
application, the court is to treat the ruling or any finding of fact made in the course of the
ruling as conclusive for the purposes of the application.
F. Possible harmonized solutions
(a) Domestic and foreign interim measures
92. As noted above in paragraph 74, the place of arbitration in international arbitral cases
is often chosen for reasons of convenience of the parties and the arbitrators and the
availability of certain services, rather than because of any connection with the subject-
matter of the dispute. In such circumstances, many measures issued in such arbitrations
may have to implemented outside the State where the arbitration takes place. However,

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 also where an international arbitration takes place in the State where the subject-matter
of the dispute is located, the arbitral tribunal may well issue measures that would have to
be carried out in other States. In light of that, the Working Group may consider that it
would be desirable to elaborate a system that would allow court enforcement of measures
issued in arbitrations taking place either in the State of the enforcing court or outside that
State. To the extent any different treatment for foreign measures should be called for, this
might be provided by way of specified exceptions.
P 443
P 444
(b) Subjecting interim measures to provisions on recognition and enforcement of awards
93. One possible approach for consideration of the Working Group might be to devise a
solution according to which the enforcing court would treat an interim measure, for the
purpose of its enforcement, as an award and apply to it the provisions governing the
recognition and enforcement of awards. (In the context of the UNCITRAL Model Law on
International Commercial Arbitration, provisions on the recognition and enforcement of
arbitral awards, whether issued in the State of enforcement or outside that State, are
contained in its articles 35 and 36.) Such an approach has been adopted in several
jurisdictions. For example, it has been provided that, unless otherwise agreed by the
parties, the provisions on the recognition and enforcement of awards apply to orders made
by the arbitral tribunal for interim measures of protection as if a reference to an award in
those provisions were a reference to such an order. In some jurisdictions, enforcement of
interim measures is subjected to the enforcement regime for arbitral awards only if the
parties have so agreed. It should be noted, however, that the national solutions just
referred to apply to arbitrations taking place in those States. There is no provision in those
laws for the enforcement of measures issued in arbitrations taking place in a foreign
country.
94. The Working Group may wish to discuss whether this approach is to be taken as the
basis for elaborating a harmonized regime for the enforcement of interim measures. The
advantage of this approach may be that it would take as a basis a regime that has been
tested in practice.
95. A further question to be discussed may be whether a regime based on this approach
lends itself to being extended also to interim measures issued by an arbitral tribunal
outside the State of the court requested to enforce the measure. A consideration in
deciding whether to extend such a regime to foreign measures may be that concepts of
interim measures in legal systems differ and that thus the court may be faced with a
request for an interim measure not known or uncommon in its legal system. For example,
some systems recognize ex parte measures to a greater degree than others. Another
example may be the practice of arbitral tribunals in some States of issuing “peremptory”
interim measures to which sanctions are attached by the arbitral tribunal in case they are
not complied with. In a further example, if the measure ordered by the arbitral tribunal
does not state the reasons on which it is based or if the reasons are not sufficient, the
enforcing court may have difficulty enforcing the measure because of a limited possibility
of assessing the implicated public policy considerations. Furthermore, the arbitration
legislation in the State of the enforcing court may exclude from the powers of an arbitral
tribunal certain types of interim measures (e.g. attachment of property or of certain types
of property).
96. It may be noted, however, that even when the measure has been issued by an arbitral
tribunal in the State where the measure is to be enforced, the court may have to deal with
measures that are not known or are unusual in that State. This is so because the procedural
P 444 law on arbitration generally leaves broad latitude to the parties and the arbitral tribunal
P 445 in determining the procedure to be followed in conducting the proceedings (see, e.g.,
art. 19 of the UNCITRAL Model Law) and therefore the arbitral tribunal may follow rules and
practices for the issuance of interim measures that are different from those generally used
in the State where the arbitration takes place.
97. In the situations described above courts may be reticent to enforce such measures
whether they are issued in the State of the enforcing court or outside the State. To the
extent enforcement of such interim measures presents a difficulty, it might be overcome
by a solution that would make enforceable only those measures that are in compliance
with certain procedural conditions of the State of the enforcing court. For example, an ex
parte measure may be enforceable after the court is satisfied that both parties have been
able to present their cases. It may, however, be considered too difficult to formulate a
harmonized set of conditions for enforcement of different types of interim measures,
including those that are not known or are unusual in the State of enforcement. Another
approach, more flexible and more accommodating of differences in procedural systems,
may be to leave the court discretion as to the manner of enforcement of an interim
measure.
(c) Giving the court discretion in enforcing a measure
98. The Working Group may wish to consider whether the regime to be adopted should
allow the enforcing court a degree of discretion as to how the measure is to be enforced,
possibly also as to whether it is to be enforced, including discretion to adapt the interim
measure to the procedural and enforcement system of the court. Such an adaptation may

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 involve amending or recasting the wording of the order. The advantage of an approach
which would rely to some extent upon the discretion of the court enforcing the measure
would be that, while it would provide a clear legislative basis for enforcement of interim
measures, both domestic and foreign, it would not impinge upon the procedural and
enforcement system of the State. This would allow the development of court practices with
respect to enforcement of such interim measures, hopefully in a manner that would be
supportive of arbitration.
99. If the court is to be given a degree of discretion in enforcing interim measures ordered
by arbitral tribunals, the question that may need to be discussed is whether the requesting
party would need to present arguments to the court to convince it that the measure is
necessary. For example, would the party requesting enforcement need to prove in court
the facts showing the need for the measure and present arguments as to the form and
amount of any security that should be provided? Furthermore, should the other party be
heard on those issues? If such arguments are to be heard again in court, after the arbitral
tribunal itself has heard them, the process of enforcement may become lengthy. Therefore,
the Working Group may wish to consider whether it should be provided that the court is
allowed, or obligated, to take the arbitral tribunal's factual findings as conclusive.
(c) Special provisions reflecting the interim nature of measures of protection
100. As noted above in paragraph 66 [reprinted in the section on Arts. 17 – 17 G, p. 207 supra],
the measures of protection discussed here are interim or temporary in relation to the final
P 445 award. They do not represent the final resolution of the dispute in that they might be
P 446
modified by the arbitral tribunal as matters evolve during the arbitral proceedings, and
that they should be taken into account and merged in the arbitral tribunal's final
adjudication of the dispute. This feature distinguishes interim measures from arbitral
awards and may call for special provisions on the enforcement of interim measures.
101. One such special provision may be required because, at the time of the request for
enforcement or at some time thereafter but before the issuance of the award, the arbitral
tribunal might modify its interim measure because circumstances have changed (e.g. the
respondent is able to show that it has sufficient assets in the jurisdiction, which may allow
the arbitral tribunal to lift or modify the earlier order prohibiting the removal of certain
assets from the jurisdiction; or the danger of irreparable damage as the ground for
continued performance of a construction contract may disappear, which would permit the
earlier interim order to be amended). In order to deal with this, the Working Group may
wish to consider the need for a provision empowering the court to modify its order for the
enforcement of an interim measure ordered by an arbitral tribunal. Furthermore there may
be a need for a provision making a court order for the enforcement of a measure
dependent on the obligation of the requesting party to inform the court promptly of any
amendment of the measure by the arbitral tribunal. In addition, provision may have to be
made for appropriate security from the party requesting court assistance in the
enforcement of the interim measure.
APRIL 2000 WORKING GROUP REPORT A/CN.9/468 (10 APRIL 2000)
II. Deliberations and Decisions
[.…]
B. Enforceability of interim measures of protection
[.…]
2. Need for a uniform regime
67. There was general support in the Working Group for the proposition to prepare a
legislative regime governing the enforcement of interim measures of protection ordered by
arbitral tribunals ([January 2000 Secretariat Note,] A/CN.9/WG.II/WP. 108, para. 76). It was
generally considered that that legislative regime should apply to enforcement of interim
measures issued in arbitrations taking place in the State where enforcement was sought as
well as outside that State (ibid., para. 92).
68. It was noted that a number of States had adopted legislative provisions dealing with
the court enforcement of interim measures, and it was considered desirable that a
harmonized and widely acceptable regime be prepared by the Commission.
69. During the discussion reference was often made to paragraph 63 of [the January 2000
P 446 Secretariat Note,] A/CN.9/WG.II/WP.108 [reprinted in the section on Arts. 17 – 17 G, pp. 206–07
P 447 supra], which distinguished three groups of interim measures of protection: (a)
measures aimed at facilitating the conduct of arbitral proceedings, (b) measures to avoid
loss or damage and measures aimed at preserving a certain state of affairs until the
dispute is resolved, and (c) measures to facilitate later enforcement of the award. While
noting that that classification was one of a number of possible alternatives and that the
examples of measures given under each category were not exhaustive, it was pointed out
that the need for an enforcement mechanism was the greatest for measures under (c) (e.g.
attachments of assets, orders not to remove the subject matter of the dispute out of the
jurisdiction or orders to provide security) and for some of the measures under (b) (e.g.
orders to continue performing a contract during the arbitral proceedings or orders to
refrain from taking an action until the award was made). As to measures under (a) it was

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 noted that, because the arbitral tribunal might “draw adverse conclusions” from the failure
of the party to comply with the measure or might take the failure into account in the final
decision on costs of the arbitral proceedings, there was less need to seek court
intervention in the enforcement of the measure. However, no firm view was reached at that
stage of the discussion as to whether, and if so in what way, those differences among
interim measures should influence the drafting of the future enforcement regime.
3. Elements of a possible uniform provision
70. Various views were expressed as to whether the court requested to enforce an interim
measure of protection should have discretion in making its decision concerning
enforcement and, if so, what should be the extent of that discretion. Under one view, there
should be no discretion in enforcing the measure, similar to the obligation of the court to
enforce an arbitral award if the conditions of articles 35 and 36 of the UNCITRAL Model Law
(or articles IV and V of the 1958 New York Convention) were met. Under another view, which
received considerable support, it was felt that the regime contained in articles 35 and 36
of the UNCITRAL Model Law was too rigid and did not take into account the special features
of interim measures of protection which distinguished them from arbitral awards and
which called for a degree of flexibility to be built into the uniform regime to be prepared.
Those special features included the following: the temporary nature of interim measures
and the resulting possibility that the measures might have to be modified or terminated;
the need to adapt the interim measure to the enforcement procedures of the enforcing
court; the possibility that the measure would affect the interests of third parties; and the
possibility that the measure might have been issued ex parte (i.e. on the application of one
party without hearing the other affected party) and that the requirement that both parties
be heard would have to be complied with after the issuance of the interim measure.
71. There was broad agreement in the Working Group that the uniform regime should be
based on the assumption that the court should not repeat the decision-making process in
the arbitral tribunal that led to the issuance of the measure; in particular, the court should
not review the factual conclusions of the arbitral tribunal or the substance of the measure.
The court's discretion should be limited to procedural aspects of the enforcement of the
P 447 measure. In that context the view was expressed that often it was not clear whether an
P 448 issue was to be considered procedural or substantive and that the distinction was
prone to controversy; therefore, it was desirable to avoid making the distinction, and, for
that reason, the enforcement regime for interim measures should track as closely as
possible the regime governing the enforcement of awards. Another view was that the scope
of procedural discretion should be narrowly circumscribed so that the enforcement
process would not be delayed and the court would not repeat the decision-making process
of the arbitral tribunal. Under yet another view, it was difficult to be precise in describing
the conditions for enforcement and that therefore the legislative provision should be
broadly worded.
72. During the discussion of the above views, the Working Group considered possible
approaches to the drafting of the uniform provision. One possible approach identified was
that the uniform provision should be based on articles 35 and 36 of the UNCITRAL Model
Law. The advantage of that approach was that the regime was known and tested in
practice. It was also said that orders for interim measures, irrespective of whether called
provisional awards or orders, were different from final awards. For that reason, articles 35
and 36 were not a suitable basis for an enforcement regime for interim measures of
protection as those articles referred to a regime for enforcement of arbitral awards. It was,
however, noted in response that interim measures of protection were in practice issued in
different forms and under different labels, which included interim awards (see, e.g., arts.
26(2) and 32(1) of the UNCITRAL Arbitration Rules), and that the form in which the interim
measure of protection was issued should not influence the decision whether articles 35 and
36 were a suitable basis for a regime of enforcement of interim measures of protection.
Under another approach, the uniform provision would not list the grounds on which the
court might refuse to enforce the measure, but would deal with issues such as the
possibility of recasting the interim measure by the court; the possibility that the court
might, upon request, repeal or amend its own decision to enforce the interim measure; the
obligation by the party who obtained the enforcement of the measure to compensate the
other party if the measure proved to have been unjustified from the outset; and a
clarification that such a claim for compensation could be put forward in the pending
arbitral proceedings. A further possible approach was to formulate a general provision
which would be limited to providing that, if the party did not comply with the interim
measure voluntarily, the competent court may be requested to render an enforcement
order. Such a general provision might be complemented by provisions regarding the law to
be applied by the court and security to be provided by a party. It was noted that all three
approaches had been used in national laws and that the future uniform provision might be
inspired by all of them. It was noted, in particular, that the second or third approach may
be effected, for example, by adding to article 17 of the Model Law a general provision that
a court should enforce the interim measure imposed by the arbitral tribunal; articles 35
and 36 would remain solely applicable to the enforcement of a final award.
73. It was said that any solution must be efficient and that, to the extent flexibility ought to
be a factor, it was desirable to minimize the possibility of delay. It was considered that
P 448 giving discretion to the court meant opening the scope for argument and delay. That
P 449

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 P 449
consideration was said to be a further reason in favour of adopting the regime of
articles 35 and 36 of the UNCITRAL Model Law. However, it was stated in response that, if
properly defined, flexibility and discretion were desirable and that such flexibility did not
necessarily increase the scope for delay; moreover article 36 of the Model Law might be
said to give scope for delay such as when the party raised objections that the arbitration
agreement was not valid, that proper notice was not given of the appointment of an
arbitrator or of the arbitral proceedings or that the composition of the arbitral tribunal or
the arbitral procedure was not in accordance with the agreement of the parties or the law
of the country where the arbitration took place (art. 36(1)(a)(i), (ii) or (iv) of the Model Law).
74. In discussing how the enforcement regime of interim measures of protection should
reflect the fact that such measures were temporary (in that the circumstances on the basis
of which a particular measure was ordered by the arbitral tribunal might change by the
time the court considered the request for enforcement or even thereafter), it was noted
that the UNCITRAL Model Law on Cross-Border Insolvency dealt with the recognition of a
foreign insolvency proceeding, whose status might also change over time and that some of
the solutions in that Model Law might serve as an inspiration in devising the enforcement
regime of interim measures of protection. The relevant provisions in the Model Law were
contained in articles 17(4), 18 and possibly 22(2).
75. The Working Group engaged in a preliminary discussion of the question whether it
should be only for the interested party to request the enforcement of the interim measure
or whether the arbitral tribunal should also have a role in requesting enforcement. The
view was expressed that the arbitral tribunal should not be put in a position where it
would have to approach a national court with a view to obtaining enforcement of an
interim measure ordered by it; thus, the enforcement of interim measures should be left
entirely to the interested party. According to another view, however, it was useful to
maintain a role for the arbitral tribunal in the enforcement of its measure, e.g. by
providing that the request for enforcement could be made with leave of the arbitral
tribunal or that the arbitral tribunal itself was able, but not obliged, to request
enforcement.
76. An observation was made that the International Convention on Arrest of Ships, 1999,
dealt with interim measures of protection and their enforcement and that some of the
solutions of the Convention, in particular those in its article 7, might serve as a model in
drafting the uniform provisions to be prepared by the Working Group.
77. It was suggested that any regime to be elaborated should not impose substantially
more onerous conditions or higher fees or charges on the enforcement of interim measures
issued outside the State of the enforcing court than are imposed on the enforcement of
interim measures issued in that State (cf. art. III of the New York Convention).
78. The Working Group, in view of the preliminary stage of the discussion, did not take a
P 449 decision as to the question whether the harmonized regime for the enforcement of interim
P 450 measures should be in the form of an international convention or in the form of model
legislation. While noting the view that the form of a convention was preferable, the Working
Group considered that the decision as to the form would be made at a later stage.
Notwithstanding that position, much of the discussion in the Working Group proceeded
under the assumption that the solutions would be cast in the form of model legislation.
79. The Secretariat was requested to prepare alternative draft provisions based on the
considerations in the Working Group to be discussed at a future session.
SEPTEMBER 2000 SECRETARIAT NOTE POSSIBLE UNIFORM RULES A/CN.9/WG.II/WP.110 (22
SEPTEMBER 2000)
II. Enforcement of interim measures of protection
A. Introductory remarks
52. There was general support in the Working Group for the proposal to prepare a
legislative regime governing the enforcement of interim measures of protection ordered by
arbitral tribunals ([April 2000 Working Group Report,] A/CN.9/468, para. 67). It was generally
considered that the legislative regime should apply to enforcement of interim measures
issued in arbitrations taking place in the State where enforcement was sought as well as
outside that State. It was noted that a number of States had adopted legislative provisions
dealing with the court enforcement of interim measures, and it was considered desirable
that a harmonised and widely acceptable regime be prepared by the Commission (ibid.,
68).
[.…]
55. It may be noted that the Working Group, in view of the preliminary nature of the
discussion, did not take a decision as to whether the harmonised regime for the
enforcement of interim measures should be in the form of an international convention or in
the form of model legislation. While noting the view that the form of a convention was
preferable, the Working Group considered that the decision as to the form would be made
at a later stage. Notwithstanding that position, much of the discussion in the Working
Group proceeded under the assumption that the solutions would be cast in the form of
model legislation ([April 2000 Working Group Report,] A/CN.9/468, para. 78). In light of that
discussion, the drafts below are presented as elements for a model legislative provision to

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 be added to the UNCITRAL Model Law on International Commercial Arbitration.
B. Model legislative provision on the enforcement of interim measures of protection
Variant 1
An interim measure of protection referred to in article 17, irrespective of the country in
P 450 which it was made, shall be enforced, upon application by the interested party to the
P 451 competent court of this State, unless
(i) Application for a corresponding interim measure has already been made to a court;
(ii) If the arbitration agreement referred to in article 7 was not valid;
(iii) The party against whom the interim measure is invoked was not given proper notice
of the appointment of an arbitrator or of the arbitral proceedings or was otherwise
unable to present its case [with respect to the interim measure]; (21)
(iv) The interim measure has been set aside or amended by the arbitral tribunal;
(v) The court or an arbitral tribunal in this State could not have ordered the type of
interim measure that has been presented for enforcement (22) [or that the interim
measure is manifestly disproportionate]; or
(vi) The recognition or enforcement of the interim measure would be contrary to the
public policy of this State.
Notes
56. The above model legislative provision is based on chapter VIII of the UNCITRAL Model
Law on International Commercial Arbitration (arts. 35 and 36), which deals with the
enforcement of arbitral awards (see in particular [April 2000 Working Group Report,]
A/CN.9/468, paras. 70–73).
57. Among those jurisdictions that have enacted the Model Law, several have added
provisions to the effect that chapter VIII of the Model Law applies to the enforcement of
interim measures ordered by the arbitral tribunal under article 17 of the Model Law (or to
the effect that an interim measure is treated, for the purposes of enforcement, as if it were
an award). The consideration of that approach is reflected in paragraph 70 of [the April
2000 Working Group Report,] A/CN.9/468. There was considerable support for the view that
that approach was too rigid and did not take into account the special features of interim
measures of protection, which distinguished them from arbitral awards. In light of that
view, the model provision presented above is based on article 36 and adapted to interim
measures of protection.
P 451
P 452
Variant 2
The court may, upon application by the interested party, order enforcement of an interim
measure of protection referred to in article 17, irrespective of the country in which it was
made.
Notes
58. Variant 1, which is drafted in terms of “the court shall enforce, unless …”, is intended to
establish an obligation to enforce if the prescribed conditions are met, whereas variant 2
is in terms of “the court may enforce … ”, expressing a degree of discretion. However, even
variant 1 could be regarded as containing areas of discretionary assessment, such as the
one indicated in square brackets in subparagraph (v), according to which the court would
assess whether the interim measure is manifestly disproportionate and, if it finds it to be
so, would have to refuse enforcement.
59. In deciding the approach to be taken, the Working Group may wish to discuss what the
discretion in variant 2 should entail. It is suggested that the discretion should be limited to
refusing enforcement of the interim measure (e.g. if the court regards it as grossly or
manifestly disproportionate or unnecessary) and, in particular, that the discretion should
not include the freedom to issue an enforcement order whose substance deviates from the
interim measure ordered by the arbitral tribunal (e.g. if the interim measure consists of an
order to a party to provide to the other party security for costs in a certain amount, the
court would not be able to issue an enforcement order for security in a lower amount).
60. It may be considered that allowing the court to issue an enforcement order that
deviates from the interim measure ordered by the arbitral tribunal would involve the court
in an assessment of the merits of the order, which would imply that the court could or
would have to repeat the decision-making process that had taken place in the arbitral
tribunal. This would effectively mean that the court would not be enforcing the measure
ordered by the arbitral tribunal but would be issuing its own measure. In considering the
matter, it may be recalled that there was broad agreement in the Working Group that the
uniform regime should be based on the assumption that the court should not repeat the
decision-making process in the arbitral tribunal and in particular that the court should not
review the factual conclusions of the arbitral tribunal or the substance of the measure
([April 2000 Working Group Report,] A/CN.9/468, para. 71). (For a discussion of the
procedural recasting of the measure, see below, para. 71–72).
61. Pursuant to the general view in the Working Group, both variants provide for the

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 enforceability of interim measures “irrespective of the country in which the measure was
made” (see [April 2000 Working Group Report,] A/CN.9/468, para. 67 and [January 2000
Secretariat Note,] A/CN.9/WG.II/WP.108, para. 92).
62. Many national laws on arbitration have adopted the principle that the party has a
choice between requesting the arbitral tribunal to order an interim measure of protection
P 452 and requesting a court to issue such a measure. Such a principle, widely regarded as
P 453 appropriate for international commercial arbitration, could also be said to be reflected
in articles 9 and 17 of the UNCITRAL Model Law on International Commercial Arbitration.
However in light of that principle, a party could, after obtaining an interim measure from
the arbitral tribunal, apply to a court for substantially the same measure, and at the same
time apply to a court for the enforcement of the measure issued by the arbitral tribunal.
That sequence of events may lead to the undesirable situation where the court ends up
considering two interim measures and two decisions might subsequently be issued. In
order to avoid such a situation, one national law has a provision according to which the
court may permit enforcement of a measure, unless application for a corresponding
interim measure has already been made to a court. Such a provision (included in variant 1,
subparagraph (i)) may also be considered for inclusion in a provision based on variant 2.
C. Possible additional provisions
63. The Working Group may wish to discuss whether any of the issues mentioned below
need to be addressed in the model legislative provision, irrespective of which variant is
ultimately adopted.
Duty to inform the court of any changes regarding the interim measure
64. It is in the nature of an interim measure of protection that it may be modified or
terminated by the arbitral tribunal before the issuance of the award, and in any case the
measure would cease to be operative once the award has been made. It may be an issue
for consideration whether the law should require the party requesting enforcement to
inform the court of any such changes. The purpose of such a duty to inform (which should
exist at the time of requesting enforcement and continue thereafter) would be to enable
the court to modify or terminate its enforcement order. The following draft wording,
inspired by articles 18 and 22(3) of the UNCITRAL Model Law on Cross-Border Insolvency, is
presented to facilitate the discussion:
Following the time it requests enforcement of the interim measure, the party
shall inform the court promptly of any decision by the arbitral tribunal changing
or repealing the interim measure. The court may, at the request of the party
affected by the measure, modify or terminate the order for the enforcement of
the interim measure.
Application for enforcement with leave of the arbitral tribunal
65. The Working Group may wish to consider whether the draft provision should state that
the interested party may make a request for enforcement “with the approval of the arbitral
tribunal”. One purpose of such a provision would be that the enforcing court would have
additional assurance that the circumstances have not changed and that the measure is
still regarded as necessary by the arbitral tribunal, yet it would avoid putting the arbitral
tribunal into a position where it would have to approach a national court with a view to
obtaining enforcement ([April 2000 Working Group Report,] A/CN.9/468, para. 75).
P 453
P 454
Additional conditions attached to an enforcement order
66. It may be considered by the Working Group whether the model legislative provisions
should contain a rule providing that the court might subject an order for the enforcement
of an interim measure to conditions it considers appropriate (e.g. regarding security to be
provided by the party applying for enforcement).
67. Interim measures of protection often contain orders or conditions (whether they are
ordered by an arbitral tribunal or a court). The question here is whether, after the arbitral
tribunal has ordered the measure (and made it subject to any orders or conditions
considered appropriate), the court should involve itself in the decision-making process so
as to establish whether any order or condition should be attached to the enforcement
order. It may be considered that a rule giving the court the power to attach conditions to
enforcement orders would be against the policy of the Working Group (referred to above in
paragraph 60) that the uniform regime should not enable the court to repeat the decision-
making process of the arbitral tribunal.
Application for enforcement whilst jurisdiction of arbitral tribunal is challenged
68. It may be, that by the time a party applies for the enforcement of an interim measure
of protection, the other party has raised a plea that the arbitral tribunal does not have
jurisdiction or that, after the tribunal has ruled that it has jurisdiction, the issue of
jurisdiction is disputed in court. This situation is dealt with in article 16 of the Model Law.
In such a case the court deciding on the enforcement of the interim measure would be
taking a decision on a matter where it might subsequently be found that the arbitral
tribunal does not have jurisdiction. This could prompt the court to refrain from deciding on

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 the enforcement of the interim measure until the issue of jurisdiction has been clarified.
However, the postponement of the decision could in fact encourage the other party to
raise a plea that the arbitral tribunal does not have jurisdiction purely to delay
enforcement of the interim measure even if the plea is unlikely to succeed. Due to this fact,
the Working Group may wish to consider a provision, inspired by article 36(2) of the
UNCITRAL Model Law, along the following lines:
If a request has been made to a court to decide on the ruling by the arbitral
tribunal that it has jurisdiction, the court where enforcement of an interim
measure is sought may, if it considers it proper, adjourn its decision and may
also, on the application of the party claiming enforcement of the interim
measure, order the other party to provide appropriate security.
Ex parte measures
69. The Working Group may wish to consider how ex parte interim measures (i.e. measures
issued by the arbitral tribunal without hearing the other party) should be treated. It has
been said that such measures may be appropriate where an element of surprise is
necessary, i.e. where it is possible that the affected party may try to preempt the measure
P 454 by taking action to make the measure moot or unenforceable. For example, when an
P 455 interim order is requested to prevent a party from removing assets from the
jurisdiction, the party might remove the assets out of the jurisdiction between the time it
learns of the request and the time the measure is issued; thus, the party may effectively
thwart the order without technically violating it.
70. The Working Group may wish to consider that the model legislative provisions should
not interfere with the conditions under which an arbitral tribunal should be able to issue
ex parte interim measures. However, the question arises whether, by the time the measure
is presented to the court for enforcement, the other party should have been given notice of
it and given the opportunity to comply with it voluntarily (or to request its termination or
amendment). It may be considered that the surprise function of the measure is sufficiently
preserved if the arbitral tribunal is to notify the affected party of the measure once it is
issued (in such a notification the arbitral tribunal may, for example, call upon the party to
comply with it or oppose it within the number of days determined by the arbitral tribunal).
If that is so, the question is what should the court do if, by the time the measure has been
presented to the court for enforcement, the affected party has not been notified of the
measure. One possibility may be for the court to refuse enforcement and another one to
delay the issuance of an enforcement order until the affected party has had the
opportunity to comply with the measure voluntarily or to present its case.
Possibility of reformulating the interim measure ordered by the arbitral tribunal
71. One national law provides that, for the purpose of enforcing an interim measure, the
court may recast or reformulate the measure if necessary. If the Working Group were to find
a concept along those lines acceptable, it may be considered necessary to define the
scope of possible reformulation or recasting. It is suggested that the possibility of
recasting or reformulating the measure should be limited to making the measure capable
of enforcement according to the procedural law of the court, and should not include the
discretion to change the substance of the measure. If the court considers that the measure
is unenforceable because of its substance, it should decline enforcement and not modify
the measure.
72. The circumstances in which it may be desirable to allow reformulation of the measure
may be, for instance, where the measure, as formulated by the arbitral tribunal, does not
correspond to the enforcement rules of the court. For example, the enforcing court may be
bound by procedural rules or practices regarding the specific details to be presented in
the enforcement order or regarding the manner in which enforcement is to be carried out,
which may require the measure to be recast in a such a way [sic] that it satisfies those
procedural rules and practices. Another example might be an order for an interim measure
directing a party to hand over to the other party certain documents. The law in the
enforcing country may have privacy rules and rules of privilege which would require the
court to enforce the order excluding documents covered by those rules.
P 455
P 456
Requirement that the court treat findings by the arbitral tribunal as conclusive
73. Some legal systems which give a party the choice to request an interim measure either
from the arbitral tribunal or a national court (see above para. 62) have adopted a
provision to the effect that “where a party applies to a court for an interim injunction or
other interim order and an arbitral tribunal has already ruled on any matter relevant to
the application, the court shall treat the ruling or any finding of fact made in the course of
the ruling as conclusive for the purposes of the application”. A similar provision is that “in
considering a request for interim relief, the court shall give preclusive effect to any and all
findings of fact of the arbitral tribunal including the probable validity of the claim which is
the subject of the award for interim relief and which the arbitral tribunal has previously
granted in the proceedings in question, provided that such interim award is consistent with
public policy”.
74. These provisions in national laws do not, strictly speaking, deal with the enforcement of

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 interim measures ordered by an arbitral tribunal; rather, they provide that the court is to
issue its own interim measure but that in so doing the court takes as granted certain
findings of the arbitral tribunal. It may be considered whether the underlying idea might
be adapted to the enforcement provision under consideration in the Working Group; for
example, if the court should be given a degree of discretion whether to enforce interim
measures ordered by an arbitral tribunal, it might also be provided that certain findings
by the arbitral tribunal (e.g. as to the urgency and necessity of the measure, including that
the applicant would suffer serious and irreparable loss if the measure is not issued), are
not to be reassessed by the court.
Possibility of refusing enforcement of a measure because the arbitral tribunal lacked the
power to order it
75. A further issue that the Working Group may wish to consider is whether the court should
refuse to enforce an interim measure if the arbitral tribunal, pursuant to the agreement of
the parties or pursuant to the law governing the arbitral procedure, did not have the power
to issue the measure. For example, according to some national laws, the arbitral tribunal
has no power to issue interim measures of protection, or has no power to order certain
types of measures (e.g. attachments of property) or is not authorised to order measures
unless such authority is based on the agreement of the parties.
76. If the arbitral tribunal's power to order the measure should be among the express
conditions for enforcement, an issue to be considered is whether it should be presumed
that the arbitral tribunal had the power to order the interim measure, unless shown
otherwise. A further question may be whether, in a cross-border enforcement (i.e. where
the court is requested to enforce a measure issued in an arbitration taking place in a
foreign country), the arbitral tribunal's power should be judged against the law of the place
of arbitration, the law of the enforcing State or both of those laws.
P 456
P 457
Appeal from a court decision ordering enforcement
77. Urgency is often an element of interim measures of protection. In that light, it may be
considered whether the model legislative provision (or the guide to enactment) should
recommend limits to the right of appeal against a decision by the court permitting
enforcement of the measure (e.g. that there be no appeal or that there be a requirement
for leave to appeal).
Scope of enforceable measures
78. It may be recalled that in the Working Group reference was often made to three groups
of interim measures of protection: (a) measures aimed at facilitating the conduct of
arbitral proceedings, (b) measures to avoid loss or damage and measures aimed at
preserving a certain state of affairs until the dispute is resolved, and (c) measures to
facilitate later enforcement of the award to paragraph (further described in [the January
2000 Secretariat Note,] A/CN.9/WG.II/WP.108, para. 63 [reprinted in the section on Arts. 17 –
17 G, p. 206–07 supra]). While noting that that classification was one of a number of possible
alternatives and that the examples of measures given under each category were not
exhaustive, it was pointed out that the need for an enforcement mechanism was greatest
for measures under (c) (e.g. attachments of assets, orders not to remove the subject matter
of the dispute out of the jurisdiction or orders to provide security) and for some of the
measures under (b) (e.g. orders to continue performing a contract during the arbitral
proceedings or orders to refrain from taking action until the award was made). As to
measures under (a) it was noted that, because the arbitral tribunal might “draw adverse
conclusions” from the failure of the party to comply with the measure or might take the
failure into account in the final decision on costs of the arbitral proceedings, there was less
need to seek court intervention in the enforcement of the measure. However, no firm view
was reached at that stage of the discussion as to whether, and if so in what way, those
differences among interim measures should influence the drafting of the future
enforcement regime ([April 2000 Working Group Report,] A/CN.9/468, para. 69).
79. The Working Group may wish to discuss whether it would be desirable to describe or
define the scope of measures to which the model legislative provision should apply. In
discussing that question, it may be considered that a broad reference to interim measures
that an arbitral tribunal may issue is already contained in article 17 of the UNCITRAL Model
Law on International Commercial Arbitration and that no additional description is needed
in the provisions on the enforcement of those measures.
80. The Working Group may also wish to consider the relationship between certain interim
measures covered by the draft model provisions being prepared (in particular the
measures for the preservation or custody of evidence) and article 27 of the UNCITRAL
Model Law, which deals with court assistance in taking evidence.
P 457
P 458
DECEMBER 2000 WORKING GROUP REPORT A/CN.9/485 (20 DECEMBER 2000)
IV. Model legislative provisions on the enforcement of interim measures of protection
A. General remarks

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 78. It was recalled that there had been a preliminary discussion of the issue of
enforceability of interim measures at the previous session of the Working Group ([April
2000 Working Group Report,] A/CN.9/468, paras. 60 to 79 [paras. 60–66 reprinted in the
section on materials common to Arts. 17 – 17 J, pp. 193–94 supra; paras 67–79 reprinted
supra]), where it had been generally recognized not only that interim measures of
protection were increasingly being found in the practice of international commercial
arbitration, but also that the effectiveness of arbitration as a method of settling
commercial disputes depended on the possibility of enforcing such interim measures
(para. 60). General support had been expressed in favour of the proposal to prepare a
harmonized and widely acceptable model legislative regime governing the enforcement of
interim measures of protection ordered by arbitral tribunals.
B. Text and general consideration of draft proposals
79. The Working Group had before it two draft proposals presented by the Secretariat in
[the September 2000 Secretariat Note,] A/CN.9/WG.II.WP.110 (after paras. 55 and 57) as
follows:
[reprinted supra.]
General remarks
80. It was noted that variant 1, which was drafted in terms of “the court shall enforce,
unless …”, was intended to establish an obligation to enforce if the prescribed conditions
were met, whereas variant 2 was in terms of “the court may enforce … “, expressing a
degree of discretion. It was further noted that variant 1 had been prepared on the basis of
article 36 of the Model Law on Arbitration (and article V of the New York Convention), but
adapted to the specific features of interim measures as opposed to final awards.
81. Variant 2 was supported on the basis of the idea that the court being endowed with a
discretionary power as to whether or not to grant enforcement was more in line with the
provisional nature of interim measures; that such an approach was likely to assist in those
countries where there was resistance to the idea that interim measures issued by an
arbitral tribunal could be enforced; and that it was difficult to ensure that the appropriate
grounds for refusing enforcement were properly enumerated. Notwithstanding those views,
it was generally felt that the discretionary powers entailed by variant 2 might result in lack
of uniformity of interpretation and therefore jeopardize harmonization. It was also
observed that setting forth an obligation for courts to enforce interim measures might
ultimately enhance their effectiveness.
P 458
P 459
82. The Working Group discussed the approach to defining the interim measures of
protection to be covered by the model legislative provision. Views were expressed that the
definition should be formulated broadly, similarly to article 17 of the Model Law on
Arbitration and article 26 of the UNCITRAL Arbitration Rules; to the extent examples were
to be included, they should be illustrative rather than limiting. It was also suggested that
such a definition might be clearer if there was some indication of decisions that were not
intended to be covered such as awards for advance payment (which constituted final
decisions resolving a part of the claim to the extent it was beyond doubt) or procedural
decisions. It was noted that some interim measures of protection concerning evidence
might be regarded as covered by article 27 of the Model Law on Arbitration, and that it was
necessary to clarify the relationship between article 27 and the draft model provision. The
suggestion not to formulate a definition of interim measures but instead to refer to the law
of the State of enforcement for such a definition did not receive support.
83. It was noted that in practice arbitrators issued their decisions on interim measures of
protection in different forms and under different names, including as orders or interim
awards. Sometimes the purpose of designating the decision as an order (as distinguished
from an award) was to prevent it being challenged in court, whereas the purpose of
designating it as an award was to allow it to be treated as an award. It was, however,
observed that different labels did not necessarily ensure different treatment of interim
measures of protection in courts and that therefore the model provision should apply to
interim measures of protection irrespective of the label given to it by the arbitral tribunal.
To the extent it was desirable to leave a degree of control to the arbitral tribunal over
whether the party might request its enforcement in court, this might be achieved by
providing that enforcement may be requested with the approval of the arbitral tribunal
only (in a manner similar to article 27 of the Model Law on Arbitration).
Variant 1
84. There was general approval in the Working Group for the suggestion that the model
provision should be structured and drafted in such a way that it would be clear which
grounds for refusal of enforcement were to be taken into account on the motion of the
respondent and which ones the court should take into account on its own motion. It was
observed that the distinction was clear in article 36 of the Model Law on Arbitration (and
article V of the New York Convention) and that the structure of those provisions should be
adopted also for the model provision.
85. For consistency with article 36 of the Model Law on Arbitration and article V of the New
York Convention it was suggested that the word “enforcement … may be refused only”

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 should be used in the chapeau instead of “shall be enforced … unless”. That suggestion was
opposed on the ground that the word “may” in article V of the New York Convention had
given rise to differing interpretations (in some legal systems it was understood as allowing
a degree of discretion in permitting enforcement even if a ground for refusal was present,
in particular if it was trivial and did not influence the substance of the award, while in
other legal systems the expression “might be refused only” was understood only as limiting
P 459 the grounds on which enforcement may be refused). An alternative proposal was to
P 460 formulate the provision along the following lines: “shall be enforced … except that the
court may at its discretion refuse enforcement if one of the following circumstances exists
…”. While some opposition was expressed to that proposal (because it was considered that
the court should be able to rely on other grounds not listed in the provision for refusal to
enforce or because the existence of a ground listed in the provision should allow no other
result than refusal to enforce), the prevailing view was that the proposal presented a good
basis for future consideration. To the extent a single regime could not be agreed upon (in
particular if a national law provided a regime that was more favorable than the one in the
model provision), a suggestion was made that the technique of a footnote to the provision
(such as the one to article 35(2) of the Model Law on Arbitration) might be used to indicate
that it would not be contrary to the harmonization to be achieved by the model provision
if a State retained less onerous conditions.
Variant 1, subparagraph (i)
86. It was noted that subparagraph (i) envisaged a situation where a court would receive a
request for enforcement of an interim measure while that (or another) court in the State
was considering (or had already denied) a request for the same or a similar measure. In
order to express such a situation better it was suggested that the expression
“corresponding” be replaced by the expression “same or similar”. A suggestion that such
cases of coordination between requests regarding interim measures should be exclusively
dealt with under the principle of “res judicata” did not receive support. The Working Group
requested the Secretariat to consider various possible situations where coordination might
be needed and to prepare a draft, possibly with alternatives. It was considered that the
model provision should deal only with coordination within the enacting State and not
attempt to establish a cross-border regime.
Variant 1, subparagraph (ii)
87. Suggestions were made for the deletion of subparagraph (ii) since, at the time of the
request for enforcement, the arbitral tribunal was already functioning and any issue
regarding its own jurisdiction should be left to the arbitral tribunal to decide. Moreover, it
was said that claims that the arbitration agreement was not valid were likely to be
intended simply to delay enforcement. Furthermore, the ground of refusal was self-evident
and could be relied upon even if it was not specifically listed.
88. However, the widely held view was that the substance of the subparagraph should be
retained with the understanding (to be expressed in the guide to enactment or possibly in
the provision itself) that the court should not go beyond a prima facie assessment of the
validity of the arbitration agreement, thus leaving the full examination of the issue to the
arbitral tribunal (whose decision was in any case subject to court control as provided e.g.
in article 16 of the Model Law on Arbitration). Moreover, if the model provision were to
allow the applicant to request enforcement without the respondent having been given
P 460 notice of the measure (see below paras. 90 to 94), the respondent should be able to raise
P 461 the issue of the validity of the arbitration agreement in court in the context of opposing
enforcement of the interim measure (since that would be the first opportunity of it so
doing). A similar situation would exist where the respondent had refused to participate in
the arbitration (up to the point of the application for enforcement) because it was
convinced that the arbitral tribunal had no jurisdiction.
Variant 1, subparagraph (iii)
89. It was pointed out that subparagraph (iii) was intended to address two distinct
situations, namely: the one where the party against whom the interim measure was
invoked was not given proper notice of the appointment of an arbitrator or of the arbitral
proceedings as a whole and the one where that party had not been able to present its case
in respect of issuance of an ex parte interim measure.
90. Allowing the enforcement of ex parte interim measures was opposed on the basis that
such interim measures were not entitled to enforcement under the Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels,
1968). In response it was noted that that Convention only addressed foreign decisions and
that no distinction should be drawn between enforcement of domestic and foreign interim
measures. A further ground for opposing enforcement of ex parte interim measures was that
their issuance was not allowed in the practice followed, for example, by some major
international arbitration institutions, without notice, (such notice might be given by
serving the application for the interim measure or by serving of the interim measure on the
respondent prior to any application to a court for its enforcement). That objection was
based on the fundamental importance to arbitration of the principle of equal treatment of
parties as set forth in article 18 of the Model Law on Arbitration.
91. The need to preserve the element of surprise for ensuring the effectiveness of some

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 interim measures was generally recognized (with a view to preventing, for example, the
destruction of evidence or, more generally, to address any situations requiring urgent
action). It was suggested that objections based upon the equal treatment of parties could
possibly be addressed by providing that the validity of ex parte interim measures be
limited to a fixed time period, upon expiration of which the responding party should be
entitled to fully present its case before any decision was made on maintenance or
revocation of the measure. That suggestion of a two-step procedure, combining an ex parte
phase with a subsequent inter partes phase, received some support. It was observed that
such a procedure (irrespective of whether the inter partes phase was to be held before the
arbitral tribunal, the court or both) could counterbalance the risks potentially implied in
ex parte interim measures.
92. To ensure equal treatment of the parties and address the potentially great impact that
an ex parte interim measure might have on the responding party, a suggestion was made
that enforcement of the measure be preceded by some kind of judicial examination or, as
an alternative, that the granting of counter-security might be envisaged. It was also
P 461 proposed that those issues could be adequately addressed within subparagraph (vi) on the
P 462 basis of public policy; the prevailing view was that that proposal was unacceptable as it
placed too much emphasis on the public policy exception.
93. A further issue for consideration was the degree to which the court would be entitled to
evaluate an ex parte measure prior to enforcing it. One view was that it could be
distinguished from the review of the validity of the arbitration agreement where the
evaluation was “at arm's length” and that in the case of the interim measure the
respondent should be given the opportunity to present its case. A different view was that in
evaluating an ex parte interim measure a court should, as much as possible, not review the
decision of the arbitral tribunal.
94. Following discussion, the Working Group decided that agreement could not be reached
on a specific solution at the current session of the Working Group. The Secretariat was
requested to prepare a revised provision which would address the various concerns
expressed with a view to preserving both the element of surprise and the principle of
equal treatment of the parties.
Variant 1, subparagraph (iv)
95. It was pointed out that, basically, enforcement of an interim measure required that the
measure still be in force as originally issued and that subparagraph (iv) was designed to
address the issue of how certainty as to persistence of the interim measure could be
achieved by the enforcing court. It was noted that two solutions might be envisaged: the
first solution would consist of obliging the applicant for enforcement to inform the court of
any changes that might have occurred following granting of the measure; the second in
providing that the request for enforcement be submitted to, and approved by, the arbitral
tribunal.
96. The Working Group recognized the acceptability of the substance of the rule as drafted,
with a reference to suspension of the interim measure as a possible further ground for
refusing enforcement.
Variant 1, subparagraph (v)
97. It was pointed out that subparagraph (v) included two grounds that were very different
in nature.
98. Concerning the first ground, that is refusal on the basis that the court or an arbitral
tribunal in the State could not have ordered the type of measure presented for
enforcement, a number of different views were expressed.
99. It was pointed out that it was not necessary to consider what domestic arbitral
tribunals could issue, but rather what interim measures would be enforceable under the
law of the enforcing State, since the emphasis was upon enforcement of the interim
measure. Accordingly, it was suggested that reference to the arbitral tribunal be deleted.
As a matter of drafting, it was proposed to delete the words “in this State”, since in many
cases enforcement was sought in a country other than the one where the interim measure
was granted and no specific relationship was required between the country where the
arbitral tribunal was established, the country whose law was applied and the country
P 462 where enforcement was sought. A suggestion to replace the word “could” with the word
P 463 “would” was objected to on the basis that it might result in uncertainty as to the kind of
examination the court was supposed to undertake.
100. Some concerns were expressed that the provision as drafted might lead to different
results in different countries. Given the differences between the measures known in
different legal systems, it was suggested that the fact that a court could not issue a
particular measure was not sufficient grounds for refusing enforcement of a similar
measure issued in another country. A contrary view was that a court could not be expected
to enforce a measure that it itself could not issue since in that situation the machinery to
enforce the order would not be available and enforcement would therefore be ineffective.
A suggestion was made that problems of unknown orders might be resolved in part by
allowing the court the ability to reformulate the measure along the lines of “unless the
court can reformulate the interim measure in accordance with its own powers and

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 procedures” (it was noted that the issue of possible reformulation was addressed at paras.
71–72 of [the September 2000 Secretariat Note,] A/CN.9/WG.II/WP.110 under possible
additional provisions). A further suggestion that the provision could be deleted as it was
already covered by subparagraph (vi) was not supported.
101. To address the views of the Working Group some alternative drafts were proposed: to
draft the provision in terms of “if the type of interim measure cannot be enforced within
the limits of the powers of the court as set forth in its procedural rules”; to include the
wording “enforcement of an interim measure might be refused to the extent that such
measure is incompatible with the procedural power conferred upon the court by its
procedural laws”. Despite uncertainty as to the best possible solution, there was wide
recognition that the provision relied on an acceptable and reasonable principle and
should therefore be retained. There was also broad support for the powers of a court to
reformulate the measure in accordance with its procedural powers. The Secretariat was
requested to revise the provision providing alternative solutions, possibly also adding
clarification as to the kind of situations which would fall within its scope. A number of
examples of interim measures that might be beyond the power of a particular national
court were described, including fines, freezing orders over less than all of a party's
property, mandatory injunctions requiring a party to build something and, in general,
orders for which a court lacked machinery for enforcement.
102. As to the part of the provision relating to disproportionality, the Working Group agreed
that it would not be included.
Supbparagraph (vi) and possible additional provisions
103. Due to time constraints, it was agreed to postpone consideration of the further draft
provisions contained in [the September 2000 Secretariat Note,] A/CN.9/WG.II/WP.110,
including subparagraph (vi) of Variant 1, to the next session of the Working Group.
P 463
P 464
MARCH 2001 SECRETARIAT NOTE PREPARATION OF UNIFORM PROVISIONS
A/CN.9/WG.II/WP.113 (23 MARCH 2001)
II. Model legislative provisions on the enforcement of interim measures of protection
[.…]
New article. Enforcement of interim measures of protection (24)
(1) [Arts. 17 H(1) and 17 I(1) in the final text] Upon the application to the competent court by
[the arbitral tribunal or by] the interested party made with the approval of the arbitral
tribunal, (25) an interim measure of protection referred to in article 17 shall be enforced,
irrespective of the country in which it was made, except that the court may at its discretion
refuse enforcement if:
(a) The party against whom the measure is invoked furnishes proof that: (26)
(i) Application for the same or similar interim measure has been made to a court
in this State, whether or not the court has taken a decision on the application;
(27) or
(ii) [Variant 1] The arbitration agreement referred to in article 7 is not valid [Variant
2] The arbitration agreement referred to in article 7 appears not be valid, in
which case the court may refer the issue of the [jurisdiction of the arbitral
tribunal] [validity of the arbitration agreement] to be decided by the arbitral
tribunal in accordance with article 16 of this Law]; (28) or
(iii) The party against whom the interim measure is invoked was not given proper
notice of the appointment of an arbitrator or of the arbitral proceedings or was
otherwise unable to present its case with respect to the interim measure, [in
which case the court may suspend the enforcement proceedings until the
parties have been heard by the arbitral tribunal]; (29) or
(iv) The interim measure has been terminated, suspended or amended by the
arbitral tribunal; (30) or
(b) The court finds that:
(i) Such a measure is incompatible with the powers conferred upon the court by its
procedural laws, (31) unless the court decides to reformulate the measure to the
extent necessary to adapt it to its own powers and procedures for the purpose
of enforcing the measure; or
(ii) The recognition or enforcement of the interim measure would be contrary to the
public policy of this State.” (32)
(2) [Art. 17 H(2) in the final text] The party who is seeking enforcement of an interim measure
shall promptly inform the court of any termination, suspension or amendment of that
measure. (33)
(3) [Art. 17 I(2) in the final text] In reformulating the measure under paragraph (1)(b)(i), the
court shall not modify the substance of the interim measure. (34)
P 464
P 465

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 (4) Paragraph (1)(a)(iii) does not apply to an interim measure of protection that was
ordered without notice to the party against whom the measure is invoked, provided that
the measure was ordered to be effective for a period not exceeding [30] days and the
enforcement of the measure is requested before the expiry of that period. (35)
* [Footnote to art. 17 I in the final text] The conditions set forth in this paragraph are
intended to set maximum standards. It would not be contrary to the harmonization to be
achieved if a State retained less onerous conditions. (36)
P 465
P 466
JUNE 2001 WORKING GROUP REPORT A/CN.9/487 (15 JUNE 2001)
IV. Model legislative provisions on the enforcement of interim measures of protection
[.…]
76. The Working Group proceeded to consider a new draft article concerned with
enforcement of interim measures as follows:
[same as the March 2001 Secretariat Note, A/CN.9/WG.II/WP.113.]
Paragraph (1) [Arts. 17 H(1) and 17 I(1) in the final text]
“[the arbitral tribunal or by]”
77. The discussion focused on whether the draft new article should provide expressly for an
application being made by the arbitral tribunal to a court for enforcement of an interim
measure of protection. The view was expressed that mentioning the arbitral tribunal or any
party as applying for enforcement was unnecessary since the decision as to the
enforcement of the interim measure would be made by the competent court not only on
the basis of the model legislative provisions but also with regard to other applicable law.
Such domestic law would presumably determine who was eligible to apply for
enforcement. Examples were given of countries where the arbitration law allowed for the
application for enforcement in such a case to be made by the arbitral tribunal itself. It was
pointed out that it would be inappropriate for the model legislative provision to interfere
with such legislation. It was noted that another reason for deleting mention of the arbitral
tribunal applying for court enforcement was the practical difficulty of tribunals doing so.
P 466 78. A contrary view was that it would be contrary to the spirit of arbitration to allow the
P 467 arbitration tribunal to apply for the enforcement of an interim measure. It was stated
that, by applying to a court, the arbitral tribunal would substitute itself to the party in
favour of whom the interim measure had been taken, thus compromising its status as an
impartial and independent arbitrator. While support was expressed in favour of that view,
it was pointed out that, by applying for enforcement of the interim measure it had granted,
the arbitral tribunal would not substitute itself to a party but merely seek court assistance
in enforcing the interim measure the arbitral tribunal itself had taken as an impartial and
independent arbitrator. Action by the arbitral tribunal in that respect would be fully
consistent with the decision it had made in the first place to grant the interim measure of
protection. Furthermore, it was pointed out that, in certain countries, circumstances might
make it extremely difficult for the parties themselves to apply for enforcement of the
interim measure. Providing certainty as to whether the arbitral tribunal could intervene
directly to seek enforcement of the measure it had granted might thus improve greatly the
efficiency of arbitration in those countries.
79. After discussion, the Working Group decided that, for continuation of the discussion, the
words “[the arbitral tribunal or by]” should be deleted, on the assumption that the guide to
enactment, or possibly a footnote to the provision, would make it clear that the rule was
not intended to interfere with the situation where applicable law would allow for the
application for enforcement to be made by the arbitral tribunal itself. In that context, a
proposal to delete both references to “the arbitral tribunal” and “the interested party” was
noted with interest.
“enforced”
80. A question was raised as to whether a reference to “recognition and enforcement”
would not be more appropriate than a mere reference to “enforcement”. In support of that
view, it stated that enforcement of an interim measure by a court would presuppose its
recognition by that same court. It was pointed out that the notion of recognition as
understood in the New York Convention and the Model Law was broader and might carry
effects beyond those of enforcement. It was also pointed out that “recognition” under
article V of the New York Convention was not necessarily suited for such ephemeral
measures as interim measures of protection. However, after discussion, the Working Group
decided that, for reasons of consistency with the New York Convention and article 36 of the
Model Law, the terms “recognition and enforcement” should be used.
“may, at its discretion”
81. The discussion focused on whether refusing enforcement should be an obligation or a
mere discretion for the court under the various circumstances listed in paragraph (1). The
attention of the Working Group was drawn to somewhat different formulations on that point
in article 36(1) of the Model Law. The view was expressed that listing the grounds for refusal
of enforcement following the pattern of article V of the New York Convention might result in

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 an excessively burdensome provision. It was stated in response that the regime set forth in
the draft legislative provision was more liberal than article V of the New York Convention, a
P 467 solution that was justified in view of the provisional nature of the measures of protection.
P 468 In that context, the view was expressed that the model legislative provision might take
into account that, with respect to recognition and enforcement of arbitral awards, legal
regimes more liberal than that established by the New York Convention had developed in
the world since 1958 and had come to coexist with that Convention. Accordingly, a
reference to more liberal regimes, along the lines of the provision contained in article VII
of the New York Convention, was useful. It was generally felt that the footnote to the draft
legislative provision was helpful in that respect.
82. After discussion, the Working Group decided that no decision could be taken at that
early stage as to whether the court would be under an obligation to refuse enforcement or
whether it could exercise discretion. It was agreed that the issue would require further
discussion after the various grounds for refusing enforcement under subparagraphs (a) and
(b) had been examined.
Subparagraph (a) (chapeau)
83. The Working Group approved the substance of the chapeau of the subparagraph.
Despite the view that the words “furnishes proof” should be replaced with the words
“establishes that”, the Working Group agreed to retain the current wording on the grounds
that the suggested words might have a less certain meaning in other languages than the
current words and that they reflected the corresponding language in both article 36 of the
Model Law and article V of the New York Convention.
Subparagraph (a)(i)
84. The Working Group noted that subparagraph (i) covered a situation where a court would
receive a request for enforcement of an interim measure while that or another court in the
State was dealing with or had dealt with a request for the same or similar measure.
85. It was noted that the subparagraph dealt with a ground with respect to which the court
should have discretion as to whether it should prevent enforcement of the interim
measure. It was suggested that the ground was the only one where such discretion was
warranted, that with respect to other grounds listed in the article no such discretion should
exist, and that the article should be redrafted accordingly.
86. It was suggested that the court dealing with the request for enforcement of an interim
measure should take into account (or should be able to take into account) applications for
interim measures not only in “this State” (i.e., the State that enacted the provision) but
also in other States. It was added that the court should also be able to take into account
applications for enforcement of interim measures to courts in “this State” and other States.
It was warned, however, that suggesting or obliging the court to take into account
applications to courts outside the country where the enforcement was being sought might
delay the enforcement proceedings and would give rise to complex issues regarding the
extent to which a civil proceeding in foreign country should produce effects in another
State. Those issues were not resolved in civil procedure in general and it might be
counterproductive to introduce them in the model provision under consideration.
P 468
P 469
87. At that point, the Working Group for lack of time suspended its discussions on the
enforcement of interim measures of protection until a future session.
JANUARY 2002 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.119 (30 JANUARY
2002)
III. Possible provisions
[.…]
D. Enforcement of interim measures
83. At its thirty-fourth session in 2001, the Working Group discussed the question of
enforcement of interim measures of protection issued by an arbitral tribunal under article
17 on the basis of draft provisions prepared by the Secretariat. The considerations of the
Working Group are reflected in paras. 76–87 of [the June 2001 Working Group Report,]
A/CN.9/487, although for lack of time, the Working Group did not complete its
consideration of the enforcement provision. The revised draft provisions presented below
have been prepared on the basis of those parts of the provision considered in the Working
Group.
Enforcement of interim measures of protection
(1) [Arts. 17H (1) and 17I (1) in the final text] Upon an application by an interested party,
made with the approval of the arbitral tribunal, the competent court shall refuse to
recognize and enforce an interim measure of protection referred to in article 17,
irrespective of the country in which it was ordered, if: (*)
(a) The party against whom the measure is invoked furnishes proof that:
(i) [Variant 1] The arbitration agreement referred to in article 7 is not valid
[Variant 2] The arbitration agreement referred to in article 7 appears to

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 not be valid, in which case the court may refer the issue of the [jurisdiction
of the arbitral tribunal] [validity of the arbitration agreement] to be
decided by the arbitral tribunal in accordance with article 16 of this Law];
(ii) The party against whom the interim measure is invoked was not given
proper notice of the appointment of an arbitrator or of the arbitral
proceedings [in which case the court may suspend the enforcement
proceedings until the parties have been heard by the arbitral tribunal]; or
(iii) The party against whom the interim measure is invoked was unable to
present its case with respect to the interim measure [in which case the
court may suspend the enforcement proceedings until the parties have
been heard by the arbitral tribunal]; or
(iv) The interim measure has been terminated, suspended or amended by the
arbitral tribunal.
P 469
P 470 (b) The court finds that:
(i) The measure requested is incompatible with the powers conferred upon
the court by its procedural laws, unless the court decides to reformulate
the measure to the extent necessary to adapt it to its own powers and
procedures for the purpose of enforcing the measure; or
(ii) The recognition or enforcement of the interim measure would be contrary
toc the public policy of this State.
(2) Upon application by an interested party, made with the approval of the arbitral
tribunal, the competent court may, in its discretion, refuse to recognize and enforce
an interim measure of protection referred to in article 17, irrespective of the country
in which it was ordered, if the party against whom the measure is invoked furnishes
proof that application for the same or similar interim measure has been made to a
court in this State, regardless of whether the court has taken a decision on the
application.
(3) [Art. 17 H(2) in the final text] The party who is seeking enforcement of an interim
measure shall promptly inform the court of any termination, suspension or
amendment of that measure.
(4) [Art. 17 I(2) in the final text] In reformulating the measure under paragraph (1)(b)(i), the
court shall not modify the substance of the interim measure.
(5) Paragraph (1)(a)(iii) does not apply
[Variant
1] to an interim measure of protection that was ordered without notice to the
party against whom the measure is invoked provided that the measure was
ordered to be effective for a period not exceeding [30] days and the
enforcement of the measure is requested before the expiry of that period.
[Variant
2] to an interim measure of protection that was ordered without notice to the
party against whom the measure is invoked provided that such interim measure
is confirmed by the arbitral tribunal after the other party has been able to
present its case with respect to the interim measure.
[Variant
3] if the arbitral tribunal, in its discretion, determines that, in light of the
circumstances referred to in article 17(2), the interim measure of protection can
be effective only if the enforcement order is issued by the court without notice
to the party against whom the measure is invoked.
84. The Working Group may also wish to consider the question of enforcement of interim
measures issued by a court in support of arbitration, particularly as the issue arises solely
P 470 in respect of enforcement of measures issued by a court in a foreign jurisdiction. There is
P 471 currently no multilateral international regime dealing with the enforcement of court
orders, although the Hague Conference on Private International Law, as discussed above, is
currently working on a convention that may extend to provisional measures. In the absence
of such a regime (and given the difficulty of achieving agreement on a multilateral regime
that would extend to provisional measures), the Working Group may wish to consider
alternative approaches. These may include, for example, a regime of coordination and
cooperation between courts, inspired by article 26 of the UNCITRAL Model Law on Cross-
Border Insolvency and by ILA Principles 18–20. As noted at para. 61 above, in the absence
of an obligation to recognize orders made in other States or to cooperate with courts and
arbitral tribunals in other jurisdictions, encouraging cooperation in the making of local
complementary orders may lead to tangible results, both in recognition and judicial
assistance. This may be applicable particularly in cases where the enforcement of an
interim measure is sought in a number of jurisdictions, such as the freezing of assets. It
could cover the sharing of information between courts, coordinating among jurisdictions
the effect given to foreign interim measures and coordinating and cooperating on the issue
of appropriate local remedies.
NOVEMBER 2002 WORKING GROUP REPORT A/CN.9/523 (11 NOVEMBER 2002)
III. Interim measures ordered by the arbitral tribunal

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 [.…]
A. General remarks on interim measures ordered on an ex parte basis
[.…]
17. The Working Group recalled that at its thirty-sixth session diverging views were
expressed as to whether, as a matter of general policy, it would be suitable for a revision of
the Model Law to establish the possibility for interim measures to be ordered ex parte by
an arbitral tribunal ([April 2002 Working Group Report,] A.CN.9/508, paras. 77–94 [reprinted
in the section on Arts. 17 – 17 G, pp. 242–48 supra]). The Working Group recalled that a
number of delegations had expressed the view that this power should be reserved for
State courts. That view was reiterated. Other delegations felt that this power should be
given to an arbitral tribunal provided that the ex parte order only applied for a limited
time period. Other delegations took the view that, given the potential adverse impact of
an ex parte order against the affected party, empowering an arbitral tribunal to issue such
an order would be acceptable if strict conditions were imposed to ensure that the power
was not subject to abuse. A widely shared view was that, even if ex parte measures were
eventually dealt with in a revised version of article 17 of the Model Law, they should be so
drafted as to indicate that ex parte measures should only be granted in exceptional
circumstances.
[.…]
P 471
P 472
V. Recognition and enforcement of interim measures
78. The Working Group had a brief discussion on the issue of recognition and enforcement
of interim measures based on the text contained in the Note by the Secretariat ([January
2002 Secretariat Note,] A/CN.9/WG.II/WP.119). That text read as follows:
[reprinted supra.]
79. With a view to providing a simpler version of a possible provision on recognition and
enforcement of interim measures, the following text was proposed by one delegation
[Editors' Note: The Working Group subsequently referred to this as the “alternative
proposal”]:
“(1) [Art. 17 H(1) in the final text] Interim measures of protection issued and in effect in
accordance with article 17, irrespective of the country in which they were issued, and
whether reflected in an interim award or otherwise, shall be recognized as binding
and, upon application in writing to the competent court, be enforced subject to the
provisions of articles 35 and 36, except as otherwise provided in this article. Any
determination made on any ground set forth in Article 36 in ruling on such an
application shall be effective only for purposes of that application.
“(2)
(a) Recognition or enforcement of interim measures of protection shall not be
refused on the ground that the party against whom the measures are directed
did not have notice of the proceedings on the request for the interim measures
or an opportunity to be heard if
(i) the arbitral tribunal has determined that it is necessary to proceed in that
manner in order to ensure that the measure is effective, and
(ii) the court makes the same determination.
(b) The court may condition the continued recognition or enforcement of an interim
measure issued without notice or an opportunity to be heard on any conditions
of notice or hearing that it may prescribe.
“(3) [Art. 17 I(2) in the final text] A court may reformulate the interim measure to the extent
necessary to conform the measure to its procedural law, provided that the court does
not modify the substance of the interim measure.
“(4) [Art. 17 H(2) in the final text] While an application for recognition or enforcement of an
interim measure is pending, or an order recognizing or enforcing the interim
measures is in effect, the party who is seeking or has obtained enforcement of an
interim measure shall promptly inform the court of any modification, suspension, or
termination of that measure.”
80. It was explained by its proponents that this proposal was based on the following five
principles: (1) the legal framework for enforcement of interim measures should be similar
to that existing for the enforcement of arbitral awards; (2) the decision regarding the
enforcement of an interim measure should have no binding effect on the subsequent
P 472 process in the arbitration; (3) where an ex parte measure has been issued, the courts
P 473 should have full opportunity to verify that it was appropriate to issue such a measure;
(4) parties should be under no obligation to obtain permission from the arbitral tribunal
before they could seek enforcement of the interim measure before a court; and (5) in cases
where an application for enforcement was made before several courts, those courts should
be free to evaluate the best way to proceed. At the close of the discussion it was pointed
out that it would be essential for the Working Group to make a decision regarding the form
in which an interim measure could be issued. In particular, it should be decided whether

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 an interim measure was issued in the form of an arbitral award or in the form of a
procedural order. It was decided that the discussion would be continued at a future
session on the basis of both proposed texts.
JUNE 2003 WORKING GROUP REPORT A/CN.9/524 (2 JUNE 2003)
III. Recognition and enforcement of interim measures issued by the arbitral tribunal
A. General discussion
[.…]
17. The Working Group also recalled that it had had a brief discussion at its thirty-seventh
session (2002) on the issue of recognition and enforcement of interim measures of
protection based on the note prepared by the Secretariat ([January 2002 Secretariat Note,]
A/CN.9/WG.II/WP.119, para. 83) and draft text (also reproduced in [the November 2002
Working Group Report,] A/CN.9/523, para. 78) as follows (“the draft enforcement provision”):
[reprinted supra.]
18. The Working Group also recalled that another drafting proposal had been made by one
delegation at its thirty-seventh session ([November 2002 Working Group Report,]
A/CN.9/523, para. 79). That text (“the alternative proposal”) was as follows:
[reprinted supra.]
19. Pursuant to its earlier agreement, the Working Group agreed to discuss the provision on
recognition and enforcement of interim measures before it reverted back to the provision
on interim measures of protection ordered by an arbitral tribunal.
20. At the thirty-seventh session (2002) it was decided that the discussion would be
continued at a future session on the basis of both prepared texts. At the thirty-eighth
session, the discussion focused initially on the text of the draft enforcement provision. It
was suggested that a provision on recognition and enforcement of interim measures should
reflect four principles. First, that the legal framework for enforcement of interim measures
should be similar to that existing for the enforcement of arbitral awards under articles 35
P 473 and 36 of the Model Law, in particular, with some specific changes needed to adapt these
P 474 grounds to interim measures. In this respect, it was said that, whilst the draft
enforcement provision took account of most of the grounds listed in article 36, it had
excluded some of the grounds. For example, it was noted that, as currently drafted, that
provision did not include the grounds that the party to the arbitration agreement was
under some incapacity as was provided in article 36 (1) (a)(i) of the Model Law or that the
decision on the interim measure was beyond the scope of the submission to arbitration
(article 36 (1) (a)(iii)).
21. Second, it was suggested that the right to seek recognition and enforcement of an
interim measure should not, as was currently the case under paragraph (1) [Arts. 17 H(1) and
17 I(1) in the final text] of the draft enforcement provision, be conditional upon the
approval of the arbitral tribunal. Third, it was said paragraph (2) of the draft enforcement
provision, which gave a court the discretion to refuse to recognize or enforce an interim
measure solely on the ground that a similar application had been made in another court in
that State was too broad. It was suggested that, where an application for enforcement was
made before several courts, these courts should be free to evaluate the best way to
proceed. It was said that the mere fact that a party had sought enforcement in two
different State courts should not of itself be a ground for non-enforcement as there could
be legitimate grounds why the application would be made in different State courts. For
example, the applicant could have assets in more than one jurisdiction in a State or it
could be unclear which court was the proper court in which to make that application.
22. Fourth, it was suggested that it was crucial that the arbitral tribunal's power to decide
its own jurisdiction should be preserved. It was said that variant 1 in subparagraph (a)(i) of
paragraph (1) of the draft enforcement provision held the risk that a court could rule on an
arbitral tribunal's jurisdiction and thereby preempt that determination by an arbitral
tribunal. Therefore, the policy sought to be achieved by variant 2, namely that it was for
the arbitral tribunal to determine in the first instance its jurisdiction, was broadly
supported.
23. As to the drafting of variant 2, various observations were made. It was said that the
language was too narrow because it referred only to one type of jurisdictional issue,
namely the validity of an agreement, and did not cover other jurisdictional issues that
could arise and were contemplated by article 36 of the Model Law, such as, for example,
the possibility that the interim measure was outside the scope of a valid arbitration
agreement. It was also said that the wording in variant 2 did not appropriately cover all
instances, such as when the tribunal had already ruled on its jurisdiction and the instance
where jurisdiction was disputed but the arbitral tribunal had not yet determined the
matter. To the extent that, as currently drafted, variant 2 allowed the court to make a
determination as regards the jurisdiction of the arbitral tribunal (for example, by refusing
enforcement on the basis that the arbitral tribunal did not have jurisdiction) it was said
that such a determination should have effect only in respect of the enforcement of the
interim measure of protection, and in particular should not prevent the arbitral tribunal
from continuing with the arbitral proceedings.

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 P 474 24. It was noted that the words “made with the approval of the arbitral tribunal”, which
P 475 appeared in both paragraphs (1) and (2) of the draft enforcement provision, meant that
recognition and enforcement was conditional upon the approval of the arbitral tribunal.
The Working Group undertook a careful examination of the question whether an arbitral
tribunal's approval should be sought before an application for recognition and
enforcement of an interim measure could be sought. It was said that the chapeau, as
currently drafted, did not make it clear that that approval referred to the application for
recognition and enforcement of an interim measure of protection. In order to clarify this
point it was suggested that the chapeau be redrafted to provide that: “Upon an
application by an interested party, made with the approval of the arbitral tribunal to
recognize and enforce an interim measure of protection issued pursuant to article 17,
irrespective of the country in which it was ordered, the competent court shall”.
25. Two conflicting views were expressed as to the necessity for obtaining the approval of
an arbitral tribunal before seeking recognition and enforcement of an interim measure.
Against its inclusion it was said that such an approval was implicit from the fact that the
arbitral tribunal had granted such a measure and thus expressly requiring such approval
was unnecessary. It was also said that imposing such a condition could have a detrimental
effect on the timing of enforcement of an interim measure. It was suggested that, if such
approval could not be implied, then the text could provide that the arbitral tribunal
should expressly state that the interim measure was enforceable at the time that it made
the interim measure. Whilst support was expressed for that suggestion, it was not
ultimately accepted for the reason that it was considered unnecessarily time-consuming
and unduly burdensome on the tribunal. Another suggestion was that a distinction might
be introduced in the draft provision according to whether the interim measure of
protection was made in the form of an award or a procedural order. That suggestion was
objected to on the ground that practice might vary as to whether a given type of interim
measure would be granted in the form of an award or a procedural order. The view was
expressed that strictly speaking no interim measure could be regarded as an award in the
sense that it would not bring a final solution to any part of the dispute.
26. In support of requiring approval by the arbitral tribunal before court enforcement
could be sought, it was said that, given the different nature of interim measures that could
be made by an arbitral tribunal ranging from interim awards to mere procedural orders
and in order not to restrict a tribunal's discretion to amend its interim measures, it would
be advisable to condition an application for recognition or enforcement of interim
measures upon the approval of the arbitral tribunal. It was further said that it was not
implicit in the making of an interim measure that it could be recognized and enforced in a
court. In this respect it was said that, in some cases, an interim measure might be granted
without its enforcement by courts being envisaged by the arbitral tribunal. It was said that,
in such cases, what was implicit was that the interim measure would be complied with by a
party against whom it was made or that the arbitral tribunal had available to it the means
to make compliance likely, such as the power to draw adverse inferences, if the measure
was not complied with. In other words, whilst it could be implied that an interim measure
P 475 was binding on the parties and would be complied with, it was not implicit that court
P 476 enforcement would always be needed. It was suggested that the words “made with the
approval of the arbitral tribunal” in paragraph (1) of the draft enforcement provision be
substituted by words along the lines of “where the interim measure so permits” or “unless
otherwise provided by the arbitral tribunal”.
27. In support of including a precondition that an arbitral tribunal approve an application
for recognition and enforcement of an interim measure it was also stated that the arbitral
tribunal was often more informed than a court as to the circumstances of the arbitral
matter both in substance and in its procedural history. For this reason it was said that
consideration should be given to ensuring that an arbitral tribunal would have the
discretion to determine if an interim measure was enforceable or not. It was suggested
that draft article 17 could be amended to define an interim measure either as an order
that was enforceable or as an expression of a provisional intention of an arbitral tribunal
that was not enforceable. It was said that this did not mean that some interim measures
were enforceable and others were not, but merely indicated that the sanctions available
for non-compliance with an interim measure of protection depended on the subject of the
interim measure.
28. It was generally agreed that the title to the draft article was too narrow and, to properly
reflect the scope of the provision, reference should be made to recognition as well as
enforcement of interim measures of protection. Following on from this suggestion, it was
suggested that, given that this draft article was aimed at recognition and enforcement,
instead of using the negative statement “the competent court shall refuse to recognize” in
the chapeau of draft article (1), it would be preferable to use a positive statement. One
delegation proposed the following text to address the various concerns that had been
expressed: “Unless otherwise provided by the arbitral tribunal an order or award for
interim measures issued by the arbitral tribunal shall be recognized as binding and, upon
application in writing to the competent court, shall be enforced, subject to the provisions
of this article. The court may refuse to recognize and enforce an interim measure if …”.
Some support was expressed for this text. However, it was suggested that the words
“recognized as binding” should be deleted. Alternatively, it was suggested that the text
could be redrafted along the lines of “an order or award for interim measures issued by the

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 arbitral tribunal shall be recognized and, unless otherwise provided by the arbitral
tribunal upon application in writing to the competent court, shall be enforced, subject to
the provisions of this article”. It was agreed that the Secretariat should revise the text
bearing in mind the above suggestions.
29. Concern was expressed that the reference to an application “by an interested party”
(which appeared in both paragraphs (1) and (2) of the draft enforcement provision) could
be too broad and could include a party other than a party to the dispute. It was suggested
that consideration be given to a narrower term such as the party that was the beneficiary
of the interim measure being sought. In this respect, it was noted by one delegation that
the alternative proposal offered one solution as it did not include a reference to the term
P 476 “interested party” and did not require approval by the arbitral tribunal before recognition
P 477 and enforcement was sought. No decision was made on the point and it was widely felt
that the discussion be resumed at a later point.
B. Discussion of specific provisions on the basis of a revised draft
30. With a view to accommodating various concerns expressed in respect of the draft
article, a revised draft prepared by a number of delegations was presented. It was said
that the intention of the revised draft was to encapsulate the conclusions that had been
reached in respect of the chapeau to draft article (1) and subparagraph (a)(i). It was
explained that the revised draft had been divided into four paragraphs to provide
clarification. The revised draft was as follows:
“(1) [Art. 17 H(1) in the final text] An order or award for interim measures issued by an
arbitral tribunal, that satisfies the requirements of Article 17, shall be recognized as
binding.
“(2) Unless otherwise provided by the arbitral tribunal, such interim measure shall be
recognized and enforced upon application in writing to a competent court subject to
the provisions of this article.
“(3) [Art. 17 I(1) in the final text] The court may refuse to recognize and enforce an interim
measure if:
(a) The court is satisfied that there is a substantial issue as to the jurisdiction of the
tribunal;
(b) …
(c) …
(d) …
“(4) [Art. 17 I(2) in the final text] Any determination made on any ground in (3) above shall
be effective only for the purposes of the application to recognize and enforce the
interim measure.”
31. The Working Group proceeded to examine the revised draft. General support was
expressed for the overall approach taken in the revised draft although some concerns were
expressed both as to substance and drafting.
1. Paragraph (1) of the revised draft
32. It was stated that paragraph (1) of the revised draft included a broader formulation
than that used in the draft enforcement provision by replacing the words “interim measure
of protection referred to in article 17” with “An order or award for interim measures issued
by an arbitral tribunal, that satisfies the requirements of Article 17”. It was said that the
intention behind the formulation in the revised draft was to ensure that an interim
measure that was sought to be enforced would have to comply with the safeguards that
had been established in draft article 17, irrespective of whether that measure was ordered
P 477 in a country that had adopted the Model Law or in another country. It was pointed out that
P 478 the reference to “an order or award” in paragraph (1) was unnecessary, particularly
given that draft paragraph 17 (2) did not prejudge the form that an interim measure should
take. That proposal was accepted.
33. It was generally agreed that paragraph (1) of the revised draft should include the words
“irrespective of the country in which it was ordered” as provided for in draft paragraph (1)
of the draft enforcement provision.
2. Paragraph (2) of the revised draft
34. In respect of paragraph (2), it was stated that the reformulation reflected the decision
of the Working Group made earlier (see para. 28, above) that the provision should first
provide a positive statement that an interim measure should be recognized and enforced
and then set out the grounds upon which recognition or enforcement could be refused. It
was also stated that the words “Unless otherwise provided” had been included to reflect
the decision that an arbitral tribunal should be able to provide at the time of ordering the
interim measure that that measure was not to be the subject of an application for court
enforcement (see para. 26, above). The substance of paragraph (2) of the revised draft was
said to be generally acceptable. As a matter of drafting it was suggested that paragraph (2)
of the revised draft could omit the words “recognized and” since recognition was implied
in enforcement. However, concern was expressed that both these terms should be included
for the sake of consistency with other draft provisions as well as the Model Law. The
Secretariat was requested to bear those concerns in mind when preparing a newly revised

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 draft for continuation of the discussion at a later session. A view was expressed that the
word “recognition” in paragraph (2) was not appropriate since it was very unlikely that the
arbitral tribunal would provide that its decision should not be recognized as binding
contrary to the general principle established in paragraph (1). The words “recognition and
enforcement” were considered appropriate in paragraphs (3) and (4) of the revised draft.
3. Paragraph (3) of the revised draft
35. In respect of paragraph (3), it was pointed out that, unlike paragraph (1) (a) of the draft
enforcement provision which provided that the “party against whom the interim measure
is invoked furnishes proof that”, the revised draft did not make such a reference. It was
said that the revised draft had been formulated more broadly so as to avoid dealing with
the requirements of the burden of proof. In addition, it was said that the draft further
emphasized that the circumstances in which refusal could occur were limited. To
emphasize that point, it was suggested that the word “only” should be included in draft
paragraph (3) of the revised draft after the word “may”. That suggestion was generally
accepted.
36. It was recalled that the Working Group had had a lengthy discussion on the question of
who had the burden of proof in satisfying the court of the requirements needed for
enforcement of an interim measure. While it was generally acknowledged that in most
practical situations it would be for the party against whom the measure was invoked to
establish the grounds on which enforcement should be refused, it was widely felt that no
reference to the burden of proof was needed in that paragraph. It was recalled that the
P 478 prevailing view had been reached (see para. 35, above) that this was not an issue that
P 479 should necessarily be dealt with in the Model Law but that it should be left to the law of
the forum. It was pointed out that the revised draft had the advantage of eliminating the
need to address the issue. A view was expressed, however, that a lack of such a reference in
this article in comparison with articles 34 and 36 contained in the same law might be
interpreted as imposing a burden of proof on the party asking for enforcement or implying
that it was for the arbitral tribunal to verify these requisites ex officio.
37. In respect of paragraph (3) (a) of the revised draft, which included the requirement that
“there is a substantial issue as to the jurisdiction of the tribunal”, it was explained that the
intention was to simplify the manner in which the draft article dealt with the issue of
possible court interference with the jurisdiction of the arbitral tribunal in respect of the
enforcement of the interim measure. The specific criteria set out under paragraph (1) (a)(i)
of the draft enforcement provision were replaced by a broad reference to the discretion of
a court to decide whether there existed a substantial issue as to the jurisdiction of the
tribunal. It was further explained that the intention of the revised draft was that, in order
for a court to have discretion to refuse to recognize and enforce an interim measure, the
court should not only be satisfied that there was a substantial issue but also that that issue
was an appropriate basis on which to refuse enforcement and recognition. It was suggested
that, if that intention was not clear, a newly revised draft could expand upon this point by
either noting expressly that the substantial issue should be of such a nature as to make
recognition or enforcement inappropriate or that the existence of that issue was such that
the interim measure was unenforceable. It was pointed out that the draft text differed
from the narrower approach taken with respect to jurisdiction in the draft enforcement
provision which relied on the invalidity of the arbitration agreement as a ground to refuse
recognition and enforcement. That broader approach (which was said to encompass the
narrower validity test) dealing, for example, with issues such as whether the arbitration
exceeded the terms of reference of a valid arbitration agreement, was widely supported.
38. It was suggested that, instead of listing the grounds on which recognition and
enforcement could be refused, reference could instead be made to a general ground
based on a violation of public policy. Whilst some support was expressed for that
suggestion, concern was expressed that that ground could provide too low a threshold for
refusal. It was noted that the notion of public policy was a very vague term, described as
insusceptible to definition in a number of countries. It was stated that there existed at
least three different types of public policy: (1) domestic public policy understood as
covering all mandatory provisions of domestic legislation; (2) public policy rules
specifically established in domestic legislation for international relationships; and (3) the
very limited set of rules established at the transnational level and sometimes referred to
as international public policy. If the latter interpretation was to be retained, a reference to
public policy might also be regarded as establishing too high a threshold for refusal of
enforcement. In view of the different interpretations given by different state courts on the
notion of public policy, inclusion of that as the only ground could introduce an unnecessary
complication in the draft provision. It was also noted that some of the grounds upon which
P 479 enforcement could be refused might not be covered by a public policy ground, in
P 480 particular subparagraph (iv) which referred to the situation where an interim measure had
been terminated, suspended or amended by the arbitral tribunal.
39. It was also noted that any revision of subparagraph (a) of the revised draft should also
take account of earlier discussions regarding the requirement that security ought to be
provided when an interim measure was granted.
4. Paragraph (4) of the revised draft
40. In respect of paragraph (4), it was said that the intention of the revised draft took

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 account of the concern expressed in the Working Group's earlier discussion on the risk that
a court, in considering a request for enforcement of an interim measure, could hinder the
arbitral tribunal's right to determine its own competence (see para. 22, above). It was said
that paragraph (4) expressly provided that, whatever determination was made in respect
of an application for recognition and enforcement of an interim measure under paragraph
(3), that determination had no impact on the competence of the arbitral tribunal. It was
said that the formulation in paragraph (4) did not interfere with the notion that the final
determination on the jurisdiction of the arbitral tribunal would be in the hands of the
courts that recognized and enforced the final award. It was suggested that the reference to
“any determination” could be ambiguous and it should be made clear that what was
intended to be covered was any determination by a court. However, it was widely
accepted that paragraph (4) would have to be revisited when subparagraphs (3) (a), (b), (c)
and (d) had been discussed.
41. Having completed its initial review of the revised draft, the Working Group proceeded
to consider the remainder of paragraph (1) [Arts. 17 H(1) and 17 I(1) in the final text] of the
draft enforcement provision.
5. Subparagraph 1 (a)(ii) of the draft enforcement provision
42. It was stated that for the same reasons outlined in respect of subparagraph (a)(i), it was
not necessary to expressly introduce language on the burden of proof because it was
apparent that it was for the party against whom the interim measure was sought to show
that it was not given proper notice of the appointment of the arbitrator or of the arbitral
tribunal.
43. A concern was raised that subparagraph (a)(ii) dealt in effect with ex parte interim
measures which the Working Group had agreed to set aside for future consideration. It was
suggested that to continue work on that provision might create a provision which would run
counter to any ex parte measures that might later be formulated. On that basis, a proposal
was made to delete that subparagraph.
44. However, opposition was expressed to the deletion of that subparagraph. It was
observed that, should the Working Group ultimately agree to include provisions dealing
with ex parte interim measures, then the question of inclusion of subparagraph (a)(ii) could
be revisited. However, it was pointed out that that subparagraph was not primarily
P 480 intended to deal with ex parte interim measures. It was stated that a distinction should be
P 481 drawn between, on the one hand, the situation where a conscious decision had been
made to exclude a party from the debate that resulted in the issuance of an interim
measure, a situation that was accurately described as an ex parte interim measure, and on
the other hand, the situation where no such decision had been made, the situation more
directly covered by subparagraph (ii). It was said that, for example, subparagraph (a)(ii)
should be retained because it safeguarded a party in the situation where an arbitral
tribunal might take a decision on an interim measure in the absence of one of the parties
erroneously believing that that party had been properly notified. It was also said that the
ground for refusal set forth in subparagraph (a)(ii) appeared in both article V of the New
York Convention and in article 36 of the Model Law and, on that basis, its omission here
could be interpreted to mean that proper notification of the appointment of an arbitrator
or of the arbitral tribunal was not as important in the context of enforcement of interim
measures as it was in the context of enforcement of awards. It was also said that the
bracketed text in subparagraph (a)(ii) should be retained as its intention went beyond
merely preserving the competence-competence principle. It was said that, in view of the
expeditious nature of the proceedings for the issuance of the interim measures, a problem
could arise with the notification of the other party and if that issue came before a court it
may want to refer that issue back to the arbitral tribunal or it may want to remain seized of
the matter in the interests of saving time.
45. The Working Group proceeded to discuss the bracketed text in subparagraph (a)(ii). It
was stated that that text could be omitted on the basis that it sought to guard against a
court encroaching upon the right of the arbitral tribunal to determine its own jurisdiction
which was adequately dealt with under the proposed paragraph (4) of the revised draft. In
support of retaining the bracketed text it was stated that that language might provide a
level of flexibility by allowing the court to stay proceedings, for example where there was a
dispute as to whether a party had been properly notified. Suggestions were made for
improving the drafting of the bracketed language. One suggestion was to add language to
the effect that the court might suspend the enforcement proceedings until the parties had
had an opportunity to be heard by the arbitral tribunal. Another suggestion was that the
court might suspend the enforcement proceedings until all parties had been properly
notified. The Working Group took note of those suggestions which the Secretariat was
requested to bear in mind when preparing a newly revised draft to be considered at a later
stage.
6. Subparagraph (a)(iii) of the draft enforcement provision
46. It was stated that subparagraph (a)(iii), in line with article V of the New York Convention
and article 36 of the Model Law, was not intended to refer to the exceptional situation
where an ex parte measure had been issued but more generally to the situation where, for
a variety of reasons, a party had been unable to present its case. The substance of the
subparagraph was found to be generally acceptable. The usefulness of the language in

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 square brackets at the end of the subparagraph was questioned. It was stated that the
bracketed language described only one among many options which would normally be
P 481 open to a state court under domestic law where a party had not been given full
P 482 opportunity to present its case under article 18 of the Model Law. From that perspective
the bracketed language would only prove useful in the unlikely situation where the
domestic rules of procedural law would not allow a court to order suspension of the
proceedings. The Working Group took note of that view and agreed that the discussion
should be continued at a later stage. In response to a suggestion that the words “the court
may suspend the court proceedings” should be replaced by the phrase “the court shall
suspend the court proceedings” it was pointed out that, should the bracketed language be
ultimately retained, it would be essential to preserve the broadest possible discretion for
the court, a result that would be better achieved by using the verb “may”.
7. Subparagraph (a)(iv) of the draft enforcement provision
47. The substance of subparagraph (a)(iv) was found to be generally acceptable. Various
views were expressed as to how its formulation might be improved. One suggestion was
that the draft provision should address the situation where the interim measure,
particularly if it had been issued in the form of an award, had been set aside by a court in
the country of the seat of the arbitration. It was suggested that wording along the lines of
article 36 (1) (a) (v) of the Model Law might need to be added to the draft provision.
Another suggestion was that the Working Group should study the implications of an interim
measure being issued in the form of an award on the applicability of other provisions of
the Model Law, for example article 31. In response it was stated that, irrespective of
whether an interim measure had been labelled as an award, it should not be treated as an
award for the purposes of applying the Model Law. In the view of various delegations,
strictly speaking, no interim measure should be regarded as an arbitral award, since it was
ephemeral in nature and did not attempt to solve definitively all or part of the dispute
(see para. 25, above). It was observed that such an interpretation of the notion of “arbitral
award” might create the need to revisit the text of draft article 17. A note of caution was
struck about dealing with the situation where an interim measure had been set aside by a
foreign court. It was stated that opening that discussion might create the difficult situation
where standards would need to be established to assist courts in establishing an
acceptable policy regarding the setting aside of interim measures and regarding the cases
where an interim measure would have to be enforced even if it had been set aside by a
court in another country. With a view to avoiding some of the above concerns, it was
suggested that the words “or by order of a competent court” should be added at the end of
subparagraph (iv). It was agreed that the Secretariat should bear those suggestions in mind
when preparing a newly revised draft for a continuation of discussions at a later stage.
8. Subparagraph (b)(i) of the draft enforcement provision
48. It was suggested that the term “procedural” should be omitted from subparagraph (b)(i)
for the reason that it might be too narrow given that there could be circumstances where
the court may wish to refuse to recognize and enforce an interim measure for the reason
that it was incompatible with the powers conferred upon the court by its substantive laws.
P 482 Further support was given to the deletion of the term “procedural” given that there were
P 483 substantial differences between the content of procedural laws in different
jurisdictions. While reservations were expressed about the suggestion, it was ultimately
agreed that the term “procedural” could be omitted in a revised draft.
49. A question was raised whether the omission of the term “procedural” would impact
negatively on draft paragraph (4) [Art 17 I(2) in the final text] of the draft enforcement
provision which prohibited a court from modifying the substance of the interim measure.
In this respect it was suggested that paragraph (4) should be combined with subparagraph
(b)(i). It was agreed that the Secretariat should seek to combine subparagraph (b)(i) and
paragraph (4) in a revised text to be discussed at a future session.
9. Subparagraph (b)(ii) of the draft enforcement provision
50. It was suggested that the phrase “this State” should be omitted from the draft
paragraph. It was noted that, even though the term “this State” was mentioned in
paragraph 36 (1) (b)(i) of the Model Law, that reference was in connection with a reference
to “the law of this State” and, as that phrase was not mentioned here, it was considered
that it was not necessary to refer to “this State” in subparagraph (b)(ii) of the draft
enforcement provision.
51. It was also suggested that, if the intention of the Working Group was to cover all three
meanings of public policy (being domestic public policy, public policy forming part of the
international private law and true public policy of a transnational character as discussed
earlier (see para. 38), it would be unnecessarily restrictive to refer to the public policy “of
this State”. In this respect it was suggested that a reference ought to be made to
international public policy. However, this suggestion did not receive support for the
reasons that the notion of international public policy was still a vague term which was not
uniformly understood; it was suggested that to include the expression “international” in
that context could introduce complexities into the text which were unwarranted. It was
observed that the Working Group was not legislating in a vacuum but against a wealth of
authority in every State. It was also observed that the jurisprudence on public policy was
complex and that the debate of the Working Group had only touched upon the various

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 differences between domestic public policy, transnational public policy and international
public policy that was recognized by courts in different States. It was further observed that
debate on the distinctions and content of each of these terms was not settled, and by
departing from the language used in article V of the New York Convention and article 36 (1)
(b)(ii) of the Model Law the new model legislative provision could undermine the position
established thereunder and would have the potential of broadening the concept of public
policy. It was said in response that, notwithstanding the wording that existed in both the
Model Law and the New York Convention, the Working Group could take the opportunity in
drafting the model provision to recognize that there had been jurisprudential
development of the term “international public policy” since the time that the Model Law
was finalized. It was also said that, since the intention of the Working Group had been
expressed to create a sui generis system for enforcement of interim measures of
protection, it would be helpful to refer to international public policy to recognize the
developments in jurisprudence that had occurred.
P 483
P 484
52. Following discussion, the prevailing view that emerged was that the term “international
public policy” was not a sufficiently clear notion since it was susceptible to different
interpretations. It was suggested that the term “international public policy” could be
encompassed within the “public policy of this State”. It was suggested that, insofar as it
might be considered that the phrase “public policy of this State” might create an
impression that it only referred to domestic public policy, it may be helpful to include the
words “public policy recognized by the court”. It was suggested that that formulation could
encompass international public policy where it was so recognized by courts in a particular
State.
10. Paragraph (2) of the draft enforcement provision
53. The view was expressed that the provision contained in paragraph (2) of the draft
enforcement provision should be considered for possible inclusion in paragraph (1), as
another ground for a state court to refuse enforcement of an interim measure ordered by
an arbitral tribunal. On the assumption that paragraphs (1) and (2) would later be
combined, the Working Group proceeded with a review of the substance of paragraph (2).
54. Lack of clarity was evident regarding the contents of paragraph (2). A number of
delegations were of the view that the provision dealt with a situation where a party
applied for enforcement of a single interim measure issued by an arbitral tribunal before a
number of courts, located either in the same State or in different States. It was pointed out
that, in and of itself, the application for enforcement of a given interim measure before
several state courts should not be sufficient ground to refuse enforcement. It was stated
that such an application for enforcement might be justified, for example, where assets of
the defendant were located in different court jurisdictions. Other delegations observed
that paragraph (2), in fact, was intended to deal with the option that might be recognized
to the parties to apply for an interim measure of protection both before a court of the
enacting State and before the arbitral tribunal (with subsequent application before a court
of the enacting State for enforcement of the interim measure granted by the arbitral
tribunal). It was widely recognized that the latter situation was the situation that was
intended to be covered by paragraph (2). Limited support was expressed for introducing in
the Model Law a provision that gave the court the discretion to coordinate the relief so as
to avoid conflict between several interim measures. It was pointed out that, should such a
provision be retained, extensive redrafting would be necessary to clarify the scope and
purpose of that provision. The widely prevailing view, however, was that it would be
unnecessary to include a provision dealing with such an infrequent situation at such a level
of detail. It was generally agreed that the matter of a possible conflict between interim
measures requested from an arbitral tribunal and interim measures requested from state
courts should be left to applicable law. After discussion, the working Group decided that
paragraph (2) should be deleted.
P 484
P 485
11. Paragraph (4) of the revised draft (continued)
55. The Working Group reverted to a consideration of paragraph (4) of the revised draft as
contained in paragraph 30, above (for earlier discussion, see para. 40, above).
56. It was recalled that the Working Group had earlier agreed to add the words “by the
court” following the word “made” to provide greater clarity that the paragraph was
addressed to a court and not to an arbitral tribunal and to provide a clearer link of that
paragraph with paragraph (3) of the revised draft. The Secretariat was requested to revise
the text accordingly when preparing a newly revised draft for a later session.
12. Possible restructuring of paragraph (1) [Arts. 17 H(1) and 17 I(1) in the final draft] of the
draft enforcement provision
57. At the close of the discussion regarding the individual grounds for refusing enforcement
of an interim measure issued by an arbitral tribunal, it was observed that one of the results
achieved by the Working Group had been to bring those various grounds somewhat closer
to the grounds listed in articles 35 and 36 of the Model Law and in article V of the New York
Convention. It was thus suggested that, instead of formulating each of those individual

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 grounds, the paragraph could be recast in the form of a general reference to “the
provisions of articles 35 and 36”, with exceptions, as appropriate, where the paragraph was
intended to deviate from the provisions of articles 35 and 36. In addition to offering more
concise drafting, the suggestion was said to limit the risk that might arise from lack of
parallelism between the grounds for refusing enforcement of an interim measure issued by
an arbitral tribunal and the grounds for refusing enforcement of an arbitral award under
articles 35 and 36. It was stated that, for example, the suggested redrafting would avoid
any doubt as to whether a general reference to the jurisdiction of the arbitral tribunal in
the draft enforcement provision was intended to cover the nonarbitrability of the dispute
alongside other jurisdiction-related grounds for refusing enforcement. Some support was
expressed for that suggestion. Others held the view, however, that it was preferable to
spell out in the Model Law the provisions applicable to the enforcement of interim
measures issued by an arbitral tribunal since the policy and legal considerations
governing the enforcement of those measures were sufficiently different from those
governing the enforcement of an arbitral award. It was generally agreed that, in drafting
that provision, unnecessary deviation from the text of articles 35 and 36 should be
avoided. Another view was that a reference to article 35 and 36 of the Model Law should be
avoided to facilitate the use of the draft enforcement provision by those States that might
not have already enacted the Model Law. After discussion, the Secretariat was requested
to prepare a newly revised provision and, in doing so, to consider both of the above views
and suggestions and to consider the possibility of drafting alternative variants so that the
Working Group would have concrete texts before it when discussing the matter further at a
future session.
P 485
P 486
58. The discussion also focused on the question whether, parallel to article 36 of the Model
Law, the draft enforcement provision should distinguish between, on the one hand, the
situation covered by article 36 (1) (a), where grounds for refusing enforcement were
examined by the court “at the request of the party against whom” the interim measure had
been issued and that party would “furnish sufficient proof” that enforcement should be
refused, and, on the other hand, the situation covered by article 36 (1) (b), where the court,
of its own motion, would “find” that there existed a ground for refusing enforcement. It was
recalled that, in its earlier discussion, the Working Group, with a view to avoiding the
complexities that might arise from the allocation of the burden of proof, had decided that
all grounds for refusing enforcement of an interim measure of protection should be
introduced in the draft enforcement provision by the wording “the court is satisfied that”
(see above, paras. 35 and 36).
59. It was suggested that, in considering the possible need for a differentiated treatment of
the various grounds under paragraph (1), the three following questions should be borne in
mind: (1) which party should bear the burden of proof; (2) what would be the applicable
standard of proof; and (3) upon whose initiative or request would a court examine a
possible ground for refusing enforcement.
60. As to which party should bear the burden of proof, the view was expressed that the
allocation should follow the pattern established in article 36 of the Model Law. It was
pointed out, however, that article 36 (1) (a) (ii) of the Model Law, for example, should not
be interpreted as requiring the party against whom the award was invoked to bear the
burden of proving the negative fact that it had not received proper notice. After discussion,
the Working Group reiterated the conclusion that no provision should be made in the draft
enforcement provision regarding the allocation of the burden of proof and that the matter
should be left to applicable law. In the context of that discussion, doubts were expressed
as to whether leaving the issue of the burden of proof to domestic law would favour the
wider use of arbitration. It was recalled that the Convention on the Execution of Foreign
Arbitral Awards (Geneva, 1927) was unclear on that issue. By contrast, the approach taken in
the New York Convention had been to allocate the burden of proof to the party resisting
enforcement (an approach often referred to as the “pro-enforcement bias”). It was
suggested that the same approach should be followed in the draft enforcement provision.
In response, it was pointed out that a “pro-enforcement bias” might not be as justified in
the case of an interim measure issued without a full appreciation of all facts of the
dispute, at an early stage of the proceedings, as it was regarding an award on the merits of
the case.
61. Regarding the standard of proof, a widely shared opinion was that the urgent need for
enforcement and the ephemeral character of an interim measure would seem to indicate
that the court should apply a prima facie standard when examining the issue of
enforcement of such a measure, as opposed to the more stringent standard of proof that
would typically be required when considering the enforcement of an arbitral award on the
merits of the case. The prevailing view, however, was that the issue of the standard of proof
should not be dealt with in any detail in the draft enforcement provision and would better
be left to applicable law.
P 486
P 487
62. As to whether grounds for refusing enforcement should be considered only at the
request of the party or whether such grounds could be raised by the court of its own
motion, it was suggested that a distinction should be drawn along the lines of

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 subparagraphs (a) and (b) of paragraph (1) of article 36 of the Model Law. The following text
was proposed:
“Recognition or enforcement of an arbitral award may be refused only:
(a) At the request of the party when the court is satisfied that …
[all subparagraphs in subparagraph (1) (a) of the draft enforcement
provision]; or
(b) If the court [finds][is satisfied] that …
[all subparagraphs in subparagraph (1) (b) of the draft enforcement
provision].”
63. The Secretariat was requested to bear that proposal in mind when preparing a newly
revised draft of the enforcement provision, with possible variants, for continuation of the
discussion at a future session.
13. Footnote to paragraph (1) of the draft enforcement provision [Footnote to Art. 17 I in the
final text]
64. The Working Group proceeded to consider the text contained in the footnote to
paragraph (1). It was observed that the text therein closely followed the sentiment
expressed in the footnote to article 35 (2) of the Model Law. General support was expressed
for the inclusion of the footnote although it was suggested that the word “must”, which
appeared two times in the footnote should be replaced by the word “may”. That suggestion
received support.
65. Another view expressed was that, in the context of enforcement of interim measures, a
different approach than that provided for enforcement of arbitral awards might be
warranted. Given that interim measures were often issued without a complete
appreciation by the arbitral tribunal of the circumstances of the dispute and that the
grounds listed in paragraph (1) of the draft enforcement provision were to protect the party
against whom the interim measure was ordered, it was suggested that it might not be
appropriate to encourage States to remove these safeguards. Against this view, it was said
that since the current provision was dealing with the enforcement of inter partes interim
measures the footnote was comparable to the footnote in article 35 (2) of the Model Law
and that therefore it should be retained. It was also said that, in determining whether or
not to retain the footnote, the Working Group should balance the need for harmonization
between the Model Law and the risk of abuse and where that risk was low should refrain
from departing from the Model Law.
66. Noting the reservations expressed as to the inclusion of such a footnote in the context
of enforcement of interim measures, the Working Group agreed to retain the footnote with
the amendment to replace “must”, where it appeared in the footnote, with the word “may”.
P 487
P 488
14. Paragraph (3) [Art. 17 H(2) in the final text] of the draft enforcement provision
67. In respect of paragraph (3), it was observed that the paragraph was based on the
principle that a party seeking enforcement of an interim measure should be obliged to
inform the court of any termination, suspension or amendment of that measure. Broad
support was expressed for that principle.
68. It was stated that, since the provision reflected the principle of good faith, both parties
might be subject to that obligation. It was observed that the paragraph could operate in
two distinct circumstances. The first was where there was no opposition from the other
party to enforcement of the interim measure. In that case, the onus of showing that that
interim measure was in line with what had been ordered by the arbitral tribunal properly
fell on the party seeking enforcement. The second circumstance was where there was
opposition to enforcement in which case it was said that the onus should be on both
parties. However, the prevailing view was the obligation to notify should properly apply
only to the party seeking enforcement of the interim measure in view of the fact that the
decisions to enforce interim measures were often taken ex parte and that enforcement
orders often carried with them sanctions such as penalties, fines or being found to be in
contempt of court.
69. It was suggested, and the Working Group agreed, that the obligation to notify extended
also to the period after an enforcement order had been granted. In order to express that
idea it was decided to replace the expression “the party who is seeking enforcement” with
“the party who is seeking or has obtained enforcement”.
70. It was suggested that the provision was not complete, as it did not deal with the
consequences, such as liability for damages, where a party failed to fulfil that obligation.
However, the prevailing view was that it was more prudent to leave such a liability regime
to the applicable national law.
71. It was observed that the purpose of notifying the court under paragraph (3) was to
enable it to take a corrective measure such as to terminate, suspend or amend its own
enforcement order. According to one opinion, it would be useful to state expressly that the
court had the power to take such corrective measures in the light of changed

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 circumstances about which it was notified. However, the prevailing view was that courts
already had sufficient possibilities to take appropriate action in accordance with the
national procedural rules and that, therefore, there was no need to formulate a unified
provision on that matter. In that context, it was said that for a court to modify its
enforcement order it was not sufficient that a court be notified of a change in circumstance
and that a request by a party was necessary. On this point too, the Working Group
considered that it should be left to be governed by the applicable procedural law.
15. Proposal for a new provision on security for requests for enforcement
72. The Working Group then turned to the question whether a court, when faced with an
P 488 application to enforce an interim measure, ought to be able to order the applicant to
P 489 provide security. It was suggested that the question whether security ought to be
mandatory when seeking enforcement of an interim measure ought to be left to domestic
law. It was observed that, given that draft article 17 conferred a power on an arbitral
tribunal to order security when ordering interim measures, it was appropriate that such a
power be conferred on a court when enforcing an interim measure. It was suggested that
the power to order security should be expressed as a discretion and not be mandatory. It
was suggested that such a power was particularly important to bind third parties, which
could not be affected by an interim measure issued by an arbitral tribunal.
73. A widely held view was that a court should have the power to order security where no
order regarding security had been made by an arbitral tribunal at the time of ordering the
interim measure. However, concern was expressed about extending that power to the
circumstance where an arbitral tribunal had made such an order given the potential for
inconsistency between such orders. It was also said that there was a risk that an applicant
could be disadvantaged for making an application for enforcement if a request imposed
by a court was in addition to one already required by an arbitral tribunal. In that
connection, it was suggested that the situation where security was requested by a court in
the context of an application for enforcement of an interim measure issued by an arbitral
tribunal should be distinguished from the situation where the application for an interim
measure was presented directly to the court. The view emerged that any possible conflict
between security granted by an arbitral tribunal and that granted by a court could be
dealt with by the court and thus the provision should simply reflect that a court had the
discretion to order security when enforcing an interim measure.
74. However, concern was expressed that such a power could run the risk that a court would
review the tribunal's decision as to the appropriate level of security. It was suggested that
one way to reduce that risk was to circumscribe the power of a court to order security by
including a text that recognized that the court had the power to order security insofar as
security had not already been determined by the arbitral tribunal. It was said that that
would cover any decision taken by an arbitral tribunal in respect of security whether
affirmative or negative as well as allowing orders for security in respect of third parties.
75. Following that discussion, the Secretariat was requested to prepare a revised text
setting out the various options discussed by the Working Group. It was clarified that these
options should include a provision setting out that a court had the power to order security
with bracketed text that limited such a power to the circumstance where a tribunal had
not made an order with respect to security. Another option would extend this power to
include a power to order security where an arbitral tribunal had made an order but the
court found that order to be inappropriate or insufficient in the circumstances. A further
suggested option was that the provision simply provide that a court had the discretion to
order security for costs, and that the scope of the power, as well as any potential conflict
with an earlier determination by an arbitral tribunal on security, would be dealt with by
the court under a law other than the Model Law. A related proposal that was agreed should
P 489 be reflected as another option was that the provision limit the power of the court to the
P 490 question whether or not to enforce an interim measure. In that respect an analogy was
drawn to the situation where a court was requested to determine enforcement of a foreign
judgement in exequatur proceedings. Yet another option suggested was that the power of
the court to order security should be limited to dealing with third party rights.
OCTOBER 2003 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.125 (2 OCTOBER
2003)
I. Draft provision on the recognition and enforcement of interim measures of protection
(for insertion as a new article of the UNCITRAL Model Law on International Commercial
Arbitration, tentatively numbered 17 bis)
4. To facilitate the resumption of discussions, the following text sets out a newly revised
version of the provision on recognition and enforcement of interim measures of protection
(hereinafter referred to as “draft article 17 bis”):
A. Text of draft article 17 bis
(1) [Art. 17 H(1) in the final text] An interim measure of protection issued by an arbitral
tribunal, that satisfies the requirements of article 17, shall be recognized as binding and,
unless otherwise provided by the arbitral tribunal, enforced upon application [in writing]
to the competent court, irrespective of the country in which it was issued, subject to the
provisions of this article. (*)

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 (2) [Art. 17 I(1) in the final text] The court may only refuse to recognize [and] [or] enforce an
interim measure of protection:
(a) If, at the request of the party against whom it is invoked, the court is satisfied that:
(i)
Variant
1: There is a substantial issue as to the jurisdiction of the tribunal [[of such a
nature as to make recognition or enforcement inappropriate] [of such a
nature as to make the interim measure unenforceable]] [and no
appropriate security was ordered by the arbitral tribunal in respect of
that interim measure];
Variant
2: There is a substantial question relating to any grounds for such refusal set
forth in article 36, paragraphs (1)(a)(i), (iii) or (iv); or
(ii)
Variant
1: That party was not given proper notice of the appointment of an arbitrator
or of the arbitral proceedings [, in which case the court may suspend the
enforcement proceedings [until the parties have been heard by the
arbitral tribunal] [until the parties have had an opportunity to be heard
by the arbitral tribunal] [until the parties have been properly notified]];
P 490
P 491
Variant
2: Such refusal is warranted on the grounds set forth in article 36, paragraph
(1)(a)(ii); or
(iii)
Variant
1: That party was unable to present its case with respect to the interim
measure [in which case the court [may] [shall] suspend the enforcement
proceedings until the parties have been heard by the arbitral tribunal]; or
Variant
2: Such refusal is warranted on the grounds set forth in article 36, paragraph
(1)(a)(ii); or
(iv) The interim measure has been terminated or suspended by the arbitral tribunal
or by order of a competent court; or
(b) If the court finds that:
(i) The interim measure requested is incompatible with the powers conferred upon
the court by its laws, unless the court decides to reformulate the interim
measure to the extent necessary to adapt it to its own powers and procedures
for the purposes of enforcing that interim measure and without modifying its
substance; or
(ii)
Variant
1: The recognition or enforcement of the interim measure would be contrary
to the public policy recognized by the court.
Variant
2: Any of the grounds set forth in article 36, paragraphs (1)(b)(i) or (ii) apply to
the recognition and enforcement of the interim measure.
(3) [Art. 17 I(2) in the final text] Any determination made by the court on any ground in
paragraph (2) of this article shall be effective only for the purposes of the application to
recognize and enforce the interim measure of protection.
(4) [Art. 17 H(2) in the final text] The party who is seeking or has obtained enforcement of an
interim measure of protection shall promptly inform the court of any termination,
suspension or amendment of that interim measure.
(5) [Art. 17H (3) in the final text] Variant A: The court where recognition or enforcement is
sought may, if it considers it proper, order the other party to provide appropriate security
for costs [unless the tribunal has already made an order with respect to security for costs]
[unless the tribunal has already made an order with respect to security for costs, except
when the court finds that the order is inappropriate or insufficient in the circumstances].
Variant
B: The court where recognition or enforcement is sought may, if it considers it proper,
order security for costs.
Variant
C: The court where recognition or enforcement is sought shall not, in exercising that
power, undertake a review of the substance of the interim measure of protection.
Variant
D: The court where recognition or enforcement is sought may only order security for

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 costs where such an order is necessary to protect the rights of third parties.
P 491
P 492
(6) Paragraph (2)(a)(ii) does not apply.
Variant
X: To an interim measure of protection that was ordered without notice to the party
against whom the interim measure is invoked provided that the interim measure was
ordered to be effective for a period not exceeding [thirty] days and the enforcement
of the interim measure is requested before the expiry of that period.
Variant
Y: To an interim measure of protection that was ordered without notice to the party
against whom the interim measure is invoked provided that such interim measure is
confirmed by the arbitral tribunal after the other party has been able to present its
case with respect to the interim measure.
Variant
Z: If the arbitral tribunal, in its discretion, determines that, in light of the circumstances
referred to in article 17(2), the interim measure of protection can be effective only if
the enforcement order is issued by the court without notice to the party against
whom the interim measure is invoked.”
B. General remark on the new provisions
5. The Working Group will note that article 17 bis [Arts. H – I in the final text] and the
proposed article 17 ter [Art. 17 J in the final text] (set out below under paragraphs 40 and 42
[reprinted in the section on Art. 17 J, pp. 572–73 infra]) are intended for inclusion in the
UNCITRAL Model Law following the proposed new article 17 [Arts. 17 – 17 G in the final text]
(see [April 2003 Secretariat Note,] A/CN.9/WG.II/WP.123 [reprinted in the section on Arts. 17 –
17 G, pp. 267–80 supra]). The Working Group may wish to consider whether these provisions
should be grouped together in a new chapter of the UNCITRAL Model Law, for example,
Chapter IV bis, which could be entitled “Interim measures of protection”. Alternatively, the
current title of Chapter IV, which now reads “Jurisdiction of Arbitral Tribunal” could be
modified to better reflect the inclusion of these new provisions.
C. Notes on draft article 17 bis
Paragraph (1) (previously paragraphs 1 and 2 of the revised draft as reproduced in [the
June 2003 Working Group Report,] A/CN.9/524, para. 30)
6. Paragraphs (1) and (2) of the revised draft have been merged into one paragraph to align
it more closely with the wording of article 35 of the UNCITRAL Model Law.
7. Paragraph (1) of draft article 17 bis is intended to reflect the decisions of the Working
Group that the provision should:
– First provide a positive statement that an interim measure should be recognized and
enforced and then set out the grounds upon which recognition or enforcement could
be refused ([June 2003 Working Group Report,] A/CN.9/524, paras. 28 and 34);
P 492
P 493
– Include the following formulation: “An interim measure issued by an arbitral tribunal,
that satisfies the requirements of Article 17” (see [June 2003 Working Group Report,]
A/CN.9/524, para. 32); and
– Also include the words “irrespective of the country in which it was ordered” (see [June
2003 Working Group Report,] A/CN.9/524, para. 33).
8. The words “Unless otherwise provided by the arbitral tribunal” have been included to
reflect the decision that an arbitral tribunal should be able to provide, at the time of
ordering the interim measure, that the measure was not to be the subject of an application
for court enforcement ([June 2003 Working Group Report,] A/CN.9/524, paras. 26 and 34).
9. As a matter of drafting, it was suggested that paragraph (2) of the revised draft could
omit the words “recognized and” since recognition was implied in enforcement. However,
concern was expressed that both these terms should be included for the sake of
consistency with other draft provisions as well as articles 34 and 35 of the UNCITRAL Model
Law ([June 2003 Working Group Report,] A/CN.9/524, para. 34). The revised text appears to
make this concern redundant.
10. The words “in writing” have been placed in square brackets. When finalizing the text of
article 17 bis(1), the Working Group may wish to keep in mind that the term “in writing” is
included in a number of provisions in the UNCITRAL Model Law, being articles 7(2), article
31(1) and 35(1). As there is no general definition of the term in the UNCITRAL Model Law, and
given that the Working Group is yet to finalize a decision revising article 7(2) of the
UNCITRAL Model Law, the Working Group may wish to either avoid a reference to the term
unless it is essential, or consider the inclusion of a global definition that would be
electronic commerce friendly, in the interest of uniform interpretation.
Footnote to paragraph (1)
11. The Working Group agreed to retain the footnote with the amendment to replace “must”,
where it appeared in the footnote, with the word “may” ([June 2003 Working Group Report,]

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 A/CN.9/524, paras. 64–66).
Paragraph (2) (previously paragraph (3) of the revised draft)
General remarks
12. At the close of the discussion regarding the individual grounds for refusing enforcement
of an interim measure issued by an arbitral tribunal, it was observed that one of the results
achieved by the Working Group had been to bring those various grounds somewhat closer
to the grounds listed in articles 35 and 36 of the Model Law and in article V of the New York
Convention. It was thus suggested that, instead of formulating each of those individual
grounds, the paragraph could be recast in the form of a general reference to “the
provisions of articles 35 and 36” ([June 2003 Working Group Report,] A/CN.9/524, para. 57).
The Secretariat was requested to consider the possibility of drafting alternative variants so
P 493 that the Working Group would have concrete texts before it when discussing the matter
P 494 further at a future session. Variants 2 under subparagraphs (a) (i), (ii) and (iii) and (b) (ii)
provide texts giving effect to these suggestions. The Working Group may wish to note that a
reference to article 36, paragraph (1) (a) (ii) is repeated under both subparagraphs (ii) and
(iii) of the revised draft as it covers questions of notice and inability to present the case.
13. Another view was that a reference to article 35 and 36 of the Model Law should be
avoided to facilitate the use of the draft enforcement provision by those States that might
not have already enacted the Model Law. It was said that it was preferable to spell out in
the Model Law the provisions applicable to the enforcement of interim measures issued by
an arbitral tribunal since the policy and legal considerations governing the enforcement of
those measures were sufficiently different from those governing the enforcement of an
arbitral award ([June 2003 Working Group Report,] A/CN.9/524, para. 57). Variants 1 under
subparagraphs (a)(i), (ii) and (iii) and (b)(ii) provide texts giving effect to these suggestions.
Chapeau
14. To emphasize that the circumstances in which refusal could occur were limited, the
word “only” has been included after the word “may” ([June 2003 Working Group Report,]
A/CN.9/524, para. 35). For the sake of consistency with article 36 of the UNCITRAL Model
Law, and also to better reflect the options available to the court, the Working Group may
wish to decide whether the word “and” could be replaced by “or”.
15. The structure of paragraph (2) reflects the decision of the Working Group ([June 2003
Working Group Report,] A/CN.9/524, para. 62).
Subparagraph (a), chapeau (previously paragraph 1(a) of the draft enforcement provision
as reproduced in [the November 2002 Working Group Report,] A/CN.9/523, para. 78)
16. The redraft reflects the decision that no provision should be made regarding the
allocation of the burden of proof and that the matter should be left to applicable law
([June 2003 Working Group Report,] A/CN.9/524, paras. 35–36, 42, 58 and 60). The Working
Group may wish to consider that the current text, which omits any reference to the burden
of proof, appears to be inconsistent with the approach taken in articles 34 and 36 of the
UNCITRAL Model Law. If so, this might lead to different interpretations such as imposing a
burden of proof on the party asking for enforcement or implying that it was for the arbitral
tribunal to verify these requirements ex officio. If the Working Group agrees that this
different wording is justified given the different objectives of article 17 bis as compared to
articles 34 and 36, the Working Group should seek to elaborate the reasons for this
difference in drafting to avoid uncertainty in interpretation.
Subparagraph (a)(i) (previously subparagraph (a) of the revised draft and paragraph 1(a)(i)
of the draft enforcement provision)
Variant 1
P 494 17. Variant 1 spells out the provisions applicable to the enforcement of interim measures
P 495 issued by an arbitral tribunal based on the approach that the policy and legal
considerations governing the enforcement of those measures were sufficiently different
from those governing the enforcement of an arbitral award ([June 2003 Working Group
Report,] A/CN.9/524, para. 57).
18. The Working Group agreed that in order for a court to have discretion to refuse to
recognize and enforce an interim measure, the court should not only be satisfied that there
was a substantial issue but also that that issue was an appropriate basis on which to refuse
enforcement and recognition. That broader approach was widely supported ([June 2003
Working Group Report,] A/CN.9/524, para. 37). To reflect more expressly that approach, the
draft text includes alternative bracketed wording providing that the substantial issue
should be of such a nature as to either make recognition or enforcement inappropriate or
make the interim measure unenforceable ([June 2003 Working Group Report,] A/CN.9/524,
para. 37).
19. It was also noted that any revision of subparagraph (a) of the revised draft should take
account of discussions regarding the requirement that security ought to be provided when
an interim measure was granted ([June 2003 Working Group Report,] A/CN.9/524, para. 39).
In this context, the Working Group may wish to consider, as has been provided in square
brackets in the text, whether subparagraph (a) should be subject to whether or not security
was ordered by the arbitral tribunal in respect of the interim measure that is sought to be

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 recognized and enforced.
Variant 2
20. For a discussion of this variant, see paragraphs 12 and 13 above.
Subparagraph (a)(ii) (previously paragraph (1)(a)(ii) of the draft enforcement provision)
Variant 1
21. The current text includes several variants to the effect that the court might suspend the
enforcement proceedings until the parties have:
– Been heard by the arbitral tribunal;
– Had an opportunity to be heard by the arbitral tribunal;
– Been properly notified ([June 2003 Working Group Report,] A/CN.9/524, para. 45).
The Working Group may wish to consider whether the first two variants introduce an overly
formalistic condition which could result in unnecessary delays to enforcement of an
interim measure.
Variant 2
22. See comments under paragraphs 12 and 13 above.
P 495
P 496
Subparagraph (a)(iii) (previously paragraph (1)(a)(iii) of the draft enforcement provision)
Variant 1
23. The substance of the subparagraph was found to be generally acceptable ([June 2003
Working Group Report,] A/CN.9/524, para. 46). The text retains the bracketed language “[in
which case the court [may][shall] suspend the enforcement proceedings until the parties
have been heard by the arbitral tribunal]”. The usefulness of the bracketed language was
questioned. It was stated that the bracketed language described only one among many
options which would normally be open to a state court under domestic law where a party
had not been given full opportunity to present its case under article 18 of the Model Law.
From that perspective, the bracketed language would only prove useful in the unlikely
situation where the domestic rules of procedural law would not allow a court to order
suspension of the proceedings. The Working Group may wish to decide whether or not the
text should be retained, and if so, whether to retain the word “shall” or “may”. It should be
recalled that a view had been expressed that, in order to preserve the broadest possible
discretion for the court, “may” was the preferable option ([June 2003 Working Group
Report,] A/CN.9/524, para. 46).
Variant 2
24. See comments under paragraphs 12 and 13 above.
Subparagraph (a)(iv) (previously paragraph (1)(a)(iv) of the draft enforcement provision)
25. The substance of this subparagraph was found to be generally acceptable. The words
“or by order of a competent court” have been added to deal with a situation where an
interim measure has been set aside by a court in the country of the seat of the arbitration
([June 2003 Working Group Report,] A/CN.9/524, para. 47).
Subparagraph (b)(i) (previously paragraph (1)(b)(i) of the draft enforcement provision)
26. As previously drafted, subparagraph (b)(i) referred to “procedural laws”. As decided by
the Working Group, the reference to the term “procedural” has been omitted on the basis
that there were substantial differences between the content of different procedural laws in
different jurisdictions and that boundaries between substantive laws and procedural laws
also varied between different jurisdictions ([June 2003 Working Group Report,] A/CN.9/524,
para. 48). As well, it was said that a court may refuse to recognize or enforce an interim
measure for the reason that it was incompatible with the powers conferred upon it by its
substantive laws.
27. The redraft reflects the decision of the Working Group to combine paragraph 4 of the
draft enforcement provision (which read: “in reformulating the measure under paragraph
1(b)(i), the court shall not modify the substance of the interim measure”) with this
subparagraph ([June 2003 Working Group Report,] A/CN.9/524, para. 49).
P 496
P 497
Subparagraph (b)(ii) (previously paragraph (1)(b)(ii) of the draft enforcement provision)
Variant 1
28. As decided by the Working Group, the phrase “this State” has been omitted from the
draft paragraph, even though the phrase is used in paragraph 36(1)(b)(ii) of the UNCITRAL
Model Law, on the basis that it was considered unnecessary ([June 2003 Working Group
Report,] A/CN.9/524, paras. 50–51).
29. The provision has been revised to refer to “public policy recognized by the court” ([June
2003 Working Group Report,] A/CN.9/524, paras. 38 and 52). The Working Group will recall

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 that the term “public policy” was regarded as a very vague term that was insusceptible to
definition in a number of countries and could encompass at least three different meanings
being: domestic public policy understood as covering all mandatory provisions of
domestic legislation; public policy rules specifically established in domestic legislation
for international relationships and the very limited set of rules established at the
transnational level and sometimes referred to as international public policy.
30. The Working Group may wish to consider the consequences of any discrepancies
between this subparagraph and other provisions of the UNCITRAL Model Law, namely
paragraph (b)(ii) of article 34 and paragraph (b)(ii) of article 36 and to decide whether it
would be appropriate, in the interests of uniform interpretation, to define the term “public
policy” for the purposes of the UNCITRAL Model Law.
Variant 2
31. See comments under paragraphs 12 and 13 above.
Paragraph (3) (previously paragraph (4) of the revised draft)
32. The redraft took account of the concern expressed in the Working Group's discussions
on the risk that a court, in considering a request for enforcement of an interim measure,
could hinder the arbitral tribunal's right to determine its own competence ([June 2003
Working Group Report,] A/CN.9/524, paras. 22 and 40).
33. The Working Group agreed to add the words “by the court” following the word “made” to
clarify that the paragraph was addressed to a court and not to an arbitral tribunal, and
also to provide a clearer link between that paragraph and paragraph (2) (previously
paragraph (3) of the revised draft) ([June 2003 Working Group Report,] A/CN.9/524, para. 56).
Paragraph (4) (previously paragraph (3) of the enforcement provision)
34. Consistent with the decision taken by the Working Group that the obligation to notify
also extended to the period after an enforcement order had been granted, the expression
“the party who is seeking enforcement” has been replaced with “the party who is seeking or
has obtained enforcement” ([June 2003 Working Group Report,] A/CN.9/524, para. 69).
P 497
P 498
Paragraph (5) (new provision)
35. As requested by the Working Group, this provision addresses the question of whether a
court, when faced with an application to enforce an interim measure, ought to be able to
order the applicant to provide security ([June 2003 Working Group Report,] A/CN.9/524,
paras. 72–75).
36. Variant A provides that a court has the power to order security and includes bracketed
text that limits such a power to the circumstance where a tribunal has not made an order
with respect to security as well as another option extending this power to include a power
to order security where an arbitral tribunal has made an order but the court has found that
order to be inappropriate or insufficient in the circumstances. Variant B merely provides
that a court has the discretion to order security for costs. Under this variant, the scope of
the power, as well as any potential conflict with an earlier determination by an arbitral
tribunal on security, would be dealt with by the court under a law other than the UNCITRAL
Model Law. Variant C has been drafted to cover the suggestion that the power of a court be
limited to the question whether or not to enforce an interim measure. The suggested text
expressly provides that the power of the court should not extend to reviewing the
substance of the interim measure. If this variant is the preferred option, the draft article
will contain no provision expressly granting the court the right to order security when
recognizing or enforcing an interim measure. Variant D limits the power of the court to
order security to protect third party rights. As the term “third party” is not defined, if
variant D is the preferred option, the Working Group may wish to clarify the term.
37. The Working Group might be willing to further consider the issue of security for costs
ordered by courts in the light of the Hague Conventions on Civil Procedure of 1905 and 1954,
which prohibit security for costs being required from nationals of signatory States. Article
17 of the 1954 Hague Convention on Civil Procedure provides as follows:
“No bond, nor deposit, under any denomination whatsoever, may be imposed
on the ground, whether of their foreign character or of absence of domicile or
residence in the country, upon nationals of one of the contracting States, having
their domicile within one of such States, who are plaintiffs or intervene in the
tribunals of another of such States.
The same rule applies to payments which may be required of plaintiffs or
interveners to guarantee judicial costs.
Conventions by which contracting States may have stipulated on behalf of their
nationals exemption from security for costs and damages in proceedings or
from payment of judicial costs irrespective of domicile, shall continue to
apply.”
Paragraph (6) of the redraft (previously paragraph 5 of the enforcement provision)

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 38. This paragraph was not discussed at the thirty-eighth session of the Working Group.
P 498
P 499
Certified copy
39. Article 35(2) of the Model Law provides that “the party relying on an award or applying
for its enforcement shall supply the duly authenticated original award or a duly certified
copy thereof and the original arbitration agreement … or a duly certified copy thereof”. As
well the article provides that if “the award or agreement is not made in an official
language of this State, the party shall supply a duly certified translation thereof into such
language.” At its thirty-eighth session, the Working Group generally agreed that, in drafting
paragraph (1) “unnecessary deviation from the text of articles 35 and 36 should be
avoided” ([June 2003 Working Group Report,] A/CN.9/524, para. 57). On that basis, the
Working Group may wish to consider whether language along the lines of articles 35(2)
should be included in the current text.
DECEMBER 2003 WORKING GROUP REPORT A/CN.9/545 (8 DECEMBER 2003)
IV. Revised draft of article 17 bis of the UNCITRAL Model Law on International Commercial
Arbitration on the recognition and enforcement of interim measures of protection
[.…]
94. The Working group proceeded to discuss draft article 17 bis, which read as follows:
[same as the October 2003 Secretariat Note, A/CN.9/WG.II/WP.125. para 4]
Paragraph (1) [Art. 17 H(1) in the final text]
95. In response to a question regarding the meaning of the words “Unless otherwise
provided by the arbitral tribunal”, the Working Group was reminded that these words had
been included to reflect the decision that an arbitral tribunal should be able to provide,
at the time of ordering the interim measure, that the measure was not to be the subject of
an application for court enforcement ([June 2003 Working Group Report,] A/CN.9/524, paras.
26 and 34).
“in writing”
96. A proposal was made to delete the bracketed text “in writing”. That proposal was
agreed to.
Footnote to paragraph 1
97. The Working Group found the substance of the footnote to paragraph 1 to be generally
acceptable.
“that satisfies the requirements of article 17”
98. The Working Group recalled that paragraph (1) of the revised draft article 17 bis
P 499 included a broader formulation than that used in an earlier draft by replacing the words
P 500 “interim measure of protection referred to in article 17” with “an order or award for
interim measures issued by an arbitral tribunal, that satisfies the requirements of article
17”. It was recalled that the intention behind that formulation in the current draft was to
ensure that an interim measure that was sought to be enforced would have to comply with
the safeguards that had been established in draft article 17 [Arts. 17 –17 G in the final text],
irrespective of whether that measure was ordered in a country that had adopted the Model
Law or in another country ([June 2003 Working Group Report,] A/CN.9/524, para. 32). In
support of including a reference to the requirements of article 17 in paragraph (1), it was
said it would provide an incentive for the arbitral tribunal to comply more strictly with the
conditions defined in article 17.
99. However, it was suggested that the reference to the requirements of article 17 was not
necessary because it introduced ambiguity and a concern was expressed that the current
text could be interpreted by an enforcing court as requiring it to undertake a review de
novo of whether the interim measure satisfied the requirements of article 17. To avoid such
an interpretation it was proposed to adopt wording along the lines of: “an interim measure
of protection issued by an arbitral tribunal, pursuant to article 17 or standards
substantially similar to those of article 17, shall be recognized as binding and, unless
otherwise provided by the arbitral tribunal enforced upon application to the competent
court irrespective of the country in which it was issued subject to the provisions of this
article”.
100. While the above-mentioned concern was shared by a number of delegations, it was
said that the proposed wording could give rise to two different problems. First, the
reference to “standards substantially similar to article 17” might be interpreted as adding
an unintended gloss to definition of interim measures of protection. Secondly, creating a
link between article 17 and article 17 bis was said to be inappropriate when compared to
the approach taken in the New York Convention with respect to the enforcement and
recognition of awards. Under the New York Convention the term “award” was not defined
with the consequence that the regime of recognition and enforcement applied irrespective
of the origin of the award. By contrast, a reference to article 17 in article 17 bis (1) could
limit recognition and enforcement of interim measures of protection to countries that had
adopted article 17 of the Model Law. It was said that that outcome would run contrary to

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 the pro-enforcement bias favoured by the Working Group in respect of interim measures
and also run counter to harmonization of this subject. On that basis, it was suggested that
article 17 bis should apply to all interim measures of protection irrespective of whether the
measure complied with the requirements of article 17 or not. As well, in any case, it was
said that the reference to article 17 was not appropriate as it not only referred to the
definition of an interim measure but also included the conditions upon which an arbitral
tribunal could grant an interim measure.
101. It was noted that inclusion of the text “that satisfies the requirements of article 17”
could have the consequence of creating an additional and hidden ground for the refusal to
recognize and enforce an interim measure. It was said that, if it was the intention of the
P 500 Working Group to include such a ground, then the phrase might be better located under
P 501 paragraph 2. Some support was expressed for that suggestion. However it was noted
that, if such a suggestion were adopted, it would mean that the party against whom the
measure was directed would bear the burden of proving that the interim measure did not
comply with article 17.
102. In order to take account of this issue it was proposed to delete the reference to “that
satisfies the requirements of article 17” and to add another ground on which the court
might refuse to recognize and enforce an interim measure under paragraph (2). After
discussion, the Working Group adopted that proposal.
Paragraph (2) [Art. 17 I(1) in the final text]
Chapeau
103. The Working Group agreed, for the sake of consistency with article 36 of the Model Law,
to delete from the chapeau of paragraph (2) the word within square bracket “and” and to
retain the word “or”. The Working Group adopted the chapeau of paragraph (2) without any
other comments.
Subparagraph (a)
Chapeau
104. It was suggested that the phrase “at the request of the party against whom it is
invoked” should be deleted, as the court might be satisfied that a ground for non-
enforcement existed from the mere examination of the case. In addition, such deletion
would cover the situation where a party against whom a measure was invoked did not
appear in the proceedings.
Subparagraph (a)(i)
105. Of the two variants included in the draft subparagraph, preference was expressed for
the retention of Variant 2. However it was suggested that the reference to subparagraph
36(1)(a)(i) of the Model Law should be deleted from that variant as it would invite the court
to inquire about the validity of the jurisdiction of the arbitral tribunal at a time when the
arbitral procedure was still pending. In response, it was said that paragraph (3) [Art. 17 I(2)
in the final text] of article 17 bis guarded against that risk by restricting any determination
made by the court on any ground in paragraph (2) to recognition and enforcement of the
interim measure. It was suggested that a general reference to article 36 rather than to
specific paragraphs could be considered as an alternative approach. In that case,
consideration might be given to the deletion of subparagraph (a)(iv) as it might already be
covered by subparagraph 36(1)(a)(v). Another suggestion was that the final decision to
adopt Variant 2 could only be made once the Working Group had considered a
consolidated version of the various references to article 36 of the Model Law contained in
the current version of paragraph (2).
106. It was said that, as there was agreement to retain Variant 2, the question of the burden
of proof should be revisited. In that respect, it was noted that by contrast to subparagraph
(2)(a), which did not expressly specify who bore the burden of proof, article 36 (1)(a)
provided that the party against whom the interim measure was invoked bore that burden.
P 501
P 502
Additional ground for refusing recognition and enforcement
107. Following the suggestion to delete the reference to article 17 from paragraph (1) and to
add another ground on which the court might refuse recognition and enforcement of an
interim measure (see above, para. 99), it was proposed to add a new subparagraph at the
end of paragraph (2) in the following terms:
“(v) The court is satisfied that the arbitral tribunal was prohibited from issuing
an interim measure [by the agreement of the parties or the mandatory law of
the country where the arbitration is taking place].”
An alternative proposal was made along the following lines:
“(v) The court is satisfied that the arbitral tribunal was not authorized to issue
the interim measure [either by the agreement of the parties or by the law of the
place of the arbitration].”

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 It was said that the latter proposal improved upon the earlier one because it recognized
that an arbitrator did not have an inherent power to order interim measures and that that
power could only be derived from either the agreement of the parties or the applicable
law.
108. It was remarked that the bracketed text in that proposed new subparagraph was
already covered by article 36 (1)(a)(iii), a reason for which it should probably be deleted.
With respect to the reference to the law applicable at the seat of the arbitral tribunal, it
was stated that, for example, it would be difficult for a judge to enforce an interim
measure when the law of the country where the arbitration took place did not allow such a
procedure despite a contrary agreement of the parties. It was stated that the reference to
the agreement of the parties or to the applicable law should not be provided for in the
revised proposal because the matter should be left to be decided by the court.
109. It was questioned whether referring to the country where the arbitration was taking
place was appropriate and whether a reference to the country where recognition and
enforcement was sought did not constitute a better approach. It was noted however that
article 36 (1)(a)(iv) referred to the “law of the country where the arbitration took place” and
that, for the sake of consistency, that wording might need to be maintained. In response, it
was stated that the reference to the law of the country where “the arbitration took place”
might not be appropriate given that what was intended to be covered was the lex arbitri
and that arbitrators might not be physically present in the legal jurisdiction governing the
arbitration. On that basis, it was suggested that it might be more appropriate to refer to
“the law governing the arbitral proceedings”.
110. With respect to the suggested additional ground for refusing recognition and
enforcement, the view was expressed that such a provision was unnecessary since the
matter was adequately covered by article 36.
111. While the recognition and enforcement regime as defined under article 17 bis was
suitable for inter partes measures, it was suggested that its application to ex parte
measures might need to be reviewed.
P 502
P 503
112. The Working Group agreed that the discussion on draft article 17 bis would need to be
continued at its next session. The Secretariat was requested to prepare a revised draft
taking account of the various views and suggestions expressed above.
FEBRUARY 2004 SECRETARIAT NOTE REPORTING ICC PROPOSAL A/CN.9/WG.II/WP.129 (3
FEBRUARY 2004)
Proposal by the International Chamber of Commerce
Note by the Secretariat
On 2 February 2004, the Secretariat received a proposal from the Secretary-General of the
International Court of Arbitration of the International Chamber of Commerce (“the ICC”) on
revised draft articles 17 [Arts. 17 –17 G in the final text] and 17 bis [Arts. 17 H –17 I in the final
text] of the UNCITRAL Model Law on International Commercial Arbitration relating
respectively to interim measures of protection ordered by arbitral tribunals and
recognition and enforcement of interim measures of protection. The draft articles on which
those comments are based are reproduced in [the April 2003 Secretariat Note, ]
A/CN.9/WG.II/WP.123 [reprinted in the section on Arts 17 – 17 G, pp. 267–80 supra], [the
October 2003 Secretariat Note,] A/CN.9/WG.II/WP.125 and [the December 2003 Working
Group Report,] A/CN.9/545. The text of the proposal, including proposed revisions to
articles 17 and 17 bis, is annexed to this note in the form in which it was received by the
Secretariat.
Annex
[.…]
Suggested changes to article 17bis paragraphs 1 [Art. 17 H(1) in the final text] and 6
(1) An interim measure of protection issued by an arbitral tribunal, that satisfies the
requirements of article 17 shall, with the exception of an interim measure of protection
issued under article 17(7), be recognized as binding and, unless otherwise provided by the
arbitral tribunal, enforced upon application [in writing] to the competent court,
irrespective of the country in which it was issued, subject to the provisions of this article.
Paragraph (6) of article 17bis should be deleted in its entirety
P 503
P 504
APRIL 2004 WORKING GROUP REPORT A/CN.9/547 (16 APRIL 2004)
III. Draft provision on the recognition and enforcement of interim measures of protection
(for insertion as a new article of the UNCITRAL Model Law on International Commercial
Arbitration, tentatively numbered 17 bis)
12. […] The Working Group proceeded to continue its discussion of article 17 bis [Arts. 17 I–17
H in the final text] which read as follows (as set out in para. 4 of [the October 2003
Secretariat Note,] A/CN.9/WG.II/WP.125 and reproduced in para. 94 of [the December 2003

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 Working Group Report,] A/CN.9/545):
[reprinted supra.]
General remarks
13. The Working Group recalled that, at its thirty-ninth session, it had reached a number of
decisions in respect of draft article 17 bis, namely to delete the bracketed text “in writing”
from draft paragraph (1) [Art. 17 H(1) in the final text] ([December 2003 Working Group
Report,] A/CN.9/545, para. 96), to delete the reference to the words “that satisfies the
requirements of article 17” from draft paragraph (1) and to add another ground on which
the court might refuse to recognize and enforce an interim measure under paragraph (2)
[Art. 17 I (1) in the final text] ([December 2003 Working Group Report,] A/CN.9/545, para. 102
and also paras. 107–110). As well, the Working Group recalled that it had found the
substance of the footnote to paragraph 1 to be generally acceptable ([December 2003
Working Group Report,] A/CN.9/545, para. 97).
14. The view was expressed that the text of draft article 17 bis was problematic and
unnecessarily complex. On that basis, an alternative text was proposed in the following
terms (hereafter “the proposed shorter draft”):
“(1) An interim measure of protection issued by an arbitral tribunal shall be recognized
as binding and [unless otherwise provided by the arbitral tribunal] enforced upon
application to the competent court, irrespective of the country in which it was issued.
“(2) The competent court may refuse to recognize [and] [or] enforce an interim measure of
protection only if:
“(a) Upon the request of the party against whom the measure is directed, the court
is satisfied that:
“(i) The party was not given proper notice of the appointment of an arbitrator
or of the arbitral proceedings;
“(ii) The party against whom the measure is directed was unable to present its
case under the conditions of article 17;
“(iii) The arbitral tribunal was not entitled to order an interim measure of
protection.
P 504
P 505 “(3) The court finds that:
“(a) The interim measure is incompatible with the powers conferred upon the court
by its laws, unless the court decides to reformulate the interim measures in
order to adapt it with its powers.
“(b) The recognition or enforcement of the interim measure would be contrary to the
public policy recognized by the court.”
15. It was stated that the proposed shorter draft provided greater clarity and also avoided
the possibility of creating rules for the recognition and enforcement of interim measures
that were stricter than the rules governing recognition and enforcement of an award on the
merits of the case. Some support was expressed for the proposed shorter draft on the basis
that it was concise and set forth rules that were specifically geared to the recognition and
enforcement of interim measures, as opposed to the text of draft article 17 bis, which
essentially mirrored rules established in the New York Convention in respect of the
recognition and enforcement of arbitral awards.
16. However, reservations were expressed against the general policy reflected in the
proposed shorter draft, which was said to exclude a number of important details that were
set out in draft article 17 bis. It was recalled that the Working Group had earlier agreed
that, given the difference between the characteristics of interim measures and those of
final awards, interim measures ought to be treated differently from awards. It was stated
that one reason for that distinction was that interim measures, unlike final awards, could
be changed during the course of the arbitral proceeding. Thus, in expressing the rules to be
followed by courts in enforcing such measures, the Working Group had agreed that it was
important to accommodate this distinctive temporary character. As well, it was stated that
the proposed shorter draft did not address matters such as security (as addressed in para.
(2) (a) (i) of draft article 17 bis) or the obligation to inform the court of any termination,
suspension or amendment of that interim measure (as addressed by para. (4) [Art. 17 H(2)
of the final draft] of draft article 17 bis).
Paragraph (1) [Art. 17 H(1) in the final text]
17. The Working Group noted that the text in paragraph (1) of draft article 17 bis and the
proposed shorter draft were substantially the same and the former text should be adopted
with the deletions referred to in paragraph 13 above.
Paragraph (2) (a) [Art. 17 I(1) in the final text]
Subparagraph (a) (i)
18. The Working Group recalled that, at its thirty-ninth session, of the two variants included
in the draft subparagraph, preference was expressed for the retention of Variant 2
([December 2003 Working Group Report,] A/CN.9/545, paras. 105–106). It was suggested that
the variant reflected the policy of the Working Group to bring the grounds for refusing

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 enforcement of an interim measure issued by an arbitral tribunal somewhat closer to the
grounds listed in articles 35 and 36 of the Model Law and those listed in article V of the
New York Convention for refusing enforcement of an award (see [October 2003 Secretariat
Note,] A/CN.9/WGII/WP. 125, para. 12 and [June 2003 Working Group Report,] A/CN.9/524,
para. 57).
P 505
P 506
19. It was generally agreed that Variant 2 should be adopted, since that variant contained a
straightforward reference to article 36, instead of replicating the contents of article 36 with
slight changes, as did Variant 1, in a way that was described as likely to generate ambiguity
and confusion. As a matter of drafting, a suggestion was made that the words “for such
refusal” should be deleted, since they could be misinterpreted as referring to a refusal to
recognize or enforce a final arbitral award under article 36. It was generally felt that the
text should indicate more clearly that the reference to refusal was to the refusal to
recognize or enforce an interim measure. To clarify that point it was agreed to delete the
word “such”.
20. A reservation was expressed as to the use of the words “there is a substantial question”
and it was suggested that, for the sake of consistency and clarity it would be better to
mirror the language used elsewhere in draft paragraph 17 bis, namely, “Such refusal is
warranted on the grounds”.
21. A suggestion was made that reference should be made to the question of security which
was expressly addressed in Variant 1 but not in Variant 2. Strong support was expressed for
the idea that, if an order for security made by the arbitral tribunal had not been complied
with, such non-compliance should be a ground for the court refusing enforcement of the
interim measure. It was agreed that the idea should be reflected at an appropriate place
in the text of draft article 17 bis, possibly in paragraph (5) [Art. 17 H(3) in the final text].
Subparagraph (a) (ii)
22. The Working Group considered Variants 1 and 2 of subparagraph (a) (ii). It was pointed
out that Variant 1 contained a mechanism, which was not reflected under article 36 (1) (a)
(ii) of the Model Law, in that it allowed for suspension of the enforcement of an interim
measure until proper notification was made to the parties. However, for the sake of
consistency with the approach already agreed to by the Working Group that the legal
framework for enforcement of interim measures should be similar to that existing for the
enforcement of arbitral awards under article 36 of the Model Law, the Working Group
agreed to retain Variant 2, without modification.
Subparagraph (a) (iii)
23. The Working Group agreed to retain Variant 2 of subparagraph (a) (iii).
24. As the Working Group had agreed to retain reference to article 36 (1) (a) (i), (ii), (iii) and
(iv) of the Model Law under paragraph 2 (a) of draft article 17 bis, the question whether to
merge subparagraphs (i), (ii) and (iii) of that paragraph was considered. It was agreed that
subparagraphs (a) (ii) and (iii) should be merged. The view was expressed that it was
crucial that the power of the arbitral tribunal to decide its own jurisdiction should be
preserved and that courts should not pre-empt determination by the arbitral tribunal of
its competence in the first instance. For that reason, it was suggested that the wording
under Variant 2 of paragraph (a) (i) should be maintained as currently drafted. In that
context, it also was suggested that, when discussing paragraph (3) of draft article 17 bis, the
P 506 Working Group might need to review the various grounds for refusing enforcement set forth
P 507 in article 36 (1) (a) (ii) of the Model Law, to avoid suggesting that the decision made
when a court was called upon to enforce an interim measure (for example, a decision as to
whether the party against whom the interim measure was invoked had received proper
notice of the appointment of the arbitrator) could have an effect beyond the limited
sphere of recognition and enforcement of the interim measure.
Subparagraph (a) (iv)
Distinction between subparagraph (iv) and article 36 (1) (a) (v) of the Model Law
25. A suggestion was made that the text of subparagraph (iv) should be replaced by a
reference to article 36(1) (a) (v) of the Model Law. It was pointed out in response that such a
reference would be misleading, since those two provisions served two different purposes
and referred to two different situations. Article 36 (1) (a) (v) of the Model Law was intended
to refer to the situation where a final award had been set aside or was subject to some
form of appeal under the law under which it was made. By contrast, subparagraph (iv)
reflected the ephemeral nature of an interim measure, which could be suspended or
terminated by the arbitral tribunal itself.
Effect of subparagraph (iv)
26. A question was raised as to whether the effect of subparagraph (iv) would be to allow
the court to set aside an interim measure issued by the arbitral tribunal. In response, it
was recalled that, at its previous session, the Working Group had decided to delete the
general reference to the requirements of article 17 from paragraph (1), precisely to avoid
creating an additional and hidden ground for the refusal to recognize and enforce an
interim measure ([December 2003 Working Group Report,] A/CN.9/545, paras. 101–102). It

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 had been agreed that the enforcing court should not be required or encouraged to
undertake a review de novo of whether the interim measure satisfied the requirements of
article 17 (ibid., para. 99). The Working Group reaffirmed that decision in the context of
subparagraph (iv), which should not be misinterpreted as creating a ground for the court to
set aside the interim measure issued by the arbitral tribunal. It was recalled that the
general purpose of article 17 bis was to establish rules for the recognition and enforcement
of interim measures, but not to parallel article 34 of the Model Law with provisions on
setting aside such interim measures. A suggestion was made that the issue of whether an
interim measure issued in the form of an award could be set aside under article 34 of the
Model Law might require further consideration by the Working Group. The Working Group
took note of that suggestion.
27. In the context of that discussion, it was widely felt that the operation of subparagraph
(iv) should be considered both from the perspective of a country having enacted the Model
Law and from that of a country whose legislation was not based on that model. In
particular, since no direct link existed between articles 17 and 17 bis, no implication
should be made that the operation of article 17 bis would presuppose the existence of a
provision along the lines of article 17. Along the same lines, an effort should be made to
P 507 avoid the implication that court recognition and enforcement of an interim measure
P 508 ordered by an arbitral tribunal would be available only where the interim measure had
been issued by an arbitral tribunal operating under the Model Law.
“Or by order of a competent court”
28. The Working Group proceeded to consider whether the reference to a situation where
an interim measure had been set aside “by a competent court” was necessary. It was
recalled that article 5 of the Model Law provided that “in matters governed by this Law, no
court shall intervene except where so provided in this Law”. Accordingly, legislation in
countries having adopted the Model Law would not empower courts to proceed with a
review of compliance of an interim measure with article 17. However, a widely held view
was that article 17 bis should provide a rule for the situation where the interim measure
was issued under the law of a country that had not adopted the Model Law and that law
permitted courts to review the interim measure issued by the arbitral tribunal for possible
setting aside.
29. One consequence of that situation was that courts operating under article 17 bis might
be faced with the case where an interim measure would be presented for enforcement,
even if it had been set aside by a court in another country. It was widely agreed that, in
such a situation where the interim measure had been set aside in its country of origin, the
courts of the enacting State should be permitted to refuse recognition and enforcement. It
was also agreed that, since article 17 bis provided an exhaustive set of grounds for refusing
recognition and enforcement, that situation should be addressed in that article.
30. Various suggestions were made as to how that situation should be addressed. One
suggestion was made to amend subparagraph (a) (iv) in such a manner that it would not
mention the body which had terminated or suspended the interim measure. Under that
suggestion, subparagraph (iv) would read along the following lines: “The interim measure
has been terminated or suspended”. A concern was expressed that this wording would
encourage forum shopping.
31. Another suggestion, based on the proposed shorter draft, was to delete subparagraph
(iv) altogether. It was explained that there was no need to deal expressly with the
suspension or termination of an interim measure by an arbitral tribunal, since no ground
could be invoked for the recognition and enforcement of such a measure, and no need for
specific provisions on setting aside of the interim measure by a competent court, since
such setting aside would be governed by applicable rules of domestic procedural law. No
support was expressed for that suggestion.
32. Yet another suggestion was that subparagraph (iv) should be amended along the
following lines:
“(iv) The interim measure has been terminated or suspended by the arbitral
tribunal or, where so empowered, by a court of the country in which, or under
the law of which, that interim measure was granted.”
33. Although doubts were expressed about the manner in which the amended text would
P 508 operate in practice, that suggestion was found generally acceptable for continuation of the
P 509 discussion at a later stage. It was observed that the words “or under the law of which,
that interim measure was granted” might need to be replaced by a reference to the
country of the seat of the arbitral tribunal.
Proposals for including additional provisions under paragraph (2) (a)
Arbitral tribunal not entitled to issue an interim measure
34. At its previous session, the Working Group had taken note of a proposal to add a ground
on which the court might refuse to recognize and enforce an interim measure, based on the
arbitral tribunal being prohibited from issuing the interim measure, as a result of either
the agreement of the parties or the law of the country where the arbitration took place
([December 2003 Working Group Report,] A/CN.9/545, para. 107). At the current session,

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 support was expressed for retaining such an additional ground. Along the same lines, the
proposed shorter draft was considered. In support of retaining a provision along those
lines, it was stated that the addition was necessary as a result of the deletion of the
reference to the requirements of article 17 in paragraph (1). It was also stated that the issue
was not sufficiently covered by the reference to article 36 (1) (a) (iv) of the Model Law,
which referred to procedural issues, and not to the lex arbitri. The proposal was objected to
on the grounds that it could open the door to a review on the merits of the case by courts.
Preference was expressed for not including the proposed additional wording, since the
issue was considered to be sufficiently covered by the reference to article 36(1) (a) and the
choice of Variant 2 under subparagraphs (a) (i), (ii) and (iii).
Jurisdictional immunities of States
35. It was proposed to consider inserting a provision on the issue of jurisdictional
immunities of States and their property, based on a proposal made during the previous
session in the context of the discussion of article 17 ([December 2003 Working Group
Report,] A/CN.9/545, para. 51[, reprinted in the section on Arts. 17 – 17 G, p. 289 supra]). It was
observed that this question might need to be considered more broadly, for example in the
context of possible future work by UNCITRAL, but that it should not be debated in the
limited context of interim measures.
Paragraph (2) (b) [Art. 17 I(1) in the final text]
Subparagraph (b) (i)
36. The Working Group found the substance of subparagraph (b) (i) to be generally
acceptable.
Subparagraph (b) (ii)
37. The Working Group proceeded to consider the two Variants contained in paragraph (b)
(ii). A widely shared view was that Variant 2 should be retained, since it was consistent with
the approach adopted under paragraph (2) (a). It was pointed out that Variant 1 contained
wording that differed slightly from that of article 36 (1) (b) (ii) of the Model Law in a manner
that might be difficult to interpret. For example, subparagraph (b) (ii) referred to the
P 509 “public policy recognised by the court”, whereas article 36 (1) (b) (ii) of the Model Law
P 510 referred to the “public policy of this State”. It was said that referring to the “public
policy of that State” was preferable to a reference to “public policy recognised by the
court”, as this latter wording might be understood as conferring excessive powers upon the
court.
38. The question was raised whether reference should be made to both subparagraphs (i)
and (ii) of article 36 (1) (b) of the Model Law, or whether the matters covered under these
two provisions, namely arbitrability and public policy, should receive separate treatment
under article 17 bis.
39. A suggestion was made that the reference to subparagraph (i) of article 36 (1) (b) of the
Model Law should be excluded from paragraph (b) (ii). In support of that suggestion, it was
said that, at the time when enforcement of an interim measure was sought, a court might
not be able to fully determine the subject matter of the dispute. Therefore, allowing a
court to make a decision on the arbitrability of the subject matter in dispute might not be
appropriate at that stage of the procedure. However, it was said that, when the matter of
the dispute was clearly established, and when that subject matter was not capable of
settlement by arbitration under the law of the enforcing State, it would be inconsistent for
State courts in that context, to enforce such an interim measure. Therefore, it was
proposed that, instead of removing any reference to subparagraph (i) of article 36 (1) (b) of
the Model Law, Variant 2 should be revised along the lines of paragraph 2 (a) (i), i.e. “There
is a substantial question relating to any grounds for such refusal set forth in article 36 (1)
(b) (i) or (ii)”.
40. The view was expressed that the concerns expressed about determining arbitrability at
the point of enforcement was already addressed by paragraph (3), which ensured that any
determination by a court to enforce an interim measure was effective only for the purpose
of the application to recognize and enforce the interim measure.
41. After discussion, the Working Group adopted the text of Variant 2 without modification,
subject to further consideration of the wording used in relation to references to article 36
(1) (a) and (b) of the Model Law in paragraphs (2) (a) and (b) after the Working Group had
completed its review of article 17 bis.
42. At the close of the discussion, the Working Group took note of the view that, in any case,
the reference in subparagraph (ii) to article 36 (1) (b) (i) of the Model Law should not be
interpreted as obliging the court to request information on the subject matter in dispute to
determine questions of arbitrability.
43. It was observed that, in paragraph (2), the Working Group had maintained reference to
article 36 (1) of the Model Law and that that article spoke in terms of awards. Given that
the Working Group had taken the decision not to define the form in which an interim
measure should be made, a suggestion was made to clarify that the term “award” under
article 36 (1) should be interpreted as covering all types of interim measures, with no
implied restriction that the grounds in article 36 (1) applied only to those interim

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 measures issued in the form of an award.
P 510
P 511
44. It was said that in preparing a revised draft for further consideration by the Working
Group, the Secretariat should seek to produce a consolidated text with wording in harmony
with that used in the Model Law. For example, it was said that in the phrase “the powers
conferred upon the court by its laws” under paragraph 2 (b) (i), the reference to “by its law”
should be replaced by a reference to either “the law” or “procedural rules”.
Possible additional grounds for refusing recognition and enforcement
45. The Working Group considered whether any other grounds for refusing recognition and
enforcement of an interim measure should be added under paragraph (2). The Working
Group recalled the suggestion that, if an order for security made by the arbitral tribunal
had not been complied with, such noncompliance should be a ground for the court to
refuse enforcement of the interim measure (see above, para. 21). Strong support was
expressed for that suggestion. It was recalled that the consequences of non-compliance
with an order for security should be reflected at an appropriate place in the text of draft
article 17 bis.
46. Against including non-compliance with an injunction to provide security to the list
contained in paragraph (2), it was said that article 17 (4) of the Model Law ensured that, if
an arbitral tribunal decided to order that the party seeking the measure provided security,
such condition should be interpreted as a condition precedent to the granting of the
measure.
47. It was suggested that this interpretation of article 17 (4) was not consistent with the
practical approach that an arbitral tribunal might adopt in ordering an interim measure. It
was said that whilst an interim measure might need to take immediate effect, the arbitral
tribunal could, in the order for security, allow a period of time for the requesting party to
organize the provision of the security. To address that practical reality, it was suggested
that the provision of security should be interpreted as encompassing a condition
subsequent under article 17 (4), and not merely a condition precedent.
48. It was said that, where the interim measure had been granted, but the security had not
been provided as requested by the arbitral tribunal, the current draft of paragraph (2) of
article 17 bis did not allow a court to refuse recognition and enforcement. It was suggested
that this matter should be addressed under both paragraph (4) of draft article 17 and
paragraph (2) of article 17 bis, as these two articles might be applied independently by
national courts.
Paragraph (3) [Art. 17 I(2) in the final text]
49. The Working Group found the substance of paragraph (3) to be generally acceptable.
50. It was suggested that Variant C of paragraph (5), which expressed the important
principle that the court where enforcement of the interim measure was sought should not
review the substance of the interim measure, should be included in paragraph (3). The
Working Group agreed to further consider this matter when reviewing paragraph (5).
P 511
P 512
Paragraph (4) [Art. 17 H(2) in the final text]
51. It was recalled that paragraph (4) was based on the principle that a party seeking
enforcement of an interim measure should be obliged to inform the court of any
termination, suspension or amendment of that measure. It was recalled that broad support
had been expressed by the Working Group for that principle at its thirty-eighth session
([June 2003 Working Group Report,] A/CN.9/524, paras. 35–39).
52. The relevance of the paragraph was questioned. It was suggested that if the interim
measure had been suspended or terminated, the enforcement procedure itself no longer
served any purpose. Instead of requesting the party who had sought or obtained the
interim measure to inform the court of any termination, suspension or amendment of the
interim measure, it was suggested that it would be preferable to request a court not to
enforce such an interim measure. No support was expressed for that suggestion.
53. The Working Group found the substance of paragraph (4) to be generally acceptable. As
a matter of drafting, the view was expressed that there appeared to be a discrepancy
between the language used in paragraph (4), which referred to “termination, suspension or
amendment”, and the language used earlier in the text in paragraph (2) (a) (iv), which
referred only to “terminated or suspended”. It was suggested that the draft provision
should be revised to achieve greater consistency in the overall text. It was further
suggested that the omission of the term “recognition” from paragraph (4) appeared to be
inconsistent with the language used in other provisions of the text. The Working Group
agreed that these matters of drafting should be further considered in the final stages of the
preparation of draft article 17 bis.
Paragraph (5) [Art. 17 H(3) in the final text]
54. The Working Group recalled that paragraph (5) dealt with the important question of
whether, and to what extent, a court, when faced with an application to enforce an interim

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 measure, ought to be able to order the applicant to provide security. That provision had
been the subject of discussion at its thirty-eighth session ([June 2003 Working Group
Report,] A/CN.9/524, paras. 72–75). It was further recalled that the four variants, Variants A
to D, reflected the differing views expressed at its thirty-eighth session on that question.
Variants A and B
55. The view was expressed that Variant B and the second bracketed text of Variant A
appeared to allow a court to second-guess an arbitral tribunal's orders in respect of
security. For that reason, Variant A and the first bracketed text, namely, “unless the
tribunal had already made an order with respect to security for costs”, was to be preferred.
Broad support was expressed for that view.
56. It was stated that, as a general principle, a court should not have the power to review
the merits of a decision taken by an arbitral tribunal as to whether or not security should
P 512 be ordered in respect of the granting of an interim measure. However, it was suggested
P 513 that, as presently drafted, the first bracketed text could be understood to suggest that,
if the tribunal had not considered it appropriate to issue an order for security, the court
could still review that decision. It was said that if the policy of the Working Group was to
entirely exclude the possibility of a court undertaking a review of a tribunal's decision to
grant or not grant security, then the language in Variant A needed to be clarified. To
achieve such clarification, it was suggested that the words “an order” be replaced by the
words “a determination” to emphasize that a court should not second-guess a tribunal's
determination on whether or not to grant security. That suggestion was adopted.
57. A suggestion was made that the possibility for the court to review ex officio the question
of whether or not to grant security should not be completely excluded. In that respect, it
was said that the approach taken in the second bracketed text of Variant A, which allowed
the court to make an order with respect to security for costs where it found that the order
in that respect was “inappropriate or insufficient in the circumstances” was to be
preferred. It was said that inclusion of this power for courts could in fact facilitate the
enforcement of interim measures and also could provide courts with an additional
opportunity to take account of the interests of third parties in making orders with respect
to security. A contrary suggestion was that the text should clarify that the order to provide
security should be made “at the request of the party against whom the interim measure is
invoked” or “on the application of the party against whom the interim measure is directed
or who is affected by the measure”. After discussion, those suggestions were not adopted
by the Working Group.
“Security for costs”
58. It was agreed that the term “security for costs” was too narrow and should, consistently
with the approach taken in draft article 17, be replaced by a reference to security” or
“appropriate security” as provided in paragraph (4) of draft article 17.
“The other party”
59. It was stated that there was uncertainty in the present text of paragraph (5) as to which
party was referred to as “the other party”. It was explained that, in the context of certain
situations involving multi-party arbitration, the party ordered to provide security might be
distinct from the party requesting the interim measure. However, in view of the fact that, in
most conceivable cases, the party ordered to provide security would be the party
requesting the interim measure, the text should refer more clearly to the requesting party.
It was proposed that the words “the other party” should be replaced by “the requesting
party”. After discussion, the Working Group adopted that proposal.
Variant C
60. It was stated that Variant C supported the general philosophy that the grounds for
refusing to recognize or enforce an interim measure should be restricted to procedural
matters and exclude the possibility of the court reviewing the substance of the measure de
P 513 novo. It was suggested that Variant C dealt with a broader issue than security for costs and
P 514 should therefore be located in a separate article (see above, para. 50). After discussion,
the Working Group decided that wording along the lines of Variant C should be placed as a
second sentence in paragraph (3).
Variant D
61. It was stated that Variant D, being limited to orders necessary to protect the rights of
third parties, was too narrow. It was suggested that interim measures ordered by an
arbitral tribunal were only binding on the parties to the arbitral proceedings, whereas a
court decision could have wider application and apply to third parties. It was suggested
that Variant D dealt with an important issue of third-party protection, which could perhaps
be built into Variant A. It was agreed that the Secretariat should consider an appropriate
location to reflect the principle set forth in Variant D.
Paragraph (6)
62. It was recalled by the Working Group that, given the potential adverse impact of an ex
parte measure against the affected party, empowering an arbitral tribunal to issue such an
order would only be acceptable if strict conditions were imposed to ensure that the power
was not subject to abuse ([November 2002 Working Group Report,] A/CN.9/523, para. 17).

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 63. Bearing that concern in mind, a proposed revised draft for paragraph (6) was made as
follows:
“An interim measure issued by an arbitral tribunal under standards
substantially equivalent to those set forth in paragraph (7) of article 17 will not
be denied enforcement pursuant to paragraph 2 (a) (ii) of this article because of
the measure's ex parte status, provided that any court action to enforce such
measure must be issued within twenty (20) days after the date on which the
tribunal issued the measure”.
64. It was explained that the term “substantially similar” was proposed in order to take
into account the slight variations that countries might introduce when adopting the Model
Law. It was highlighted that the time frame of twenty days provided in the proposed draft
related to the issuance of the court action to enforce the measure after the arbitral
tribunal made the decision, and not, as in Variant X of the current draft, to the time limit
within which a party might request a court to enforce an interim measure.
65. Among the Variants proposed for consideration by the Working Group in the current
draft, Variant X was the preferred option. Support was also expressed for the proposed
revised draft. The references to the safeguards laid down under article 17 were considered
crucial by the Working Group.
66. Given the temporary nature of an ex parte interim measure, which would either lapse
after twenty days or be converted into an inter partes measure, the necessity for including
specific provisions for enforcement of ex parte interim measures contained in the proposal
was questioned.
P 514
P 515
67. After discussion, the Working Group decided that the discussion on paragraph (6) would
be continued on the basis of the proposed revised draft, which would be placed in square
brackets, after the review of draft article 17 had been completed.
JULY 2004 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.131 (26 JULY 2004)
II. Draft provision on the recognition and enforcement of interim measures of protection
(for insertion as a new article of the UNCITRAL Model Law on International Commercial
Arbitration, tentatively numbered 17 bis)
A. Text of draft article 17 bis [Arts. 17 H –17 I in the final text]
46. To facilitate the resumption of discussions, the following text sets out a newly revised
version of the provision on the recognition and enforcement of interim measures of
protection, based on the discussions and decisions made by the Working Group at its
fortieth session ([April 2004 Working Group Report,] A/CN.9/547, paras. 12–67), (hereinafter
referred to as “draft article 17 bis”):
“(1) [Art. 17 H(1) in the final text] An interim measure of protection issued by an arbitral
tribunal shall be recognized as binding and, unless otherwise provided by the
arbitral tribunal, enforced upon application to the competent court, irrespective of
the country in which it was issued, subject to the provisions of this article. (*)
“(2) [Art. 17 I(1) in the final text] The court may refuse to recognize or enforce an interim
measure of protection, only:
“(a) At the request of the party against whom it is invoked, if the court is satisfied
that:
“(i) [There is a substantial question relating to any grounds for refusal] [Such
refusal is warranted on the grounds] set forth in article 36, paragraphs (1)
(a) (i), (iii) or (iv); or
“(ii) Such refusal is warranted on the grounds set forth in article 36, paragraph
(1) (a) (ii); or
[(iii) The requirement to provide appropriate security in connection with the
interim measure issued by the arbitral tribunal has not been complied
with;] or
“(iv) The interim measure has been terminated or suspended by the arbitral
tribunal or, where so empowered, by the court of the State in which, [or
under the law of which, that interim measure was granted] [the arbitration
takes place]; or
P 515
P 516
“(b) if the court finds that:
“(i) The interim measure is incompatible with the powers conferred upon the
court by the law, unless the court decides to reformulate the interim
measure to the extent necessary to adapt it to its own powers and
procedures for the purposes of enforcing that interim measure and
without modifying its substance; or
“(ii) Any of the grounds set forth in article 36, paragraphs (1) (b) (i) or (ii) apply
to the recognition and enforcement of the interim measure.

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 “(3) [Art. 17 I(2) in the final text] Any determination made by the court on any ground in
paragraph (2) of this article shall be effective only for the purposes of the application
to recognize and enforce the interim measure of protection. The court where
recognition or enforcement is sought shall not, in exercising that power, undertake a
review of the substance of the interim measure.
“(4) [Art. 17 H(2) in the final text] The party who is seeking or has obtained recognition or
enforcement of an interim measure of protection shall promptly inform the court of
any termination, suspension or modification of that interim measure.
“(5) [Art. 17 H(3) in the final text] The court where recognition or enforcement is sought
may, if it considers it proper, order the requesting party to provide appropriate
security, unless the arbitral tribunal has already made a determination with respect
to security, or where such an order is necessary to protect the rights of third parties.
“(6) [An interim measure issued by an arbitral tribunal under standards substantially
equivalent to those set forth in paragraph (7) of article 17 shall not be denied
enforcement pursuant to paragraph 2 (a) (ii) of this article because of the measure's
ex parte status, provided that any court action to enforce such measure must be
issued within twenty (20) days after the date on which the arbitral tribunal issued the
measure.]”
B. Matters for further consideration
47. At its fortieth session, the Working Group agreed to give further consideration to the
following matters of substance relating to draft article 17 bis.
Relationship between draft article 17 bis and articles 34–36 of the Model Law
Subparagraph (a) of paragraph (2) and burden of proof under articles 34 and 36 of the Model
Law
48. The draft paragraph (2) reflects the decision of the Working Group that no provision
should be made regarding the allocation of the burden of proof and that that matter
should be left to applicable law ([June 2003 Working Group Report,] A/CN.9/524, paras. 35–
36, 42, 58 and 60). The current text, which omits any reference to the burden of proof,
appears to be inconsistent with the approach taken in articles 34 and 36 of the Model Law.
P 516 If so, this might lead to different interpretations such as imposing a burden of proof on the
P 517 party asking for enforcement or implying that it was for the arbitral tribunal to verify
these requirements ex officio. If the Working Group agrees that this different wording is
justified given the different objectives of draft article 17 bis as compared to articles 34 and
36 of the Model Law, the Working Group should seek to elaborate the reasons for this
difference in drafting to avoid uncertainty in interpretation.
Paragraph (2) of article 17 bis and use of the term “awards” under articles 34, 35 (2) and 36 (1)
49. It is recalled that, in paragraph (2), the Working Group had maintained reference to
article 36 (1) of the Model Law and that that article spoke in terms of awards. Given that
the Working Group had taken the decision not to define the form in which an interim
measure should be made (see above, paragraph 10), the Working Group may wish to further
consider whether it is necessary to clarify that the term “award” under article 36 (1) should
be interpreted as covering all types of interim measures, with no implied restriction that
the grounds in article 36 (1) applied only to those interim measures issued in the form of an
award ([April 2004 Working Group Report,] A/CN.9/547, para. 43). The Working Group may
wish to consider whether it is appropriate to proceed with the same clarification in
relation to articles 34 and 35 (2) of the Model Law (see also below, paragraphs 50 and 51).
Effect of subparagraph (a) (iv) of paragraph (2) and article 34
50. For the sake of uniform interpretation of the interplay between draft article 17 bis and
article 34 of the Model Law, the Working Group may wish to clarify the issue of whether an
interim measure issued in the form of an award could be set aside under article 34 of the
Model Law ([April 2004 Working Group Report,] A/CN.9/547, para. 26). It is recalled that that
question was raised at the fortieth session of the Working Group in the context of a
discussion on whether the effect of subparagraph (iv) would be to allow the court to set
aside an interim measure issued by the arbitral tribunal. In response, it was recalled that,
at its thirty-ninth session, the Working Group had decided to delete the general reference
to the requirements of article 17 from paragraph (1), precisely to avoid creating an
additional and hidden ground for the refusal to recognize and enforce an interim measure
([December 2003 Working Group Report,] A/CN.9/545, paras. 101–102). The Working Group
agreed that subparagraph (iv) should not be misinterpreted as creating a ground for the
court to set aside the interim measure issued by the arbitral tribunal. It was recalled that
the general purpose of article 17 bis was to establish rules for the recognition and
enforcement of interim measures, but not to parallel article 34 of the Model Law with
provisions on setting aside such interim measures.
Article 35 (2)
51. Article 35 (2) of the Model Law provides that “the party relying on an award or applying
for its enforcement shall supply the duly authenticated original award or a duly certified
copy thereof and the original arbitration agreement … or a duly certified copy thereof”. As
well, the article provides that if “the award or agreement is not made in an official
P 517

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 P 517
P 518 language of this State, the party shall supply a duly certified translation thereof into such
language.” At its thirty-eighth session, the Working Group generally agreed that
“unnecessary deviation from the text of articles 35 and 36 should be avoided” ([June 2003
Working Group Report,] A/CN.9/524, para. 57). On that basis, the Working Group may wish to
consider whether language along the lines of article 35 (2) should be included in the
current text.
Provision of security and 1954 Hague Convention on Civil Procedure
Paragraph (5)
52. The Working Group may wish to further consider the issue of security, which includes
security for costs ordered by courts, in the light of the Hague Conventions on Civil
Procedure of 1905 and 1954, which prohibit security for costs being required from nationals
of signatory States. Article 17 of the 1954 Hague Convention on Civil Procedure provides as
follows:
“No bond, nor deposit, under any denomination whatsoever, may be imposed
on the ground, whether of their foreign character or of absence of domicile or
residence in the country, upon nationals of one of the contracting States, having
their domicile within one of such States, who are plaintiffs or intervene in the
tribunals of another of such States.
“The same rule applies to payments, which may be required of plaintiffs or
interveners to guarantee judicial costs.
“Conventions by which contracting States may have stipulated on behalf of their
nationals exemption from security for costs and damages in proceedings or
from payment of judicial costs irrespective of domicile, shall continue to
apply.”
Paragraph (6)
53. Given the potential adverse impact of an ex parte measure against the affected party,
the Working Group agreed that empowering an arbitral tribunal to issue such an order
would only be acceptable if strict conditions were imposed to ensure that the power was
not subject to abuse ([April 2004 Working Group Report,] A/CN.9/547, para. 62; for earlier
discussion on that matter, see [November 2002 Working Group Report,] A/CN.9/523, para.
17). Bearing that concern in mind, a proposed draft for paragraph (6) was made and, as
decided by the Working Group, placed in square brackets for further consideration, after
the review of draft article 17 had been completed ([April 2004 Working Group Report,]
A/CN.9/547, paras. 62–67).
C. Notes on draft article 17 bis
Paragraph (1) (17)
54. The draft paragraph (1) reflects the decision of the Working Group ([April 2004 Working
Group Report,] A/CN.9/547, paras. 13 and 17) to delete the bracketed text “in writing” (for
earlier discussion on that matter, see [December 2003 Working Group Report,] A/CN.9/545,
para. 96), and the reference to the words “that satisfies the requirements of article 17”. (18)
P 518
P 519
55. It is recalled that the Working Group had found the substance of the footnote to
paragraph 1 to be generally acceptable ([April 2004 Working Group Report,] A/CN.9/547,
para. 13).
Paragraph (2)
Chapeau—”[and][or]”—”only”
56. For the sake of consistency with article 36 of the Model Law, and also to better reflect
the options available to the court, the word “or”, instead of “and”, has been retained; in
addition, the word “only” has been placed at the end of the chapeau. The Working Group
may wish to confirm whether it agrees with these modifications.
Subparagraph (a)(i)—Reference to article 36 of the Model Law
57. As agreed by the Working Group, subparagraph (a) (i) contains a straightforward
reference to article 36, instead of replicating the contents of article 36 ([April 2004 Working
Group Report,] A/CN.9/547, paras. 18–19). (19)
“such refusal”
58. The word “such”, which appeared in the previous draft (as contained in document
A/CN.9/547, para. 12) before the word “refusal”, has been deleted to indicate more clearly
that the reference to refusal was to the refusal to recognize or enforce an interim measure,
and does not refer to the refusal to recognize or enforce a final award under article 36
([April 2004 Working Group Report,] A/CN.9/547, para. 19).
“[there is a substantial question]—[such refusal is warranted on the grounds]”
59. The Working Group may wish to further consider whether the words “there is a
substantial question” should be replaced by the words “Such refusal is warranted on the

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 grounds” for the sake of consistency with the language used elsewhere in draft paragraph
17 bis or whether they should be maintained as these words indicate the importance of the
principle that courts should not pre-empt a determination by the arbitral tribunal as to its
competence in the first instance ([April 2004 Working Group Report,] A/CN.9/547, para. 20).
Subparagraph (a) (ii)
60. As the Working Group agreed to retain Variant 2, without modification ([April 2004
Working Group Report,] A/CN.9/547, para. 22), subparagraphs (ii) and (iii) have been merged
([April 2004 Working Group Report,] A/CN.9/547, para. 24).
P 519
P 520
Subparagraph (a) (iii)
61. The Working Group may wish to consider whether subparagraph (a) (iii), which is a new
subparagraph, addresses the concern of the Working Group that, if an order for security
made by the arbitral tribunal had not been complied with, such non-compliance should be
a ground for the court to refuse enforcement of the interim measure ([April 2004 Working
Group Report,] A/CN.9/547, paras. 21, 45-48).
Subparagraph (a) (iv) (20) —”or by order of a competent court”
62. It is recalled that, after considering whether the reference to a situation where an
interim measure had been set aside “by a competent court” was necessary, the Working
Group agreed that courts of a State that has enacted the Model Law shall be allowed to
refuse recognition and enforcement of an interim measure set aside by a court in another
country ([April 2004 Working Group Report,] A/CN.9/547, paras. 28-33). The draft reflects:
– The decision of the Working Group to retain the revised wording proposed during the
fortieth session of the Working Group for continuation of the discussion at a later
stage ([April 2004 Working Group Report,] A/CN.9/547, para. 33); the word “country” in
the phrase “by the court of the country in which,” has been replaced by the word
“State” for the sake of consistency with the language used in the Model Law; and
– The observation that the words “or under the law of which, that interim measure was
granted” might need to be replaced by a reference to the country of the seat of the
arbitral tribunal ([April 2004 Working Group Report,] A/CN.9/547, para. 33).
Subparagraph (b) (i) (21)
63. It is recalled that the Working Group found the substance of subparagraph (b) (i) to be
generally acceptable ([April 2004 Working Group Report,] A/CN.9/547, para. 36). As a matter
of drafting, the word “requested” appearing after the opening words “the interim measure”
and before the words “is incompatible” in the previous draft contained in [the April 2004
Working Group Report,] A/CN.9/547, paragraph 12 has been deleted, and the Working Group
may wish to confirm whether it agrees with that deletion.
64. As a matter of drafting, the reference to “by its law” has been replaced by a reference
to “the law” ([April 2004 Working Group Report,] A/CN.9/547, para. 44).
Subparagraph (b) (ii) (22)
65. The draft subparagraph (b) (ii) reflects the decision of the Working Group to retain
P 520 Variant 2 of the previous draft (as contained in [the April 2004 Working Group Report,]
P 521 document A/CN.9/547, para. 12), without modification, subject to further consideration
of the wording used in relation to references to article 36 (1) (a) and (b) of the Model Law in
paragraphs (2) (a) and (b) after the Working Group had completed its review of article 17 bis
([April 2004 Working Group Report,] A/CN.9/547, para. 41, and also paras. 37–42).
Paragraph (3) (23)
66. The first sentence of paragraph (3) has been adopted by the Working Group without
modification from the previous draft as contained in [the April 2004 Working Group Report,]
A/CN.9/547, paragraph 12 ([April 2004 Working Group Report,] A/CN.9/547, para. 49).
67. The second sentence of this paragraph reflects the suggestion that Variant C of
paragraph (5) of the previous draft as contained in [the April 2004 Working Group Report,]
A/CN.9/547, paragraph 12, which expressed the important principle that the court, where
enforcement of the interim measure was sought, should not review the substance of the
interim measure, should be included in paragraph (3) ([April 2004 Working Group Report,]
A/CN.9/547, paras. 50 and 60).
Paragraph (4) (24)
68. For the sake of consistency with the language used in articles 17 and 17 bis, the word
“amendment” has been replaced by the word “modification” ([April 2004 Working Group
Report,] A/CN.9/547, paras. 53 and 101[, para. 101 reprinted in the section on Arts. 17 – 17 G, p.
332 supra]; for earlier discussion on these words, see [December 2003 Working Group
Report,] A/CN.9/545, para. 35[, reprinted in the section on Arts. 17 – 17 G, p. 285 supra]) and
the words “recognition or” have been added before the word “enforcement” ([April 2004
Working Group Report,] A/CN.9/547, para. 53).
Paragraph (5) (25)

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 69. It is recalled that, of the four variants proposed in the previous draft as contained in
[the April 2004 Working Group Report,] A/CN.9/547, paragraph 12, which reflected the
differing views expressed by the Working Group at its thirty-eighth session on that
question, the Working Group expressed its preference for the retention of Variant A and the
first bracketed text namely, “unless the tribunal had already made an order with respect
to security for costs” ([April 2004 Working Group Report,] A/CN.9/547, para. 55).
“determination”
P 521 70. To clarify that the possibility of a court undertaking a review of a tribunal's decision to
P 522 grant or not grant security was entirely excluded, the words “an order”, which were
contained in Variant A have been replaced by the words “a determination” ([April 2004
Working Group Report,] A/CN.9/547, para. 56).
“security for costs”
71. The Working Group agreed that the term “security for costs” was considered as too
narrow and it has therefore been replaced by a reference to “appropriate security” as
provided in paragraph (4) of draft article 17 ([April 2004 Working Group Report,] A/CN.9/547,
para. 58).
“the other party”
72. In accordance with the decision of the Working Group, the words “the other party” have
been replaced by the words “the requesting party”, in order to clarify that, in most
conceivable cases, the party ordered to provide security would be the party requesting the
interim measure ([April 2004 Working Group Report,] A/CN.9/547, para. 59).
“or where such an order is necessary to protect the rights of third parties”
73. The words “or where such an order is necessary to protect the rights of third parties”
have been added at the end of paragraph (5) in accordance with the decision of the
Working Group that Variant D of the previous draft as contained in [the April 2004 Working
Group Report,] A/CN.9/547, paragraph 12, which dealt with an important issue of third party
protection, could be built into Variant A
([April 2004 Working Group Report,] A/CN.9/547, para. 61).
JANUARY 2005 WORKING GROUP REPORT A/CN.9/573 (27 JANUARY 2005)
IV. Draft provision on the recognition and enforcement of interim measures of protection
(for insertion as a new article of the UNCITRAL Model Law on International Commercial
Arbitration, tentatively numbered 17 bis)
70. The Working Group considered the text of draft article 17 bis [Arts. 17 H –17 I in the final
text], as reproduced in [the July 2004 Secretariat Note,] A/CN.9/WG.II/WP.131, para. 46.
Paragraph 1 [Art. 17 H(1) in the final text]
71. The Working Group adopted paragraph 1 without change.
Paragraph 2 [Art. 17 I(1) in the final text] (a)—Chapeau
72. A proposal was made that the chapeau of paragraph 2 (a) should be modified to allow
both the party against whom the measure was invoked and interested third parties to
request a State court to refuse to recognize or enforce an interim measure. To that effect, it
was proposed that the words “or on behalf” should be added in the chapeau of paragraph 2
(a) after the phrase “At the request”. With a view to alleviating a concern raised that the
term “on behalf of” could be interpreted as applying only to representatives of the parties
P 522 rather than to third parties and that it might not fully address the question of protection of
P 523 third party rights, another proposal was that the following language could be inserted in
paragraph (2): “Nothing in this provision shall diminish the right of any affected third party
to raise any defences, available to it under the law of the State court”. Those proposals
were objected to on the grounds that draft articles 17 [Arts. 17 – 17 G in the final text] and 17
bis dealt only with parties to arbitration, and not with third parties and that the proposed
modification would add an unnecessary level of complexity into the provision.
Nevertheless, taking account of the fact that, in practice, third parties (e.g., the custodian
of assets of a party against whom an interim measure was directed) might be involved in
the execution of an interim measure, it was decided that the issue might be revisited at
the time of the discussion on draft article 17 ter [Art. 17 J in the final text].
Burden of proof
73. A concern was expressed that paragraph 2 (a) did not specify who should bear the
burden of proof in satisfying the arbitral tribunal that either there was a substantial
question relating to a ground for refusal or refusal was warranted. It was stated that the
approach to the issue of burden of proof was different from that taken in article 36 (1) (a) of
the Model Law. It was further stated that, if the Working Group decided not to modify the
chapeau of paragraph 2 (a) to restore consistency with article 36 (1) (a), appropriate
explanations should be provided to avoid confusion or diverging interpretations as to who
should bear the burden of proof. It was pointed out, in response, that the chapeau of
paragraph 2 (a) reflected a decision made by the Working Group at its previous sessions
that no provision should be made regarding the allocation of the burden of proof and that
that matter should be left to applicable domestic law ([June 2003 Working Group Report,]

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 A/CN.9/524, paras. 35–36, 42, 58 and 60).
Subparagraphs (a) (i) and (a) (ii)
“[There is a substantial question relating to any grounds for refusal] [Such refusal is
warranted on the grounds]”
74. It was recalled that the first bracketed text had been included to meet the view that
the grounds listed in subparagraph (2) (a) (i) were difficult to assess in any definitive way at
the preliminary point when an interim measure would be issued. It was pointed out that
the formulation contained in the first bracketed text did provide a level of flexibility,
taking account of the fact that the decision of the State court regarding enforcement of the
interim measure might need to be reconsidered at the final stage of the proceeding. By
contrast, the phrase in the second bracketed text was stated to provide a higher threshold
to be met in order to justify refusal and more clearly emphasized that recognition and
enforcement should be the rule rather than the exception. On that basis, the Working
Group agreed to retain the language contained in the second bracket and to combine
subparagraphs (i) and (ii) as follows: “such refusal is warranted on the grounds set forth in
article 36, paragraphs (1) (a) (i), (ii), (iii) or (iv); or”.
P 523
P 524
Subparagraph (a) (iii)
75. A proposal was made to delete subparagraph (iii) on the basis of an earlier decision of
the Working Group that the provision of security under draft article 17 (4) [Art. 17 E in the
final text] would not in all cases be a condition precedent to the granting of an interim
measure and that draft article 17 bis (5) [Art. 17 H(3) in the final text] already permitted
State courts to order the requesting party to provide appropriate security. However, it was
widely felt that that provision should be retained, as it constituted an important safeguard
for the party against whom the measure was directed. It was further noted that
subparagraph (iii) remained necessary in light of the fact that draft article 17 bis (5) only
applied if the arbitral tribunal had not made a determination on the provision of security,
whereas subparagraph (iii) dealt with the circumstances where an arbitral tribunal had
made such a determination, but the determination had not been complied with.
76. It was pointed out that subparagraph (iii) only referred to the case of noncompliance
with the requirement to provide appropriate security and did not fully reflect the fact that
the arbitral tribunal had discretion not to require any security or that the security might
have been ordered and its provision deferred. In order to better encompass those
situations, a proposal was made to amend subparagraph (iii) either by replacing the words
“The requirement” with “Any requirement” or by replacing the words “The requirement to
provide appropriate security” with “The arbitral tribunal's order with respect to the
provision of security”. It was suggested that the term “order” in that proposal should be
changed to refer to “decision” to reflect the possibility that security could be dealt with in
an award. After discussion, the substance of those proposals was adopted and the
Secretariat was requested to prepare revised wording.
Subparagraph (a) (iv)
77. It was proposed that subparagraph (iv) should be deleted because it was unnecessary
to deal with the suspension or termination of an interim measure by an arbitral tribunal,
since no ground could be invoked for the recognition or enforcement of such a measure. In
addition, it was stated that there was no need for a specific provision on the suspension or
termination of an interim measure by a State court since such suspension or termination
might not be permitted under many legal systems. No support was expressed for the
proposed deletion.
[or under the law of which, that interim measure was granted] [the arbitration takes place]
78. The Working Group considered the bracketed texts proposed under subparagraph (iv).
It was observed that the first bracketed text contained language similar to article 36 (1) (a)
(v) and article V of the New York Convention and that language had raised diverging
interpretations by State courts, in particular as to whether the “law” referred to was the
procedural or substantive law of the State concerned. However, it was considered
preferable to retain consistent language.
P 524 79. To achieve consistency between draft article 17 bis (2) (iv) and article 36 (1) (a) (v) of the
P 525 Model Law, an alternative proposal was made to keep the two bracketed texts, but
reverse their order. After discussion, that proposal was adopted.
Setting aside
80. In keeping with the language of article 36, it was proposed to add, after the word
“suspended”, the term “set aside”, on the basis that, in some jurisdictions, that term had a
different meaning than the term “termination”. In response, it was recalled that the
purpose of draft article 17 bis was to establish rules for the recognition and enforcement of
interim measures but not to parallel article 34 of the Model Law. With a view to avoiding
such a reference to “setting aside”, it was proposed that the words “or, where so
empowered, by the court of the State in which, [or under the law of which, that interim
measure was granted] [the arbitration takes place]” should be deleted. Those two
proposals were noted by the Working Group.

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 Additional provision
81. A proposal was made to add a provision to expressly deal with cases where the law of
the place of arbitration, or the law under which the interim measure was granted did not
permit an interim measure to be granted by an arbitral tribunal, or the parties had
excluded the right for the arbitral tribunal to grant an interim measure. In that respect, the
following text was proposed: “the arbitral tribunal did not have jurisdiction to grant
interim measures of protection”. It was said, however, that those cases were already dealt
with by the reference to article 36 (1) (iii) under draft article 17 bis (2) (a) (i). That proposal
was not adopted.
Subparagraph (b) (i)
82. A suggestion was made that the words “by the law” should be deleted, since they could
be misinterpreted to mean that a court could operate on a law other than that for which it
drew its powers. The Working Group agreed with that proposal.
Subparagraph (b) (ii)
83. The Working Group adopted the substance of subparagraph (b) (ii) without change.
Paragraph (3) [Art. 17 I(2) in the final text]
84. A proposal was made to add the following sentence to paragraph (3): “If any of the
defences in paragraph 2 are raised against the enforcement of an interim measure of
protection granted by an arbitral tribunal, neither the court where enforcement is sought
nor any other court shall be prevented from granting pursuant to powers under its own law
measures substantially identical to those ordered by the arbitral tribunal”. It was stated
that an addition along the lines of the proposed wording was necessary to preserve the
situation where, under existing law, a court could issue its own interim measure instead of
enforcing the interim measure issued by the arbitral tribunal, and avoid that court being
faced with the more restrictive conditions resulting from the second sentence of paragraph
P 525 (3). An alternative proposal was that, in order to prevent a party from requesting a court to
P 526 grant an interim measure that it could not obtain from the arbitral tribunal, the
following should be added at the end of paragraph (3): “A court shall not be prevented
from granting, subject to its own laws, measures that were substantially identical to those
ordered by the arbitral tribunal”. An alternative to both proposals was that the proposed
wording could be included in a commentary to draft article 17 bis. The Working Group took
note of the proposal and decided that it should be further discussed in the context of draft
article 17 ter.
Paragraph (4) [Art. 17 H(2) in the final text]
85. The Working Group adopted the substance of paragraph (4) without change.
Paragraph (5) [Art. 17 H(3) in the final text]
86. To clarify the intention that the court might order a requesting party to provide security
if the court was of the opinion that it was appropriate and the tribunal had not already
made such an order or such an order was necessary to protect the rights of third parties, a
suggestion was made to redraft paragraph (5) along the following lines: “The court of the
state where recognition or enforcement is sought may, if it considers it proper, order the
requesting party to provide appropriate security, if the arbitral tribunal has not already
made a determination with respect to security or if such an order is necessary to protect
the rights of third parties.” It was also suggested that the reference to “determination”
should be modified to refer to an “express determination” to direct the tribunal to
expressly address the situation even if it ultimately decided not to grant security. It was
proposed that the reference to “order”, which appeared twice in paragraph (5), should be
replaced by the verb “require” or by the substantive “decision” to avoid limiting the effect
of the provision to procedural decisions. The Secretariat was requested to take those
proposals into account in preparing a revised draft of paragraph (5).
Paragraph (6)
Preliminary orders and enforcement
87. Consistent with its earlier decision that a preliminary order would not be judicially
enforceable, the Working Group agreed to delete draft paragraph (6). The Working Group
then proceeded to consider whether or not draft article 17 bis should include an express
statement that it did not apply to preliminary orders. A concern was expressed that
inclusion of an express statement that preliminary orders were not enforceable might have
a negative impact on such orders (in that it might call into question their binding nature)
and, for that reason, it might be preferable to simply state that article 17 bis only applied
to inter partes interim measures.
88. It was suggested that such an express statement was unnecessary given that draft
article 17 bis (2) (a) (ii) already allowed refusal of enforcement based on the grounds set
forth in article 36 (1) (b) (ii) which referred to the situation where the party against whom
the measure was made was, inter alia, “unable to present his case”. It was stated in
response that the fact that a preliminary order would not be enforceable ought to be
P 526 expressly stated rather than found in a cryptic application of the draft provisions. In
P 527 addition, it was noted that both article 36 and draft article 17 bis provided discretion to

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 refuse enforcement and that therefore it would still be possible for a court to grant an
order enforcing a preliminary order.
89. It was noted that such a risk was enhanced given that the footnote to article 17 bis (1)
permitted a State to include fewer circumstances in which enforcement might be refused.
For that reason, it was generally agreed that it would be preferable to expressly put that
matter beyond doubt. To that effect, it was decided that the Secretariat should prepare a
draft paragraph for inclusion in article 17 bis, spelling out the principle that preliminary
orders were not enforceable by State courts, keeping in mind those formulations that
would not undercut the binding nature of preliminary orders.
AUGUST 2005 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.138 (8 AUGUST 2005)
Part II
Draft provision on the recognition and enforcement of interim measures of protection (for
insertion as a new article of the UNCITRAL Model Law on International Commercial
Arbitration, tentatively numbered 17 bis)
A. Text of draft article 17 bis [Arts. 17 H – 17 I in the final text]
51. The following text sets out a newly revised version of article 17 bis of the Model Law
(hereinafter referred to as “draft article 17 bis”) based on the discussions and decisions of
the Working Group at its forty-second session ([January 2005 Working Group Report,]
A/CN.9/573, paras. 70–89):
“(1) [Art. 17 H(1) in the final text] An interim measure of protection issued by an arbitral
tribunal shall be recognized as binding and, unless otherwise provided by the
arbitral tribunal, enforced upon application to the competent court, irrespective of
the country in which it was issued, subject to the provisions of this article. (*)
“(2) [Art. 17 I(1) in the final text] The court may refuse to recognize or enforce an interim
measure of protection, only:
“(a) at the request of the party against whom it is invoked, if the court is satisfied
that:
“(i) such refusal is warranted on the grounds set forth in article 36, paragraphs
(1) (a)(i), (ii), (iii) or (iv); or
“(ii) the arbitral tribunal's decision with respect to the provision of security in
connection with the interim measure issued by the arbitral tribunal has
not been complied with; or
P 527
P 528
“(iii) the interim measure has been terminated or suspended by the arbitral
tribunal or, where so empowered, by the court of the State in which, the
arbitration takes place or under the law of which, that interim measure
was granted; or
“(b) if the court finds that:
“(i) the interim measure is incompatible with the powers conferred upon the
court, unless the court decides to reformulate the interim measure to the
extent necessary to adapt it to its own powers and procedures for the
purposes of enforcing that interim measure and without modifying its
substance; or
“(ii) any of the grounds set forth in article 36, paragraphs (1) (b)(i) or (ii) apply
to the recognition and enforcement of the interim measure.
“(3) [Art. 17 I(2) in the final text] Any determination made by the court on any ground in
paragraph (2) of this article shall be effective only for the purposes of the application
to recognize and enforce the interim measure of protection. The court where
recognition or enforcement is sought shall not, in exercising that power, undertake a
review of the substance of the interim measure.
“(4) [Art. 17 H(2) in the final text] The party who is seeking or has obtained recognition or
enforcement of an interim measure of protection shall promptly inform the court of
any termination, suspension or modification of that interim measure.
“(5) [Art. 17 H(3) in the final text] The court of the State where recognition or enforcement
is sought may, if it considers it proper, request the requesting party to provide
appropriate security, if the arbitral tribunal has not already made a determination
with respect to security, or where such a decision is necessary to protect the rights of
third parties.
“[(6) An interim measure issued by an arbitral tribunal under standards substantially
equivalent to those set forth in paragraph (7) of article 17 [Arts. 17 B –17 C in the final
text] shall not be enforceable.]”
B. Notes on draft article 17 bis
Paragraph 1 (19)
52. The Working Group adopted paragraph 1 without change ([January 2005 Working Group
Report,] A/CN.9/573, para. 71).

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 Paragraph 2 (20)
Subparagraph (a)(i) (subparagraph (a)(i) and (ii) of the previous draft contained in [the July
2004 Secretariat Note,] A/CN.9/WG.II/WP.131)
P 528 53. The draft reflects the decision of the Working Group to retain the language “such refusal
P 529 is warranted on the grounds” and to combine subparagraphs (a)(i) and (ii) of the
previous draft ([January 2005 Working Group Report,] A/CN.9/573, para. 74).
Subparagraph (a)(ii) (subparagraph (a)(iii) of the previous draft contained in [the July 2004
Secretariat Note,] A/CN.9/WG.II/WP.131)
54. The words “the requirement to provide appropriate security” have been replaced by
the words “the arbitral tribunal's decision with respect to the provision of security” in
order to better reflect that the arbitral tribunal has a discretion not to require any security
or that the security might have been ordered and its provision deferred ([January 2005
Working Group Report,] A/CN.9/573, para. 76).
Subparagraph (a)(iii) (subparagraph (a)(iv) of the previous draft contained in [the July 2004
Secretariat Note,] A/CN.9/WG.II/WP.131)
[or under the law of which, that interim measure was granted] [the arbitration takes place]
55. To achieve consistency between draft article 17 bis (2) (a)(iii) and article 36 (1) (a)(v) of
the Model Law, the two bracketed texts of the previous draft have been be retained, but
their order reversed ([January 2005 Working Group Report,] A/CN.9/573, para. 79).
Subparagraph (b)(i)
56. The words “by the law” are omitted from subparagraph (b)(i), since the Working Group
agreed that they could be misinterpreted to mean that a court could operate on a law
other than that from which it drew its powers ([January 2005 Working Group Report,]
A/CN.9/573, para. 82).
Subparagraph (b)(ii)
57. The Working Group adopted the substance of subparagraph (b)(ii) without change
([January 2005 Working Group Report,] A/CN.9/573, para. 83).
Paragraph (3) (21)
58. It is recalled that the Working Group took note of various proposals relating to
paragraph (3), which were to be further discussed in the context of draft article 17 ter. Due
to lack of time, the Working Group did not reconsider them. The Working Group might wish
to further discuss those proposals, which are reflected in [the January 2005 Working Group
Report,] A/CN.9/573, para. 84.
Paragraph (4) (22)
59. The Working Group adopted the substance of paragraph (4) without change ([January
2005 Working Group Report,] A/CN.9/573, para. 85).
P 529
P 530
Paragraph (5) (23)
60. Paragraph 5, as revised, seeks to clarify the intention that the court might order a
requesting party to provide security if the court is of the opinion that it is appropriate and
the tribunal had not already made such an order or such an order was necessary to protect
the rights of third parties ([January 2005 Working Group Report,] A/CN.9/573, para. 86). As
agreed, the reference to “order”, which appeared twice in paragraph (5) of the previous
draft, has been replaced by the verb “require” or by the substantive term “decision” to
avoid limiting the effect of the provision to procedural decisions. ([January 2005 Working
Group Report,] A/CN.9/573, para. 86)
Paragraph (6) (24)
Preliminary orders and enforcement
61. Consistent with its earlier decision that a preliminary order would not be judicially
enforceable, the Working Group agreed to delete paragraph (6). ([January 2005 Working
Group Report,] A/CN.9/573, para. 87).
62. The Working Group then proceeded to consider whether or not draft article 17 bis
should include an express statement that it did not apply to preliminary orders. After
discussion, the Working Group agreed that the Secretariat should prepare a draft
paragraph for inclusion in article 17 bis, based upon the principle that preliminary orders
were not enforceable by State courts, and ensuring that any proposed formulation would
not undercut the binding nature of preliminary orders ([January 2005 Working Group
Report,] A/CN.9/573, paras. 87–89).
OCTOBER 2005 WORKING GROUP REPORT A/CN.9/589 (12 OCTOBER 2005)
IV. Draft provision on the recognition and enforcement of interim measures of protection
(for insertion as a new article of the UNCITRAL Model Law on International Commercial
Arbitration, tentatively numbered 17 bis [Arts. 17 H – 17 I in the final text])

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 Paragraph (1) [Art. 17 H(1) in the final text]
76. It was proposed that, having regard to the language used in article 36 (1)(a)(v) of the
Arbitration Model Law, paragraph (1) should indicate that an interim measure granted by
an arbitral tribunal was binding upon the parties only and the words “on the parties”
should therefore be inserted after the term “binding”. However, it was pointed out that
paragraph (1) of article 17 bis was drafted so as to be consistent with article 35 (1) of the
Arbitration Model Law, which did not include any reference to the parties. For that reason,
it was agreed that that proposal should not be adopted. The Working Group adopted the
substance of paragraph (1) without modification.
P 530
P 531
Interplay between paragraph 1 and articles 35 and 36
77. A proposal was made to expressly clarify the relationship between the enforcement
regime created by article 17 bis and that set out in articles 35 and 36 of the Arbitration
Model Law. Diverging views were expressed on the question whether the regime of
enforcement under chapter VIII of the Arbitration Model Law could still apply in the
context of recognition and enforcement of an interim measure granted by an arbitral
tribunal in the form of an award.
78. A view was that, despite the fact that article 17 bis was designed specifically as a
regime for recognition and enforcement of interim measures, an award that included an
interim measure could nevertheless be subject to enforcement subject to the grounds in
articles 35 and 36. It was said that the question whether interim measures granted in the
form of an award were included in the scope of the New York Convention had been the
subject of diverging opinions in different jurisdictions. Another view was that the form in
which an interim measure was issued did not affect its nature and irrespective as to the
form, in the area of recognition and enforcement, it would still be considered to be an
interim measure to which article 17 bis applied.
79. It was said that the recognition and enforcement regime of interim measures set out in
article 17 bis was autonomous but that it might be necessary to expressly exclude the
application of articles 35 and 36 to avoid confusion by users. To address that matter, a
proposal was made to add, at the end of paragraph (1), the following words: “and excluding
the application of articles 35 and 36”. It was said that, if that proposal were to be adopted,
the provision contained under article 35 (2) should be expressly included under article 17
bis. Some support was expressed for that proposal on the basis that it clarified the
understanding that article 17 bis applied to interim measures to the exclusion of chapter
VIII. However, it was said that articles 35 and 36 dealt with recognition and enforcement of
awards whereas article 17 bis dealt expressly with recognition and enforcement of interim
measures and adding the proposed words might create further ambiguity. The Working
Group agreed not to adopt that proposal but noted that the question it raised might need
to be further considered at a later stage.
Paragraph (2) [Art. 17 I(1) in the final text]
Subparagraph (a)
Chapeau
80. For the sake of consistency with article 36 (1), a proposal was made to replace the
chapeau of paragraph (2) by the following words: “Recognition and enforcement of an
interim measure may be refused only:” That proposal was adopted in substance.
Subparagraph (a)(i)
81. he Working Group adopted the substance of subparagraph (a)(i) without modification.
P 531
P 532
Subparagraph (a)(ii)
82. The Working Group adopted the substance of subparagraph (a)(ii) without modification.
Subparagraph (a)(iii)
83. It was proposed to delete the words “where so empowered” for the reason that it
introduced an element that was self-evident and might give the impression that State
courts were empowered to review an interim measure de novo. However, that proposal did
not receive support as it was considered necessary to retain those words, which limited the
possibility of intervention of State courts to situations where they were specifically
empowered to revise an interim measure issued by the arbitral tribunal.
84. A proposal was made to delete the words “or where so empowered, by the court of the
State in which the arbitration takes place or under the law of which that interim measure
was granted”. In support of that proposal, it was said that, in the absence of a specific
treaty between States, there might be no legal basis for a State court to refuse to recognize
an interim measure of protection issued by an arbitral tribunal, which had been
terminated or suspended, by the court of another State. That proposal did not receive
support.
“modified, terminated or suspended”

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 85. A proposal was made to add the word “modified” after the word “suspended” for the
sake of consistency with the language used under paragraph (4) [Art. 17 H(2) in the final
text]. That proposal did not receive support for the reason that, once an arbitral tribunal
had modified an interim measure, the original measure was terminated expressly or
impliedly and could no longer be recognized and enforced. However, the Working Group
agreed that any explanatory material accompanying article 17 bis should clarify that the
enforcement regime set out in article 17 bis applied in respect of any interim measure,
whether or not it was modified by the arbitral tribunal.
Subparagraph (b)
Subparagraph (b)(i)
86. The Working Group adopted the substance of subparagraph (b)(i) without modification.
Subparagraph (b)(ii)
87. The Working Group adopted the substance of subparagraph (b)(ii) without modification.
Paragraph (3) [Art. 17 I(2) in the final text]
88. A proposal was made to replace the phrase “in exercising that power” with words along
the following lines: “in making its determination”, so as to be consistent with the language
used earlier in that paragraph which referred to “any determination made by the court”.
That proposal was adopted in substance.
P 532
P 533
Paragraph (4) [Art. 17 H(2) in the final text]
89. The Working Group adopted the substance of paragraph (4) without modification.
Paragraph (5) [Art. 17 H(3) in the final text]
90. It was proposed that the conditions to be satisfied in relation to a request for security
set out in paragraph (5) be cumulative rather than alternative conditions by replacing “, or”
when appearing after the word “security” by the word “and”. That proposal was not
adopted and the Working Group recalled that it was intended that satisfaction of either of
these conditions would permit a request for security.
91. For the sake of consistency with paragraph (4) [Art. 17 E of the final text] of draft article
17, which provided that an arbitral tribunal might require not only the requesting party but
also any other party to provide security, it was suggested that the words “or any other
party” should be added after the words “requesting party” in paragraph (5). That proposal
was withdrawn for the reasons set out above in paragraph 70.
Paragraph (6)
92. It was suggested that paragraph (6) could be shortened to reflect the principle, which it
was recalled had been agreed as an integral part of the compromise text, that a
preliminary order was not enforceable by a State court rather than referring to an interim
measure that was issued under standards substantially equivalent to those set forth in
paragraph (7). Alternatively, it was proposed that paragraph (6) should simply provide that
article 17 bis only applied to interim measures made by an arbitral tribunal under
paragraphs (1) to (6) of draft article 17. It was said that that approach respected the
principle that preliminary orders would be binding as between the parties and also did
not exclude the application of other enforcement regimes to preliminary orders. Yet
another approach suggested that inclusion of a statement that preliminary orders were not
enforceable sat uncomfortably in article 17 bis, which dealt with recognition and
enforcement of interim measures. For that reason it was suggested that that matter be
addressed under a new subparagraph to be inserted in paragraph (7) [Arts. 17 B – 17 C in the
final text] of draft article 17. In addition, it was suggested that in order to deal with an
interim measure issued on an ex parte basis which a party sought to enforce in a State that
had enacted the Model Law as revised, a new paragraph could be added at the end of
article 17 bis along the following lines: “interim measures issued on an ex parte basis will
not be enforced”.
93. A proposal was made to delete paragraph (6) from article 17 bis and add a new
paragraph following paragraph (7) of draft article 17 along the following lines: “a
preliminary order made under article 17 (7) shall be binding on the parties but shall not be
subject to enforcement by a court”. It was suggested that that formulation had the benefit
of recognizing that a preliminary order would not be enforceable whether on the basis of
the Arbitration Model Law or on any other grounds and avoided the use of the word
“unenforceable”, which had a further connotation that might undermine the concept of
“binding”.
P 533
P 534
94. Various comments of a drafting nature were made on that proposal. It was suggested
that the reference to “a court” be changed to “any court” so as to encompass a preliminary
order whether made by an arbitral tribunal in the jurisdiction of the court in which
enforcement was sought or in any other jurisdiction. In response, it was said that such a
provision could potentially give rise to complex private international law issues and might,
in practice, have a very limited effect. Another comment was that the use of the phrase

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 “shall not be subject to enforcement by a court” might have a different meaning from the
use of the phrase “shall not be enforceable”, namely that that amendment could be
interpreted as meaning that the parties had the obligation not to seek enforcement of the
preliminary order, but that the preliminary order, of its nature, remained enforceable. It
was pointed out that the non-enforceability of preliminary measures was a central feature
of the compromise that should be maintained.
95. Concerns were raised that, as drafted, the provision exceeded the competence of the
Arbitration Model Law, in that it sought to rule on procedural matters pertaining to State
courts and it was said that it was unlikely that the jurisdiction of State courts could be
impacted upon by paragraph (6). It was suggested that a better approach would be simply
to omit paragraph (6) altogether, which would still have the effect that the preliminary
order was not enforceable. A number of delegations stated that this was their preferred
solution but that, in the interests of consensus and joint position of all members of the
Working Group, they were prepared to accept wording in draft article 17 (7) or article 17 bis
(6) by which enforcement of a preliminary order was expressly excluded. It was observed
that there was evidence that parties to arbitration agreements were often reluctant to
disobey orders of the arbitral tribunal and that there were a series of practical problems
in drafting enforcement provisions for a preliminary order, which was expected, in
practice, to have a very short lifespan that, in any event, could not exceed 20 days. An
alternative proposal was made to include under article 17 bis a provision clarifying that
“the provisions of this article are not applicable to preliminary orders issued in
accordance with paragraph (7) of article 17”. It was said that inclusion of that express
language under article 17 bis remained important for the sake of clarity. The Working Group
took note of that suggestion.
96. After discussion, the Working Group agreed to delete paragraph (6) from article 17 bis
and add a new paragraph following paragraph (7) of draft article 17 along the following
lines: “a preliminary order made under article 17 (7) shall be binding on the parties but
shall not be subject to enforcement by a court”.
Footnote to article 17 bis [Footnote to art. 17 I in the final text]
97. The footnote was adopted, in substance, by the Working Group.
[Editors' Note: The Working Group Report includes here a discussion of the form of the revised
articles and various options for how to divide the topics into separate articles. Those
paragraphs are reprinted at pp. 577–78 infra.]
P 534
P 535
VII. Report of the drafting group
107. The Working Group having completed its deliberations regarding draft articles 17 [Arts.
17 – 17 G in the final text], 17 bis [Arts. 17 H – 17 I in the final text] and 17 ter [Art. 17 J in the
final text], a drafting group was established by the Secretariat to implement decisions by
the Working Group and ensured consistency between the various language versions of the
text. The report of the drafting group, as adopted by the Working Group is annexed to this
report.
[.…]
Annex
Report of the drafting group
Chapter IV bis. Interim measures and preliminary orders
[.…]
Draft article 17 bis
(1) An interim measure issued by an arbitral tribunal shall be recognized as binding and,
unless otherwise provided by the arbitral tribunal, enforced upon application to the
competent court, irrespective of the country in which it was issued, subject to the
provisions of this article. (*)
(2) Recognition or enforcement of an interim measure may be refused only:
(a) At the request of the party against whom it is invoked if the court is satisfied that:
(i) Such refusal is warranted on the grounds set forth in article 36, paragraphs (1)
(a)(i), (ii), (iii) or (iv); or
(ii) The arbitral tribunals decision with respect to the provision of security in
connection with the interim measure issued by the arbitral tribunal has not
been complied with; or
(iii) The interim measure has been terminated or suspended by the arbitral tribunal
or, where so empowered, by the court of the State in which the arbitration takes
place or under the law of which that interim measure was granted; or
(b) If the court finds that:
(i) The interim measure is incompatible with the powers conferred upon the court
unless the court decides to reformulate the interim measure to the extent

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 necessary to adapt it to its own powers and procedures for the purposes of
enforcing that interim measure and without modifying its substance; or
P 535
P 536
(ii) Any of the grounds set forth in article 36, paragraphs (1) (b)(i) or (ii) apply to the
recognition and enforcement of the interim measure.
(3) Any determination made by the court on any ground in paragraph (2) of this article shall
be effective only for the purposes of the application to recognize and enforce the interim
measure. The court where recognition or enforcement is sought shall not, in making that
determination, undertake a review of the substance of the interim measure.
(4) The party who is seeking or has obtained recognition or enforcement of an interim
measure shall promptly inform the court of any termination, suspension or modification of
that interim measure.
(5) The court of the State where recognition or enforcement is sought may, if it considers it
proper, order the requesting party to provide appropriate security if the arbitral tribunal
has not already made a determination with respect to security or where such a decision is
necessary to protect the rights of third parties.
5 DECEMBER 2005 SECRETARIAT NOTE A/CN.9/WG.II/WP.141 (5 DECEMBER 2005)
I. Proposal on the form in which the legislative provisions on interim measures and
preliminary orders could be presented in the Model Law
4. The following text sets out a proposal as to the presentation of the draft legislative
provisions on interim measures and preliminary orders, recognition and enforcement of
interim measures and court-ordered interim measures. Modifications to the earlier draft
contained in the annex to the report of the Working Group on the work of its forty-third
session (annex to [October 2005 Working Group Report,] A/CN.9/589) have been underlined
in the text below. As well, a comparative table outlining the concordance of the numbering
between articles of the earlier draft and articles of the text below has been annexed to
this note.
Chapter IV bis. Interim measures and preliminary orders
[.…]
Section 4 – Recognition and enforcement of interim measures
Article 17 novies—Recognition and enforcement of interim measures [Art. 17 H in the final
text]
(1) An interim measure issued by an arbitral tribunal shall be recognized as binding and,
unless otherwise provided by the arbitral tribunal, enforced upon application to the
competent court, irrespective of the country in which it was issued, subject to the
provisions of article 17 novies.
(2) The party who is seeking or has obtained recognition or enforcement of an interim
measure shall promptly inform the court of any termination, suspension or modification of
that interim measure.
P 536
P 537
(3) The court of the State where recognition or enforcement is sought may, if it considers it
proper, order the requesting party to provide appropriate security if the arbitral tribunal
has not already made a determination with respect to security or where such a decision is
necessary to protect the rights of third parties.
Article 17 decies—Grounds for refusing recognition or enforcement of interim measures (*)
[Art. 17 I in the final text]
(1) Recognition or enforcement of an interim measure may be refused only:
(a) at the request of the party against whom it is invoked if the court is satisfied that:
(i) such refusal is warranted on the grounds set forth in article 36, paragraphs (1) (a)
(i), (ii), (iii) or (iv); or
(ii) the arbitral tribunal's decision with respect to the provision of security in
connection with the interim measure issued by the arbitral tribunal has not
been complied with; or
(iii) the interim measure has been terminated or suspended by the arbitral tribunal
or, where so empowered, by the court of the State in which the arbitration takes
place or under the law of which that interim measure was granted; or
(b) if the court finds that:
(i) the interim measure is incompatible with the powers conferred upon the court
unless the court decides to reformulate the interim measure to the extent
necessary to adapt it to its own powers and procedures for the purposes of
enforcing that interim measure and without modifying its substance; or
(ii) any of the grounds set forth in article 36, paragraphs (1)(b)(i) or (ii) apply to the
recognition and enforcement of the interim measure.

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 (2) Any determination made by the court on any ground in paragraph (1) of this article shall
be effective only for the purposes of the application to recognize and enforce the interim
measure. The court where recognition or enforcement is sought shall not, in making that
determination, undertake a review of the substance of the interim measure.
[.…]
II. Notes on the form in which the legislative provisions on interim measures and
preliminary orders could be presented in the Model Law
Structure of the provisions
P 537 5. As agreed by the Working Group, the provisions on interim measures, preliminary orders,
P 538 recognition and enforcement of interim measures and court-ordered interim measures
are placed in a new chapter, numbered chapter IV bis ([October 2005 Working Group
Report,] A/CN.9/589, para. 105[, reprinted in the section on materials common to Arts. 17 – 17
J, p. 198 supra]). As suggested by the Working Group, those provisions have been
restructured by grouping paragraphs relating to similar issues under separate articles
([October 2005 Working Group Report,] A/CN.9/589, para. 106[, reprinted in the section on
materials common to Arts. 17 – 17 J, p. 198 supra]). In order to better clarify the proposed
structure of the revised text, section headings have been included. This structure has the
advantage of providing a logical presentation of the provisions, and avoids creating an
article on interim measures that is of inordinate length as compared to other articles in
the Model Law.
[.…]
Article 17 decies
11. A footnote has been added to the title of article 17 decies (formerly that footnote
appeared under article 17 bis (1) as contained in the annex to the report of the Working
Group on the work of its forty-third session (annex to [October 2005 Working Group Report,]
A/CN.9/589)). The content of the footnote applies to the grounds for refusing recognition
and enforcement and therefore relates to the content of article 17 decies.
[.…]
Reference to article 1, paragraph 2 of the Model Law
14. At its forty-third session, the Working Group noted that, given the intention that the
provision on court-ordered interim measure should apply irrespective of the country
where the arbitration takes place, that provision should be added to the list of articles
contained under article 1, paragraph (2). That article provides that, in respect of the listed
articles, the Model Law, as enacted in a given State, would apply even if the place of the
arbitration were not in the territory of that State ([October 2005 Working Group Report,]
A/CN.9/589, paras. 101–103[, reprinted in the section on Art. 17 J, pp. 577–78 infra]). It is also
suggested that a reference to articles 17 novies and 17 decies (which deal with recognition
and enforcement of interim measures and the grounds for refusal thereof) be included
within the list of excepted articles so that article 1, paragraph (2) of the Model Law would
read as follows:
“The provisions of this Law, except articles 8, 9, 17 novies, 17 decies, 17 undecies,
35 and 36, apply only if the place of arbitration is in the territory of this State.”
15. Including all excepted articles within article 1, paragraph (2), which establishes the
territorial scope of application of the Model Law, appears to provide a simpler and more
user-friendly approach than including such an exception within each of the revised
articles. Taking that approach into account, the words “This article shall apply
notwithstanding the provisions of article 1, paragraph 2”, which appeared at the end of
article 17 ter of the earlier draft (contained in the annex to [October 2005 Working Group
Report,] A/CN.9/589) have been deleted.
P 538
P 539
AnnexTable of concordance

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 Provisions on interim measures and Newly revised provision on interim measures
preliminary orders as contained in the annex and preliminary orders as contained in this
to the report of the Working Group on the note
work of its forty-third session ([October 2005
Working Group Report,] A/CN.9/589)
[.…] Article 17 novies (1)
Article 17 bis (1) Footnote to title of article 17 decies
Footnote to article 17 bis (1) Article 17 decies (1)
Article 17 bis (2) Article 17 decies (2)
Article 17 bis (3) Article 17 novies (2)
Article 17 bis (4) Article 17 novies (3)
Article 17 bis (5)
[.…]

Last sentence of article 17 ter Article 1 (2)

FEBRUARY 2006 WORKING GROUP REPORT A/CN.9/592 (27 FEBRUARY 2006)
IV. Draft legislative provisions on interim measures and preliminary orders
[.…]
13. The Working Group resumed discussions on the draft legislative provisions on interim
measures and preliminary orders on the basis of the text prepared by the Secretariat to
reflect the discussions of the Working Group, as set out in [the 5 December 2005 Secretariat
Note,] A/CN.9/WG.II/WP.141.
[.…]
Article 17 novies [Art. 17 H in the final text]
Title
34. A proposal was made to delete the words “of interim measures” in order to avoid
repetition of the Section title. That proposal was adopted.
Paragraph 1
35. The Working Group agreed that paragraph (1) should refer to article 17 decies instead of
article 17 novies.
P 539
P 540
Paragraphs (2) and (3)
36. The substance of paragraphs (2) and (3) was adopted without modification.
Article 17 decies [Art. 17 I in the final text]
Title
37. Consistent with the modification to the title of article 17 novies, the Working Group
agreed to delete the words “of interim measures” from the title of article 17 decies.
Paragraphs (1) and (2)
38. The substance of paragraphs (1) and (2) was adopted without modification Footnote
39. The Working Group agreed that the footnote to article 17 decies should refer to article 17
decies instead of article 17 novies.
[.…]
Reference to articles 17 novies, 17 decies and 17 undecies in article 1, paragraph 2 of the
Arbitration Model Law
44. At its forty-third session, the Working Group noted that, given the intention that the
provision on court-ordered interim measure should apply irrespective of the country
where the arbitration took place, that provision should be added to the list of articles
contained under article 1, paragraph (2), of the Arbitration Model Law. That article
provided that, in respect of the listed articles, the Arbitration Model Law, as enacted in a
given State, would apply even if the place of the arbitration was not in the territory of that
State ([October 2005 Working Group Report,] A/CN.9/589, paras. 101–103[, reprinted in the
section on Art. 17 J, pp. 577–78 infra]). It was also suggested that a reference to articles 17
novies and 17 decies (which dealt with recognition and enforcement of interim measures
and the grounds for refusal thereof, respectively) should be included within the list of
excepted articles so that article 1, paragraph (2) of the Arbitration Model Law would read
as follows:
“The provisions of this Law, except articles 8, 9, 17 novies, 17 decies, 17 undecies,
35 and 36, apply only if the place of arbitration is in the territory of this State.”

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 45. That proposal was adopted in substance by the Working Group.
[.…]
P 540
P 541
Annex I
Revised legislative provisions on interim measures and preliminary orders
Chapter IV bis. Interim measures and preliminary orders
[.…]
Section 4—Recognition and enforcement of interim measures
Article 17 novies—Recognition and enforcement [Art. 17 H in the final text]
(1) An interim measure issued by an arbitral tribunal shall be recognized as binding and,
unless otherwise provided by the arbitral tribunal, enforced upon application to the
competent court, irrespective of the country in which it was issued, subject to the
provisions of article 17 decies.
(2) The party who is seeking or has obtained recognition or enforcement of an interim
measure shall promptly inform the court of any termination, suspension or modification of
that interim measure.
(3) The court of the State where recognition or enforcement is sought may, if it considers it
proper, order the requesting party to provide appropriate security if the arbitral tribunal
has not already made a determination with respect to security or where such a decision is
necessary to protect the rights of third parties.
Article 17 decies—Grounds for refusing recognition or enforcement (*) [Art. 17 I in the final
text]
(1) Recognition or enforcement of an interim measure may be refused only:
(a) At the request of the party against whom it is invoked if the court is satisfied that:
(i) Such refusal is warranted on the grounds set forth in article 36, paragraphs (1)
(a)(i), (ii), (iii) or (iv); or
(ii) The arbitral tribunal's decision with respect to the provision of security in
connection with the interim measure issued by the arbitral tribunal has not
been complied with; or
(iii) The interim measure has been terminated or suspended by the arbitral tribunal
or, where so empowered, by the court of the State in which the arbitration takes
place or under the law of which that interim measure was granted; or
(b) If the court finds that:
P 541 (i) The interim measure is incompatible with the powers conferred upon the court
P 542 unless the court decides to reformulate the interim measure to the extent
necessary to adapt it to its own powers and procedures for the purposes of
enforcing that interim measure and without modifying its substance; or
(ii) Any of the grounds set forth in article 36, paragraphs (1)(b)(i) or (ii), apply to the
recognition and enforcement of the interim measure.
(2) Any determination made by the court on any ground in paragraph (1) of this article shall
be effective only for the purposes of the application to recognize and enforce the interim
measure. The court where recognition or enforcement is sought shall not, in making that
determination, undertake a review of the substance of the interim measure.
25 APRIL 2006 SECRETARIAT NOTE A/CN.9/605 (25 APRIL 2006)
I. Draft legislative provisions on interim measures and preliminary orders
4. The text of chapter IV bis on interim measures and preliminary orders, as adopted by
the Working Group at its forty-fourth session, (15) reads as follows:
[reprinted supra.]
II. Remarks on the draft legislative provisions on interim measures and preliminary
orders
[.…]
Remarks on section 4—Recognition and enforcement of interim measures
Interplay between section 4 and articles 35 and 36
17. Article 17 decies, which deals with the grounds for refusing recognition and enforcement
of interim measures, refers to article 36, paragraph (1), of the Arbitration Model Law which
is expressed to apply to awards. It is recalled that the Working Group decided not to
define the form in which an interim measure should be issued (see above, para. 5), and the
purpose of article 17 decies is to define the grounds for non-enforcement of interim
measures, whether issued in the form of an award or in another form. The Commission
might wish to consider whether it is necessary to clarify that the reference in article 17

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 decies to article 36, paragraph (1) should be understood as a reference to the grounds for
non-enforcement, regardless of the form of issuance of the interim measure. (36)
Article 17 decies, paragraph 1
Burden of proof
18. In contrast to article 36, paragraph (1)(a), of the Arbitration Model Law which places the
P 542 burden of proof on the party against whom the award is invoked, article 17 decies,
P 543 paragraph (1)(a) reflects the decision of the Working Group that no provision should be
made regarding the allocation of the burden of proof and that that matter should be left to
applicable law. (37) The Commission might wish to note the decision of the Working Group
to provide explanation on that matter in any explanatory material accompanying that
provision.
“modified, terminated or suspended”
19. The Commission might wish to note that the Working Group agreed that any explanatory
material accompanying article 17 decies should clarify that the enforcement regime set
out in section 4 applied in respect of any interim measure, whether or not it was modified
by the arbitral tribunal. (38)
Interplay between article 17 decies, paragraph (1)(a)(iii) and article 34
20. The Commission might wish to decide whether clarification is needed on the issue of
whether an interim measure issued in the form of an award could be set aside under
article 34 of the Arbitration Model Law. It is recalled that that question was raised at the
fortieth session of the Working Group (New York, 23–27 February 2004) in the context of a
discussion on whether the effect of article 17 decies, paragraph (1)(a)(iii) would be to allow
a State court to set aside an interim measure issued by an arbitral tribunal. The Working
Group agreed that article 17 decies, paragraph (1)(a)(iii) should not be misinterpreted as
creating a ground for State courts to set aside an interim measure issued by an arbitral
tribunal. (39)
Article 17 decies, paragraph 2
21. The Commission might wish to recall that concerns were expressed in the Working Group
that, when a court was called upon to enforce an interim measure, under article 17 decies,
paragraph (1)(a)(i) (which refers to the grounds set forth in article 36, paragraphs (1)(a)(i),
(ii), (iii) or (iv)), its decision could have an effect beyond the limited sphere of recognition
and enforcement of the interim measure and, for example, impact on the recognition and
enforcement of the arbitral award that determines the merits of the case. The purpose of
article 17 decies, paragraph (2) is to confine the power of a court to the determination of
recognition and enforcement of the interim measure only. (40)
P 543
P 544
MAY 2006 SECRETARIAT NOTE GOVERNMENT COMMENTS A/CN.9/609/ADD.1 (4 MAY 2006)
II. Comments received from Member States and international organizations
A. Member States
2. China
[.…]
I. Revised Legislative Provisions on Interim Measures and Preliminary Orders
[.…]
4. For paragraph (1), Article 17 novies—Recognition and enforcement [Art. 17 H in the final
text], it is suggested to delete the phrase “unless otherwise provided by the arbitral
tribunal”, since there should be no provision otherwise by the arbitral tribunal once it has
issued an order for “interim measures”. The phrase lends little room for reasonable
understanding.
A/CN.9/609/ADD.5 (30 MAY 2006)
II. Comments received from Member States and international organizations
A. Member States
6. France
[.…]
Interim measures of protection
[.…]
Draft article 17 decies: grounds for refusing recognition/enforcement [Art. 17 I in the final
text]
8. The French delegation can only reiterate its position on this matter. The proposed text,
which combines provisions based on the New York Convention and relating to arbitral
awards with provisions stemming more specifically from requirements concerning interim
measures, constitutes a set of clauses incorporating excessive and disproportionate

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 double conditions. (2)
P 544
P 545
2006 COMMISSION REPORT A/61/17 (14 JULY 2006)
IV. Finalization and adoption of legislative provisions on interim measures and the form
of arbitration agreement and of a declaration regarding the interpretation of articles II (2)
and VII (1) of the 1958 New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards
[.…]
B. Consideration of the draft legislative provisions on interim measures
1. General comments
88. The Commission recalled that the provisions had been drafted in recognition not only
that interim measures were increasingly being found in the practice of international
commercial arbitration, but also that the effectiveness of arbitration as a method of
settling commercial disputes depended on the possibility of enforcing such interim
measures (see [December 2000 Working Group Report,] A/CN.9/485 and Corr.1, para. 78).
General agreement was expressed as to the need for a harmonized and widely acceptable
model legislative regime governing interim measures granted by arbitral tribunals and
their enforcement as well as interim measures ordered by courts in support of arbitration.
The Commission recalled that the draft legislative provisions on interim measures and
preliminary orders were the result of extensive discussion in the Working Group. The
Commission recalled as well that the Working Group, at its forty-second session (New York,
10–14 January 2005), had agreed to include a compromise text of the provisions on
preliminary orders, on the basis that those provisions would apply unless otherwise agreed
by the parties; that it be made clear that preliminary orders had the nature of procedural
orders and not of awards; and that no enforcement procedure would be provided for such
orders in section 4 ([January 2005 Working Group Report,] A/CN.9/573, para. 27 [reprinted in
the section on Arts. 17 – 17 G, p. 371 supra]).
2. Consideration of draft articles
89. The text of the draft legislative provisions considered by the Commission at the current
session was as contained in document [25 April 2006 Secretariat Note] A/CN.9/605 [reprinted
supra].
[.…]
P 545
P 546
Section 4. Recognition and enforcement of interim measures
Article 17 novies. Recognition and enforcement [Art. 17 H in the final text]
129. A proposal was made to delete in paragraph 1 the words “unless otherwise provided by
the arbitral tribunal”, for the reason that those words introduced an unnecessary condition
to enforcement. That proposal did not receive support.
130. Paragraph 1 was adopted in substance by the Commission without modification.
131. Article 17 novies was adopted in substance by the Commission without modification.
Article 17 decies. Grounds for refusing recognition or enforcement [Art. 17 I in the final text]
Paragraph 1
Alternative proposal
132. The Commission considered a proposal made by a delegation, contained in [the May
2006 Secretariat Note] A/CN.9/609/Add.5, footnote 2 to paragraph 8. It was explained that
the proposal was intended to simplify the text and avoid any cross reference to article 36
of the Arbitration Model Law. The application of article 36 to interim measures was said to
be of limited relevance in view of the difference in nature between interim measures and
award on the merits. Some support was expressed for the proposed shorter draft on the
basis that it was concise and set forth rules that were specifically geared to the recognition
and enforcement of interim measures, as opposed to the text of draft article 17 decies,
which essentially mirrored rules established in the New York Convention in respect of the
recognition and enforcement of arbitral awards.
133. However, reservations were expressed against the general policy reflected in the
proposed shorter draft, which was said to exclude a number of important details that were
set out in draft article 17 decies.
134. After discussion, paragraph 1 was adopted in substance by the Commission without
modification.
Paragraph 2
135. It was said that, when a court was called upon to enforce an interim measure, under
article 17 decies, paragraph 1 (a)(i) (which referred to the grounds set forth in article 36,
sub-subparagraphs 1 (a)(i), (ii), (iii) or (iv)), its decision should not have an effect beyond

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 the limited sphere of recognition and enforcement of the interim measure. The
Commission agreed that any explanatory material should clarify that the purpose of article
17 decies, paragraph 2, was to confine the power of a court to the determination of
recognition and enforcement of the interim measure only.
136. Paragraph 2 was adopted in substance by the Commission without modification.
P 546
P 547
Footnote
137. The footnote to article 17 decies was adopted in substance by the Commission without
modification.
[Editors' Note: The Commission Report included an Annex setting out the revised text of the
Model Law articles addressed by the 2006 Amendments. For materials relating to Latin versus
letter-style numbering of the articles, see the February 2006 Working Group Report,
A/CN.9/592, paras. 15–16, in the section on materials common to Arts. 17 – 17 J, p. 200 supra].
P 547
P 548
Article 17 J
[Editors' Note: The legislative history section on Articles 17 – 17 J is divided into five parts. The
materials that follow concern Article 17 J (dealing with court-ordered interim measures). For
materials on background and formatting, and government comments, common to Articles 17
– 17 J, see pp. 192–205 supra. For materials on Articles 17 – 17 G (dealing with the issuance of
interim measures by arbitral tribunals), see pp. 206–435 supra. For materials on Articles 17 H –
17 I (dealing with recognition and enforcement of interim measures ordered by arbitral
tribunals), see pp. 436–547 supra.]
APRIL 2000 WORKING GROUP REPORT A/CN.9/468 (10 APRIL 2000)
II. Deliberations and Decisions
[.…]
D. Proposal for preparing uniform provisions on court-ordered interim measures of
protection in support of arbitration
85. In the context of the discussion of interim measures that might be issued by an arbitral
tribunal, it was proposed that the Working Group consider preparing uniform rules for
situations in which a party to an arbitration agreement turned to a court with a request to
obtain an interim measure of protection. It was pointed out that it was particularly
important for parties to have effective access to such court assistance before the arbitral
tribunal was constituted, but that also after the constitution of the arbitral tribunal a party
might have good reason for requesting court assistance. It was added that such requests
might be made to courts in the State of the place of arbitration or in another State.
86. It was observed that in a number of States there were no provisions dealing with the
power of courts to issue interim measures of protection in favour of parties to arbitration
agreements; the result was that in some States courts were not willing to issue such interim
measures while in other States it was uncertain whether and under what circumstances
such court assistance was available. It was said that, if the Working Group decided to
prepare uniform provisions on that topic, the ILA Principles on Provisional and Protective
Measures in International Litigation (reproduced in paragraph 108 of [the January 2000
Secretariat Note,] A.CN.9/WG.II/WP.108[, reprinted in the section on Arts. 17 – 17 G, p. 210–12
supra]), as well as the preparatory work that lead to those Principles would be useful in
considering the content of the proposed uniform rules.
87. The Working Group took note of the proposal and decided to consider it at a future
session.
P 548
P 549
OCTOBER 2000 SECRETARIAT NOTE POSSIBLE FUTURE WORK A/CN.9/WG.II/WP.111 (12
OCTOBER 2000)
I. Court-ordered interim measures of protection in support of arbitration
2. At its thirty-second session (Vienna, 20–31 March 2000), the Working Group considered, in
the context of the discussion of interim measures that might be issued by an arbitral
tribunal, a proposal for the preparation of uniform rules for situations in which a party to
an arbitration agreement turned to a court with a request to obtain an interim measure of
protection ([April 2000 Working Group Report,] A/CN.9/468, paras. 85–87). It was pointed out
that it was particularly important for parties to have effective access to such court
assistance before the arbitral tribunal was constituted, but that also after the constitution
of the arbitral tribunal a party might have good reason for requesting court assistance. It
was added that such requests might be made to courts in the State of the place of
arbitration or in another State.
3. It was observed that in a number of States there were no provisions dealing with the
power of courts to issue interim measures of protection in favour of parties to arbitration
agreements; the result was that in some States, courts were not willing to issue such

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 interim measures while in other States, it was uncertain whether and under what
circumstances such court assistance was available. It was said that, if the Working Group
decided to prepare uniform provisions on that topic, the ILA Principles on Provisional and
Protective Measures in International Litigation (see para. 8 below), as well as the
preparatory work that led to those Principles would be useful in considering the content of
the proposed uniform rules.
4. The Working Group took note of the proposal and decided to consider it at a future
session.
5. This note provides a preliminary examination of some of the issues related to the
ordering by courts of interim measures of protection in support of arbitration. The Working
Group may wish to consider the discussion set forth in this note with a view firstly, to
deciding whether it is desirable or feasible to prepare uniform rules or provisions on these
issues and secondly, if further work is desirable, to enable the Secretariat to prepare a
draft text for consideration at a future session.
A. General Remarks
6. Interim measures of protection play an essential role in every legal system in facilitating
the process of dispute resolution. The aims of such measures are broadly twofold: to
preserve the position of the parties pending resolution of their dispute and to ensure the
enforceability of the final judgment.
7. Different legal systems have characterized interim measures of protection in different
ways and using different classifications. In addition, the scope and variety of interim
measures of protection available differ from country to country. This can lead to situations
P 549 in disputes with an international element where the applicant for an interim measure of
P 550 protection may be forced to apply to the courts of a foreign country where the measures
of protection that may be available and the conditions which need to be met in order for
such measures to be ordered are unfamiliar. Yet, there is an ever growing number of
requests for effective interim relief on an international level, firstly, because of the ease
and speed with which assets can be transferred in the modern world to avoid a court
judgement or an arbitral award, and secondly, because contracting parties have higher
expectations of their ability to enforce their rights. The fear is that an unscrupulous party
might, for example, sell the goods or, even more obviously, transfer funds out of the
jurisdiction prior to the judgement, given that modern methods of international bank
transfers allow money to be transferred extremely fast.
8. The problems concerning the effectiveness and availability of interim relief on an
international level have been the subject of many studies, including work done by the
group of experts under the aegis of the International Law Association (ILA). At its 67th
Conference in 1996 the ILA adopted the “Principles of Provisional and Protective Measures
in International Litigation” (1) (the “ILA Principles”, reproduced in paragraph 108 of [the
January 2000 Secretariat Note,] A.CN.9/WG.II/WP.108 [reprinted in the section on Arts. 17 – 17
G, p. 210–12 supra]). The ILA Principles seek to establish rules of general application for the
assistance of law reformers both at the national and international level on the exercise by
courts of independent jurisdiction for granting provisional and protective measures with
the objective of securing assets out of which an ultimate judgement may be satisfied. (2)
The Principles were drafted bearing in mind “a paradigm case of measures to freeze the
assets of the defendant held in the form of sums on deposit in a bank account with a third
party bank”. (3) The ILA recommended these Principles for possible use by UNCITRAL and
the Hague Conference on Private International Law and in national statutory reforms. (4) It
must be noted however that these Principles were drafted with the international litigation
process in mind, as opposed to interim measures granted by a court in support of an
international arbitration.
9. The process for obtaining interim measures of protection in arbitration is full of added
difficulties. While not the case in all States, it is now widely recognized that parties may
apply either to the arbitral tribunal or to the courts for interim measures of protection.
However this freedom to choose is limited in a number of situations. First, the power of the
arbitral tribunal to issue interim measures of protection is often limited to what the
parties have agreed or by the institutional rules that they have chosen to govern their
arbitration. Second, the tribunal may only grant interim measures of protection directed
to the parties to the dispute. (5) Third, the tribunal can only act once it has been
P 550 constituted. Therefore, before the tribunal is in existence, interim measures of protection
P 551 have to be obtained from the court. Fourth, the power of the courts is also restricted.
Where a valid arbitration agreement is in existence, this has been regarded by some courts
as a decision by the parties to exclude the jurisdiction of the courts and would preclude
the granting of interim relief. The courts in a number of countries have tried to establish
the limits of this exclusion and the result is that a number of precedents are slowly
building up, defining the situations in which the court may legitimately intervene to
support the work of the arbitral tribunal without usurping its authority. Unfortunately, the
conclusions being reached vary from country to country, making it difficult to predict the
extent to which a national court may be prepared to intervene. Broadly however, a
distinction is drawn between the time before the arbitral tribunal has been convened and
afterwards. As noted above, before the tribunal has been convened, the court is generally
the only body with the power to order interim measures of protection and the range of

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 measures which the court can order at this stage is broader. Once the arbitral tribunal is in
existence, it has been suggested that court intervention becomes limited to assisting the
arbitral tribunal and providing what is termed “technical assistance” to enable the good
administration of the arbitration. (6) In addition, the courts in some countries have held
that at no time should the power of the court to issue interim measures of protection
extend to a discussion of, or preliminary decision on, the substantive law of the dispute. (7)
Finally, in an international dispute where interim relief is sought in a country other than
the country where the arbitration takes place, the question of jurisdiction arises: do the
national courts have jurisdiction to grant interim relief in support of foreign arbitration
and on what grounds?
10. Countries have adopted different approaches to this issue. Some countries have
legislation which contains adequate regulations, aimed in particular at the possibility of
having recourse to the court not only in cases where the arbitration takes place in the
country of the court, but also in cases where the arbitration takes place outside the
country yet the debtor's assets, including a non-resident debtor's assets, are in its
territory. (8) However, in many countries the law does not provide for this type of
assistance by local courts. For example, in some countries, application to the courts for
protective measures is only allowed where an application has already been made to that
court for a decision on the merits. This is not possible where there is an arbitration
agreement in existence. Equally in some jurisdictions, the court may order protective
measures only in cases where the arbitration takes place within the jurisdiction of the
court, but not abroad.
P 551
P 552
11. Therefore whilst some countries may already have adequate legislative regimes which
address these issues, the Working Group may take the view that the lack of a uniform
approach requires that the topic be considered further. A uniform regime may be
considered desirable not only from the viewpoint of countries that wish to have a model
facilitating the modernisation of law, but also from the perspective of users of arbitration
in countries that do have an effective regime, but who may wish to have access to effective
court assistance in other countries.
12. Having outlined a number of the issues concerning court ordered interim relief in
arbitration, the following discussion raises a number of the topics addressed by the ILA
Principles and provides background information and explanation. Solutions to these topics
may serve as an inspiration for any text that the Working Group might wish to prepare.
References to principles in the headings of Part B are to the relevant ILA Principles. Where
a Principle is not applicable in the context of international arbitration it has been
omitted.
13. It should also be noted that there may be other additional ways to improve the
effectiveness and availability of interim relief in international arbitration. It may be
possible to clarify arbitrators' powers, in particular with respect to the scope of measures
that may be issued, as discussed at paras 69–72 of [the January 2000 Secretariat Note,]
A/CN.9/WG.II/WP.108 [reprinted in the section on Arts. 17 – 17 G, pp. 208–09 supra]. In
addition it has also been noted that improving the enforceability of arbitral tribunal
ordered interim relief would help the situation. (9)
B. Possible issues that might be addressed by a uniform regime
a. Scope (Principles 1–2)
14. The Principles adopt a twofold classification of the purposes performed by provisional
measures in civil and commercial litigation, (a) to maintain the status quo pending
determination of the issues at trial; or (b) to secure assets out of which an ultimate
judgment may be satisfied. The distinction is one which is commonly made in national
legal systems and reflects the need for different types of relief (the classification of interim
measures into different categories was discussed at para. 63, [January 2000 Secretariat
Note,] A/CN.9/WG.II/WP.108 [reprinted in the section on Arts. 17 – 17 G, pp. 206–07 supra]). As
noted above in para. 8, the Principles focus upon measures in category (b) simply because
those measures represent measures commonly available and thus capable of comparative
analysis. Should the Working Group decide that work on the development of a set of
uniform rules on these issues is desirable, the question of the types of interim measure to
which they should apply would need to be considered.
P 552
P 553
b. Availability of provisional and protective measures (Principle 3)
15. It is desirable that the measures be available to both foreigners and citizens alike and
in respect of arbitrations held in both the country of the court issuing the measure and in a
foreign country. In some countries, courts will only issue interim measures in support of
arbitral proceedings held in that country. (10) In other countries, measures can be ordered
in support of foreign arbitral proceedings, subject to certain conditions, for example, that
the foreign arbitral award would be enforceable in that country, (11) that full disclosure of
the existence of the arbitration agreement has been made, (12) that the request for the
interim measure has been made by the arbitral tribunal or that the conditions of the
legislation of the country in which the measure is sought are met. (13) In a third category of

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 countries, the position is not clear either because the relevant legislation does not address
the issue or because there have been no reports of cases in which such an order has been
sought. (14)
16. In addition, where a measure is sought that affects the assets of a party to the arbitral
proceedings, it may not be appropriate to draw a distinction between whether those
assets are assets of a resident or non-resident of the country in which the measure is
sought, since the purpose of the measure is simply the preservation of assets. In some
countries, for example, the law requires that the court have jurisdiction over the
respondent before an interim measure can be ordered or enforced, while in others certain
measures can only be applied where the assets in respect of which the order is sought,
belong to non-resident debtors.
c. Discretionary nature of the award of interim measures (Principle 4)
P 553 17. The granting of relief would generally be discretionary rather than mandatory and
P 554 subject to certain specified considerations. Those might include, for example,
consideration of the merits of the applicant's case and the relative consequences to the
parties if the measure is either granted or refused. This may be problematic in the area of
arbitration where case law in a number of countries shows that courts are not prepared to
issue interim relief in any situation which would involve a preliminary discussion of the
merits of the case. Nevertheless the willingness of the court to grant the interim measure
usually depends to a greater extent on the urgency of the measure and the potential
damage to the applicant should the measure be refused. If it is clear that the applicant is
not merely trying to frustrate the arbitral proceedings it would seem that there is a greater
chance that the measure will be ordered and the court will get around the problem of
having to look at the substantive issues.
d. Hiding of assets (Principle 5)
18. The Principles recognize that the respondent should not be able to hide its assets by
putting them into, for example, a corporation or a trust, while still remaining either de
facto or beneficially the owner of the assets. While stating the general principle, the ILA
Committee noted that this problem was a complex one and required further research and
elaboration.
e. Due process and protection for the respondent (Principles 6–8)
19. While it might not always be possible to give the respondent prior notice that an order
for interim measures is being sought, particularly where the element of surprise is
important, as a general rule the respondent is entitled to be informed promptly of the
measure ordered. Consistent with article 18 of the Model Law, the respondent should be
given the opportunity to be heard within a reasonable time and to object to the
provisional and protective measure.
20. As another measure of protection for the respondent, the court may need to have the
authority to require security or other conditions (such as an undertaking by the applicant
to indemnify the respondent if the measure proves to be unjustified) from the applicant for
the potential injury to the respondent or to third parties which may result from the
granting of the order, such as where the order is, for example, unjustified or too broad. If an
undertaking as to damages might prove insufficient and the court considers ordering
security, an additional consideration might relate to the ability of the applicant to
respond to a claim for damages for such injury. In some countries, interim relief will only
be ordered where the applicant gives at least an undertaking as to damages, the amount
of the undertaking depending upon the type of measure requested, this being a common
determinant of the conditions attaching to an interim order. (15)
f. Access to information concerning the respondent's assets (Principle 9)
P 554 21. In some countries little relief is available to an applicant in the area of access to
P 555 information concerning the respondent's assets and the applicant may have no legal
right, for example, to be informed by a third party as to the assets held at the bank by the
respondent. Other legal systems make more expansive provision for ancillary disclosure.
As the ILA Principles note, there are important competing policies underlying these two
different positions; for example, the need for disclosure particularly in fraud cases to
enable a applicant to trace and recover assets effectively, as against the importance of
maintaining bank secrecy and the right to privacy as to personal financial affairs.
g. Jurisdiction (Principles 10–12, 16, 17)
22. A limitation on the granting of interim measures of relief in support of foreign
proceedings may be the requirement that courts of the forum in which the measure is
sought have jurisdiction over the substantive dispute. In some countries, for example,
some interim measures of protection cannot be ordered unless the substantive
proceedings are taking place, or would take place, in a court of that jurisdiction or in an
arbitral tribunal within that jurisdiction. In other cases, the provision for the granting of
interim relief in support of foreign court proceedings is limited to a group of convention
countries (e.g. the 1968 Brussels Convention) while in others it will apply to foreign court
proceedings anywhere in the world without the need for the party seeking relief to
establish any basis on which the court of the country in which relief is sought could assess
jurisdiction in relation to the substantive issues in the claim. In such jurisdictions, the

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 courts have indicated that the relief should not be limited to exceptional cases, (16)
provided that it is not granted as a matter of routine or without very careful consideration.
Such considerations might include, for example, whether the interim relief might hamper
or obstruct the management of the case by the court seized of the substantive
proceedings; or give rise to a risk of conflicting, overlapping or inconsistent orders in other
courts; and whether the primary court was requested to give such relief and declined to do
so.
23. The ILA Principles propose that jurisdiction could be derived from the mere presence of
assets, subject to conditions which include that the presence of assets (or, in fact, the
granting of an interim measure of protection in relation to those assets) should not be used
in and of itself as a basis for founding more general substantive jurisdiction, a condition
which reflects the common position in a number of different countries; the applicant would
have an obligation to file a substantive action, within a reasonable time, either in the
forum or abroad and there should be a reasonable possibility that any judgement
rendered abroad would be recognized in the forum which granted the interim relief.
24. Where the court is properly exercising jurisdiction over the substance of the matter, the
wide scope of orders that may be made over the respondent personally is a feature of the
law of many countries. The court's power would cover issuing provisional and protective
orders addressed to a respondent personally to freeze his assets, irrespective of their
location and regardless of whether the respondent is or was physically present within the
jurisdiction.
P 555
P 556
25. Where, however, the court is not exercising jurisdiction over the substance of the
matter, and is exercising jurisdiction purely in relation to the grant of provisional and
protective measures, there is a need for caution. The court's jurisdiction may need to be
restricted to assets located within the jurisdiction, in particular to ensure that third parties
are protected from the conflicts of jurisdiction which might otherwise arise. Subject to
international law, national rules (including rules of the conflict of laws) will determine the
location of assets.
h. Duration of the validity of the interim measure (Principle 13)
26. The provisional and protective measure should be valid for a specified limited time.
This principle is connected with the respondent's right to be heard. It may also be
important where the measure sought may be controversial, such as an ex parte measure, or
where it has the potential to be particularly onerous on the respondent if prolonged. In the
case of ex parte measures, the requirement that the applicant return to the court for a
renewal of the measure will allow the respondent to be heard at that time. The court can
then consider renewal in the light of developments in the arbitral tribunal where the
substantive action is being heard.
i. Duty to inform (Principle 15)
27. The applicant for provisional and protective measures should be required to promptly
inform the arbitral tribunal of orders that have been made at the applicant's request. It is
also important that the applicant be required to inform the court requested to make an
interim order of the current status of arbitration proceedings on the merits and
proceedings for provisional and protective measures in other jurisdictions (the duty to
inform is discussed in the context of enforcement of interim measures in [the September
2000 Secretariat Note,] A/CN.9/WG.II/WP. 110 at para. 64 [reprinted in the section on Arts. 17
H – 17 I, p. 453 supra]).
j. Cross-border recognition and international judicial assistance (Principles 18–20)
28. While not seeking to impose an obligation to recognize orders made in other States or
to cooperate with courts or arbitral tribunals in other jurisdictions, encouraging
cooperation in the making of local complementary orders may lead to tangible results,
both in recognition and judicial assistance. At the request of a party, a court may take into
account orders granted in other jurisdictions. Further, it may be appropriate for courts to
co-operate where necessary in order to achieve the efficacy of orders issued by other
courts, and to consider the appropriate local remedy.
29. The fact that an order is provisional in nature, rather than final and conclusive, should
not by itself be an obstacle to cooperation or even recognition or enforcement
(enforcement of interim measures is addressed in [the September 2000 Secretariat Note,]
A/CN.9/WG.II/WP.110 paras. 52–80 [partially reprinted in the section on Arts. 17 H – 17 I, pp.
450–57 supra]).
P 556
P 557
JANUARY 2002 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG./II/WP.119 (30 JANUARY
2002)
Court-ordered interim measures
8. At its thirty-second session (Vienna, 20–31 March 2000), the Working Group considered, in
the context of the discussion of interim measures that might be issued by an arbitral
tribunal, a proposal for the preparation of uniform rules for situations in which a party to

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 an arbitration agreement turned to a court with a request to obtain an interim measure of
protection ([April 2000 Working Group Report,] A/CN.9/468, paras. 85–87). It was pointed out
that it was particularly important for parties to have effective access to such court
assistance before the arbitral tribunal was constituted, but that also after the constitution
of the arbitral tribunal a party might have good reason for requesting court assistance. It
was added that such requests might be made to courts in the State of the place of
arbitration or in another State.
9. It was observed that in a number of States there were no provisions dealing with the
power of courts to issue interim measures of protection in favour of parties to arbitration
agreements; the result was that in some States courts were not willing to issue such interim
measures while in other States it was uncertain whether and under what circumstances
such court assistance was available. It was said that, if the Working Group decided to
prepare uniform provisions on that topic, the ILA Principles on Provisional and Protective
Measures in International Litigation as well as the preparatory work that led to those
Principles would be useful in considering the content of the proposed uniform rules.
10. The Working Group took note of the proposal and decided to consider it at a future
session.
11. At its thirty-third session (Vienna, 20 November – 1 December 2000) the Working Group
considered preparatory work undertaken by the Secretariat with regard to the topic (see
[October 2000 Secretariate Note,] A/CN.9/WG.II/WP.111 paras. 2–29) and expressed its
support for future work to enhance the effectiveness of arbitration in international trade.
While noting that the topic concerned court procedure, an area where harmonization
traditionally had been difficult to achieve, it was said that legal certainty in that area was
desirable for the good functioning of international commercial arbitration. It was noted
that the work on the topic would have to be founded on broad empirical information and
that the Secretariat should contact Governments and arbitration organizations with a view
to obtaining such information. The Secretariat was requested to prepare preliminary
studies and proposals on the basis of the information received.
12. The Secretariat prepared a short questionnaire that was forwarded to Governments to
ascertain information on powers of courts to order interim measures in support of
arbitration and examples of measures that may have been issued.
P 557
P 558
13. Part 1 of this note summarises the information obtained from the surveys on interim
measures issued by both courts and arbitral tribunals. Part 2 provides a summary of work
being undertaken by other international organizations in respect of interim measures
ordered by courts. Part 3 proposes ways in which some of the issues raised may be
addressed, based upon the discussion in the Working Group and a revision of the draft text
considered by the Working Group at its thirty-fourth session in 2001.
[Editors' Note: Part 1 addresses interim measures issued by both courts and arbitral
tribunals. Among the topics discussed are the types of interim measures that may be issued
by arbitral tribunals and courts, the interrelationship of interim measures issued by arbitral
tribunals and those issued by courts, the elements to be satisfied in obtaining such measures,
and interim measures issued by courts in support of foreign arbitrations. The material is
reproduced in the section on arbitration-ordered interim measures, Arts. 17 – 17 G, pp. 225–35
supra.]
II. International work on provisional measures
49. The questions concerning the availability, effectiveness and enforcement of interim
measures on an international level have been the subject of work by a number of different
international organizations, some of which are currently drafting texts which include
provisions on interim measures.
A. International Law Association Principles
50. At its 67th Conference in 1996, the International Law Association (ILA) adopted the
“Principles of Provisional and Protective Measures in International Litigation” (23) (the “ILA
Principles”), which were prepared by a group of experts under the aegis of the ILA (the
Principles were reproduced verbatim in paragraph 108 of [the January 2000 Secretariat
Note,] A/CN.9/WG.II/WP.108 [reprinted in the section on Arts. 17 – 17 G, p. 210-12 supra]).
51. The ILA Principles seek to establish rules of general application for the assistance of law
reformers both at the national and international level on the exercise by courts of
independent jurisdiction for granting provisional and protective measures with the
objective of securing assets out of which an ultimate judgement may be satisfied. (24) The
Principles were drafted bearing in mind “a paradigm case of measures to freeze the assets
of the defendant held in the form of sums on deposit in a bank account with a third party
bank”. (25) The ILA recommended these Principles for possible use by UNCITRAL and the
Hague Conference on Private International Law and in national statutory reforms. (26) It
must be noted however that these Principles were drafted with the international litigation
process in mind, as opposed to interim measures granted by a court in support of an
international arbitration. Nevertheless, a number of the issues addressed are relevant to
any consideration of interim measures issued by courts in support of arbitration. The
Principles are summarised below.
P 558

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 P 558
P 559
1. Scope (Principles 1–2)
52. The Principles adopt a twofold classification of the purposes performed by provisional
measures in civil and commercial litigation: (a) to maintain the status quo pending
determination of the issues at trial; or (b) to secure assets out of which an ultimate
judgment may be satisfied. The distinction is one that is commonly made in national legal
systems and reflects the need for different types of relief (the classification of interim
measures into different categories was discussed at para. 63, [January 2000 Secretariat
Note,] A/CN.9/WG.II/WP.108 [reprinted in the section on Arts. 17 – 17 G, p. 206 supra] and
paras. 16–18 above [reprinted in the same section, pp. 225–27 supra]). As noted above, the
Principles focus upon measures in category (b) simply because those measures represent
measures commonly available and thus capable of comparative analysis.
2. Availability of provisional and protective measures (Principle 3)
53. When used in the context of arbitration, the Principles would seem to imply that it is
desirable that interim measures be available to foreigners and citizens alike and in
respect of arbitrations held in both the country of the court issuing the measure and in a
foreign country. (As noted in the discussion of the survey results above, practice varies with
respect to the availability of interim measures in support of foreign arbitration.)
3. Discretionary nature of the award of interim measures (Principle 4)
54. The granting of relief would generally be discretionary rather than mandatory and
subject to certain specified considerations. Those might include, for example, prima facie
consideration of the merits of the applicant's case and the relative consequences to the
parties if the measure is either granted or refused.
55. Case law in a number of countries shows that courts are not prepared to issue interim
relief in support of arbitration in any situation that would involve a preliminary discussion
of the merits of the case. The willingness of the court to grant the interim measure usually
depends to a great extent on the urgency of the measure and the potential damage to the
applicant should the measure be refused. If it is clear that the applicant is not merely
trying to frustrate the arbitral proceedings it would seem that there is a greater chance
that the measure will be ordered and the court will avoid having to look at the substantive
issues.
4. Hiding of assets (Principle 5)
56. The Principles recognize that the respondent should not be able to hide its assets by
putting them into, for example, a corporation or a trust, while still retaining either de facto
or beneficially the ownership of the assets. While stating the general principle, the ILA
Committee noted that this problem was a complex one and required further research and
elaboration.
P 559
P 560
5. Due process and protection for the respondent (Principles 6–8)
57. While it might not always be possible to give the respondent prior notice that an order
for interim measures is being sought, particularly where the element of surprise is
important, as a general rule the respondent is entitled to be informed promptly of the
measure ordered. The Principles stress that the respondent should be given the
opportunity to be heard within a reasonable time and to object to the provisional and
protective measure.
58. As another safeguard for the respondent, the court may need to have the authority to
require security or other conditions (such as an undertaking by the applicant to indemnify
the respondent if the measure proves to be unjustified) from the applicant for the
potential injury to the respondent or to third parties which may result from the granting of
the order, such as where the order is unjustified or too broad. If an undertaking as to
damages might prove insufficient and the court considers ordering security, an additional
consideration might relate to the ability of the applicant to respond to a claim for
damages for such injury. The type of measure requested is a common determinant of the
conditions that may attach to an interim measure. (27)
6. Access to information concerning the respondent's assets (Principle 9)
59. In some countries little relief is available to an applicant in the area of access to
information concerning the respondent's assets and the applicant may have no legal right,
for example, to be informed by a third party as to the assets held at the bank by the
respondent. Other legal systems make more expansive provision for ancillary disclosure.
As the ILA Principles note, there are important competing policies underlying these two
different positions; for example, the need for disclosure particularly in fraud cases to
enable an applicant to trace and recover assets effectively, as against the importance of
maintaining bank secrecy and the right to privacy as to personal financial affairs.
7. Jurisdiction (Principles 10–12, 16, 17)
60. A limitation on the granting of interim measures of relief in support of foreign
proceedings may be the requirement that courts of the forum in which the measure is

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 sought have jurisdiction over the substantive dispute. In some countries, for example,
some interim measures of protection cannot be ordered unless the substantive
proceedings are taking place, or would take place, in a court of that jurisdiction or in an
arbitral tribunal within that jurisdiction. In other cases, the provision for the granting of
interim relief in support of foreign court proceedings is limited to the group of countries
party to particular conventions (e.g., the 1968 Brussels Convention). In yet other cases, that
provision will apply to foreign court proceedings anywhere in the world without the law
specifying any basis on which the court of the country in which relief is sought could assess
P 560 jurisdiction in relation to the substantive issues in the claim. In such jurisdictions, the
P 561 courts have indicated that the relief should not be limited to exceptional cases, (28)
provided that it is not granted as a matter of routine or without very careful consideration.
Such considerations might include, for example, whether the interim relief might hamper
or obstruct the management of the case by the court seized of the substantive
proceedings; or give rise to a risk of conflicting, overlapping or inconsistent orders in other
courts; and whether the primary court was requested to give such relief and declined to do
so.
61. The ILA Principles propose that jurisdiction could be derived from the mere presence of
assets, subject to conditions. These include that the presence of assets (or, in fact, the
granting of an interim measure of protection in relation to those assets) should not be used
as a basis for founding more general substantive jurisdiction. This condition reflects the
common position in a number of different countries; the applicant would have an
obligation to file a substantive action, within a reasonable time, either in the forum or
abroad and there should be a reasonable possibility that any judgement rendered abroad
would be recognized in the forum which granted the interim relief.
62. Where the court is properly exercising jurisdiction over the substance of the matter, the
wide scope of orders that may be made over the respondent personally is a feature of the
law of many countries. The court's power would cover issuing provisional and protective
orders addressed to a respondent personally to freeze the respondent's assets,
irrespective of their location and regardless of whether the respondent is or was physically
present within the jurisdiction.
63. Where, however, the court is not exercising jurisdiction over the substance of the
matter, and is exercising jurisdiction purely in relation to the grant of provisional and
protective measures, there is a need for caution. The court's jurisdiction may need to be
restricted to assets located within the jurisdiction, in particular to ensure that third parties
are protected from the conflicts of jurisdiction which might otherwise arise. Subject to
international law, national rules (including rules of the conflict of laws) will determine the
location of assets.
8. Duration of the validity of the interim measure (Principle 13)
64. The provisional and protective measure should be valid for a specified limited time.
This principle is connected with the respondent's right to be heard. It may also be
important where the measure sought may be controversial, such as an ex parte measure, or
where it has the potential to be particularly onerous on the respondent if prolonged. In the
case of ex parte measures, the requirement that the applicant return to the court for a
renewal of the measure will allow the respondent to be heard at that time. The court can
then consider renewal in the light of developments in the arbitral tribunal where the
substantive action is being heard.
9. Duty to inform (Principle 15)
65. The applicant for provisional and protective measures should be required to promptly
P 561 inform the arbitral tribunal of orders that have been made at the applicant's request. It is
P 562 also important that the applicant be required to inform the court requested to make an
interim order of the current status of arbitration proceedings on the merits and
proceedings for provisional and protective measures in other jurisdictions (the duty to
inform is discussed in the context of enforcement of interim measures in [the September
2000 Secretariat Note,] A/CN.9/WG.II/WP. 110 at para. 64 [reprinted in the section on Arts. 17
H – 17 I, p. 453 supra]).
10. Cross-border recognition and international judicial assistance (Principles 18–20)
66. While not seeking to impose an obligation to recognize orders made in other States,
encouraging cooperation in the making of local complementary orders may lead to
tangible results, both in recognition and judicial assistance. At the request of a party, a
court may take into account orders granted in other jurisdictions. Further, it may be
appropriate for courts to co-operate where necessary in order to achieve the efficacy of
orders issued by other courts, and to consider the appropriate local remedy.
67. The fact that an order is provisional in nature, rather than final and conclusive, should
not by itself be an obstacle to cooperation or even recognition or enforcement
(enforcement of interim measures is addressed in [the September 2000 Secretariat Note,]
A/CN.9/WG.II/WP.110 paras. 52–80 [partially reprinted in the section on Arts. 17 H – 17 I, pp.
450– 57 supra]; [the March 2001 Secretariat Note,] A/CN.9/WG.II/WP.113, paras. 17–18
[partially reprinted in the section on Arts. 17 H – 17 I, pp. 219–20 supra]; [and the June 2001
Working Group Report,] A/CN.9/487, paras. 64–87 [paras. 64–75 reprinted in the section on
Arts. 17 – 17 G, pp. 220–23 supra; paras. 76–87 in the section on Arts. 17 H – 17 I, pp. 466–69

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 supra]).
B. American Law Institute/Unidroit: Draft Fundamental Principles and Rules of
Transnational Civil Procedure
68. This is a joint project to draft procedural rules that a country could adopt for
adjudication of disputes arising from international transactions. The draft Principles are
intended to be interpretive guides to the draft Rules and could be adopted as principles
of interpretation. They could also be adopted as guidelines in interpreting existing
national codes of procedure. Correlatively, the draft Rules can be considered as an
exemplification of the Principles. The November 2001 revision of the draft Fundamental
Principles contains the following principles relating to provisional measures:
“3.3 Jurisdiction may be exercised on the basis of sequestration of property
located within the forum state, but only if no other reasonably convenient
forum is available.
“3.4 Provisional measures may be provided with respect to property in the
forum state, even if the courts of another state have jurisdiction over the
controversy.
P 562 “4.3 A person should not be required to provide security for costs, or for
P 563 liability for provisional measures, solely because that person is not
domiciled in the forum state. In any event, security for costs should not
restrict access to justice.
“26.1 Procedures should be available for prompt, speedy, effective, and
efficient execution of a provisional remedy, a judgment for money,
including costs, or a judgment for an injunction, awarded in a proceeding
under these Principles.
“27.1 A final judgment or provisional remedy in a proceeding under these
Principles, and its eligibility for effective enforcement, should be
accorded the same recognition, in the forum and other States, as other
judgments or provisional remedies of the forum.
“28.1 The courts of a State that has recognized these Principles should provide
support to the courts of any other State that is conducting litigation under
these Principles, including the grant of protective or provisional relief, or
assisting in the identification, preservation, or production of directly
relevant evidence.”
69. The November 2001 version of the draft Rules contains the following provisions (with
commentary) on interim measures:
“17.1 In accordance with forum law and subject to applicable international
conventions, the court may issue an injunction to restrain or require
conduct of any person who is subject to the court's authority where
necessary to preserve the status quo or to prevent irreparable injury
pending the litigation. The extent of such a remedy shall be governed by
the principle of proportionality.
17.1.1 A court may issue such an injunction, before the opposing party has
opportunity to respond, only upon proof showing urgent necessity and a
preponderance of considerations of fairness in support of such relief. The
party or persons to whom the injunction is directed shall have opportunity
at the earliest practicable time to respond concerning the
appropriateness of the injunction.
17.1.2 The court may, after hearing those interested, issue, dissolve, renew, or
modify an injunction.
17.1.3 The applicant is liable for full indemnification of the person against whom
an injunction is entered if it turns out that the injunction was wrongly
granted.
17.1.4 The court may require the applicant for relief to post a bond or to assume
a duty of indemnification of the person against whom an injunction is
entered.
“17.2 An injunction may restrain a person over whom the court has jurisdiction
from transferring property or assets, wherever located, pending the
conclusion of the litigation and require a party to promptly reveal the
whereabouts of its assets, including assets under its control, and of
persons whose identity or location is relevant.
P 563
P 564
“17.3 When the property or assets are located abroad, recognition and
enforcement of an injunction under the previous subsection is governed by
the law of the country where the property or assets are located, and by
means of an injunction by the competent court of that country.
“34.2 An order of a court of first instance granting or denying an injunction
sought under Rule 17 is subject to immediate review. The injunction
remains in effect during the pendency of the review, unless the reviewing

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 court orders otherwise.”
70. The following is the Commentary on the Rules:
“C–
17.1 The term “injunction” refers to an order requiring or prohibiting the
performance of a specified act, for example, preserving property in its
present condition. Rule 17.1 authorizes the court to issue an injunction that
is either affirmative, in that it requires performance of an act, or negative
in that it prohibits a specific act or course of action. Availability of other
provisional remedies or interim measures, such as attachment or
sequestration, should be determined by forum law, including applicable
principles of international law.
“C–
17.2 Rule 17.1.1 authorizes the court to issue an injunction without notice to the
person against whom it is directed where doing so is justified by urgent
necessity.
“Urgent necessity,” required as a basis for an ex parte injunction, is a
practical concept, as is the concept of preponderance of considerations of
fairness. The latter term corresponds to the common-law concept of
“balance of equities.” Considerations of fairness include the strength of the
merits of the applicant's claim, the urgency of the need for a provisional
remedy, and the practical burdens that may result from granting the
remedy. Such an injunction is usually known as an ex parte injunction. In
common-law procedure such an order is usually referred to as a
“temporary restraining order.”
“The question for the court, in considering an application for an ex parte
injunction, is whether the applicant has made a reasonable and specific
demonstration that such an order is required to prevent an irreparable
deterioration in the situation to be addressed in the litigation, and that it
would be imprudent to postpone the order until the opposing party has
opportunity to be heard. The burden is on the party requesting an ex parte
injunction to justify its issuance. However, opportunity for the opposing
party or person to whom the injunction is addressed to be heard should be
afforded at the earliest practicable time.
“C–
17.3 Rules of procedure or ethics generally require that a party requesting an
ex parte injunction make full disclosure to the court of all aspects of the
situation, including those favorable to the opposing party. Failure to make
such disclosure is ground to vacate an injunction and may be a basis of
liability for damages against the requesting party.
P 564
P 565
“C–
17.4 As indicated in Rule 17.1.2, if the court had declined to issue an injunction
ex parte, it may nevertheless issue an injunction upon a hearing. If the
court previously issued an injunction ex parte, it may renew or modify its
order in light of the matters developed at the hearing. The burden is on
the plaintiff to show that the injunction is justified.
“C–
17.5 Rule 17.1.4 authorizes the court to require a bond or other indemnification,
as protection against the disturbance and injury that may result from an
injunction.
The particulars of such indemnification should be determined by
reference to the general law of the forum.
“C–
17.6 Rule 17.2 permits the court to restrain transferring property located
outside the forum State and to require disclosure of the party's assets. In
the law of the United Kingdom this is referred to as a Mareva injunction.
The Brussels Convention requires recognition of such an injunction by
signatories to that Convention because an injunction is a judgment. This
subsection also authorizes an injunction requiring disclosure of the
identity and location of persons to facilitate enforcement of an eventual
judgment.
“C–
17.7 Rule 34.2 provides for the review of an order granting or denying a
preliminary injunction, according to the procedure of the forum. Review by
a second-instance arbitral tribunal is regulated in different ways in
various systems so that only a general principle providing for an
immediate review is stated here. The guarantee of a review is particularly
necessary when the injunction has been issued ex parte. However, it should
also be recognized that such a review may entail a loss of time or
procedural abuse.

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 “C–
17.8 Rule 17.3 deals with a preliminary injunction that concerns property or
assets located in another country. In transnational litigation property or
assets may need to be “blocked” or “disclosed” in a country different from
the one of the court having jurisdiction of the case. A further problem
concerns the enforcement of such an injunction. Whether the injunction
should be recognized depends on the rules and principles of the law of the
country where the property or assets are located.
“C–
34.3 Rule 34.2 permits pendente lite interlocutory appellate review of orders
granting or denying an injunction. See Rule 17. The injunction remains in
effect during the pendency of the review, unless the reviewing court orders
otherwise. The court may determine that an injunction should expire or be
terminated if circumstances warranted.”
C. Hague Conference on Private International Law: draft Convention on Jurisdiction and
Foreign Judgments in Civil and Commercial Matters
71. The interim text prepared by the Permanent Bureau and the Co-reporters on the basis
P 565 of the discussion in Commission II of the first part of the Diplomatic Conference (6–20 June
P 566 2001) contains a number of alternative provisions addressing provisional and protective
measures, although it has not yet been resolved whether these measures should be
included within the scope of the Convention. (29)
Article 13 Provisional and protective measures
[Alternative A
1. A court seised (30) and having jurisdiction under Articles […] to determine the merits of
the case has jurisdiction to order provisional and protective (31) measures.
2. A court of a Contracting State [may] [has jurisdiction to], (32) even where it does not have
jurisdiction to determine the merits of a claim, order a provisional and protective measure
in respect of property in that State or the enforcement of which is limited to the territory
of that State, to protect on an interim basis a claim on the merits which is pending or to be
brought by the requesting party in a Contracting State which has jurisdiction to determine
that claim under Articles […] (33)
3. Nothing in this Convention shall prevent a court in a Contracting State from ordering a
provisional and protective measure for the purpose of protecting on an interim basis a
claim on the merits which is pending or to [sic] brought by the requesting party in another
State. (34)
P 566
P 567 4. In paragraph 3 (35) a reference to a provisional and protective measure means
a) a measure to maintain the status quo pending determination of the issues at trial; or
b) a measure providing a preliminary means of securing assets out of which an ultimate
judgment may be satisfied; or
c) a measure to restrain conduct by a defendant to prevent current or imminent future
harm.]
[Alternative B (36)
A court which is or is about to be seised of a claim and which has jurisdiction under Articles
[3 to 15] to determine the merits thereof may order provisional and protective measures,
intended to preserve the subject-matter of the claim.]
[Article 23A Recognition and enforcement of provisional and protective measures (37)
[Alternative A
1. A decision ordering a provisional and protective measure, which has been taken by a
court seised (38) with the claim on the merits, shall be recognised and enforced in
Contracting States in accordance with Articles [25, 27–34].
2. In this article a reference to a provisional or protective measure means —
a) a measure to maintain the status quo pending determination of the issues at trial; or
b) a measure providing a preliminary means of securing assets out of which an ultimate
judgment may be satisfied; or
c) a measure to restrain conduct by a defendant to prevent current or imminent future
harm.]
P 567
P 568
[Alternative B
Orders for provisional and protective measures issued in accordance with Article 13 (39)
shall be recognised and enforced in the other Contracting States in accordance with
Articles [25, 27–34].]]
III. Possible provisions

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 72. The material discussed above suggests that, with respect to interim measures in
support of arbitration issued by both courts and arbitral tribunals, there are a number of
issues that the Working Group may wish to address.
73. Those issues are: whether there is the power to order interim measures and if so, the
scope and extent of that power; the relationship between the court and the arbitral
tribunal once the arbitral tribunal has been constituted and their respective powers to
issue interim measures (including before the arbitral tribunal is constituted); the pre-
conditions for issue of such measures; and the conditions that may attach to the interim
measures issued; the type and scope of measures that may be issued; and whether the
measures can be enforced in a foreign jurisdiction. In respect of court ordered measures
there is an additional issue of whether the power to order interim measures extends to
both domestic and foreign arbitration.
[Editors' Note: Draft provisions on interim measures issued by arbitral tribunals are reprinted
in the section on Arts. 17 – 17 G, pp. 235–37, supra.]
B. Court-ordered interim measures
75. As noted above, there is some uncertainty as to the power of courts to issue interim
measures in cases where there is a valid arbitration agreement. While article 9 of the
UNCITRAL Model Law provides that is not incompatible with an arbitration agreement for a
party to request interim measures of protection and for a court to grant it, the Model Law
does not positively resolve the question of whether the court has the power to issue
interim measures. In some jurisdictions, therefore, adoption of article 9 may not be
sufficient to establish that the court has express power to issue interim measures in
support of arbitration.
76. The Working Group may wish to consider whether a provision clarifying that issue of the
court's power should be formulated. If such a provision were to be considered, the Working
Group may also wish to consider three related questions (which the Working Group
discussed at its thirty-fourth session (New York, 21 May–1 June 2001) (see [June 2001 Working
Group Report,] A/CN.9/487, paras. 64–68 [reprinted in the section on Arts. 17 – 17 G, pp. 220–
22 supra]) in the context of arbitral tribunal ordered interim measures):
(a) the scope of the power and whether it should be limited in any way such as by
reference to the “subject matter of the dispute” or some other formulation (as
included in article 17 of the UNCITRAL Model Law) and whether such measures may be
ordered ex parte;
P 568
P 569
(b) pre-conditions for the issue of interim measures and whether they should be
included in the provision, such as requirements that: appropriate security be
provided by a party (see article 17 of the UNCITRAL Model Law); it be demonstrated
that the measure is required urgently; or it be demonstrated that a significant degree
of harm will result if the measure is not ordered (common examples of these
conditions are set forth in para. 37 above[, reprinted in the section on Arts. 17 – 17 G, p.
231 supra]); and
(c) the types of measures that the court may order in support of arbitration, and whether
they should be specifically enumerated in the provision in order to provide
assistance to courts and achieve a degree of consistency and clarity or whether they
should be included by reference to broader categories of measures. These references
could be included in the provision as purely illustrative (and not exhaustive) of the
types of measures the court may issue or they could be discussed in an explanatory
guide to the provisions.
77. In view of the Working Group's discussion in respect of the arbitral tribunal-ordered
interim measures of protection, and the degree of similarity of the issues discussed in
respect of court-ordered measures, the Working Group may wish to consider whether
provisions along the lines of those presented above in respect of arbitral tribunal ordered
measures may be appropriate for application to court-ordered measures, with
appropriate reference to the court and taking into account the following suggested
changes.
78. In article 17, paragraph (1) [Art. 17(1) in the final text] of the draft provision, the
references to agreement by the parties could be deleted as it would be inappropriate to
an application for court-ordered interim measures. The provision would be intended to
apply to requests for the issue of interim measures in support of both domestic and foreign
arbitral proceedings.
79. Provisions relating to the types of measures and the conditions for their issuance
already exist in national laws (at least in respect of parties to litigation). In line with the
discussion referred to above in respect of arbitral tribunal-ordered interim measures, the
Working Group may wish to consider whether to establish a set of harmonized provisions on
the types of measures and the conditions that will be applicable to their issue by courts in
support of arbitral proceedings or whether, alternatively, to apply the existing provisions
with respect to litigation to interim measures in support of arbitration. A harmonized
provision establishing the types of measures that can be issued might refer to general
categories of measures along the lines as presented above in article 17, paragraph (4) [Art.
17(2) in the final text] of the draft provision. An alternative approach reflecting the

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 provisions existing with respect to litigation might be:
(4) The court shall have the same power of issuing interim measures of protection for the
purposes of and in relation to arbitration proceedings as it has for the purposes of and in
relation to proceedings in the court. (43)
P 569 80. At its last session, the Working Group discussed the possibility of an arbitral tribunal
P 570 ordering interim measures on an ex parte basis, noting with some concern the different
positions with respect to enforcement between ex parte measures ordered by a court and
by an arbitral tribunal (see [June 2001 Working Group Report,] A/CN.9/487, para. 70
[reprinted in the section on Arts. 17 – 17 G, p. 222 supra]). As noted in para. 30 above, many
jurisdictions allow courts to issue interim measures in support of arbitration on an ex parte
basis on certain conditions. These include provision of security for damages and
demonstration of the requisite urgency.
81. The Working Group may wish to consider whether the question of the court's power to
issue interim measures on an ex parte basis should be addressed in uniform provisions and
if so, whether the conditions discussed in respect of their issue by arbitral tribunals should
serve as a model. If a provision along the lines of that discussed in paragraph 79 above
were to be adopted, the question of the ex parte issue of interim measures would follow
the position with respect to litigation. To promote the adoption of a more uniform position,
the Working Group may wish to consider a provision along the lines of that presented
above as article 17, paragraphs (5) [Arts. 17 B and E(2) in the final text] and (6) [Art. 17 C in the
final text] of the draft provision.
C. Relationship between courts and arbitral tribunals
82. As discussed above, a number of different approaches are evident in respect to the
power to issue interim measures and how this is divided between the court and the
arbitral tribunal. To ensure effective availability of interim measures to parties who have
agreed to arbitrate, it is desirable that they have access to both the arbitral tribunal and
to the court. As noted above in paragraph 75, that goal is only partially achieved by article
9 of the Model Law that an application to the courts for interim measures is neither
inconsistent with, nor constitutes a waiver of, an agreement to arbitrate. The Working
Group may wish to consider whether this issue requires further consideration.
[Editors' Note: Draft provisions on enforcement of interim measures issued by arbitral
tribunals are reprinted in the section on Arts. 17 H – 17 I, pp. 469–71 supra.]
NOVEMBER 2002 WORKING GROUP REPORT A/CN.9/523 (11 NOVEMBER 2002)
IV. Interim measures ordered by courts
77. The Working Group heard a brief exchange of views on the possible treatment of interim
measures of protection ordered by state courts in the context of the revision of article 17 of
the Model Law ([January 2002 Secretariat Note,] A/CN.9/WG.II/WP.119). Support was
expressed for the general principle that the rules governing court-ordered measures
should parallel as much as possible the rules applicable to interim measures ordered by
the arbitral tribunal. However, it was widely felt that it would be overly ambitious to
attempt to harmonize, by way of an international instrument the rules applicable to
P 570 interim measures of protection ordered by courts in support of arbitration. By way of
P 571 illustration, it was stated that it would be extremely difficult to reconcile rules
regarding interim measures ordered by a state court in support of an arbitration with the
principle applicable in some jurisdictions that the jurisdiction of courts to decide on
interim measures was conditional upon the existence of proceedings on the merits of the
case pending before the same court. It was agreed that the discussion would need to be
continued at a future session.
JUNE 2003 WORKING GROUP REPORT A/CN.9/524 (2 JUNE 2003)
IV. Court-ordered interim measures
76. The Working Group considered a possible draft provision expressing the power of the
court to order interim measures of protection in support of arbitration on the basis of the
Note by the Secretariat ([January 2002 Secretariat Note,] A/CN.9/WG.II/WP.119, paras. 75–81
and, in particular, the draft provision which read as follows:
“The court shall have the same power of issuing interim measures of protection
for the purposes of and in relation to arbitration proceedings as it has for the
purposes of and in relation to proceedings in the courts.”
77. General support was expressed in favour of a provision that would give a court power to
issue interim measures of protection, irrespective of the country where the arbitration took
place. As to the criteria and standards for the issuing of such measures, different views
were expressed. One view was that the court should apply its own rules of procedures and
standards. Another view favoured the criteria and standards set forth in article 17. It was
generally recognized that any reference to existing standards would have to provide
flexibility for the court to adapt to the specific features of international arbitration.
78. The Secretariat was requested to prepare a revised draft with variants reflecting the
views expressed above. It was pointed out that the scope of the provision was not in line
with the rule on territoriality expressed in the Model Law. It was generally agreed that in

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 preparing the revised draft, attention should be given to the possible need of adapting
article 1 (2) to extend the exception to the territorial application of the Model Law.
P 571
P 572
OCTOBER 2003 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.125 (2 OCTOBER
2003)
II. Draft provision on the power of courts to order interim measures of protection in
support of arbitration (for insertion as a new article of the UNCITRAL Model Law on
International Commercial Arbitration, tentatively numbered 17 ter) [Art. 17 J in the final
text]
A. Variants for consideration by the Working Group
40. At its thirty-eighth session, the Working Group considered a possible draft provision
expressing the power of the court to order interim measures of protection in support of
arbitration on the basis of a Note by the Secretariat ([January 2002 Secretariat Note]
A/CN.9/WG.II/WP.119) and, in particular, the draft provision which read as follows:
“The court shall have the same power of issuing interim measures of protection
for the purposes of and in relation to arbitration proceedings as it has for the
purposes of and in relation to proceedings in the courts.”
41. General support was expressed in favour of a provision that would give a court power to
issue interim measures of protection, irrespective of the country where the arbitration took
place. It was pointed out that the scope of the provision was not in line with the rule on
territoriality expressed in the Model Law. It was generally agreed that in preparing the
revised draft, attention should be given to the possible need of adapting article 1 (2) to
extend the exception to the territorial application of the Model Law ([June 2003 Working
Group Report,] A/CN.9/524, para. 78). The Working Group may wish to consider amending
article 1(2) to include a reference to any provision conferring upon a court the power to
issue interim measures of protection even if the arbitration took place outside the country
of that court.
42. The following variants are presented to assist a continuation of discussion on this topic.
Variant 1
“The court shall have the same power of issuing interim measures of protection
for the purposes of and in relation to arbitration proceedings as it has for the
purposes of and in relation to proceedings in the courts and shall exercise that
power in accordance with its own rules and procedures insofar as these are
relevant to the specific features of an international arbitration.
Variant 2
“The court shall have the same power of issuing interim measures of protection
P 572 for the purposes of and in relation to arbitration proceedings as it has for the
P 573 purposes of and in relation to proceedings in the courts. That power shall be
exercised in accordance with the requirements set out under article 17 insofar
as these requirements can be applied.”
43. The variants take a different approach as to the criteria and standards that apply to
court-ordered interim measures. Variant 1 seeks to give effect to the suggestion that the
court should apply its own rules of procedures and standards. Variant 2 reflects the view
that the criteria and standards set forth in article 17 should apply to courts. It was
generally recognized that any reference to existing standards would have to provide
flexibility for the court to adapt to the specific features of international arbitration ([June
2003 Working Group Report,] A/CN.9/524, para. 77).
B. Materials as examples to assist in the discussions
44. The Working Group may wish to consider the following national legislation which
provides different approaches to the question of whether to confer a power on courts to
order interim measures of protection. Essentially, the issues raised in drafting such a
provision include: whether this power should be limited only to arbitral tribunals or
whether this power should be one that can be exercised by both an arbitral tribunal and a
court. In the latter option, the issues that should be considered are how to balance the
power to order interim measures of protection as between the courts and arbitral
tribunals, namely: whether the power of the court should be limited to circumstances
where the arbitral tribunal has not yet been constituted; whether an application to a court
for interim measures should be subject to party consent and notice to the arbitral tribunal;
whether the court power should be a secondary option available only where an arbitrator
cannot act effectively or the parties have agreed that the arbitrator not be empowered to
grant interim measures of protection. Alternatively the balancing of these powers could be
left to party choice (for an earlier discussion on court-ordered interim measures, see
[January 2002 Secretariat Note,] A/CN.9/WG.II/WP.119, paras. 19–33, 37–40, 44–48 [reprinted
in the section on Arts. 17 – 17 G, pp. 227–30, 231–32, 233–35 supra] and 75–82 [supra]).
1. UK Arbitration Act 1996 (which applies to England and Wales Only)

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 “44. –
(1) Unless otherwise agreed by the parties, the court has for the purposes of
and in relation to arbitral proceedings the same power of making orders
about the matters listed below as it has for the purposes of and in relation
to legal proceedings.
(2) Those matters are:
(a) The taking of the evidence of witnesses;
(b) The preservation of evidence;
(c) Making orders relating to property which is the subject of the
proceedings or as to which any question arises in the proceedings:
(i) For the inspection, photographing, preservation, custody or
detention of the property, or
P 573
P 574
(ii) Ordering that samples be taken from, or any observation be
made of or experiment conducted upon, the property;
And for that purpose authorising any person to enter any premises in
the possession or control of a party to the arbitration;
(d) The sale of any goods the subject of the proceedings;
(e) The granting of an interim injunction or the appointment of a
receiver.
(3) If the case is one of urgency, the court may, on the application of a party
or proposed party to the arbitral proceedings, make such orders as it
thinks necessary for the purpose of preserving evidence or assets.
(4) If the case is not one of urgency, the court shall act only on the application
of a party to the arbitral proceedings (upon notice to the other parties and
to the tribunal) made with the permission of the tribunal or the agreement
in writing of the other parties.
(5) In any case the court shall act only if or to the extent that the arbitral
tribunal, and any arbitral or other institution or person vested by the
parties with power in that regard, has no power or is unable for the time
being to act effectively.
(6) If the court so orders, an order made by it under this section shall cease to
have effect in whole or in part on the order of the tribunal or of any such
arbitral or other institution or person having power to act in relation to the
subject-matter of the order.
(7) The leave of the court is required for any appeal from a decision of the
court under this section.”
2. German Arbitration Law—Section 1033 (Code of Civil Procedure)
“Arbitration agreement and interim measures by court
It is not incompatible with an arbitration agreement for a court to grant, before or during
arbitral proceedings, an interim measure of protection relating to the subject-matter of
the arbitration upon request of a party.”
3. Hong Kong Arbitration Ordinance (Chapter 341 of the Law of Hong Kong)
“(1) The Court or a judge of the Court may, in relation to a particular
arbitration proceeding, do any of the following:
(a) Make an order directing an amount in dispute to be secured;
(b) In relation to relevant property:
(i) Make an order directing the inspection, photographing,
preservation, custody, detention or sale of the property by the
tribunal, a party to the proceedings or an expert; or
(ii) Make an order directing samples to be taken from,
observations to be made of, or experiments to be conducted on
the property;
(c) Grant an interim injunction or direct any other interim measure to be
taken.
P 574
P 575
(2) Property is relevant property for the purposes of subsection (1)(b) if:
(a) The property is owned by or is in the possession of a party to the
arbitration proceedings concerned; and
(b) The property is subject to the proceedings, or any question relating
to the property has arisen in those proceedings.
(3) The Court or a judge of the Court may order a person to attend
proceedings before an arbitral tribunal to give evidence or to produce

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 documents or other material evidence.
(4) The Court or a judge of the Court may also order a writ of habeas corpus ad
testificandum to be issued requiring a prisoner to be taken for
examination before an arbitral tribunal.
(5) The powers conferred by this section can be exercised irrespective of
whether or not similar powers may be exercised under section 2GB in
relation to the same dispute.
(6) The Court or a judge of the Court may decline to make an order under this
section in relation to a matter referred to in subsection (1) on the ground
that:
(a) The matter is currently the subject of arbitration proceedings; and
(b) The Court or the judge considers it more appropriate for the matter
to be dealt with by the relevant arbitral tribunal.”
JANUARY 2005 WORKING GROUP REPORT A/CN.9/573 (27 JANUARY 2005)
II. Deliberations and decisions
[.…]
V. Draft provision on the power of courts to order interim measures of protection in
support of arbitration (for insertion as a new article of the UNCITRAL Model Law on
International Commercial Arbitration, tentatively numbered 17 ter) [Art. 17 J in the final
text]
90. The Working Group proceeded to consider two variant texts, which expressed the power
of a court to order interim measures of protection in support of arbitration (as contained in
[the October 2003 Secretariat Note,] A/CN.9/WG.II/WP.125, para. 42).
Variants 1 and 2
91. A view was expressed that Variant 1 provided a more flexible power for a court to order
interim measures by permitting it to refer to its own rules of procedures and standards,
whereas Variant 2 required that that power be exercised “in accordance with the
requirements set out under article 17”. For that reason, preference was expressed for
Variant 1.
P 575
P 576
Interplay between draft articles 17 bis [Arts. 17 H –17 I in the final text] and 17 ter
92. A proposal was made that the opening words of Variant 1 should be redrafted so as to
provide “Except as provided in article 17 bis, the court shall have” in order to clarify that a
court should not deal with a request for an interim measure of protection where the
requested measure had already been refused by an arbitral tribunal. However, it was
stated that a State court could not be prevented from reviewing a case de novo when so
requested by a party even if the State court had already made a determination under
draft article 17 bis.
Interplay between draft article 17 ter and article 9 of the Model Law
93. On the question of the relationship between article 9 and article 17 ter, it was noted
that the scope of article 9 and article 17 ter were different, as article 9 dealt with the right
of third parties to request an interim measure of protection from a court, whereas article 17
ter expressly empowered courts to grant such measures in support of an arbitration.
Third parties
94. It was suggested that words along the following lines be included at the end of the
second sentence of Variant 1: “provided that the restrictions of article 17 bis do not apply
to objections of third parties to interim measures of protection.” While the Working Group
agreed that the issue of third parties might warrant further analysis, the suggestion did not
receive support. In any case, it was generally felt that the question of third party
protection would be better addressed in draft article 17 bis than in draft article 17 ter (see
above, paragraph 72[, reprinted in the section on Arts. 17 H – 17 I, pp. 522–23 supra]).
95. After discussion, the Working Group agreed to adopt the Variant 1 of article 17 ter as it
appeared in the [October 2003 Secretariat Note,] A/CN.9/WG.II/WP.125, para. 42.
AUGUST 2005 SECRETARIAT NOTE INTERIM MEASURES A/CN.9/WG.II/WP.138 (8 AUGUST 2005)
Part III
Draft provision on court-ordered interim measures in support of arbitration (for insertion
as a new article of the UNCITRAL Model Law on International Commercial Arbitration,
tentatively numbered 17 ter (25) [Art. 17 J in the final text]
A. Text of draft article 17 ter
P 576 63. The following text sets out a newly revised version of article 17 ter of the Model Law
P 577 (hereinafter referred to as “draft article 17 ter”) based on the discussions and decisions
of the Working Group at its forty-second session ([January 2005 Working Group Report,]
A/CN.9/573, paras. 90–95):

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 “The court shall have the same power of issuing interim measures of protection
for the purposes of and in relation to arbitration proceedings as it has for the
purposes of and in relation to proceedings in the courts and shall exercise that
power in accordance with its own rules and procedures insofar as these are
relevant to the specific features of an international arbitration.
B. Notes on draft article 17 ter
64. It is recalled that, after discussion, the Working Group adopted Variant 1 of draft article
17 ter as it appeared in [the October 2003 Secretariat Note,] A/CN.9/WG.II/WP.125,
paragraph 42 ([January 2005 Working Group Report,] A/CN.9/573, para. 95).
OCTOBER 2005 WORKING GROUP REPORT A/CN.9/589 (12 OCTOBER 2005)
V. Draft provision on court-ordered interim measures in support of arbitration (for
insertion as a new article of the UNCITRAL Model Law on International Commercial
Arbitration, tentatively numbered 17 ter) [Art. 17 J in the final text]
98. The Working Group recalled that there had been an exchange of views, at its forty-
second session, on a possible draft provision expressing the power of State courts to order
interim measures of protection in support of arbitration (tentatively numbered article 17
ter). The Working Group resumed discussions on draft article 17, on the basis of the text
contained in [the August 2005 Secretariat Note,] A/CN.9/WG.II/WP.138.
99. A concern was expressed that the text, as drafted, only empowered a State court to
issue an interim measure in support of arbitration if that State court was situated in the
same jurisdiction as the place of arbitration. It was said that article 17 ter should be
broadened to encompass the situation where a State court was asked to order an interim
measure in respect of an arbitration that took place in another jurisdiction. It was stated
that it was important from a practical point of view to broaden article 17 ter to clarify that
an interim measure could be granted by a State court in a jurisdiction other than that of
the place of the arbitration. It was noted that it was a feature of modern practice in
international arbitration to seek to secure assets, follow a vessel, preserve evidence, or ask
for actions to be taken in a different jurisdiction from that where the arbitration took
place.
100. In order to address that concern, a proposal was made to amend article 17 ter by
adding the words: “taking place in the country of the court or in another country” after the
words “arbitration proceedings”. That proposal received support.
P 577 101. It was noted that article 1, paragraph (2), of the Arbitration Model Law provided that:
P 578 “The provisions of this Law, except articles 8, 9, 35 and 36, apply only if the place of
arbitration is in the territory of this State.” It was further noted that, given the intention
that article 17 ter should apply to arbitrations occurring in a jurisdiction different to that of
the State court, article 17 ter should be added to the list contained under article 1,
paragraph (2). However, it was pointed out that article (1), paragraph (2), of the Arbitration
Model Law defined the scope of the Arbitration Model Law and the Working Group had not
been specifically requested by the Commission to work on revisions of that part of the
Arbitration Model Law. It was suggested that consistency between article 17 ter and article
1, paragraph (2), of the Arbitration Model Law could still be achieved by adding to the
opening words of article 17 ter the following words: “Notwithstanding article 1, paragraph
(2)”. That proposal was supported.
102. After discussion, the Working Group agreed to adopt, in substance, the following
revised version of article 17 ter: “The court shall have the same power of issuing interim
measures of protection for the purposes of and in relation to arbitration proceedings
taking place in the country of the court or in another country as it has for the purposes of
and in relation to proceedings in the courts, and shall exercise that power in accordance
with its own rules and procedures insofar as these are relevant to the specific features of
an international arbitration. This article shall apply notwithstanding the provisions of
article 1, paragraph (2).”
103. A view was expressed that article 17 bis [Arts. 17 H –17 I in the final text] might not fully
address the potential problems which might arise with respect to the relationship between
the power of State courts to issue interim measures and the power of arbitral tribunals to
issue interim orders. It was said that it was unclear whether these powers were coextensive
or the exercise of the State court power overrode the power of the arbitral tribunal. That
uncertainty could allow parties to defeat the power of arbitral tribunals to issue interim
measures by seeking such measures from the State courts. It was suggested that to better
delineate the interaction of these powers, article 17 ter could provide that a State court
could only act in circumstances where, and to the extent that, the arbitral tribunal did not
have the power to so act or was unable to act effectively, for example, if an interim
measure was needed to bind a third party or the arbitral tribunal was not yet constituted
or the arbitral tribunal had only made a preliminary order. The principle upon which that
proposal was based received some support but it was agreed that that proposal had far-
reaching legal and practical implications and raised complex issues that the Working
Group might wish to consider at a later stage.
[.…]

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 VII. Report of the drafting group
107. The Working Group having completed its deliberations regarding draft articles 17 [Arts.
17 –17 G in the final text], 17 bis [Arts. 17 H –17 I in the final text] and 17 ter [Art. 17 J in the final
text], a drafting group was established by the Secretariat to implement decisions by the
Working Group and ensured consistency between the various language versions of the text.
The report of the drafting group, as adopted by the Working Group is annexed to this
report. [.…]
P 578
P 579
Annex
Report of the drafting group
Chapter IV bis. Interim measures and preliminary orders
[.…]
Draft article 17 ter
The court shall have the same power of issuing interim measures for the purposes of and in
relation to arbitration proceedings whose place is in the country of the court or in another
country as it has for the purposes of and in relation to proceedings in the courts and shall
exercise that power in accordance with its own rules and procedures insofar as these are
relevant to the specific features of an international arbitration. This article shall apply
notwithstanding the provisions of article 1, paragraph (2).
5 DECEMBER 2005 SECRETARIAT NOTE A/CN.9/WG.II/WP.141 (5 DECEMBER 2005)
I. Proposal on the form in which the legislative provisions on interim measures and
preliminary orders could be presented in the Model Law
4. The following text sets out a proposal as to the presentation of the draft legislative
provisions on interim measures and preliminary orders, recognition and enforcement of
interim measures and court-ordered interim measures. Modifications to the earlier draft
contained in the annex to the report of the Working Group on the work of its forty-third
session (annex to [October 2005 Working Group Report,] A/CN.9/589) have been underlined
in the text below. As well, a comparative table outlining the concordance of the numbering
between articles of the earlier draft and articles of the text below has been annexed to
this note.
Chapter IV bis. Interim measures and preliminary orders
[.…]
Section 5—Court-ordered interim measures
Article 17 undecies—Court-ordered interim measures [Art. 17 J in the final text]
The court shall have the same power of issuing interim measures for the purposes of and in
relation to arbitration proceedings whose place is in the country of the court or in another
country as it has for the purposes of and in relation to proceedings in the courts and shall
exercise that power in accordance with its own rules and procedures insofar as these are
relevant to the specific features of an international arbitration.
P 579
P 580
II. Notes on the form in which the legislative provisions on interim measures and
preliminary orders could be presented in the Model Law
Structure of the provisions
5. As agreed by the Working Group, the provisions on interim measures, preliminary orders,
recognition and enforcement of interim measures and court-ordered interim measures are
placed in a new chapter, numbered chapter IV bis ([October 2005 Working Group Report,]
A/CN.9/589, para. 105 [reprinted in the section on materials common to Arts. 17 – 17 J, p. 198
supra]). As suggested by the Working Group, those provisions have been restructured by
grouping paragraphs relating to similar issues under separate articles ([October 2005
Working Group Report,] A/CN.9/589, para. 106 [reprinted in the section on materials common
to Arts. 17 – 17 J, p. 198 supra]). In order to better clarify the proposed structure of the
revised text, section headings have been included. This structure has the advantage of
providing a logical presentation of the provisions, and avoids creating an article on interim
measures that is of inordinate length as compared to other articles in the Model Law.
[.…]
Article 17 undecies
Placement
12. In enacting article 17 undecies, States might wish to consider the placement of that
provision since article 17 undecies, which deals with court-ordered interim measures might
not easily fit in a chapter that is intended to deal mostly with interim measures granted by
arbitral tribunals.
13. Among the options to be considered, one possibility would be to place article 17

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 undecies following provisions enacting article 9 of the Model Law, which deals with interim
measures granted by courts. However, given that article 9 is contained within chapter 2 of
the Model Law, which relates to the definition and form of arbitration agreement, that
option might not be considered appropriate. The Working Group might wish to consider
whether a footnote to article 17 undecies should draw the attention of States to the issue of
placing article 17 undecies in the most appropriate part of their enacting legislation. Such
footnote could read as follows:
“In enacting article 17 undecies, States might wish to consider grouping this
provision with other provisions in the enacting legislation relating to certain
functions of arbitration assistance and supervision performed by courts or other
authority.”
Reference to article 1, paragraph 2 of the Model Law
14. At its forty-third session, the Working Group noted that, given the intention that the
provision on court-ordered interim measure should apply irrespective of the country
where the arbitration takes place, that provision should be added to the list of articles
contained under article 1, paragraph (2). That article provides that, in respect of the listed
P 580 articles, the Model Law, as enacted in a given State, would apply even if the place of
P 581 the arbitration were not in the territory of that State ([October 2005 Working Group Report,]
A/CN.9/589, paras. 101–103). It is also suggested that a reference to articles 17 novies and 17
decies (which deal with recognition and enforcement of interim measures and the grounds
for refusal thereof) be included within the list of excepted articles so that article 1,
paragraph (2) of the Model Law would read as follows:
“The provisions of this Law, except articles 8, 9, 17 novies, 17 decies, 17 undecies,
35 and 36, apply only if the place of arbitration is in the territory of this State.”
15. Including all excepted articles within article 1, paragraph (2), which establishes the
territorial scope of application of the Model Law, appears to provide a simpler and more
user-friendly approach than including such an exception within each of the revised
articles. Taking that approach into account, the words “This article shall apply
notwithstanding the provisions of article 1, paragraph 2”, which appeared at the end of
article 17 ter of the earlier draft (contained in the annex to [October 2005 Working Group
Report,] A/CN.9/589) have been deleted.
AnnexTable of concordance
Provisions on interim measures and Newly revised provision on interim measures
preliminary orders as contained in the annex and preliminary orders as contained in this
to the report of the Working Group on the note
work of its forty-third session ([October 2005
Working Group Report,] A/CN.9/589)
[.…] Article 17 undecies
Article 17 ter

Last sentence of article 17 ter Article 1 (2)

FEBRUARY 2006 WORKING GROUP REPORT A/CN.9/592 (27 FEBRUARY 2006)
IV. Draft legislative provisions on interim measures and preliminary orders
[.…]
Location and structure of chapter IV bis
14. The Working Group agreed that the draft legislative provisions on interim measures and
preliminary orders should be located in a new chapter of the Arbitration Model Law and
agreed that the articles could be grouped into sections as suggested in [the 5 December
2005 Secretariate Note,] A/CN.9/WG.II/WP.141.
P 581
P 582
Numbering of provisions
15. A comment was made that the Latin numbering of articles could be problematic for
users unfamiliar with such numbering. In response, it was noted that the Latin numbering
was consistent with the approach taken in other UNCITRAL instruments, such as, for
example, article 5 bis of the UNCITRAL Model Law on Electronic Commerce.
16. After discussion, the Working Group agreed to retain the numbering of the draft
legislative provisions, as set out in [5 December 2005 Secretariate Note,]
A/CN.9/WG.II/WP.141.
[.…]
Article 17 undecies [Art. 17 J in the final text]
Placement of article 17 undecies
40. The Working Group considered whether article 17 undecies should be located in

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 another part of the Arbitration Model Law for the reason that it dealt with court-ordered
interim measures which might not easily fit in a chapter intended to deal mostly with
interim measures granted by arbitral tribunals.
41. One suggestion was to place article 17 undecies following provisions enacting article 9
of the Arbitration Model Law, which dealt with interim measures granted by courts.
However, given that article 9 was located within chapter II of the Arbitration Model Law,
which related to arbitration agreement, that option was not considered appropriate.
42. The Working Group agreed that wording along the lines of the text suggested in the note
by the Secretariat ([5 December 2005 Secretariate Note,] A/CN.9/WG.II/WP.141, para. 13) for
a footnote to article 17 undecies could be included in explanatory material accompanying
that provision. Such a text could draw the attention of States to the issue of placing article
17 undecies in the most appropriate part of their enacting legislation.
43. The substance of article 17 undecies was adopted without modification.
Reference to articles 17 novies, 17 decies and 17 undecies in article 1, paragraph 2 of the
Arbitration Model Law
44. At its forty-third session, the Working Group noted that, given the intention that the
provision on court-ordered interim measure should apply irrespective of the country
where the arbitration took place, that provision should be added to the list of articles
contained under article 1, paragraph (2), of the Arbitration Model Law. That article
provided that, in respect of the listed articles, the Arbitration Model Law, as enacted in a
given State, would apply even if the place of the arbitration was not in the territory of that
State ([October 2005 Working Group Report,] A/CN.9/589, paras. 101–103). It was also
suggested that a reference to articles 17 novies and 17 decies (which dealt with recognition
P 582 and enforcement of interim measures and the grounds for refusal thereof, respectively)
P 583 should be included within the list of excepted articles so that article 1, paragraph (2) of
the Arbitration Model Law would read as follows:
“The provisions of this Law, except articles 8, 9, 17 novies, 17 decies, 17 undecies,
35 and 36, apply only if the place of arbitration is in the territory of this State.”
45. That proposal was adopted in substance by the Working Group.
[.…]
Annex I
Revised legislative provisions on interim measures and preliminary orders
Chapter IV bis. Interim measures and preliminary orders
[.…]
Section 5—Court-ordered interim measures
Article 17 undecies—Court-ordered interim measures [Art. 17 J in the final text]
The court shall have the same power of issuing interim measures for the purposes of and in
relation to arbitration proceedings whose place is in the country of the court or in another
country as it has for the purposes of and in relation to proceedings in the courts and shall
exercise that power in accordance with its own rules and procedures insofar as these are
relevant to the specific features of an international arbitration.
25 APRIL 2006 SECRETARIAT NOTE A/CN.9/605 (25 APRIL 2006)
I. Draft legislative provisions on interim measures and preliminary orders
4. The text of chapter IV bis on interim measures and preliminary orders, as adopted by
the Working Group at its forty-fourth session, (15) reads as follows:
[reprinted supra.]
II. Remarks on the draft legislative provisions on interim measures and preliminary
orders
[.…]
P 583
P 584
Remarks on section 5—Court-ordered interim measures
Article 17 undecies
Placement of article 17 undecies
22. The Commission might wish to note that the Working Group considered whether article
17 undecies should be located in another part of the Arbitration Model Law given that it
deals with court-ordered interim measures which might not easily fit into a chapter
intended to deal mostly with interim measures granted by arbitral tribunals. The Working
Group agreed that a text suggesting that States place article 17 undecies in the most
appropriate part of their enacting legislation (41) could be included in explanatory
material accompanying that provision along the lines of the text suggested in the note by
the Secretariat. (42)

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 2006 COMMISSION REPORT A/61/17 (14 JULY 2006)
IV. Finalization and adoption of legislative provisions on interim measures and the form
of arbitration agreement and of a declaration regarding the interpretation of articles II (2)
and VII (1) of the 1958 New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards
[.…]
B. Consideration of the draft legislative provisions on interim measures
1. General comments
88. The Commission recalled that the provisions had been drafted in recognition not only
that interim measures were increasingly being found in the practice of international
commercial arbitration, but also that the effectiveness of arbitration as a method of
settling commercial disputes depended on the possibility of enforcing such interim
measures (see [December 2000 Working Group Report,] A/CN.9/485 and Corr.1, para. 78
[reprinted in the section on Arts. 17 H – 17 I, p. 458 supra]). General agreement was expressed
as to the need for a harmonized and widely acceptable model legislative regime governing
interim measures granted by arbitral tribunals and their enforcement as well as interim
measures ordered by courts in support of arbitration. The Commission recalled that the
draft legislative provisions on interim measures and preliminary orders were the result of
extensive discussion in the Working Group. The Commission recalled as well that the
Working Group, at its forty-second session (New York, 10–14 January 2005), had agreed to
include a compromise text of the provisions on preliminary orders, on the basis that those
P 584 provisions would apply unless otherwise agreed by the parties; that it be made clear that
P 585 preliminary orders had the nature of procedural orders and not of awards; and that no
enforcement procedure would be provided for such orders in section 4 ([January 2005
Working Group Report,] A/CN.9/573, para. 27[, reprinted in the section on Arts. 17 – 17 G, p. 371
supra]).
2. Consideration of draft articles
89. The text of the draft legislative provisions considered by the Commission at the current
session was as contained in [the 25 April 2006 Secretariat Note] A/CN.9/605.
[.…]
Section 5. Court-ordered interim measures
Article 17 undecies. Court-ordered interim measures [Art. 17 J in the final text]
Drafting proposal
138. It was suggested that the text of article 17 undecies might be simplified, along the
following lines: “A court shall have the same power of issuing an interim measure in
relation to arbitration proceedings as it has in relation to proceedings in the courts,
including in cases where the place of the arbitration proceedings is in a State other than
the court's. The court shall exercise such power in accordance with its own procedures in
consideration of the specific features of international arbitration.”
139. That proposal received support. It was clarified that the purpose of article 17 undecies
was to preserve the power of courts to issue interim measures in support of arbitration, but
should not be understood as expanding the powers of the court for interfering in the
arbitral process. The Commission agreed that that matter should be clarified in any
explanatory material to that provision.
“including in cases where the place of the arbitration proceedings is in a State other than the
court's”
140. A suggestion was made that the phrase “where the place of the arbitration
proceedings is in a State other than the court's” appearing in the proposal (see para. 138
above) was unnecessary given the intention to add article 17 undecies to the list of articles
contained under article 1, paragraph 2, of the Arbitration Model Law. That suggestion did
not receive support because it was considered that those words provided necessary
clarification.
141. After discussion, the Commission agreed that article 17 undecies would read as follows:
“A court shall have the same power of issuing an interim measure in relation to arbitration
proceedings, irrespective of whether their place is in the territory of this State, as it has in
relation to proceedings in courts. The court shall exercise such power in accordance with
its own procedures in consideration of the specific features of international arbitration”. It
was explained that that language was more closely aligned to the language used in the
Arbitration Model Law and that replacing the words “the court” by the word “courts” at the
end of the first sentence was intended to clarify that there was no intention to refer to
P 585 specific court proceedings, either domestic or foreign. Article 17 undecies was meant to
P 586 encompass the power of issuing interim measures in relation to court proceedings,
domestic or international, as the case may be. However, article 17 undecies did not relate
to the function of assistance and supervision of arbitration proceedings (juge d'appui) as
referred to in article 6 of the Arbitration Model Law and, consequently, under no
circumstances should article 17 undecies be construed as expanding the powers of courts
in relation to those functions.

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 142. The Commission agreed that any explanatory material to article 17 undecies should
clarify that the court could exercise jurisdiction on arbitration matters, whether the place
of arbitration is located in the enacting State or in another State and that the provision
should not be construed as expanding the territorial jurisdiction of courts.
Placement of article 17 undecies
143. The Commission considered whether article 17 undecies should be located elsewhere
in another part of the Arbitration Model Law given that it dealt with court-ordered interim
measures which might not easily fit into a chapter intended to deal mostly with interim
measures granted by arbitral tribunals. One suggestion was to place article 17 undecies
following article 9 of the Arbitration Model Law, which dealt with interim measures granted
by courts. However, given that article 9 was located within chapter II of the Arbitration
Model Law, which related to the arbitration agreement, that option was not considered
appropriate. The Commission agreed that a text suggesting that States could place article
17 undecies in the most appropriate part of their enacting legislation could be included in
explanatory material accompanying that provision.
[Editors' Note: The Commission Report included an Annex setting out the revised text of the
Model Law articles addressed by the 2006 Amendments. For materials relating to Latin versus
letter-style numbering of the articles, see the February 2006 Working Group Report,
A/CN.9/592, paras. 15–16].
P 586

References
*) [Editors' Note: The final sentence of Article 17 of the 1985 Model Law was revised and
moved to Article 17 E(1). The changes are shown in the text of Article 17 E infra]
**) [Editors' Note: This provision originally appeared in Article 17 of the 1985 Model Law. The
changes shown are the amendments to that original text.]
1) The conditions set forth in article 17 I are intended to limit the number of
circumstances in which the court may refuse to enforce an interim measure. It would
not be contrary to the level of harmonization sought to be achieved by these model
provisions if a State were to adopt fewer circumstances in which enforcement may be
refused.
2) 2006 Commission Report, A/61/17, para. 88, p. 205 infra; see also January 2000
Secretariat Note, A/CN.9/WG.II/WP.108, paras. 73, 104, pp. 440, 209 infra.
3) January 2000 Secretariat Note, A/CN.9/WG.II/WP.108, para. 73, p. 440 infra.
4) Another related provision is Article 27, which in both the 1985 and the 2006 Laws
provides a tribunal with power to call on courts for assistance in taking evidence. This
power is distinct from the power to seek court assistance in enforcing measures of
protection, although in some cases exercise of the Article 27 power may have the
same effect as a measure preserving evidence under Article 17.
5) For commentary on these issues, see Holtzmann & Neuhaus, p. 159 supra, pp. 530–33.
6) April 2002 Working Group Report, A/CN.9/508, paras. 52–53, p. 237 infra; October 2005
Working Group Report, A/CN.9/589, para. 25, p. 394 infra.
7) November 2002 Working Group Report, A/CN.9/523, para. 38, p. 257 infra.
8) December 2003 Working Group Report, A/CN.9/545, para. 21, p. 280 infra.
9) June 2001 Working Group Report, A/CN.9/487, para. 66, p. 221 infra.
10) See id.
11) December 2003 Working Group Report, A/CN.9/545, para. 23, p. 281 infra.
12) October 2005 Working Group Report, A/CN.9/589, para. 20, p. 393 infra.
13) Id. para. 22, p. 393 infra.
14) Id. para. 23, p. 393 infra.
15) April 2004 Working Group Report, A/CN.9/547, para.77, p. 327 infra.
16) December 2003 Working Group Report, A/CN.9/545, para. 25, p. 282 infra.
17) Id. para. 26, p. 282 infra.
18) October 2005 Working Group Report, A/CN.9/589, para. 29, p. 394 infra.
19) Id.
20) April 2002 Working Group Report, A/CN.9/508, para. 67, pp. 240–41 infra; April 2004
Working Group Report, A/CN.9/547, para. 71, pp. 325–326 infra.
21) April 2002 Working Group Report, A/CN.9/508, para. 68, p. 241 infra; April 2004 Working
Group Report, A/CN.9/547, para. 72, p. 326 infra.
22) April 2002 Working Group Report, A/CN.9/508, para. 68, p. 241 infra.
23) Id.
24) See p. 183 infra.
25) December 2003 Working Group Report, A/CN.9/545, para. 28, p. 283 infra.
26) Id.
27) April 2004 Working Group Report, A/CN.9/547, para. 87, p. 329 infra.
28) Id. para. 86, p. 329 infra.
29) Id. para. 88; see also December 2003 Working Group Report, A/CN.9/545, para. 29, p.
283 infra.
30) April 2004 Working Group Report, A/CN.9/547, para. 88, pp. 329–30 infra.

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 31) Id. para. 89, p. 330 infra.
32) December 2003 Working Group Report, A/CN.9/545, para. 30, p. 284 infra.
33) April 2002 Working Group Report, A/CN.9/508, para. 56, p. 238 infra.
34) November 2002 Working Group Report, A/CN.9/523, para. 42, pp. 257–58 infra;
December 2003 Working Group Report, A/CN.9/545, para. 54, p. 290 infra; 29 January
2004 Secretariat Note, A/CN.9/WG.II/WP.128, para. 16.
35) November 2002 Working Group Report, A/CN.9/523, para. 41, p. 257 infra.
36) Id. para. 43, p 258 infra.
37) December 2003 Working Group Report, A/CN.9/545, para. 31, p. 284 infra.
38) See also November 2002 Working Group Report, A/CN.9/523, para. 43, p. 258 infra
(shall not “prejudic[e] the findings to be made by the tribunal at a later stage” in the
arbitration.).
39) October 2005 Working Group Report, A/CN.9/589, paras. 33, 35, pp. 395–96 infra.
40) Id. para. 32, p. 395 infra; April 2004 Working Group Report, A/CN.9/547, para. 91, p. 330
infra.
41) October 2005 Working Group Report, A/CN.9/589, para. 34, p. 395 infra.
42) Id. paras. 49, 53, pp. 397–98 infra.
43) April 2002 Working Group Report, A/CN.9/508, para. 77, pp. 242–43 infra; see also
December 2000 Working Group Report, A/CN.9/485, para. 90, p. 461 infra.
44) April 2002 Working Group Report, A/CN.9/508, para. 77, pp. 242–43 infra.
45) November 2002 Working Group Report, A/CN.9/523, para. 24, p. 253 infra.
46) January 2005 Working Group Report, A/CN.9/573, para. 29, p. 371infra.
47) Id. para. 30, p. 371 infra.
48) Id. paras. 59–60, p. 377 infra; see also November 2002 Working Group Report,
A/CN.9/523, para. 31, p. 255 infra.
49) December 2003 Working Group Report, A/CN.9/545, para. 86, p. 297 infra.
50) January 2005 Working Group Report, A/CN.9/573, para. 41, p. 374 infra.
51) Id. Para. 37, p. 373 infra.
52) December 2003 Working Group Report, A/CN.9/545, para. 80, p. 296 infra.
53) October 2004 Working Group Report, A/CN.9/569; paras. 52–61, pp. 358–60 infra.
54) January 2005 Working Group Report, A/CN.9/573, paras. 46, 50, pp. 374, 375 infra; see
also December 2003 Working Group Report, A/CN.9/545, para. 79, p. 296 infra; October
2004 Working Group Report, A/CN.9/569; paras. 54–55, pp. 358–59 infra.
55) October 2005 Working Group Report, A/CN.9/589, para. 65, p. 401 infra.
56) Id. paras. 49, 53, pp. 397–98 infra.
57) January 2005 Working Group Report, A/CN.9/573, paras. 52, 55–56, pp. 375–76 infra.
58) Id. paras. 26–27, p. 371 infra.
59) Id. paras. 55–56, p. 376 infra.
60) October 2004 Working Group Report, A/CN.9/569, para. 60, p. 360 infra.
61) See id.
62) December 2003 Working Group Report, A/CN.9/545, para. 41, p. 286–87 infra.
63) Id.; see also April 2004 Working Group Report, A/CN.9/547, paras. 103–04, pp. 332–33
infra.
64) December 2003 Working Group Report, A/CN.9/545, paras. 37–41, pp. 285–87 infra.
65) November 2002 Working Group Report, A/CN.9/523, para. 51, p. 260 infra.
66) December 2003 Working Group Report, A/CN.9/545, para. 36, p. 285 infra; see also
November 2002 Working Group Report, A/CN.9/523, paras. 51–52, p. 260 infra.
67) December 2003 Working Group Report, A/CN.9/545, para. 37, p. 285 infra.
68) Id. para 38, pp. 285–86 infra.
69) Id.
70) Id. para. 39.
71) April 2002 Working Group Report, A/CN.9/508, para. 60, p. 239 infra; April 2004 Working
Group Report, A/CN.9/547, para. 92, p. 330 infra.
72) October 2004 Working Group Report, A/CN.9/569, paras. 35–37, pp. 354–55 infra;
January 2005 Working Group Report, A/CN.9/573, para. 60, p. 377 infra.
73) April 2002 Working Group Report, A/CN.9/508, para. 60, p. 239 infra; October 2004
Working Group Report, A/CN.9/569, para. 36, p. 354 infra; January 2005 Working Group
Report, A/CN.9/573, para. 63, p. 377–78 infra.
74) See Holtzmann & Neuhaus, p. 159 supra, p. 532 & n.17.
75) April 2004 Working Group Report, A/CN.9/547, para. 94, p. 331 infra.
76) January 2005 Working Group Report, A/CN.9/573, para. 61, p. 377 infra.
77) Id. para. 62, p. 377 infra.
78) Id. para. 67, p. 378 infra.
79) October 2005 Working Group Report, A/CN.9/589 paras. 72–73, p. 403 infra.
80) October 2004 Working Group Report, A/CN.9/569, para. 68, pp. 361–62 infra.
81) January 2005 Working Group Report, A/CN.9/573, para. 66, p. 378 infra.
82) October 2004 Working Group Report, A/CN.9/569, para. 68, pp. 361–62 infra.
83) Id. para. 66, p. 361 infra.
84) January 2005 Working Group Report, A/CN.9/573, para. 66, p. 378 infra.
85) December 2003 Working Group Report, A/CN.9/545, para. 90, p. 298 infra; April 2004
Working Group Report, A/CN.9/547, para. 99, p. 332 infra.
86) December 2003 Working Group Report, A/CN.9/545, para. 90, p. 330 infra.
87) April 2004 Working Group Report, A/CN.9/547, para. 105, p. 333 infra.
88) December 2003 Working Group Report, A/CN.9/545, paras. 60, 63–64, p. 291–292 infra.

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 89) See November 2002 Working Group Report, A/CN.9/523, para. 65, p. 264 infra.
90) Id. para. 66.
91) April 2004 Working Group Report, A/CN.9/547, para. 106, p. 333–34 infra; see also
December 2003 Working Group Report, A/CN.9/545, para. 65, p. 292 infra; November
2002 Working Group Report, A/CN.9/523, para. 65, p. 264 infra.
92) December 2003 Working Group Report, A/CN.9/545, para. 67, p. 293 infra.
93) October 2005 Working Group Report, A/CN.9/589, para. 48, p. 397 infra.
94) April 2004 Working Group Report, A/CN.9/547, para. 108, p. 334 infra.
95) See page 168–69, supra.
96) July 2004 Secretariat Note, A/CN.9 /WG.II/WP.131, para. 49, p. 517 infra; April 2006
Secretariat Note, A/CN.9/605, para. 17, p. 542 infra.
97) June 2003 Working Group Report, A/CN.9/524, paras. 35–36, 42, 60–61, pp. 478–79, 480,
486. infra; 25 April 2006 Secretariat Note, A/CN.9/605, para. 18, pp. 542–43 infra.
98) June 2003 Working Group Report, A/CN.9/524, paras. 35–36, 42, 58, 60, pp. 478–79, 480,
486. infra; January 2005 Working Group Report, A/CN.9/573, para. 73, p. 523 infra; April
2006 Secretariat Note, A/CN.9/605, para. 18, pp. 542–43 infra.
99) June 2003 Working Group Report, A/CN.9/524, para. 42, p. 480 infra.
100) Id. para. 60, p. 486 infra.
101) Id. para 61, p. 486 infra. Along the lines of the suggested prima facie standard the
Secretariat at one point suggested that the reference to the grounds in Article 36
state “[t]here is a substantial question relating to any grounds for refusal” set forth in
that Article. July 2004 Secretariat Note, A/CN.9/WG.II/WP.131, para. 46, p. 515 infra.
102) 25 April 2006 Secretariat Note, A/CN.9/605, para. 18, p. 542 infra; accord January 2005
Working Group Report, A/CN.9/573, para. 73, p. 523 infra; July 2004 Secretariat Note,
A/CN.9/WG.II/WP.131, para. 48. p. 516–17 infra (expressing concern about the
possibility for differing interpretations and urging Working Group “to elaborate the
reasons for this difference in drafting”).
103) June 2003 Working Group Report, A/CN.9/524, para. 34, p. 478 infra.
104) Id. paras. 21, 25–26, pp. 474, 475 infra.
105) April 2000 Working Group Report, A/CN.9/468, para. 67, p. 20 infra.
106) December 2003 Working Group Report, A/CN.9/545, para. 100, p. 500 infra; April 2004
Working Group Report, A/CN.9/547, paras. 26–27, pp. 507–08 infra.
107) June 2003 Working Group Report, A/CN.9/524, paras. 67–68, p. 488 infra; April 2004
Working Group Report, A/CN.9/547, para. 51, p. 512 infra.
108) September 2000 Secretariat Note, A/CN.9/WG.II/WP.110, para. 64, p. 453 infra; June
2003 Working Group Report, A/CN.9/524, para. 71, p. 488 infra.
109) June 2003 Working Group Report, A/CN.9/524, para. 69, p. 488 infra.
110) Id. paras. 70–71, p. 488 infra.
111) Id. paras. 72–74, pp. 488–89 infra; April 2004 Working Group Report, A/CN.9/547, para.
56, pp. 512–13 infra.
112) April 2004 Working Group Report, A.CN.9/547, para. 58, p. 513 infra.
113) September 2000 Secretariat Note, A/CN.9/WG.II/WP.110, para. 68, p. 630 infra.
114) June 2003 Working Group Report, A/CN.9/524, para. 35, p. 478 infra.
115) March 2001 Secretariat Note, A/CN.9/WG.II/WP.113, n.36, pp. 465–66 infra.; June 2003
Working Group Report, A/CN.9/524, para. 64, p. 487infra.
116) June 2003 Working Group Report, A/CN.9/524, para. 65, p. 487 infra.
117) Id.
118) See p. 181 supra.
119) June 2003 Working Group Report, A/CN.9/524, para. 58, p. 486 infra.
120) See Holtzmann & Neuhaus, p. 183 supra, pp. 1058–62.
121) January 2002 Secretariat Note, A/CN.9/WG.II/WP.119, para. 83, p. 469 infra; October
2003 Secretariat Note, A/CN.9/WG.II/WP.125, para. 4, p. 490 infra.
122) June 2003 Working Group Report, A/CN.9/524, para. 57, p. 485 infra; April 2004 Working
Group Report, A/CN.9/547, para. 19, p. 506 infra.
123) December 2003 Working Group Report, A/CN.9/545, para. 105, p. 501 infra.
124) Id.
125) April 2004 Working Group Report, A/CN.9/547, para. 46, p. 511 infra.
126) Id. para. 47, p. 511 infra.
127) Id. paras. 21, 45, 47, pp. 506, 511 infra.
128) January 2005 Working Group Report, A/CN.9/573, para. 76, p. 524 infra.
129) July 2004 Secretariat Note, A/CN.9/WG.II/WP.131, para. 50, p. 517 infra.
130) April 2004 Working Group Report, A/CN.9/547, paras. 27–28, pps. 507-508 infra .
131) Id. paras. 29, 31, p. 508 infra.
132) See id. para. 25, p. 507 infra.
133) September 2000 Secretariat Note, A/CN.9/WG.II/WP.110, para. 71, p. 455 infra.
134) Id.
135) Id. para. 72, p. 455 infra.
136) Id.
137) See June 2003 Working Group Report, A/CN.9/524, para. 51, p. 483 infra.
138) April 2004 Working Group Report, A/CN.9/547, paras. 38–39, p. 510 infra.
139) Id. para. 39, p. 510 infra.

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 140) January 2005 Working Group Report, A/CN.9/573, para. 81, p. 525 infra. The reference to
Article 36 should have included Article 36(1)(a)(i). Article 36(1)(a)(iii) permits
enforcement to be denied if the award deals with a dispute not contemplated by or
not falling within the arbitration agreement, or contains decisions or matters beyond
the scope of the agreement. Decisions or matters within the scope of the arbitration
agreement but not a proper subject for arbitration under the lex arbitri are dealt with
in Article 36(1)(a)(i).
141) April 2000 Working Group Report, A/CN.9/468, para. 71, pp. 447–48 infra; September
2000 Secretariat Note, A/CN.9/WG.II/WP.110, para. 60, p. 452 infra.
142) June 2003 Working Group Report, A/CN.9/524, paras. 22, 40, pp. 474, 480 infra. See p.
186 supra.
143) January 2002 Secretariat Note, A/CN.9/WG.II/WP.119, paras. 55, 60, 75, pp. 559, 560–
561, 568 infra.
144) October 2005 Working Group Report, A/CN.9/589, para. 99, p. 577 infra.
145) Id.
146) Id. paras. 101–02, pp. 577–78 infra; 5 December 2005 Secretariat Note,
A/CN.9/WG.II/WP.141, paras. 14–15, pp. 580–581 infra.
147) November 2002 Working Group Report, A/CN.9/523, para. 77, p. 570–571 infra; see also
January 2002 Secretariat Note, A/CN.9/WG.II/WP.119, paras. 76–77, p. 568–69 infra.
148) January 2002 Secretariat Note, A/CN.9/WG.II/WP.119, para. 81, p. 570 infra.
149) October 2005 Working Group Report, A/CN.9/589, para. 103, p. 578 infra.
150) November 2002 Working Group Report, A/CN.9/523, para. 77, p. 570–571 infra; see also
October 2005 Working Group Report, A/CN.9/589, para. 103, p. 578 infra.
151) June 2003 Working Group Report, A/CN.9/524, para. 77, p. 571 infra; October 2005
Working Group Report, A/CN.9/589, para. 102, p. 578 infra; see also January 2002
Secretariat Note, A/CN.9/WG.II/WP.119, para. 79, p. 243–244 infra.
7) The International Law Association, report of the Sixty-seventh Conference held at
Helsinki, Finland, 12 to 17 August 1996, published by the International Law Association,
London 1996, p. 202–204.
21) In view of the discussion in the Working Group regarding the need for examples to
illustrate the definition of interim measures ([December 2000 Working Group Report,]
A/CN.9/485, paragraph 82, it is suggested that examples of interim measures, as well
as examples of orders not intended to be understood as interim measures, be
explained in the guide to enactment. The elements for the relevant part of the guide
might be the following: Interim measures of protection are referred to by different
expressions, including “conservatory measures” or “provisional measures”.
Characteristics of an interim measure are that the measures are given at the request of
one party, made in the form of an order or an award and intended to be temporary,
pending a final outcome of the arbitration. Objectives of an interim measure include the
following: elimination of obstacles to the conduct of proceedings (e.g. by orders
designed to prevent the destruction of evidence); prevention of loss or damage (e.g. an
order to continue construction works despite the fact that the obligation to continue is
at issue); preservation of the status quo (e.g. an order directing the beneficiary of an
independent guarantee not to demand payment under the guarantee); and facilitation
of enforcement of the award (e.g. an order requiring a party to provide security for costs
or an order aimed at preventing the transfer of assets to a foreign jurisdiction or the
dissipation of assets). Not included among interim measures are decisions that relate to
the conduct of arbitral proceedings in general, such as: an order that a party produce a
particular piece of evidence; an order that a party deposit an amount as an advance for
the costs of the arbitration; or an order designed to maintain confidentiality of
information relating to the arbitration. Also not included are decisions that are part of,
or that will be factored into, the final decision on the dispute submitted to arbitration
(e.g. decisions relating to the jurisdiction of the arbitral tribunal, the costs of arbitration,
and the law applicable to the substance of the dispute). Moreover, the concept of
interim measures would exclude orders issued under the procedures used in some
jurisdictions according to which the arbitral tribunal directs a party to make an “interim
payment” or “interim partial payment” to the other party to the extent it is beyond
doubt that the amount of the interim payment is due and that such payment is to be
merged into the final award.
22) The wording “whether it is established in the form of an arbitral award or in another
form” reflects the discussion of the Working Group ([December 2000 Working Group
Report,] A/CN.9/485 at paragraph 83) which acknowledged that, in practice,
arbitrators use a variety of forms and names in issuing interim measures of
protection.

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 23) The draft provision in square brackets has been included to stimulate discussion in
the Working Group about the desirability of recognising the possibility of issuing an
interim measure of protection without giving immediate notice thereof to the party
ordered to comply with the measure (such measures are often referred to as ex parte
measures: see also paragraph 91–94 of [the December 2000 Working Group Report,]
A/CN.9/485). The draft provision is intended to recognize not only that the arbitral
tribunal may issue an ex parte measure, but also that the court may issue an ex parte
order for the enforcement of that measure provided that this is done before the
expiry of the [30] day period. If a provision based on such a policy would be
acceptable, paragraph 1(iii) of the “New article: Enforcement of interim measures of
protection” would have to be adjusted to allow for the postponement of notice to the
party against whom the measure is made until the expiry of the [30] day period or
until the court has issued an order for the enforcement of the measure, whichever
occurs first.
7) The phrase “constitution of the arbitral tribunal” has several different possible
meanings, including the moment the arbitrators are chosen by the parties; the date of
appointment of the tribunal; the date the tribunal has its first meeting, either with or
without parties or their representatives present.
8) E-Systems, Inc. v. Islamic Republic of Iran 2 Iran-U.S. Cl. Trib. Rep. 51, 57 (1983).
9) Where the UNCITRAL Model Law on International Commercial Arbitration has been
adopted, however, it is clear that a request to a court for interim relief is not
incompatible with the existence of a valid arbitration agreement: art. 9.
10) UNCITRAL Arbitration Rules article 26; ICC Rules, article 23(2); AAA Commercial
Arbitration Rules, Rule 36; LCIA Rules article 25.
11) One national law provides that the power to issue interim measures is limited to the
period after the award has been made and filed with the court, the purpose being to
ensure that the award can be enforced.
12) The concept of irreparable harm generally contemplates that the harm that would
result would be such that remedies at law—that is, damages—could not be adequate
compensation.
13) ICC Rules, Article 23(1); LCIA Rules, Article 25.1(a).
14) UNCITRAL Rules, Article 26(1); AAA Rules, Article 23(1).
15) The UNCITRAL Rules provide: the “tribunal shall be entitled to require security for the
costs of such measures.”(art. 26(2); under the LCIA Rules the arbitral tribunal may
order a party to provide “security for legal or other costs” and “upon such terms as the
Arbitral Tribunal considers appropriate”. Some national laws that expressly empower
arbitral tribunals to issue interim measures also include express power to require
appropriate security either by payment of a specific amount (in Guatemala, 10% of
the amount being claimed) or the provision of a bond, guarantee or other security.
16) Under some laws certain measures can only be granted where the assets in respect of
which the order is sought belong to non-resident debtors.
17) E.g. in one country legislation provides that the powers conferred on the court with
regard to interim relief are exercisable even if the seat of the arbitration is outside
the country or no seat has been designated or determined. Nevertheless, the court
may still refuse to grant interim relief if in the opinion of the court the fact that the
seat of the arbitration is outside the country makes it inappropriate to do so. Because
the law has only recently been enacted it is not entirely clear how the courts will
exercise this discretion. It seems likely that, if the courts at the place where the
arbitration has its seat are themselves competent to order interim measures, then
the home court may regard the seat-of-arbitration courts as the natural forum for the
grant of such measures and will itself decline to grant relief.
18) Austria, s387(2) Exekutionsordnung.
19) Canada, Ruhrkohle Handel Inter GmbH et al and Fednav Ltd. et al, unreported
judgement of the Federal Court of Canada, Trial Division T-212-91 supports the view
that an arrest may be maintained in a foreign arbitration matter provided full
disclosure of the arbitration agreement is made and that court proceedings are
subsequently stayed.
20) German courts do not differentiate between foreign and national arbitral proceedings
as long as the Civil Procedure Code provides for a State court's jurisdiction to grant
interim relief. In Greece, as long as the conditions of the Greek Code of Civil
Procedure with regard to interim relief are satisfied, the Greek court will grant interim
relief in support of a foreign arbitration.
21) Courts in India have interpreted the 1996 Arbitration and Conciliation Act to mean
that a court may only order interim relief in support of a domestic arbitration. In
China it would seem that it is not possible to apply for interim relief if the seat of
arbitration is not in China.
22) E.g. In the USA there is no provision in State statutes or the Federal Arbitration Act
allowing interim remedies by the courts when the parties have agreed to arbitration,
except in the case of maritime arbitration: 9 USC §8. However US courts have often
derived their authority to provide interim relief from State law. See: David L.
Threlkeld & Co. v. Metallgesellchaft Ltd, 923 F.2d 245, 253 No. 2 (2d Cir.1991) Borden Inc.
v. Meiji Milk Products Co. Ltd., 919 F. 2d 822 (2d Cir. 1990).

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 40) This provision could be accompanied by an explanation providing more detail on the
measures that might fit within these broad categories, along the lines set forth in
paras. 12 and 13 or a more general formulation along the lines of para. 35 above.
41) Article 23A Alternative A, Hague Conference on Private International Law: draft
Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters,
interim text, June 2001
42) ALI/Unidroit Rules of Transnational Civil Procedure, April 2001, Rule 17.1.1.
1) Article 745. Withdrawal of measures upon acquittal
2) Article 741. Transmission of objections to the petitioner, hearing and decision
1. Objections shall be transmitted to the petitioner and the provisions of article
734 shall be implemented immediately.
2. The court shall, within five days after the hearing, issue a written decision on the
objections. If the interim measures are withdrawn, the petitioner shall be liable
for the costs and any damages.
3) The International Law Association (ILA), Report of the sixty-seventh Conference held
at Helsinki from 12–17 August 1996—Committee on International Civil and Commercial
Litigation, Second interim report on provisional and protective measures in
international litigation, published by the ILA, London 1996.
9) [2003 Commission Report], (A/58/17), para. 203.
1) Proposed subparagraph relating to deferral of notification for the purpose of allowing
court enforcement:
“[(i) If notification by the arbitral tribunal risks prejudicing court
enforcement of the preliminary order, the arbitral tribunal may defer
notification to the party against whom the preliminary order is directed of
the application, the preliminary order and all other communications
between any party and the arbitral tribunal relating to the application.
The duration of such deferral shall be indicated in the order and shall not
exceed the maximum duration of the preliminary order. At the expiration
of the period fixed for the deferral of notification, the arbitral tribunal
shall give immediate notice to the party concerned of the application, the
preliminary order and all other communications between any party and
the arbitral tribunal relating to the application. The party against whom
the preliminary order is directed shall be given an opportunity to present
its case before the arbitral tribunal at the earliest possible time, and [in
any event] no later than forty-eight hours after notice is given, or on such
[earlier] [other] date and time as is appropriate in the circumstances.]”

3) [December 2003 Working Group Report,] A/CN.9/545, para. 20; [November 2002 Working
Group Report,] A/CN.9/523, para. 34; [April 2002 Working Group Report,] A/CN.9/508,
paras. 52–54.
4) [December 2003 Working Group Report,] A/CN.9/545, paras. 21–27; [November 2002
Working Group Report,] A/CN.9/523, paras. 35–38; [April 2002 Working Group Report,]
A/CN.9/508, paras. 64–76.
5) [November 2002 Working Group Report,] A/CN.9/523, para. 36; [April 2002 Working
Group Report,] A/CN.9/508, paras. 65–68.
6) [December 2003 Working Group Report,] A/CN.9/545, para. 26.
7) [December 2003 Working Group Report,] A/CN.9/545, paras. 28–32; [November 2002
Working Group Report,] A/CN.9/523, paras. 39–44; [April 2002 Working Group Report,]
A/CN.9/508, paras. 55–58.
8) [December 2003 Working Group Report,] A/CN.9/545, para. 29 and [April 2002 Working
Group Report,] A/CN.9/508, para. 56.
9) [November 2002 Working Group Report,] A/CN.9/523, para. 42.
10) [December 2003 Working Group Report,] A/CN.9/545, paras. 31 and 32.
11) [December 2003 Working Group Report,] A/CN.9/545, paras. 33–34; [November 2002
Working Group Report,] A/CN.9/523, paras. 45–48; [April 2002 Working Group Report,]
A/CN.9/508, paras. 59–63.
12) [December 2003 Working Group Report,] A/CN.9/545, paras. 44–48; [November 2002
Working Group Report,] A/CN.9/523, para. 49.
13) [December 2003 Working Group Report,] A/CN.9/454], para. 45. [Editors' Note: The
footnote erroneously cited A/CN.9/454; A/CN.9/545 was meant.]
14) [November 2002 Working Group Report,] A/CN.9/523, para. 49.
15) [December 2003 Working Group Report,] A/CN.9/454, paras. 35–43 [Editors' Note: The
footnote erroneously cited A/CN.9/454; A/CN.9/545 was meant.]; [November 2002
Working Group Report,] A/CN.9/523, paras. 50–52
16) [December 2003 Working Group Report,] A/CN.9/545, paras. 48, 60–61, 64–66.
*) The conditions set forth in this subparagraph are intended to set maximum
standards. It would, thus, not be contrary to the harmonization to be achieved by the
model law if a State retained even less onerous conditions.
5) [October 2004 Working Group Report,] A/CN.9/569, para. 22; [December 2003 Working
Group Report,] A/CN.9/545, para. 20; [November 2002 Working Group Report,]
A/CN.9/523, para. 34; [April 2002 Working Group Report,] A/CN.9/508, paras. 52–54.

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 6) [December 2003 Working Group Report,] A/CN.9/545, paras. 21–27; [November 2002
Working Group Report,] A/CN.9/523, paras. 35–38; [April 2002 Working Group Report,]
A/CN.9/508, paras. 64–76.
7) [November 2002 Working Group Report,] A/CN.9/523, para. 36; [April 2002 Working
Group Report,] A/CN.9/508, paras. 65–68.
8) [December 2003 Working Group Report,] A/CN.9/545, para. 26.
9) [October 2004 Working Group Report,] A/CN.9/569, para. 22; [December 2003 Working
Group Report,] A/CN.9/545, paras. 28–32; [November 2002 Working Group Report,]
A/CN.9/523, paras. 39–44; [April 2002 Working Group Report,] A/CN.9/508, paras. 55–58.
10) [November 2002 Working Group Report,] A/CN.9/523, para. 42.
11) [December 2003 Working Group Report,] A/CN.9/545, para. 29 and [April 2002 Working
Group Report,] A/CN.9/508, para. 56.
12) [December 2003 Working Group Report,] A/CN.9/545, paras. 31 and 32.
13) [December 2003 Working Group Report,] A/CN.9/545, paras. 33–34; [November 2002
Working Group Report,] A/CN.9/523, paras. 45–48; [April 2002 Working Group Report,]
A/CN.9/508, paras. 59–63.
14) [December 2003 Working Group Report,] A/CN.9/545, paras. 44–48; [November 2002
Working Group Report,] A/CN.9/523, para. 49.
15) [December 2003 Working Group Report,] A/CN.9/454, para. 45 [*Editors' Note: The
footnote erroneously cited A/CN.9/454; A/CN.9/545 was meant].
16) [November 2002 Working Group Report,] A/CN.9/523, para. 49.
17) [December 2003 Working Group Report,] A/CN.9/454, paras. 35–43 [*Editors' Note: The
footnote erroneously cited A/CN.9/454; A/CN.9/545 was meant]; [November 2002
Working Group Report,] A/CN.9/523, paras. 50–52.
18) [December 2003 Working Group Report,] A/CN.9/545, paras. 48, 60–61, 64–66, [June
2003 Working Group Report,] A/CN.9/524, paras. 32–34 [reprinted in the section on Arts.
17 H – 17 I, pp. 477–78 infra].
15) [February 2006 Working Group Report,] A/CN.9/592, paras. 12–45 and annex I.
16) [April 2002 Working Group Report,] A/CN.9/508, paras. 65–68.
17) [November 2002 Working Group Report,] A/CN.9/523, para. 36.
18) [April 2004 Working Group Report,] A/CN.9/547, paras. 70–72.
19) Ibid.
20) [April 2002 Working Group Report,] A/CN.9/508, para. 71.
21) [December 2003 Working Group Report,] A/CN.9/545, para. 21.
22) Ibid.
23) [October 2005 Working Group Report,] A/CN.9/589, para. 37.
24) Ibid., para. 33.
25) [November 2002 Working Group Report,] A/CN.9/523, para. 41.
26) [October 2004 Working Group Report,] A/CN.9/569.
27) [January 2005 Working Group Report,] A/CN.9/573.
28) Ibid., para. 27.
29) [October 2004 Working Group Report,] A/CN.9/569, para. 24.
30) Ibid., para. 26.
31) [January 2005 Working Group Report,] A/CN.9/573, para. 30.
32) Ibid., para. 41.
33) [April 2004 Working Group Report,] A/CN.9/547, para. 66[, reprinted in the section on
Arts. 17 H – 17 I, pp. 514–15 infra].
34) [October 2004 Working Group Report,] A/CN.9/569, paras. 46–51.
35) [February 2006 Working Group Report,] A/CN.9/592, para. 27.
*) Translator's note: The phrase “demandante de una orden preliminar” does not appear
to occur in [the February 2006 Working Group Report,] A/CN.9/592.
1) In Guatemala at least, the term is not used in laws relating to civil and trade law
procedure. Instead, the terms “medidas cautelares”, “medida's preventivas” or
“medidas de garantia” are used.
1) See, on this point, the judgement of the European Court of Justice of 27 April 2004 in
Case C-159/02 (Turner), which ruled that the Brussels Convention precludes “the grant
of an injunction whereby a court of a contracting State prohibits a party to proceedings
pending before it from commencing or continuing legal proceedings before a court of
another contracting State”.
5) Official Records of the General Assembly, Fortieth Session, Supplement No. 17 (A/40/17),
annex I, and United Nations publication, Sales No. E.95.V.18.
28) V. V. Veeder, “Provisional and conservatory measures”, in Proceedings of the New York
Convention Day Colloquium, [“Enforcing arbitration awards under the New York
Convention: experience and prospects”, May, 1999, ISBN 92-1-133609-0].
29) Report of the Working Group on International Contract Practices on the work of its
sixth session (1983), Doc. A/CN.9/245, UNCITRAL Yearbook, vol XV:1984, part two, II, A, 1,
para. 70.
30) Ibid., para 72.
5) Report of the Working Group on International Contract Practices on the work of its
sixth session (1983), [Forth Working Group Report,] A/CN.9/245, UNCITRAL Yearbook,
vol. XV: 1984, part two, II, A, 1, para. 70.
6) Ibid., para. 72.

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 21) Since interim measures of protection are typically ordered before the parties have
presented their cases regarding the substance of the dispute, it is suggested that the
words “unable to present its case” should be understood as relating to the need for
and the content of the interim measure in question. The Working Group may wish to
consider whether this should be made clear by a wording along the lines of “unable to
present its case with respect to the interim measure.”
22) The Working Group may wish to consider, whether the policy considerations regarding
the types of interim measures that an arbitral tribunal or a court might order are
necessarily the same as the policy considerations underlying the provision on the
enforcement of an interim measure, in particular if the measure has been ordered
abroad. For example, one reason for narrowing the scope of interim measures may be
that there is less need for certain types of interim measures (e.g. because parties may
achieve the purpose of a particular measure in other ways including through the
judicial system). If the policy considerations are not the same, subparagraph (v) may
have to be reworded to allow enforcement of potentially a broader scope of
measures than could be ordered by a court of the enacting State in support of
arbitration or by an arbitral tribunal in the enacting State.
24) The Working Group may wish to consider where the draft provision on enforcement of
interim measures might be placed. One possibility is to include it in the UNCITRAL
Model Law on International Commercial Arbitration under a new chapter VI bis, as
article 33 bis.
25) The guide to enactment will clarify that the approval of the arbitral tribunal may be
given in the order itself, at the time the order is given or subsequently.
26) For a discussion of this subparagraph in the Working Group, see [the December 2000
Working Group Report,] A/CN.9/485, paragraphs 84 and 85.
27) For the discussion of subparagraph (i), see paragraph 86 of [the December 2000
Working Group Report,] A/CN.9/485. The draft provision is intended to cover situations
where a request for the same or similar measure is pending with the court, where the
request has been denied by the court and where the court has granted the same or
similar interim measure. It may be noted, however, that a previous denial of a
request by the court would not necessarily lead to the conclusion that the arbitral
tribunal's measure was unwarranted and that the court should refuse its enforcement
(e.g. when the circumstances have changed after the earlier court decision). Also the
existence of an earlier measure by the court may not warrant the refusal of
enforcement of a measure ordered subsequently by the arbitral tribunal (e.g. if the
measure by the arbitral tribunal refers to a different part of the claim or can be
regarded as an additional measure necessary because of changed circumstances). It
appears that the principle of discretion, expressed in the chapeau of the draft
provision, is appropriate to allow the court to take those circumstances into account,
as appropriate.
28) For the discussion of subparagraph (ii) in the Working Group, see paragraphs 87 and
88 of [the December 2000 Working Group Report,] A/CN.9/485. It was considered in the
Working Group that it should be understood (either from the provision or from the
guide to enactment) that the court should not go beyond a prima facie assessment of
the validity of the arbitration agreement, thus leaving the full examination of the
validity of the arbitration agreement to the arbitral tribunal (paragraph 88 of [the
December 2000 Working Group Report,] A/CN.9/485).
29) For the discussion of subparagraph (iii) in the Working Group, see paragraphs 89 to 94
of [the December 2000 Working Group Report,] A/CN.9/485. Subparagraph (iii) is not
intended to prevent the arbitral tribunal from issuing ex parte interim measures; it
merely requires that, by the time the request for enforcement is made to the court,
the party to whom the measure is directed should have been heard by the arbitral
tribunal. The wording between square brackets, by adding the discretion to suspend
enforcement proceedings, emphasizes the idea that the court, faced with a measure
with respect to which the affected party ought to have been heard, should not itself
hear the arguments regarding the measure and evaluate its merits, but should rather
leave that to the arbitral tribunal. The guide to enactment may clarify that a refusal
by the court to enforce a measure on the ground set out in subparagraph (iii) does not
prevent the arbitral tribunal from hearing the parties on the measure and issuing an
inter partes measure which would be capable of enforcement by the court.
30) For the discussion of subparagraph (iv), see paragraphs 95 and 96 of [the December
2000 Working Group Report,] A/CN.9/485. The requirement (in the chapeau of the
article) that the arbitral tribunal should approve the application for enforcement
would advance the policy underlying subparagraph (iv). In order to stimulate
discussion in the Working Group as to whether that policy should be further advanced,
a new draft paragraph (2) has been included.
31) For discussion in the Working Group, see paragraph 101 of [the December 2000 Working
Group Report,] A/CN.9/485.
32) Subparagraph (ii) was not discussed at the last Working Group, due to time
constraints (see [December 2000 Working Group Report,] A/CN.9/485 at paragraph
103).
33) For discussion in the Working Group, see [December 2000 Working Group Report,]
A/CN.9/485, paragraphs 95 and 96.

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 34) Draft paragraph (3) has been included to reflect the discussion in paragraphs 100 and
101 of [the December 2000 Working Group Report,] A/CN.9/485 and also reflects the
considerations in [the September 2000 Secretariat Note,] A/CN.9/WG.II/WP.110
paragraphs 71 and 72. A further clarification concerning the possible reformulation of
a measure may be included in the guide to enactment.
35) See [December 2000 Working Group Report,] A/CN.9/485, paragraphs 91 to 93.
36) This footnote has been drafted pursuant to the suggestion, reflected in [the December
2000 Working Group Report,] A/CN.9/485, paragraph 85, that, to the extent that a
single regime could not be agreed upon, in particular if a national law provided a
more favourable regime, a footnote, along the lines of the footnote to article 35(2) of
the Model Law on Arbitration could be included.
*) [Footnote to art. 17 I in the final text] The conditions set forth in this article are
intended to limit the number of circumstances in which the court must refuse to
enforce interim measures. It would not be contrary to the level of harmonization
sought to be achieved by these model provisions if a State were to adopt fewer
circumstances in which enforcement must be refused.
*) [Footnote to art. 17 I in the final text] The conditions set forth in this article are
intended to limit the number of circumstances in which the court may refuse to
enforce an interim measure of protection. It would not be contrary to the level of
harmonization sought to be achieved by these model provisions if a State were to
adopt fewer circumstances in which enforcement may be refused.
*) [Footnote to art. 17 I in the final text] The conditions set forth in this article are
intended to limit the number of circumstances in which the court may refuse to
enforce an interim measure of protection. It would not be contrary to the level of
harmonization sought to be achieved by these model provisions if a State were to
adopt fewer circumstances in which enforcement may be refused.
17) [December 2003 Working Group Report,] A/CN.9/545, paras. 95–102; [June 2003 Working
Group Report,] A/CN.9/524, paras. 24–29, 32–33, 64–66; [June 2001 Working Group
Report,] A/CN.9/487, paras. 77–82; [December 2000 Working Group Report,] A/CN.9/485,
paras. 80–83.
18) [December 2003 Working Group Report,] A/CN.9/545, para. 102 and also paras. 107–110.
19) [December 2003 Working Group Report,] A/CN.9/545, paras. 105–106; [June 2003
Working Group Report,] A/CN.9/524, para. 57; [April 2000 Working Group Report,]
A/CN.9/468, paras. 72–74.
20) [June 2003 Working Group Report,] A/CN.9/524, para. 47.
21) [June 2003 Working Group Report,] A/CN.9/524, para. 48-49.
22) [December 2003 Working Group Report,] A/CN.9/545, paras. 103–111; [June 2003
Working Group Report,] A/CN.9/524, paras. 35–39, 42–52; [June 2001 Working Group
Report,] A/CN.9/487, paras. 83–86; [December 2000 Working Group Report,]
A/CN.9/485, paras. 84–89, 95–101.
23) [June 2003 Working Group Report,] A/CN.9/524, paras. 40 and 56.
24) [June 2003 Working Group Report,] A/CN.9/524, paras. 67–71.
25) [June 2003 Working Group Report,] A/CN.9/524, paras. 72–75.
*) [Footnote to Art. 17 I in the final text:] The conditions set forth in this article are
intended to limit the number of circumstances in which the court may refuse to
enforce an interim measure of protection. It would not be contrary to the level of
harmonization sought to be achieved by these model provisions if a State were to
adopt fewer circumstances in which enforcement may be refused.
19) [December 2003 Working Group Report] A/CN.9/545, paras. 95–102; [June 2003 Working
Group Report] A/CN.9/524, paras. 32–34, 64–66.
20) [December 2003 Working Group Report,] A/CN.9/545, paras. 103–110; [June 2003
Working Group Report,] A/CN.9/524, paras. 35–39, 42–52, 57–63.
21) [June 2003 Working Group Report] A/CN.9/524, paras. 40–41, 55–56.
22) [June 2003 Working Group Report,] A/CN.9/524, paras. 67–71.
23) [June 2003 Working Group Report,] A/CN.9/524, paras. 72–75.
24) [December 2003 Working Group Report,] A/CN.9/545, para. 111.
*) The conditions set forth in this article are intended to limit the number of
circumstances in which the court may refuse to enforce an interim measure. It would
not be contrary to the level of harmonization sought to be achieved by these model
provisions if a State were to adopt fewer circumstances in which enforcement may be
refused.
*) The conditions set forth in article novies [sic] are intended to limit the number of
circumstances in which the court may refuse to enforce an interim measure. It would
not be contrary to the level of harmonization sought to be achieved by these model
provisions if a State were to adopt fewer circumstances in which enforcement may be
refused.
*) The conditions set forth in article 17 decies are intended to limit the number of
circumstances in which the court may refuse to enforce an interim measure. It would
not be contrary to the level of harmonization sought to be achieved by these model
provisions if a State were to adopt fewer circumstances in which enforcement may be
refused.
15) [February 2006 Working Group Report] A/CN.9/592, paras. 12–45 and annex I.
36) [April 2004 Working Group Report,] A/CN.9/547, para. 43.

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 37) Ibid., paras. 35–36, 42, 58 and 60; [January 2005 Working Group Report,] A/CN.9/573,
para. 73.
38) [October 2005 Working Group Report,] A/CN.9/589, para. 85.
39) [April 2004 Working Group Report,] A/CN.9/547, para. 26.
40) Ibid., para. 24.
2) It is recalled that the French delegation had proposed a more concise wording:
(1) An interim measure of protection issued by an arbitral tribunal shall be
recognized as binding on the parties and [unless otherwise provided by the
arbitral tribunal] enforced upon application by the party which obtained it [or
by the arbitral tribunal] to the competent court, irrespective of the country in
which it was issued.
(2) The court may refuse to recognize [and] [or] enforce an interim measure of
protection only if:
(a) Upon the request of a party the court is satisfied that:
– That party was not given notice of the appointment of an arbitrator
or of the arbitral proceedings;
– The party against whom the measure is directed was unable to
present its case under the conditions of article 17;
– The arbitral tribunal did not have [was deprived of] the powers to
order any such interim measure of protection;
(b) The court finds that:
– The requested measure is incompatible with the powers conferred
upon the court by its laws unless the interim measure can be
reformulated to adapt it to those laws;
– The recognition or enforcement of the interim measure would be
contrary to the public policy recognized by the court.
1) The International Law Association, Report of the sixty-seventh Conference held at
Helsinki from 12–17 August 1996—Committee on International Civil and Commercial
Litigation, Second interim report on provisional and protective measures in
international litigation, published by the ILA, London 1996.
2) The principle of independence of the jurisdiction to grant provisional and protective
measures is in line with Article 24 of the 1968 Brussels Convention (and Lugano
Convention) on Jurisdiction and Enforcement of Judgements.
3) The International Law Association Report, page 186.
4) The International Law Association Report, page 201.
5) This follows from the consensual nature of the arbitration agreement: it is the parties
who agreed to the resolution of their dispute by arbitration and no one else. If an
order is required that would bind third parties, it will be necessary to have recourse
to the courts.
6) ICC, 1993, “Conservatory and Provisional Measures in International Arbitration”, ICC
Publishing S.A., at page 76.
7) Channel Tunnel Group Ltd v. Balfour Beatty Construction Ltd [1993] 1 All ER 664, House
of Lords.
8) For example in one country legislation provides that the powers conferred on the
court with regard to interim relief are exercisable even if the seat of the arbitration is
outside the country or no seat has been designated or determined. Nevertheless the
court may still refuse to grant interim relief if in the opinion of the court the fact that
the seat of the arbitration is outside the country makes it inappropriate to do so. Due
to the fact that the law has only recently been enacted it is not entirely clear how the
courts will exercise this discretion, but it seems likely that if the courts at the place
where the arbitration has its seat are themselves competent to order interim
measures then the court may regard those courts as the natural forum for the grant of
such measures and will itself decline to grant relief.
9) [April 2000 Working Group Report,] A/CN.9/468, paras 60–79 [paras. 60–67 reprinted in
the section on materials common to Arts. 17 – 17 J, pp. 193–95 supra; paras 67–79 in the
section on Arts. 17 H – 17 I, pp. 446–50 supra]; At present Germany is the only country to
expressly provide for the enforcement of a interim order granted by a foreign arbitral
tribunal: German Arbitration Law 1998, Book 10 of the Civil Procedure Code, s.1041(2),
1062(1), (2).
10) In India courts have interpreted the 1996 Arbitration and Conciliation Act to mean
that an Indian court may only order interim relief in support of a domestic
arbitration. Two decisions from the High Court of Delhi and the Calcutta High Court
have held that because the provision dealing with interim measures by the courts is
in Part I of the Act which applies where the arbitration is in India, this means that
where the seat of the arbitration is outside India the Indian court has no power to
order interim relief. This judgement has been criticized however and there is
conflicting case law in existence although the matter is yet to be resolved by the
Supreme Court. In addition, in China it would seem that it is not possible to apply for
interim relief if the seat of arbitration is not in China.
11) Austria, s387(2) Exekutionsordnung.

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 12) Canada, Ruhrkohle Handel Inter GmbH et al and Fednav Ltd. et al, unreported
judgement of the Federal Court of Canada, Trial Division T-212-91 supports the view
that an arrest may be maintained in a foreign arbitration matter provided full
disclosure of the arbitration agreement is made and that proceedings are
subsequently stayed.
13) The German courts do not differentiate between foreign and national arbitral
proceedings as long as the Civil Procedure Code provides for a state court's
jurisdiction to grant interim relief. Also in Greece, as long as the conditions of the
Greek Code of Civil Procedure with regard to interim relief are satisfied, the Greek
court will grant interim relief in support of a foreign arbitration.
14) In the US for example there is no provision in US state statutes or the Federal
Arbitration Act allowing interim remedies by the courts when the parties have agreed
to arbitration. However the US courts have often derived their authority to provide
interim relief from state law. See further: David L. Threlkeld & Co. v. Metallgesellchaft
Ltd, 923 F.2d 245, 253 No. 2 (2d Cir.1991) Borden Inc. v. Meiji Milk Products Co. Ltd., 919 F.
2d 822 (2d Cir. 1990).
15) For e.g. in Sweden, section 6, chapter 15 of the Procedural Code prescribes that giving
security for an interim measure of protection is essential for the granting of the
measure. The security can be in the form of a personal letter or guarantee or a
pledge. Bank guarantees are also accepted. If the applicant cannot put up sufficient
security he can be exonerated from this demand only by showing extraordinary
grounds for his claim (The Execution Code Chapter 2 Section 25).
16) See for e.g. the UK case of Credit Suisse Fides Trust v. Cuoghi [1998] Queen's Bench
Division 818
23) The International Law Association (ILA), Report of the sixty-seventh Conference held
at Helsinki from 12–17 August 1996—Committee on International Civil and Commercial
Litigation, Second interim report on provisional and protective measures in
international litigation, published by the ILA, London 1996.
24) The principle of independence of the jurisdiction to grant provisional and protective
measures is in line with Article 24 of the 1968 Brussels Convention (and Lugano
Convention) on Jurisdiction and Enforcement of Judgements.
25) The ILA Report, page 186.
26) The ILA Report, page 201.
27) E.g. in Sweden, section 6, chapter 15 of the Procedural Code provides security is
essential for the granting of an interim measure. The security can be in the form of a
personal letter or guarantee or a pledge, or a bank guarantee. The applicant can be
exonerated from this demand only by showing extraordinary grounds for the claim:
Execution Code ch 2, s 25.
28) E.g. Credit Suisse Fides Trust v. Cuoghi [1998] Queen's Bench Division 818 (UK).
29) Article 1.2(k) provides that the Convention does not apply to:
(k) Alternative A
[provisional and protective measures other than interim payment orders;]
Alternative B
[provisional or protective measures [other than those mentioned in Articles 13 and
23A];]
30) It has been suggested that it would be sufficient if a court is seised after a provisional
and protective measure is made. This would require the addition of the words ‘or
about to be seised’ or similar.
31) The description ‘provisional and protective’ is intended to be cumulative, that is to
say, the measures must meet with both criteria.
32) A form of words has also been suggested that would make it clear that Contracting
States are obliged to provide this jurisdiction, although it was also stressed that this
would not interfere with the discretion of the courts of such States either to make or
to refuse to make such orders.
33) It was noted that some States, especially those in the Commonwealth other than the
United Kingdom, did not provide for jurisdiction to make provisional and protective
orders unless the court was seised of jurisdiction to determine the merits of the case.
This could operate to the detriment of foreign plaintiffs who sought to ‘freeze’ assets
within the jurisdiction in aid of litigation pending elsewhere. The provision is
intended to provide such States with jurisdiction to make such orders based on the
existence of property in the forum and limited to the territory of the forum. There was
no consensus on this provision.
34) This provision is intended to overcome any restrictions imposed on the exercise of
jurisdiction by the courts of Contracting States by the list of prohibited jurisdictions
(at present found in Article 18). The provision would also allow the exercise of
jurisdiction to make provisional and protective orders under national law without the
restrictions imposed by the list of prohibited jurisdictions. It is proposed to remove
the reference to Article 13 in Article 17 in order to allow the exercise of such
jurisdiction under national law. Some delegations took the view that this paragraph
was the only provision on provisional and protective measures that should be
included in the Convention.

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 35) It has been proposed that this definition should apply also to paragraphs 1 and 2.
36) This proposal is linked with the second alternative in Article 1(2)(k) which in itself
contains the options either to exclude provisional or protective measures entirely
from the scope of the Convention or to permit a limited jurisdiction to make such
orders. Alternative B provides for such a limited jurisdiction, if so desired.
37) The two alternatives which do not appear to differ much in substance, provide for the
recognition and enforcement of provisional and protective orders made by a court
that is seised (or about to be seised) of the substantive dispute. Such a provision is
opposed naturally by those delegations that favour exclusion of such measures from
the scope of the Convention. But several delegations that favoured the inclusion of a
provision relating to such measures in the jurisdictional or procedural part of the
Convention, opposed making provision for the recognition and enforcement of
provisional and protective orders. Note also that there may be a need to address: the
extent to which similar relief is known in the State of the court addressed; and,
procedures to safeguard the interests of third parties or of the defendant (e.g. an
undertaking to pay damages).
38) It was suggested that it would be sufficient if a court is seised after a provisional and
protective measure is made as long as it is already seised by the time of recognition
and enforcement of the provisional and protective measure is sought abroad.
39) This refers back to the proposal made as Alternative B in Article 13, above. The order
must have been made by a court that is seised or about to be seised of a claim and
that has jurisdiction to determine the merits thereof.
43) see section 47, Commercial Arbitration Act, Queensland, Australia
25) [January 2005 Working Group Report, ] A/CN.9/573, paras. 90–95; [June 2003 Working
Group Report,] A/CN.9/524, paras. 76–78; [November 2002 Working Group Report,]
A/CN.9/523, para. 77.
15) [February 2006 Working Group Report] A/CN.9/592, paras. 12–45 [paras. 13, 17–33
reprinted in the section on Arts. 17 – 17 G, pp. 412–14 supra; paras. 34–39 in the section on
Arts. 17 H – 17 I, pp. 539–40 supra; paras. 40–45 supra] and annex I.
41) [February 2006 Working Group Report,] A/CN.9/592, paras. 40–42.
42) [5 December 2005 Secretariat Note,] A/CN.9/WG.II/WP.141, para. 13. The footnote reads
as follows: “In enacting article 17 undecies, States might wish to consider grouping this
provision with other provisions in the enacting legislation relating to certain functions
of arbitration assistance and supervision performed by courts or other authority.”

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Document information
UNCITRAL Model Law, Chapter V, Article 18 [Equal
Publication treatment of parties]
A Guide to the UNCITRAL P 549
Model Law on International P 550
Commercial Arbitration: The parties shall be treated with equality and each party shall be given a full opportunity
Legislative History and of presenting his case.
Commentary
Commentary
Article 18 establishes the fundamental principles that in all arbitrations under the Law
Organization each party must be treated with equality and be given a full opportunity to present his
United Nations Commission case. Although Article 18 is only one sentence long, it is the heart of the law's regulation of
on International Trade Law arbitral proceedings — other Articles provide the detailed mechanisms by which the goals
of equality and fair procedure are to be achieved. For this reason, Article 18 has been
rightly described as a key element of the “Magna Carta of Arbitral Procedure.” (1) Likewise,
it might well be called the “due process” clause of arbitration, akin to similar provisions in
Promulgation national constitutions that establish the requirement of procedural fairness as the
21 June 1985 indispensable foundation of a system of justice. (2)
In early drafts of the law, the provision that now constitutes Article 18 was included as the
third paragraph of Article 19, to which, as discussed below, it is an important corollary. In
Legislation number order, however, to emphasize the central importance of the principles of equality and
fairness, and the intention that they apply “to the entire arbitral proceedings,” the
United Nations Document Commission decided that they should appear in a separate article. (3)
A/40/17, Annex I
The fundamental precepts of Article 18 were intended to apply both to actions taken by
the arbitral tribunal and to procedural agreements reached by the parties. The drafting
Bibliographic reference history is absolutely clear on this point. In some of the early drafts of what became Article
18, the provision was apparently a limitation only on the discretion of the arbitral tribunal
'UNCITRAL Model Law, and not on the parties. (4) At its fifth and final session on the Model Law, however, the
Chapter V, Article 18 [Equal Working Group directed that the text be amended to emphasize that the principle of
treatment of parties]', in
P 550 equality and the right to present one's case “should be observed not only by the arbitral
Howard M. Holtzmann and P 551 tribunal but also by the parties when laying down any rules of procedure.” (5) Article 18
Joseph Neuhaus , A Guide to is thus a limitation on Article 19, which provides broad autonomy, first, to the parties, and
the UNCITRAL Model Law on second — in the absence of party agreement — to the arbitral tribunal, to decide on the
International Commercial procedure to be followed in conducting the arbitration. (Article 18 does not stipulate what
Arbitration: Legislative should be done if the parties nevertheless prescribe one–sided rules of procedure, though
History and Commentary, it may be ventured that rules that violate Article 18 would be invalid and awards rendered
(© Kluwer Law International; in arbitrations conducted under such rules would not be enforced.)
Kluwer Law International
1989) pp. 550 - 563 The terms of Article 18 were modeled on Article 15(1) of the UNCITRAL Arbitration Rules. (6)
The Commission Report provides no authoritative guidelines to interpreting the terms
“treated with equality” and “full opportunity of presenting his case”; nor do the reports of
the Working Group. (7) It is submitted that this may be because the delegates considered
that the terms were so well understood in all legal systems that comment was unnecessary
and that detailed definitions might limit the flexible and broad approach needed to
assure fairness in the wide variety of circumstances that might be encountered in
international arbitration. It is also submitted that the terms “equality” and “full
opportunity” are to be interpreted reasonably in regulating the procedural aspects of the
arbitration. (8) While, on the one hand, the arbitral tribunal must provide reasonable
opportunities to each party, this does not mean that it must sacrifice all efficiency in order
to accommodate unreasonable procedural demands by a party. For example, as the
Secretariat noted, the provision does not entitle a party to obstruct the proceedings by
P 551 dilatory tactics, such as by offering objections, amendments, or evidence on the eve of the
P 552 award. (9) An early draft that would have required that each of the parties be given a
full opportunity to present his case “at any stage of the proceedings” was rejected
precisely because it was feared that it might be relied upon to prolong the proceedings
unnecessarily. (10)
The precise scope of application of Article 18 may give rise to some question. As noted, the
Commission Report states that the tenets of Article 18 are “applicable to the entire arbitral
proceedings.” (11) For this reason, the Commission moved the provision from Article 19(3)
into a separate article at the beginning of Chapter V, which concerns the “conduct of
arbitral proceedings.” In addition, the Secretariat stated that the provision applies even
more broadly than to the nine other articles of Chapter V. In urging the Commission to
adopt the quoted interpretation, the representative of the Secretariat stated,
It had always been the understanding of the Working Group … that the
fundamental principle enunciated in article 19(3) [Article 18 in the final text]
would apply to arbitral proceedings in general; it would thus govern all the
provisions in chapter V and other aspects, such as the composition of the
arbitral tribunal, not directly regulated therein. (12)

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 Similarly, in its written commentary on Article 13 of the law, which addresses the
procedures for challenging an arbitrator, the Secretariat suggested that the parties'
freedom to agree on a procedure for challenging an arbitrator should be deemed limited
by the principles of Article 18. (13) On the other hand, it seems clear that Article 18 should
not be deemed to apply to all actions taken under the Model Law. In particular, Article 18
should probably not be considered an independent source of law governing proceedings in
courts pursued under the Law, such as setting aside proceedings (Article 34) or requests for
referral to arbitration (Article 8), because the fairness requirements for these court
proceedings are governed by other provisions of municipal law. As a general matter, it
P 552 does not appear to have been the intention of the Commission to affect court procedures
P 553 unless explicitly stated, (14) and the Commission itself stated only that Article 18 was to
apply to “the entire arbitral proceedings,” which presumably excludes court actions.

Legislative History
[Editors' Note: The early history of Article 18 is bound up with that of Article 19 and in fact
with the Commission's basic decision to undertake the Model Law project as a whole. An
Editors' Note summarizing this history appears in the section on Article 19, pp. 568–70 infra,
and the relevant documentary excerpts themselves appear in that section and in the section
on Purposes and Procedures of the Commission, pp. 1161–91 infra.]
FIRST SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW
A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
IV. Arbitral procedure
[ .… ]
2. Arbitral proceedings in general
73. The model law should empower the arbitral tribunal to conduct the arbitration
proceedings in such manner as it considers appropriate, subject to the following
restrictions. The arbitral tribunal must treat the parties with equality and give each party
at any stage of the proceedings a full opportunity of presenting his case. [ … ]
SECOND SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW:
QUESTIONS FOR DISCUSSION
A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
IV. Arbitral procedure
[ .… ]
2. Arbitral proceedings in general
25. As suggested in the report [First Secretariat Note, supra,] (paras. 73–74 [Para. 74 appears
in the section on Article 19, pp. 572–73 infra]), the arbitral tribunal may be empowered to
conduct the proceedings as it considers appropriate, subject to instructions by the parties
P 553 (including agreed arbitration rules), to principles of due process and to certain mandatory
P 554 provisions adopted in the model law. [ … ]
Question 4–3: Should the model law expressly empower the arbitral tribunal to
conduct the proceedings as it deems appropriate and, if so, what restrictions
should be laid down?
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
IV. Arbitral procedure
[ .… ]
2. Arbitral proceedings in general
Question 4–3: Should the model law expressly empower the arbitral tribunal to
conduct the proceedings as it deems appropriate and, if so, what restrictions
should be laid down?
56. There was general agreement that the arbitral tribunal should be empowered to
conduct the arbitration as it considered appropriate, subject to the instructions of the
parties, provided that the parties were treated with equality and that at every stage of the

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 proceedings each party was given a full opportunity of presenting his case. It was agreed
that such a provision, modeled after article 15, paragraph 1 of the UNCITRAL Arbitration
Rules, should be mandatory.
FIRST DRAFT
A/CN.9/WG.II/WP.37 (15 JULY 1982)
IV. Arbitral procedure
[ .… ]
2.–4. Arbitration proceedings in general, evidence, experts (32)
Article 19 [Arts. 18, 19 & 26 in the final text]
(1) The arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate
(a) subject to the provisions of articles 20 to 24 [Arts. 17, 20(2), 24–26 in the final text]
and any instructions given by the parties in the arbitration agreement; (33)
(b) provided that the parties are treated with equality and that at any stage of the
proceedings each party is given a full opportunity of presenting his case. (34)
P 554
P 555
[Editors' Note: The substance of paragraph 1(a) of Article 19 was incorporated into Article 19
in the final text; paragraph 1(b) became Article 18. Paragraph 2 concerned evidence (see
Article 19 of the final text) and experts (Article 26). For the text of paragraph 2, see p. 576
infra.]
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Arbitral procedure
[ .… ]
Arbitration proceedings in general, evidence, experts
Article 19 [Art. 19(1)(b) became Art. 18 in the final text]
101. The text of article 19 as considered by the Working Group was as follows:
[same as First Draft, supra].
[ .… ]
104. It was felt that the words “at any stage” in paragraph (1)(b) might be relied upon by a
party who wished to prolong the proceedings or to make unnecessary submissions. It was
therefore suggested that the provision be rephrased in order to eliminate this possibility.
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
F. Place and conduct of arbitration proceedings
Article XV [Arts. 18 & 19 in the final text]
[Editors' Note: For the full text of Article XV, see the section on Article 19, p. 577 infra.]
(2) Failing such agreement [by the parties] [on the respective point at issue], the arbitral
tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner
as it considers appropriate, provided that the parties are treated with equality and that
each party is given a full opportunity of presenting his case. [ … ]
P 555
P 556
[Editors' Note: The clause of this article that became Article 18 was not discussed or altered
in subsequent drafts or reports of the Working Group, until the Working Group's report of its
consideration of the Fourth Draft.]
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Chapter V. Conduct of arbitral proceedings
Article 19. Determination of rules of procedure [Arts. 18 & 19 in the final text]
(1) Subject to the [mandatory] provisions of this Law, the parties are free to agree on the
procedure to be followed by the arbitral tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this
Law, conduct the arbitration in such manner as it considers appropriate, provided
that the parties are treated with equality and that each party is given a full

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 opportunity of presenting his case. [ … ]
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Chapter V. Conduct of arbitral proceedings.
Article 19 [Arts. 18 & 19 in the final text]
60. The text of article 19 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
61. The Working Group adopted that article, subject to the deletion of the word
“mandatory” in paragraph (1) and the addition, at the end of that paragraph, of the words
“provided that the parties are treated with equality and that each party is given a full
opportunity of presenting his case.”
62. That addition to paragraph (1) was designed to emphasize the importance of the
principles of equality and the right to be heard which should be observed not only by the
arbitral tribunal but also by the parties when laying down any rules of procedure.
P 556
P 557
FIFTH DRAFT
A/CN.9/246 (ANNEX) (6 MARCH 1984)
Chapter V. Conduct of arbitral proceedings
Article 19. Determination of rules of procedure [Arts. 18 & 19 in the final text]
(1) Subject to the provisions of this Law, the parties are free to agree on the procedure to
be followed by the arbitral tribunal in conducting the proceedings.
(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this
Law, conduct the arbitration in such manner as it considers appropriate. The power
conferred upon the arbitral tribunal includes the power to determine the
admissibility, relevance, materiality and weight of any evidence.
(3) In either case, the parties shall be treated with equality and each party shall be
given a full opportunity of presenting his case.
SIXTH SECRETARIAT NOTE
ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 19. Determination of rules of procedure
[ .… ]
Article 19, paragraph (3) [Art. 18 in the final text]
7. Norway, observing that according to paragraph (3) each party shall be given a “full”
opportunity of presenting his case, notes that the arbitral tribunal's not complying with the
provision constitutes a valid ground for setting aside the award (article 34(2)(a)(iv)) and for
refusing recognition and enforcement (article 36(1)(a)(iv)), and that the provision may also
be a basis for delaying tactics. It is therefore proposed to replace in paragraph (3) the
word “full” by another word, for example, “adequate.”
8. IBA [International Bar Association] suggests inserting, after the word “full” in paragraph
(3), the words “and proper” since, in the English language, the word “full” is rarely used on
its own in this sense and the words “full and proper” constitute an idiomatic expression
which would be well understood in the context and would be capable of reasonably
precise definition. By contrast, the word “full” is relatively imprecise on its own, and might
be capable of being interpreted in an unduly restrictive sense. It is appreciated that the
UNCITRAL Arbitration Rules use the abbreviated version, but this is considered to be less
significant in arbitration rules than in national legislations.
P 557
P 558
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 19. Determination of rules of procedure
[ .… ]

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 Article 19, paragraph (3) [Art. 18 in the final text]
2. In the view of the Sudan, the following addition would be important at the end of
paragraph (3): “on his own or through a counsel or agent.”
A/CN.9/263/ADD.2 (21 MAY 1985)
(UK COMMENTS)
[Editors' Note: The United Kingdom, in its comments on the Law, expressed concern about the
rights of recourse in cases where an award has resulted from serious procedural injustice.
These comments, which were aimed primarily at the question of the scope of court
intervention permitted under the Law (see Article 5), touched also on the meaning of Article
18 (then, Article 19(3)). The comments included examples of situations that the United
Kingdom believed were not covered by that Article.]
Judicial intervention: Article 5
[ .… ]
Intervention on the ground of procedural injustice
[ .… ]
32. In order to assist in the consideration of this question [i.e., serious procedural injustice]
the United Kingdom suggests the following examples. In all cases it may be assumed that
the parties received sufficient notice of the proceedings; that the procedures followed the
course demanded by the express provisions of the arbitration agreement, and of the
procedures laid down by the arbitral tribunal, and that the tribunal placed no obstacle in
the way of the parties in the full presentation of their documents, witnesses and
arguments.
(a) The award is founded on evidence which is proved or admitted to have been
perjured.
(b) The award was obtained by corruption of the arbitrator or of the witnesses of the
losing party.
(c) The award is subject to a mistake, admitted by the arbitrator, of a type which does
not fall within Article 33(1)(a).
(d) Fresh evidence has been discovered, which could not have been discovered by the
exercise of due diligence during the reference, which demonstrates that through no
fault on the part of the arbitrator the award is fundamentally wrong.
P 558
P 559
33. The United Kingdom ventures to doubt whether these situations (which are only
instances of the various ways, not fully predictable in advance, in which an arbitration may
go wrong) fall within any of the provisions quoted above [Arts. 18, 34(2)(a)(ii), (iv), 34(2)(b)(ii)],
unless they fall to be dealt with as contraventions of public policy. [ … ]
[Editors' Note: This portion of the comments appears in full in the section on Article 34, pp.
958–61 infra.]
SEVENTH SECRETARIAT NOTE
ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1985)
Article 19. Determination of rules of procedure [Arts. 18 & 19 in the final text]
[ .… ]
“Magna Carta of Arbitral Procedure”
1. Article 19 may be regarded as the most important provision of the model law. It goes a
long way towards establishing procedural autonomy by recognizing the parties' freedom to
lay down the rules of procedure (paragraph (1) [Art. 19(1) in the final text]) and by granting
the arbitral tribunal, failing agreement of the parties, wide discretion as to how to conduct
the proceedings (paragraph (2) [Art. 19(2)]), both subject to fundamental principles of
fairness (paragraph (3) [Art. 18]). Taken together with the other provisions on arbitral
procedure, a liberal framework is provided to suit the great variety of needs and
circumstances of international cases, unimpeded by local peculiarities and traditional
standards which may be found in the existing domestic law of the place.
[ .… ]
Fundamental requirements of fairness, paragraph (3)
7. Paragraph (3) adopts basic notions of fairness in requiring that the parties be treated
with equality and each party be given a full opportunity of presenting his case. As
expressed by the words “in either case,” these fundamental requirements shall be
complied with not only by the arbitral tribunal when using its discretionary powers under
paragraph (2) but also by the parties when using their freedom under paragraph (1) to lay
down the rules of procedure. It is submitted that these principles, in view of their
fundamental nature, are to be followed in all procedural contexts, including, for example,

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 the procedures referred to in articles 13 and 14.
8. The principles, which paragraph (3) states in a general manner, are implemented and
put in more concrete form by provisions such as articles 24 (3), (4) [Art. 24(3), (4) became Art.
24(2), (3) in the final text] and 26(2). (65) Other provisions, such as articles 16(2), 23(2) and
25(c), present certain refinements or restrictions in specific procedural contexts in order to
ensure efficient and expedient proceedings. These latter provisions, which like all other
P 559 provisions of the model law are in harmony with the principles laid down in article 19(3),
P 560 make it clear that “full opportunity of presenting one's case” does not entitle a party to
obstruct the proceedings by dilatory tactics and, for example, present any objections,
amendments, or evidence only on the eve of the award.
9. Of course, the arbitral tribunal must be guided, and indeed abide, by this principle
when determining the appropriate conduct of the proceedings, for example, when fixing
time–limits for submission of statements or evidence or when establishing the modalities
of hearings. It must, for instance, not require more from a party than what may be
reasonably expected under the circumstances. With regard to the observation of the
Working Group noted in the commentary to article 12 (para. 5) [appearing in the section on
that Article, p. 399 supra], it might be doubted whether a party is given a full opportunity of
presenting his case where, although he is able to state in full his claim and the evidence
supporting it, the conduct of an arbitrator reveals clearly lack of competence or of another
qualification required of him by agreement of the parties.
SUMMARY RECORD
A/CN.9/SR.322, .330, .332
[Editors' Note: Article 18 embodies a universal principle that was discussed in connection with
a number of Articles of the Model Law, in particular Articles 22 and 34. During the
consideration of Article 22, which concerns the language of the arbitration, for example, it
was proposed that, in case of disagreement between the parties, the languages of the parties
would be the languages used in the arbitral proceedings. In reply, concern was expressed that
the discretion of the arbitrators not be unduly restricted, and it was suggested that the
principle of the present Article 18 sufficiently limited that discretion by requiring them to act
fairly and properly. It was in this connection that the initial proposal to move that principle
into a separate article was made. The discussions on this decision appear below. The
remainder of the discussion on Article 22 appears in the section on that Article, pp. 639–44
infra.
The discussions in connection with Article 34 concerned, inter alia, whether the instances of
serious procedural misconduct mentioned by the United Kingdom in its comments, see Sixth
Secretariat Note (UK Comments), A/ CN.9/263/Add.2, paras. 32, 33, supra, prevented a party
from “presenting his case,” within the meaning of Article 18 and of the similar language in
Article 34(2)(a)(ii). These comments are best understood in context, and therefore appear in
the section on Article 34, infra. See especially Summary Record, A/CN.9/SR.317, paras. 4, 7, 22,
42; SR.324, para. 33, pp. 968, 970, 972, 990 infra.]
P 560
P 561
[13 June 1985, 2:00 P.M., A/CN.9/SR.322]
Article 22. [ … ]
[ .… ]
7. Mr. MTANGO (United Republic of Tanzania) suggested that paragraph (3) of article 19
should become a separate article. That would have the advantage of raising the status of
equality of treatment and making it clear that the principle applied to the whole of
chapter V. That would also solve the problem in regard to languages and there would be no
need to amend article 22(2).
8. Mr. SEKHON (India) [stated that he] was not sure that, as it stood, the wording of article 22
would enable a party to use the best possible vehicle for putting forward his case, namely
his own language. It was argued that, on the basis of the provision in article 19(3), the
dictates of fairness would require each party to have an opportunity to present his case in
his own language. He felt, however, that the special provisions of article 22 excluded the
general provisions of article 19. [ … ]
[ .… ]
28. Mr. HERRMANN (International Trade Law Branch) referred to the earlier proposal made
by the representative of the United Republic of Tanzania. It had always been the
understanding of the Working Group, as was indicated in the Secretariat's commentary on
article 19 ([Seventh Secretariat Note,] A/CN.9/264, [Art. 19, para. 7]), that the fundamental
principle enunciated in article 19(3) would apply to arbitral proceedings in general; it
would thus govern all the provisions in chapter V and other aspects, such as the
composition of the arbitral tribunal, not directly regulated therein. He thought it would be
within the mandate of the drafting committee, subject to the wishes of the Commission, to
consider whether the fundamental principles in article 19(3) should be highlighted by
placing them in a separate article, perhaps at the beginning of chapter V.
29. Mr. AYLING (United Kingdom) recalled that the Commission had not completed its

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 discussion of article 19. He presumed that the proposal of the representative of the United
Republic of Tanzania, which his delegation supported, would be taken up when the
Commission returned to that article.
30. The CHAIRMAN [Mr. PÃES de BARROS LA?S (Brazil)] said that the Commission would
consider the proposal at that point.
[Editors' Note: Other statements supporting the proposal to move Article 19(3) into a
separate article were made in connection with the discussion of Article 34. See Summary
Record, A/CN.9/SR.324, paras. 32, 45, & 48, pp. 989–91 infra.]
P 561
P 562
[19 June 1985, 9:30 a.m., A/CN.9/SR.330]
Article 19. Determination of rules of procedure (continued)
[ .… ]
Paragraph (3)
61. The CHAIRMAN [Mr. LOEWE (Austria)] recalled that the only point to be decided was
whether article 19(3) should remain where it was or be transferred to an earlier place in the
text.
62. Mr. SAMI (Iraq), supported by Mr. MTANGO (United Republic of Tanzania) and Mr.
RICKFORD (United Kingdom), said that article 19(3) embodied a general principle that
should govern all phases of the arbitration proceedings and not merely the two cases
covered in paragraphs (1) and (2) of article 19. It should therefore be moved up in the text.
63. Mr. SEKHON (India) agreed with the representative of Iraq and noted that, in the event
of relocation, the words “In either case” would have to be deleted.
64. Mr. LOEFMARCK (Sweden) said that the provision contained in article 19(3) enshrined
too important a rule to be hidden in article 19 under the heading “Determination of rules of
procedure.”
65. The CHAIRMAN suggested that article 19(3) should be converted into a new article 18 bis
and become the first article in Chapter V, and that the drafting committee should propose
a suitable heading for it. Article 19 would then follow under its present heading but with
only two paragraphs. If there was no objection, he would take it that the Commission
agreed to adopt that suggestion.
66. It was so agreed.
[20 June 1985, 3:00 p.m., A/CN.9/SR.332]
Article 18 bis [as revised by the Drafting Group]
56. Article 18 bis was adopted without change and renumbered as article 18.
COMMISSION REPORT
A/40/17 (21 AUGUST 1985)
Article 19. Determination of rules procedure [Art. 19(3) became Art. 18 in the final text]
170. The text of article 19 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
[ .… ]
Paragraph (3)
P 562 176. The Commission was agreed that the provision contained in paragraph (3) constituted
P 563 a fundamental principle which was applicable to the entire arbitral proceedings and
that, therefore, the provision should form a separate article 18 bis to be placed at the
beginning of chapter V of the model law. That decision was tentatively made in the context
of the discussion of article 22 (see below, paras. 189–194 [appearing in the section on Article
22, pp. 644–45 infra]) and confirmed in a later discussion of article 19(3).
P 563

References
1) See Seventh Secretariat Note, A/CN.9/264, Art. 19, para. 1, appearing in the section on
Article 19, pp. 582–83 infra; Summary Record, A/CN.9/SR.322, para. 2, appearing in the
section on Article 22, pp. 640–41 infra.
2) See Second Secretariat Note, A/CN.9/WG.II/WP.35, para. 25, p. 553 infra.
3) Commission Report, A/40/17, para. 176, pp. 562–63 infra; see Summary Record,
A/CN.9/SR.322, para. 7, p. 561 infra; Summary Record, A/CN.9/SR.330, paras. 62, 64, p.
562 infra.

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 4) See Second Draft, A/CN.9/WG.II/WP.40, Art. XV, p. 555 infra; Fourth Draft,
A/CN.9/WG.II/WP.48, Art. 19, p. 556 infra.
5) Fifth Working Group Report, A/CN.9/246, para. 62, p. 556 infra.
6) See First Draft, A/CN.9/WG.II/WP.37, Art. 19, n. 34, p. 555 infra.
7) The Secretariat commentary on the Working Group's final draft of what became Article
18, and remarks of some delegates during the Commission's deliberations, explored
several specific possibilities concerning the potential application of Article 18. These
discussions are not reflected in the Working Group or Commission Reports. The
Secretariat suggested that the provision that a party must have a full opportunity to
present his case might extend to situations in which the conduct of an arbitrator
revealed that the arbitrator clearly lacked the ability to comprehend the evidence or
some other qualification required by the arbitration agreement. In that case, the
Secretariat suggested that the arbitrator's inability to comprehend the evidence might
hamper a party's opportunity to present his case. Seventh Secretariat Note,
A/CN.9/264, Art. 19, para. 9, p. 560 infra. This suggestion is not, however, reflected in the
Reports of the Working Group or the Commission, perhaps because it was considered
that linking the question of an arbitrator's ability to Article 18 might provide an
undesirable avenue for attacking the finality of arbitral awards. Similarly, the Reports
of the Working Group and the Commission do not mention a relatively brief discussion
during the Commission's deliberations as to whether the terms of Article 18 would
cover misconduct by an arbitrator such as acceptance of a bribe, or by a party such as
perjury. See Summary Record A/CN.9/SR.317, para. 42, appearing in the section on
Article 34, p. 972 infra. But see Sixth Secretariat Note (UK Comments),
A/CN.9/263/Add.2, paras. 32, 33, pp. 558–59 infra (suggesting that these problems are
not covered by Article 18). The Commission's apparent reluctance to refer to such
practices in connection with Article 18 does not mean, of course, that it condones
them, but rather than any such fraudulent conduct presumably can be regulated by
other provisions of the Law, e.g., Article 12 (permitting challenge of an arbitrator who is
not impartial or independent) or Articles 34(2)(b)(ii) and 36(1)(b)(ii) (permitting award
to be set aside or refused recognition or enforcement where the award or its
enforcement would conflict with public policy).
8) See Seventh Secretariat Note, A/CN.9/264, Art. 19, para. 9, p. 560 infra. (“[The arbitral
tribunal] must … not require more from a party than what may be reasonably expected
under the circumstances.”).
9) Id. para. 8, pp. 559–60.
10) See Second Working Group Report, A/CN.9/232, para. 104, p. 555 infra.
11) Commission Report, A/40/17, para. 176, pp. 562–63 infra.
12) Summary Record, A/CN.9/SR.322, para. 28, p. 561 infra. See also Seventh Secretariat
Note, A/CN.9/264, Art. 19, para. 7, p. 559 infra (principles should be followed “in all
procedural contexts”).
13) Seventh Secretariat Note, A/CN.9/264, para. 2 n. 45, appearing in the section on Article
13, p. 426 supra.
14) See, e.g., Commission Report, A/40/17, para. 106, appearing in the section Article 3, p.
195 supra (Article 3(2) drafted to avoid implication that court's domestic procedural
rules do not apply); Seventh Secretariat Note, A/CN.9/264, Art. 34, para. 1, appearing in
the section on Article 34, p. 964 infra (except as stated, Article 34 does not regulate
procedure of setting aside proceedings); Second Working Group Report, A/CN.9/232,
para. 91, appearing in the section on Article 6, p. 243 supra (“It was noted that the
procedure to be used by the [court designated in Article 6] would be determined by
the rules of civil procedure governing that court.”); Third Working Group Report,
A/CN.9/233, para. 85, appearing in the section on Article 11, p. 372 supra.
32) Discussion and conclusions of the Working Group in [First Working Group Report,]
A/CN.9/216, paras. 56–60, 63, 64. [Editors' Note: Paragraph 56 appears immediately
above; the other cited paragraphs appear in the sections on Articles 19 and 24 to 26.]
33) Consideration of this sub–paragraph may be combined with the discussion on the
articles referred to therein. When discussing articles 20 to 24, the Working Group may
wish to consider to what extent these provisions should be mandatory (as regards Art.
20, see [First Working Group Report,] A/CN.9/216, para. 57 [appearing in the section on
Article 24, p. 676 infra]).
34) This draft provision is modeled on article 15(1) of the UNCITRAL Arbitration Rules.
65) Another example would be article 24(2) [part of Art. 24(1) in the final text], although
there may be some doubt whether this provision as presently drafted fully implements
and accords with the requirement that each party shall be given a full opportunity of
presenting his case (see commentary to article 24, para. 4 [appearing in the section on
that Article, p. 687 infra.]

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Document information
UNCITRAL Model Law, Chapter V, Article 19 [Determination
Publication of rules of procedure]
A Guide to the UNCITRAL (1) Subject to the provisions of this Law, the parties are free to agree on the procedure
Model Law on International to be followed by the arbitral tribunal in conducting the proceedings.
Commercial Arbitration:
Legislative History and (2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this
Commentary Law, conduct the arbitration in such manner as it considers appropriate. The power
conferred upon the arbitral tribunal includes the power to determine the
admissibility, relevance, materiality and weight of any evidence.
Organization Commentary
United Nations Commission The UNCITRAL Secretariat observed that Article 19, along with Article 18, was the “Magna
on International Trade Law Carta of Arbitral Procedure” and said that these Articles might be regarded as “the most
important provision[s] of the model law.” (1) Article 19 establishes the principle of the
autonomy of the parties and the arbitrators in governing the procedural conduct of the
Promulgation arbitration. The autonomy principle is critical to an effective system of commercial
21 June 1985 arbitration for international cases because in such cases there is a special need to be free
of unfamiliar local standards. (2) Moreover, this principle is at the heart of modern systems
of arbitration; it expresses a profound confidence in the ability of parties and arbitrators
to conduct the arbitration in a fair and orderly manner so as to arrive at a just resolution of
Legislation number a dispute. At the same time, however, Article 18 places fundamental restrictions on this
United Nations Document principle. (3)
A/40/17, Annex I Article 19 contains three rules: (1) the parties are free to agree on the arbitral procedure to
be followed, subject to the mandatory provisions of the Model Law; (4) (2) absent such an
agreement, the arbitral tribunal may conduct the arbitration as it considers appropriate,
Bibliographic reference subject to both the mandatory and nonmandatory provisions of the Law; and (3) the
'UNCITRAL Model Law, P 564 arbitral tribunal's power includes the power to determine the admissibility, relevance,
Chapter V, Article 19 P 565 materiality, and weight of evidence (unless the parties have agreed otherwise).
[Determination of rules of The Secretariat's commentary on Article 19 noted that as to each of these points the
procedure]', in Howard M. agreement of the parties that is referred to may include agreements to apply a set of rules
Holtzmann and Joseph (such as the UNCITRAL Arbitration Rules) or even to apply the procedural code of a given
Neuhaus , A Guide to the legal system, as long as its provisions do not conflict with the mandatory provisions of the
UNCITRAL Model Law on Model Law. (5) On the other hand, it was noted that the parties also have the power to
International Commercial agree on particular points of special concern to them rather than adopting a
Arbitration: Legislative comprehensive system of rules to govern the conduct of the arbitration. (6) On all agreed
History and Commentary, points, their agreement will be given effect under paragraph 1 (as long as it does not
(© Kluwer Law International; conflict with the mandatory provisions of the law); on other matters, the arbitrators will
Kluwer Law International have discretion under paragraph 2 to conduct the arbitration as they consider
1989) pp. 564 - 591 appropriate.
Similarly, where the parties have adopted a set of rules that does not touch on a particular
point at issue, the arbitrators, retain the power to determine the procedure to be followed
on that point. The Secretariat offered language that would have explicitly granted such a
gap–filling power, but the Working Group declined to adopt the proposal. (7) It appears,
however, that the Working Group simply thought that the proposed language was
unnecessary. This was the view of the Secretariat, which noted in its commentary on the
Working Group's final draft that the arbitral tribunal's power to conduct the arbitration in
such matter as it considered appropriate existed “[w]here the parties have not agreed …
on the procedure (i.e. at least not on the particular matter at issue).” (8)
One matter that was considered at some length during the drafting of Article 19 was
whether there should be a limitation on when the parties could agree on a procedural
point. The Secretariat suggested that the Working Group amend draft Article 19 so as to
require that any agreement on the arbitral procedure be reached before the first or sole
arbitrator was appointed. (9) The rationale for the proposal was that the rules of procedure
P 565 should be clear from the outset and that any arbitrator should know from the beginning the
P 566 rules under which he or she is expected to perform his or her functions. (10) The Working
Group rejected this idea, finding instead that the freedom of the parties to agree on a
procedure “should be a continuing one”; the Working Group interpreted paragraph 1 to
provide for such a continuing freedom. (11) The matter was raised again before the
Commission, where conflicting proposals were offered, one that the Working Group's
understanding be made explicit (12) and the other that it be reconsidered. (13) After
extended discussion, the Commission decided not to change the Working Group's draft. (14)
There was some sentiment in favor of each proposal, but it was noted that in any case the
arbitrators could not be forced to accept any procedures with which they disagreed, since
they could always resign rather than carry out the unwanted procedural stipulations. (15)
Moreover, if the matter was of strong concern, the timing of any agreement on procedure
could be regulated by agreement between the parties and the arbitrators. (16)
The provision regarding evidence in Article 19(2) was modeled on Article 25(6) of the

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 UNCITRAL Arbitration Rules. (17) It is placed in the second paragraph of the Article and
should be taken to be nonmandatory. That is, the term “the power conferred upon the
arbitral tribunal” should be taken to mean the power conferred directly by the Model Law
in the first sentence of paragraph 2, and not the “power” conferred by the parties'
agreement under paragraph 1. As a result, if the parties agree that certain evidence should
be inadmissible, or that a certain kind of document be the exclusive evidence, (18) that
agreement should be respected. Similarly, if they agree on procedural rules that contain or
incorporate rules of evidence, (19) the arbitral tribunal should abide by that choice. This
P 566 was the clear intent of the drafters: the Working Group's initial instructions on the point
P 567 were that “the model law should empower the arbitral tribunal to adopt its own rules of
evidence subject to contrary stipulation by the parties;” (20) this view was never
contradicted; and it was the Secretariat's understanding of the provision. (21)
On the other hand, where the parties have not adopted a comprehensive set of evidentiary
rules, it is clearly within the power of the arbitral tribunal to do so. Thus, although the
Working Group deleted language that would have expressly granted the power to adopt
rules of evidence, it did so because the point was thought to be expressed with sufficient
clarity already. (22)
During the Commission's deliberations on Article 19, it was pointed out that that Article
might be thought to conflict with Article 28, which allows the parties, or, failing that, the
arbitral tribunal, to choose the substantive law that will govern the dispute. (23) Under
some legal systems, the admissibility, relevance, materiality, and weight of evidence are
considered questions of substantive law. Suppose, for example, that the substantive law of
Italy is to govern the resolution of the merits of a dispute, either as a matter of party
choice or tribunal determination. Suppose also that under Italian law certain rules limiting
the admissibility of testimony of parties are considered substantive. (24) Would the
arbitral tribunal be bound to follow those rules or could it decide the admissibility of such
testimony under different rules it chose pursuant to Article 19(2)? The Commission
determined that the discretion accorded to the arbitrators by Article 19(2) (in the absence
of a choice by the parties) should not be affected by the choice of law applicable to the
substance of the dispute under Article 28. (25) This result is sound. As a matter of
interpretation, the specific provision in Article 19(2) should prevail over the general one in
Article 28. As a matter of policy, it is desirable for arbitration to avoid the application of
technical rules of evidence where possible. (26)
The Commission refused to adopt two further provisions touching on evidentiary matters.
First, it was proposed that the Model Law should provide, as does Article 25(5) of the
P 567 UNCITRAL Arbitration Rules, that the parties may present evidence of witnesses in the form
P 568 of signed written statements. The Commission did not consider it necessary to include
such a provision in the Model Law, preferring to leave this point of detail to the agreement
of the parties or the discretion of the arbitrators. (27)
Second, several representatives proposed that the Model Law make clear that each party
was to have the burden of proving the facts relied on to support its claim or defense. (28)
Such a provision appears in Article 24(1) of the UNCITRAL Arbitration Rules. The
Commission noted that it was “a generally recognized principle” that reliance by a party on
a fact required the party to prove that fact, but it felt that such a provision might interfere
with the choice of substantive law under Article 28 and the broad freedom in the conduct
of the arbitration granted by Article 19. (29) Therefore, the matter is not regulated by the
Model Law.

Legislative History
[Editors' Note: Articles 18 and 19 deal most directly with a question that arises repeatedly in
the early legislative history of the Model Law: how to provide the parties with freedom to
agree on the procedures to be followed in their arbitration while at the same time
safeguarding fairness in the arbitral proceedings. This basic question was at the center of the
initial discussions by the Secretariat and the Commission concerning whether to undertake
the Model Law project. The reports of these discussions appear in the section on Purposes and
Procedures of the Commission, pp. 1161–91 infra. For ease of reference, a brief summary of the
portions of these documents that relate to the issues in Articles 18 and 19 follows:
On 5 July 1976, the Asian–African Legal Consultative Committee (AALCC) adopted a decision
inviting UNCITRAL to consider the possibility of preparing a protocol to the New York
Convention with a view to clarifying, inter alia, certain matters of arbitral procedure. The
AALCC suggestion, which ultimately led to the preparation of the Model Law, focused on three
issues, two of which relate to the issues addressed in Articles 18 and 19:

P 568 “(a) Where the parties have adopted rules for the conduct of an arbitration
P 569 between them, whether the rules are for ad hoc arbitration or for
institutional arbitration, the arbitration proceedings should be conducted
pursuant to those rules notwithstanding provisions to the contrary in
municipal laws and the award rendered should be recognized and enforced
by all Contracting States [to the New York Convention];
“(b) Where an arbitral award has been rendered under procedures which operate
unfairly against either party, the recognition and enforcement of the award

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 should be refused;.…” (1)
In a Secretariat Note containing comments on the AALCC decision, the Secretariat
summarized the AALCC concern as follows:
“The thrust of the AALCC proposal is that the procedural arbitration rules agreed
upon by the parties should be given full effect, provided that these rules are fair to
both parties, even if they are in conflict with the mandatory provisions of the law
applicable at the place of arbitration or at the place where recognition and
enforcement of the arbitral award is sought.” (2)
The Secretariat noted, however, that “[a]s a general rule, the parties cannot deviate by
agreement from the mandatory provisions of the law applicable at the place of arbitration,” a
rule that is reflected in Article 1(2) of the UNCITRAL Arbitration Rules. (3)
The Commission addressed the AALCC document and the Secretariat comments in a
Committee of the Whole at its 1977 session. The Committee agreed that the issues noted by
the AALCC raised important issues in the context of international commercial arbitration and
recommended that the matter be studied further. (4) The predominant view in the
Committee was that a protocol to the New York Convention was not an appropriate
approach. In discussion of other possible approaches, a number of suggestions focused on
the UNCITRAL Arbitration Rules as embodying procedures that were universally accepted
as fair; one proposal, for example, suggested that a convention be prepared that would
make the UNCITRAL Arbitration Rules prevail over mandatory provisions of national law in
arbitrations to which they apply. (5) This emphasis on the UNCITRAL Arbitration Rules is
significant in the present context because much of Articles 18 and 19 was modelled on
Article 15(1) of those Rules.
After consultation with various international organizations, the Secretariat submitted a
P 569 report suggesting that the Commission address the issues raised by AALCC in a model law on
P 570 arbitration, which would, inter alia, “establish universal standards of fairness” and reduce
divergence between frequently used arbitration rules and national laws. (6)
At its 1979 session, the Commission decided to prepare a model law on international
commercial arbitration. It requested the Secretary–General to prepare a draft model law,
taking into account, inter alia, the UNCITRAL Arbitration Rules. (7)
The First Secretariat Note discussed the balance between party autonomy and mandatory
provisions of law at some length. The portions that most directly address the concepts
contained in Articles 18 and 19 appear below; the full discussion appears in the section on
Purposes and Procedures of the Commission, pp. 1191–98 infra.]
FIRST SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW
A/CN.9/207 (14 MAY 1981)
A. Concerns and principles of a model law on international commercial arbitration
I. General concerns and problems
9. The ultimate goal of a model law would be to facilitate international commercial
arbitration and to ensure its proper functioning and recognition. Its practical value would,
in particular, depend on the extent to which it provides answers to the manifold problems
and difficulties encountered in practice. Thus, in preparing the model law an attempt
should be made to meet the concerns which have repeatedly been expressed in recent
years, sometimes even labeled as “defects” or “pitfalls” in international commercial
arbitration.
10. A major complaint in this respect is that the expectations of parties as expressed in
their agreements on arbitration procedure are often frustrated by conflicting mandatory
provisions of the applicable law. To give only a few examples, such provisions may relate
to, and be deemed to unduly restrict, the freedom of the parties to submit future disputes
to arbitration, or the selection and appointment of arbitrators, or the competence of the
arbitral tribunal to decide on its own competence or to conduct the proceedings as
deemed appropriate taking into account the parties' wishes. Other such restrictions may
relate to the choice of the applicable law, both the law governing the arbitral procedure
and the one applicable to the substance of the dispute. Supervision and control by courts
is another important feature not always welcomed by parties especially if exerted on the
merits of the case.
11. These and other restrictive factors set forth in detail below (in Part B. [which is
P 570 “Identification of Issues Possibly to be Dealt with in the Model Law” and which addresses
P 571 virtually all the subjects dealt with in the Model Law]) tend to create the above
disappointment with mandatory provisions of law. It is this concern which, for example,
prompted the recommendation of the Asian–African Legal Consultative Committee (AALCC)
as considered by the Commission at its tenth session: [Here is quoted the text of the first of
the two AALCC issues listed in the Editors' Note above.] (7)
12. However, this suggestion should not be understood as advocating total freedom of the
parties and refusal of all mandatory provisions in the field of international commercial

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 arbitration. That is clear from the second recommendation of the AALCC: [Here is quoted the
text of the second of the two AALCC issues listed in the Editors' Note above.] (8) A corrective
role in this regard may be played by courts in a country where recognition and
enforcement of a foreign arbitral award is sought as provided for in the 1958 New York
Convention. But it may also be performed by mandatory provisions of the lex loci arbitri
dealing with defects in the procedure, denial of justice, and lack of due process of law.
[ .… ]
II. General principles and purposes
16. From the general concerns expressed above some tentative conclusions may be drawn
which could serve as guidelines in the preparation of a model arbitration law. It is
submitted that, to minimize the indicated difficulties, the following principles and
purposes should underlie the model law to be drafted.
17. Probably the most important principle on which the model law should be based is the
freedom of the parties in order to facilitate the proper functioning of international
commercial arbitration according to their expectations. This would allow them to freely
submit their disputes to arbitration and to tailor the “rules of the game” to their specific
needs. It would also enable them to take full advantage of rules and policies geared to
modern international arbitration practice as, for example, embodied in the UNCITRAL
Arbitration Rules.
18. To give the parties the greatest possible freedom does not mean, however, to leave
everything to them by not regulating it in the model law. Apart from the desirability of
providing “supplementary” rules (see above, para. 13 [appearing in the section on Purposes
and Procedures of the Commission, p. 1194 infra], what is needed is a positive confirmation
or guarantee of their freedom. Thus, the model law should provide a “constitutional
framework” which would recognize the parties' free will and the validity and effect of their
agreements based thereon.
P 571 19. Yet, as indicated above (para. 12), it is not suggested to accord absolute priority to the
P 572 parties' wishes over any provision of the law. Their freedom should be limited by
mandatory provisions designed to prevent or to remedy certain major defects in the
procedure, any instance of denial of justice or violation of due process. Such restrictions
would not be contrary to the interest of the parties, at least not of the weaker and
disadvantaged one in a given case. They would also meet the legitimate interest of the
State concerned which could hardly be expected to issue the above guarantee without its
fundamental ideas of justice being implemented.
20. Such fundamental principles as usually found in a State's ordre public could only be
neglected if one were to favour international arbitration proceedings and awards which
would be “supra–national” in the sense of a full detachment from any national law.
However, the present report is based on the view that it is desirable, if not imperative, to
envisage a certain link between the arbitration proceedings, including the award, and a
national law which would give recognition and effect to arbitration agreements and awards
and would provide for adequate assistance of courts, for example, as regards orders to
compel arbitration or to call witnesses or to enforce interim measures of protection or to
provide ultimate resort in case of deadlock. By establishing such a connexion one should
also avoid the problem of a “floating” or “stateless” award which could arise where not
even the courts of the State where the award was made confirm (or deny) its binding
nature for lack of jurisdiction or “nationality” of the award. (10)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
IV. Arbitral procedure
[ .… ]
2. Arbitral proceedings in general
73. The model law should empower the arbitral tribunal to conduct the arbitration
proceedings in such manner as it considers appropriate, subject to the following
restrictions. The arbitral tribunal must treat the parties with equality and give each party
at any stage of the proceedings a full opportunity of presenting his case. It should also
follow any procedural instructions which the parties may have given specifically or by
reference to a set of arbitration rules.
74. Furthermore, the model law may impose certain rules which would be binding on the
arbitrators either irrespective of any conflicting agreement by the parties or only if the
parties have not agreed otherwise. Examples of the first category, i.e. mandatory rules,
include provisions on interim measures of protection by courts (discussed below, para. 78
[appearing in the section on Article, 9, p. 335 supra]), on default of a party (paras. 80–81
[appearing in the section on Art. 25, p. 702 infra]), and on pleas as to the jurisdiction of
P 572 arbitrators, which are discussed in the section on awards since they are often dealt with in
P 573 the award (paras. 88–89 [appearing in the section on Art. 16, p. 489 supra]). Examples of
the second category, i.e. rules from which the parties may derogate, include provisions on
evidence (para. 75 [see below]), on experts (para. 76 [appearing in the section on Art. 26, pp.
721–22 infra]), and on representation and assistance (para. 79 [appearing in the section on

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 Matters Not Addressed in the Final Text, pp. 1157–58 infra]). One might add provisions on
hearings, on amendments to claim or defence, or on the language(s) to be used in the
proceedings, whereby the language of the arbitration agreement might be considered as a
possible determinant.
3. Evidence
75. Subject to any rules agreed upon by the parties, the arbitral tribunal should be free,
under the model law, to adopt and follow its own rules on evidence, including the right to
determine the admissibility, relevance and weight of any evidence offered. Since the
arbitral tribunal lacks the power of enforcing its procedural decisions such as calling a
witness or requiring production of a document by a party, the model law may envisage
some assistance by courts in that regard. Here, one would have to clearly define the
possible court measures and their specific conditions. [See generally the section on Article
27, pp. 734–62 infra.] In addition, the model law could contain “supplementary” rules (e.g.
along the lines of art. 24 and 25 UNCITRAL Arbitration Rules) for those cases where the
parties have not agreed on rules on evidence.
SECOND SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW:
QUESTIONS FOR DISCUSSION
A/CN.9/W6.II/WP.35 (1 DECEMBER 1981)
IV. Arbitral procedure
[ .… ]
2. Arbitral proceedings in general
25. As suggested in the report [First Secretariat Note, supra] (paras. 73–74), the arbitral
tribunal may be empowered to conduct the proceedings as it considers appropriate,
subject to instructions by the parties (including agreed arbitration rules), to principles of
due process and to certain mandatory provisions adopted in the model law. In addition, it
will have to be considered, in this and the following sections, to what extent the model law
should provide supplementary rules on procedural points which the parties have not
regulated.
Question
4–3: Should the model law expressly empower the arbitral tribunal to conduct the
proceedings as it deems appropriate and, if so, what restrictions should be laid
down?
Question
4–4: As a general question which is also relevant to the following issues, it may be asked to
what extent the model law should include supplementary rules on the arbitral
procedure as usually contained in arbitration rules?
P 573
P 574
3. Evidence (report, para. 75)
Question
4–5: Should the arbitral tribunal be empowered to adopt its own rules on evidence,
subject to contrary stipulation by the parties?
[ .… ]
Question
4–7: What supplementary rules would be appropriate?
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
IV. Arbitral procedure
[ .… ]
2. Arbitral proceedings in general
Question 4–3: Should the model law expressly empower the arbitral tribunal to
conduct the proceedings as it deems appropriate and, if so, what restrictions
should be laid down?
56. There was general agreement that the arbitral tribunal should be empowered to
conduct the arbitration as it considered appropriate, subject to the instructions of the
parties, provided that the parties were treated with equality and that at every stage of the
proceedings each party was given a full opportunity of presenting his case. It was agreed
that such a provision, modeled after article 15, paragraph 1 of the UNCITRAL Arbitration
Rules, should be mandatory.

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 [Editors' Note: Paragraph 57 concerns the extent to which the arbitral tribunal should be
required to hold hearings, and appears in the section on Article 24, p. 676 infra.]
Question 4–4: As a general question which is also relevant to the following
issues, it may be asked to what extent the model law should include
supplementary rules on the arbitral procedure as usually contained in
arbitration rules?
58. The Working Group discussed the general question as to what extent the model law
should contain supplementary rules on arbitral procedure. It was noted that the purpose
of such rules was to assist in those cases where parties had not agreed on the procedure,
whether by reference to arbitration rules or in their arbitration agreement itself. It was
also noted that not only those States whose arbitration law was less developed, but also
all other States could benefit from the preparation of a model law since this law would lay
down widely acceptable rules specifically adapted to international commercial
arbitration. Therefore, an attempt should be made to devise a set of rules which would
allow the commencement and functioning of arbitration proceedings even where parties
had not made the necessary provision in their agreement. However, it was agreed that, for
reasons of practicability, a decision on whether supplementary rules were appropriate
could only be made with regard to each individual subject matter.
P 574
P 575
3. Evidence
Question
4–5: Should the arbitral tribunal be empowered to adopt its own rules on evidence,
subject to contrary stipulation by the parties?
Question
4–7: What supplementary rules would be appropriate?
59. There was general agreement that the model law should empower the arbitral tribunal
to adopt its own rules on evidence subject to contrary stipulation by the parties. It was
noted that this view was in accordance with the decision concerning question 4–3, and that
the question of evidence was an inherent and important part of the conduct of
proceedings.
60. The Working Group was agreed that the model law should not contain any
supplementary rule which would restrict the arbitral tribunal's power to adopt its own
rules on evidence. Not only was such a restriction undesirable, but it was also extremely
difficult to envisage detailed rules on evidence in view of the great disparity between legal
systems. Accordingly, if a rule were to be adopted, it should be one supporting the power
of the arbitrator, such as article 25, paragraph 6 of the UNCITRAL Arbitration Rules (“The
arbitral tribunal shall determine the admissibility, relevance, materiality and weight of
the evidence offered”).
FIRST DRAFT
A/CN.9/WG.II/WP.37 (15 JULY 1982)
IV. Arbitral procedure
[ .… ]
2.–4. Arbitration proceedings in general, evidence, experts (32)
Article 19 [Arts. 18, 19 & 26 in the final text]
(1) The arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate
(a) subject to the provisions of articles 20 to 24 [Arts. 17, 20(2), 24–26 in the final text]
and any instructions given by the parties in the arbitration agreement; (33)
(b) provided that the parties are treated with equality and that at any stage of the
proceedings each party is given a full opportunity of presenting his case. (34)
P 575
P 576
(2) The power conferred upon the arbitral tribunal under paragraph (1) includes the
power to adopt its own rules on evidence and to determine the admissibility,
relevance, materiality and weight of the evidence offered. [Notwithstanding the
provision of paragraph (1)(a), the parties may not preclude the arbitral tribunal from
calling an expert if it deems that necessary for deciding the dispute.] [Editors' Note:
Article 19(1)(b) became Article 18 in the final text. The subject of the final sentence of
paragraph (2) is addressed in Article 26 of the final text.]
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Arbitral procedure

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 [ .… ]
Arbitration proceedings in general, evidence, experts
Article 19 [Arts. 18, 19 & 26 in the final text]
101. The text of article 19 as considered by the Working Group was as follows:
[same as First Draft, supra].
102. It was suggested that the wording of paragraph (1) of this article should emphasize
more clearly that the parties are free to determine either directly or by reference to
arbitration rules the procedure to be followed and only in the absence of such agreement
by the parties may the arbitral tribunal conduct the arbitration in such a manner as it
considers appropriate.
103. The Working Group agreed to decide to what extent the provisions of articles 20 to 24
[Arts. 17, 20(2), 24–26 in the final text] should be mandatory in deliberations on each of
those articles.
[ .… ]
105. In respect of paragraph (2) it was suggested that the sentence in square brackets
should be deleted. It was felt that such a provision unduly restricted the principle of
freedom of the parties.
106. It was also suggested that the provision on the power of the arbitral tribunal to adopt
rules on evidence should be deleted.
P 576
P 577
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
F. Place and conduct of arbitration proceedings
Article XV [Arts. 18 & 19 in the final text]
(1) Subject to the provisions of article XVII(1) [(a),] (b), (2), (3), [(5),] [Arts. 24(1), 26(2), 24(2),
24(3), 26(1)(b), respectively, in the final text] the parties are free to [agree on]
[determine, either directly or by reference to arbitration rules,] (15) the procedure to
be followed by the arbitral tribunal in conducting the proceedings.
(2) Failing such agreement [on the respective point at issue], the arbitral tribunal may,
subject to the provisions of this Law, conduct the arbitration in such manner as it
considers appropriate, provided that the parties are treated with equality and that
each party is given a full opportunity of presenting his case. The power conferred
upon the arbitral tribunal includes the power to determine the admissibility,
relevance, materiality and weight of any evidence.
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[ .… ]
Article XV [Arts. 18 & 19 in the final text]
73. The text of article XV as considered by the Working Group was as follows:
[same as Second Draft, supra].
Paragraph (1)
74. The Working Group adopted paragraph (1) in the following modified form: Subject to the
provisions of this Law, the parties are free to agree on the procedure to be followed by the
arbitral tribunal in conducting the proceedings.
Paragraph (2)
75. The Working Group adopted paragraph (2) subject to the deletion of the words placed
between square brackets. The Working Group reaffirmed its view that the power conferred
P 577 upon the arbitral tribunal by this paragraph includes the power to adopt its own rules of
P 578 evidence. While some considered it desirable to express this understanding in the last
sentence, the prevailing view was that the present wording of this sentence already
covered this point in sufficient clarity.
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Chapter V. Conduct of arbitral proceedings
Article 19. Determination of rules of procedure [Arts. 18 & 19 in the final text]
(1) Subject to the [mandatory] provisions of this Law, the parties are free to agree on the
procedure to be followed by the arbitral tribunal in conducting the proceedings.

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 (2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this
Law, conduct the arbitration in such manner as it considers appropriate, provided
that the parties are treated with equality and that each party is given a full
opportunity of presenting his case. The power conferred upon the arbitral tribunal
includes the power to determine the admissibility, relevance, materiality and weight
of any evidence.
FOURTH SECRETARIAT NOTE
COMMENTS AND SUGGESTIONS ON THE FOURTH DRAFT
A/CN.9/WG.II/WP.50 (16 DECEMBER 1983)
D. Arbitration agreement and agreements by the parties on arbitral procedure (articles 4,
7, 19)
12. The Working Group may wish to consider the relationship between the term “arbitration
agreement” and the various references in the model law to agreements by the parties
relating to the composition of the arbitral tribunal or to the arbitral procedure. While
arbitration agreements frequently contain such procedural stipulations, in particular by
reference to standard arbitration rules, it is not uncommon to agree on most or at least
some procedural issues only when a dispute arises, or even during the arbitral
proceedings, that is, long after the conclusion of the agreement to submit future disputes
to arbitration. This varied practice leads to two suggestions for consideration by the
Working Group.
13. The first idea is to use the term “arbitration agreement” as defined in article 7(1) in its
literal and rather narrow sense, i.e., agreement to submit disputes to arbitration. This basic
agreement would be the foundation of the arbitral tribunal's jurisdiction, to the exclusion
of court jurisdiction, irrespective of whether it is accompanied by any agreement on the
procedure. The term “arbitration agreement” should then not be used when the emphasis
is on the procedural stipulations (as, e.g., in article 4). An important practical consequence
of such interpretation would be that article 7(2) would require written form only for that
basic agreement, including any later determination or modification of the claims or
dispute submitted, but not for any procedural agreements by the parties.
P 578 14. The second idea would be to require that the parties conclude any agreement on the
P 579 arbitral procedure, if not already included in the arbitration agreement, before the first
or sole arbitrator is appointed. The reason for such time–limit would be that the rules of
procedure should be clear when that procedure starts and that any arbitrator should know
from the beginning under what rules he is expected to perform his function. It may be
recalled that this very reason led the Working Group to include this time–limit in article
26(1). The suggestion here would be to adopt the same limit on a more general level, for
example, in the basic provision of article 19(1), possibly with the proviso “unless otherwise
provided in this Law.”
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Chapter V. Conduct of arbitral proceedings
Article 19 [Arts. 18 & 19 in the final text]
60. The text of article 19 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
61. The Working Group adopted that article, subject to the deletion of the word
“mandatory” in paragraph (1) and the addition, at the end of that paragraph, of the words
“provided that the parties are treated with equality and that each party is given a full
opportunity of presenting his case.”
62. That addition to paragraph (1) was designed to emphasize the importance of the
principles of equality and the right to be heard which should be observed not only by the
arbitral tribunal but also by the parties when laying down any rules of procedure.
63. It was noted, with reference to the question raised in the note prepared by the
Secretariat ([Fourth Secretariat Note,] A/CN.9/WG.II/WP.50, para. 14), that the freedom of
the parties to agree on the procedure should be a continuing one throughout the arbitral
proceedings, as was provided in paragraph (1), and should not be limited, for example, to
the time before the first arbitrator was appointed.
FIFTH DRAFT
A/CN.9/246 (ANNEX) (6 MARCH 1984)
Chapter V. Conduct of arbitral proceedings
Article 19. Determination of rules of procedure [Arts. 18 & 19 in the final text]
(1) Subject to the provisions of this Law, the parties are free to agree on the procedure to

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 be followed by the arbitral tribunal in conducting the proceedings.
P 579 (2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this
P 580 Law, conduct the arbitration in such manner as it considers appropriate. The
power conferred upon the arbitral tribunal includes the power to determine the
admissibility, relevance, materiality and weight of any evidence.
[Editors' Note: Paragraph 3, requiring that the parties be treated with equality and each party
be given a full opportunity of presenting his case, became Article 18 in the final text, and
appears in the section on that Article, p. 557 supra.]
SIXTH SECRETARIAT NOTE
ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 19. Determination of rules of procedure [Arts. 18 & 19 in the final text]
Article as whole
1. In the view of Sweden, it would be of value if the model law, in this article or at some
other suitable place, induced the arbitral tribunal to a prompt conduct of the arbitration.
[Editors' Note: See generally Article 14 of the Model Law.]
Article 19, paragraph (1)
2. In the view of Italy, it would be appropriate to permit the parties to determine the rules
of procedure after the arbitrators have accepted their duties, to the extent the arbitrators
agree.
3. The United States, noting that article 19(1) provides that “the parties are free to agree on
the procedure to be followed by the arbitral tribunal in conducting the proceedings,”
raises the related question whether the parties are in any way limited as to the time within
which they can agree on such procedure. While the Working Group indicated that “the
freedom of the parties to agree on the procedure should be a continuing one throughout
the arbitral proceedings,” (27) the United States believes that this potentially important
question should be clearly answered by the model law and proposes the inclusion in
paragraph (1) of a statement that the parties may agree on procedure during as well as
before the arbitral proceedings.
Article 19, paragraph (2)
4. Italy states that the questions pertaining to the admissibility and relevance of evidence
are considered in many legal systems, including the Italian system, to be questions of
substantive law and that, as a result, these questions are governed by the rules applicable
to the substance of the dispute determined in accordance with article 28.
P 580 5. Mexico suggests indicating in paragraph (2) that the power of the arbitral tribunal to
P 581 conduct the proceedings and to determine the admissibility, relevance, materiality and
weight of evidence has to be exercised in a prudent and reasonable way and that the
arbitral tribunal always has to give reasons for its decisions.
6. In connection with the provision of article 19(2) on the conduct of arbitral proceedings,
Poland stresses that the arbitral tribunal should keep a proper balance between the
interests of the parties and take into account the factors which facilitate the proceedings
and enable mutual understanding (for example, the issue of the language of the
proceedings).
[ .… ]
C. Comments on additional points
[ .… ]
2. Suggestions for new provisions on additional issues
[ .… ]
Evidence of witnesses
11. The United States proposes that two aspects of arbitral procedure, pertaining to the
presentation of evidence by witnesses, be addressed by specific provisions of the model
law. Firstly, it would be prudent to add a provision that “the arbitral tribunal is free to
determine the manner in which witnesses are examined, unless the parties have agreed
otherwise.” This language is modeled on article 25(4) of the UNCITRAL Arbitration Rules.
This power is already implicit in article 19(2) of the model law, which gives the arbitral
tribunal discretion to conduct the arbitration in such manner as it considers appropriate,
subject to the agreement of the parties and other provisions of the model law. However,
the manner of questioning witnesses arises in almost every international arbitral
proceeding, and it would be useful to have a specific provision which can be cited to
support the position that this matter is for determination by the arbitral tribunal.
Secondly, the United States suggests the inclusion of a provision that “evidence of

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 witnesses may also be presented in the form of written statements signed by them.”
Inclusion of such a provision in the model law, as is done in article 25(5) of the UNCITRAL
Arbitration Rules, would clarify that this useful and at times necessary method of
presenting testimony is available to parties in international commercial arbitration
proceedings.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 19. Determination of rules of procedure
Article 19, paragraph (2)
1. In the opinion of Yugoslavia, it seems insufficient to restrict the power of the arbitral
P 581 tribunal to conduct the proceedings in such manner as it considers appropriate only by
P 582 providing that the parties are to be treated with equality and given a full opportunity of
presenting their case. The arbitral tribunal should be obliged to respect a wider scope of
minimum– standard procedural rules of the legal system to which the parties agreed to
submit the arbitration, or, in the absence of such agreement, of the legal system in whose
territory the arbitration takes place. The procedural rules of the applicable legal system
which provides the grounds for setting aside of the award may be inspiring in determining
such minimum–standard rules.
A/CN.9/263/ADD.3 (31 JULY 1985)
(COMMENTS OF EGYPT)
I. General Comments
[ .… ]
D. Territorial scope
10. Without prejudging the result of the debate which will take place in the Commission on
the problem of territoriality or extra territoriality of the model law which the Working
Group left for its consideration, Egypt would like to clarify its position on two questions
related to this problem. [Editors' Note: The “problem of territoriality or extra territoriality”
referred to is addressed in the subsection on Article 1(2), pp. 35–38, 97–133 supra.]
11. The first question concerns the freedom of the parties to choose the rules of procedure
governing their arbitration. Whatever the result of the debate which takes place in the
Commission on this problem, Egypt insists that this freedom should be respected. Apart
from rules aimed at protecting justice, Egypt would be opposed to any solution restricting
this freedom, whether by obligating parties to apply the rules of procedure of the place of
arbitration or by limiting their right to seek rules of procedure in other sources of their
choice (for example a foreign law, an arbitration rule or even their own will).
[Editors' Note: The second question referred to in para. 10 supra concerned the territorial
scope of application of Article 34; the discussion of it appears in the section on that Article, p.
961 infra.]
SEVENTH SECRETARIAT NOTE
ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1985)
Article 19. Determination of rules of procedure [Arts. 18 & 19 in the final text]
[ .… ]
“Magna Carta of Arbitral Procedure”
1. Article 19 may be regarded as the most important provision of the model law. It goes a
P 582 long way towards establishing procedural autonomy by recognizing the parties' freedom to
P 583 lay down the rules of procedure (paragraph (1)) and by granting the arbitral tribunal,
failing agreement of the parties, wide discretion as to how to conduct the proceedings
(paragraph (2)), both subject to fundamental principles of fairness (paragraph (3) [Art. 18 in
the final text]). Taken together with the other provisions on arbitral procedure, a liberal
framework is provided to suit the great variety of needs and circumstances of international
cases, unimpeded by local peculiarities and traditional standards which may be found in
the existing domestic law of the place.
Freedom of parties to lay down procedural rules, paragraph (1)
2. Paragraph (1) guarantees the freedom of the parties to determine the rules on how their
chosen method of dispute settlement will be implemented. This allows them to tailor the
rules according to their specific needs and wishes. They may do so by preparing their own
individual set of rules or, as clarified in article 2(d) [Art. 2(e) in the final text], by referring to
standard rules for institutional (supervised or administered) arbitration or for pure ad hoc
arbitration. The parties may, thus, take full advantage of the services of permanent arbitral
institutions or of established arbitration practices of trade associations. They may choose
those features familiar to them and even opt for a procedure which is anchored in a

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 particular legal system. However, if they refer to a given law on civil procedure, including
evidence, such law would be applicable by virtue of their choice and not by virtue of being
the national law.
3. The freedom of the parties is subject only to the provisions of the model law, that is, to
its mandatory provisions. The most fundamental of such provisions, from which the parties
may not derogate, is the one contained in paragraph (3) [Art. 18 in the final text]. Other such
provisions concerning the conduct of the proceedings or the making of the award are
contained in articles 23(1), 24(2)–(4) [Art. 24(1, second sentence) — (3) in the final text], 27,
30(2), 31(1), (3), (4), 32 and 33(1), (2), (4), (5). [Editors' Note: The second sentence of Article
24(1) and subparagraph (b) of Article 33(1) were later redrafted so as not to be mandatory.]
Procedural discretion of arbitral tribunal, paragraph (2)
4. Where the parties have not agreed, before or during the arbitral proceedings, (63) on the
procedure (i.e. at least not on the particular matter at issue), the arbitral tribunal is
empowered to conduct the arbitration in such manner as it considers appropriate, subject
only to the provisions of the model law which often set forth special features of the
discretionary powers (e.g., articles 23(2), 24(1), (2) [Art. 24(1) in the final text], 25) and
sometimes limit the discretion to ensure fairness (e.g. articles 19(3) [Art. 18 in the final text],
24(3), (4) [Art. 24(2), (3) in the final text], 26(2)). As stated in paragraph (2), this power
includes the power to determine the admissibility, relevance, materiality and weight of
any evidence. (64) This, in turn, includes the power of the arbitral tribunal to adopt its own
rules of evidence, although that is no longer expressed in the text.
P 583
P 584
5. Except where the parties have laid down detailed and stringent rules of procedure,
including evidence, the discretionary powers of the arbitral tribunal are considerable in
view of the fact that the model law, with its few provisions limiting the procedural
discretion, provides a liberal framework. This enables the arbitral tribunal to meet the
needs of the particular case and to select the most suitable procedure when organizing the
arbitration, conducting individual hearings or other meetings and determining the
important specifics of taking and evaluating evidence.
6. In practical terms, the arbitrators would be able to adopt the procedural features
familiar, or at least acceptable, to the parties (and to them). For example, where both
parties are from a common law system, the arbitral tribunal may rely on affidavits and
order pre–hearing discovery to a greater extent than in a case with parties of civil law
tradition, where, to mention another example, the mode of proceedings could be more
inquisitorial than adversary. Above all, where the parties are from different legal systems,
the arbitral tribunal may use a liberal “mixed” procedure, adopting suitable features from
different legal systems and relying on techniques proven in international practice, and, for
instance, let parties present their case as they themselves judge best. Such procedural
discretion in all these cases seems conducive to facilitating international commercial
arbitration, while being forced to apply the “law of the land” where the arbitration
happens to take place would present a major disadvantage to any party not used to that
particular and possibly peculiar system of procedure and evidence.
SUMMARY RECORD
A/CN.9/SR.316, .330, .331, .332
[10 June 1985, 2:00 P.M., A/CN.9/SR.316]
Article 19. Determination of rules of procedure
Article 19(1)
51. Mr. HOLTZMANN (United States of America) said that the freedom of the parties to agree
on arbitral proceedings should be clearly acknowledged to be a continuing right and not
one to be exercised only during the period preceding the arbitration.
52. Mr. BONELL (Italy) said that in its written observations, Italy had suggested that the text
P 584 should stipulate that the freedom of the parties to agree on whatever procedure they
P 585 desired ended with the start of the proceedings, unless the arbitrators themselves
agreed to the proposed modification. After having been given certain terms of reference,
the arbitrators should not be obliged to adopt an entirely different procedure. Since the
model law did not define the contractual relations between the arbitrators and the
parties, it must at least specify that changes could be made only with the consent of the
arbitrators.
53. Mr. BROCHES (Observer, International Council for Commercial Arbitration) said that
when the Working Group had discussed the issue, the majority had favoured granting the
parties a continuing right to decide on the procedure. The comment made by the
representative of Italy was, however, a very valid one.
54. Mr. HERRMANN (International Trade Law Branch) added that in its discussion of article
26 on the appointment of experts by the arbitral tribunal, the Working Group had
concluded that an agreement on such appointment should be recognized only if it was
made before the arbitration began. In general, however, the Working Group had favoured
the more flexible approach of enabling the parties to change the rules of procedure at any

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 stage.
55. The CHAIRMAN [Mr. LOEWE (Austria)] said that arbitration entailed a contractual
relationship not only between the parties but also between the parties on the one hand
and the arbitrators on the other; that second aspect involved the mandate and
remuneration of the arbitrators. The points made by the representatives of the United
States and Italy raised the issue of what an arbitrator could and should be expected to do
in all fairness. If the arbitrators objected to being asked to change their procedure after
the proceedings had begun, they could always demand to be released from their
responsibilities and be paid accordingly.
56. Mr. LAVINA (Philippines) said that although the parties could be expected to be
reasonable regarding changes in the arbitral procedure, there was no way of ensuring that
they would be. For that reason, the United States proposal could cause extensive
complications, whereas the Italian proposal would result in an overly rigid régime. His
delegation favoured the text as it stood.
57. Mr. BONELL (Italy) said that his country's proposal was intended to make it clear that
the parties were permitted to change the procedure to be followed, subject to the
agreement of the arbitrators. The Chairman had noted that arbitration was based on a
contractual relationship between the parties and the arbitrators: it was a general principle
of contractual law that the content of a contract could not be changed unilaterally.
Flexibility in arbitration proceedings was a universally recognized principle, but the
parties must at some point take a final stand.
58. Mr. AYLING (United Kingdom) said that the comments made by the representative of
Italy had great merit. It should be acknowledged in the model law that the arbitrators had
a contractual interest in the terms of the arbitral proceedings and that they should be able
to consent to or to reject those terms.
P 585
P 586
59. The CHAIRMAN pointed out that if that were the case, the parties could terminate the
mandate of the arbitrators at any time. Although he personally did not endorse the Italian
proposal, it seemed that many members of the Commission did.
60. Mr. MTANGO (United Republic of Tanzania) said that he endorsed the Italian proposal.
61. In reply to a question by Mr. de HOYOS GUTIERREZ (Cuba), the CHAIRMAN said that if the
parties agreed on institutional arbitration, they thereby also agreed to abide by the rules
of procedure of the institution in question.
62. Mr. JARVIN (International Chamber of Commerce) said that in its written comments, his
organization had proposed that where the parties had referred to the rules of procedure of
a given institution, they should be deemed to have agreed that the arbitration would be
conducted in accordance with those rules. (*) Article 19(1) seemed to require that the
parties make an express agreement at the start of the arbitration.
63. Mr. SAWADA (Japan) said that the Working Group had produced its text after extensive
negotiations and that it would be inadvisable to depart from that text.
64. Mr. LOEFMARCK (Sweden) said that he supported the Italian proposal but felt that the
proper time for agreement to be reached between the parties and the arbitrators was at
the start of the proceedings, not when the arbitrators had already accepted their duties.
65. Mr. SZASZ (Hungary) said that the text should be retained as it stood; the Commission's
discussion, which was really an interpretation of the text, would be reflected in the
summary record.
66. Mr. BROCHES (Observer, International Council for Commercial Arbitration) said that the
text provided that the parties had a continuing right to change the procedure, but that the
arbitrators did not have to accept anything they had not specifically agreed to and would
consequently have the last word regarding the procedure. The Commission's discussion
proved that the general formulation used in the text was more appropriate than a more
precise wording, which would only lead to difficulties and confusion.
67. The CHAIRMAN said that after all, the time–frame allowed for changing the procedure to
be followed could be settled by contract between the parties and the arbitrators. If he
heard no objection, he would take it that the Commission wished to leave the text of
article 19(1) as it stood.
68. It was so agreed.
Article 19(2)
P 586 69. Mr. BONELL (Italy) said that the second sentence would create difficulties in respect of
P 587 Italian law, since the admissibility, relevance, materiality and weight of evidence fell
within the scope of Italian substantive law.
70. Mr. HERRMANN (International Trade Law Branch) said that one or the other of the
subjects mentioned in the final sentence might be regarded in some legal systems as
relating to substantive law. Nevertheless, it was not inappropriate for a model law on
arbitration to deal with the procedure of taking and weighing evidence. Regarding the
compatibility within the model law itself between article 19(2) and article 28, it was the

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 Secretariat's view that if the model law was adopted as it stood, admissibility and the
other issues mentioned in article 19(2) would be decided upon at the discretion of the
arbitral tribunal, unless otherwise agreed by the parties, and would not be affected by the
choice of substantive law to be made under article 28.
71. Mr. BONELL (Italy) said that he agreed with Mr. Herrmann that there was a major
difference between article 19, in which the word “Law” was used, and article 28, which
referred to “rules of law.” His delegation would prefer article 19(2) to be amended to
conform to the wording of article 28, which was broader. With that amendment, the text
would clearly show that a strictly nationalistic approach must not be taken in respect of
substantive law. The arbitrators would clearly have the power to decide for themselves
questions of admissibility, relevance, materiality and weight of evidence, as they would no
longer be bound by the application of a specific national law. If the final sentence was not
amended along those lines, his delegation proposed that it should be deleted.
72. The CHAIRMAN suggested that another option might be to add, at the end of the final
sentence, the phrase “subject to the binding provisions of the applicable law.”
73. Mr. PELICHET (Observer, The Hague Conference on Private International Law) said that
he did not understand the Italian delegation's problem with the text. As he read it, the
final sentence simply indicated the powers of the arbitrators in respect of admissibility of
evidence but did not dictate which national law, whether substantive or procedural, they
would use in their judgment on admissibility.
74. Mr. HOLTZMANN (United States of America) said that in its written observations the
International Chamber of Commerce had proposed an addition to article 7 referring
specifically to arbitration administered by a permanent institution ([Sixth Secretariat Note
(Government Comments),] A/CN.9/263/Add.1, [Art. 7,] para. 8 [appearing in the section on
Article 7, pp. 288–89 supra]). His delegation believed that the model law should not refer to
the rules of a permanent institution but that where the parties had agreed to refer any
dispute to arbitration under specific procedural rules, the arbitration must be conducted
in accordance with those rules, in so far as they did not conflict with the mandatory
provisions of the model law. He therefore suggested that article 19(2) should be amended
to include a reference to the observance of such procedural rules.
P 587
P 588 75. Mr. MTANGO (United Republic of Tanzania) requested that the text of the
amendment the representative of the United States had in mind be distributed to
members of the Commission.
76. The CHAIRMAN suggested that, if the Commission agreed, it should resume its
discussion of article 19(2) following completion of the discussion of article 28.
77. It was so agreed.
[19 June 1985, 9:30 a.m., A/CN.9/SR.330]
Article 19. Determination of rules of procedure (continued)
Paragraph (2)
51. Mr. MTANGO (United Republic of Tanzania) recalled that the Commission, at its 316th
meeting, had decided to postpone consideration of the paragraph until completion of the
consideration of article 28 (A/CN.9/ SR.316, paras. 76–77), and that the United States
delegation had been requested to submit a text for consideration by the Commission.
52. Mr. HOLTZMANN (United States of America) said that his delegation had not prepared a
text but thought that the written proposal made by the International Chamber of
Commerce (ICC) on article 7 ([Sixth Secretariat Note (Government Comments),]
A/CN.9/263/Add. 1, [Art. 7,] para. 8 [appearing in the section on Article 7, pp. 288–89 supra])
might be used, though not necessarily in article 19, but with the following amendments: the
words “administered by a permanent arbitral institution” should be replaced by “under
particular arbitration rules,” the words “the rules of such arbitral institution” should be
replaced by “such rules,” and the words “mandatory provisions of this Law” should become
“the provisions of this Law from which the parties cannot derogate.”
53. The aim of the ICC proposal was to make the model law even clearer concerning the
importance of arbitration rules. However, the inclusion of the provision was not absolutely
necessary since the model law emphasized the right of the parties to make agreements,
including agreements concerning arbitration rules.
54. The CHAIRMAN [Mr. LOEWE (Austria)] noted that article 19(1) and article 2(d) [Art. 2(e) in
the final text] both implied that agreement between the parties concerning arbitration
rules formed a part of the agreement of the parties. Perhaps the Commission's report
should note that that was the common understanding on the subject and that the ICC
proposal had been omitted merely because it was not necessary.
55. Mr. BONELL (Italy) said that he agreed with the Chairman's comment on the
implications of article 19(1) and article 2(d). During the earlier discussion on article 19, he
had drawn attention to his Government's written comment on article 19(2) (Sixth
P 588 Secretariat Note (Government Comments), A/CN.9/263, [Art. 19], para. 4). The Commission
P 589 should now consider deleting the second sentence of that paragraph. Otherwise, the
difficulties referred to in his Government's submission might arise.

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 56. The CHAIRMAN suggested that the problem might be overcome by inserting the words
“subject to article 28.”
57. Mr. BONELL (Italy) said that if the Chairman's suggestion was accepted he would
withdraw his proposal for deletion.
58. Mr. HOLTZMANN (United States of America) said that one reason why parties chose
arbitration was to be free of the technical rules of evidence, be they procedural or
substantive. The aim of the model law was precisely to avoid the application of technical
rules of evidence. He therefore thought that the Commission should adopt the Working
Group's text.
59. The CHAIRMAN said that since there was little support for the deletion or amendment of
the second sentence of paragraph (2) he would take it that the Commission agreed that the
paragraph should remain unchanged.
60. It was so agreed.
[19 June 1985, 2:00 p.m., A/CN.9/SR.331]
Additional points suggested for inclusion in the model law
[ .… ]
Admissibility of written evidence
34. Mr. HOLTZMANN (United States of America) proposed the inclusion in the model law of
article 25(5) of the UNCITRAL Arbitration Rules, a provision which authorized the evidence
of witnesses to be presented in the form of written statements signed by them. While he
recognized that there was no requirement that the model law and the UNCITRAL
Arbitration Rules should be identical, the Commission had nevertheless recommended to
the Working Group on International Contract Practices that there should be consistency
between them. He was aware that some legal systems regulated the admissibility of
written evidence and also that the second sentence of article 19(2) of the model law
implicitly gave the arbitral tribunal the power to accept written statements if it so
decided. However, in view of provisions in certain national legal systems, it would be
helpful for the model law to make that point explicitly. Governments adopting it would
thus accede to what was an established procedure in modern arbitration and one which, as
experience had shown, had significantly reduced the costs of arbitral proceedings.
35. The CHAIRMAN [Mr. LOEWE (Austria)] said that the acceptance of article 19 would
already be a considerable step forward for legal systems in which written statements were
never admitted in evidence. It would be difficult for legislators to introduce a law which
expressly allowed arbitrators to receive written evidence if that form was forbidden to
judges.
P 589
P 590
36. Mr. HOLTZMANN (United States of America) said that, in view of the Chairman's
comments, he withdrew his proposal.
37. The CHAIRMAN suggested that the report should state that the matter was covered by
article 19(2).
38. It was so agreed.
[20 June 1985, 3:00 p.m., A/CN.9/SR.332]
Articles 19 to 23 [as revised by the Drafting Group]
57. Articles 19 to 23 were adopted without change.
COMMISSION REPORT
A/40/17 (21 AUGUST 1984)
C. Discussion on individual articles of the draft text
[ .… ]
Article 19. Determination of rules of procedure
170. The text of article 19 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
Paragraph (1)
171. Two suggestions of divergent significance were made with respect to paragraph (1). One
suggestion was to make clear in the model law that the freedom of the parties to agree on
the procedure should be a continuing one throughout the arbitral proceedings. The other
suggestion was to permit the parties to determine rules of procedure after the arbitrators
had accepted their duties to the extent the arbitrators agreed.
172. Neither suggestion was adopted. Although the provision as it now stood implied that
the parties had a continuing right to change the procedure, the arbitrators could not in fact
be forced to accept changes in the procedure because they could resign if they did not
wish to carry out new procedures agreed to by the parties. It was noted that the time–

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 frame allowed for changing the procedures to be followed could be settled between the
parties and the arbitrators.
Paragraph (2)
173. An observation was made that, since in some legal systems a question of admissibility,
relevance, materiality and weight of evidence would be considered to be a matter of
substantive law, the question arose as to the relationship between the second sentence of
paragraph (2) and article 28.
174. It was understood that the objective of paragraph (2) was to recognize a discretion of
the arbitral tribunal which would not be affected by the choice of law applicable to the
substance of the dispute.
175. The Commission adopted paragraph (2).
[ .… ]
P 590
P 591
D. Discussion of other matters
[ .… ]
Evidence of witnesses
329. A proposal was made to provide in the model law that evidence of witnesses might
also be presented in the form of written statements signed by them, since it would be
useful if the model law dispelled any doubt about that cost–saving, and sometimes the
only available, method of taking evidence of witnesses. The Commission did not adopt the
proposal since it was considered better to leave a point of detail like the one proposed
under the aegis of the general principle of article 19.
[Editors' Note: See also paragraph 276 of this document, appearing in the section on Article
34, p. 998 infra, which states in part:
It was noted that the adoption of the so-called territorial criterion [defining the
scope of application of the Model Law] did not preclude parties from selecting
the procedural law of a State other than that of the place of arbitration, provided
that the selected provisions were not in conflict with the mandatory provisions of
the (model) law in force at the place of arbitration.]
P 591

References
1) Seventh Secretariat Note, A/CN.9/264, Art. 19, para. 1, pp. 582–83 infra; see also
Summary Record, A/CN.9/SR.322, para. 2, appearing in the section on Art. 22, pp. 640–
41 infra; Summary Record, A/CN.9/ SR.324, para. 33, appearing in the section on Art. 34,
p. 990 infra.
2) For examples of how parties from various legal traditions might usefully take
advantage of the autonomy provided by Article 19, see the Seventh Secretariat Note,
A/CN.9/264, Art. 19, para. 6, p. 584 infra. For a comparative study of arbitral practice in
various parts of the world, see “Working Group I — Comparative Arbitration Practice,”
in Comparative Arbitration Practice and Public Policy in Arbitration 17–174 (ICCA Congress
Series No. 3, P. Sanders ed. 1987).
3) See the section on Article 18, pp. 550–63 supra.
4) For a list of mandatory provisions concerning the conduct of the arbitral proceedings
and the making of the award, see Seventh Secretariat Note, A/CN.9/264, Art. 19, para. 3,
p. 583 infra.
5) Seventh Secretariat Note, A/CN.9/264, Art. 19, para. 2, p. 583 infra. In the latter case,
though, the chosen law would be applicable by virtue of the parties having exercised
their right of choice under Article 19 and not by virtue of the chosen code's status as
law. Id. See also the commentary on Article 1, paragraph 2, pp. 35–36 supra, which
discusses a proposal whereby the parties could choose to have their arbitration be
governed by the arbitration law of a State other than the place of arbitration, and that
law would apply as a matter of law rather than merely as an agreement of the parties.
Note also that under Article 2(e) of the Law, the parties' power to agree on a subject
includes the power to choose arbitration rules to govern that subject. See also
Summary Record, A/CN.9/SR.330, paras. 52–54, p. 588 infra.
6) Seventh Secretariat Note, A/CN.9/264, Art. 19, para. 2, p. 583 infra.
7) See Fourth Working Group Report, A/CN.9/245, para. 75, pp. 577–78 infra. The proposal
was that the second paragraph of Article 19 begin with the words, “Failing such
agreement on the respective point at issue,.…” See Second Draft, A/CN.9/WG.II/WP.40,
Art. XV(2), p. 577 infra.
8) Seventh Secretariat Note, A/CN.9/264, Art. 19, para. 4, pp. 583–84 infra (emphasis
added).

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 9) Fourth Secretariat Note, A/CN.9/WG.II/WP.50, para. 14, pp. 578–79 infra.
10) Id. The Secretariat noted that such a rule had been adopted with respect to the
parties' power to bar the arbitral tribunal from appointing an expert under Article
26(1). That time limitation was subsequently eliminated. See Fifth Working Group
Report, A/CN.9/246, para. 87, appearing in the section on Article 26, pp. 727–28 infra.
11) Fifth Working Group Report, A/CN.9/246, para. 63, p. 579 infra.
12) See Summary Record, A/CN.9/SR.316, para. 51, p. 584 infra; Sixth Secretariat Note
(Government Comments), A/CN.9/263, Art. 19, para. 3, p. 580 infra.
13) See Summary Record, A/CN.9/SR.316, para. 52, pp. 584–85 infra; Sixth Secretariat Note
(Government Comments), A/CN.9/263, Art. 19, para. 2, p. 580 infra. This proposal was to
allow the parties to agree on a procedural point after the arbitrators have accepted
their duties only if the arbitrators also agree.
14) See Summary Record, A/CN.9/SR.316, paras. 51–68, pp. 584–86 infra; Commission
Report, A/40/17, paras. 171–172, p. 590 infra.
15) E.g., Commission Report, A/40/17, para. 172, p. 590 infra.
16) See, e.g., Summary Record, A/CN.9/SR.316, para. 67, p. 586 infra.
17) See First Working Group Report, A/CN.9/216, para. 60, p. 575 infra.
18) See Holtzmann, “The Conduct of Arbitral Proceedings” in UNCITRAL's Project for a Model
Law on International Commercial Arbitration 125, 133 (ICCA Congress Series No. 2, P.
Sanders ed. 1984) (quoting Prof. Sergei Lebedev).
19) For example, a number of sets of arbitration rules empower parties to present
evidence in the form of written statements, such as affidavits. E.g., UNCITRAL
Arbitration Rules, Art. 25(5); American Arbitration Assn. Commercial Arbitration Rules,
Rule 32; Rules of the London Court of International Arbitration, Art. 11.4. One can also
imagine a case in which parties agreed on application of the hearsay rules of the
common law or a particular national code of evidence.
20) First Working Group Report, A/CN.9/216, para. 59, p. 575 infra (emphasis added).
21) See Seventh Secretariat Note, A/CN.9/264, Art. 19, paras. 4, 5, pp. 583–84 infra;
Summary Record, A/CN.9/SR.316, para. 70, p. 587 infra.
22) Second Working Group Report, A/CN.9/232, para. 106, p. 576 infra; Fourth Working Group
Report, A/CN.9/245, para. 75, pp. 577–78 infra; see Seventh Secretariat Note,
A/CN.9/264, Art. 19, para. 4, p. 583 infra.
23) See Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 19, para. 4, p. 580
infra; Summary Record, A/CN.9/SR.316, paras. 69–70, pp. 586–87 infra.
24) See the sources cited in the preceding footnote, which report the comments of the
Italian delegation to UNCITRAL.
25) Commission Report, A/40/17, para. 174, p. 590 infra; see Summary Record,
A/CN.9/SR.316, para. 70, p. 587 infra. The Commission declined to adopt a proposal
that would have had the opposite effect, that is, that would have made the exercise of
the power conferred in Article 19(2) subject to the choice of law made under Article 28.
Summary Record, A/CN.9/SR.330, paras. 55–60, pp. 588–89 infra.
26) See Summary Record, A/CN.9/SR.330, para. 58, p. 589 infra.
27) See Commission Report, A/40/17, para. 329, p. 591 infra; Summary Record,
A/CN.9/SR.331, paras. 34–38, pp. 589–90 infra; Sixth Secretariat Note (Government
Comments), A/CN.9/263, “Suggestions for new provisions on additional issues,” para. 11,
p. 581 infra.
28) See Summary Record, A/CN.9/SR.331, paras. 15–33, appearing in the section on Matters
Not Addressed in the Final Text, pp. 1139–41 infra; Sixth Secretariat Note (Government
Comments), A/CN.9/ 263, “Suggestions for new provisions on additional issues,” para. 9,
10, appearing in the section on Matters Not Addressed in the Final Text, p. 1138 infra.
See also Seventh Secretariat Note, A/CN.9/264, Art. 19, para. 4, n. 64, p. 584 infra.
29) See Commission Report, A/40/17, para. 328, appearing in the section on Matters Not
Addressed in the Final Text, pp. 1141–42 infra.
1) [Secretariat Note Reporting AALCC Decision, A/CN.9/127 (Annex), para. 3(a), (b), appearing
in the section on Purposes and Procedures of the Commission, p. 1162 infra. The third
issue concerned sovereign immunity.]
2) [Secretariat Comments on AALCC Proposal, A/CN.9/127/Add.1, para. 4, p. 1163 infra.]
3) [Id. para. 6, p. 1164 infra.]
4) [1977 Commission Report, A/32/17 (Annex II), para. 30, p. 1168 infra.]
5) [See id. paras. 31, 34, pp. 1168, 1169 infra.]
6) [Secretariat Note on Further Work, A/CN.9/169, paras. 8–9, p. 1174 infra.]
7) [1979 Commission Report, A/34/17, para. 81, pp. 1188–89 infra.]
7) [1977 Commission Report,] (A/32/17), para. 39 and annex II, paras. 27–36 [appearing in
the section on Purposes and Procedures of the Commission, pp. 1167, 1168–70 infra]. [ … ]
8) Ibid.
10) Cf. e.g. decision of the Cour d'Appel de Paris of 21 February 1980, lère Chambre civile,
publ. in Recueil Dalloz Sirey 1980, p. 568, with a note by Robert.
32) Discussion and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, paras. 56–60, 63, 64. [Editors' Note: Paragraphs 56 & 58–60 appear
immediately above; the other cited paragraphs appear in the sections on Article 24–26.]

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 33) Consideration of this sub–paragraph may be combined with the discussion on the
articles referred to therein. When discussing articles 20 to 24, the Working Group may
wish to consider to what extent these provisions should be mandatory (as regards art.
20, see [First Working Group Report,] A/CN.9/216, para. 57 [appearing in the section on
Article 24, p. 676 infra]).
34) This draft provision is modeled on article 15(1) of the UNCITRAL Arbitration Rules.
15) The second alternative may be regarded as superfluous, if the suggestion set forth in
the introduction (above, para 4) were accepted. [Editors' Note: The suggestion referred
to was to incorporate into the Law a rule that any provision permitting the parties to
agree on a point also would allow them to refer to arbitration rules governing the
question. Article 2(e) of the final text so provides. See the section on that Article, pp. 158–
59 supra.]
27) [Fifth Working Group Report,] A/CN.9/246, para. 63.
63) As was noted by the Working Group, the freedom of the parties under paragraph (1) to
agree on the procedure is a continuing one throughout the arbitral proceedings and
not limited, for example, to the time before the first arbitrator is appointed ([Fifth
Working Group Report,] A/CN.9/246, para. 63). It is submitted however, that the parties
themselves may in their original agreement limit their freedom in this way if they wish
their arbitrators to know from the start under what procedural rules they are expected
to act.
64) Not regulated in article 16 [sic — Art. 19 is intended] (or any other provision of the
model law) is the question which party bears the burden of proof, as, e.g., answered in
article 24(1) of the UNCITRAL Arbitration Rules as follows: “Each party shall have the
burden of proving the facts relied on to support his claim or defence.” [Editors' Note:
During the Commission's deliberations, a proposal was made to add such a provision on
burden of proof to the Model Law, but it was not adopted. See the Section on Matters Not
Addressed in the Final Text, pp. 1117–18, 1136–42 infra.]
*) [Editors' Note: The written comment referred to is in the Sixth Secretariat Note
(Government Comments), A/CN.9/263/Add.1, Art. 7, para. 8, appearing in the section on
Article 7, pp. 288–89 supra.]

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Document information
UNCITRAL Model Law, Chapter V, Article 20 [Place of
Publication arbitration]
A Guide to the UNCITRAL (1) The parties are free to agree on the place of arbitration. Failing such agreement, the
Model Law on International place of arbitration shall be determined by the arbitral tribunal having regard to the
Commercial Arbitration: circumstances of the case, including the convenience of the parties.
Legislative History and
Commentary (2) Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal
may, unless otherwise agreed by the parties, meet at any place it considers
appropriate for consultation among its members, for hearing witnesses, experts or
the parties, or for inspection of goods, other property or documents.
Organization
United Nations Commission Commentary
on International Trade Law Read in isolation, Article 20 might seem to make little sense: paragraph 1 establishes a
procedure for selecting the so–called place of arbitration, but then paragraph 2 provides
that the arbitrators may hold hearings, consultations, or other meetings elsewhere. (1) It is
Promulgation easy to understand why the arbitral tribunal may need to meet elsewhere than the place
21 June 1985 initially selected by the parties: crucial witnesses or evidence may be located elsewhere,
or it may turn out to be significantly less expensive to meet elsewhere. But if one is to give
the arbitral tribunal the presumptive (2) power to meet where it deems fit, why include in
the governing legal regime a procedure for selecting the “place of arbitration”?
Legislation number
One answer is that in practice the arbitrators will generally meet in the place of arbitration
United Nations Document determined under Article 20. As the Secretariat stated, “[I]n principle, the arbitral
A/40/17, Annex I proceedings, including any hearings or other meetings, would be expected to be held at
that place.” (3) This will be particularly true, the Secretariat noted, when the place of
arbitration is chosen by the parties themselves, rather than by the arbitral tribunal,
Bibliographic reference because that will generally evince an expectation that the proceedings would be held
there. These are considerations of sound arbitral practice, however. A more strictly legal
'UNCITRAL Model Law, reason for providing for selection of a “place of arbitration” lies not in Article 20 but in
Chapter V, Article 20 [Place
of arbitration]', in Howard M. P 592 other provisions of the Model Law, specifically Articles 1 and 31. These provisions make the
Holtzmann and Joseph P 593 “place of arbitration” legally significant in three ways also noted by the Secretariat: (4)
Neuhaus , A Guide to the 1. First, the place of arbitration largely determines whether the Model Law applies to
UNCITRAL Model Law on the arbitration at all, for under Article 1(2) nearly all Articles of the Law apply only if
International Commercial the place of arbitration is in the enacting State. (5) In particular, the place of
Arbitration: Legislative arbitration determines what State's courts will perform the functions of assistance
History and Commentary, and supervision referred to in Article 6, as well as the one mentioned in Article 27. (6)
(© Kluwer Law International; 2. Second, the place of arbitration may be the factor that determines whether the
Kluwer Law International arbitration is “international” within the meaning of Article 1(3). An arbitration is
1989) pp. 592 - 608 international under Article 1(3)(b)(i) if both of the parties have their places of
business in a State different from the place of arbitration and the latter is
“determined in, or pursuant to, the arbitration agreement.”
3. Third, under Article 31(3) the place of arbitration determines the place at which the
award is made, which is important in recognition and enforcement proceedings. It is
under the law of that place that the award will be judged for the purpose of
recognition and enforcement under Article 36(a). Also, in many countries, the place
where the award is made will determine its enforceability because these states will
enforce awards made only in certain other states. For example, under Article I,
paragraph 3, of the New York Convention, a contracting state may declare that it will
enforce only awards made “in the territory of another Contracting State.” A great
many states have made this reservation. (7)
There were few conceptual disagreements during the drafting of Article 20. It was based
largely on Article 16 of the UNCITRAL Arbitration Rules. A few points of legislative history,
however, provide insight into the intent of the drafters, particularly with reference to
wording that differs from that of the Rules.
Paragraph 1. From the outset, “[t]here was general agreement that the model law should
recognize the parties' freedom to determine the place of arbitration” and that it “should
contain a supplementary rule empowering the arbitral tribunal to determine the place of
arbitration where the parties had not agreed.” (8)
P 593 With respect to this supplementary rule, Article 16(1) of the UNCITRAL Arbitration Rules
P 594 provides that in determining the place of arbitration the arbitral tribunal shall have
“regard to the circumstances of the arbitration.” It has been noted that this phrase refers
not only “to practical considerations in connection with the arbitral proceedings, such as
the least possible displacement of parties, witnesses and arbitrators, but also … to the
legal consequences of the choice, and more especially to the recognition and enforcement
of the award.” (9) Article 20 of the Model Law includes the quoted phrase from the Rules,
but adds, “including the convenience of the parties.” The question may arise whether this
phrase limits the considerations that the tribunal should consider in determining the
place of arbitration to those that relate to reducing the “displacement of parties.” It was in

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 fact for this reason that the reference to “convenience of the parties,” which had been
proposed by the Secretariat in the First Draft, (10) was initially dropped. The Working
Group at its second session on the Law declined to accept the added words because, in
addition to the parties' convenience, “there [were] many other circumstances to be taken
into account and it was not appropriate to mention only one of them.” (11)
During the Commission's consideration of the Article, a number of delegates, particularly
from developing countries, expressed concern that the arbitral tribunal might impose an
inconvenient location on arbitrating parties. They proposed reinstating the language
deleted from the First Draft, to emphasize the importance of the convenience of the
parties in the determination of the place of arbitration. (12) The Commission adopted this
proposal, with the understanding that the phrase “convenience of the parties” should be
interpreted to include consideration of “the suitability of the applicable procedural law,
the availability of procedures for recognition or enforcement of awards under the 1958 New
York Convention or other multilateral or bilateral treaties,” and perhaps “whether a State
had adopted the model law.” (13)
Thus, the inclusion of the phrase “including the convenience of the parties” should not
P 594 necessarily work a significant substantive change from the interpretation of the UNICTRAL
P 595 Arbitration Rule provisions. In both cases, arbitrators should consider factors in
addition to geographic proximity to the parties, such as whether the proposed place of
arbitration has adhered to the New York Convention and other similar treaties and whether
that State has adopted an arbitration law conducive to international commercial
arbitration, such as the Model Law. It may be noted, in addition, that the geographic — or
political — inconvenience of a particular “place of arbitration” may be mitigated by the
wide freedom provided in paragraph 2 to meet in any place considered appropriate.
The First Draft specified that the parties are free to determine the place of arbitration “or
to authorize a third person or institution” to do so. (14) This provision, taken from the
UNCITRAL Arbitration Rule provision, was dropped because it would be redundant in view
of the general rule of interpretation set forth in Article 2(d) of the Model Law: “where a
provision of this Law, except Article 28, leaves the parties free to determine a certain
issue, such freedom includes the right of the parties to authorize a third party, including an
institution, to make that determination.”
It should be recognized that the freedom of the parties to agree on the place of arbitration
may be limited by mandatory provisions of treaties or conventions. Pursuant to Article 1(1)
of the Model Law, any such treaties in force in the State enacting the Law would limit the
party autonomy granted by Article 20(1). Thus, for example, the Secretariat noted that the
parties' freedom to determine the place of arbitration might in a maritime case be
restricted by Article 22 of the Hamburg Rules, which provides that a claimant has the
option of instituting arbitration in several places, including the defendant's place of
business, the place of contracting, the port of loading or of discharge, or the place
designated in the arbitration agreement. (15)
Paragraph 2. The concept of paragraph 2, permitting the arbitral tribunal to meet at
locations other than the place of arbitration, is modeled on Article 16, paragraphs 2 and 3,
of the UNCITRAL Arbitration Rules. As originally drafted, the purposes for which the tribunal
could hold meetings away from the place of arbitration were limited to those listed in the
UNCITRAL Arbitration Rules, i.e., (1) to hear witnesses, (2) for consultation among
arbitrators, and (3) to inspect goods, other property and documents. (16) At its fourth
session on the law, the Working Group noted that there might be a need for the arbitral
tribunal to meet at another place for additional reasons, such as “hearings of experts or
P 595 normal hearings with the parties,” and it was therefore suggested “to adopt a more general
P 596 formula which would cover such other meetings, too.” (17) Accordingly, the provision was
broadened to include hearing experts and the parties. This change — which is an extension
of the UNCITRAL Arbitration Rules — would seem to include in paragraph 2 all the possible
stages of the arbitral proceeding. (As to making of the award, see below.) The change is not,
however, inconsistent with the UNCITRAL Rules because the provision applies only where
there is no contrary agreement of the parties. Agreement to the somewhat narrower
provisions of the UNCITRAL Rules is thus permitted.
Article 20 does not include the making of the award in the list of purposes for which the
tribunal may meet elsewhere than the “place of arbitration,” and the question may arise
whether the award must at least be signed at the place of arbitration determined under
Article 20. The legislative history of this Article does not directly address this question,
except that one government — Norway — expressed its understanding that the making of
the award might in fact take place elsewhere than at the place of arbitration. (18) The
legislative history of Article 31(3), however, is practically conclusive on the point: it is
crystal clear that the drafters expected that the award might be signed elsewhere than at
the “place of arbitration”; for this reason, Article 31(3) states that the award “shall be
deemed to be made at that place” (emphasis added). (19)

Legislative History
FIRST SECRETARIAT NOTE
A/CN.2/207 (14 MAY 1981)

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 B. Identification of issues possibly to be dealt with in the model law
[ .… ]
IV. Arbitral procedure
1. Place of arbitration
71. The model law should recognize the parties' freedom to determine the place of
arbitration except where that freedom is restricted by a mandatory provision such as art.
22 of the Hamburg Rules. (*) For those cases where parties have neither determined the
place of arbitration nor entrusted a third person or body (e.g., arbitral tribunal, secretariat
of arbitral institution) with that decision the model law might empower the arbitral
tribunal to determine the place of the arbitration.
P 596
P 597
72. “Place of arbitration” would not necessarily mean that, in fact, all meetings or hearings
are held at that place (cf. e.g., art. 16(2), (3) UNCITRAL Arbitration Rules) but its clear
determination is of legal importance in various respects. The award shall be made at that
place and, as often required by national laws, filed or registered there within a certain
time–period. Above all, the place of arbitration where the award was made is the major
criterion to determine the applicability of the 1958 New York Convention as regards
recognition and enforcement of awards (art. I(1)). Yet another legal consequence arises
from the not uncommon fact that the parties' choice of the place of arbitration is
interpreted as implying a choice of the applicable procedural law if there is no express
stipulation on that point. It may be considered to deal with this interpretation which is
controversial and not beyond all doubts, if conflicts aspects were to be addressed at all in
the model law (cf. above, para. 38 [appearing in the subsection on Article 1, paragraphs 1, 3
& 4, p. 43 supra]).
SECOND SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW:
QUESTIONS FOR DISCUSSION
A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
IV. Arbitral procedure
1. Place of arbitration (report [First Secretariat Note, supra], paras. 71–72)
Question
4–1: Should the model law recognize the parties' freedom to determine the place of
arbitration or to empower a third person to make that determination?
Question
4–2: In the absence of any agreement envisaged in question 4–1, should the model law
empower the arbitral tribunal to determine the place of arbitration?
(It may be suggested here that any questions concerning the relevance of the place of
arbitration to the determination of the applicable procedural law might appropriately be
considered at a later stage in connexion with other conflicts issues.)
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
IV. Arbitral procedure
1. Place of arbitration
Question
4–1: Should the model law recognize the parties' freedom to determine the place of
arbitration or to empower a third person to make that determination?
P 597
P 598
Question
4–2: In the absence of any agreement envisaged in question 4–1, should the model law
empower the arbitral tribunal to determine the place of arbitration?
53. There was general agreement that the model law should recognize the parties' freedom
to determine the place of arbitration. It was agreed that this included the freedom to
authorize a third person or body (for example, the arbitral tribunal or a permanent arbitral
institution) to determine the place of arbitration.
54. There was general agreement that the model law should contain a supplementary rule
empowering the arbitral tribunal to determine the place of arbitration where the parties
had not agreed upon that place. It was suggested that such a provision should be modelled
on article 16, paragraph 1 of the UNCITRAL Arbitration Rules, with a possible modification
of the last part of that provision (“having regard to the circumstances of the arbitration”).
55. In this connexion, the view was expressed that supplementary rules along the lines of

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 article 16, paragraph 2 second sentence, paragraphs 3 and 4, might be appropriate, but
that these provisions related to issues (arbitral procedure and award) to be discussed
later.
FIRST DRAFT
A/CN.9/WG.II/WP.37 (15 JULY 1982)
IV. Arbitral procedure
1. Place of arbitration (31)
Article 18 [Art. 20 in the final text]
(1) The parties to an arbitration agreement are free to determine, or to authorize a third
person or institution to determine, the place where the arbitration is to be held.
(2) Failing such stipulation, the arbitral tribunal shall determine the place of arbitration,
having regard to the circumstances of the arbitration [, including the convenience of
the parties].
2.–4. Arbitration proceedings in general, evidence, experts (32)
Article 19 [Arts. 19 & 26 in the final text]
(1) The arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate
(a) subject to the provisions of articles 20 to 24 [Arts. 17, 20(2), 24, 25 & 26 in the final
text] and any instructions given by the parties in the arbitration agreement; (33)
[ … ].
P 598
P 599
[ .… ]
Article 21 [Art. 20 in the final text] (37)
Notwithstanding the provisions of article 18, the arbitral tribunal may
(a) hear witnesses and hold meetings for consultation among its members at any place it
deems appropriate, having regard to the circumstances of the arbitration;
(b) meet at any place it deems appropriate for the inspection of goods, other property or
documents. The parties shall be given sufficient notice to enable them to be present
at such inspection.
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Arbitral procedure
Place of arbitration
Article 18 [Art. 20 in the final text]
99. The text of article 18 as considered by the Working Group was as follows:
[same as First Draft, supra].
100. It was agreed that the words “including the convenience of the parties” in paragraph
(2) should be deleted. It was stated that there are many other circumstances to be taken
into account and it was not appropriate to mention only one of them.
Arbitration proceedings in general, evidence, experts
Article 19 [Arts. 19 & 26 in the final text]
[ .… ]
103. The Working Group agreed to decide to what extent the provisions of articles 20 to 24
[Arts. 17, 20(2), 24, 25 & 26 in the final text] should be mandatory in deliberations on each of
those articles.
P 599
P 600
[ .… ]
Article 21 [Art. 20 in the final text]
112. The text of article 21 as considered by the Working Group was as follows:
[same as First Draft, supra].
113. It was agreed that the text should make it clear that when witnesses were to be heard,
the parties should always be given sufficient notice to enable them to be present at the
hearing. [Editors' Note: This consideration was reflected in subsequent drafts of what became
Article 24. See the section on that Article, pp. 679–82 infra.] Except for the requirement of

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 notice, the Working Group was of the view that the provision was not binding on the parties.
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
F. Place and conduct of arbitration proceedings
[ .… ]
Article XVI [Art. 20 in the final text]
(1) The parties are free to agree on the place where the arbitration is to be held. Failing
such agreement, the place of arbitration shall be determined by the arbitral tribunal
[, having regard to the circumstances of the arbitration].
(2) Notwithstanding the provisions of the preceding paragraph, the arbitral tribunal may
[, unless otherwise agreed by the parties,] (16) meet at any place it deems
appropriate for
(a) hearing witnesses;
(b) consultations among its members;
(c) the inspection of goods, other property or documents.
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[ .… ]
Article XVI [Art. 20 in the final text]
76. The text of article XVI as considered by the Working Group was as follows:
P 600
P 601
[same as Second Draft, supra].
Paragraph (1)
77. The Working Group adopted paragraph (1) subject to the deletion of the words placed
between square brackets.
Paragraph (2)
78. The Working Group adopted the policy underlying paragraph (2) which allowed the
arbitral tribunal, subject to contrary agreement by the parties, to meet for certain
purposes at places other than the place of arbitration. It was felt that the need for meeting
at another place may not only arise with regard to the types of meeting listed under (a), (b)
and (c) but also, for example, for hearings of experts or normal hearings with the parties. It
was suggested, therefore, to adopt a more general formula which would cover such other
meetings, too.
79. On the other hand, a concern was expressed that such wide powers of the arbitral
tribunal might be in conflict with the expectations of the parties when agreeing on the
place of arbitration, taking into account considerations of convenience and costs.
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 20. Place of arbitration
(1) The parties are free to agree on the place of arbitration. Failing such agreement, the
place of arbitration shall be determined by the arbitral tribunal.
(2) Notwithstanding the provisions of the preceding paragraph, the arbitral tribunal may,
unless otherwise agreed by the parties, meet at any place it considers appropriate
for consultation among its members, for hearing witnesses, experts or the parties, or
for inspection of goods, other property, or documents.
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 20
64. The text of article 20 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
65. The Working Group adopted that article.
P 601
P 602
FIFTH DRAFT

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 A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 20. Place of arbitration
(1) The parties are free to agree on the place of arbitration. Failing such agreement, the
place of arbitration shall be determined by the arbitral tribunal.
(2) Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal
may, unless otherwise agreed by the parties, meet at any place it considers
appropriate for consultation among its members, for hearing witnesses, experts or
the parties, or for inspection of goods, other property, or documents.
SIXTH SECRETARIAT NOTE
ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 20. Place of arbitration
1. India is of the opinion that the freedom of the parties to agree on the place of
arbitration may operate against a weaker party. A possible approach suggested is to hold
the arbitration in the respondent's country. India is, however, not opposed to the inclusion
of the test of objectivity as envisaged by the phrase “the place of arbitration shall be
determined by the arbitral tribunal” in article 20(1).
2. In the understanding of Norway there need not be a genuine link between the place of
arbitration as determined under paragraph (1) and any other places where, under
paragraph (2), parts of the arbitral proceedings, including the making of the award, take
place. Recalling the prevailing view expressed in the Working Group, namely that the
exclusive determining factor for the applicability of the model law should be the place of
arbitration, (28) and recalling the provisions of article 31(3) according to which the award
shall be deemed to have been made at the place as determined in accordance with article
20(1), Norway observes that the place of arbitration is, or ought to be, a decisive factor
under articles 6, 27, 28(2), 34 and 36(1) [(a)](i), (iv) and (v). It proposes to make clear
whether such “constructive” place of arbitration as determined in accordance with article
20 shall be pertinent in relation to every provision of the model law where the place of
arbitration is referred to or is otherwise relevant. Appreciating the intention of paragraph
(2) of this article, Norway proposes to insert a provision in the model law to the effect that
a “constructive” place of arbitration shall not be relevant in respect of all, or some of the,
provisions where the place of arbitration is the determining factor, if there is no genuine
factual link between that place and the actual arbitral proceedings.
P 602
P 603
3. As to the proposal by Czechoslovakia to deal in article 20 with the issue of jurisdiction,
see paragraph 6 of the compilation of comments on article 6 [appearing in the subsection
on Article 1, paragraph 2, p. 110 supra].
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 20. Place of arbitration
AALCC [Asian–African Legal Consultative Committee] is of the view that the best practical
solution to the concern raised by member States of AALCC, namely that article 20 may work
to the disadvantage of parties from developing countries, would be to append a footnote
to paragraph (1) of article 20, as follows:
“The Asian–African countries are recommended to include in their agreements
the use of Cairo and Kuala Lumpur Arbitration Centre and any other Centre
established by the Asian–African Legal Consultative Committee, as a venue of
arbitration.”
SEVENTH SECRETARIAT NOTE
ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1984)
Article 20. Place of arbitration
[ .… ]
Determination of place of arbitration, paragraph (1)
1. Paragraph (1) recognizes the freedom of the parties to agree on the place of arbitration.
The parties may either themselves determine that place or, as is clear from article 2(c)
[Art. 2(d) in the final text], authorize a third party, including an institution, to make that
determination. Failing any such agreement, the place of arbitration shall be determined

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 by the arbitral tribunal.
2. The place of arbitration is of legal relevance in three respects. First, it is one of the
various possible factors establishing the international character of the arbitration,
provided it is determined in, or pursuant to, the arbitration agreement (article 1(2)(b)(i)
[Art. 1(3)(b)(i) in the final text]). Second, it is a connecting factor for the “territorial”
applicability of the model law, either as exclusive criterion, if the Commission adopts the
P 603 view prevailing in the Working Group, or as subsidiary connecting factor, if the model law
P 604 would in its final form allow the parties to select a procedural law other than that of the
State where the arbitration is held. (66) Third, the place of arbitration is, by virtue of
article 31(3), the place of origin of the award and as such relevant in the context of
recognition or enforcement proceedings, in particular, by determining, for the purposes of
article 36(1)(a)(v), “the country in which … that award was made.”
Meeting at place other than place of arbitration, paragraph (2)
3. The factual significance of the place of arbitration, in particular when determined by the
parties themselves, is that, in principle, the arbitral proceedings, including any hearings or
other meetings, would be expected to be held at that place. However, there may be good
reasons for meeting elsewhere, not merely in the case where a change of locale is
necessary (e.g. for purposes of inspection of premises). For example, where witnesses are
to be heard or where the arbitrators meet among themselves for consultations, another
place may be more appropriate for the sake of convenience of the persons involved and
for keeping down the costs of the arbitration. Yet another of the many possible
considerations would be to balance the parties' own expenses by scheduling some of the
meetings at the place of one party and some of the meetings at the place of the other
party.
4. For all such purposes, paragraph (2) empowers the arbitral tribunal, unless otherwise
agreed by the parties, to meet at any place it considers appropriate for consultation
among its members, for hearing witnesses, experts or (only) the parties, or for inspection of
goods, other property, or documents.
SUMMARY RECORD
A/CN.9/SR.321, .332
[13 June 1985, 9:30 A.M., A/CN.9/SR.321]
Article 20. Place of arbitration
Paragraph (1)
1. Mr. SEKHON (India) proposed that the following words should be added at the end of the
paragraph: “having regard to the circumstances of the arbitration, including the
convenience of the parties.”
2. Mr. BROCHES (Observer, International Council for Commercial Arbitration) said that such
a change would be consistent with the view taken earlier of the notion of the place of
arbitration, at a stage in the history of the model law when factors of that kind had been
considered relevant for inclusion. It was somewhat out of harmony, however, with the
current opinion on the matter, in which the selection of the place of arbitration was
associated with the determination of the applicable law.
3. Mr. GRAHAM (Observer for Canada) supported the proposal and said it was a reasonable
one.
P 604
P 605
4. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that the idea was
useful as a guide but it should be expressed in a comment separate from the article itself.
5. Mr. HOLTZMANN (United States of America) supported the suggestion made by the
preceding speaker. However, the comment should be confined to mentioning the
circumstances of the arbitration. That would be in line with article 16(1) of the UNCITRAL
Arbitration Rules. If the convenience of the parties was mentioned it would appear to give
it more prominence than other relevant factors, say, enforceability of the award or whether
a State had adopted the model law. With a comment of the kind he had mentioned, the
actual text of the model law would leave the arbitrators' discretion clear and unqualified,
and that was probably desirable for a piece of legislation.
6. Mr. ROEHRICH (France) strongly supported the Indian proposal. The wording should be
added to the article itself. A rule of that kind would provide sound guidance for the
arbitral tribunal.
7. Mr. BOUBAZINE (Algeria) and Mr. LAVINA (Philippines) said they approved the Indian
amendment and its inclusion in the article itself.
8. Mr. TANG Houzhi (China) likewise supported the Indian amendment and favoured its
inclusion in the article, since the convenience of the parties was an important factor. While
it was right to take the UNCITRAL Arbitration Rules into account, there was no need to copy
them word for word.
9. Mr. JOKO-SMART (Sierra Leone) said that he was unable to support the Indian proposal,

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 excellent though the idea was. In the first place, there were the reasons mentioned by the
United States; also, the parties might not be able to specify a place convenient to both of
them.
10. Mr. de HOYOS GUTIERREZ (Cuba) said he favoured the inclusion of the wording of the
Indian proposal in the text of the article. It was important to give the arbitral tribunal
guidance on the need to take account of the parties' convenience.
11. Mr. CHO (Observer for the Republic of Korea) supported the Indian proposal except for
the inclusion of the reference to the convenience of the parties. It would be best to keep to
what was in article 16(1) of the UNCITRAL Arbitration Rules, since there could be a conflict
between the parties about what place was convenient for them. Moreover, the meaning of
convenience was implicit in the words “the circumstances of the arbitration.”
12. Mr. LOEFMARCK (Sweden) opposed the idea of amending the text of the article, itself,
for the reasons given by the Observer for the Chartered Institute of Arbitrators and the
representatives of the United States of America and Sierra Leone. He could accept a
separate comment mentioning the UNCITRAL Rules and the circumstances of the
arbitration, but not the parties' convenience.
P 605
P 606
13. Mr. OLUKOLU (Nigeria) supported the Indian proposal for the reason given by the
representative of France. It was important to take the convenience of the parties into
account.
14. Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration) said that
he approved the Indian proposal and the inclusion of the wording in the article itself.
15. Mr. TORNARITIS (Cyprus) observed that the circumstances in question were normally
taken into consideration by arbitrators anyway. He could nevertheless accept the Indian
proposal and agreed that the wording should be added to the text of the article.
16. Mr. BARRERA GRAF (Mexico) said that he approved the proposal to add to paragraph (1)
a reference to the circumstances of the arbitration, which would be in keeping with the
UNCITRAL Arbitration Rules. He did not agree about the proposed reference to the
convenience of the parties, a subject which would be more appropriate for the last
paragraph of article 19 [Art. 18 in the final text]. He shared the views of the Observer for the
Republic of Korea and the United States representative.
17. Mr. SCHUETZ (Austria) said he approved the text as it stood but was prepared to accept
the addition of a reference to the circumstances of the arbitration and a mention in a
comment that they included the question of the convenience of the parties. His delegation
suggested that course of action as a compromise. It particularly supported the view
expressed by the representative of Sierre Leone.
18. Mr. BONELL (Italy) supported the Indian proposal.
19. Mr. HJERNER (Observer, International Chamber of Commerce) said that it was not
appropriate to include directives in a law. He supported the view expressed by the
Observer for the Chartered Institute of Arbitrators. If, however, a criterion for determining
the place of arbitration had to be mentioned, it should be enforceability of the award.
20. Mr. SCHUMACHER (Federal Republic of Germany) said that he approved the Indian
proposal in principle, but felt that the question of the convenience of the parties should be
dealt with in a separate comment referring to the principles laid down in article 19(3) [Art.
18 in the final text].
21. Mr. MTANGO (United Republic of Tanzania) also supported the Indian proposal.
Although it could be argued that it would make little difference whether the second part
were included or not, he felt that it helped to clarify the article and would therefore assist
users of the model law.
22. Mr. HOLTZMANN (United States of America) endorsed the Austrian compromise
suggestion. However, in mentioning the convenience of the parties, the comment should
make it clear that not only physical convenience but other relevant factors, such as the
suitability of the law of the place of arbitration and the effect of the choice of place on the
enforceability of the award under the New York Convention or bilateral agreements, should
be taken into account by the arbitrators.
P 606
P 607
23. Mr. BONELL (Italy) agreed with the previous speaker's remarks.
24. Mr. SAMI (Iraq) said that he supported the idea of adding to the article, which should
make it clear that the place of arbitration must be convenient for the parties. That was
very important, especially for developing countries. At a recent meeting of the Asian–
African Legal Consultative Committee delegates had pointed out the undesirability of
choosing a place which would involve heavy travel costs for the parties; they had stressed
that it should be in or near to where one of the parties resided, and in the developing
country in the case of an arbitration between a party in a developing country and one in a
developed country. There were also the considerations mentioned by Norway in its written
comments, reproduced in [Sixth Secretariat Note (Government Comments),] document

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 A/CN.9/263 ([Art. 20], para. 2). The arbitrators should give due heed to all the criteria
mentioned by the United States representative, especially the enforceability of the award.
25. The CHAIRMAN [Mr. PÃES de BARROS LA?S (Brazil)] said that there seemed to be
considerable support for the Indian proposal. Unless he heard any objections, he would
take it that the Commission wished to approve the paragraph as amended by that
proposal.
26. It was so agreed.
Paragraph (2)
27. Mr. LAVINA (Philippines) said that account should be taken of the laws of the place at
which it was envisaged hearing witnesses, experts or parties.
28. The Commission approved paragraph (2).
[20 June 1985, 3:00 p.m., A/CN.9/SR.332]
Articles 19 to 23 [as revised by the Drafting Group]
57. Articles 19 to 23 were adopted without change.
COMMISSION REPORT
A/40/17 (21 AUGUST 1985)
Article 20. Place of arbitration
177. The text of article 20 as considered by the Commission was as follows:
[same as Fifth Draft, supra]
178. A proposal was made to add to the end of the second sentence of paragraph (1) the
words: “having regard to the circumstances of the arbitration, including the convenience of
the parties.” It was stated in support of the proposal that the venue of arbitration was of
considerable practical importance and that inclusion of the convenience of the parties as
a guiding factor could meet the concern felt by some persons, in particular in developing
countries, that an inconvenient location might be imposed on them. It was noted that the
concern was also felt in other countries.
P 607
P 608
179. Divergent views were expressed as to the appropriateness of the proposed wording.
Under one view the additional words were unnecessary since they expressed a principle
which was already implicit in article 19(3) [Art. 18 in the final text]. Particular opposition
was expressed to the words “including the convenience of the parties.” It was said to be
unbalanced to mention only some circumstances to be taken into consideration by the
arbitrators in determining the place of arbitration, since other factors such as the
suitability of the applicable procedural law, the availability of procedures for recognition
or enforcement of awards under the 1958 New York Convention or other multilateral or
bilateral treaties or, eventually, whether a State had adopted the model law might be of at
least equal importance. It was also noted that article 16(1) of the UNCITRAL Arbitration
Rules provided that in determining the place of arbitration the arbitrators were to have
regard to the circumstances of the arbitration but that the convenience of the parties was
not mentioned. It was suggested that a discrepancy between the two texts on that point
was undesirable.
180. However, the prevailing view was that the model law should refer to the convenience
of the parties as a circumstance of great importance in the determination of the place of
arbitration in international commercial arbitration. It was understood at the same time
that the convenience of the parties should be interpreted as including the above–
mentioned considerations regarding the applicable procedural law and the recognition
and enforcement of awards.
181. The Commission adopted article 20 as so amended.
P 608

References
1) As to whether the award must be signed at the place of arbitration, see p. 596 infra.
2) Under Article 20(2), the parties may provide by agreement that the tribunal is to meet
at the place of arbitration. It would appear that such an agreement must be more than
merely selecting a place of arbitration; it presumably must evince a specific intent
that the arbitral proceedings will be held at that place.
3) Seventh Secretariat Note, Art. 20, para. 3, p. 604 infra.
4) Id. para. 2, pp. 603–04 infra.

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 5) Article 1(2) states, “The provisions of this Law, except articles 8, 9, 35 and 36, apply only
if the place of arbitration is in the territory of this State.” Article 8 directs courts to
refer to arbitration matters that are the subject of a valid arbitration agreement;
Article 9 deals with party requests for interim measures of protection; and Articles 35
and 36 govern recognition and enforcement of arbitral awards.
6) Article 6 concerns the functions mentioned in the following Articles: Article 11
(appointment of arbitrators), Articles 13 and 14 (deciding on challenges and charges of
failure of an arbitrator to act), Article 16 (reviewing the arbitral tribunal's preliminary
findings on jurisdiction), and Article 34 (deciding requests to set aside an award).
Article 27 concerns court assistance in taking evidence.
7) See A.J. van den Berg, The New York Arbitration Convention of 1958: Toward a Uniform
Judicial Interpretation Annex B (1981) (thirty–six of the fifty–six states adhering to the
Convention as of 1 February 1981 had made this reservation). Thus, in order to ensure
the widest possible availability of enforcement under that Convention, it is prudent to
choose a Contracting State as the place of arbitration.
8) First Working Group Report, A/CN.9/216, paras. 53–54, p. 598 infra.
9) P. Sanders, Commentary on UNCITRAL Arbitration Rules, 2 Yearbook Commercial
Arbitration 172, 194 (1977).
10) A/CN.9/WG.II/WP.37, Art. 18(2), p. 598 infra.
11) Second Working Group Report, A/CN.9/232, para. 100, p. 599 infra.
Later, the Working Group decided to delete altogether the phrase “having regard to
the circumstances of the arbitration.” The report does not reflect the discussion which
led to that decision or state any reason, but it was presumably because it was thought
that the arbitral tribunal would in any case take all relevant considerations into
account. See Fourth Working Group Report, A/CN.9/245, para. 77, p. 601 infra. As
indicated below in text, the Commission restored the phrase.
12) See Commission Report, A/40/17, paras. 178–80, pp. 607–08 infra; Summary Record,
A/CN.9/SR.321, paras. 1–26, especially para. 24, pp. 604–07 infra; see also Sixth
Secretariat Report (Government Comments), A/CN.9/263/Add.1, Art. 20, p. 603 infra.
13) Commission Report, A/40/17, paras. 179–80, p. 608 infra.
14) A/CN.9/WG.II/WP.37, Art. 18, para. 1, p. 598 infra.
15) First Secretariat Note, A/CN.9/207, para. 71, p. 596 infra. The reference to the Hamburg
Rules is to the United Nations Convention on Carriage of Goods by Sea, 1978,
A/Conf.89/13 (Annex I), 17 I.L.M. 608.
16) First Draft, A/CN.9/WG.II/WP.37, Art. 21, p. 599 infra.
17) Fourth Working Group Report, A/CN.9/245, para. 78, p. 601 infra.
18) See Sixth Secretariat Report (Government Comments), A/CN.9/263, Art. 20, para. 2, p.
602 infra.
19) See commentary on Article 31, pp. 838–39 infra.
*) [Editors' Note: See U.N. Convention on Carriage of Goods by Sea, A/Conf.89/13 (Annex I),
17 I.L.M. 608 (Hamburg 1978).]
31) Discussion and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, paras. 53–55.
32) [Editors' Note: The full text of draft Article 19 and footnote 32 appear in the section on
Article 19, pp. 575–76 supra.]
33) Consideration of this sub–paragraph may be combined with the discussion on the
articles referred to therein. When discussing articles 20 to 24, the Working Group may
wish to consider to what extent these provisions should be mandatory [ … ].
37) This draft article is modeled on article 16(2) and (3) of the UNCITRAL Arbitration Rules.
16) Mention of this proviso may be deemed unnecessary in view of the fact that this article
is not included in the reference to mandatory provisions listed in article XV(1) [Art.
19(1) in the final text, p. 577 supra].
28) [Fifth Working Group Report,] A/CN.9/246, para. 167 [appearing in the subsection on
Article 1, paragraph 2, pp. 107–08 supra].
66) See remarks on the territorial scope of application of the model law in commentary to
article 1, paras. 4–6 [appearing in the subsection on Article 1, paragraph 2 in the final
text, pp. 113–14 supra].

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Document information
UNCITRAL Model Law, Chapter V, Article 21 [Commencement
Publication of arbitral proceedings]
A Guide to the UNCITRAL Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular
Model Law on International dispute commence on the date on which a request for that dispute to be referred to
Commercial Arbitration: arbitration is received by the respondent.
Legislative History and
Commentary
Commentary
Article 21 provides a rule for determining when the arbitral proceedings commence. Like
Organization many national laws on the question, (1) the Model Law leaves the manner of commencing
arbitration to the agreement of the parties as an initial matter. In the great majority of
United Nations Commission commercial arbitrations the question will be addressed by arbitral rules selected in the
on International Trade Law arbitration agreement. Where it is not, and the parties have not otherwise agreed, Article
21 provides that the arbitration commences when a request that the dispute be referred to
arbitration is received by the respondent. (2)
Promulgation All this is clear enough, but it does not explain why it was considered necessary for the
21 June 1985 Model Law to address the question at all. A partial answer is that the time or manner of
commencing the arbitration could conceivably be important in interpreting other Articles
of the law. (3) In addition, insofar as the Model Law aims to provide supplemental rules for
Legislation number parties who have not adopted a comprehensive set of arbitration rules, it should guide the
parties through every significant step of the proceedings. But what the drafters of Article 21
United Nations Document were primarily concerned with is an issue that is no where mentioned in the Model Law —
A/40/17, Annex I that is, the problem of defining the point in time when the limitation period for bringing a
legal action is considered to have been interrupted by the commencement of arbitral
proceedings. As the Secretariat pointed out, many legal systems accept the concept that
Bibliographic reference the running of the limitations period ceases when arbitral proceedings start, and a
definition of the commencement of those proceedings was therefore considered necessary
'UNCITRAL Model Law, in the Model Law. (4)
Chapter V, Article 21 P 610
[Commencement of arbitral P 611
proceedings]', in Howard M. The Working Group and Commission both considered at some length but did not adopt, a
Holtzmann and Joseph more ambitious proposal to bring uniformity to the field of prescription. Not all national
Neuhaus , A Guide to the arbitration laws currently provide that bringing arbitral proceedings will in fact toll the
UNCITRAL Model Law on applicable limitations periods. At its first session on the Model Law, the Working Group
International Commercial requested the Secretariat to prepare draft provisions and explanatory material on, inter
Arbitration: Legislative alia, the “notice of arbitration … and its effects on a prescription period.” (5) In its report
History and Commentary, on the subject, the Secretariat noted that in international transactions arbitration is
(© Kluwer Law International; frequently a substitute for judicial proceedings, and that it might be desirable to provide
Kluwer Law International that the commencement of arbitral proceedings would affect the running of limitations
1989) pp. 610 - 626 periods in the same way that commencing judicial proceedings did. (6) It drafted a
provision to provide that “[t]he limitation period in respect of a claim submitted to
arbitration shall cease to run when any party commences arbitral proceedings.” (7) The
Working Group declined to adopt this broader provision, however. The dominant view was
that, because it dealt with the consequences of commencement of arbitral proceedings, it
“touched upon questions which were outside the field of arbitral procedure,” with which
the Model Law was concerned. (8) It was also suggested that a comprehensive rule on
tolling of limitations periods would have to be far more detailed, and that it might then
conflict with existing rules on prescription. (9)
The matter was raised again during the Commission's deliberations. The proposal
advanced there was somewhat more elaborate: not only would it have ensured that the
commencement of arbitral proceedings had the same legal effect on the prescription
period as if the dispute had been lodged with a court, but it also would have regulated the
period of time in which a claimant could file the claim with a court in cases in which it was
decided after arbitral proceedings had been commenced that the arbitral tribunal had no
jurisdiction over the dispute. (10) This kind of provision is found in many legal systems and
in the UNCITRAL Convention on the Limitation Period in the International Sale of Goods.
P 611 (11) The Commission declined to adopt this provision, essentially for the same reasons that
P 612 had been found persuasive in the Working Group: the question was said to be a matter
of substantive law in some legal systems and therefore outside the scope of a law on
arbitral procedure, and there was perceived to be a danger of conflict or inconsistency
with the often complex principles of domestic prescription law. (12)
Article 21 thus ended up defining the moment when the arbitral proceeding commences,
but leaving the question of the effect on the period of limitations to the applicable law on
that question. Nevertheless, the Commission recognized that the problem of the tolling of
limitations period in international arbitration was an important one and that uniformity
was desirable. It sought to draw the attention of States to the problem and invited them to
consider enacting “provisions which, in harmony with the principles and norms of the given
legal system, would place arbitral proceedings on equal footing with court proceedings” in
this respect. (13)

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 Another question with which the Working Group grappled was the problem of ensuring that
a request for arbitration identified the claim with enough specificity. The Secretariat's
initial suggestion was to include the phrase “provided that such a request sufficiently
identifies the claim.” (14) The Working Group decided to delete the word “sufficiently”
because “it might cause unnecessary disputes in its interpretation.” (15) It also decided
that casting the qualification in the form of a proviso was redundant because “a request for
arbitration in order to commence arbitral proceedings necessarily had to identify the
claim and … vague requests for arbitration could not commence arbitral proceedings.” (16)
Evidently still believing that it would be wise for the text of the Law to encourage precision
in the request for arbitration, the Secretariat then proposed either the adjective
“specified” or “particular” before the word “dispute,” and the Working Group chose the
latter. (17)
In short, the drafters believed that a request for arbitration must identify the dispute in
question with some specificity. The precise form of the request is not, however, prescribed.
As the Secretariat noted, it should make no difference whether the request is called
“request,” “notice,” “application,” “statement of claim,” or some other name, as long as its
purpose is clear. (18)
P 612
P 613
One other point that gave rise to some concern in the Commission is whether the Article
adequately addresses the commencement of proceedings that are administered by an
arbitral institution. A specific proposal was offered to provide that such proceedings begin
when the request for arbitration is received by the arbitral institution (rather than by the
respondent). (19) The proposal was not adopted, because it was felt that no single
approach would apply to all cases. Also, and more important, it was noted that the rules of
arbitral institutions, which will have been agreed upon by the parties, will virtually always
contain their own provision to define commencement of the proceedings. (20)

Legislative History
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
IV. Arbitral procedure
[ .… ]
8. Further issues of arbitral procedure
72. The Working Group was agreed that, in addition to the procedural issues contained in
questions 4–1 to 4–14, (*) there were other issues of arbitral procedure possibly to be dealt
with in the model law. The issues suggested for consideration were: [ … ] notice of
arbitration (cf. art. 3 of the UNCITRAL Arbitration Rules), and its effects on a prescription
period, [ … ] The Working Group requested the Secretariat to prepare for its consideration
draft provisions on these issues, with explanatory notes if appropriate. (**)
P 613
P 614
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Arbitral procedure
[ .… ]
Further issues of arbitral procedure
23. The Working Group noted that at its third session it had agreed that there were other
issues of arbitral procedure that might be dealt with in the model law. (5) Together with
proposals accepted by the Working Group at its fourth session [i.e., this session] the issues
still to be considered for possible inclusion in the model law are:
— The point of time at which the limitation period is considered to have been
interrupted by the commencement of an arbitration proceeding; [ … ].
THIRD SECRETARIAT NOTE
POSSIBLE FURTHER FEATURES OF A MODEL LAW
A/CN.9/WG.II/WP.41 (12 JANUARY 1983)
B. Commencement of arbitral proceedings and cessation of running of limitation period
(3)

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 12. In many international transactions arbitration is a substitute for judicial proceedings as
the means of settling disputes. It might, therefore, be desirable that the commencement of
arbitral proceedings should affect the running of limitation periods in the same manner as
the commencement of judicial proceedings. This approach is accepted in many legal
systems. However, the moment of the cessation of the running of a limitation period is not
necessarily uniform.
13. Divergent answers with regard to the decisive moment for the cessation of the running
of the limitation period mainly stem from the fact that national laws often leave the
manner of commencing arbitral proceedings to the agreement of parties. The arbitration
rules which parties have adopted may provide, for example, that arbitral proceedings
commence by a request for the appointment of arbitrators, by a request to submit the
P 614 claim to arbitration, by seizing the arbitrator designated in the arbitration agreement, or
P 615 by serving the statement of claim. No comparable divergency arises in relation to the
commencement of judicial proceedings as there is normally a standard procedure in every
jurisdiction for commencing judicial proceedings and the actual step which is relevant for
the cessation of the running of limitation periods is clearly settled as a matter of
procedural law. It is submitted that the model law should also respect the freedom of the
parties to agree on the manner for commencing arbitral proceedings and provide
supplementary rules for cases where the parties failed to agree.
14. The validity of this approach has been recognized by the Convention on the Limitation
Period in the International Sale of Goods [A/Conf.63/15] (New York, 1974) (hereinafter
referred to as Prescription Convention). Paragraph 1 of Article 14 reads:
“Where the parties have agreed to submit to arbitration, the limitation period
shall cease to run when either party commences arbitral proceedings in the
manner provided for in the arbitration agreement or by the law applicable to
such proceedings.”
15. Furthermore, with regard to the question as to how the model law should provide a
supplementary rule for cases where the parties have failed to make provision for the
manner of commencing arbitral proceedings, paragraph 2 of Article 14 or the Prescription
Convention suggests an approach:
“In the absence of any such provision, arbitral proceedings shall be deemed to
commence on the date on which a request that the claim in dispute be referred
to arbitration is delivered at the habitual residence or place of business of the
other party or, if he has no such residence or place of business, then at his last
known residence or place of business.”
16. This provision may also be regarded as an indication of a preferred approach for
arbitration rules. Thus, Article 3 of the UNCITRAL Arbitration Rules adopts a similar
approach but in a more elaborated manner. The apparent difference in the degree of
detail in the provision between paragraph 2 of Article 14 of the Prescription Convention
and Article 3 of the UNCITRAL Arbitration Rules may be partly due to the fact that the
former is a rule of general applicability to all arbitral proceedings while the latter is a part
of a concrete set of rules which will be applied to a particular arbitration by the
agreement of parties.
17. The following draft provisions may form a basis for discussion:
Article B [Art. 21 in the final text]
(1) The limitation period in respect of a claim submitted to arbitration shall cease to run
when any party commences arbitral proceedings in the manner provided for in the
arbitration agreement.
(2) In the absence of any such agreement, the arbitral proceedings shall be deemed to
commence on the date on which a request that the claim in dispute be referred to
P 615 arbitration is delivered at the habitual residence or place of business of the other
P 616 party or, if he has no such residence or place of business, then at his last known
residence or place of business [provided that such a request sufficiently identifies
the claim]. (4)
18. In this context, the Working Group may wish to consider the appropriateness of
regulating in the model law the minimum contents of a request of a party to the other
party that the claim in dispute be referred to arbitration. (5) This question is, in some
respects, connected with the next item to be discussed, i.e. minimum contents of the
statement of claim and the statement of defence.
[Editors' Note: The paragraphs discussing the minimum contents of the statements of claim
and defence appear in the section on Article 23, pp. 651– 52 infra.]
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
I. Consideration of [Third Secretariat Note]
[ .… ]
B. Commencement of arbitral proceedings and cessation of running of limitation period

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 21. The Working Group considered the question whether the model law should deal with
issues relating to the cessation of the running of limitation periods by instituting
arbitration proceedings (on the basis of a note by the Secretariat, [Third Secretariat Note,]
WP.41, paras. 12–18 and draft article B). Divergent views were expressed as to whether such
a rule should merely define the point of time at which a limitation period, if provided in a
national law, would cease to run or whether the rule, for the sake of unification of laws,
should itself regulate the cessation of the running of any limitation period. Some support
was expressed for a broader rule which would indicate the cessation of the running of a
limitation period as a legal consequence of the commencement of arbitral proceedings.
22. However, there was wide support in the Working Group that the model law should
contain a rule which would define the moment of the commencement of arbitral
proceedings. It was pointed out in support of that view that such a rule was sufficient for
P 616 the model law and that any consequences of the commencement of arbitral proceedings,
P 617 such as cessation of the running of the limitation period, touched upon questions which
were outside the field of arbitral procedure and should therefore not be dealt with in the
model law. It was also felt that a rule on the cessation itself, in order to be useful and
workable, would have to be much more elaborate and settle many details which, in turn,
could easily be in conflict with existing laws on prescription.
23. The Working Group requested the Secretariat to prepare a draft provision in the light of
the discussion at this session.
THIRD DRAFT
A/CN.9/WG.II/WP.44 (5 JULY 1983)
B. Commencement of arbitral proceedings (5)
Article B [Art. 21 in the final text]
Unless otherwise agreed by the parties, the arbitral proceedings shall be deemed to
commence on the date at which a request that a dispute be referred to arbitration is
received (6) by the respondent provided that such a request [sufficiently] identifies the
claim.
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
I. Consideration of [Third Draft] (A/CN.9/WG.II/WP.44)
[ .… ]
B. Commencement of arbitral proceedings
24. The text of article B [Art. 21 in the final text] as considered by the Working Group was as
follows:
[same as Third Draft, supra].
25. The Working Group was of the view that article B defining the moment of the
commencement of arbitral proceedings was useful.
26. There was wide support for the deletion of the word “sufficiently” placed between
square brackets because it might cause unnecessary disputes in its interpretation.
P 617
P 618 27. It was observed that a request for arbitration in order to commence arbitral
proceedings necessarily had to identify the claim and, since vague requests for arbitration
could not commence arbitral proceedings, the requirement that a request for arbitration
had to identify the claim should not be cast in the form of a proviso.
28. The prevailing view in the Working Group was that a general rule, modelled on article
2(1) of the UNCITRAL Arbitration Rules, on the date when a notice or other communication
is deemed to have been received was useful and should be included in the model law.
[Editors' Note: Such a general rule was ultimately included in Article 3 of the final text. See
the section on that Article, pp. 184–95 supra, for further materials on this question.]
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 21. Commencement of arbitral proceedings
Unless otherwise agreed by the parties, the arbitral proceedings [shall be deemed to]
commence on the date at which a request that a [particular] [specified] dispute be
referred to arbitration is received by the respondent [provided that such a request
identifies the claim].
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 21

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 66. The text of article 21 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
67. The Working Group adopted that article in the following modified form:
“Unless otherwise agreed by the parties, the arbitral proceedings in respect of a
particular dispute commence on the date on which a request that that dispute
be referred to arbitration is received by the respondent.”
FIFTH DRAFT
A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 21. Commencement of arbitral proceedings
Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular
dispute commence on the date on which a request for that dispute to be referred to
arbitration is received by the respondent.
P 618
P 619
SIXTH SECRETARIAT NOTE
ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 21. Commencement of arbitral proceedings
1. Czechoslovakia suggests adding at the end of this article the following text: “In case of
delivery of the request by mail the arbitral proceedings commence on the date of the
post-stamp of the dispatching post office.”
2. Observing that the date of commencement of arbitral proceedings has great significance
for the limitation or extinction of a claim, Czechoslovakia suggests adding the following
provision after article 21:
“(1) A request for the dispute to be referred to arbitration filed with arbitrators
or with a permanent arbitral institution has the same legal effects as if a
request in this matter was filed with a court.
(2) Where the arbitral tribunal rules that it has no jurisdiction or where the
award is set aside, and the party thereon files a new request with a court
within thirty days following the receipt of the ruling rejecting the
jurisdiction or the receipt of the judgement setting aside the award,
neither limitation nor extinction of his claim by lapse of time may be
pleaded against him.”
3. Japan notes that under its law, and presumably also under the law of other countries, in
the case of arbitration administered by a permanent arbitral institution a prescription
period ceases to run at the time when a request for arbitration is submitted to such
institution. Accordingly, Japan proposes the following addition to this article:
“In the case of arbitration administered by an arbitral institution, the arbitral
proceedings commence on the date on which a request for arbitration is
received by the arbitral institution.”
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 21. Commencement of arbitral proceedings
Canada observes that this article is illustrative of the reason why the matter of deemed
receipt in article 2(e) [Art. 3 in the final text] is very important for each jurisdiction to
resolve (as to Canada's comments on article 2(e), see paragraph 3 of the compilation of
comments on article 2 [appearing in the section on Article 3, p. 190 supra]). It is suggested
that the words “or deemed to have been received” be inserted in article 21 between the
words “is received” and the words “by the respondent.”
P 619
P 620
SEVENTH SECRETARIAT NOTE
ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1985)
Article 21. Commencement of arbitral proceedings
[ .… ]

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 1. Article 21 provides a rule for determining the point of time at which the arbitral
proceedings in respect of a particular dispute commence. Such determination is relevant
not only for the purposes of the model law itself but also for legal consequences regulated
in other laws, e.g., cessation or interruption of any limitation period.
2. The relevant point of time is the date on which a request for the particular dispute to be
referred to arbitration is received by the respondent. (67) Such request, whether in fact
called “request,” “notice,” “application” or “statement of claim,” must identify the
particular dispute and make clear that arbitration is resorted to thereby and not, for
example, indicate merely the intention of later initiating arbitral proceedings.
3. As stated in the text, the parties may derogate from this provision and select a different
point of time. To take an example which is not uncommon in institutional arbitration, they
may agree, by reference to the institutional rules, that the relevant date is the one on
which the request for arbitration is received by the arbitral institution.
SUMMARY RECORD
A/CN.9/SR.321, .332
[13 June 1985, 9:30 A.M., A/CN.9/SR.321]
Article 21. Commencement of arbitral proceedings
29. Mr. RUZICKA (Czechoslovakia) drew attention to his country's written proposal
concerning limitation of claims, reproduced in [the Sixth Secretariat Note (Government
Comments),] document A/CN.9/263, [ … ] (article 21), para. 2). His delegation considered
that the date of the start of the arbitration had extremely important consequences for the
extinction of a party's claim and that it would be useful if the model law made them clear.
30. Mr. ROGERS (Australia) said that the proposal would involve changes in national
statutory limitations which went beyond the functions of the model law. While
appreciating the thought that had gone into the proposal he felt it would be
disadvantageous to adopt it.
31. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that his delegation welcomed the
idea underlying the Czechoslovak proposal, which took account of practical situations and
sought to establish a unified rule on prescription. If arbitral proceedings began shortly
P 620 before the expiry of the claimant's time–limit for bringing his claim and the respondent
P 621 raised the question of jurisdiction, it might be only after a long delay that the
arbitrators were found not to have jurisdiction; the claimant would then be debarred from
taking his claim to a court because the time–limit for doing so would have expired. The
problem was dealt with expressis verbis in very few existing national legislations and it
often proved difficult to settle. For that reason the matter had been explicitly regulated in
the 1972 Moscow Convention on arbitration [Convention on the Decision by way of Arbitration
of Civil Litigations Resulting from Relations of Economic and Scientific-technological
Cooperation, Art. V(2), 13 I.L.M. 5, 9]. He thought that most delegations would agree that it
would be useful to incorporate a clear rule on the subject in the model law as well. If the
Commission accepted the Czechoslovak proposal in principle, it would not be difficult to
draft wording suitable for that purpose.
32. Mr. SCHUETZ (Austria) said that the Working Group on International Contract Practices
had decided that the model law should not include a provision along the lines of the
Czechoslovak proposal precisely because views on the matter differed so much. He agreed
with the representative of Australia that the issue was too closely connected with material
law for it to be included in the model law.
33. Mr. MOELLER (Observer for Finland) said that he had some sympathy for the
Czechoslovak proposal. Nevertheless, if the provisions suggested were included in the
model law, the Commission would be exceeding its mandate and venturing into an area
where there were big differences among legal systems.
34. Mr. ROEHRICH (France) said that he understood the concerns expressed by the
representatives of Czechoslovakia and the Soviet Union but did not think it would be
feasible to include the proposed wording in the model law. Perhaps the Commission's
report could draw the attention of Governments to the possible need for regulating the
matter. Legislators could then, if they wished, adopt a unified provision on the subject for
their internal law and for international commercial arbitration.
35. Mr. STROHBACH (German Democratic Republic) said that his delegation supported the
Czechoslovak proposal, in which the paragraph referring to limitation was particularly
important. He noted that the aim of the model law was to promote international
commercial arbitration and it was appropriate, therefore, that it should include such a
provision.
36. Mr. BOGGIANO (Observer for Argentina) said that his delegation too supported the
Czechoslovak proposal, although it was not sure whether it related to material law or
procedural law. The proposal would promote the effectiveness of the arbitration system
and help to protect the substantive rights of the parties.
37. Mr. SONO (Secretary of the Commission) noted that the 1974 Convention on the
Limitation Period in the International Sale of Goods [A/Conf.63/15 (New York)] did not take

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 a position as to whether limitation was a question of substance or procedure. That
P 621 Convention would shortly enter into force, at almost the same time as the 1980 United
P 622 Nations Convention on Contracts for the International Sale of Goods, [A/Conf.97/18
(Vienna),] which raised arbitration to the level of normal judicial proceedings and had
indirectly helped to enhance the popularity of international commercial arbitration. The
1974 Convention provided that if a claim was filed, through either judicial or arbitration
proceedings, the period of limitation ceased to run. The underlying idea of the second
paragraph of the Czechoslovak proposal corresponded to article 17 of the 1974 Convention.
38. Mr. RAMADAN (Egypt) said that he understood the reasons for the Czechoslovak
proposal but thought that the issue it covered was better left to the sphere of material law.
His delegation supported the Japanese proposal mentioned in [the Sixth Secretariat Note
(Government Comments),] document A/CN.9/263 ([ … ] (article 21), para. 3).
39. Mr. GRAHAM (Observer for Canada) said that, for the reasons given by a number of
previous speakers, his delegation had difficulty in accepting the Czechoslovak proposal.
Furthermore, it represented a departure from article 1 as approved by the Commission; it
was similar in nature to the proposal which had been made in document
A/CN.9/XVIII/CRP.5 for a new paragraph (4) to article 1, a proposal which the Commission
had rejected. [This proposal appears in a footnote to the Summary Record, A/CN.9/SR.319,
para. 41, in the subsection on Article 1, paragraph 5, pp. 145–46 supra.]
40. Mr. AYLING (United Kingdom) said that the Working Group had considered the matter of
prescription and had decided, with his delegation's support, that it would be wrong to
include it in the model law. The Czechoslovak proposal had merit and the problem it
raised was certainly a real one, but it should not be dealt with in the model law.
41. Mr. SZURSKI (Observer for Poland) said that his delegation supported the Czechoslovak
proposal. It would promote the Commission's purpose, which was to enhance the
effectiveness of international commercial arbitration.
42. Mr. VOLKEN (Observer for Switzerland) said that he could not understand the
reservations which some delegations had concerning the Czechoslovak proposal. The
problem was one often encountered in practice and, since the purpose of the model law
was to promote international commercial arbitration, the Commission should try to deal
with practical problems. His delegation could accept the Czechoslovak proposal but
thought that it might be better for it to appear as a separate article rather than as part of
article 21.
43. Mr. de HOYOS GUTIERREZ (Cuba) said that his delegation supported the principle
expressed in the Czechoslovak proposal but thought that the wording needed to be
reworked in the drafting committee.
44. Mrs. DASCALOPOULOU-LIVADA (Observer for Greece) said that her delegation could not
support either part of the Czechoslovak proposal because both portions conflicted with
domestic legislation on a matter lying outside the scope of the model law.
P 622 45. Mr. SAWADA (Japan) said that his delegation would be unable to accept the
P 623 Czechoslovak proposal, which could cause problems with domestic laws of some
countries. He pointed out that the title of article 21 was “Commencement of arbitral
proceedings” and he commended to the Commission his country's written proposal which
dealt precisely with that point and had already been supported by the representative of
Egypt.
46. Mr. BARRERA GRAF (Mexico) said that his delegation preferred the existing text of the
article. The Czechoslovak proposal raised the complex problem of prescription, which
could hardly be dealt with in a model law. The Working Group had come to that conclusion
and there was no need for the debate on the subject to be repeated in the Commission.
47. Mr. ENAYAT (Observer for the Islamic Republic of Iran) said that, for the reasons given by
previous speakers and in the light of the explanation given by the Secretary, he had no
difficulty with paragraph 2 of the Czechoslovak proposal. He did, however, have doubts
about the Japanese proposal.
48. Mr. PENKOV (Observer for Bulgaria) said that his delegation endorsed the statements
made by the representative of the Soviet Union and by other speakers in support of the
Czechoslovak proposal.
49. Mr. LOEFMARCK (Sweden) said that he understood the purpose of paragraph (1) of the
Czechoslovak proposal but he thought that the provision should cover questions of
limitation only: he could not accept that the request itself should have the same effects as
if filed with a court. Subject to that qualification his delegation could support the
provision. He had no difficulty in accepting paragraph (2) of the proposal.
50. Mr. ILLESCAS ORTIZ (Spain) said that his delegation could not accept the Czechoslovak
proposal. It would be very difficult to establish uniform international practice in such a
complex matter as prescription.
51. Mr. HOLTZMANN (United States of America) said that the provision proposed by
Czechoslovakia would be observed in the United States under existing laws. The provision
was a valuable one but should not be included in the model law at such a late stage.

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 52. Mr. MATHANJUKI (Kenya) said that the Czechoslovak proposal did not cover all possible
cases.
53. The Japanese proposal made an undesirable distinction between ad hoc arbitration
and arbitration by a recognized institution, which was not consistent with the new article 3
and the rest of article 21.
54. Mr. SEKHON (India), Mr. JOKO-SMART (Sierra Leone), Mr. ABOUL-ENEIN (Observer, Cairo
Regional Centre for Commercial Arbitration) and Mr. AYLING (United Kingdom) expressed a
preference for the original version of the text.
55. Mr. MTANGO (United Republic of Tanzania) suggested that the widespread support
expressed for the Czechoslovak proposal should be reflected in the report.
56. Mr. RUZICKA (Czechoslovakia) withdrew his delegation's proposal for article 21. He said
he hoped that the Commission might find time to resume discussion of the matter at a
later stage.
P 623
P 624
57. Mr. LEBEDEV (Union of Soviet Socialist Republics), supported by Mr. HOLTZMANN
(United States of America), endorsed the Tanzanian suggestion and hoped that States
adopting the model law would take the ideas underlying the Czechoslovak proposal into
consideration.
58. Mr. SAWADA (Japan) said that his Government's proposal did not intend to discriminate
between ad hoc arbitration and arbitration by arbitral institutions. It was simply that the
date of commencement of arbitration needed to be fixed in the latter case as well,
because it affected the prescription period.
59. Mr. MOELLER (Observer for Finland) said that the Japanese proposal was unacceptable.
There were many types of arbitral institution with their own rules about the
commencement of arbitral proceedings, which would override the provisions of the model
law.
60. Mr. ROEHRICH (France) said that he too found the Japanese proposal unacceptable,
since some arbitral institutions did not in fact arbitrate themselves but were merely
responsible for making the arrangements. In that case, there would be delay before the
respondent was informed of the existence of arbitral proceedings.
61. Mr. de HOYOS GUTIERREZ (Cuba) said that the Japanese proposal would be acceptable
in his country because it was consistent with existing laws.
62. Mr. HOELLERING (United States of America) said that the Japanese proposal would at
least establish beyond doubt that a request for arbitration had been made. He
nevertheless agreed with the French representative and the Observer for Finland that
receipt of the request for arbitration by the arbitral institution would not mark the
beginning of the arbitral process under all systems.
63. Mrs. VILUS (Yugoslavia) said that the Japanese proposal would provide an objective
indication of the commencement of arbitral proceedings and her delegation was therefore
prepared to accept it.
64. Mr. STROHBACH (German Democratic Republic) pointed out that the Japanese proposal
was not consistent with the principle of party autonomy expressed in the existing text of
the article and in fact made the article a mandatory provision.
65. Mr. SAWADA (Japan) withdrew his Government's proposal.
66. The CHAIRMAN [Mr. PÃES de BARRO LA?S (Brazil)] said that it seemed to be the wish of
the Commission to keep article 21 as it stood and to make a reference in the report to the
issue raised by the Czechoslovak proposal.
67. It was so agreed.
[13 June 1985, 2:00 p.m., A/CN.9/SR.332]
Articles 19 to 23 [as revised by the Drafting Group]
57. Articles 19 to 23 were adopted without change.
P 624
P 625
COMMISSION REPORT
A/40/17 (21 AUGUST 1985)
Article 21. Commencement of arbitral proceedings
182. The text of article 21 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
183. A proposal was made that had two parts. The first part would give a request which
referred a dispute to arbitration the same legal effect as if the request had been filed with
a court. The second part of the proposal would permit a claimant who commenced an
action in court within a short period of time following receipt of a ruling by an arbitral

288
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 tribunal rejecting jurisdiction or following receipt of a judgment setting aside an award to
be free of the plea that the period of limitation had run.
184. It was suggested that the problem was important. The proposal would enhance the
effectiveness of international commercial arbitration by providing a claimant in
arbitration a degree of protection against the running of the period of limitation
equivalent to that enjoyed by the plaintiff in a court proceeding. A number of legal systems
had rules such as the one proposed while many legal systems did not, and uniformity in
that respect would be useful. It was noted that a similar result was achieved by articles
14(1) and 17 of the 1974 Convention on the Limitaton Period in the International Sale of
Goods, [A/Conf.63/15 (New York),] which had been elaborated by the Commission. Those
provisions read as follows:
Article 14
“(1) Where the parties have agreed to submit to arbitration, the limitation
period shall cease to run when either party commences arbitral
proceedings in the manner provided for in the arbitration agreement or by
the law applicable to such proceedings.”
Article 17
“(1) Where a claim has been asserted in legal proceedings within the
limitation period in accordance with articles 13, 14, 15 or 16, but such legal
proceedings have ended without a decision binding on the merits of the
claim, the limitation period shall be deemed to have continued to run.
(2) If, at the time such legal proceedings ended, the limitaton period has
expired or has less than one year to run, the creditor shall be entitled to a
period of one year from the date on which the legal proceedings ended.”
185. However, the prevailing view was not to include in the model law a provision on the
proposed issues, although it was recognized that the problem existed and that a unified
solution of the problem would be welcome. Such a provision touched upon issues regarded
by many legal systems as matters of substantive law and might therefore be considered to
be outside the scope of the model law. In some countries periods of limitation were to be
found in a number of different statutes and, in some cases, were subject to different
P 625 domestic legal rules. It would be anomalous and a source of confusion to have a special
P 626 rule for the effects on the limitation period arising out of the commencement of an
international commercial arbitration. As a result of those factors the elaboration of a rule
of the proposed type, in order to be acceptable in different legal systems, required a close
study of the issues involved, which, for lack of time, could not be undertaken during the
current session.
186. It was especially for that last reason that the Commission, after deliberation, decided
not to adopt the proposal. It was agreed, however, that the attention of States should be
drawn to that problem of considerable practical importance with a view to inviting
consideration of enacting provisions which, in harmony with the principles and norms of
the given legal system, would place arbitral proceedings on equal footing with court
proceedings in that respect.
187. The Commission did not adopt a proposal to include in article 21 a rule providing that
in the case of arbitration administered by an arbitral institution the arbitral proceedings
commenced on the date on which a request for arbitration was received by the arbitral
institution. While some support was expressed for the proposal, the prevailing view was
that, as a result of the wide variety of rules used by different arbitral institutions for the
commencement of arbitral proceedings, including the fact that in some rules the request
for arbitration need not be received by the institutions, it would be difficult to formulate
one approach to the issue. It was noted that, since article 21 was subject to contrary
agreement by the parties, the purpose of the above proposal could be achieved by a
provision in the arbitration rules, as is often found in standard rules of arbitral institutions,
to the effect that the arbitral proceedings commenced on the date on which a request for
arbitration was received by the arbitral institution.
P 626

References
1) See Third Secretariat Note, A/CN.9/WG.II/WP.41, para. 13, pp. 614–15 infra.
2) The term “received” is defined in Article 3 of the Law. Article 21's supplementary rule
regarding commencement of arbitration follows the approach adopted by Article 3(2)
of the UNCITRAL Arbitration Rules.
3) See, e.g., Article 8(b) (“Where [a court action] has been brought, arbitral proceedings
may nevertheless be commenced or continued …” (emphasis added)); Article 30(1) (“If,
during arbitral proceedings, the parties settle the dispute …” (emphasis added)).
4) See Third Secretariat Note, A/CN.9/WG.II/WP.41, paras. 12–13, pp. 614–15 infra; see also
Commission Report, A/40/17, para. 184, p. 625 infra.

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 5) First Working Group Report, A/CN.9/216, para. 72, p. 613 infra; see also Second Working
Group Report, A/CN.9/232, para. 23, p. 614 infra.
6) Third Secretariat Note, A/CN.9/WG.II/WP.41, para. 12, p. 614 infra.
7) Id. para. 17, pp. 615–16. This provision was based on Article 14(1) of the Convention on
the Limitation Period in the International Sale of Goods, A/Conf.63/15 (New York 1974),
which had been drafted under the auspices of UNCITRAL. The Secretariat's draft also
provided rules, similar to those in the final text of Article 21, to determine when the
arbitral proceedings “commence.”
8) Third Working Group Report, A/CN.9/233, para. 22, p. 616 infra.
9) Id.
10) See Commission Report, A/40/17, para. 183, p. 625 infra; Sixth Secretariat Note
(Government Comments), A/CN.9/263, Art. 21, para. 2, p. 619 infra; Summary Record,
A/CN.9/SR.321, para. 29, p. 620 infra.
11) See Commission Report, A/40/17, para. 184, p. 625 infra, quoting Article 17 of that
Convention.
12) Id. In addition, the Commission cited a lack of time to deal with the matter.
13) Commission Report, A/40/17, para. 186, p. 626 infra.
14) Third Secretariat Note, A/CN.9/WG.II/WP.41, para. 17, p. 615 infra; Third Draft,
A/CN.9/WG.II/WP.44, Art. B, p. 617 infra.
15) Fourth Working Group Report, A/CN.9/245, para. 26, p. 617 infra.
16) Id. para. 27.
17) Fourth Draft, A/CN.9/WG.II/WP.48, Art. 21, p. 618 infra; Fifth Working Group Report,
A/CN.9/246, para. 67, p. 618 infra.
18) Seventh Secretariat Note, A/CN.9/264, Art. 21, para. 2, p. 620 infra.
19) Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 21, para. 3, p. 619
infra; Commission Report, A/40/17, para. 187, p. 626 infra.
20) See Commission Report, A/40/17, para. 187, p. 626 infra; Seventh Secretariat Note,
A/CN.9/264, Art. 21, para. 3, p. 620 infra.
*) [Editors' Note: This refers to the “questions for discussion” suggested by the Secretariat in
the Second Secretariat Note. The cited questions appear in the sections of this book on
Articles 9 (interim measures), 17 (interim measures), 19 (rules of procedure), 20 (place of
arbitration), 25 (default), 26 (experts), and 27 (court assistance in taking evidence), and in
the section on Matters Not Addressed in the Final Text (representation and assistance).]
**) [Editors' Note: See also paragraph 58 of this document, which considers the general
question of the extent to which the Model Law should include “supplementary rules on
arbitral procedure.” It appears in the section on Article 19, p. 574 supra.]
5) [First Working Group Report,] A/CN.9/216, para. 72. [Editors' Note: This Report addressed
the Working Group's first session on the Model Law; the Working Group's previous two
sessions had been concerned with other matters.]
3) The decision to consider this subject was adopted at the third session of the Working
Group; see [First Working Group Report,] A/CN.9/216, para. 72.
4) The reference to the residence or places of business could be left out if a general rule
on delivery of notices, notifications, communications or proposals were included in the
model law. [Editors' Note: See Article 3 of the Model Law.]
5) E.g.,
(a) a reference to the arbitration agreement that is invoked,
(b) a reference to the contract out of or in relation to which the dispute arises, and
(c) the general nature of the claim and the relief sought.
Cf. UNCITRAL Arbitration Rules, Art. 3, para. 3.
5) Discussion and conclusions of the Working Group in [the Third Working Group Report,]
A/CN.9/233, paras. 21–23; see also note by the Secretariat, [Third Secretariat Note,]
A/CN.9/WG.II/WP.41, paras. 12–18.
6) It may be desirable to include in the model law a general rule on the date when any
notice or other communication is deemed to have been received. Such a rule,
modelled on article 2(1) of the UNCITRAL Arbitration Rules, might read as follows: “For
the purposes of this Law, any written communication is deemed to have been received
if it is physically delivered to the addressee or if it is delivered at his place of
business, habitual residence or mailing address, or, if none of these can be found after
making reasonable inquiry, then at the addressee's last-known place of business or
residence. Communication shall be deemed to have been received on the day it is so
delivered.”
67) As to what constitutes “receipt” and when a communication is received or deemed to
be received, see article 2(e) [Art. 3 in the final text].

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Document information
UNCITRAL Model Law, Chapter V, Article 22 [Language]
Publication (1) The parties are free to agree on the language or languages to be used in the arbitral
A Guide to the UNCITRAL proceedings. Failing such agreement, the arbitral tribunal shall determine the
Model Law on International language or languages to be used in the proceedings. This agreement or
Commercial Arbitration: determination, unless otherwise specified therein, shall apply to any written
Legislative History and statement by a party, any hearing and any award, decision or other communication
Commentary by the arbitral tribunal.
(2) The arbitral tribunal may order that any documentary evidence shall be
accompanied by a translation into the language or languages agreed upon by the
Organization parties or determined by the arbitral tribunal.

United Nations Commission Commentary

on International Trade Law
The determination of the language to be used in an arbitration is a subject that is not
commonly addressed in national arbitration laws. (1) It is nonetheless a question of
Promulgation considerable importance to the cost, efficiency, and fairness of the arbitration, and the
Working Group thought it advisable to state explicitly that the matter is controlled by the
21 June 1985 discretion of the parties and the arbitral tribunal and not, for example, by the statutes
designating the official language at the place of arbitration. (2) Article 22 is modeled on
Article 17 of the UNCITRAL Arbitration Rules and adopts much of the wording of that
Legislation number provision. (3)
United Nations Document Paragraph 1. The first sentence of the Article — stating that the parties are free to agree on
A/40/17, Annex I the language or languages to be used — was agreed on at the outset and was not
subsequently discussed. (4) It must, of course, be read in conjunction with the third
sentence and with the second paragraph, which define the presumptive scope of the
parties' agreement. Thus, “unless otherwise specified therein,” the agreement applies to
Bibliographic reference written statements by a party, to hearings, and to communications by the arbitral tribunal.
'UNCITRAL Model Law, The agreement presumably will not apply to documentary evidence, which, under the
Chapter V, Article 22 terms of paragraph 2, is left to the discretion of the tribunal. In the light of the suggestion
[Language]', in Howard M. in paragraph 1 that parties may stipulate the scope of the agreement, paragraph 2 should
Holtzmann and Joseph P 628 probably be read as nonmandatory. That is, if the parties specifically agree that
Neuhaus , A Guide to the P 629 documentary evidence should — or should not — be translated, the arbitrators should
UNCITRAL Model Law on presumably be deemed to lack discretion on the point. A contrary reading would make
International Commercial little sense: because the parties clearly can control whether written statements are
Arbitration: Legislative translated, there is no reason they should not be able to do so as to documentary
History and Commentary, evidence. (5)
(© Kluwer Law International; Article 22 does not state at what point in the proceedings the parties must agree on, or the
Kluwer Law International arbitral tribunal must determine, the language to be used. The Secretariat Note that first
1989) pp. 628 - 645 discussed the proposed Article suggested that the parties should be free to agree “either
in the arbitral agreement or at some time before or even after the commencement of
arbitral proceedings.” (6) In Article 17 of the UNCITRAL Arbitration Rules, the arbitral
tribunal is instructed to decide on language “promptly after its appointment.” This concept
is not explicitly incorporated into Article 22, and, except for the Secretariat's comment,
the question is not discussed in the legislative history. The exigencies of arbitral procedure
would suggest, however, that any agreement or determination should be made early.
The bulk of the discussion during the Commission's consideration of Article 22 focused on
the second sentence of paragraph 1, which provides for the arbitral tribunal to choose the
language to be used when the parties have not reached an agreement on the point. The
primary concern was that the arbitral tribunal might choose the language of one of the
parties but not of the other. One proposal was to require that all the languages of the
parties be used where the parties had not either come to a different agreement or
expressly asked the tribunal to choose the language. (7) Another suggestion was to require
that a party always be permitted to present its own case in its own language, with the costs
of translation and interpretation into the language of the tribunal included in the costs of
arbitration (which, it was noted, are commonly borne by the losing party). (8) A third
proposal would have made clear that a party could always express its views in its own
language and arrange for translation of proceedings at its own expense. (9)
In reply to these proposals, it was said that Article 18, which requires the arbitral tribunal
P 629 to treat the parties with equality and give each party a full opportunity of presenting its
P 630 case, sufficiently guaranteed the fairness of the choice. (10) It was also felt that the
proposal to require use of all the parties' languages was too rigid. (11) Ultimately, none of
the proposals was incorporated into the text of the law, but it was in this context that the
Commission decided to move the former Article 19(3) into a new Article 18, in order to
emphasize its importance and the fact that it applied to all aspects of the arbitral
proceedings. (12) The Commission also observed that it was not necessary to stipulate that
a party could provide for translation from and to its own language, since there was no
intention of preventing a party from doing so. (13)
Paragraph 2. Paragraph 2 of Article 22 occasioned little discussion during the legislative

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 history. One point raised during the Commission's deliberations was a proposal to make it
clear that, in arbitrations being conducted in more than one language, the arbitral tribunal
could, if it seemed appropriate, accept documentary evidence in only one of the
languages of the arbitration. (14) The concern was that the phrase “the language or
languages agreed upon” in paragraph 2 might be interpreted to require translation into all
of the chosen languages, whereas it might be sufficient in some circumstances to accept
various documents in only one language. (15) The Commission accepted this principle and
asked the Drafting Group to decide whether it was expressed by the existing language of
Article 22. (16) The Drafting Group did not change the applicable language. (17)
One final point noted in the legislative history was that there is no requirement of
certification for translations submitted to the arbitral tribunal under Article 22. Although
Article 35(2) contains such a requirement for submission of the award to a court for
enforcement, the Commission considered that requiring certification before the arbitral
tribunal might unnecessarily add to the costs of proceedings. (18)
P 630
P 631

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
IV. Arbitral procedure
[ .… ]
2. Arbitral proceedings in general
[ .… ]
[Editors' Note: Paragraph 73 of this document, which appears in the section on Article 19, p.
572 supra, states that “[t]he model law should empower the arbitral tribunal to conduct the
arbitration proceedings in such manner as it considers appropriate,” subject to certain
restrictions discussed in that paragraph. The Note continues as follows; the full text of the
following paragraph appears in the section on Article 19.]
74. Furthermore, the model law may impose certain rules which would be binding on the
arbitrators either irrespective of any conflicting agreement by the parties or only if the
parties have not agreed otherwise. Examples of the first category, i.e. mandatory rules,
include [see the sections on Articles 9, 16, and 25]. Examples of the second category, i.e.
rules from which the parties may derogate, include [see the sections on Articles 19 and 26,
and the section on Matters Not Addressed in the Final Text (representation and assistance)].
One might add provisions on hearings [Art. 24], on amendments to claim or defence [Art.
23], or on the language(s) to be used in the proceedings, whereby the language of the
arbitration agreement might be considered as a possible determinant [Art. 22].
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
IV. Arbitral procedure
[ .… ]
8. Further issues of arbitral procedure
72. The Working Group was agreed that, in addition to the procedural issues contained in
questions 4–1 to 4–14, (*) there were other issues of arbitral procedure possibly to be dealt
P 631 with in the model law. The issues suggested for consideration were: [ … ] language to be
P 632 used in arbitration proceedings (cf. art. 17 of the UNCITRAL Arbitration Rules); [ … ] The
Working Group requested the Secretariat to prepare for its consideration draft provisions
on these issues, with explanatory notes if appropriate. (**)
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Arbitral procedure
[ .… ]
Further issues of arbitral procedure
23. The Working Group noted that at its third session it had agreed that there were other
issues of arbitral procedure that might be dealt with in the model law. (5) Together with
proposals accepted by the Working Group at its fourth session [i.e., this session] the issues
still to be considered for possible inclusion in the model law are:
[.… ]

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 — The language to be used in the arbitration proceedings.
THIRD SECRETARIAT NOTE POSSIBLE FURTHER FEATURES OF A MODEL LAW
A/CN.9/WG.II/WP.41 (12 JANUARY 1983)
D. Language in arbitral proceedings (7)
22. The language to be used in international arbitral proceedings is of great practical
importance because the parties, their representatives, arbitrators and witnesses often
have different language backgrounds. The Working Group may therefore wish to consider
what principle should be adopted in regard to languages.
P 632 23. The first principle may be that the parties should be free to agree on the language to be
P 633 used in arbitral proceedings either in the arbitral agreement or at some time before or
even after the commencement of arbitral proceedings. The second principle may be that,
in the absence of an agreement by the parties, the arbitral tribunal should have the power
to determine the language or languages to be used in the proceedings, taking into account
the exigencies of the arbitration.
24. Other relevant questions which may be considered are:
(a) whether the model law should require that the language so determined shall be used
at all oral hearings and in all written statements and communications (see Article 17,
paragraph 1 of the UNCITRAL Arbitration Rules), and
(b) whether it should be expressly provided that the arbitral tribunal may order that any
documents or exhibits submitted in the course of the proceedings, delivered in their
original language, shall be accompanied by a translation into the language of the
proceedings (see Article 17, paragraph 2, of the UNCITRAL Arbitration Rules).
25. The Working Group may also wish to consider the usefulness of a “best efforts” rule for
the agreement on the language of the proceedings. Such a rule may be accompanied by a
supplementary rule for cases when no agreement could be reached. (8)
26. The following draft provisions may form a basis for discussion:
Article D [Art. 22 in the final text]
The parties are free to determine the language or languages to be used in the proceedings.
[They shall use their best efforts to agree on a single language.] Failing agreement by the
parties, the arbitral tribunal shall determine the language or languages to be used in the
proceedings [having regard to the circumstances of the case].
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
I. Consideration of [Third Secretariat Note]
[ .… ]
D. Languages in arbitral proceedings
P 633
P 634 27. The Working Group considered whether the model law should contain a provision on
the language or languages to be used in arbitral proceedings (on the basis of a note by the
Secretariat, [Third Secretariat Note] WP.41, paras. 22–26 and draft article D).
28. There was general agreement that a provision on the language to be used in arbitral
proceedings was useful. The Working Group supported the principle that the parties and, in
the absence of an agreement by the parties, the arbitrators should be free to determine
the language or the languages of the proceedings. A clear statement of that principle
appeared desirable to avoid a possible interpretation that the official (court) language
used at the place of arbitration should also be decisive for the arbitral proceedings.
29. The Working Group expressed the view that there was no need for the model law to
suggest to the parties to use their best efforts to agree on a single language because such a
suggestion was either superfluous or without effect for lack of sanction. The view was also
expressed that, while it was implied that in determining the language of the proceedings
the arbitral tribunal must have regard to the circumstances of the case, it was not
appropriate to expressly state that requirement because it could create unnecessary
disagreements over the weighing of different circumstances and because it was in a way
self–evident.
30. It was also suggested that, in order to avoid misunderstandings, the model law should
make it clear that the determination of a language or languages may relate to all or only
certain documents or communications to be specified (e.g., as envisaged in article 17 of the
UNCITRAL Arbitration Rules). In that context it was suggested that the arbitral award might
be regarded as not forming part of the arbitral proceedings and that the question of the
language of the award should be covered by such provision.
THIRD DRAFT A/CN.9/WG.II/WP.44 (5 JULY 1983)
D. Language in arbitral proceedings (11)
Article D [Art. 22 in the final text] (12)
(1) The parties are free to agree on the language or languages to be used in the arbitral
proceedings. Failing such agreement, the arbitral tribunal shall determine the language or

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 languages to be used in the proceedings. This agreement or determination, unless
otherwise specified therein, shall apply to any written statement by a party, any oral
hearing, and any award, decision or other communication by the arbitral tribunal.
(2) The arbitral tribunal may order that any documentary evidence shall be accompanied
by a translation into the language or languages agreed upon by the parties or determined
by the arbitral tribunal.
P 634
P 635
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
I. Consideration of [Third Draft] (A/CN.9/WG.II/WP.44)
[ .… ]
D. Language in arbitral proceedings
34. The text of article D [Art. 22 in the final text] as considered by the Working Group was as
follows:
[same as Third Draft, supra].
35. There was general support in the Working Group for the policy of this article.
36. A view was expressed that the wording was unnecessarily detailed in listing and
distinguishing cases to which the agreement on or the determination of the language or
languages of the proceedings applied and cases in which the arbitral tribunal may order a
translation and that maximum flexibility should be left to the parties and the arbitral
tribunal in agreeing on or determining this issue. However, the view prevailed that the
present wording should be retained because, in view of the great practical importance of
the language used in arbitral proceedings, it was useful to draw the attention of the parties
to different instances in which the agreed or determined language could affect their
position in the proceedings.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 22. Language
(1) The parties are free to agree on the language or languages to be used in the arbitral
proceedings. Failing such agreement, the arbitral tribunal shall determine the language or
languages to be used in the proceedings. This agreement or determination, unless
otherwise specified therein, shall apply to any written statement by a party, any hearing
[of witnesses, experts or the parties], and any award, decision or other communication by
the arbitral tribunal.
(2) The arbitral tribunal may order that any documentary evidence shall be accompanied
by a translation into the language or [one of the] languages agreed upon by the parties or
determined by the arbitral tribunal.
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 22
68. The text of article 22 as considered by the Working Group was as follows:
P 635
P 636
[same as Fourth Draft, supra].
69. The Working Group adopted that article, subject to the deletion, in paragraph (1), of the
words “of witnesses, experts or the parties” and, in paragraph (2), of the words “one of the.”
70. While some concern was expressed that the provisions contained in the last sentence of
paragraph (1) and in paragraph (2) were too detailed for a model law, the prevailing view
was that those provisions were useful in view of the great practical importance of the
question of language and in that they drew the attention of the parties to different
instances in which the agreed or determined language could affect their position in the
proceedings.
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 22. Language
(1) The parties are free to agree on the language or languages to be used in the arbitral
proceedings. Failing such agreement, the arbitral tribunal shall determine the language or
languages to be used in the proceedings. This agreement or determination, unless
otherwise specified therein, shall apply to any written statement by a party, any hearing
and any award, decision or other communication by the arbitral tribunal.
(2) The arbitral tribunal may order that any documentary evidence shall be accompanied
by a translation into the language or languages agreed upon by the parties or determined
by the arbitral tribunal.

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 SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 22. Language
1. In the opinion of Austria, the detailed provision in the last sentence of paragraph (1) is
unnecessary and should be deleted.
2. The Federal Republic of Germany is of the view that where the parties have not agreed
on the language to be used in the arbitral proceedings there is a need to prevent an
arbitrary determination of the language. This should be achieved by providing that, failing
agreement by the parties, the language or languages to be used in the proceedings should
be determined by the arbitral tribunal in accordance with the principle of article 19(3) [Art.
18 in the final text], i.e., that each party shall be given a full opportunity of presenting his
case.
P 636
P 637
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 22. Language
Article 22, paragraph (1)
1. AALCC [Asian–African Legal Consultative Committee] recommends an expansion of
paragraph (1) of this article to provide for the situation where, failing agreement by the
parties, the language of one of the parties is not the language, or among the languages,
chosen by the arbitral tribunal for use in the arbitral proceedings. In this situation, this
party should have the right to have translations of the proceedings into his own language
at his own expense.
2. ICC [International Chamber of Commerce] is of the opinion that paragraph (1) ought to be
modified so as to make clear that a party may express himself in any language he chooses
provided he arranges for interpretation into the language to be used in the proceedings, as
decided by the arbitrators. It is of fundamental importance in an international arbitration
that, failing an agreement by the parties, each party is given a full opportunity of
presenting his case in the language he chooses.
A/CN.9/263/ADD.3 (31 JULY 1985) (COMMENTS OF EGYPT)
II. Comments on the articles
[ .… ]
29. Article 22, paragraph 3: (*) Amend this paragraph as follows:
“The arbitral tribunal may order that any documentary evidence shall be
accompanied by a translation into the language, languages or one of the
languages agreed upon by the parties or determined by the arbitral tribunal.”
30. The proposal adds the term “one of the languages” with a view to saving time and
money. The fact that the parties or the tribunal have chosen several languages for use in
the arbitral proceedings shows that the use of any one of them would not prejudice the
positions of the parties.
31. It should be noted that the proposal retains the word “languages” alongside the
proposed term “one of the languages” in order to allow the arbitral tribunal a wider power
of discretion. It could thus require translation into all the agreed languages if
circumstances made this advisable.
P 637
P 638
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 22. Language
[ .… ]
1. Article 22 deals with an issue which, while not commonly dealt with in national laws on
arbitration, is of considerable practical importance in international commercial
arbitration, i.e., the determination of the language or languages to be used in the arbitral
proceedings. It is clear from this provision, if there ever could be any doubt on this point,
that the arbitral proceedings are not subject to any local language requirement, for
example, any “official” language or languages for court proceedings at the place of
arbitration.
2. According to paragraph (1), it is primarily for the parties to determine the language or
languages of the arbitral proceedings. Autonomy of the parties is particularly important

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 here since such determination affects their position in the proceedings and the
expediency and costs of the arbitration. They are in the best position to judge, for
example, whether a single language would be feasible and acceptable or, if more than one
language need be used, which languages they should be. An agreement by the parties
would have the advantage of providing certainty on that point from the start. It would also
assist in selecting suitable arbitrators and save the arbitrators, upon their appointment,
from having to make a procedural decision, which in practice often turns out to be a rather
delicate one.
3. Where the parties have not settled the language question, the arbitral tribunal will make
that determination in accordance with paragraph (1). In doing so, it will take into account
the factors mentioned above and the language capabilities of the arbitrators themselves.
Above all, it must comply with the fundamental principles laid down in article 19(3) [Art. 18
in the final text].
4. However, it is submitted, these principles do not necessarily mean that the language of
each party must be adopted as a language “to be used in the arbitral proceedings.” For
instance, where parties have used only one language in their business dealings, in
particular in their contract and their correspondence, a decision by the arbitral tribunal to
conduct the proceedings in this language would not per se conflict with the principle of
equal treatment of the parties or deprive that party whose language is not adopted from
having a full opportunity of presenting his case. That party may, in fact, use his language in
any hearing or other meeting but he must arrange, or at least pay, for the interpretation
into the language of the proceedings. As this example may show, the determination of the
language or languages to be used is, to a certain degree, a decision on costs. To use the
opposite example, in the case of proceedings with two languages any cost for
interpretation or translation between the two languages would form part of the overall
P 638 costs of the arbitration and as such be borne in principle by the unsuccessful party (cf.,
P 639 e.g., article 40(1) of the UNCITRAL Arbitration Rules).
5. Article 22 indicates the scope of the determination of the language or languages by
listing those items which must be in such language, i.e. any written statement by a party,
any hearing and any award, decision or other communication by the arbitral tribunal. Yet,
the parties or the arbitrators may determine the scope differently. As regards
documentary evidence, paragraph (2) leaves it to the arbitral tribunal to decide whether
and to what extent translation into the language of the proceedings is required. This
discretion is appropriate in view of the fact that such documents may be voluminous and
only in part truly relevant to the dispute.
SUMMARY RECORD A/CN.9/SR.321–.322, .332
[13 June 1985, 9:30 a.m., A/CN.9/SR.321]
Article 22. Language
68. Mr. RAMADAN (Egypt), supported by Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre
for Commercial Arbitration), proposed that paragraph (2) should be amended by the
addition of the words “or one of the languages” after the words “language or languages.”
The possibility which the paragraph would then provide could save parties time and
money.
69. Mr. JARVIN (Observer, International Chamber of Commerce) proposed that an addition
should be made to the second sentence of paragraph (1) to the effect that a party should
be allowed to use the language of his choice on condition that a translation into the
language or languages determined by the tribunal was provided.
70. Mr. CHO (Observer for the Republic of Korea) said that paragraph (1) should be worded
so as to ensure each party equality and the opportunity to present his case. He supported
the written suggestion of the Federal Republic of Germany on that subject ([Sixth
Secretariat Note (Government Comments),] A/CN.9/263, [Art. 22, para. 2].
71. Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration),
speaking on paragraph (1), said that each party should have the right to ask for oral and
written material to be translated into his own language.
72. Mr. BROCHES (Observer, International Council for Commercial Arbitration) agreed with
the Observer for ICC that each party should have the right to use his own language in
arbitral proceedings. That principle was acknowledged in the Secretariat's commentary
([Seventh Secretariat Note,] A/CN.9/264, [Art. 22], para. 4).
73. Mr. LAVINA (Philippines) suggested that one or two of the official United Nations
languages, or a language widely used in commerce, should be used as the language for
arbitral proceedings.
P 639
P 640
74. Mr. HOLTZMANN (United States of America) said that the principle of the right to use
one's own language was already safeguarded in article 19(3) [Art. 18 in the final text], as the
Federal Republic of Germany had pointed out in its written comments ([Sixth Secretariat
Note (Government Comments),] A/CN.9/263, [Art. 22, para. 2]). The question was who would
bear the considerable cost of providing translations. A party might request translations of
all documents in an attempt to delay arbitral proceedings or harass its opponent. The

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 arbitral tribunal should be given discretion in the matter of translation, as provided in the
present text of article 22.
75. The proposal made by the Observer for the International Chamber of Commerce would
be difficult to express in the article in its present form. The proposal was incorporated into
the Secretariat's commentary ([Seventh Secretariat Note,] A/CN.9/264, [Art. 22], para. 4),
which provided that the party should arrange, or at least pay, for the translation into the
language of the proceedings.
76. Mr. SAMI (Iraq) said that the expense of translation services was secondary to the
principle that each party had the right to present his case in his own language. Parties
entering into arbitration were aware that it was an expensive procedure. He said that, if an
arbitral tribunal chose the language of one party as the official language of the
proceedings, the costs of translation into the language of the other party should be
included in the overall costs of the arbitration.
[13 June 1985, 2:00 p.m., A/CN.9/SR.322]
1. Mr. HERRMANN (International Trade Law Branch) said that the purpose of article 22(1)
was to allow the arbitral tribunal, unless agreed upon by the parties, to determine the
language or languages to be used in the proceedings. Article 22(2) empowered the tribunal
to require translations of documents. The Working Group had assumed that, since the
languages chosen would constitute the languages of the proceedings, translation and
interpretation would be part of the costs. The Commission might wish to clarify that there
was no intention of preventing a party or a witness from expressing his views in his own
language.
2. Mr. ROGERS (Australia) said that he realized that the suggestions made for changes in
article 20 (*) and now in article 22 had been motivated by a desire to ensure the overall
fairness of the proceedings. At the same time, he was disturbed by what seemed to be a
tendency to limit the arbitrators' discretion and to regulate the proceedings in minute
detail. What had been described as the “Magna Carta of arbitral procedure” ([Seventh
Secretariat Note,] A/CN.9/264, [Art. 19, para. 1, appearing in the section on Article 19, pp. 582–
83 supra]) was enshrined in article 19, and more especially in article 19(3) in the form of the
essential requirement that “the parties shall be treated with equality and each party
should be given a full opportunity of presenting his case.” That provision should satisfy the
needs of those delegations which wished to introduce amendments. In selecting their
arbitrators, the parties entrusted them with extensive powers to decide matters of fact
P 640 and of law. Since the arbitrators were already entrusted with such wide decision–making
P 641 powers, it could be left to them to act fairly and properly, in accordance with article 19,
without trying to anticipate every procedural problem that could arise. It was not possible
to foresee every circumstance and to cater for every possible difficulty. His delegation was
therefore opposed to any change in article 22.
3. Mr. SAMI (Iraq) said that his delegation had agreed with the Observer for the
International Chamber of Commerce in regard to the principle of giving equal treatment to
each side in respect of the presentation of the case. Its own proposal had been limited to a
situation in which, in the case of disagreement on the language or languages to be used in
the arbitral proceedings, those of the two parties should constitute the working languages
of the proceedings. If the arbitration agreement opted for the language of one of the
parties, however, all documents should be translated for the purposes of the other party
and the cost should be an integral part of the arbitration costs and thus be borne by the
losing party, except in the case of an agreement to share the costs.
4. Mr. CHO (Observer for the Republic of Korea) thought that, if the guideline in the second
sentence of article 22(1) was clarified, the third sentence would become unnecessary.
5. Mr. AYLING (United Kingdom) said that the overriding objective regarding the details of
the arbitral proceedings was that the parties should be treated fairly. Language could be
an important aspect of the proceedings and was therefore covered by article 19(3). The
second objective was one of practicality. Arbitral proceedings should be capable of being
held in the manner which was most practical and convenient in the light of the
circumstances and facts of the case. Requirements could vary enormously from case to
case. Both those objectives were satisfied by the existing text of article 22 and he therefore
strongly supported the position of Australia.
6. Mr. BOUBAZINE (Algeria) said that his delegation supported the proposal by Iraq as
being intended to ensure equal respect for languages and the sharing of the costs of
arbitration.
7. Mr. MTANGO (United Republic of Tanzania) suggested that paragraph (3) of article 19
should become a separate article. That would have the advantage of raising the status of
equality of treatment and making it clear that the principle applied to the whole of
chapter V. That would also solve the problem in regard to languages and there would be no
need to amend article 22(2).
8. Mr. SEKHON (India) supported the view expressed by the delegation of Iraq. He was not
sure that, as it stood, the wording of article 22 would enable a party to use the best
possible vehicle for putting forward his case, namely his own language. It was argued that,
on the basis of the provision in article 19(3), the dictates of fairness would require each

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 party to have an opportunity to present his case in his own language. He felt, however, that
P 641 the special provisions of article 22 excluded the general provisions of article 19. Regarding
P 642 article 22(2) his delegation felt that the word “translation should be preceded by the
phrase “duly certified.” That would bring it into conformity with the provisions of article
35(2) and would help to clarify the term “translation,” which was not defined anywhere in
the model law.
9. Mr. SCHUMACHER (Federal Republic of Germany) continued to believe that his
delegation's proposal to amend article 22 by inserting a reference to article 19(3) would
constitute a useful compromise. Language constituted a greater problem for some States,
including his own, whose languages were not those in wide use.
10. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that judges and
arbitrators had had to deal with the problem of different languages since arbitration first
began. He urged the members of the Commission to trust the arbitrators in the matter. The
arbitrators themselves might have three different languages, none of which was the
language of the parties. Their first task would obviously be to consider how best to carry on
their work in the circumstances. If the arbitrators were not trusted, the procedure itself was
not trusted and would become an exercise in futility. It was impossible to legislate for all
situations, nor could there be any universal solution, since a party's use of his own
language might not be satisfactory if all the documents were in some other language.
Article 22 was already too prescriptive. The guiding principle was that stated in article
19(3), and it should be left to the arbitrators to apply it.
11. Mr. RAMADAN (Egypt) supported the proposal of Iraq, which he found similar to the
proposal of the Observer for the Cairo Regional Centre for Commercial Arbitration.
12. Mr. GRAHAM (Observer for Canada) said that his delegation was satisfied with the article
as it stood, although the amendment suggested by the Federal Republic of Germany would
help to ensure that the elements of equality and fairness were maintained.
13. The CHAIRMAN [Mr. PÃES de BARRO LA?S (Brazil)] noted that there did not seem to be
sufficient support for the proposal of Iraq.
14. Mr. SCHUMACHER (Federal Republic of Germany) said that his delegation would not
insist on its proposal since it too lacked any strong support.
15. Mr. SEKHON (India) asked the Chairman for a ruling on his delegation's proposal to
insert the words “duly certified” in article 22(2).
16. Mr. HOLTZMANN (United States of America) said that his delegation had agreed to the
use of the expression “duly certified” in article 35(2) because the documents therein
mentioned were being submitted to a court which would have its own definition of “duly
certified.” In article 22, the Commission would be asking the arbitrators to say what
constituted a certified translation. Actually, good translations could often be provided by
the parties themselves. Where outside certified translators had to be used, the cost
invariably rose. His delegation joined the Observer for the Chartered Institute of
Arbitrators in urging the Commission to trust the arbitrators and not to get involved in the
technical details of the proceedings.
P 642
P 643
17. Mr. HUNTER (Observer, International Bar Association) agreed with the United States
representative. He was aware, as a practitioner, that outside translation arrangements
could be very disruptive and time–consuming.
18. Mr. RAMADAN (Egypt) recalled that his delegation had also made a proposal to amend
article 22(2) by inserting the phrase “one of the” before “languages.”
19. Mr. LOEFMARCK (Sweden) had no objection in principle but thought that the concept
behind the Egyptian proposal was already implicit in the existing wording.
20. Mr. HOLTZMANN (United States of America) felt that the arbitrators should be left
discretion to require translation into more than one language.
21. Mr. HERRMANN (International Trade Law Branch) said it was his understanding that the
Egyptian representative had feared that, where two languages were to be used in the
proceedings, the phrase “the language or languages” might be misinterpreted as requiring
translation of documents into two languages without allowing the discretion of requiring
translation into only one language in particular cases.
22. Mr. RAMADAN (Egypt) said that in cases where the parties had agreed on the use of
several languages, he would like the arbitral tribunal to be authorized to choose one of
those languages, in order to save time and costs.
23. Mr. MTANGO (United Republic of Tanzania) suggested that the Egyptian representative's
point could be covered by replacing the phrase “the language or languages” by “a language
or languages.”
24. Mr. JOKO-SMART (Sierra Leone) said he had no difficulty with the text as it stood.
25. Mr. HOLTZMANN (United States of America) suggested that the Commission should
accept the Egyptian proposal in principle and leave it to the drafting committee to decide
where to insert appropriate wording.

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 26. The CHAIRMAN said that, as he heard no objection, he would take it that article 22 was
referred to the drafting committee on that basis.
27. It was so agreed.
28. Mr. HERRMANN (International Trade Law Branch) referred to the earlier proposal made
by the representative of the United Republic of Tanzania. It had always been the
understanding of the Working Group, as was indicated in the Secretariat's commentary on
article 19 ([Seventh Secretariat Note,] A/CN.9/264, [Art. 19, para. 7, appearing in the section
on Article 18, p. 559 supra]), that the fundamental principle enunciated in article 19(3)
would apply to arbitral proceedings in general; it would thus govern all the provisions in
chapter V and other aspects, such as the composition of the arbitral tribunal, not directly
P 643 regulated therein. He thought it would be within the mandate of the drafting committee,
P 644 subject to the wishes of the Commission, to consider whether the fundamental
principles in article 19(3) should be highlighted by placing them in a separate article,
perhaps at the beginning of chapter V.
29. Mr. AYLING (United Kingdom) recalled that the Commission had not completed its
discussion of article 19. He presumed that the proposal of the representative of the United
Republic of Tanzania, which his delegation supported, would be taken up when the
Commission returned to that article.
30. The CHAIRMAN said that the Commission would consider the proposal at that point.
[Editors' Note: The Commission's later discussion of the proposal is reported in the Summary
Record, A/CN.9/SR.330, paras. 61–66, appearing in the section on Article 18, p. 562 supra.]
[13 June 1985, 2:00 p.m., A/CN.9/SR.332]
Articles 19 to 23 [as revised by the Drafting Group]
57. Articles 19 to 23 were adopted without change.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 22. Language
188. The text of article 22 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
189. The Commission noted that the determination of the language or languages of the
arbitral proceedings involved both a matter of principle and a matter of practicality. The
principle, set forth in article 19(3) [Art. 18 in the final text], was that the parties must be
treated with equality and each party must be given a full opportunity of presenting his
case. At the same time, it was recognized that extensive interpretation of oral proceedings
and translation of written documents would increase the costs of the arbitration and, in
the case of extensive translations, prolong the proceedings.
190. A proposal that article 22 should specifically provide that, failing agreement of the
parties, the language or languages to be used in the proceedings should be determined by
the arbitral tribunal in accordance with article 19(3) was not accepted as being
unnecessary. For the same reason the Commission did not accept a proposal to state
expressly that a party had a right to express himself in his own language provided he
arranged for interpretation into the language of the proceedings.
191. Yet another proposal was that the arbitral proceedings should be conducted in the
languages of the parties unless the parties agreed on one language or the arbitral tribunal,
on the basis of an express mandate conferred to it by the parties, determined the
language of the proceedings. The proponents of that proposal suggested that, if this was
not accepted, the model law should provide that any party whose language was not chosen
as the language of the proceedings had the right of presenting his case in his language, and
P 644 the costs of translation and interpretation should form part of the costs of the proceedings.
P 645 However, the proposal was not accepted since it was considered to be too rigid and not
capable of providing a suitable solution for the wide variety of situations which arose in
practice. It was thought to be appropriate to leave the determination of the language or
languages of the proceedings to the arbitral tribunal, which was in all circumstances bound
by article 19(3).
192. Noting that the word “translation” in paragraph (2) was not defined, a proposal was
made that a translation should be duly certified. The proposal was not accepted on the
ground that a general requirement of certification of translations would unnecessarily add
to the costs of proceedings.
193. It was noted that where proceedings were to be conducted in more than one language,
it might be reasonable and not prejudicial to the interests of the parties if a document was
translated into only one of the languages of the proceedings. Consequently, it was
proposed that article 22 should provide expressly that it would not be per se contrary to
the model law if in a multi-language arbitration the arbitral tribunal decided that a
particular document did not have to be translated into all the languages of the
proceedings. While the Commission was of the view that such cost–saving practices were
not prohibited by article 22, it referred to the Drafting Group the question whether the text
expressed that view with sufficient clarity.

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 194. The Commission adopted article 22, subject to the review by the Drafting Group as
indicated in the previous paragraph. In order to emphasize the fundamental nature of the
principles embodied in article 19(3) and to clarify that they governed all aspects of the
arbitral proceedings, it was agreed that the paragraph should be presented in a separate
article.
P 645

References
1) Seventh Secretariat Report, A/CN.9/264, Art. 22, para. 1, p. 638 infra.
2) See Third Working Group Report, A/CN.9/233, para. 28, p. 634 infra; see also Third
Secretariat Note, A/CN.9/WG.II/WP.41, para. 22, p. 632 infra; Seventh Secretariat Note,
A/CN.9/264, Art. 22, para. 1, p. 638 infra.
3) See Third Draft, A/CN.9/WG.II/WP.44, Art. D n. 12, p. 634 infra.
4) See Third Working Group Report, A/CN.9/233, para. 28, p. 634 infra.
5) In this connection, it may be noted that the Working Group elsewhere cautioned that,
while “it was desirable to express the nonmandatory character in all provisions of the
final text which were intended to be nonmandatory,” it was understood that the
decision to express the nonmandatory nature of certain articles “did not mean that all
those provisions of the model law which did not express their nonmandatory character
were necessarily of a mandatory nature.” Fifth Working Group Report, A/CN.9/246, para.
177, appearing in the section on Matters Not Addressed in the Final Text, pp. 1152–53
infra.
6) Third Secretariat Note, A/CN.9/WG.II/WP.41, para. 23, pp. 632–33 infra.
7) See Commission Report, A/40/17, para. 191, pp. 644–45 infra.
8) See id.; Summary Record, A/CN.9/SR.321, para. 76, p. 640 infra; SR.322, para. 3, p. 641
infra; see also Seventh Secretariat Note, A/CN.9/264, Art. 22, para. 4, pp. 638–39 infra.
9) See Commission Report, A/40/17, para. 190, p. 644 infra; Summary Record,
A/CN.9/SR.321, para. 69, p. 639 infra; Sixth Secretariat Note (Government Comments),
A/CN.9/263/Add.1, Art. 22, paras. 1–2, p. 637 infra.
10) See, e.g., Commission Report, A/40/17, para. 191, pp. 644–45 infra.
11) . See, e.g., id.; Summary Record, A/CN.9/SR.322, paras. 2, 5, 10, pp. 640–42 infra.
12) Commission Report, A/40/17, para. 194, p. 645 infra; see Summary Record,
A/CN.9/SR.322, paras. 7, 28–30, pp. 641, 643–44 infra.
13) See Commission Report, A/40/17, para. 190, p. 644 infra; Summary Record,
A/CN.9/SR.322, para. 1, p. 640 infra; Seventh Secretariat Note, A/CN.9/264, Art. 22, para.
4, pp. 638–39 infra.
14) Sixth Secretariat Note (Comments of Egypt), A/CN.9/263/Add.3, paras. 29–30, p. 637
infra; Summary Record, A/CN.9/SR.321, para. 68, p. 639 infra; SR.322, paras. 18–27, p. 643
infra.
15) The Secretariat also noted that some documentary evidence can be voluminous and
may be relevant only in part. Seventh Secretariat Note, A/CN.9/264, Art. 22, para. 5, p.
639 infra.
16) Commission Report, A/40/17, para. 193, p. 645 infra; Summary Record, A/CN.9/SR.322,
paras. 25–27, p. 643 infra.
17) Compare Fifth Draft, A/CN.9/246 (Annex), Art. 22(2), p. 636 infra, with Article 22(2) in the
final text. In its commentary on the Fifth Draft, the Secretariat had interpreted the
draft Article as already providing this discretion. See Seventh Secretariat Note,
A/CN.9/264, Art. 22, para. 5, p. 639 infra.
18) Commission Report, A/40/17, para. 192, p. 645 infra; Summary Record, A/CN.9/SR.322,
paras. 15–17, pp. 642–43 infra. This presumably does not prevent the arbitral tribunal
from requiring certified translations in appropriate cases, however.
*) [Editors' Note: This refers to the “questions for discussion” suggested by the Secretariat in
the Second Secretariat Note. The cited questions appear in the sections of this book on
Articles 9 (interim measures), 17 (interim measures), 19 (rules of procedure), 20 (place of
arbitration), 25 (default), 26 (experts), and 27 (court assistance in taking evidence), and in
the section on Matters Not Addressed in the Final Text (representation and assistance).]
**) [Editors' Note: See also paragraph 58 of this document, which considers the general
question of the extent to which the Model Law should include “supplementary rules on
arbitral procedure.” It appears in the section on Article 19, p. 574 supra.]
5) [First Working Group Report,] A/CN.9/216, para. 72. [Editors' Note: This report addressed
the Working Group's first session on the Model Law; the Working Group's previous two
sessions had been concerned with other matters.]
7) The decision to consider this subject was adopted at the third session of the Working
Group; see [First Working Group Report,] A/CN.9/216, para. 72.

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 8) Such is the approach in the 1977 Optional Arbitration Clause for use in Contracts in
USA–USSR Trade, which reads:
“8. The parties will use their best efforts to agree on a single language for
the arbitration proceedings, in order to save time and reduce costs.
However, if the parties do not agree on a single language:
8.1 Each party shall present its statement of claim or statement of
defence, and any further written statements in both English and
Russian.
8.2 Any other documents and exhibits shall be translated only if
arbitrators so determine.
8.3 There shall be interpretation into Russian and English at all oral
hearings.
8.4 The award, and the reasons supporting it, shall be written in both
Russian and English.”
11) Discussion and conclusions of the Working Group in [the Third Working Group Report,]
A/CN.9/233, paras. 27–30; see also note by the Secretariat, [Third Secretariat Note,]
A/CN.9/WG.II/WP.41, paras. 22–26.
12) This provision is modelled on article 17 of the UNCITRAL Arbitration Rules.
*) Note by Translation Section: Sic, in the draft law there is no “paragraph 3” and
“paragraph 2” is presumably meant.
*) [Editors' Note: See Summary Record, A/CN.9/SR.321, paras. 1–28, pp. 604–07 supra.]

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Document information
UNCITRAL Model Law, Chapter V, Article 23 [Statements of
Publication claim and defence]
A Guide to the UNCITRAL (1) Within the period of time agreed by the parties or determined by the arbitral
Model Law on International tribunal, the claimant shall state the facts supporting his claim, the points at issue
Commercial Arbitration: and the relief or remedy sought, and the respondent shall state his defence in
Legislative History and respect of these particulars, unless the parties have otherwise agreed as to the
Commentary required elements of such statements. The parties may submit with their
statements all documents they consider to be relevant or may add a reference to
the documents or other evidence they will submit.
Organization (2) Unless otherwise agreed by the parties, either party may amend or supplement his
United Nations Commission claim or defence during the course of the arbitral proceedings, unless the arbitral
on International Trade Law tribunal considers it inappropriate to allow such amendment having regard to the
delay in making it.

Promulgation Commentary
21 June 1985 The legislative history of Article 23, particularly the discussion in the Commission, was
dominated by two questions. The first was the extent to which the rules set out in
paragraph 1 relating to the contents of the statements of claim and defence were to be
mandatory or non-mandatory, that is, whether the parties could agree to the contrary. The
Legislation number second question was the extent to which the arbitral tribunal was to be empowered under
United Nations Document paragraph 2 to limit a party's right to amend its claim or defense during the course of the
A/40/17, Annex I arbitral proceedings. On both issues, the Commission adopted an effective compromise
between more extreme proposals.
Paragraph 1. The question of the extent to which Article 23(1) should be mandatory was
Bibliographic reference raised at the outset. In the Secretariat's initial discussions of the proposed Article, it asked
the Working Group to consider two approaches. The first would “establish a mandatory
'UNCITRAL Model Law, requirement in order to ensure certainty about the scope of the submission, in particular
Chapter V, Article 23 what claims (and counterclaims) are submitted to arbitration.” (1) This approach would
[Statements of claim and require only the bare minimum, such as a statement only of “the relief or remedy sought
defence]', in Howard M. and the facts supporting [the] claim,” with corresponding responses from the respondent.
Holtzmann and Joseph (2) The second approach would be to provide more comprehensive, but supplementary,
Neuhaus , A Guide to the
UNCITRAL Model Law on P 646 rules to take care of those cases where the parties had not agreed on the mechanisms for
International Commercial P 647 getting the arbitration started. (3) The Secretariat suggested that these rules be
modeled on the detailed provisions of Articles 18 to 20 of the UNCITRAL Arbitration Rules.
Arbitration: Legislative
History and Commentary, The Working Group favored the first approach: “the prevailing view was that such a rule
(© Kluwer Law International; should only deal with those elements of initial pleadings which were essential for defining
Kluwer Law International the dispute on which the arbitral tribunal is to give decision.” (4) Nevertheless, the Working
1989) pp. 646 - 669 Group did not immediately agree that the list of these essential elements should be
mandatory; rather, it postponed the question for future sessions. (5) The Secretariat then
drafted proposed language based on Articles 18(2) and 19(2) of the UNCITRAL Arbitration
Rules, but with somewhat less detail. (6) The primary elements of this proposal were
carried into the final text, except that the Secretariat's proposal was drafted in a
mandatory form.
The reports of the Working Group do not further discuss the mandatory nature of paragraph
1, although they do report the Group's subsequent conclusion that paragraph 2 — regarding
amendments to claims and defenses — should be nonmandatory. (7) The government
comments on the Working Group's final draft of the Model Law include a suggestion that
paragraph 1 should be stated to be nonmandatory, (8) and the Secretariat's commentary
also submitted that the provision should be nonmandatory, “at least as regards its
details.” (9) These suggestions were repeated in the discussions of the Commission. The
argument in favor of these proposals was that arbitration rules often required different
content in the initial statements. (10) Moreover, some arbitrations, such as those relating
to claims of damage to goods or claims that had been previously set forth in written
correspondence, did not even require written statements. (11) In response, it was observed
that an arbitration absolutely required a statement of position by each party; the
arbitrators had to be apprised of all the facts of the dispute submitted to them, so that
some form of statement was a minimum essential requirement. (12)
The solution adopted sought to satisfy all these concerns. The requirement of some
statement from each party is mandatory; however, the elements of the statement can be
varied by an agreement of the parties. Moreover, it was agreed that these statements were
P 647 not required to be in written form. (13) Thus, the phrase in the second sentence of the
P 648 draft of paragraph 1 that the parties might “annex to” their statements any documents
considered relevant was changed to “submit with” the statements. (14)
Paragraph 2. Paragraph 2, which regulates the parties' right to amend their claim or
defence, is clearly nonmandatory. The critical question here was the limits to be placed on
the exercise of that right to amend where there is no party agreement on the matter. The

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 provision was originally modelled on Article 20 of the UNCITRAL Arbitration Rules, which
provides that a party may amend its claim or defence “unless the arbitral tribunal
considers it inappropriate to allow such amendment having regard to the delay in making
it or prejudice to the other party or any other circumstances.” (15) The Secretariat's
commentary on this provision stated that these criteria for deciding whether to refuse an
amendment should be interpreted to include not only the extent of the delay in making
the amendment but also the reason for the delay, and noted that the term “prejudice to
the other party” referred to “procedural prejudice” such as “upsetting the normal course of
the proceedings or unduly delaying the final settlement of the dispute as defined in the
initial pleadings.” (16)
A number of delegates objected that under this formulation the arbitral tribunal's
discretion to refuse amendments was too wide. It was suggested that practically any
amendment works to the benefit of the party offering it and to the “prejudice” of the other.
Thus, these delegates proposed that the parties ought to have an unlimited right to make
amendments; any procedural prejudice could be cured by apportioning the costs of the
proceedings or by deciding on issues presented in good time in a partial award and
postponing the settlement of remaining issues. (17) In reply, other delegates urged that this
course would lead to abuses, delays, additional costs, and injustices. (18)
Ultimately, the Commission decided to delete only the last two of the proposed criteria for
P 648 refusing to allow amendments to a claim or defense — i.e., “prejudice to the other party or
P 649 any other circumstances.” The proponents of this change suggested that the reference to
“any other circumstances” provided practically unbounded discretion. (19) They also said
that the reference to “prejudice” was ambiguous (20) and that consideration of prejudice to
the other party was already required by Article 18 of the Model Law, which requires that
the parties be treated with equality and that each be given a full opportunity of presenting
its case. (21) In addition, it was noted that the arbitral tribunal could terminate the
proceedings under Article 32(2)(c) in cases in which attempted amendments were regarded
as unnecessary or abusive. (22)
The result is probably a shift in emphasis rather than an absolute bar on consideration of
any factors that might be considered under the UNCITRAL Arbitration Rules. Any evil arising
out of late amendments stems from the delay in making them, so that consideration of that
factor tends to subsume all others. In particular, the deletion of the reference to
“prejudice” should not be taken as a suggestion that this factor should not be considered;
rather, it appears to have been intended that prejudice to the other party would be taken
into account as a function of considering the delay in making the amendment and as a
result of the dictates of Article 18.
One absolute limit on amendments that is not stated in Article 23(2), but was noted by the
Secretariat, is that an amendment cannot expand the dispute to matters beyond the
scope of the arbitration agreement, which is the source of the arbitral tribunal's
jurisdiction. (23) It should be noted, however, that the parties may expand the scope of the
arbitration agreement under Article 7(2) by failing to raise a timely objection to the lack of
an arbitration agreement. Thus, if a claimant amends its statement of claim to include a
new claim that is otherwise outside the scope of the existing arbitration agreement, it may
be that the respondent, by failing to object to the expansion in an amendment to its
statement of defense, will thereby accede to the creation of a new arbitration agreement
covering the expanded dispute.
Finally, Article 2(f) should be kept in mind in connection with Article 23. Article 2(f)
provides that any reference to a claim applies also to a counterclaim and that any
reference to a defence applies also to a defence to the counterclaim. Thus, the
requirements of Article 23 extend as well to counterclaims. (24)
P 649
P 650

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
IV. Arbitral procedure
[ .… ]
2. Arbitral proceedings in general
[ .… ]
[Editors' Note: Paragraph 73 of this document, which appears in the section on Article 19, p.
572 supra, states that “[t]he model law should empower the arbitral tribunal to conduct the
arbitration proceedings in such manner as it considers appropriate,” subject to certain
restrictions discussed in that paragraph. The Note continues as follows; the full text of the
following paragraph appears in the section on Article 19.]
74. Furthermore, the model law may impose certain rules which would be binding on the
arbitrators either irrespective of any conflicting agreement by the parties or only if the

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 parties have not agreed otherwise. Examples of the first category, i.e. mandatory rules,
include [see the sections on Articles 9, 16, and 25]. Examples of the second category, i.e.
rules from which the parties may derogate, include [see the sections on Articles 19 and 26,
and the section on Matters Not Addressed in the Final Text (representation and assistance)].
One might add provisions on hearings [Art. 24], on amendments to claim or defence [Art.
23], or on the language(s) to be used in the proceedings, whereby the language of the
arbitration agreement might be considered as a possible determinant [Art. 22].
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
IV. Arbitral procedure
[ .… ]
8. Further issues of arbitral procedure
72. The Working Group was agreed that, in addition to the procedural issues contained in
questions 4–1 to 4–14, (*) there were other issues of arbitral procedure possibly to be dealt
with in the model law. The issues suggested for consideration were: minimum contents of a
P 650 statement of claim and statement of defence (cf. arts. 18 and 19 of the UNCITRAL
P 651 Arbitration Rules); [ … ] The Working Group requested the Secretariat to prepare for its
consideration draft provisions on these issues, with explanatory notes if appropriate. (**)
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Arbitral procedure
[ .… ]
Further issues of arbitral procedure
23. The Working Group noted that at its third session it had agreed that there were other
issues of arbitral procedure that might be dealt with in the model law. (5) Together with
proposals accepted by the Working Group at its fourth session [i.e., this session] the issues
still to be considered for possible inclusion in the model law are:
[…]
— The minimum contents of the statement of claim and defence; [ … ].
THIRD SECRETARIAT NOTE POSSIBLE FURTHER FEATURES OF A MODEL LAW
A/CN.9/WG.II/WP.41 (12 JANUARY 1983)
C. Minimum contents of statements of claim and defence (6)
19. Whether and in what form the model law should deal with the minimum contents of the
statement of claim and the statement of defence, would primarily depend on the purpose
of such provisions. The Working Group may, thus, wish to consider the following two
approaches and accordingly request the Secretariat to prepare draft provisions.
20. One approach could be to establish a mandatory requirement in order to ensure
certainty about the scope of the submission, in particular what claims (and counterclaims)
are submitted to arbitration. Such a rule would apply in all types of arbitration, for
P 651 example, in a system which distinguishes between notice and statement of claim (e.g.,
P 652 UNCITRAL Arbitration Rules, articles 3 and 18) and a system which combines both in one
request for arbitration (e.g., ICC Rules, article 3). Therefore, it may be necessary to omit any
reference to procedural details or the varying names of such communications and merely
provide, for example: “The claimant must state the relief or remedy sought and the facts
supporting his claim,” while the respondent may be obliged to respond to these
particulars.
21. The other approach could be to include supplementary rules merely to take care of
those cases where the parties have not themselves made any provision. Such rules, which
could be modelled on articles 18 to 20 of the UNCITRAL Arbitration Rules, could be part of
a larger set of rules providing a mechanism for getting arbitration started and going even
where parties have not agreed on procedural rules.
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
I. Consideration of [Third Secretariat Note]
[ .… ]
C. Minimum contents of statements of claim and defence
24. The Working Group considered the question whether the model law should contain a
provision, whether mandatory or not, on the minimum contents of the statements of claim
and defence (on the basis of a note by the Secretariat, [Third Secretariat Note,] WP.41,
paras. 19–21).

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 25. There was general agreement that the model law should contain a rule on the initial
pleadings by the parties. The prevailing view was that such a rule should only deal with
those elements of initial pleadings which were essential for defining the dispute on which
the arbitral tribunal is to give a decision. Some support was expressed for adding
procedural rules along the lines of articles 18 to 20 of the UNCITRAL Arbitration Rules to
provide guidance to the parties and the arbitrators in cases where the parties have not
themselves made any provision.
26. The Working Group deferred its decision on the question whether rules on initial
pleadings by the parties should be mandatory or non–mandatory. The Working Group
requested the Secretariat to draft tentative provisions on the basis of the discussion and
conclusions at the present session.
THIRD DRAFT A/CN.9/WG.II/WP.44 (5 JULY 1983)
C. Minimum contents of statements of claim and defence (7)
Article C [Art. 23 in the final text]
(1) The claimant shall state the facts supporting his claim, the points at issue and the relief
or remedy sought. The respondent shall state his defence in respect of these particulars.
[The parties may annex to their statements all documents they deem relevant or may add
a reference to the documents or other evidence they will submit.] (8)
P 652
P 653
[(2) Unless otherwise agreed by the parties, the statements of the claimant and the
respondent [, made in accordance with the preceding paragraph,] shall be communicated
to the other party and to each of the arbitrators within a period of time to be determined
by the arbitral tribunal.] (9)
[(3) During the course of the arbitral proceedings either party may amend or supplement
his claim or defence unless the arbitral tribunal considers it inappropriate to allow such
amendment having regard to the delay in making it or prejudice to the other party or any
other circumstances.] (10)
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
I. Consideration of [Third Draft] (A/CN.9/WG.II/WP.44)
[ .… ]
C. Minimum contents of statements of claim and defence
29. The text of article C [Art. 23 in the final text] as considered by the Working Group was as
follows:
[same as Third Draft, supra].
Paragraph (1)
30. There was wide support in the Working Group for the policy of this paragraph including
the provision in square brackets. However, it was noted that it might be too onerous for the
claimant to state all points at issue already at this stage of the proceedings since he might
become aware of all such points only after he had been fully informed about the defences
the other party intended to raise.
Paragraph (2)
31. There was wide support in the Working Group for the policy of this paragraph. It was
noted that the wording of this paragraph would have to be aligned with the wording of
P 653 article XVII(3) [Art. 24(3) in the final text] in [the Second Draft,] document
P 654 A/CN.9/WG.II/WP.40 [appearing in the section on Article 24, p. 679 infra]. It was also noted
that the words between square brackets were not necessary and could be omitted.
32. A suggestion was made that it should be made clear in this paragraph whose duty it was
to communicate the statements to the other party.
Paragraph (3)
33. There was general support in the Working Group for this paragraph. It was noted,
however, that the question whether this provision was mandatory or not would be
discussed in the context of article I ter (as contained in [the portion of the Third Draft
contained in] document A/CN.9/WG.II/WP.45) when the question of mandatory and non–
mandatory character of individual provisions of the model law would be considered
generally. [Editors' Note: Article I ter was to consist of a list of all of the mandatory
provisions of the Model Law. It was not included in the final text. Materials on the proposed
provision appear in the section on Matters Not Addressed in the Final Text, pp. 1150–53 infra.
The cited provision of the Third Draft is at p. 1151.]
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 23. Statements of claim and defence
(1) Within the period of time stipulated by the parties or determined by the arbitral
tribunal, the claimant shall state the facts supporting his claim, the points at issue and the

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 relief or remedy sought, and the respondent shall state his defence in respect of these
particulars. The parties may annex to their statements all documents they deem relevant
or may add a reference to the documents or other evidence they will submit.
(2) [During the course of the arbitral proceedings] either party may amend or supplement
his claim or defence unless the arbitral tribunal considers it inappropriate to allow such
amendment having regard to the delay in making it or prejudice to the other party or any
other circumstances.
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 23
71. The text of article 23 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
72. The Working Group adopted that article, including, in paragraph (2), the words “During
the course of the arbitral proceedings.”
73. It was noted that the provision of paragraph (1) which referred to the “claim” should
also apply to a counter–claim. As to whether this understanding should be expressed in
P 654 that provision, it was agreed that the same question arose in respect of a number of
P 655 articles of the draft of the model law and that it should therefore be considered at a
later stage in a general manner. (7)
[ .… ]
Article 3
[ .… ]
175. The Working Group decided to delete [Article 3] and to insert, in articles 2(e), 23(2) and
26(2) and (3) [Arts. 3, 23(2) and 26(1)(b) and (2) in the final text], the words “unless otherwise
agreed by the parties.” [Editors' Note: The proposed Article 3 was a listing of all mandatory
provisions of the Model Law. It was deleted on the recommendation of the Secretariat in the
Fourth Secretariat Note, A/CN.9/WG.II/WP.50, para. 9, which noted that there were only a few
provisions — those listed above — that “may be regarded as non–mandatory” yet had not
been identified as such with appropriate wording. The materials on this proposed Article
appear in the section on Matters Not Addressed in the Final Text, pp. 1151–52 infra.]
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 23. Statements of claim and defence
(1) Within the period of time agreed by the parties or determined by the arbitral tribunal,
the claimant shall state the facts supporting his claim, the points at issue and the relief or
remedy sought, and the respondent shall state his defence in respect of these particulars.
The parties may annex to their statements all documents they consider to be relevant or
may add a reference to the documents or other evidence they will submit.
(2) Unless otherwise agreed by the parties, either party may amend or supplement his
claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal
considers it inappropriate to allow such amendment having regard to the delay in making
it or prejudice to the other party or any other circumstances.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 23. Statements of claim and defence
Article 23, paragraph (1)
1. Italy expresses the view that it might be more appropriate to set in the model law itself
a period of time for stating the claim and defence instead of leaving its determination to
the parties or the arbitral tribunal.
P 655
P 656
2. The United States proposes, consistent with the concept of party autonomy, to make
clear by appropriate wording that the provision of paragraph (1) is not mandatory.
Uncertainty on this point in the model law could lead to difficulties for parties who
regularly utilize arbitration rules or contract provisions which are not entirely consistent
with this provision of the draft text.
Article 23, paragraph (2)
3. Cyprus is of the view that the phrase “any other circumstances” is too wide and
uncertain. The practice with regard to amendments of pleadings has always been to give
leave to amend, unless the court is satisfied that the party applying was acting mala fide,

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 or that, by his blunder, he had done some injury to his opponent which could not be
compensated for by costs or otherwise. However negligent or careless the first omission
may have been, and however late the proposed amendment, the amendment should be
allowed if it can be made without injustice to the other side. There is no injustice if the
other side can be compensated by costs. An amendment ought to be allowed if thereby
“the real substantial question can be raised between the parties.”
4. The Soviet Union considers that paragraph (2), envisaging that an amendment of or
supplement to a claim or defence may not be allowed by the arbitral tribunal, depending
on “the delay in making it or prejudice to the other party or any other circumstances,” gives
to the arbitral tribunal excessively broad freedom of discretion in the matter which is
important for a comprehensive consideration and fair settlement of the dispute. Such
freedom derives, in particular, from the phrase “other circumstances,” and that phrase
should be deleted. Moreover, the reference to “prejudice to the other party” is considered
equivocal. It is logical to suppose that practically any amendment or supplement
introduced by a party works to its benefit and, consequently, for “prejudice” of the other
party. It appears that it would be more fair to provide for a right of a party to introduce
amendments and supplements at any time before the arbitral tribunal announces the
termination of the examination of the case, or, at least, to restrict the discretion of the
arbitral tribunal, for example, by referring only to the character of and reasons for the
delay.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 23. Statements of claim and defence
Article 23, paragraph (2)
1. AALCC [Asian–African Legal Consultative Committee] recommends that the words “or
supplement” be added in paragraph (2) between the words “to allow such amendment”
and the words “having regard to the delay.”
P 656
P 657
Proposed addition to article 23
2. AALCC recommends that the following new paragraph be added to article 23:
“(3) In any case the court may fix a date before which the parties shall present
their documents and their final statements.”
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 23. Statements of claim and defence
[ .… ]
Essential contents of statement of claim or defence, paragraph (1)
1. Paragraph (1) deals with the preparation of the case in writing. The first sentence sets
forth those elements of the initial pleadings which are essential for defining the dispute on
which the arbitral tribunal is to give a decision. It is then up to the arbitral tribunal to
require further statements or explanations, under its general power of article 19(2). The
required contents of the initial statement of claim and of the respondent's reply may be
regarded as so basic and necessary as to conform with all established arbitration systems
and rules. It is in this spirit that the provision does not go into particulars such as to whom
the statements must be addressed. (68)
2. Nevertheless, it is submitted that the provision should be non–mandatory, at least as
regards its details. For example, arbitration rules may describe these essential contents in
slightly different form or may require their inclusion already in the initial request for
arbitration, in which case the reference in paragraph (1) to the period of time would be
obsolete.
3. The second sentence of paragraph (1) leaves it to each party, and his procedural
strategy, whether to submit all relevant documents or at least refer to the documents or
other evidence at this stage. While these documents or listing of evidence are, thus, not
part of the essential contents of the initial pleadings, the parties are not fully at liberty to
select the point of time for revealing or submitting the documents or other evidence they
intend to rely on. Unless specific provision is made in the arbitration agreement, the
arbitral tribunal may, in its general discretion under article 19(2), require a party to submit
a summary of the documents and other evidence which that party intends to present in
support of his claim or defence and, as is clear from article 25(c), require a party to
produce documents, exhibits or other evidence within a certain period of time.
Amending or supplementing the claim or defence, paragraph (2)
P 657 4. Paragraph (2) leaves it to the discretion of the arbitral tribunal to determine, on the
P 658 basis of certain criteria, whether a party may amend or supplement his statement of

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 claim or defence. One major criterion would be the extent and the reason for the delay in
making the amendment (or supplement (69) ). Another criterion would be prejudice to the
other party, i.e. procedural prejudice (such as upsetting the normal course of the
proceedings or unduly delaying the final settlement of the dispute as defined in the initial
pleadings). Yet, since there may be further reasons which would make it inappropriate to
allow any later amendment, the arbitral tribunal may, under paragraph (2), take into
account “any other circumstances.”
5. However, there is one important point in respect of which the arbitral tribunal has no
discretion at all. The amendment or supplement must not exceed the scope of the
arbitration agreement. This restriction, while not expressed in the article, seems self–
evident in view of the fact that the jurisdiction of the arbitral tribunal is based on, and
given within the limits of, that agreement.
6. Paragraph (2), as stated therein, is non–mandatory. The parties may, thus, derogate
therefrom and provide, for example, that amendments are generally prohibited or that
they are allowed as a matter of right or that they are subject to specified limits.
Analogous application to counter–claim and set–off
7. As noted earlier, (70) the model law no longer refers expressly to counter– claims but any
provision referring to the claim would apply, mutatis mutandis, to a counter–claim. Thus,
paragraph (1) would provide, by analogy, that the respondent shall state the facts
supporting his counter-claim, the points at issue and the relief or remedy sought, and that
he may annex all documents he considers to be relevant or may add a reference to the
documents or other evidence he will submit in support of his counter-claim. It is submitted
that the same would apply to a claim relied on by the respondent for the purpose of a set–
off.
8. As regards paragraph (2), the analogy takes two forms. The first is a true analogy with the
claim, that is, the respondent may amend or supplement his counter–claim unless the
arbitral tribunal considers it inappropriate to allow such amendment for any of the
reasons listed in paragraph (2). The second, and more fundamental, issue covered by
analogy is whether the respondent is allowed to “amend or supplement” his statement of
defence by bringing at a later stage a counter–claim or a claim for the purpose of a set–
off. It may be noted that in both cases the above restriction to the scope of the arbitration
agreement applies.
[Editors' Note: The Commission amended the draft of the Model Law so that the final text
refers expressly to counterclaims. See Article 2(f).]
P 658
P 659
SUMMARY RECORD A/CN.9/SR.322–.323, .332
[13 June 1985, 2:00 p.m., A/CN.9/SR.322]
Article 23. Statements of claim and defence
Paragraph (1)
31. Mr. AYLING (United Kingdom) referred to the discussion in the Working Group on the
subject of whether certain provisions of the model law should be mandatory or not ([Fifth
Working Group Report,] A/CN.9/246, [para. 175]). His delegation, like the United States in its
written comments on article 23(1) ([Sixth Secretariat Note (Government Comments),]
A/CN.9/263, [Art. 23], para. 2), considered that the form of statements of claim and defence
should be subject to the agreement of the parties. There were cases, such as those relating
to the quality of commodities or to claims which had been set out in correspondence
between the parties, where written pleadings were inappropriate.
32. Lord WILBERFORCE (Observer, Chartered Institute of Arbitrators) said that the article
related to the mechanics of arbitration and his organization felt that such matters should
be left to the arbitrators and not legislated in great detail. The first part of article 23 was
cast in mandatory form, but the question of statements of claim and defence should be left
instead to the parties concerned, who could adopt suitable institutional rules to fit the
case. The amendment proposed by the United Kingdom delegation would meet his
concern.
33. Mr. HUNTER (Observer, International Bar Association) agreed with the two previous
speakers. Arrangements should be flexible and where the parties so agreed, there was no
necessity for formal statements of claim and defence.
34. Mr. ROEHRICH (France) said that he understood the practical reasons which had
motivated the United Kingdom proposal but he was concerned at the possible
consequences of adopting it. Article 23 embodied the basic principle of providing the
claimant and the respondent with the opportunity to state their respective cases. There
could be flexibility as to the manner of their presentation but the principle of the right of
defence required that the arbitrators should be seised of all the facts involved in the
dispute submitted to them. How would that be possible if, under the United Kingdom
proposal, parties could agree to present neither a claim nor a response?
35. Mr. HOLTZMANN (United States of America) said he appreciated the support which had
been voiced for his Government's written comments on article 23(1) ([Sixth Secretariat Note

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 (Government Comments)] A/CN.4/263, [Art. 23], para. 2), inspired by the UNCITRAL
Arbitration Rules. However, a number of arbitration institutions had different rules with
regard to the timing and content of pleadings. That was probably the case with the Soviet
Foreign Trade Arbitration Commission and it was certainly the case with the American
P 659 Arbitration Association. The latter body, which dealt annually with 40,000 cases, both
P 660 national and international, only required that the initial statement should give notice of
the intention to submit the dispute to arbitration and of its nature. Information as to the
facts supporting the claim and the points at issue, which usually included legal and factual
arguments, were not required at that stage. The model law, which accepted the concept of
party autonomy, should permit parties to agree on the rules of an established arbitration
institute or on the UNCITRAL Arbitration Rules. He therefore supported the United Kingdom
amendment.
36. Mr. SAMI (Iraq) said that article 23(1) should not be deleted. He agreed with the French
representative that it should provide for minimum procedural standards. However, he was
not opposed to the insertion of a phrase such as “unless otherwise agreed” since, as the
United States representative had pointed out, there were a large number of arbitration
institutes which had their own rules for pleadings.
37. Mr. BOUBAZINE (Algeria) supported the views expressed by the French representative.
38. Mr. HERRMANN (International Trade Law Branch) said that the intention of the Working
Group, which had held similar discussions, had been to express a principle and it was
difficult to envisage how a decision on a dispute could be reached without statements
from the parties concerned. There was the question not only of timing but of whether or not
the pleading should be in written form. He suggested the insertion in the opening phrase of
the words “and in the manner” after the words “period of time.” He preferred the word
“manner” to “form” since it was wider and could include aspects such as the description of
the relief sought.
39. Mr. BARRERA GRAF (Mexico) said that the provisions in article 23(1) were essential since
they constituted the basis of the dispute submitted to arbitration. There could be no claim
without a defence. He would go further and, as his Government had suggested in its written
comments ([Sixth Secretariat Note (Government Comments),] A/CN.9/263, [“Comments on
additional points,”] para. 2 [appearing in the section on Article 2, p. 167 supra]), he urged that
the text should also refer to the possibility of the respondent presenting a counter–claim.
He was prepared to accept the addition to article 23(1) proposed by the representative of
the Secretariat, if that would facilitate matters.
40. Mr. OLUKOLU (Nigeria) said he was in favour of the provisions not being mandatory in
view of the need for flexibility. He was disposed to support the United Kingdom proposal
but he was concerned that the actions of parties should nevertheless be subject to rules,
which could be those applied by established arbitration institutes.
41. Mr. de HOYOS GUTIERREZ (Cuba) supported the present text of article 23(1). A time–limit
should be set for claims and the statements of both parties must be accompanied by
relevant proof, even if some arbitration institutes did not insist upon it. One of the
purposes of arbitration was to guarantee an effective settlement within a limited period of
time.
P 660
P 661
42. Mr. ROEHRICH (France) said it would perhaps be possible to find a common ground on
the lines of the Secretariat proposal, if necessary by simplifying the wording of article
23(1), which was perhaps much too precise to take account of the rules of different
institutions. However, even shorn of some detail, the provision must retain its basic
structure and state that the arbitration of a dispute began with an indication of the claim
and the response to it. He would also support the Mexican proposal.
43. Mr. LOEFMARCK (Sweden) supported the amendment suggested by the French
representative. His delegation would be satisfied with a much vaguer formulation. The
Swedish arbitration code merely stated that the arbitrator should give the parties an
opportunity to present their cases.
44. Mr. ILLESCAS ORTIZ (Spain) said it was important to maintain article 23(1). Neither the
fundamental principle enunciated in article 19(3) [Art. 18 in the final text] nor the inclusion
in article 34 of a general clause regarding the equitable nature of the procedure would be
sufficient to guarantee the necessary even–handed treatment of both parties. Article 23
should state that the parties must submit the facts of the dispute so that the arbitrators
could uphold the rights of each party. It was important to specify the stages of the arbitral
proceedings down to the award. He felt that the Mexican proposal might well be
introduced into article 23(2).
45. Mr. JARVIN (Observer, International Chamber of Commerce) supported the views
expressed by the French representative on article 23(1).
46. Mr. ROGERS (Australia) supported the views expressed by the United States and United
Kingdom representatives. Regarding the remarks of the representative of Spain, he felt
that by inviting the parties to protect themselves against themselves, the model law would
be paying lip service to party autonomy but actually be tying the parties down hand and
foot. Some of the previous speakers had indicated that they knew of no cases when the

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 parties could proceed to arbitration without submitting the material mentioned in article
23(1). In response, he would draw attention to the cases of arbitration of disputes relating
to claims for damage to goods. In those cases the arbitrators simply inspected the goods
on the spot and the parties were not obliged to comply with a minimum standard that
might be unsuited to the facts of the case. In conclusion, he joined the Observer for the
Chartered Institute of Arbitrators in appealing that once a matter had been submitted to
the arbitrators, they should be allowed to do their work as they saw fit and that the
principle of party autonomy should be fully implemented.
47. Mr. BOGGIANO (Observer for Argentina) said that in article 23(2), the parties were
granted the right to alter their statements of claim and defence and thereby to alter the
subject–matter of the proceedings; that freedom should also be reflected in article 23(1).
48. Mr. SEKHON (India) said that he agreed with the reasoning of the representative of
France. Article 23(1) should be retained but if greater flexibility was to be introduced, Mr.
Hermann's suggestion was acceptable.
P 661
P 662
49. Mr. REINSKOU (Observer for Norway) said that article 23 left it up to the parties or to the
arbitral tribunal to decide whether a single or separate time–limit should apply to
statements conveying the facts supporting a claim, the points at issue and the relief or
remedy sought. Although he could accept the article as it stood, he would prefer it to be
redrafted so as to indicate that the matters covered therein were subject to agreement by
the parties.
50. Mr. LEBEDEV (Union of Soviet Socialist Republics) said he agreed with the
representative of France that it would be illogical to place the words “unless otherwise
agreed by the parties” at the very beginning of article 23(1). He also believed that the
concerns expressed by many delegations, including that of the United States, should be
taken into account: many countries already had permanent arbitration institutions which
had their own rules of procedure governing the requirements for statements of claim and
defence, and the model law should not conflict unnecessarily with them. Moreover, Parties
must be enabled to reach agreement among themselves, in accordance with the rules of
procedure of such permanent arbitration institutions, concerning the contents of
statements of claim and defence. The United Kingdom representative also had made a
valid point: hundreds of arbitral proceedings were actually conducted daily without
recourse to special formalities, and the model law should not interfere with that process.
51. He proposed, as a compromise formula, that the words “unless the parties have
otherwise agreed on the contents and the form of such statements” should be added at the
end of the first sentence of article 23(1) and that the next sentence should begin with the
words “The parties may introduce, along with their statements.”
52. Mr. GRAHAM (Observer for Canada) said that the Soviet Union proposals were
acceptable, since they would make it possible to deal flexibly with any type of
proceedings. They obviated the need for the French amendment.
53. Mr. AYLING (United Kingdom) said that the Soviet Union proposals covered all the cases
discussed by the Commission and that his delegation supported them.
54. Mr. ROEHRICH (France) said that the Soviet Union representative had proposed an
excellent compromise and his delegation supported it.
55. Mr. TORNARITIS (Cyprus) pointed out that even in countries which applied strict
regulations concerning statements of claim and defence, those regulations could be
passed over if both parties agreed on some other course.
56. Mr. SCHUMACHER (Federal Republic of Germany) suggested that the words “unless
otherwise agreed by the parties” be deleted from article 23(2) and that a third paragraph,
which might read “The provisions foreseen in paragraphs (1) and (2) may be modified by
agreement between the parties,” should be added.
P 662
P 663
57. Mr. MATHANJUKI (Kenya) said that article 23(1) adequately set out minimum
requirements for submissions from claimants. He had no objection to the first Soviet Union
proposal but believed that whatever procedure was used, the parties must above all have
a clear idea of what they were claiming. He understood the second Soviet Union proposal
to mean that a party was not necessarily required to annex material to its statement
before the proceedings began, as some materials could not be obtained overnight and
flexibility was essential.
58. Mr. LAVINA (Philippines) said that the first Soviet Union proposal was acceptable but
that the second proposal was unnecessary as the sentence to which it applied was already
perfectly clear. He was interested in the proposal made by the representative of the
Federal Republic of Germany and would like to see it in writing.
59. Mr. HUNTER (Observer, International Bar Association) said that the Soviet Union's very
practical proposals would be completely acceptable to practitioners.
60. Mr. RAMADAN (Egypt) said that article 23(1) mirrored article 18 of the UNCITRAL
Arbitration Rules, although it was perhaps somewhat less restrictive. If consensus was

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 reached on the Soviet Union proposal, he would prefer the second sentence of article 23(1)
to be redrafted along the lines of article 18 of the UNCITRAL Arbitration Rules, i.e., that the
words “The claimant shall submit a statement of claim which indicates the following
particulars” should precede the wording suggested by the representative of the Soviet
Union.
61. Mr. PENKOV (Observer for Bulgaria) said that the right of parties to change or amend
their statements of claim and defence was limited in two cases: when the parties so agreed
and when an appropriate decision referring to various reasons and circumstances was
taken by the arbitrators.
62. The CHAIRMAN[Mr. PÃES de BARROS LA?S (Brazil)] said that, if he heard no objection, he
would take it that the Commission wished to approve article 23(1), as amended by the
Soviet Union representative.
63. It was so decided.
[14 June 1985, 9:30 a.m., A/CN.9/SR.323]
Article 23(2)
1. Mr. SEKHON (India) suggested that the word “relevant” should be inserted before
“circumstances” in the last line.
2. Mr. PENKOV (Observer for Bulgaria) said that the autonomy granted to the parties and
the discretion granted to the arbitrators were not compatible with the mandatory
provisions of the model law. For example, the right of each party to be given a full
opportunity of presenting his case, as provided for in article 19(3) [Art. 18 in the final text],
implied the right of each party to make any amendments to his claim or defence
P 663 throughout the proceedings. The provision was, moreover, inconsistent with the single–tier
P 664 jurisdiction which was characteristic of arbitral proceedings. Greater autonomy might
lie with the party occupying the stronger bargaining position, but the award of additional
costs was a proper remedy against dilatory tactics. His delegation was, therefore, in favour
of omitting the limitation on the right of a party to amend or supplement his claim or
defence.
3. Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration) said that,
subject to article 32(2)(b) [Art. 32(2)(c) in the final text], the arbitral tribunal should not have
the power to prevent a party from changing his defence during the proceedings. He
suggested that the last three lines of the paragraph should be amended to read: “However,
the arbitral tribunal may consider it inappropriate to allow the amendment of the claim,
having regard to the delay in making it or the prejudice to the other party.” The words “or
any other circumstances” should be deleted because the factors of delay and prejudice
included all the circumstances that it was appropriate to cover.
4. Mr. ZUBOV (Union of Soviet Socialist Republics) agreed that the paragraph gave the
arbitrators too much freedom; the words “or any other circumstances” should certainly be
deleted. He noted that any amendment or supplement submitted by one party would be
to his advantage and consequently to the prejudice of the other party. It would, therefore,
be more just to grant the parties the right to submit amendments or supplements at any
time until the arbitrators announced the termination of the proceedings.
5. Mr. STROHBACH (German Democratic Republic) endorsed the comments made by the
representatives of Bulgaria and the Soviet Union. There were many ways for the arbitrators
to remedy injustices; in the event of delay, for example, they could make a partial award
or increase the costs allowed. The limitation in the second part of the paragraph was thus
superfluous and he proposed its deletion; the paragraph should end with the words
“arbitral proceedings” at the end of the second line.
6. Mr. SAMI (Iraq) said that the right of the parties to submit amendments or supplements
during the proceedings must be guaranteed until the award was announced. He supported
the deletion proposed by the representative of the German Democratic Republic.
7. Mr. NEMOTO (Observer, Asian–African Legal Consultative Committee) said that the
powers of the arbitral tribunal with respect to the matters covered in the paragraph should
be limited. He suggested that the words “or supplement” should be inserted after
“amendment” in the fourth line.
8. Mr. HOLTZMANN (United States of America) said that he appreciated the concerns
expressed by previous speakers, but his delegation was also concerned about questions of
practicality and cost. If the limitation in the second part of the paragraph was deleted, the
arbitral tribunal would not have the power to prevent abuses of an unlimited right. The
way would then lie open to delays, additional costs and injustices. Article 20 of the
UNCITRAL Arbitration Rules laid down clear guidelines to prevent possible abuse. Similar
provisions were contained in the present text, which his delegation wished to retain in full.
P 664
P 665
9. Mr. ROEHRICH (France) agreed that the provision should be read in conjunction with
articles 19(3) and 32(2). The arbitral proceedings should allow not only an initial exchange
of claim and defence but also the continuation of the dialogue. Arbitration was above all a
matter for the parties and they should be able to submit amendments or supplements

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 when such submissions helped to clarify the subject–matter of the dispute. He was
therefore opposed to limiting that right. He proposed the deletion of the reference to
prejudice to the other party, which was already covered by article 19(3), and dropping the
formula “or any other circumstances,” which was far too broad. The paragraph would then
end at the words “in making it.”
10. Mr. LOEFMARCK (Sweden) said that, for the reasons given by the representative of the
United States, he was strongly opposed to the deletion of the last part of the paragraph.
11. Mr. GRIFFITH (Australia) agreed with the representative of the United States that the
text should be on the same lines as article 20 of the UNCITRAL Arbitration Rules.
12. Mr. MOELLER (Observer for Finland) said that he opposed the deletion of the second
part of the paragraph, for it was necessary to try to prevent abuses. He could accept the
deletion of the words “or any other circumstances” and he could live with the French
proposal even though he would prefer retaining the reference to prejudice to the other
party.
13. Mr. SZURSKI (Observer for Poland) said that in dealing with cases not covered by
agreement of the parties the model law should be flexible and allow them to correct any
error that might have been made in a claim or defence. He could therefore agree to the
proposal to delete the limitation in the second part of the paragraph. He suggested that
the words “until the arbitral proceedings are closed” should be inserted in the opening
proviso after the words “by the parties.”
14. Mr. SAWADA (Japan) said that the present text was satisfactory, for the arbitral tribunal
must retain a degree of control. The change which his delegation could accept was the
deletion of the words “or any other circumstances.”
15. Mr. LAVINA (Philippines) said that his delegation supported the French proposal but
would be prepared to go along with a majority opinion in favour of dropping the second
part of the paragraph.
16. Mr. de HOYOS GUTIERREZ (Cuba) agreed that the right of the parties to submit
amendments or supplements should be limited but he did not think that the powers of the
arbitrators should be too broad. He could therefore accept the French proposal.
17. Mr. AYLING (United Kingdom) said that the Working Group on International Contract
Practices had decided to go into what was, in his delegation's view, excessive detail in the
paragraph in order to maintain a balance between the rights of claimants and
respondents. The text was a fair compromise and should remain unchanged. The French
P 665 proposal was superficially attractive but would lead to the undesirable interpretation that
P 666 the arbitrators were unable to take account of other important matters such as
prejudice, costs and new evidence.
18. Mrs. VILUS (Yugoslavia) said that her delegation preferred the French proposal, which
safeguarded the interests of the arbitral proceedings and of both the parties. As second
choice, she could accept the deletion of the words “or any other circumstances.” Failing
that, the Indian proposal was acceptable.
19. Mrs. DASCALOPOULOU-LIVADA (Observer for Greece) said that the paragraph contained
two mutually antagonistic considerations: the equality of the parties and the requirements
of justice. She supported the French proposal, which struck a fair balance between the two.
20. Mr. RAMADAN (Egypt) said that he understood the practical considerations referred to
by the representative of the United States. However, the French proposal seemed to be a
satisfactory compromise solution. He noted that article 30(2)(b) [sic — 32(2)(b), which
became 32(2)(c) in the final text, was probably meant] provided a guarantee which should
dispel any misgivings about possible abuse by the parties.
21. Mr. GRAHAM (Observer for Canada) agreed with the observer for Greece on the need to
strike a balance between two conflicting considerations. The onus would be on the party
concerned to demonstrate that a delay was justified. He endorsed the argument of the
representatives of the United States and Australia that the model law should follow article
20 of the UNCITRAL Arbitration Rules. As to the French proposal, it would be going too far to
remove the reference to prejudice to the other party but it might be acceptable to delete
the words “or any other circumstances.”
22. Mr. ENAYAT (Observer, Islamic Republic of Iran) said that the present text allowed the
arbitrators excessive freedom and he therefore supported the French proposal.
23. Mr. SCHUMACHER (Federal Republic of Germany) and Mr. BARRERA GRAF (Mexico)
supported the French proposal.
24. Mr. JOKO-SMART (Sierra Leone) said that if article 19(3) were accepted — and his
delegation accepted it — there should be no difficulty in accepting article 23(2) as well. He
opposed the proposal to delete the second part of the paragraph. That would not be
consistent with article 19(3) and moreover, it would encourage abuse of the proceedings,
since the parties could simply go on submitting amendments without the arbitral tribunal
being able to intervene. He was in favour of retaining the references both to delay and to
prejudice. Lastly, he had no objection to the compromise of deleting the words “or any
other circumstances.”

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 25. Mr. KADI (Algeria) recalled that the Working Group had adopted the present text, but
without a majority. He supported the French proposal.
26. Mr. SEKHON (India) opposed the deletion of the reference to prejudice to the other
P 666 party, since the phrase served a useful purpose. There would be prejudice to the other
P 667 party if, for example, a party sought an amendment which involved a subject outside
the scope of the arbitral agreement.
27. Mr. TANG Houzhi (China) said that the second part of article 23(2), which reproduced the
wording in article 20 of the UNCITRAL Arbitration Rules, seemed to offer too much latitude
both to the parties and to the arbitral tribunal. He supported the compromise suggestion
to delete only the concluding words “or prejudice to the other party or any other
circumstances.”
28. Mr. VOLKEN (Observer for Switzerland) supported the view that a better balance was
needed between the freedom allowed to the parties and the control exercised by the
arbitral tribunal. As for the reference to other circumstances, it could be deleted.
29. The CHAIRMAN [Mr. SZASZ (Hungary)] said that there appeared to be some support for
deleting the whole of the second part of the paragraph, and also considerable support for
maintaining the text as it stood, or at least for deleting only the words “or any other
circumstances.” An intermediate solution had also been proposed, namely to delete the
concluding passage “or prejudice to the other party or any other circumstances”: the
paragraph would thus end with the words “having regard to the delay in making it.” He
suggested that the Commission might agree to that proposal, which would be a balanced
solution.
30. It was so decided.
31. Mr. SZURSKI (Observer for Poland) fully supported the decision, on the understanding
that the reference to delay was understood to mean delay in submitting a claim.
32. Mr. HOLTZMANN (United States of America) recalled that, at the previous meeting, the
Mexican representative had raised the question of counter–claims and that it had been
agreed that the Commission should consider it after completing article 23. He understood
the Working Group's view to be that a counter–claim was a form of claim and was therefore
covered by the right to make a claim. The same applied to defence. He suggested that a
sentence should be included in article 23, or wherever else it was relevant, to the effect
that “claim” and “defence” included counterclaim and defence to a counter–claim,
respectively.
33. The CHAIRMAN suggested that the matter should be left until the Commission had
reached the end of the model law, in case a separate provision were needed.
34. Mr. BARRERA GRAF (Mexico), referring to his Government's proposal in its comments
([Sixth Secretariat Note (Government Comments),] A/CN.9/ 263, [“Comments on additional
points,”] para. 2 [appearing in the section on Article 2, p. 167 supra]), said that he would
prefer a reference to counter-claims to be added at the end of article 23(1). If necessary,
however, he would not raise any objection to the matter being dealt with at the end of the
model law, or to an appropriate reference being included in the report.
P 667
P 668
35. The CHAIRMAN said that the Mexican representative's point would be noted. It would
be better to leave the matter until the end of the model law, to see whether it applied to
other articles.
36. It was so decided.
37. Mr. RUZICKA (Czechoslovakia) said that his Government also had made a proposal
([Sixth Secretariat Note (Government Comments),] A/CN.9/263, [“Comments on additional
points,”] para. 3, [appearing in the section on Article 2, p. 167 supra]). He was in favour of
drafting a separate article, in which it should also be pointed out that such claims could
be made only within the scope of the arbitration agreement.
[13 June 1985, 2:00 p.m., A/CN.9/SR.332]
Articles 19 to 23 [as revised by the Drafting Group]
57. Articles 19 to 23 were adopted without change.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 23. Statements of claim and defence
195. The text of article 23 as considered by the Commission was as follows:
[same as Fifth Draft supra].
Paragraph (1)
196. The Commission was agreed that paragraph (1) expressed a basic principle of arbitral
procedure from which the parties should not be able to derogate but that the specific
rules of procedure in respect of the statements of claim and defence should be subject to
the agreement of the parties. It was pointed out that the procedure provided in paragraph

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 (1) was not entirely consistent with the procedure in some institutional arbitration rules.
The Commission decided to express the distinction between the mandatory nature of the
principle expressed in paragraph (1) and the non–mandatory nature of the procedural
rules by adding to the end of the first sentence words along the lines of “unless the parties
have otherwise agreed on the contents and form of such statements.”
197. It was also noted that the verb “annex” contained in the second sentence of paragraph
(1) might be interpreted to require a statement of claim or defence always to be in writing.
The Commission, being in agreement that that was not the intended interpretation,
referred the matter to the Drafting Group.
Paragraph (2)
198. Different views were expressed as to the power of the arbitral tribunal to allow an
amendment of a statement of claim or defence. Under one view, the parties should not be
prevented from amending their statements of claim or defence since any limitation in that
P 668 respect would be contrary to their right to present their case. Under that view a full stop
P 669 should be placed after the words “arbitral proceedings.” Recognizing that a late
amendment might cause delay in the proceedings, it was suggested that the appropriate
way of dealing with the problem was by apportioning the costs of the proceedings or by
deciding on the issues presented in good time in a partial award and postponing the
settlement of the remaining issues.
199. However, under the prevailing view the arbitral tribunal should have a power not to
allow amendments to the statement of claim or defence under certain circumstances.
Several views were expressed as to how the scope of that power should be delimited.
Under one view, which received considerable support, the entire text of paragraph (2)
should be retained because it provided appropriate guarantees against delay in arbitral
proceedings while allowing sufficient flexibility in justified cases. Under another view, the
words “any other circumstances” were too vague and should either be replaced by the
words “any other relevant circumstances” or deleted. Under yet another view, the desired
precision could be achieved only by deletion of the words “or prejudice to the other party”
as well since it was not clear what kind of prejudice was meant.
200. The Commission adopted the latter view and decided to delete the words “or
prejudice to the other party or any other circumstances.”
Counter–claim
201. A suggestion was made to add a provision, either in article 23 or in another
appropriate place, that any provision of the model law referring to the claim would apply,
mutatis mutandis, to a counter–claim. It was agreed that the Commission would consider
the matter after it had completed its consideration of the entire draft model law. The
subsequent decision in respect of counter–claims is reflected below in para. 327 [appearing
in the section on Article 2, p. 182 supra].
P 669

References
1) Third Secretariat Note, A/CN.9/WG.II/WP.41, para. 20, pp. 651–52 infra.
2) Id.
3) Id. para. 21, p. 652 infra. The subsequent Working Group Report suggests that the
proposal was to have both a mandatory and a supplementary rule. See Third Working
Group Report, A/CN.9/233, para. 25, p. 652 infra.
4) Third Working Group Report, A/CN.9/233, para. 25, p. 652 infra.
5) Id. para. 26, p. 652 infra.
6) See Third Draft, A/CN.9/WG.II/WP.44, Art. C, pp. 652–53 infra.
7) See Fourth Working Group Report, A/CN.9/245, para. 33, p. 654 infra; Fifth Working
Group Report, A/CN.9/246, para. 175, p. 655 infra.
8) Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 23, para. 2, p. 656
infra.
9) Seventh Secretariat Note, A/CN.9/264, Art. 23, para. 2, p. 657 infra.
10) See, e.g., id.; Summary Record, A/CN.9/SR.322, paras. 32, 35, 50, pp. 659–60, 662 infra.
Among the sets of rules that contain different provisions on the contents of the initial
pleadings are the ICC Rules of Arbitration, Arts. 3(2), 4(1) (1988); the Rules of Procedure
for Cases in the Foreign Trade Arbitration Commission Attached to the USSR Chamber
of Commerce and Industry § 14 (1975); and the Commercial Arbitration Rules of the
American Arbitration Association, rule 7 (1982).
11) See, e.g., Summary Record, A/CN.9/SR.322, paras. 31, 38, 46, pp. 659–61 infra.
12) See, e.g., id. paras. 34, 39, 41, 42, pp. 659–61 infra.
13) Commission Report, A/40/17, para. 197, p. 668 infra.

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 14) The Secretariat noted that the indication in this second sentence that parties may
include in their statements of claim or defense references to evidence “they will
submit” should not be interpreted to leave the timing of evidentiary submissions
completely in the hands of the parties. Rather, it was said that Article 25(c), which
permits the tribunal to continue the proceedings if any party fails to appear at hearing
or to produce documentary evidence, makes clear that the arbitral tribunal has the
power under Article 19(2) to set periods of time for production of documents and other
evidence. See Seventh Secretariat Note, A/CN.9/264, Art. 23, para. 3, p. 657 infra.
15) See Third Draft, A/CN.9/WG.II/WP.44, Art. C(3), p. 653 infra.
16) Seventh Secretariat Note, A/CN.9/264, Art. 23, para. 4, pp. 657–58 infra.
17) See, e.g., Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 23, para. 4,
p. 656 infra; Summary Record, A/CN.9/SR.323, paras. 2, 4, 5, pp. 663–64 infra;
Commission Report, A/40/17, para. 198, pp. 668–69 infra.
18) See, e.g., Summary Record, A/CN.9/SR.323, paras. 8, 10, 11, 17, pp. 664–66 infra;
Commission Report, A/40/17, para. 199, p. 669 infra.
19) See, e.g., Summary Record, A/CN.9/SR.323, para. 9, p. 665 infra.
20) See Commission Report, A/40/17, para. 199, p. 669 infra; Sixth Secretariat Note
(Government Comments), A/CN.9/263, Art. 23, para. 4, p. 656 infra.
21) See Summary Record, A/CN.9/SR.323, para. 9, p. 665 infra.
22) Id., para. 20, p. 666 infra.
23) Seventh Secretariat Note, A/CN.9/264, Art. 23, para. 5, p. 658 infra.
24) See generally id. paras. 7–8, p. 658 infra.
*) [Editors' Note: This refers to the “questions for discussion” suggested by the Secretariat
in the Second Secretariat Note. The cited questions appear in the sections of this book on
Articles 9 (interim measures), 17 (interim measures), 19 (rules of procedure), 20 (place of
arbitration), 25 (default), 26 (experts), and 27 (court assistance in taking evidence), and in
the section on Matters Not Addressed in the Final Text (representation and assistance).]
**) [Editors' Note: See also paragraph 58 of this document, which considers the general
question of the extent to which the Model Law should include “supplementary rules on
arbitral procedure.” It appears in the section on Article 19, p. 574 supra.]
5) [First Working Group Report,] A/CN.9/216, para. 72. [Editors' Note: This report addressed
the Working Group's first session on the Model Law; the Working Group's previous two
sessions had been concerned with other matters.]
6) The decision to consider this subject was adopted at the third session of the Working
Group; see [First Working Group Report,] A/CN.9/216, para. 72.
7) Discussion and conclusions of the Working Group in [the Third Working Group Report,]
A/CN.9/233, paras. 24–26; see also note by the Secretariat, [Third Secretariat Note,]
A/CN.9/WG.II/WP.41, paras. 19–21.
8) The provision in square brackets is modelled on article 18(2) and article 19(2) of the
UNCITRAL Arbitration Rules.
9) Draft paragraph (2) is modelled on article 18(1) and article 19(1) of the UNCITRAL
Arbitration Rules. It may be noted that the decision whether paragraph (2) of this draft
article is necessary largely depends on the decision of the Working Group on the two
alternatives in draft article XVII(3) [Art. 24(3) in the final text] (in [the Second Draft,]
document A/CN.9/WG.II/WP.40 [appearing in the section on Article 24, p. 679 infra]); if
the first alternative in draft article XVII(3) is adopted, i.e., that all documents or
information supplied to the arbitral tribunal by one party shall be communicated to
the other party, there may be little need for the provision of paragraph (2) of this draft
article.
10) Draft paragraph (3) is modelled on article 20 of the UNCITRAL Arbitration Rules.
7) See decision below, para. 196 [appearing in the section on Article 2, p. 165 supra].
68) Article 24(4) [Art. 24(3) in the final text] ensures that any statement submitted to the
arbitral tribunal would be communicated to the other party.
69) The word “amendment” was intended by the drafting group to include “supplement.”
70) Commentary to article 16, para. 5, and footnote 54 [appearing in the section on Article
16, p. 509 supra].

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 KluwerArbitration

Document information
UNCITRAL Model Law, Chapter V, Article 24 [Hearings and
Publication written proceedings]
A Guide to the UNCITRAL (1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide
Model Law on International whether to hold oral hearings for the presentation of evidence or for oral argument,
Commercial Arbitration: or whether the proceedings shall be conducted on the basis of documents and other
Legislative History and materials. However, unless the parties have agreed that no hearings shall be held,
Commentary the arbitral tribunal shall hold such hearings at an appropriate stage of the
proceedings, if so requested by a party.
(2) The parties shall be given sufficient advance notice of any hearing and of any
Organization meeting of the arbitral tribunal for the purposes of inspection of goods, other
United Nations Commission property or documents.
on International Trade Law (3) All statements, documents or other information supplied to the arbitral tribunal by
one party shall be communicated to the other party. Also any expert report or
evidentiary document on which the arbitral tribunal may rely in making its decision
Promulgation shall be communicated to the parties.

21 June 1985 Commentary

Paragraph 1. Article 24(1) governs the important question of the availability of hearings
Legislation number before the arbitral tribunal. The provision was modelled on Article 15(2) of the UNCITRAL
Arbitration Rules, (1) which provides,
United Nations Document
A/40/17, Annex I If either party so requests at any stage of the proceedings, the arbitral tribunal
shall hold hearings for the presentation of evidence by witnesses, including
expert witnesses, or for oral argument. In the absence of such a request, the
arbitral tribunal shall decide whether to hold such hearings or whether the
Bibliographic reference proceedings shall be conducted on the basis of documents and other materials.
'UNCITRAL Model Law,
Chapter V, Article 24 The Rule provision thus expresses two basic policies: (1) if a party requests a hearing, the
[Hearings and written arbitral tribunal must provide it; (2) if no party requests a hearing, the arbitral tribunal has
proceedings]', in Howard M. discretion whether to hold one or not. The Working Group accepted these principles and
Holtzmann and Joseph they were incorporated more or less consistently in the drafts of Article 24 and in the final
Neuhaus , A Guide to the text. They probably govern the vast majority of cases. (2) The UNCITRAL Arbitration Rules
UNCITRAL Model Law on do not, however, address one issue that the Model Law needed to deal with, and that is the
International Commercial effect of an agreement by the parties to have or not to have hearings in a case. The Rules
Arbitration: Legislative P 670 themselves constitute a comprehensive agreement between the parties on procedural
History and Commentary, P 671 questions, and they do not envision a separate agreement on whether to hold a hearing.
(© Kluwer Law International; An arbitration law, however, must provide for the situation — albeit a rare one — in which
Kluwer Law International the parties have made such an agreement. This problem proved to be one of the more
1989) pp. 670 - 697 difficult policy and drafting questions considered by the drafters.
As noted, the First Draft of the provision was modelled on Article 15(2) of the UNCITRAL
Arbitration Rules, and in fact was identical to that provision. The Working Group initially
deferred consideration of whether the paragraph should be mandatory or not — that is,
whether the parties could agree in advance at all on whether to have a hearing or not —
but it soon decided that the provision could be modified by agreement of the parties. (3)
Therefore, the order of the two sentences of the First Draft was reversed and the phrase
“[f]ailing agreement by the parties,” or, later, “[s]ubject to any contrary agreement by the
parties,” was placed at the beginning of the new first sentence of the draft. (4)
This resulted, however, in an ambiguity. It was not clear whether the proviso regarding
agreement of the parties, which was placed at the beginning of the first sentence,
extended as well to the second sentence. If it did, then a party would be bound by a prior
agreement not to have a hearing; that is, the party could not subsequently demand one,
and the tribunal could not subsequently grant one. If the clause regarding agreement did
not apply to the second sentence, on the other hand, then a party could demand an oral
hearing even if he or she had earlier agreed to have written proceedings. (5) The Working
Group resolved this ambiguity by adopting a modified version of this second approach. It
decided that “the right of a party to request a hearing was of such importance that the
parties should not be allowed to exclude it by agreement.” (6) At the same time, the
Working Group felt that in such a situation the arbitral tribunal should have a certain
amount of control over whether a hearing is held, so it provided that where the party
requests a hearing the arbitral tribunal “may hold,” rather than “shall hold,” a hearing. (7)
In adopting this provision regarding the situation in which there was agreement by the
P 671 parties, however, the Working Group altered — apparently inadvertently (8) — the policy to
P 672 be applied in the more common situation in which there was no such agreement, so that
under the Fifth Draft a party no longer had the right to demand a hearing in the absence of

1
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 an agreement on the subject. While the Working Group apparently had intended to provide
the arbitral tribunal with discretion only to decide whether a party was bound by his or her
prior agreement not to have a hearing, instead it gave the tribunal discretion with respect
to whether to hold a hearing in all cases other than those in which the parties had agreed
that one must be held. The Secretariat suggested that this arrangement might be
inconsistent with a party's right under Article 18 to a full opportunity of presenting his or
her case. (9)
During the Commission's deliberations, there was wide agreement that this error should be
corrected and that, at least in the absence of a contrary agreement, a party should be able
to demand a hearing. (10) There was no such accord with respect to the policy to be
adopted for cases in which there was an agreement not to have a hearing. Some
delegations supported the policy adopted by the Working Group — that an arbitral
tribunal had discretion to grant or not to grant a request for a hearing, despite the
requesting party's contrary prior agreement. (11) Others concurred that such an agreement
should not bind the parties but felt that in all cases the arbitral tribunal should not have
any discretion to bar a hearing if one were requested. (12) Still other delegations thought
that agreements not to have hearings should be binding. One delegation suggested a
middle ground — that such an agreement to have written proceedings would be binding
only if it were made after the dispute arose (13) — but most argued that such an agreement
should be binding whether made before or after the dispute arose. (14)
This last proposal was the solution that received the widest support. (15) As a result, an
agreement not to have a hearing will bind the parties. If there is no such agreement, then
either party may demand a hearing. (16) If there is no agreement and no request for a
hearing, the arbitral tribunal will have discretion whether to hold a hearing or not. (17)
P 672
P 673
In addition to the basic policies on the availability of a hearing, the legislative history of
paragraph 1 highlights a number of other features of that paragraph. First, Article 15(2) of
the UNCITRAL Arbitration Rules provides for a party's request for a hearing “at any stage of
the proceedings.” In the Working Group, there was concern that this provision might be
interpreted so as to permit disruption of expeditious proceedings. It therefore altered the
phrase to read “at the appropriate stage of the proceedings.” (18) In addition, apparently
for drafting reasons, this language was placed so as to modify the holding of the hearing
rather than the request. (19) After discussion, the Commission reaffirmed these decisions.
(20)
In practice, it is submitted that this change should make little difference. Consistent with
recognized rules of construction, the UNCITRAL Arbitration Rules provision should be
interpreted to prevent the absurd result of allowing a party to disrupt the orderly course of
proceedings by making hearing requests at inappropriate times. (21) The Model Law
provision is clearer, however: a request presumably must come at such a time as to permit
the arbitral tribunal to hold a hearing at an appropriate stage of the proceedings. It may
not come, for example, on the eve of the award or after the time set by the tribunal for
such requests has lapsed.
A second change from the UNCITRAL Arbitration Rules is that the description of the hearing
to be provided has been broadened. Rather than hearings for “the presentation of
evidence by witnesses, including expert witnesses, or for oral argument,” the Model Law
deletes the references to “witnesses.” It provides that the hearings are simply for “the
presentation of evidence or for oral argument.” The change was intended to ensure that the
provision would not be interpreted to bar types of evidence that might be deemed in
some systems not to be “testimony of witnesses,” such as cross–examination or the
testimony of a party. (22)
Finally, a proposal was made in the Working Group that a party should have a right to
P 673 request oral argument only “on the substance of the dispute,” and not on procedural or
P 674 jurisdictional questions. (23) The Working Group declined to accept the suggestion, and
the party's right to a hearing should not be considered limited to substantive issues. (24)
Nevertheless, as the Commission's Report noted, the arbitral tribunal has considerable
control over the timing and length of such a hearing and other aspects of hearing
procedure, subject only to the general limitations of Articles 18 and 19. (25)
Paragraph 2. Paragraph 2 relates to the necessity that parties be given notice of hearings
and of meetings for inspection. It was intended that the provision be a mandatory one,
meaning that even if parties agree, for example, to dispense with notice or to provide for a
shorter than “sufficient” period of notice, such an agreement would be ineffective. (26) The
Secretariat also noted that this provision is fundamental to the operation of Article 25(c),
which provides for continuing the proceedings in case a party fails to appear at a hearing.
(27)
The flexible term “sufficient” to define the amount of notice to be given was initially
included in a draft provision dealing with notice of inspections of goods, other property, or
documents, and was based on Article 16(3) of the UNCITRAL Arbitration Rules. (28) The
Working Group directed that the provision be expanded to include hearings. (29) The
Working Group rejected inclusion of a requirement that notice be given at least 40 days in
advance, because “a fixed time–period was considered as inappropriate in view of the

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 great variety of cases” that would be covered by the Model Law. (30)
Paragraph 3. This paragraph requires first that all documents or information supplied to
the arbitral tribunal by one party shall be communicated to the other party. It covers the
same subject matter as Article 15(3) of the UNCITRAL Arbitration Rules, which requires that
“[a]ll documents and information supplied to the arbitral tribunal by one party shall at the
same time be communicated by that party to the other party.” (31) The highlighted
language was deleted from the Model Law provision in order to accommodate the
practices of some arbitral institutions, under which documents are sent first to the
institution or the tribunal, which then transmits them to the arbitrators and the other
party. (32)
P 674
P 675
The second sentence of paragraph 3 initially required that any expert report “or other
document” relied upon by the arbitral tribunal be communicated or made available to the
parties. (33) The Commission changed the words “other document” to “evidentiary
document.” It did so to ensure that “research material prepared or collected by the
arbitral tribunal did not have to be communicated to the parties.” (34)

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
IV. Arbitral procedure
[ .… ]
2. Arbitral proceedings in general
[ .… ]
[Editors' Note: Paragraph 73 of this document, which appears in the section on Article 19, p.
572 supra, states that “[t]he model law should empower the arbitral tribunal to conduct the
arbitration proceedings in such manner as it considers appropriate,” subject to certain
restrictions discussed in that paragraph. The Note continues as follows; the full text of the
following paragraph appears in the section on Article 19.]
74. Furthermore, the model law may impose certain rules which would be binding on the
arbitrators either irrespective of any conflicting agreement by the parties or only if the
parties have not agreed otherwise. Examples of the first category, i.e. mandatory rules,
include [see the sections on Articles 9, 16, and 25]. Examples of the second category, i.e.
rules from which the parties may derogate, include [see the sections on Articles 19 and 26,
and the section on Matters Not Addressed in the Final Text (representation and assistance)].
One might add provisions on hearings [Art. 24], on amendments to claim or defence [Art.
23], or on the language(s) to be used in the proceedings, whereby the language of the
arbitration agreement might be considered as a possible determinant [Art. 22].
P 675
P 676
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
IV. Arbitral procedure
[ .… ]
2. Arbitral proceedings in general
Question 4–3: Should the model law expressly empower the arbitral tribunal to
conduct the proceedings as it deems appropriate and, if so, what restrictions
should be laid down? [See the sections on Articles 18 and 19, supra.]
[ .… ]
57. The Working Group was agreed that the model law should contain procedural provisions
along the lines of article 15, paragraphs 2 and 3 of the UNCITRAL Arbitration Rules, subject
to the later decision of the Working Group on the general question as to what extent the
model law should include supplementary procedural rules for those cases where parties
had not agreed on the procedure. (*) Divergent views were expressed as to whether the
above provisions, if they were to be included, should be mandatory or not. The Working
Group deferred its decision on that point and requested the Secretariat to draft a
provision for consideration by it.
FIRST DRAFT A/CN.9/WG.II/WP.37 (15 JULY 1982)
IV. Arbitral procedure
[ .… ]

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 2.–4. Arbitration proceedings in general, evidence, experts (32)
Article 19 [Arts. 19 & 26 in the final text]
(1) The arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate.
(a) subject to the provisions of articles 20 to 24 [Arts. 17, 20(2), 24, 25 & 26 in the final
text] and any instructions given by the parties in the arbitration agreement; (33)
[ … ].
P 676
P 677
[ .… ]
Article 20 [Art. 24 in final text] (35)
(1) If either party so requests at any stage of the proceedings, the arbitral tribunal shall
hold hearings for the presentation of evidence by witnesses, including expert
witnesses, or for oral argument. In the absence of such a request, the arbitral tribunal
shall decide whether to hold such hearings or whether the proceedings shall be
conducted on the basis of documents and other materials.
(2) All documents or information supplied to the arbitral tribunal by one party shall [at
the same time] be communicated [by that party] (36) to the other party.
Article 21 [Arts. 20 & 24 in the final text] (37)
Notwithstanding the provisions of article 18 [Art. 20 in the final text], the arbitral tribunal
may
[…]
(b) meet at any place it deems appropriate for the inspection of goods, other property or
documents. [See the section on Article 20, supra.] The parties shall be given sufficient notice
to enable them to be present at such inspection.
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Arbitral procedure
[ .… ]
Arbitration proceedings in general, evidence, experts
Article 19 [Art. 19 & 26 in the final text]
103. The Working Group agreed to decide to what extent the provisions of articles 20 to 24
[Arts. 17, 20(2), 24, 25 & 26 in the final text] should be mandatory in deliberations on each of
those articles.
[ .… ]
P 677
P 678
Article 20 [Art. 24 in the final text]
107. The text of article 20 as considered by the Working Group was as follows:
[same as First Draft, supra].
108. The Working Group was of the view that the rule in paragraph (1) calling for a hearing at
the request of either party could be modified by the agreement of the parties. However, if
the parties had not so agreed, the rule was binding on the arbitral tribunal.
109. The Working Group was also of the view that the parties could not modify the rule
expressed in paragraph (2) to the extent that it required that all documents or information
supplied to the arbitral tribunal by one party had to be furnished to the other party.
However, the method by which they were to be furnished to the other party could be
determined by the parties or by the arbitral tribunal.
110. It was suggested that paragraph (2) might be moved to article 19 (1) (b) [Art. 18 in the
final text] as an example of the principle of equality.
111. The Working Group expressed the view that the provision allowing a request for oral
hearings “at any stage” of the proceedings was too broad and that this right should be
appropriately limited so as to be available at the appropriate stage of the proceedings in
the interest of expeditious proceedings. A suggestion was made that a party should have a
right to request oral hearings only for substantive arguments but not for procedural
arguments.
Article 21 [Art. 24 in the final text]
112. The text of article 21 as considered by the Working Group was as follows:
[same as First Draft, supra].

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 113. It was agreed that the text should make it clear that when witnesses were to be heard,
the parties should always be given sufficient notice to enable them to be present at the
hearing. Except for the requirement of notice, the Working Group was of the view that the
provision was not binding on the parties.
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
F. Place and conduct of arbitration proceedings
Article XV [Arts. 18 & 19 in the final text]
(1) Subject to the provisions of article XVII (1) [(a),] (b), (2), (3), [(5),] [Arts. 24(1), 26(2), 24(2),
24(3), 26(1)(b), respectively, in the final text] the parties are free to [agree on] [determine,
either directly or by reference to arbitration rules,] the procedure to be followed by the
arbitral tribunal (15) in conducting the proceedings.
P 678
P 679
[ .… ]
Article XVII [Arts. 24 & 26 in the final text]
(1) [Failing agreement by the parties,] (16) the arbitral tribunal shall decide whether to
hold hearings or whether the proceedings shall be conducted on the basis of
documents and other materials. However, if a party so requests,
(a) the arbitral tribunal shall, at the appropriate stage of the proceedings, hold
hearings for the presentation of evidence by witnesses, including expert
witnesses, or for oral argument [on the substance of the dispute];
[ … ].
(2) In order to enable the parties to be present at any hearing and any meeting of the
arbitral tribunal for inspection purposes, they shall be given [sufficient] notice
[thereof at least 40 days in advance]. (17)
(3) All documents or information supplied to the arbitral tribunal by one party shall be
[communicated] [made available] to the other party. Also any expert report or other
document, on which the arbitral tribunal may rely on in making its decision, shall be
made available to the parties.
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[ .… ]
Article XVII [Art. 24 in the final text]
80. The text of article XVII as considered by the Working Group was as follows:
[same as Second Draft, supra].
Paragraph (1)
81. The Working Group adopted paragraph (1) subject to the following modifications. While
some support was expressed for deleting the introductory phrase “Failing agreement by
the parties,” the prevailing view was to retain such a proviso, however in a different
wording: “Subject to any contrary agreement by the parties.” As regards sub–paragraph (a),
the Working Group decided not to retain the wording placed between square brackets [ … ]
P 679
P 680
Paragraph (2)
82. The Working Group adopted this paragraph with the word “sufficient” placed between
the first square brackets and, accordingly, without the alternative wording placed between
the second square brackets since a fixed time–period was considered as inappropriate in
view of the great variety of cases.
Paragraph (3)
83. The Working Group adopted this paragraph with the word “communicated” placed
between the first square brackets in lieu of the alternative wording “made available.” The
same preference was expressed with regard to the second sentence where, accordingly,
the words “made available” are to be replaced by the word “communicated.” It was noted
that the paragraph laid down the important principle that each party should receive all
relevant documents or information without, however, regulating the mechanics of how
precisely and by whom the documents would have to be communicated to the party.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 24. Hearings and written proceedings
(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide
whether to hold hearings or whether the proceedings shall be conducted on the basis
of documents and other materials. However, if a party so requests, the arbitral
tribunal shall, at the appropriate stage of the proceedings, hold hearings for the
presentation of evidence by witnesses, including expert witnesses, or for oral

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 argument.
(2) In order to enable the parties to be present at any hearing and at any meeting of the
arbitral tribunal for inspection purposes, they shall be given sufficient notice in
advance.
(3) All statements, documents or other information supplied to the arbitral tribunal by
one party shall be communicated to the other party. Also any expert report or other
document, on which the arbitral tribunal may rely in making its decision, shall be
communicated to the parties.
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 24
74. The text of article 24 as considered by the Working Group was as follows:
P 680
P 681
[same as Fourth Draft, supra].
75. The Working Group adopted that article, subject to the modification of paragraphs (1)
and (2) in the following form:
“(1) Subject to any contrary agreement by the parties, the arbitral tribunal
shall decide whether to hold oral hearings or whether the proceedings
shall be conducted on the basis of documents and other materials.
“(1
bis) Notwithstanding the provisions of paragraph (1) of this article, if a party so
requests, the arbitral tribunal may, at an appropriate stage of the
proceedings, hold hearings for the presentation of evidence or for oral
argument.
“(2) The parties shall be given sufficient advance notice of any hearing or any
meeting of the arbitral tribunal for inspection purposes.”
76. The Working Group was agreed that the last sentence of paragraph (1) was ambiguous in
that it allowed the following conflicting interpretations: (a) a party has a right to request a
hearing only if the parties have not agreed that the proceedings be conducted on the basis
of documents and other materials and, as a result, it was for the arbitral tribunal to decide
on the mode of the proceedings; (b) a party has a right to request an oral hearing even if
the parties have agreed on written proceedings.
77. Divergent views were expressed as to which was the appropriate rule in terms of policy.
Under one view, full effect should be given to an agreement by the parties that the arbitral
proceedings be conducted without hearings even if a party later requested a hearing. The
prevailing view was that the right of a party to request a hearing was of such importance
that the parties should not be allowed to exclude it by agreement.
78. The proponents of the prevailing view were divided on whether the arbitral tribunal
had to follow such a request by a party and hold hearings or whether it should have
discretion in that regard. Under one view, the right of a party to request a hearing was so
fundamental that the arbitral tribunal should have to comply with it. Under another view,
which the Working Group adopted after deliberation, a certain control by the arbitral
tribunal was desirable and the proper wording for the provision was therefore that the
arbitral tribunal “may hold” hearings, if a party so requested.
79. It was noted that paragraph (1) (second sentence) referred to “hearings for the
presentation of evidence by witnesses, including expert witnesses” and that that reference
was too limited because it did not cover other types of evidence, for example, cross–
examination or testimony of a party. The Working Group was agreed that, instead of
enumerating all possible types of evidence recognized in various legal systems, a general
formula was preferable and that, therefore, the reference should merely read: “hearings for
the presentation of evidence.”
80. It was observed that paragraph (2), in addition to establishing the requirement of
P 681 advance notice, could be understood as dealing with the procedural rights of the parties at
P 682 a hearing or at a meeting for inspection purposes and that such a regulation was
insufficient and too restrictive. In order to meet that concern, the Working Group decided
to revise the provision so as to retain only the requirement of advance notice.
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 24. Hearings and written proceedings
(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide
whether to hold oral hearings or whether the proceedings shall be conducted on the
basis of documents and other materials.
(2) Notwithstanding the provisions of paragraph (1) of this article, if a party so requests,
the arbitral tribunal may, at any (*) appropriate stage of the proceedings, hold

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 hearings for the presentation of evidence or for oral argument.
(3) The parties shall be given sufficient advance notice of any hearing and of any
meeting of the arbitral tribunal for inspection purposes.
(4) All statements, documents or other information supplied to the arbitral tribunal by
one party shall be communicated to the other party. Also any expert report or other
document, on which the arbitral tribunal may rely in making its decision, shall be
communicated to the parties.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 24. Hearings and written proceedings
Article 24, paragraphs (1) and (2)
1. Poland and the United States propose that paragraphs (1) and (2) of article 24 should be
replaced by a single paragraph, based largely on article 15(2) of the UNCITRAL Arbitration
Rules, as follows:
“Unless the parties have agreed that no hearings shall be held, if either party so
requests at any appropriate stage of the proceedings, the arbitral tribunal shall
hold hearings for the presentation of evidence by witnesses or for oral
argument. In the absence of such a request, the arbitral tribunal shall decide
whether to hold such hearings or whether the proceedings shall be conducted
on the basis of documents and other materials.”
In connection with this proposal, Poland notes that the parties usually do not stipulate in
P 682 the arbitration agreement that there must be a hearing, and that, where any negotiations
P 683 on this point have not produced an agreement, the model law gives all powers to the
arbitral tribunal; this solution is undesirable and is in conflict with the interest of the
parties for whom the hearing constitutes a key element of the proceedings where they are
able to put forward their full argumentation. The United States, concerned that under the
present text of article 24 a party desirous of a hearing is not assured that there will be one,
advances the following arguments in support of the proposed text. The right to a hearing,
unless waived, is an important means of ensuring a just result. Unless 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. This can often be
done best by oral argument. The corresponding provision of the UNCITRAL Arbitration
Rules, article 15(2), provides that “If either party so requests at any stage of the
proceedings, the arbitral tribunal shall hold hearings ….” There seems to be no reason to
depart from this principle already adopted by the Commission. Inclusion of this principle
in the model law would also eliminate a possible ground for the setting aside of an award
on the theory that a party had been “otherwise unable to present his case” within the
meaning of articles 34 and 36. The United States considers that the danger of possible
abuse of the right to be heard as a delaying tactic should be avoided by application of the
words “at any appropriate stage of the proceedings” already contained in the present draft
of paragraph (2). Experience has shown that article 15(2) of the UNCITRAL Arbitration Rules
on which the proposed text is modelled is effective and unambiguous. Furthermore,
consistency between the model law and the UNCITRAL Arbitration Rules on the subject of
hearings will promote uniformity in international arbitration procedure.
2. The German Democratic Republic suggests formulating the principle laid down in article
24(2) in clearer and more compelling terms, i.e., that oral hearings shall be held whenever
so requested by a party (article 24(2)) or whenever there is doubt about the attitude of the
parties in respect of holding an oral hearing.
3. Sweden suggests that in paragraph (2) the word “may” should be replaced by the word
“shall.”
4. IBA [International Bar Association] proposes to reconsider the wording of article 24(2).
The present text suggests that the question of whether or not a hearing should be held is
entirely within the discretion of the tribunal, even if a hearing has been requested by one
of the parties. Such a result appears, prima facie, to be contrary to the prevailing view in
the Working Group, namely that “the right of a party to request a hearing was of such
importance that the parties should not be allowed to exclude it by agreement.” (29) The
report of the Working Group highlights the divergence of view, but does not appear to
resolve it. (30)
P 683 5. The Soviet Union suggests providing in paragraph (2), for the sake of certainty, that, in all
P 684 cases or at least in the case where the parties have failed to agree after the dispute has
arisen on proceedings on the basis of documents only, the arbitral tribunal must, at the
request of either party, hold oral hearings after having notified the parties about the
hearing.
6. In the view of Norway, paragraph (1) seems to imply that the arbitral tribunal cannot

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 decide that the proceedings shall be conducted partly on the basis of oral hearings and
partly on the basis of documents. It is thought that the arbitral tribunal should have this
opportunity and, consequently, it is suggested modifying paragraph (1) as follows:
“(1) Subject to any contrary agreement by the parties, the arbitral tribunal
decides whether or to what extent to hold oral hearings and whether or to what
extent the proceedings shall be conducted on the basis of documents and other
materials.”
7. Austria favours replacement of the opening phrase of paragraph (1) “subject to any
contrary agreement by the parties” by the phrase “unless otherwise agreed by the parties,”
as the latter is frequently used in the model law.
Article 24, paragraph (3)
8. In the view of Cyprus, the model law should determine the period of time between the
notice and the hearing or meeting since the word “sufficient” will give rise to problems.
9. The Soviet Union suggests, for the reasons of clarity, replacing the words “for inspection
purposes” in paragraph (3) by the words “for the purposes of inspection, indicated in
article 20(2)” or by the words “for the purposes of inspection of goods, other property, or
documents.”
Article 24, paragraph (4)
10. The Soviet Union considers the requirement in the second sentence of paragraph (4),
that any “other document” on which the arbitral tribunal may rely in making its decision
must be communicated to the parties, as too broad since it can be interpreted to apply,
for example, to documents such as publications of laws, judicial precedents and legal
studies. The requirement should refer only to documents of evidentiary nature, i.e.
“documentary evidence” in the sense of article 22(2), and this should be clearly stated in
paragraph (4) of article 24.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 24. Hearings and written proceedings
Article 24, paragraphs (1) and (2)
1. Canada observes that the drafting of paragraphs (1) and (2) can be confusing to the
P 684 reader. In the absence of a contrary agreement, a party should have the right to an oral
P 685 hearing. This should not be in the discretion of the arbitral tribunal. Even if the parties
have agreed previously not to have oral hearings, a party should still be able subsequently
to require an oral hearing (on terms and conditions — such as costs — which could be
established by the arbitral tribunal) in the interest of giving him a full and fair opportunity
to present his case. In any event, the arbitral tribunal should always have the power to
order an oral hearing on its own initiative if it feels such a hearing is necessary to get out
all the evidence to reach a proper decision in the dispute. Although pacta sunt servanda is
an extremely important principle, which should be overriden only in rare instances, the
achievement of a just resolution of a dispute is also an objective which ought not to be
disregarded. This is especially so in a case where the parties may have agreed early in
their contractual relationship to arbitration with no oral hearings without being able to
foresee the nature of the difficulties that subsequently arise in that connection. In all
cases, it is very important that sufficient advance notice should be given before oral
hearings are held.
Article 24, paragraph (4)
2. In the view of Canada, the expression “expert report or other document,” as used in the
second sentence of paragraph (4), is too vague. It is suggested that more clarity is required
as to what other kinds of documents are to be covered.
3. Since paragraph (4) is not clear as to whether the documents supplied to the arbitral
tribunal are required to be submitted to the other party in original or copies thereof and
whether the other party has the right to examine them, AALCC [Asian–African Legal
Consultative Committee] recommends the deletion of the reference to “documents” or
“document” from paragraph (4) and the addition of the following provision as paragraph
(5):
“(5) Each party shall have the right to examine any document presented by the
other party to the arbitral tribunal. Unless otherwise decided by the arbitral
tribunal, copies of such documents shall be communicated by the supplying
party to the other party.”
Proposed addition to article 24
4. The Sudan suggests that the following new paragraph be added to this article:
“(5) Subject to any agreement of the parties to the contrary, the hearings shall

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 be held in camera.”
A/CN.9/263/ADD.2 (21 MAY 1985) (UK COMMENTS)
A right to a hearing
18. As to Article 24 the United Kingdom wishes to endorse the view expressed by the
Secretariat in its commentary ([Seventh Secretariat Note,] A/CN.9/264, commentary to
P 685 article 24, para. 4 [appearing immediately below]). In the absence of agreement between
P 686 the parties, one party should have the right to require that oral hearings should be held.
The present text appears to be in conflict with Articles 19(3) [Art. 18 in the final text] and
34(2)(a)(ii).
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 24. Hearings and written proceedings
[ .… ]
Proceedings with or without oral hearing, paragraphs (1) and (2)
1. Paragraphs (1) and (2) deal with the important procedural question whether there will be
any oral hearing or whether, as is less common, the arbitral proceedings will be conducted
exclusively on the basis of documents and other materials (i.e., as “written proceedings”).
Under paragraph (1), the arbitral tribunal shall decide that question, (71) subject to any
contrary agreement by the parties and subject to paragraph (2), which should, thus, be
commented upon together with paragraph (1). In order to facilitate understanding the
inter–play of these two paragraphs, it seems advisable to distinguish three situations.
2. The first situation is that the parties have agreed that there shall be an opportunity for
oral argument or hearings for the presentation of evidence, either upon request of a party
or even without any such specific request. In such case, which is probably not very
common, the arbitral tribunal would have to comply with that agreement, although a
literal interpretation of the words “notwithstanding the provisions of paragraph (1)” could
lead to the conclusion that even in such case the arbitral tribunal would have discretion as
to whether to follow any later request of a party.
3. The second situation is that the parties have agreed on written proceedings. In such
case, which is probably even less common than the first one, the arbitral tribunal would
have to comply with the wish of the parties (paragraph (1)). However, if a party later
requests a hearing, paragraph (2) empowers the arbitral tribunal to disregard the original
agreement of the parties and, in exercising its discretion, to hold a hearing at an
appropriate stage of the proceedings. (72) The underlying philosophy is that the right of a
party to request a hearing is of such importance, as emphasized by article 19(3) [Art. 18 in
the final text], that the parties should not be allowed to exclude it by agreement, while, on
the other hand, it is desirable to envisage a certain control by the arbitral tribunal in order
to avoid its abuse for purposes of delaying or obstructing the proceedings.
P 686
P 687
4. The third situation is that the parties have not made any stipulation on the mode of the
proceedings. In such case, which appears to be the most common of all three situations,
the arbitral tribunal would have discretion under paragraph (1) to decide whether to hold
an oral hearing. According to paragraph (2), it would retain this discretion even if a party
requests an oral hearing. It is submitted that this latter rule, which appears to be the result
of a legislative oversight, (73) should be reconsidered since it may be regarded as not
being consistent with article 19(3) [Art. 18 in the final text]. Under the present text, a party
would have the fundamental right to present his views or evidence in an oral hearing,
unrestricted by any discretion of the arbitral tribunal, only if so provided in the agreement
of the parties, which, as mentioned above, is rarely the case and should not be made a
necessity by the model law.
5. As regards the particulars of paragraph (2), it may be noted that the wording “hearings
for the presentation of evidence or for oral argument” is intentionally adopted in such
general form. The formula “presentation of evidence” is intended to cover all possible
types of evidence recognized in various legal systems and potentially admitted under
article 19(1) or (2), e.g. evidence by witness, expert witness, cross–examination of any such
witness, testimony and cross–examination of a party. (74) The formula “oral argument” is
intended to cover arguments not only on the substance of the dispute but also on
procedural issues. (75)
Sufficient advance notice, paragraph (3)
6. Paragraph (3) implements in a certain respect the principles of article 19(3) [Art. 18 in the
final text] by providing that the parties shall be notified sufficiently in advance of any
hearing and of any meeting of the arbitral tribunal for the purpose of inspecting goods,
other property, or documents. The required notification is fundamental in that it enables
the parties to participate effectively in the proceedings and to prepare and present their
case. It is also fundamental in that it is a condition, based on the principle of fairness, for
continuing the proceedings in the case of default of a party under article 25(c).

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 7. Since the provision expresses merely a principle as an essential requirement, it does not
deal with specifics such as who is in fact to notify the parties (e.g., arbitral tribunal,
presiding arbitrator, secretary, or arbitral institution). It also refrains from setting a fixed
P 687 period of time, in view of the great variety of circumstances. While, thus, a period of time
P 688 may be agreed upon by the parties, including any reference to arbitration rules, such
agreement (under article 19(1)) might not be effective for the reason that it does not
provide for “sufficient” advance notice.
Forwarding of communications, paragraph (4)
8. Paragraph (4) also implements in a certain respect the principles of article 19(3) [Art. 18
in the final text] by providing that each party shall receive a copy of any communication by
the other party to the arbitral tribunal, and of any expert report or other document, on
which the arbitral tribunal may rely in making its decision. It is submitted that “other
document” means any written material of similar, i.e., evidentiary, nature (e.g., weather
report or exchange rate listing of a given day).
9. Paragraph (4) is based upon the essential principle that both parties should have full
and equal access to information. It does not regulate specifics, such as who is in fact to
communicate any statement, report, document or other information to the party who
needs to be informed. It is submitted, however, that in the instances covered by the first
sentence of paragraph (4) the arbitral tribunal (or an administering institution) is under a
duty either to ensure that a party sends a copy to the other party or itself to communicate
the statement or document of one party to the other party.
SUMMARY RECORD A/CN.9/SR.323–.324, .332
[14 June 1985, 9:30 a.m., A/CN.9/SR.323]
Article 24. Hearings and written proceedings
Paragraphs (1) and (2)
38. Mr. AYLING (United Kingdom) drew attention to the United Kingdom comment ([Sixth
Secretariat Note (Government Comment),] A/CN.9/263/Add. 2, para. 18), and to the United
States proposal on the same lines ([id.,] A/CN.9/263, [Art. 24,] para. 1), which he supported.
The United Kingdom maintained that, in the absence of agreement between the parties, if
either party so requested, the proceedings should be held orally and not in writing.
39. Mr. HOLTZMANN (United States of America) drew attention to the text of his
Government's proposal (A/CN.9/263 Ibid.) and in particular to the words “at any
appropriate stage of the proceedings,” which had been introduced to meet the concern of
a number of representatives at the possibility of a party being able to request oral
hearings for unlimited periods and on unlimited occasions. He suggested that an
explanation could be included in the article (or possibly in the report) to the effect that
nothing therein limited the power of the arbitral tribunal to determine the length of
hearings or the stage at which they should be held.
P 688
P 689 40. Mr. REINSKOU (Observer for Norway) found the wording of article 24(1) too rigid. He
would be satisfied if it were made clear in the Commission's report that article 24(1) should
not be understood as ruling out the possibility of the proceedings being partly oral and
partly on the basis of documents. He supported the United States proposal.
41. Mr. MOELLER (Observer for Finland) said that there would seem to be no justification for
allowing a party to request oral proceedings if the parties had agreed that there should be
only written proceedings. Where the parties had not agreed on either oral or written
proceedings, a party should have the right to oral proceedings; he therefore suggested that
the existing text of article 24(2) should be amended to state that, if a party so requested,
the arbitral tribunal “shall” (not “may”) hold oral hearings unless the parties had agreed
that there should be only written proceedings. As for the explanation proposed by the
United States, it appeared suitable for inclusion in the Commission's report, although he
would have no objection if members preferred to see it in the text itself.
42. Mr. JARVIN (Observer, International Chamber of Commerce) agreed with the
representatives of Finland, the United States and other countries. He also pointed out that
the right to request oral proceedings was not assured in the French version of article 24(2),
which stated that the arbitral tribunal “ shall hold” (“organise”), whereas the English text
said “may … hold.” He supported the idea that either party had the right to request oral
proceedings.
43. Mr. LEBEDEV (Union of Soviet Socialist Republics) referring to the written comments,
including his own delegation's ([Sixth Secretariat Note (Government Comments),]
A/CN.9/263, [Art. 24,] para. 5), said that the right of the parties to request oral proceedings
was fundamental. In his delegation's opinion, article 24(1) and article 24(2) were
inconsistent with that basic principle; he therefore supported the United States proposal
([id.,] A/CN.9/263, [Art. 24,] para. 1) but it would be necessary to consider the drafting. The
first sentence specified that either party could make a request “at any appropriate stage
of the proceedings” and he suggested that it should be made clear that when there was no
agreement by the parties, the question should be decided at the commencement of the
proceedings. Once the principle had been agreed upon, the wording could be left to the
drafting committee.

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 44. Mr. LAVINA (Philippines) said it was a fundamental principle of most legal systems that
there could be no proceedings without a hearing — unless of course the parties agreed to
dispense with it. He therefore supported the United States proposal which had the merit of
combining the present paragraphs (1) and (2) and also of using the mandatory “shall.” He
also supported the Norwegian suggestion that the idea of a hearing accompanied by
presentation of documents should not be ruled out, and suggested that that idea should
be incorporated into the United States proposal.
45. Mr. SZURSKI (Observer for Poland) said that arbitration agreements rarely stipulated
P 689 that oral proceedings must be held; it was also rare for the parties to request an oral
P 690 hearing in their statement of claim or defence. Actually, from his experience, he could
safely assert that oral proceedings were essential to the proper conduct of international
commercial arbitration. He accordingly proposed that the two paragraphs under
discussion should be merged and a provision included to the effect that, unless the parties
had agreed otherwise, or explicitly renounced oral hearings, the arbitral tribunal would be
bound to hold oral hearings for the presentation of evidence or for oral argument.
Alternatively, the proposal submitted by Poland and the United States ([Sixth Secretariat
Note (Government Comments),] A/CN.9/263, [Art. 24] para. 1), could be slightly amended to
read “… the arbitral tribunal, having asked the parties, shall hold hearings .…”
46. Mr. ENAYAT (Observer, Islamic Republic of Iran) said that he preferred the original text
for the reasons given in the Secretariat's comments ([Seventh Secretariat Note,]
A/CN.9/264, [Art. 24]).
47. Mr. ROEHRICH (France) said that his delegation preferred the original text because it
could be more easily incorporated into the legal systems of different countries. He
proposed that in article 24(2) the word “may” should be replaced by “shall,” to read “the
arbitral tribunal shall … hold hearings.”
48. Mr. GRAHAM (Observer for Canada) expressed support for the proposal of the United
States of America and Poland ([Sixth Secretariat Note (Government Comments),]
A/CN.9/263, [Art. 24,] para. 1), which safeguarded a party's right to an oral hearing. He
could, however, also support the amendment proposed by the French representative to
the original text, which would achieve the same result.
49. Mr. BONELL (Italy) pointed out that, under article 24(2) in its present form, a party who
had initially agreed that no hearings should be held might break that agreement at a later
stage, in which case the arbitral tribunal would be obliged to comply with his request for
oral hearings. He therefore supported the proposal by the United States and Poland,
possibly with the clarification suggested by the United States representative.
50. Mr. GRIFFITH (Australia) supported the United States proposal.
51. Mr. RAMADAN (Egypt) said that the United States proposal was too wide in scope. The
Arabic translation of article 24 read: “the arbitral tribunal may … hold hearings.”
52. Mr. LOEFMARCK (Sweden) supported the United States proposal. The United States
representative's amendment to his proposal, concerning the limitation of the length of oral
hearings, should be included in the report rather than in the text of the article. Admittedly,
it would be preferable to decide at an early stage whether the proceedings should be oral
or written, but it would be wrong to take away the arbitral tribunal's right to decide on
such a question at any stage.
53. Mr. SAMI (Iraq) said that the present wording of article 24(1) limited the freedom of the
parties to choose their presentation of the case. It was important to observe the spirit of
the model law and give each party equal treatment and the opportunity to present his
case.
P 690
P 691
54. Mr. AYLING (United Kingdom) said that his delegation could accept the United States
proposal, with or without the subsequent amendment proposed by the United States
representative, or the original text with the word “may” replaced by the word “shall.”
However, as the Italian representative had pointed out, a party should not be allowed to
request an oral hearing if it had previously agreed that no such hearing should be held.
55. Mr. MTANGO (United Republic of Tanzania), supported by Mr. JOKO-SMART (Sierra
Leone), said that a party who had originally agreed that no oral hearing should be held
might subsequently decide that one was necessary after all. The word “may” in the original
text gave the arbitral tribunal the power to decide in that case whether the request was
justified.
56. Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration) said that
the original text would be preferable if the word “may” was replaced by “shall.”
57. Mr. BARRERA GRAF (Mexico) agreed with the Tanzanian representative that the word
“may” should be retained. He could also support the United States proposal if the word
“shall” were used.
58. Mr. SCHUMACHER (Federal Republic of Germany) said that the United States proposal
was clearer than the original text and still gave the arbitral tribunal the power to prevent
any attempt to delay the proceedings.

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 59. Mrs. DASCALOPOULOU-LIVADA (Observer for Greece) supported the United States
proposal because it avoided the problem to which the Italian representative had drawn
attention.
60. Mr. HOLTZMANN (United States of America) said that many speakers had stressed a
party's right to request an oral hearing at any stage, in which case article 24(2) should read
“… the arbitral tribunal shall … hold hearings.” However, he did not consider that a party
should have the right to demand an oral hearing if it had been stated in the arbitration
agreement that no such hearing should be held. The United States proposal was worded
accordingly.
61. Mr. TORNARITIS (Cyprus) expressed a preference for the original text with the oral
amendments which had been proposed.
62. Mr. TANG Houzhi (China), Mr. KADI (Algeria) and Mr. OLUKOLU (Nigeria) expressed a
preference for the original text of article 24.
[14 June 1985, 2:00 p.m., A/CN.9/SR.324]
Paragraphs (1) and (2) (continued)
1. The CHAIRMAN [Mr. SZASZ (Hungary)] said that, if he heard no objection, he would take it
that the Commission wished to transmit the text of paragraphs (1) and (2) to the drafting
committee with a request that it incorporate in them the following ideas: that the parties
P 691 should be free to decide whether an oral hearing should take place or not; that if not
P 692 expressly prohibited by the parties, either party had a right to an oral hearing upon
request; that if the parties took no decision on the matter and neither applied for an oral
hearing, the arbitral tribunal could decide how the proceedings were to be conducted.
2. It was so agreed.
3. The CHAIRMAN noted that a number of delegations had endorsed the view expressed by
the Tanzanian representative ([Summary Record] A/CN.9/SR.323, para. 55), that even if the
parties had agreed at one stage not to hold oral hearings, they should be entitled to
request the arbitral tribunal to hold them at a later stage. He thought the wording of
article 19(3) [Art. 18 in the final text] might be used to give effect to that view in extreme or
marginal cases.
Paragraph (3)
4. Mr. LEBEDEV (Union of Soviet Socialist Republics) drew attention to his delegation's
written suggestion in document [Sixth Secretariat Note (Government Comments),]
A/CN.9/263 ([Art. 24,] para. 9) for clarifying the meaning of the words “for inspection
purposes.” He hoped the drafting committee would give it serious consideration.
5. The CHAIRMAN said that, with that comment in mind, he would take it that article 24(3)
was approved.
6. It was so agreed.
Paragraph (4)
7. Mr. GRAHAM (Observer for Canada) drew attention to the words “or other document” and
said it was unclear what documents they covered. He presumed that the intention was to
enable the parties to see any texts the arbitral tribunal used in making its decision,
including official publications, dictionaries, glossaries and weather reports; if so, that
should be made clear.
8. Mr. LAVINA (Philippines) said that he shared the view expressed by the Observer for
Canada and also had reservations about the reference to an “expert report.”
9. Sir Michael MUSTILL (United Kingdom) said that the purpose of the text should be to
ensure, first, that the arbitral tribunal did not rely on documents upon which the parties
had not had an opportunity to comment and that, secondly, such documents were
transmitted to them before the tribunal made its decision. The words “may rely” were
ambiguous and should be amended to make it clear that documents must be transmitted
to the parties before the decision was taken.
10. Mr. KADI (Algeria) said it was unclear whether the words “other document” covered
recordings and films.
11. Mr. HOLTZMANN (United States of America) said that, while the first sentence of the
paragraph was based on article 15(3) of the UNCITRAL Arbitration Rules, the second went
P 692 beyond them. The words “or other document” might be construed as requiring arbitrators
P 693 to communicate results of their library research to the parties before making an award,
for example. The text should not preclude tribunals from doing what they normally did in
making decisions: consulting statistics, dictionaries, and so on. He would prefer the second
sentence to be deleted altogether, but if it was retained the words “or other document”
should be excised. The reference to “expert report” might be dealt with when the
Commission considered article 26.
12. Mr. VOLKEN (Observer for Switzerland) inquired whether, if the words “or other
document” were deleted, a party would be able to provide the arbitral tribunal with
documents which contained professional secrets which it did not wish the other party to

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 see.
13. Mr. HOLTZMANN (United States of America) said that under the first sentence, all
documents supplied to the arbitral tribunal by one party must be communicated to the
other party. It was up to the party concerned and the arbitral tribunal to find some means
of permitting professional secrecy to be respected. The deletion of the second sentence
would not affect the preservation of professional secrecy, however.
14. Mr. ENAYAT (Observer for the Islamic Republic of Iran) said that he advocated leaving
the text unaltered; it would have no dangerous consequences and the parties needed to
know on what basis the arbitral tribunal took its decision.
15. The CHAIRMAN said that there was no dispute about the general principle set out in the
first sentence and it was clear that it did not cover reports of experts appointed by the
tribunal. The problems with the second sentence could be resolved by requesting the
drafting committee to delete the phrase “or other documents” unless they could
characterize, in any way other than the first sentence did, the materials which might be
used by the arbitral tribunal. The main principle, however, was that even if that phrase was
deleted, the parties must be given an opportunity to study all documents upon which the
arbitral tribunal might rely in making its decision.
16. Mr. ROEHRICH (France) said that he fully endorsed the Chairman's last comment and
thought that it could usefully be incorporated in the text.
17. The CHAIRMAN said that he thought it would be sufficient to reflect it in the summary
record. If he heard no objection, he would take it that the Commission agreed with the
procedure he had proposed.
18. It was so agreed.
[20 June 1985, 3:00 p.m., A/CN.9/SR.332]
Article 24 [as revised by the Drafting Group]
58. Mr. ROEHRICH (France) said that a problem had arisen in the drafting group in regard to
the second sentence of paragraph (1). (111) The question was whether the words “at an
appropriate stage of the proceedings” — which had been between commas in the original
P 693 version of the paragraph — applied to a party's request for oral hearings or to the arbitral
P 694 tribunal's decision to hold such hearings: in other words, whether they imposed a
restriction on the parties or whether they gave discretion to the arbitral tribunal. If they
were interpreted in the former sense, it would modify the Commission's decision that the
parties had a fundamental right to request an oral hearing.
59. The CHAIRMAN [Mr. LOEWE (Austria)] said that, as he saw it, the paragraph could mean
only that the party must make the request at an appropriate stage of the proceedings,
otherwise it would make no sense. The meaning was perhaps clear in the English version.
60. Mr. SZASZ (Hungary) said that his understanding of the discussion was that the words “if
so requested by a party at an appropriate stage of the proceedings” meant that a party
could at any time ask for oral proceedings and the tribunal could note the request and
could act accordingly, but would not be compelled to hold an oral hearing forthwith.
61. Mr. HOLTZMANN (United States of America) said that the discussion had arisen out of
his Goverment's written proposal ([Sixth Secretariat Note (Government Comments),]
A/CN.9/263, [Art. 24,] para. 1) for a new paragraph (1) to replace the former paragraphs (1)
and (2) of the Working Group's draft, and stating: “if either party so requests at an
appropriate stage of the proceedings.…” It had been his understanding that the
Commission had approved his proposal.
62. Mr. HERRMANN (International Trade Law Branch) said that it had been the Secretariat's
understanding that the United States proposal had been accepted as a drafting suggestion
and that no decision had been taken on the question whether “appropriate” should qualify
the parties' request or the holding of a hearing.
63. Mr. SZASZ (Hungary), speaking as Vice–Chairman, said he had been in the Chair at the
time of the discussion. He agreed with what the representative of the Secretariat had just
said. It was his understanding that the article had been sent to the drafting group without
any substantive change from what had been expressed in the original draft.
64. Mr. de HOYOS GUTIERREZ (Cuba) said that it was clear from the paragraph as at present
drafted that the arbitral tribunal should hold hearings if the parties so requested at an
appropriate stage in the proceedings.
65. The CHAIRMAN suggested that the matter might be resolved by wording the sentence to
read: “… the arbitral tribunal shall hold such hearings at an appropriate stage of the
proceedings if so requested by a party.”
P 694
P 695
66. Mr. RICKFORD (United Kingdom) and Mr. ROEHRICH (France) supported the Chairman's
suggestion.
67. Mr. HOLTZMANN (United States of America) said that he would accept the Chairman's
suggestion on the understanding that it was made clear in the record that an arbitral

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 tribunal could refuse a last–minute request for a hearing, on the ground that there was no
longer any appropriate stage of the proceedings for a hearing. He gave as an example a
last–minute request that had been submitted solely for the purpose of delaying the issue
of the award where no acceptable reasons had been given to justify holding a hearing.
68. Mr. LAVINA (Philippines) supported the Chairman's proposal.
69. Mr. SAMI (Iraq) said that the tribunal should not have the right to oppose a request: the
parties' right to request oral hearings must be safeguarded.
70. Mr. MTANGO (United Republic of Tanzania) agreed.
71. In reply to a question put by the Chairman, Mr. SZASZ (Hungary), speaking as Vice–
Chairman, said that his notes and the summary record of the 324th meeting
(A/CN.9/SR.324) both confirmed the following: that, after a lengthy discussion touching on
points both of substance and of drafting, it had been agreed to consider the substantive
points referred to in paragraph 1 of that summary record. No other point had been
considered as a point of substance in the discussion and no speaker had asked for a ruling
on any question other than those submitted to the drafting group.
72. After a discussion in which Mr. HOLTZMANN (United States of America), Mr. RICKFORD
(United Kingdom) and Mr. ROEHRICH (France) took part, the CHAIRMAN said that the issue
seemed to be one on which there had been a misunderstanding about what the
Commission had decided. Since the evidence suggested that the Commission had
intended that the paragraph should provide that a party could make a request at any time
and that the tribunal must hold hearings; and also that the reference to the appropriate
stage should be retained, he asked the Commission if it would accept his earlier
suggestion.
73. It was so agreed.
74. Mr. GRIFFITH (Australia) proposed that the commas in the third and fourth lines of
paragraph (3) should be deleted. (111)
75. It was so agreed.
76. Article 24, as amended, was adopted.
P 695
P 696
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 24. Hearings and written proceedings
202. The text of article 24 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
Paragraphs (1) and (2)
203. The Commission noted that article 24 dealt with the issue of the mode of arbitral
proceedings as a matter of principle and did not deal with the procedural aspects of
deciding that issue. For example, the article did not deal with the question of the point of
time when the arbitral tribunal would have to decide on the mode of the arbitral
proceedings. That meant that the arbitral tribunal was free to decide that question at the
outset of the proceedings, or it could postpone the determination of the mode of the
proceedings and make such determinations in the light of the development of the case.
Before so deciding the arbitral tribunal would normally request the parties to express their
view or possible agreement on the question. The article also did not deal with, and
therefore did not limit, the power of the arbitral tribunal to decide on the length of oral
hearings, on the stage at which oral hearings could be held, or on the question whether the
arbitral proceedings would be conducted partly on the basis of oral hearings and partly on
the basis of documents. It was noted that such procedural decisions were governed by
article 19, including its paragraph (3) [Art. 18 in the final text].
204. The Commission was agreed that an agreement by the parties that oral hearings were
to be held was binding on the arbitral tribunal.
205. As to the question whether an agreement by the parties that there would be no oral
hearings was also binding, different views were expressed. Under one view, the right to oral
hearings was of such fundamental importance that the parties were not bound by their
agreement and a party could always request oral hearings. Under another view, the
agreement of the parties that no oral hearings would be held was binding on the parties
but not on the arbitral tribunal so that the arbitral tribunal, if requested by a party, had
the discretion to order oral hearings. However, the prevailing view was that an agreed
exclusion of oral hearings was binding on the parties and the arbitral tribunal.
Nevertheless, it was noted that article 19(3) [Art. 18 in the final text], requiring that each
party should be given a full opportunity to present his case, might in exceptional
circumstances provide a compelling reason for holding an oral hearing. It was understood
that parties who had earlier agreed that no hearings should be held were not precluded
from later modifying their agreement, and thus to allow a party to request oral hearings.
206. The Commission was agreed that where there was no agreement on the mode of the
proceedings a party had a right to oral hearings if he so requested. In that connection it

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 P 696 was noted that the French version of paragraph (2) reflected that view while according to
P 697 other versions of that paragraph the arbitral tribunal retained the discretion whether to
hold oral hearings even if requested by a party.
207. The Commission was also agreed that where there was no agreement on the mode of
the proceedings, and no party had requested an oral hearing, the arbitral tribunal was free
to decide whether to hold oral hearings or whether the proceedings would be conducted
on the basis of documents and other materials.
208. The Commission referred the implementation of its decisions to the Drafting Group.
209. During consideration of the second sentence of article 24(1), as presented by the
Drafting Group, which read as follows: “However, unless the parties have agreed that no
hearings shall be held, the arbitral tribunal shall, if so requested by a party at an
appropriate stage of the proceedings, hold such hearings,” the question was raised whether
“at an appropriate stage” should refer to the request or to the proceedings. After
discussion the Commission decided to re–word the sentence as follows: “However, unless
the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such
hearings at an appropriate stage of the proceedings, if so requested by a party.”
Paragraph (3)
210. The Commission was agreed that the words “for inspection purposes” were meant to
include the inspection of goods, other property, or documents as referred to in article
20(2), and that that should be made clear in the text. Subject to that modification,
paragraph (3) was adopted.
Paragraph (4)
211. The Commission agreed with the first sentence of paragraph (4) that all documents
supplied to the arbitral tribunal by one party, regardless of their nature, had to be
communicated to the other party. However, the Commission was agreed that in the second
sentence of paragraph (4) it should be made clear that such documents as research
material prepared or collected by the arbitral tribunal did not have to be communicated
to the parties. The Drafting Group was invited to consider whether that result should be
achieved by deletion of the words “or other document.”
P 697

References
1) First Draft, A/CN.9/WG.II/WP.37, Art. 20 n. 35, p. 677 infra; First Working Group Report,
A/CN.9/216, para. 57, p. 676 infra.
2) See Seventh Secretariat Note, A/CN.9/264, Art. 24, paras. 2–3, p. 686 infra.
3) See First Working Group Report, A/CN.9/216, para. 57, p. 676 infra; Second Working
Group Report, A/CN.9/232, para. 108, p. 678 infra.
4) See Second Draft, A/CN.9/WG.II/WP.40, Art. XVII(1), p. 679 infra; Fourth Working Group
Report, A/CN.9/245, para. 81, p. 679 infra; Fourth Draft, A/CN.9/WG.II/WP.48, Art. 24(1),
p. 680 infra. The phrase “[i]n the absence of such a request” was deleted and other
drafting changes were made in order to accommodate the reordering.
5) See Fifth Working Group Report, A/CN.9/246, para. 76, p. 681 infra.
6) Id. para. 77, p. 681 infra.
7) Id. para. 78, p. 682 infra.
8) See Seventh Secretariat Note, A/CN.9/264, Art. 24, para. 4, p. 687 infra (the changed
provision “appears to be the result of legislative oversight”).
9) Id.
10) See, e.g., Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 24, paras. 1–
6, pp. 683–84 infra; id. Add.1, para. 1, pp. 684–85 infra; id. Add.2, para. 18, pp. 685–86
infra.
11) See, e.g., Summary Record, A/CN.9/SR.323, paras. 55, 57, 62, p. 691 infra.
12) Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 24, paras. 3, 4, 5, pp.
683–84 infra; id. Add.1, Art. 24, para. 1, pp. 684–85 infra.
13) Id. A/CN.9/263, Art. 24, para. 5, pp. 683–84 infra.
14) Id. para. 1, p. 683 infra; id. Add.2, para. 18, pp. 685–86 infra; see, e.g., Summary Record,
A/CN.9/SR.323, paras. 49, 54, 60, pp. 690–91 infra.
15) See Commission Report, A/40/17, para. 205, p. 696 infra.
16) Presumably, if the parties have agreed that a hearing will be held, one will be held
even without a request by either party, as long as they have not made a new
agreement not to hold a hearing. See id., para. 204, p. 696 infra.
17) After recounting this decision, the Commission Report states that “it was noted” that
“in exceptional circumstances” the parties' right under Article 18 to a full opportunity
to present his case might “provide a compelling reason” for holding a hearing even if
there was an agreement to the contrary. Id. para. 205, p. 696 infra. The formulation “it
was noted” was a customary way in which the Commission indicated that this view was
urged by one or more delegates, but that it was not necessarily the prevailing view or
the view accepted as the view of the Commission.

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 18) See Second Working Group Report, A/CN.9/232, para. 111, p. 678 infra; Second Draft,
A/CN.90/WG.II/WP.40, Art. XVII(1)(a), p. 679 infra; Fourth Draft, A/CN.9/WG.II/WP.48, Art.
24(1), p. 680 infra.
19) The change in location of the phrase is not mentioned in the Working Group Reports
and evidently was made by the Secretariat in order to facilitate drafting of the
opening language of the Second Draft of the Article, which at that time dealt with two
subjects, hearings and experts. Later, in considering how to draft changes it had
adopted in Article 24(1), the Commission discussed at some length whether the phrase
should modify the request of the party or the holding of hearings. See the sources
cited in note 20, infra.
20) See Summary Record, A/CN.9/SR.232, paras. 58–73, pp. 693–95 infra; Commission
Report, A/40/17, para. 209, p. 697 infra. The Commission altered the formulation so
that in the final text it reads “at an appropriate stage,” rather than “the appropriate
stage.”
21) See Holtzmann, The Conduct of Arbitral Proceedings, in UNCITRAL's Project for a Model
Law on International Commercial Arbitration 125, 146 (ICCA Congress Series No. 2, P.
Sanders ed. 1984).
22) See Fifth Working Group Report, A/CN.9/246, para. 79, p. 681 infra; Seventh Secretariat
Note, A/CN.9/264, Art. 24, para. 5, p. 687 infra.
23) Second Draft, A/CN.9/WG.II/WP.40, Art. XVII(1)(a), p. 679 infra; see Second Working
Group Report, A/CN.9/232, para. 111, p. 678 infra.
24) Fourth Working Group Report, A/CN.9/245, para. 81, p. 679 infra; see Seventh
Secretariat Note, A/CN.9/264, Art. 24, para. 5, p. 687 infra.
25) Commission Report, A/40/17, para. 203, p. 696 infra. For example, a tribunal
presumably can, by joining jurisdictional issues to the merits, ensure that the party's
right to a hearing on those questions not disrupt the expeditious completion of the
arbitration.
26) Seventh Secretariat Note, A/CN.9/264, Art. 24, para. 7, pp. 687–88 infra.
27) Id. para 6.
28) See First Draft, A/CN.9/WG.II/WP.37, Art. 21(b), p. 677 infra. Article 25(1) of the UNCITRAL
Arbitration Rules addresses notice of meetings and requires “adequate” notice.
29) Second Working Group Report, A/CN.9/232, para. 113, p. 678 infra.
30) Fourth Working Group Report, A/CN.9/245, para. 82, p. 680 infra.
31) Emphasis added.
32) See First Draft, A/CN.9/WG.II/WP.37, Art. 20, n. 36, p. 677 infra; Second Working Group
Report, A/CN.9/232, para. 109, p. 678 infra; Fourth Working Group Report, A/CN.9/245,
para. 83, p. 680 infra.
33) Second Draft, A/CN.9/WG.II/WP.40, Art. XVII(3), p. 679 infra; Fourth Draft,
A/CN.9/WG.II/WP.48, Art. 24(3), p. 680 infra.
34) Commission Report, A/40/17, para. 211, p. 697 infra; see also Summary Record,
A/CN.9/SR.324, para. 11, pp. 692–93 infra; cf. id. para. 7, p. 692 infra; Seventh Secretariat
Note, A/CN.9/264, Art. 24, para. 8, p. 688 infra.
*) [Editors' Note: The decision on supplementary procedural rules that is referred to here is
discussed in paragraph 58 of this document, which appears in the section on Article 19, p.
574 supra.]
32) [Editors' Note: The full text of draft Article 19 and footnote 32 appear in the section on
Article 19, pp. 575–76 supra.]
33) Consideration of this sub-paragraph may be combined with the discussion on the
articles referred to therein. When discussing articles 20 to 24, the Working Group may
wish to consider to what extent these provisions should be mandatory (as regards art.
20 [Art. 24 in the final text], see [First Working Group Report,] A/CN.9/216, para. 57).
35) This draft article is modelled on article 15 (2) and (3) of the UNCITRAL Arbitration
Rules.
36) The words placed between square brackets would probably have to be deleted if the
provisions were to be mandatory (cf. foot-note 33) since under some arbitration rules
or administrative procedures copies of the communications of a party are sent to the
other party by the arbitral tribunal or an administrative body, thus not “by that party”
and not “at the same time.”
37) This draft provision is modelled on article 16 [ … ] (3) of the UNCITRAL Arbitration
Rules.
15) [Editors' Note: Footnote 15 appears in the section on Article 19, p. 577 supra.]
16) Mention of this proviso may be deemed unnecessary in view of the fact that this
article is not included in the reference to mandatory provisions listed in article XV(1).
[Editors' Note: There is apparently an unintended inconsistency here, since draft Article
XVII is mentioned in the reference to mandatory provisions listed in article XV(1). The
subsequent drafts and reports on the provision do not clarify the matter. See the section
on Article 19, pp. 577–80 supra.]
17) The second alternative would be useful also in the context of the default provision of
article XVII (c) [sic — XVIII(c), which became Article 25(c) in the final text, is intended.]
*) [Editors' Note: The Secretariat later noted that the word “any” should read “an.” See
Seventh Secretariat Note, A/CN.9/204, Art. 24, para. 3 n. 72, pp. 686–87 infra.]
29) [Fifth Working Group Report,] A/CN.9/246, para. 77.
30) Ibid., para. 78.

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© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 71) As a practical matter, “decision” does not mean that the arbitral tribunal would have
to render a “decree” on this question at an early stage with binding effect for the
whole proceedings. What is meant, is a continuing discretion to determine in the light
of the development of the case whether an oral hearing is needed or at least
desirable.
72) The text set forth in the annex of document A/CN.9/246 [i.e., in the Fifth Draft] speaks
of “any” appropriate stage. However, as is clear from para. 75 of that report, [i.e., of
theFifth Working Group Report,] this is a typographical error; it should read “an”
appropriate stage.
73) It appears from the report of the seventh session of the Working Group ([Fifth Working
Group Report,] A/CN.9/246, paras. 77–78) that the discussion focused on the second
situation and that the view prevailing there, which was to allow a certain control by
the arbitral tribunal, was inadvertently extended to cover the third situation.
74) As regards the hearing and interrogation of an expert appointed by the arbitral
tribunal, see article 26(2).
75) [Fourth Working Group Report,] A/CN.9/245, para. 81.
111) [Editor's Note: The text of the Drafting Group's revision of paragraph 1 of Article 24 was
the same as the final text of the Article, except that the second sentence read as follows:
“however, unless the parties have agreed that no hearings shall be held, the arbitral
tribunal shall, if so requested by a party at an appropriate stage of the proceedings, hold
such hearings.”]
111) [Editors' Note: The text of the Drafting Group's revision of paragraph 3 of Article 24 was
the same as the final text of the Article, except that the second sentence included
commas after the words “document” and “decision.”]

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Document information
UNCITRAL Model Law, Chapter V, Article 25 [Default of a
Publication party]
A Guide to the UNCITRAL Unless otherwise agreed by the parties, if, without showing sufficient cause,
Model Law on International
Commercial Arbitration: (a) the claimant fails to communicate his statement of claim in accordance with article
Legislative History and 23(1), the arbitral tribunal shall terminate the proceedings;
Commentary (b) the respondent fails to communicate his statement of defence in accordance with
article 23(1), the arbitral tribunal shall continue the proceedings without treating
such failure in itself as an admission of the claimant's allegations;
Organization (c) any party fails to appear at a hearing or to produce documentary evidence, the
arbitral tribunal may continue the proceedings and make the award on the evidence
United Nations Commission before it.
on International Trade Law
Commentary
Promulgation It is an unfortunate but unavoidable fact of commercial life that occasionally a party to an
arbitration agreement defaults in its duty to the process. A claimant may request
21 June 1985 commencement of arbitral proceedings in accordance with Article 21 but thereafter fail to
communicate its statement of claim in accordance with Article 23(1). In that event, there
must be some means to relieve the respondent from the continuing threat of a pending
Legislation number proceeding against it. On the other hand, a respondent may choose to impede the
arbitration by failing to communicate its statement of defence, to participate in the
United Nations Document proceedings, or to cooperate with the arbitral tribunal. In such cases, there must be a
A/40/17, Annex I means for the arbitration to continue to an award, or else agreements to arbitrate would
be mere scraps of paper. In short, in the words of the Secretariat when it first addressed
this topic, an arbitral law must “provide arbitration with its necessary ‘teeth.’ ” (1)
Bibliographic reference
At the same time, as the Secretariat also noted, there must be safeguards to ensure the fair
'UNCITRAL Model Law, exercise of the arbitral tribunal's power to terminate or continue the proceedings upon
Chapter V, Article 25 [Default default, (2) and the legislative history of Article 25 was primarily concerned with
of a party]', in Howard M. delineating these safeguards. In its first discussion on the subject, the Working Group
Holtzmann and Joseph agreed “to attempt to formulate the conditions that must be met for permitting ex parte
Neuhaus , A Guide to the
P 698 proceedings,” but the report cautioned that “[i]f such attempt proved to be fruitless, the
UNCITRAL Model Law on P 699 issue would have to be left for decision to the procedural law of each State.” (3)
International Commercial
Arbitration: Legislative In the end, the Working Group included three such safeguards, which, with slight
History and Commentary, amendment, were adopted by the Commission. First, the defaulting party must have been
(© Kluwer Law International; duly notified in advance of the requirement that was not fulfilled. Second, that party must
Kluwer Law International have defaulted without showing sufficient cause for the failure to comply. Third, in the case
1989) pp. 698 - 716 of a failure by the respondent to communicate its statement of defence — that is, if it
refuses to participate in the proceedings at all — the failure in itself will not be treated as
an admission of the claimant's allegations. (This last was included because under many
national laws on civil procedure default of the defendant in court proceedings is treated
as such an admission. (4) ) In addition, by its express terms, Article 25 is entirely non-
mandatory, so the parties are entitled to agree on alternative default procedures.
The requirement of advance notice was viewed as essential from the outset of the Working
Group's consideration of the topic. (5) The initial drafts included specific minimum notice
periods — such as twenty days or forty days — but these were rejected as providing for too
little flexibility to accommodate the variety of cases to be governed by the Law. (6) The
final draft in fact imposes no time limits, but incorporates requirements of other
provisions of the Law. Sub-paragraphs (a) and (b) of Article 25 explicitly refer to Article
23(1), which requires that the parties or the arbitral tribunal shall have fixed a time for
submission of the statements of claim and defence. With respect to subparagraph (c) of
Article 25, the requirement of advance notice is imposed by the requirement of “sufficient
advance notice of any hearing” contained in Article 24(2) and the general principles of
procedural fairness embodied in Article 18. The Secretariat noted, “Although the provision
does not itself say so, ‘failure to appear at a hearing’ presupposes that the party was given
sufficient advance notice (article 24[(a)]) and ‘failure to produce documentary evidence’
pre-supposes that the party was requested to do so within a specified period of time which
was reasonable in accordance with the fundamental principles of article [18].” (7)
The second condition on implementation of the provisions of Article 25 is that they are
P 699 triggered only if a party fails to participate in the arbitral proceedings “without showing
P 700 sufficient cause.” The phrase “without showing sufficient cause” was taken from Article
28 of the UNCITRAL Arbitration Rules. (8) The Working Group considered, but did not adopt,
a suggestion that the Model Law should “provide that a court would decide, in the
circumstances of each case, whether ex parte proceedings by the arbitral tribunal were
permissible” in the event of default. (9) After weighing the “delay and complications which
might result from such court involvement,” (10) it decided that such a procedure
“introduced a degree of court supervision of international commercial arbitration which
was neither necessary nor desirable.” (11)

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 In the important situation covered by subparagraph (b) of Article 25 — failure to
communicate the statement of defence — the Model Law provides a third safeguard: that
the default is not to be considered an admission of the claimant's allegation. (12) The
Working Group considered three alternatives along these lines: treating the failure as a
denial of all allegations, thereby requiring the claimant to prove each element of the
claim; requiring that the failure not be treated as an admission by the respondent of the
claim; and not providing any rule on the legal assessment of such failure. (13) It adopted
the second alternative, which was seen as a middle ground that provided the arbitral
tribunal with “certain discretion.” (14) The Secretariat suggested, for example, that the
arbitral tribunal would not “be bound to treat the [default] as a full denial of the claim and
all supporting facts”; (15) presumably it could instead require proof only of the principal
allegations of the claim. Similarly, in order to emphasize that the provision “should not be
interpreted as meaning that the arbitral tribunal would have no discretion as to how to
assess the cause of the failure … and that it would be precluded from drawing inferences
from such failure,” the Commission added the term “in itself” to the phrase “without
treating such failure.” (16) Perhaps the best interpretation of the proviso that the failure
not be treated as an admission is that advanced by one government's comments on the
Working Group's final draft of the provision: it leaves the arbitral tribunal free “to draw
those conclusions from the silence of the respondent that appear most probable.” (17)
Two similar points may be noted with respect to subparagraph (c) of Article 25. First, in its
P 700 deliberations on Article 25, the Commission did not address whether the arbitral tribunal
P 701 could draw adverse inferences from a failure to appear at a hearing or to produce
documentary evidence. The Secretariat's commentary, however, stated that “the arbitral
tribunal is not precluded from drawing inferences from a party's failure to produce any
evidence as requested.” (18) Moreover, in connection with Article 27, which concerns the
assistance of courts in taking evidence, the Commission Report noted the following
discussion:
The Commission did not adopt a proposal to add a new provision to the effect
that, where evidence was possessed by a party and the party refused to comply
with an order to produce it, the arbitral tribunal should be expressly
empowered to interpret the refusal to that party's disadvantage. It was
suggested, and not contradicted in the Commission, that such a provision was
unnecessary since the arbitral tribunal already had that power, particularly
under article 25(c). (19)
Thus, it may be ventured that, in addition to the consequences of default listed in
subparagraph (c) — continuation of the proceedings and making an award on the evidence
before the arbitral tribunal — the tribunal has the power to infer from a party's failure to
produce evidence that the evidence would have been to that party's disadvantage.
Second, the Secretariat's commentary also suggested that Article 25(c) may be triggered
not only by the respondent's complete failure to participate but also by obstruction and
refusal to cooperate during the arbitral proceedings. Thus, it was said, the arbitral tribunal
has the power under subparagraph (c) to disregard evidence submitted after the specified
time limit. (20)

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
IV. Arbitral procedure
[ .… ]
2. Arbitral proceedings in general
[ .… ]
P 701
P 702 [Editors' Note: Paragraph 73 of this document, which appears in the section on Article 19, p.
572 supra, states that “[t]he model law should empower the arbitral tribunal to conduct the
arbitration proceedings in such manner as it considers appropriate,” subject to certain
restrictions discussed in that paragraph. The Note continues as follows; the full text of the
following paragraph appears in the section on Article 19.]
74. Furthermore, the model law may impose certain rules which would be binding on the
arbitrators either irrespective of any conflicting agreement by the parties or only if the
parties have not agreed otherwise. Examples of the first category, i.e. mandatory rules,
include provisions [ … ] on default of a party ([discussed below,] paras. 80–81) [ … ].
[ .… ]
7. Default
80. The model law should regulate the consequences of default of a party, at least as
regards the respondent/defendant. In order to provide arbitration with its necessary
“teeth,” the arbitral tribunal may be empowered to continue with the proceedings and

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 make a binding award even if the respondent fails to participate without showing sufficient
cause therefor. However, such potentially harsh measure would seem justified only if
certain conditions, based on the principles of due process and justice, are met which the
model law should set forth in detail.
81. First, the party in default must have been duly notified in advance. A second
requirement is that the arbitration tribunal clearly establish its competence. For that, it
has to determine the existence of a valid arbitration agreement which may not be an easy
task in case of silence of the respondent. The third restriction relates to the substance of
the dispute and the decision about it. The arbitral tribunal may not accept without proper
investigation, including the taking of evidence, the reasons and explanations given by the
claimant in support of his claim. It will be necessary to exactly define this requirement of
investigation which is contrary to most procedural laws on default in court litigation.
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
IV. Arbitral procedure
[ .… ]
7. Default (report [First Secretariat Note, supra], paras. 80–81)
Question
4–13: If one of the parties fails to participate, should the arbitral tribunal be empowered to
go ahead with the proceedings and make a binding award even without special
authorization by the parties, including reference to arbitration rules which allow the
arbitral tribunal to do so? If such special authorization were to be required, should
the model law expressly recognize it as being effective, subject to any restrictions
envisaged under question 4–14?
P 702
P 703
Question
4–14: What conditions must be met, and laid down in the model law, for the arbitral
tribunal to go ahead in case of default?
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
IV. Arbitral procedure
[ .… ]
7. Default
Question 4–13: If one of the parties fails to participate, would the arbitral
tribunal be empowered to go ahead with the proceedings and make a binding
award even without special authorization by the parties, including reference to
arbitration rules which allow the arbitral tribunal to do so? If such special
authorization were to be required, should the model law expressly recognize it
as being effective, subject to any restrictions envisaged under question 4–14?
[Editors' Note: Question 4–14 was not printed in this Report.]
71. There was general agreement that, in principle, the arbitral tribunal should be
empowered to continue the proceedings even if one of the parties fails to communicate his
statement or to appear at a hearing. However, divergent views were expressed as to
whether the model law should contain a provision to that effect which would set forth the
conditions for such continuation. Under one view, an attempt should be made to formulate
the conditions for such continuation. Minimum requirements for continuing the
proceedings and rendering an award in case of such failure would be that the party had
been given due advance notice (possibly also requiring a statement of the legal
consequences of default) and that the party had not shown sufficient cause for his failure.
Under another view, it was not practical to regulate this issue in the model law, since such
regulation might not be readily acceptable in some countries in view of their general
position on ex parte judgements. If, however, there were to be a provision on this issue, one
view was that it could provide that a court would decide, in the circumstances of each
case, whether ex parte proceedings by the arbitral tribunal were permissible. Another view
expressed concern over the delay and complications which might result from such court
involvement. The Working Group decided to attempt to formulate the conditions that must
be met for permitting ex parte proceedings, and to request the Secretariat to prepare draft
provisions taking into account the suggestions made during the discussion. If such attempt
proved to be fruitless, the issue would have to be left for decision to the procedural law of
each State. (*)
P 703
P 704
FIRST DRAFT A/CN.9/WG.II/WP.37 (15 JULY 1982)
IV. Arbitral procedure

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 [ .… ]
2.–4. Arbitration proceedings in general, evidence, experts (32)
Article 19 [Arts. 19 & 26 in the final text]
(1) The arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate
(a) subject to the provisions of articles 20 to 24 [Arts. 17, 20(2), 24, 25 & 26 in the final
text] and any instructions given by the parties in the arbitration agreement; (33)
[ … ].
[ .… ]
7. Default (42)
Alternative A:
Article 24 (A) [Art. 25 in the final text] (43)
(1) If, within the period of time fixed by the arbitral tribunal, the claimant has failed to
communicate his statement of claim without showing sufficient cause for such failure,
the arbitral tribunal shall issue an order for the termination of the arbitration
proceedings.
(2) If, within the period of time fixed by the arbitral tribunal, the respondent fails to
communicate his statement of defence without showing sufficient cause for such
failure, the arbitral tribunal shall order that the proceedings continue.
(3) If one of the parties, invited in writing at least [20] days in advance, fails to appear at
a hearing, without showing sufficient cause for such failure, the arbitral tribunal may
proceed with the arbitration; if the tribunal decides to do so, it shall notify the
parties in writing.
(4) If one of the parties, invited in writing to produce documentary evidence within a
specified period of time of not less than [20] days, fails to do so, the arbitral tribunal
may make the award on the evidence before it; if the tribunal decides to do so, it
shall notify the parties in writing.
[(5) The defaulting party may, within 15 days after issuance of the order referred to in
paragraph (1) or (2) or the notification referred to in paragraph (3) or (4), request the
Authority specified in article 17 [Art. 6 in the final text] to review the decision of the
arbitral tribunal as to whether the conditions laid down in the respective paragraph
of this article were fulfilled.]
P 704
P 705
Alternative B:
Article 24(B)
If, without showing sufficient cause for the failure,
(a) the respondent fails to communicate his statement of defence within the period of
time fixed by the arbitral tribunal; or
(b) one of the parties, invited in writing at least [20] days in advance, fails to appear at a
hearing; or
(c) one of the parties, invited in writing to produce documentary evidence within a
specified period of time of not less than [20] days, fails to do so,
the other party may request the Authority specified in article 17 [Art. 6] to [authorize]
[instruct] the arbitral tribunal to proceed with the arbitration.
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Arbitral procedure
[ .… ]
Arbitration proceedings in general, evidence, experts
Article 19 [Arts. 19 & 26 in the final text]
[ .… ]
103. The Working Group agreed to decide to what extent the provisions of articles 20 to 24
[Arts. 17, 20(2), 24, 25 & 26 in the final text] should be mandatory in deliberations on each of
those articles.
[ .… ]
Article 24 [Art. 25 in the final text]
124. The text of article 24 as considered by the Working Group was as follows:
[same as First Draft, supra].

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 125. The Working Group supported the policy underlying paragraphs (1) to (4) of alternative
A. It was generally agreed that these provisions were subject to the contrary agreement of
P 705 the parties. It was noted that in paragraph (4) of article 24 (Alternative A) the words
P 706 “without showing sufficient cause for such failure” had been erroneously omitted and
should be added after the words “fails to do so.”
126. It was agreed that paragraph (5) of alternative A as well as the entire text of
alternative B should be deleted since they introduced a degree of court supervision of
international commercial arbitration which was neither necessary nor desirable.
127. The view was expressed that this article should set forth principles in a general way
without detailed procedural rules.
128. The Working Group was in agreement that this article should in its result preserve a
balance of equality between the parties. It was noted, however, that it was difficult to
preserve a formal equality since the parties were in different situations. The claimant has
every reason to pursue his claim if he believes it is justified, since otherwise he will have
incurred expenses for no substantive purpose. On the other hand the respondent may fail
to act in the arbitration so as to impede its progress.
129. It was suggested that the parties might be in a situation of greater equality if the
failure of the defendant to communicate his statement of defence was treated as a denial
of the claim. In such a case, even though the respondent was in default in respect of the
arbitral procedure, the claimant would have to establish the merits of his case before the
arbitral tribunal.
130. It was suggested that the time–limits provided for in this article might be too short,
taking into account the distances and possible delays in communications. It was also
suggested that a flexible approach in giving the arbitral tribunal some discretion in setting
time–limits might be appropriate.
131. The view was also expressed that it would be appropriate to make clear in paragraph
(3) that the arbitral tribunal should give a party a period of time to show that he had
sufficient cause for his failure to appear at a hearing.
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
F. Place and conduct of arbitral proceedings
[ .… ]
Article XVIII [Art. 25 in the final text]
Alternative A:
[Unless otherwise agreed by the parties], (16) if, without showing sufficient cause for the
failure,
(a) the claimant fails to communicate his statement of claim within the period of time
stipulated by the parties or fixed by the arbitral tribunal, the arbitration proceedings
shall be terminated [and the costs of the arbitration be borne by the claimant];
P 706 (b) the respondent fails to communicate his statement of defence within the period of
P 707 time [of not less than 40 days as] stipulated by the parties or fixed by the arbitral
tribunal, [this [may] [shall] be treated as a denial of the claim and] (18) the
arbitration proceedings shall continue;
(c) a party, duly notified in accordance with article XVII(2) [Art. 24(2) in the final text], (19)
fails to appear at a hearing, the arbitral tribunal may proceed with the arbitration;
(d) a party fails to produce documentary evidence, after having been invited to do so
within a specified period of time of not less than 40 days, the arbitral tribunal may
make the award on the evidence before it. (19a)
Alternative B:
Even if, without showing sufficient cause for the failure, the respondent fails to
communicate his statement of defence, or a party fails to appear at a hearing or to
produce documentary evidence, although an invitation to do so had been sent at least 40
days in advance, the arbitral tribunal may continue the proceedings and make the award,
unless default proceedings are excluded by agreement of the parties.
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[ .… ]
Article XVIII [Art. 25 in the final text]
86. The text of article XVIII as considered by the Working Group was as follows:
[same as Second Draft, supra].
87. The Working Group considered whether alternative A of article XVIII or shorter version
presented as alternative B was more appropriate for inclusion in the model law. There was
some support for alternative A since it provided more detailed rules on the important
subject of default proceedings. The prevailing view, however, was to include a more

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 general provision along the lines of alternative B, with one or two points added from
alternative A.
88. A point to be included is the claimant's failure to communicate his statement of claim
(or to state his case) as covered by sub–paragraph (a) of alternative A.
P 707
P 708
89. Another point which was noted as missing in alternative B was the possible assessment
by the arbitral tribunal of the respondent's failure to communicate his statement of
defence. Divergent views were expressed as to whether and, if so, in which way this point
should be regulated in the model law. Under one view, such failure by the respondent may
be treated as a denial of the claim. Under another view, it was sufficient and necessary to
provide that such failure shall not be treated as an admission of the claimant's allegations.
Under yet another view, the arbitral tribunal should be given full discretion by not
providing any rule on the legal assessment of such failure. The Working Group was agreed
that this question should be decided at its next session in the light of draft provisions
prepared by the Secretariat.
90. The Working Group was also agreed that the provision should not contain any fixed
time–period. In view of the great variety of cases, it was more appropriate to use a more
flexible formula such as “a reasonable time” or “sufficient time” or merely to refer to the
“time stipulated by the parties or fixed by the arbitral tribunal.” This would also include
the possibility, which was generally supported, that any time–period could be extended by
the arbitral tribunal in appropriate cases.
91. Finally, the Working Group adopted the view that the provision should not be
mandatory.
92. The Working Group requested the Secretariat to prepare a revised draft provision on
the basis of the above discussion, taking into account also the drafting suggestions which
were made during the deliberations.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 25. Default of a party
Unless otherwise agreed by the parties, if, without showing sufficient cause for the failure,
(a) the claimant fails to communicate his statement of claim in accordance with article
23(1), the arbitral proceedings shall be terminated;
(b) the respondent fails to communicate his statement of defence in accordance with
article 23(1),
Variant
A: the arbitral proceedings shall continue;
Variant
B: the arbitral tribunal shall continue the proceedings without treating such
failure as an admission of the claimant's allegations;
Variant
C: the arbitral tribunal shall treat this as a denial of the claim and continue the
proceedings;
(c) any party fails [to comply with a request by the arbitral tribunal] to appear at a
hearing, or to produce documentary evidence, the arbitral tribunal [may] [shall]
continue the proceedings [and may make the award on the evidence before it].
P 708
P 709
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 25
81. The text of article 25 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
82. The Working Group adopted that article, including, in subparagraph (b), the wording of
variant B, and subparagraph (c) in the following modified form:
“(c) any party fails to appear at a hearing, or to produce documentary evidence,
the arbitral tribunal may continue the proceedings and make the award on the
evidence before it.”
83. As regards the three variants presented in subparagraph (b), the Working Group, after
deliberation, adopted the wording of variant B. That wording, while according certain
discretion to the arbitral tribunal, contained a limitation which was considered useful in
view of the fact that under many national laws on civil procedure default of the defendant
in court proceedings was treated as an admission of the claimant's allegations.
84. It was suggested that the provision should be more elaborate and provide some

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 guidance concerning certain procedural issues (e.g., how to establish the default and in
what manner to conduct the proceedings and make the award). The Working Group, after
deliberation, was agreed that a model law need not contain detailed procedural rules in
that respect.
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 25. Default of a party
Unless otherwise agreed by the parties, if, without showing sufficient cause,
(a) the claimant fails to communicate his statement of claim in accordance with article
23(1), the arbitral proceedings shall be terminated;
(b) the respondent fails to communicate his statement of defence in accordance with
article 23(1), the arbitral tribunal shall continue the proceedings without treating
such failure as an admission of the claimant's allegations;
(c) any party fails to appear at a hearing or to produce documentary evidence, the
arbitral tribunal may continue the proceedings and make the award on the evidence
before it.
P 709
P 710
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 25. Default of a party
Article 25, sub–paragraph (b)
1. The Federal Republic of Germany expresses the view that sub–paragraph (b) could be
interpreted to mean that silence on the part of the respondent would not result in any
disadvantage to him, and that this is not the intended meaning. The provision is
meaningful only to the extent that the claim made by the claimant is not recognized as
such. On the other hand, the arbitral tribunal should be able to come to this or a similar
conclusion in individual cases. In other words, it should be left to the arbitral tribunal to
draw those conclusions from the silence of the respondent that appear most probable.
Article 25, sub–paragraph (c)
2. Italy expresses the opinion that it might be appropriate to provide a sanction for the
case of the default of a party dealt with in sub–paragraph (c); a minimum sanction could
be that the failure to appear at a hearing or to produce documentary evidence is an
element which the arbitral tribunal could take into account in deciding the case.
3. In the view of the Soviet Union, sub–paragraph (c), according to which the arbitral
tribunal “may” continue the proceedings, also empowers the arbitral tribunal not to
continue the proceedings; it would be more appropriate to provide that the arbitral
tribunal “may, and at the request of the other party must, continue the proceedings.”
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1984)
Article 25. Default of a party
[ .… ]
1. Article 25 deals with those cases where a party, in particular the respondent, fails to play
his part in the proceedings in disregard of his earlier commitment to arbitration. The
provision, which is non–mandatory, lays down the consequences of such failure and
thereby ensures the effectiveness of the parties' agreement.
2. Article 25 would especially contribute to the desired harmonization of national
arbitration laws in view of the fact that some existing laws do not give effect to ex parte
awards. Of course, not only these States would be opposed to recognizing such an award if
P 710 they were not convinced that fundamental requirements of fairness had been met. The
P 711 model law, therefore, adopts as procedural safeguards the requirements that the
defaulting party had been requested or notified sufficiently in advance and that he
defaulted without showing sufficient cause therefor.
3. These procedural safeguards are of particular importance in the cases dealt with in
article 25(b) and (c) where the arbitral tribunal is empowered to continue the arbitral
proceedings and make an award. However, for the sake of completeness, article 25 also
covers the case where a party initiates arbitral proceedings but then fails to communicate
his statement of claim (article 25(a)); in such case, the arbitral proceedings shall be
terminated.
4. As regards the failure of the respondent to communicate his statement of defence,
article 25(b) ensures that the arbitration cannot be frustrated by such failure. It obliges the
arbitral tribunal to continue the proceedings “without treating such failure as an admission
of the claimant's allegations.” This rule concerning the assessment of the respondent's

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 failure seems useful in view of the fact that under many national laws on civil procedure
default of the defendant in court proceedings is treated as an admission of the claimant's
allegations. However, this does not mean that the arbitral tribunal would have no
discretion as to how to assess the failure and would be bound to treat it as a full denial of
the claim and all supporting facts.
5. As regards the failure of a party to appear at a hearing or to produce documentary
evidence, article 25(c) empowers the arbitral tribunal to continue the proceedings and
make the award on the evidence before it. In practical terms, this includes the power not
to admit or to disregard any documentary evidence presented by that party after the
specified time–limit for producing such evidence. Moreover, the arbitral tribunal is not
precluded from drawing inferences from a party's failure to produce any evidence as
requested. Although the provision does not itself say so, “failure to appear at a hearing”
presupposes that the party was given sufficient advance notice (article 24(3)) and “failure
to produce documentary evidence” presupposes that the party was requested to do so
within a specified period of time which was reasonable in accordance with the
fundamental principles of article 19(3) [Art. 18 in the final text].
SUMMARY RECORD A/CN.9/SR.325, .332
[17 June 1985, 9:30 a.m., A/CN.9/SR.325]
Article 25. Default of a party
Sub–paragraphs (a) and (b)
1. Mr. JOKO-SMART (Sierra Leone) said that the words “without showing sufficient cause” in
the introductory sentence of the article gave rise to two problems. The first was whether
“sufficient cause” was to be shown to the other party or to the arbitral tribunal. The second
problem related to the time factor. If cause was to be shown before the time–limit set in
P 711 article 23(1), sufficient time must be allowed for the other party to comply with that time–
P 712 limit. Permitting cause to be shown after the time–limit was tantamount to extending
the time agreed by the parties. It might be best to delete the words “without showing
sufficient cause.”
2. Mr. MTANGO (United Republic of Tanzania) said that the phrase should be made clearer
rather than deleted. The addition of the words “to the arbitrators” might solve the
problem.
3. Mr. de HOYOS GUTIERREZ (Cuba) said that the phrase should be retained because the
parties should have an opportunity to state reasons for non–compliance with article 23(1).
4. Mr. GRIFFITH (Australia) said that the arbitral tribunal should have a clear power to
order an extension in appropriate circumstances. He suggested the deletion of the phrase
“without showing sufficient cause” and the insertion of the words “or otherwise ordered by
the arbitral tribunal” before the word “if.”
5. The CHAIRMAN [Mr. LOEWE (Austria)] said that the Australian suggestion would give the
arbitral tribunal explicit discretionary power. If that was the Commission's wish, the word
“shall” should be replaced by “may” in sub–paragraph (b), and the end of sub–paragraph
(a) should be amended to read “the arbitrators may terminate the proceedings.” The words
“without showing sufficient cause” would then become superfluous and could be dropped.
6. Mr. ROEHRICH (France) said that the words “without showing sufficient cause” already
gave the arbitral tribunal sufficient discretionary power and met the point made by the
representative of Australia. The word “shall” should remain in both sub–paragraphs (a) and
(b).
7. Mr. GOH (Singapore) said that the provision should be clearer concerning the
discretionary power of the arbitral tribunal to terminate the proceedings.
8. Mr. HOLTZMANN (United States of America) said that the phrase “without showing
sufficient cause” should remain in the text and should be understood to imply “in the view
of the arbitral tribunal.” The Australian suggestion perhaps made the point clearer. The
Chairman's suggestion to replace “shall” with “may” in sub–paragraphs (a) and (b) would
amount to a substantive change in the thrust of the model law.
9. Mr. AYLING (United Kingdom) agreed that the phrase “without showing sufficient cause”
implied “to the arbitrators.” It was odd that the phrase governed sub–paragraph (a) but
also sub–paragraph (b). The aim of sub-paragraph (b) was that the arbitrators should not
have discretion but must continue the proceedings without the statement of defence being
communicated.
10. Mr. BROCHES (Observer, International Council for Commercial Arbitration) said he
understood the provision to mean that the arbitrators always had the discretion, for
example, to grant the respondent a period of grace if his failure to serve his papers on
time was not a wilful act and caused no undue delay in the proceedings.
P 712
P 713 11. The CHAIRMAN suggested that the Commission's report should make it clear that the
words “without showing sufficient cause” implied “to the arbitrators” and that the intention
was to give the arbitrators a degree of discretion and flexibility.
12. It was so agreed.

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 13. The CHAIRMAN said that it would cause great difficulties if the Commission attempted
to draft wording to cover the point made by the representative of Sierra Leone.
14. Mr. HOLTZMANN (United States of America) pointed out that a party might fail to meet
the time–limit set in article 23(1) and then promptly thereafter give a valid reason for that
failure.
15. Mr. JOKO-SMART (Sierra Leone) pointed out that sufficient cause might be shown after
the time–limit, when the arbitral tribunal had already terminated the proceedings
pursuant to sub–paragraph (a). In that case the party concerned should have the
opportunity to re–open the proceedings.
16. The CHAIRMAN said that in such a case the party could begin new proceedings. He
suggested that the Commission should not try to deal with the point in the model law.
17. It was so agreed.
18. Mr. SCHUMACHER (Federal Republic of Germany) drew attention to his Government's
written comment on sub–paragraph (b) ([Sixth Secretariat Note (Government Comments,)]
A/CN.9/263, [Art. 25,] para. 1). The sub–paragraph could not be interpreted to mean that
silence on the part of the respondent would not result in any disadvantage to him. That
was the common view in the Commission and the text should make it clear.
19. Mr. ROEHRICH (France) endorsed the comments made by the representative of the
Federal Republic of Germany.
20. The CHAIRMAN suggested that, if the Commission was agreed on the meaning of the
sub–paragraph, it should be submitted to the drafting committee for rewording.
21. It was so agreed.
Sub–paragraph (c)
22. Mr. LEBEDEV (Union of Soviet Socialist Republics) drew attention to his delegation's
written proposal concerning sub–paragraph (c) ([Sixth Secretariat Note (Government
Comments),] A/CN.9/263, [Art. 25] para. 3). The proposal should in fact read “may, or at the
request of the other part must, continue the proceedings” and not “may, and at the request
…” The point was that it would be unjustified to give the arbitral tribunal full discretion in
such cases.
23. Mr. MOELLER (Observer for Finland) supported the Soviet Union proposal.
24. Mr. MTANGO (Tanzania) said that he was not opposed to the Soviet Union proposal but
it might be helpful to insert the words “within reasonable time” after “documentary
evidence.”
P 713
P 714
25. The CHAIRMAN noted that the words “within reasonable time” could apply only to the
production of documents and not to an appearance at a hearing.
26. Mr. SZASZ (Hungary) said that the text implied that the time–limit for the production of
documents would be set by the arbitral tribunal; it could be assumed that it would be a
reasonable one.
27. The CHAIRMAN suggested that the report should make it clear that documentary
evidence was to be produced within the period set by the arbitral tribunal or, if no period
had been set, within reasonable time.
28. Mr. HOLTZMANN (United States of America) said that the point made by the
representative of the Federal Republic of Germany concerning sub–paragraph (b) applied
equally to sub–paragraph (c), which should also be sent to the drafting committee.
29. The CHAIRMAN said that in his opinion the point made by the Federal Republic of
Germany applied only to sub–paragraph (b). The Soviet Union proposal for sub–paragraph
(c) gave the arbitral tribunal wide discretion.
30. Mr. SAMI (Iraq) said that his delegation could not accept the Soviet Union proposal
because the party requesting the continuation of the proceedings might take unfair
advantage of the failure of the other party to submit documentary evidence. There might
be good reasons for such failure, and decisions concerning continuation of the proceedings
should rest only with the arbitral tribunal. Furthermore, the Soviet Union proposal was in
contradiction with the proviso “without showing sufficient cause” at the end of the
introductory sentence. That proviso gave the tribunal some discretion, whereas under the
Soviet Union proposal it would have to continue the proceedings if so requested by one of
the parties.
31. Mrs. RATIB (Egypt) endorsed the second point made by the representative of Iraq.
32. The CHAIRMAN said that in his view there was no contradiction, since the introductory
sentence governed all three sub–paragraphs. Under the Soviet Union proposal, the
tribunal would be bound to comply with a request for continuation of the proceedings
made by one of the parties under sub–paragraph (c) only if the defaulting party had not
shown sufficient cause.

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 33. Mr. LEBEDEV (Union of Soviet Socialist Republics) agreed with the Chairman that there
was no contradiction but said that, if a number of delegations were opposed to his
proposal, he would not press it.
34. Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration) said that
he could not accept any amendment to the present text.
35. Mr. ENAYAT (Observer for the Islamic Republic of Iran) said that his delegation
preferred the existing text, since the Soviet Union proposal would limit the discretionary
powers of the arbitral tribunal.
P 714
P 715
36. Mr. LAVINA (Philippines) said that his delegation supported the Iraqi position.
37. The CHAIRMAN suggested that, since the representative of the Soviet Union did not
press his amendment, the Commission should retain the existing text of sub–paragraph (c).
38. It was so agreed.
[20 June 1985, 3:00 p.m., SR.332]
Article 25 [as revised by the Drafting Group]
77. Mr. GRIFFITH (Australia) said that the phrase “without showing sufficient cause” in the
opening portion only applied to sub–paragraph (a) and should therefore be included in
that sub–paragraph. It had no application to sub–paragraphs (b) and (c).
78. The CHAIRMAN [Mr. LOEWE (Austria)] said that the matter had not been discussed by the
Commission. He could not reopen discussion of the article unless the Commission wished
it.
79. Article 25 was adopted without change.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 25. Default of a party
212. The text of article 25 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
213. The Commission agreed that the text of article 25 should make it clear that in order for
the party in default to escape the consequences of article 25, he should show to the
arbitral tribunal sufficient cause for his failure to act as required. It was thought that the
text was already sufficiently clear that the sufficient cause for the delay had to exist before
the time the action was due. However, as to the point of time when sufficient cause was to
be shown to the arbitral tribunal, it was thought that, although it was clear from the article
that the question whether there was sufficient cause for the failure had to be settled
before the arbitral tribunal decided on a consequence of default, a definition of a point of
time in the text would be difficult and would unnecessarily interfere with the discretion of
the arbitral tribunal to assess the cause for delay and to extend the period of time when
the party must communicate a statement or produce evidence.
214. It was suggested that sub–paragraph (b) should not be interpreted as meaning that the
arbitral tribunal would have no discretion as to how to assess the cause of the failure to
communicate the statement of defence as required and that it would be precluded from
drawing inferences from such failure. The Commission was agreed that the correct
interpretation should be made clear in sub–paragraph (b) by using an expression such as
“without treating such failure in itself.…”
P 715
P 716
215. A proposal was made to restrict the discretion of the arbitral tribunal in sub–
paragraph (c) by obliging it to continue the arbitral proceedings if the party not in default
so requested. The Commission did not adopt the proposal on the ground that an obligation
to continue the arbitral proceedings might be seen as a restriction of the discretion of the
arbitral tribunal in assessing whether there was sufficient cause for a party's failure to
appear at a hearing or to produce documentary evidence.
216. The Commission adopted article 25, subject to the amendments to the opening words
of the article and to sub–paragraph (b), which were referred to the Drafting Group.
P 716

References
1) First Secretariat Note, A/CN.9/207, para. 80, p. 702 infra.
2) Id.
3) First Working Group Report, A/CN.9/216, para. 71, p. 703 infra.
4) See Fifth Working Group Report, A/CN.9/246, para. 83, p. 709 infra.
5) See First Secretariat Note, A/CN.9/207, para. 81, p. 702 infra; First Working Group
Report, A/CN.9/216, para. 71, p. 703 infra.

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 6) First Draft, A/CN.9/WG.II/WP.37, Art. 24(A)(3), (4) & (B)(b), (c), pp. 704–05 infra; Second
Draft, A/CN.9/WG.II/WP.40, Art. XVIII, pp. 706–07 infra; Fourth Working Group Report,
A/CN.9/245, para. 90, p. 708 infra.
7) Seventh Secretariat Note, A/CN.9/264, Art. 25, para. 5, p. 711 infra. See generally First
Secretariat Note, A/CN.9/207, para. 81, p. 702 infra; First Working Group Report,
A/CN.9/216, para. 71, p. 703 infra.
8) See First Draft, A/CN.9/WG.II/WP.37, Art. 24(A), n. 43, p. 705 infra.
9) First Working Group Report, A/CN.9/216, para. 71, p. 703 infra.
10) Id.
11) Second Working Group Report, A/CN.9/232, para. 126, p. 706 infra.
12) See Fifth Working Group Report, A/CN.9/246, para. 83, p. 709 infra.
13) See Fourth Working Group Report, A/CN.9/245, para. 89, p. 708 infra.
14) Fifth Working Group Report, A/CN.9/246, para. 83, p. 709 infra.
15) Seventh Secretariat Note, A/CN.9/264, Art. 25, para. 4, p. 711 infra.
16) See Commission Report, A/40/17, para. 214, p. 715 infra.
17) Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 25, para. 1, p. 710
infra (comments of the Federal Republic of Germany).
18) Seventh Secretariat Note, A/CN.9/W64, Art. 25, para. 5, p. 711 infra.
19) A/40/17, para. 229, appearing in the section on Article 27, p. 761 infra; see also
Summary Record, A/CN.9/SR.325, paras. 84–86, appearing in the same section, p. 759
infra.
20) Seventh Secretariat Note, A/CN.9/264, Art. 25, para. 5, p. 711 infra.
*) [Editors' Note: See also paragraph 58 of this document, which considers the general
question of the extent to which the Model Law should include “supplementary rules on
arbitral procedure.” It appears in the section on Article 19, p. 574 supra.]
32) [Editors' Note: The full text of draft Article 19 and footnote 32 appear in the section on
Article 19, pp. 575–76 supra.]
33) Consideration of this sub–paragraph may be combined with the discussion on the
articles referred to therein. When discussing articles 20 to 24, the Working Group may
wish to consider to what extent these provisions should be mandatory [ … ].
42) Discussion and conclusions of the Working Group in [the First Working Group Report,]
A/CN.9/216, para. 71.
43) Paragraphs (1) to (4) of this draft article are modelled on article 28 of the UNCITRAL
Arbitration Rules. Paragraph (5) presents a possible method of judical control which
the Working Group may wish to consider, as an alternative to draft article 24 (B), if
some kind of court control over ex parte proceedings would be envisaged at all.
16) Mention of this proviso may be deemed unnecessary in view of the fact this article is
not included in the reference to mandatory provisions listed in Article XV(1) [Art. 19(1)
in the final text]. [Editors' Note: Footnote 17 related to draft Article XVII and appears in
the section on Article 24, p. 679 supra.]
18) If the idea in square brackets were to be accepted, the Working Group may wish to
define what exactly is meant by “denial of claim.”
19) A (minimum) period of time would have to be included here, if in article XVII(2) [Art.
24(2)] the first alternative (i.e., “sufficient notice”) were adopted.
19a) If the minimum period of time (40 days) set forth in this paragraph and in paragraph
(b) were to be adopted, it should probably be regarded as “mandatory,” unlike the
rest of this article.

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Document information
UNCITRAL Model Law, Chapter V, Article 26 [Expert
Publication appointed by arbitral tribunal]
A Guide to the UNCITRAL (1) Unless otherwise agreed by the parties, the arbitral tribunal
Model Law on International
Commercial Arbitration: (a) may appoint one or more experts to report to it on specific issues to be
Legislative History and determined by the arbitral tribunal;
Commentary (b) may require a party to give the expert any relevant informationor to produce,
or to provide access to, any relevant documents, goods or other property for
his inspection.
Organization (2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral
tribunal considers it necessary, the expert shall, after delivery of his written or oral
United Nations Commission report, participate in a hearing where the parties have the opportunity to put
on International Trade Law questions to him and to present expert witnesses in order to testify on the points at
issue.
Promulgation Commentary
21 June 1985 Experts are a part of many commercial arbitrations. An arbitral tribunal composed of
lawyers, for example, might feel able to decide that a management or licensing agreement
had been wrongfully terminated, but it might wish to appoint an expert in whom it had
Legislation number confidence to report on complex accounting problems involved in determining the amount
of damages to be awarded. Similarly, a claim for failure to pay for high–technology
United Nations Document products or for a complex construction project might be met with a defense and
A/40/17, Annex I counterclaim that the goods delivered failed to meet technical specifications, and the
arbitral tribunal might suddenly find itself in need of a technical expert, and desire one of
its own choosing. In these and many other cases under the Model Law the arbitral
Bibliographic reference tribunal's power to appoint its own expert would be governed by Article 26.
'UNCITRAL Model Law, This provision was initially modelled on Article 27 of the UNCITRAL Arbitration Rules (1) and
Chapter V, Article 26 [Expert much of the language of that provision appears in the final text. The Working Group
appointed by arbitral deleted several detailed procedural elements, however, and retained only what were
tribunal]', in Howard M. considered “statements of principle.” (2)
Holtzmann and Joseph
Neuhaus , A Guide to the Paragraph 1. The arbitral tribunal's power to appoint an expert under Article 26(1) is an
UNCITRAL Model Law on implied power that the parties may alter by agreement. This policy was adopted early in
International Commercial P 718 the legislative history of the provision, (3) but a key issue that remained was whether there
Arbitration: Legislative P 719 should be any limitations on when the parties could agree not to allow the appointment
History and Commentary, of an expert. It was recognized that the arbitral tribunal has a strong interest in the
(© Kluwer Law International; question because “not everyone would like to act as arbitrator” where the parties had
Kluwer Law International agreed that the tribunal could not appoint experts it deemed necessary. (4) Thus, it was
1989) pp. 718 - 732 suggested in both the Working Group and the Commission that the parties could impose
such an agreement only if it was reached before the appointment of the first arbitrator. (5)
An arbitrator would then know the terms of his or her appointment, and the risk that time
and money might be wasted as a consequence of arbitrators resigning for this reason would
be largely eliminated.
Both the Working Group and the Commission rejected these suggestions, however. (6) It was
felt that the principle of party autonomy was paramount here, for several reasons. (7) First,
it was said, the parties are familiar with their dispute and know best what means should be
used to settle it. Second, they bear the cost of any experts. Third, both parties may find
that they do not have confidence in an expert appointed by the arbitral tribunal. Finally, it
is the parties who must bear the cost of wasted time and effort if an arbitrator resigns
because of the parties' late decision to disallow experts. It was thought that they would
consequently only take such a step for the most serious of reasons.
A second issue discussed at some length in drafting paragraph 1 was whether the power to
order production of information, documents, or other goods to the expert should be vested
in the expert or in the arbitral tribunal. The First Draft, modeled on Article 27 of the
UNCITRAL Arbitration Rules, provided that the parties were required to give the expert, or
produce for his inspection, any relevant information, documents or goods, but that any
disputes as to relevance would be decided by the arbitral tribunal. (8) The Working Group
deleted the sentence regarding resolution of disputes largely because it was “a detail
question not appropriate for inclusion in a law.” (9)
The Fourth Draft proposed two alternative procedural mechanisms to replace the deleted
provision: either that the expert could, “within his terms of reference,” require a party to
P 719 give him the materials, or that the arbitral tribunal could do so. (10) The Working Group
P 720 chose the latter alternative because “it was more appropriate that the arbitral tribunal
itself, and not the expert, should require any relevant information or materials.” (11) Thus,
the Model Law provides that the arbitral tribunal “may require a party to give the expert
any relevant information or to produce, or to provide access to, any relevant documents,
goods or other property for his inspection.” As a result, although the expert can no doubt
request the parties to provide relevant evidence or information, only the arbitral tribunal

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 can actually order production and sanction noncompliance. In practice, though, this
procedure is probably little different from the dispute–resolution role assigned to the
arbitral tribunal by the UNCITRAL Arbitration Rules. In any case, as noted, these provisions
may be altered by agreement of the parties, including an agreement to conduct the
arbitration under those rules.
Paragraph 2. Paragraph 2 relates to the procedures applicable after the expert's report
has been prepared. The final text is somewhat less rigid than some of the earlier drafts. In
particular, under the final text the report may be “written or oral,” in contrast to the First
Draft and to Article 27(1) of the UNCITRAL Arbitration Rules, which provide for a report “in
writing.” (12) The Working Group Report notes simply that “the form of the expert's opinion
could be left to arbitral practice and to the agreement of the parties.” (13)
The Fourth Draft required that in every case the expert after presenting his report “shall”
participate at a hearing. (14) That approach was rejected, presumably because there may
be cases in which neither the arbitral tribunal nor any party considers that a hearing of the
expert is necessary. The Working Group adopted the more flexible formulation that
appears in the final text, (15) providing for a hearing only where either a party requested
one or the tribunal considered it necessary.
Finally, it should be emphasized that whether or not the arbitral tribunal appoints an
expert, each party is also free to choose and present expert witnesses. Such party–
appointed experts are explicitly mentioned in Article 26(2). Parties are not limited,
however, to presenting expert witnesses at hearings called pursuant to that paragraph in
connection with expert witnesses appointed by the tribunal. The Working Group explicitly
recognized this in its discussion of the issues relating to appointment of experts by the
P 720 arbitral tribunal. Thus, the First Working Group Report states, “It was noted that this issue
P 721 was to be distinguished from the question whether a party could present the evidence
of an expert witness. The Working Group was agreed that the arbitral tribunal should hear
such expert witnesses as provided for in article 15, paragraph 2 of the UNCITRAL Arbitration
Rules.” (16)

Legislative History
FIRST SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW
A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
IV. Arbitral procedure
[ .… ]
2. Arbitral proceedings in general
[ .… ]
[Editors' Note: Paragraph 73 of this document, which appears in the section on Article 19, p.
572 supra, states that “[t]he model law should empower the arbitral tribunal to conduct the
arbitration proceedings in such manner as it considers appropriate,” subject to certain
restrictions discussed in that paragraph. The Note continues as follows; the full text of the
following paragraph appears in the section on Article 19.]
74. Furthermore, the model law may impose certain rules which would be binding on the
arbitrators either irrespective of any conflicting agreement by the parties or only if the
parties have not agreed otherwise. [ … ] Examples of the second category, i.e. rules from
which the parties may derogate, include provisions [ … ] on experts ([discussed below,]
para. 76) [ … ].
[ .… ]
4. Experts
76. As regards rules on the use of experts in arbitration proceedings, similar considerations
apply as on evidence in general. [See paragraph 75 of this document, which appears in the
section on Article 19, p. 573 infra.] Thus, subject to any agreement by the parties, the arbitral
tribunal would have the power to appoint experts, whereby the model law should specify
whether it may do so only upon request by a party or ex officio. Supplementary rules could
P 721 prove to be particularly useful here, since a number of important questions are not
P 722 normally taken into account by the parties when drawing up the arbitration agreement
and are regulated in full detail only in few standard arbitration rules. Therefore, it would
seem desirable to include supplementary provisions, modelled after art. 27 of the
UNCITRAL Arbitration Rules, on such points as the expert's terms of reference and the
parties' rights and obligations in respect of the expert's performance of his task.
SECOND SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW:

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 QUESTIONS FOR DISCUSSION
A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
IV. Arbitral procedure
[ .… ]
4. Experts (report, [First Secretariat Note, supra] para. 76)
Question
4–8: Should the arbitral tribunal be empowered to appoint experts ex officio, unless the
parties have agreed otherwise?
Question
4–9: What supplementary rules are appropriate, e.g., on the expert's terms of reference or
on the parties' rights and obligations in respect of the expert's performance of his
task (c.f., e.g., art. 27 of the UNCITRAL Arbitration Rules)?
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
IV. Arbitral procedure
[ .… ]
4. Experts
Question
4–8: Should the arbitral tribunal be empowered to appoint experts ex officio, unless the
parties have agreed otherwise?
Question
4–9: What supplementary rules are appropriate, e.g. on the expert's terms of reference or
on the parties' rights and obligations in respect of the expert's performance of his
task (cf., e.g. art. 27 of the UNCITRAL Arbitration Rules)?
63. There was general agreement that the arbitral tribunal should be empowered to
appoint experts ex officio even if the parties had not expressly authorized it to do so.
P 722 However, divergent views were expressed as to whether this power could be excluded by a
P 723 stipulation of the parties. Under one view, parties who had submitted a dispute to
arbitration should not have the power to preclude the arbitral tribunal from ex officio
calling an expert if that was needed for deciding the dispute. The prevailing view, however,
was that the parties could at any stage of the proceedings preclude the arbitral tribunal
from calling an expert without their agreement. It was noted that this issue was to be
distinguished from the question whether a party could present the evidence of an expert
witness. The Working Group was agreed that the arbitral tribunal should hear such expert
witnesses as provided for in article 15, paragraph 2 of the UNCITRAL Arbitration Rules.
64. The Working Group was also agreed that it was worthwhile to consider the feasibility of
including in the model law some supplementary provisions of the type embodied in article
27 of the UNCITRAL Arbitration Rules. It requested the Secretariat to prepare draft
provisions for its consideration. (*)
FIRST DRAFT
A/CN.9/WG.II/WP.37 (15 JULY 1982)
IV. Arbitral procedure
[ .… ]
2.–4. Arbitration proceedings in general, evidence, experts (32)
[ .… ]
Article 19 [Arts. 19 & 26 in the final text]
(1) The arbitral tribunal may conduct the arbitration in such manner as it considers
appropriate
(a) subject to the provisions of articles 20 to 24 [Arts. 17, 20(2), 24, 25 & 26 in the final
text] and any instructions given by the parties in the arbitration agreement; (33)
[ … ].
(2) [ … ] [Notwithstanding the provision of paragraph (1) (a), the parties may not preclude
the arbitral tribunal from calling an expert if it deems that necessary for deciding the
dispute.]
[ .… ]
P 723
P 724
Article 22 [Art. 26 in the final text] (38)
(1) The arbitral tribunal may appoint one or more experts to report to it, in writing, on

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 specific issues to be determined by the tribunal. (39)
(2) Unless otherwise provided in the arbitration agreement,
(a) A copy of the expert's terms of reference, established by the arbitral tribunal,
shall be communicated to the parties;
(b) The parties shall give the expert any relevant information or produce for his
inspection any relevant documents or goods that he may require of them. Any
dispute between a party and such expert as to the relevance of the required
information or production shall be referred to the arbitral tribunal for decision;
(c) Upon receipt of the expert's report, the arbitral tribunal shall communicate a
copy of the report to the parties who shall be given the opportunity to express,
in writing, their opinion on the report. A party shall be entitled to examine any
document on which the expert has relied in his report;
(d) At the request of either party, the expert, after delivery of the report, [may]
[shall] be heard at a hearing where the parties shall have the opportunity to be
present, to interrogate the expert, and to present expert witnesses in order to
testify on the points at issue.
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Arbitral procedure
[ .… ]
Arbitration proceedings in general, evidence, experts
Article 19 [Arts. 19 & 26 in the final text]
101. The text of article 19 as considered by the Working Group was as follows:
[same as First Draft, supra].
[ .… ]
P 724
P 725
103. The Working Group agreed to decide to what extent the provisions of articles 20 to 24
[Arts. 17, 20(2), 24, 25 & 26 in the final text] should be mandatory in deliberations on each of
those articles.
[ .… ]
105. In respect of paragraph (2) it was suggested that the sentence in square brackets
should be deleted. It was felt that such a provision unduly restricted the principle of
freedom of the parties.
[ .… ]
Article 22 [Art. 26 in the final text]
114. The text of article 22 as considered by the Working Group was as follows:
[same as First Draft, supra].
115. Regarding paragraph (1) it was agreed that the text should be clear that this provision
is subject to the contrary agreement of the parties.
116. It was also agreed that the requirement of writing in paragraph (1) should be deleted.
It was felt that the form of the expert's opinion could be left to arbitral practice and to the
agreement of the parties.
117. There was general agreement that paragraph (2) should express only statements of
principle and that the procedural elements should be deleted. However, different views
were expressed as to which subparagraphs contained statements of principle. There was
wide support for retaining subparagraphs (b) and (d) and less support for retaining
subparagraphs (a) and (c). It was suggested that some of the provisions in paragraph (2)
could be incorporated in article 20 [Art. 24 in the final text].
118. There was general agreement that the word “shall” in subparagraph (d) was more
appropriate than “may” and was in line with the discussion of article 20 [Art. 24].
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
F. Place and conduct of arbitration proceedings
Article XV [Arts. 18 & 19 in the final text]
(1) Subject to the provisions of article XVII (1), [(a),], (b), (2), (3), [(5),] [Arts. 24(1), 26(2), 24(2),
24(3), 26(1)(b), respectively, in the final text] the parties are free to [agree on] [determine,
either directly or by reference to arbitration rules,] the procedure to be followed by the

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 arbitral tribunal (15) in conducting the proceedings.
[ .… ]
P 725
P 726
Article XVII [Arts. 24 & 26 in the final text]
(1) [Failing agreement by the parties,] (16) the arbitral tribunal shall decide whether to
hold hearings or whether the proceedings shall be conducted on the basis of
documents and other materials. However, if a party so requests,
[…]
(b) any expert, appointed by the arbitral tribunal, after delivery of his written or
oral report, shall be heard at a hearing where the parties have the opportunity
[to be present,] to interrogate the expert and to present expert witnesses in
order to testify on the points at issue.
[ .… ]
(4) [Unless otherwise agreed by the parties,] (16) the arbitral tribunal may appoint one
or more experts to report to it on specific issues to be determined by the tribunal.
(5) The parties shall give the expert any relevant information or produce for his
inspection any relevant documents or goods that he may require of them. [Any
dispute between a party and such expert as to the relevance of the required
information or production shall be referred to the arbitral tribunal for decision.]
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[ .… ]
Article XVII [Arts. 24 & 26 in the final text]
80. The text of Article XVII as considered by the Working Group was as follows:
[same as Second Draft, supra].
Paragraph (1)
81. [ … ] As regards sub–paragraph (b), the Working Group also decided to delete the words
placed between square brackets, although there was some support for retaining them.
[ .… ]
Paragraph (4)
P 726 84. The Working Group adopted this paragraph with the proviso placed between square
P 727 brackets. It was suggested, however, that any contrary agreement had to be concluded
before the appointment of the arbitrators so that any arbitrator when accepting his
mandate would know about the restriction on his power to appoint experts.
Paragraph (5)
85. The Working Group adopted the first sentence of this paragraph. It decided to delete
the second sentence placed between square brackets since it dealt in an unsatisfactory
manner with a detail question not appropriate for inclusion in a law. A suggestion was
made that in this article consideration be given, under appropriate circumstances, to
safeguarding trade secrets.
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 26. Expert appointed by arbitral tribunal
(1) Unless otherwise agreed by the parties before the appointment of the first arbitrator,
the arbitral tribunal may appoint one or more experts to report to it on specific
issues to be determined by the tribunal.
(2) The [expert may, within his terms of reference, require a party to give him] [arbitral
tribunal may require a party to give the expert] any relevant information or to
produce, or to provide access to, any relevant documents, goods or other property for
his inspection.
(3) The expert shall, after delivery of his written or oral report, participate in a hearing
where the parties have the opportunity to interrogate him and to present expert
witnesses in order to testify on the points at issue.
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 26

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© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 85. The text of article 26 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
86. The Working Group adopted that article, subject to the deletion, in paragraph (1), of the
words “before the appointment of the first arbitrator” and, in paragraph (2), the deletion of
the words “expert may, within his terms of reference, require a party to give him” and,
before the first word of paragraph (3), the addition of the words “If a party so requests or if
the arbitral tribunal considers it necessary.”
P 727 87. There was some support for retaining, in paragraph (1), the words “before the
P 728 appointment of the first arbitrator” since that would ensure that an arbitrator, when
accepting his mandate, would know about the restricton on his power to appoint an expert.
However, the prevailing view was that the freedom of the parties to restrict that power of
the arbitral tribunal was paramount and should not be subject to such a time–limit.
88. As regards paragraph (2), the Working Group was agreed that it was more appropriate
that the arbitral tribunal itself, and not the expert, should require any relevant information
or materials.
89. As regards paragraph (3), the purpose of the modification was to make clear that a
hearing with the expert had not to be held in each and every case but only where a party
so requested or where, without such a request, the arbitral tribunal considered it
necessary.
FIFTH DRAFT
A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 26. Expert appointed by arbitral tribunal
(1) Unless otherwise agreed by the parties, the arbitral tribunal
(a) may appoint one or more experts to report to it on specific issues to be
determined by the arbitral tribunal;
(b) may require a party to give the expert any relevant information or to produce,
or to provide access to, any relevant documents, goods or other property for his
inspection.
(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral
tribunal considers it necessary, the expert shall, after delivery of his written or oral
report, participate in a hearing where the parties have the opportunity to interrogate
him and to present expert witnesses in order to testify on the points at issue.
SIXTH SECRETARIAT NOTE
ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 26. Expert appointed by arbitral tribunal
Article 26, paragraph (1)
1. Mexico notes that article 26(1)(b) empowers the arbitral tribunal to require “one of the
parties” to give information to the expert. Mexico suggests making clear that each of the
parties, and not only one of them, could be so required. (Note by the Secretariat: in article
26(1)(b), the English words “may require a party” were translated in the Spanish language
as “podrá solicitar a una de las partes.”)
P 728 2. The Soviet Union is of the opinion that the freedom of the parties to restrict the right of
P 729 the arbitral tribunal to appoint an expert should be limited to the time before the
appointment of the arbitrators, with the consequence that the arbitrators would know of
the restriction when accepting their appointment.
Article 26, paragraph (2)
3. Cyprus suggests that paragraph (2) should provide for a right of the arbitral tribunal to
put questions to the expert regardless of any agreement to the contrary between the
parties.
SEVENTH SECRETARIAT NOTE
ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1985)
Article 26. Expert appointed by arbitral tribunal
[ .… ]
1. Article 26 deals with experts appointed by the arbitral tribunal; it does not deal with
expert witnesses which a party may present. Paragraph (1) grants the arbitral tribunal an
implied power, i.e., without special authorization by the parties, to appoint one or more

34
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 experts to report to it on specific issues and to order a party to co–operate in a certain way
with the expert.
2. Since the provision is non–mandatory, the parties may exclude such power. This would
mean that the arbitral tribunal would have to decide the dispute without obtaining the
necessary expertise which it itself lacks. While not everyone would like to act as arbitrator
under such conditions, the solution of paragraph (1) was adopted in recognition of the
paramount nature of party autonomy (and of the underlying practical considerations that
the parties know best by what means their dispute should be decided, that they are the
ones to pay for any expert, and that they are wise enough not to put their arbitrators in a
dilemma of the type described above). It is also for this reason that the parties may
exclude such power at any time during the proceedings and not, as suggested in an earlier
draft version, only before the appointment of the first arbitrator. (76)
3. Article 26, like most provisions of the model law concerning the conduct of the arbitral
proceedings, embodies a statement of principle without regulating all particulars, as often
treated in detail by arbitration rules. Paragraph (2) is no exception since it guarantees a
fundamental procedural right, which is another concrete implementation of the principles
laid down in article 19(3) [Art. 18 in the final text]. The parties are given the opportunity to
interrogate the expert, after he has delivered his written or oral report, and to present
expert witnesses in order to testify on the points at issue. Such opportunity may be taken
in a hearing, which the arbitral tribunal must hold if one party so requests or which the
arbitral tribunal may call on its own if it considers it necessary.
P 729
P 730
SUMMARY RECORD
A/CN.9/SR.325, .332
[17 June 1985, 9:30 a.m., A/CN.9/SR.325]
Article 26. Expert appointed by arbitral tribunal
39. Mr. LEBEDEV (Union of Soviet Socialist Republics), speaking on article 26(1), said that
the parties should decide before the setting up of the arbitral tribunal whether they
wished to allow the appointment of experts or not. An arbitrator might of course not
consider himself competent in a particular area and might wish to rely upon the advice of
an expert. If the parties did not wish an expert to be appointed, the arbitrator could
resign, but the resultant delay would not be in the parties' best interests. He proposed that
the opening sentence of the paragraph should be amended to read “Unless otherwise
agreed by the parties before the arbitrators are appointed.…”
40. The CHAIRMAN [Mr. LOEWE (Austria)] pointed out that parties could withdraw from the
arbitral proceedings at any stage if they were not satisfied with the expert appointed by
the arbitral tribunal.
41. Mr. MTANGO (United Republic of Tanzania) said that article 26 should be maintained in
its present form since it gave the parties freedom to decide at any stage of the
proceedings whether an expert should be appointed.
42. Mr. BROCHES (Observer, International Council for Commercial Arbitration) agreed with
the Soviet Union representative that arbitrators should know in advance whether they
would have the right to obtain the assistance of an expert. That was no danger to the
parties since under the model law they would have an opportunity to interrogate the
expert appointed by the tribunal.
43. Mr. AYLING (United Kingdom) said he preferred the present text of article 26. With
regard to the point raised by the Soviet Union representative, he himself felt that in most
cases the parties would avoid a decision which might force the resignation of an arbitrator,
because of the delay and expense which that would cause.
44. Mr. ROEHRICH (France) also favoured retaining article 26 as it stood.
45. Mr. PAULSSON (Observer, Chartered Institute of Arbitrators) expressed support for the
present text of article 26, which his organization had followed in drawing up the rules of
the London Court for International Arbitration (1985). It was also consistent with the IBA
Supplementary Rules Governing the Presentation and Reception of Evidence in
International Commercial Arbitration (1983). In practice, parties rarely agreed that experts
should not be appointed.
46. Mr. OLUKOLU (Nigeria) said that the present text of article 26 gave the parties the
required degree of freedom and should be retained.
47. Mr. LAVINA (Philippines) proposed that the words “Unless otherwise agreed by the
parties” should be deleted; the parties should rely upon the arbitral tribunal to appoint
experts if it were necessary.
P 730
P 731
48. Mr. JOKO-SMART (Sierra Leone) pointed out that the confidence which parties had in
the arbitral tribunal did not necessarily extend to the experts appointed by that tribunal.
The existing text of article 26 should be retained.

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 49. Mr. ABOUL-ENEIN (Observer, Cairo Regional Centre for Commercial Arbitration) and Mr.
KADI (Algeria) expressed a preference for the original text of article 26.
50. Mr. LEBEDEV (Union of Soviet Socialist Republics) agreed to withdraw his amendment,
but asked for the support it had received to be reflected in the report.
51. Mr. MATHANJUKI (Kenya) noted that the text of article 26(1)(b) stated that a party might
be required to provide information for the expert. It should be made clear that either or
both parties might be required to provide such information.
52. The CHAIRMAN said that “a party” should be interpreted to mean “each party.”
53. Mr. SEKHON (India), speaking on article 26(2), proposed that the word “interrogate”
should be replaced by “examine,” to read “… the parties have the opportunity to examine
[the expert].”
54. Mr. ENAYAT (Observer for the Islamic Republic of Iran) said that article 26(2), which
stated that “the parties have the opportunity to interrogate [the expert]” should make
clear that such examination could not be done directly by the parties, but only through the
arbitral tribunal.
55. The CHAIRMAN said that, if there were no objection, he would take it that the
Commission agreed to retain article 26 in its present form.
56. It was so agreed.
[20 June 1985, 3:00 p.m., A/CN.9/SR.332]
Article 26 [as revised by the Drafting Group]
80. Article 26 was adopted without change.
COMMISSION REPORT
A/40/17 (21 AUGUST 1985)
Article 26. Expert appointed by arbitral tribunal
217. The text of article 26 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
218. A proposal was made to amend the opening words of paragraph (1) to read: “Unless
otherwise agreed by the parties before an arbitrator is appointed …” Under one view the
proposal was desirable since it might be of great importance to a person when asked to
serve as an arbitrator whether the arbitral tribunal would be empowered to order an
expertise. The rules under which the arbitrators would be expected to function should be
clear to them from the beginning.
P 731
P 732
219. However, under the prevailing view the parties should always have the right to decide
that the arbitral tribunal was not free to appoint experts. Even though the parties could be
expected to have confidence in the arbitrators they had named to settle their dispute,
they might not have confidence in the expert or experts that the arbitral tribunal proposed
to appoint. Moreover, the appointment of experts might increase the costs of the
arbitration beyond the amount the parties were willing to spend. If the joint refusal of the
parties to permit the arbitral tribunal to appoint an expert was of such importance to the
arbitrators, they were free to resign. If such resignation was a likely result, it could be
assumed that the parties would carefully consider their decision and the risk that the
money already spent on the arbitration would be wasted. Since article 26 represented a
compromise between the common law system of adjudication in which appointment of
experts by the court or tribunal was not usual and the civil law system in which such
appointments were common, the balance of the compromise should not be disturbed.
220. A proposal to delete the words “Unless otherwise agreed by the parties,” was not
retained.
221. The Commission adopted article 26.
P 732

References
1) See First Draft, A/CN.9/WG.II/WP.37, Art. 22, n. 38, p. 724 infra.
2) See Second Working Group Report, A/CN.9/232, para. 117, p. 725 infra.
3) See First Working Group Report, A/CN.9/216, para. 63, pp. 722–23 infra; Second Working
Group Report, A/CN.9/232, para. 115, p. 725 infra.
4) Seventh Secretariat Note, A/CN.9/264, Art. 26, para. 2, p. 729 infra.
5) See Fourth Working Group Report, A/CN.9/245, para. 84, pp. 726–27 infra; Fourth Draft,
A/CN.9/WG.II/WP.48, Art. 26(1), p. 727 infra; Summary Record, A/CN.9/SR.325, para. 39, p.
730 infra; Commission Report, A/40/17, para. 218, p. 731 infra.

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 6) Fifth Working Group Report, A/CN.9/246, para. 86, p. 727 infra; Commission Report,
A/40/17, para. 219, p. 732 infra.
7) See generally Seventh Secretariat Note, A/CN.9/264, Art. 26, para. 2, p. 729 infra;
Commission Report, A/40/17, para. 219, p. 732 infra.
8) A/CN.9/WG.II/WP.37, Art. 22(2)(b), p. 724 infra.
9) Fourth Working Group Report, A/CN.9/245, para. 85, p. 727 infra.
10) A/CN.9/WG.II/WP.48, Art. 26(2), p. 727 infra.
11) Fifth Working Group Report, A/CN.9/246, para. 88, p. 728 infra.
12) First Draft, A/CN.9/WG.II/WP.37, Art. 22(1), p. 724 infra.
13) Second Working Group Report, A/CN.9/232, para. 116, p. 725 infra. For example, some
cases may require urgent decision or may not warrant the extra expense of preparing a
written report.
14) A/CN.9/WG.II/WP.48, Art. 26(3), p. 727 infra.
15) Fifth Working Group Report, A/CN.9/246, para. 89, p. 728 infra.
16) A/CN.9/216, para. 63, pp. 722–23 infra. See also P. Sanders, Commentary on UNCITRAL
Arbitration Rules, 2 Yearbook Commercial Arbitration 172, 204 (1977) (hearing of party–
appointed experts under the Rules). The reference to the UNCITRAL Rules appears to
have been by way of example, and presumably was not intended to suggest that
parties lacked the power to present expert testimony in cases not governed by those
Rules.
*) [Editors' Note: See also paragraph 58 of this document, which considers the general
question of the extent to which the Model Law should include “supplementary rules on
arbitral procedure.” It appears in the section on Article 19, p. 574 supra.]
32) [Editors' Note: The full text of draft Article 19 and of footnote 32 appears in the section on
Article 19, pp. 575–76 supra.]
33) Consideration of this sub–paragraph may be combined with the discussion on the
articles referred to therein. When discussing articles 20 to 24, the Working Group may
wish to consider to what extent these provisions should be mandatory [ … ].
38) This draft article is modelled on article 27 of the UNCITRAL Arbitration Rules. If the
Working Group were to adopt paragraph (2), it may wish to consider including
suppletive rules also on evidence and hearings, modelled on articles 24 and 25(1) to (5)
of the UNCITRAL Arbitration Rules.
39) As to the question whether the parties may preclude the arbitral tribunal from calling
an expert, see draft article 19(2).
15) [Editors' Note: Footnote 15 appears in the section on Article 19, p. 577 supra.]
16) Mention of this proviso may be deemed unnecessary in view of the fact that this article
is not included in the reference to mandatory provisions listed in article XV(1). [Editors'
Note: There is apparently an unintended inconsistency here, since draft Article XVII(1) is
mentioned in the reference to mandatory provisions listed in article XV(1). The subsequent
drafts and reports on this provision do not clarify the matter. See the section on Article
19, pp. 577–80 supra.]
16) Mention of this proviso may be deemed unnecessary in view of the fact that this article
is not included in the reference to mandatory provisions listed in article XV(1). [Editors'
Note: There is apparently an unintended inconsistency here, since draft Article XVII(1) is
mentioned in the reference to mandatory provisions listed in article XV(1). The subsequent
drafts and reports on this provision do not clarify the matter. See the section on Article
19, pp. 577–80 supra.]
76) [Fifth Working Group Report,] A/CN.9/246, para. 87.

37
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
Document information
UNCITRAL Model Law, Chapter V, Article 27 [Court
Publication assistance in taking evidence]
A Guide to the UNCITRAL The arbitral tribunal or a party with the approval of the arbitral tribunal may request from
Model Law on International a competent court of this State assistance in taking evidence. The court may execute the
Commercial Arbitration: request within its competence and according to its rules on taking evidence.
Legislative History and
Commentary
Commentary
As with a number of other articles, the drafting of Article 27 presented the Working Group
Organization and the Commission with the delicate problem of regulating the interaction of arbitration
and court procedures. While there was general agreement in the Working Group that
United Nations Commission “assistance by courts in enforcing procedural decisions of the arbitral tribunal could
on International Trade Law contribute to the proper and efficient functioning of international commercial arbitration,”
the provision raised a number of concerns. (1) In particular, it was urged that the provision
not be allowed to interfere with internal procedural law, that the recourse to courts might
Promulgation be abused for purposes of delay, and that it would be difficult, if not impossible, to secure
assistance from courts in other countries. (2) These three concerns — integration with
21 June 1985 existing court procedures, the possibility of abuse, and international court assistance —
were discussed throughout the legislative consideration of Article 27, and their resolution
determined to a large extent the shape of the final text.
Legislation number 1. Integration with existing court procedures. With respect to the problem of
United Nations Document integrating requests for assistance with court procedures, the Secretariat proposed
A/40/17, Annex I from the outset that the Working Group seek to minimize the impact of the Model Law
provisions on national rules of procedure. (3) Nevertheless, the Secretariat suggested
that some “basic provisions” might be desirable with respect to certain procedural
Bibliographic reference matters peculiar to requests for assistance to arbitrations. (4) Three such “basic
provisions” were suggested: rules on (1) the contents of the request; (2) whether the
'UNCITRAL Model Law, court should both provide the element of compulsion and take the evidence, or
Chapter V, Article 27 [Court simply order that evidence be given to the arbitral tribunal; and (3) the conditions
assistance in taking under which the court might refuse the request. (5) The Secretariat offered draft
evidence]', in Howard M. P 734 language covering several pages to deal with these points, including alternative
Holtzmann and Joseph P 735 provisions providing for, on the one hand, the court and, on the other hand, the
Neuhaus , A Guide to the arbitral tribunal, to take the evidence. (6)
UNCITRAL Model Law on During the extensive debate on Article 27 in the Working Group and the Commission,
International Commercial these provisions were made shorter and shorter, generally because they were
Arbitration: Legislative considered too detailed to cover all situations envisioned. In the end, all that was
History and Commentary, left was the very limited provision that was finally adopted. Thus, by the time of its
(© Kluwer Law International; final draft, the Working Group had boiled the provision down to somewhat simplified
Kluwer Law International rules on the contents of the request and a provision that gave the court the power to
1989) pp. 734 - 762 decide between two ways of taking the evidence: “The court may, within its
competence and according to its rules on taking evidence, execute the request either
by taking the evidence itself or by ordering that the evidence be provided directly to
the arbitral tribunal.” (7) The draft no longer stipulated the conditions under which a
request for assistance might be refused. (8)
The Commission simplified the draft Article still further. It deleted the provisions on
the contents of the request on the grounds that they were still excessively detailed
for a model law. (9) It also deleted the indication that the court could either take the
evidence itself or order that the evidence be provided directly to the arbitral
tribunal. (10) The rationale for this last change was that “there was no need to
indicate the manner in which the court should execute the request” and that “in some
countries it would be difficult to imagine the court ordering that the evidence be
provided directly to the arbitral tribunal.” (11) Thus, the deletion of this language
presumably should not be taken as an indication that a court must take the
requested evidence itself, unless that is the practice required by other applicable
procedural law. (12)
2. Possibility of abuse. A second matter that concerned the Working Group was the
need to protect the court's processes from abuse. Initially, two safeguards were
P 735 proposed. First, the Secretariat suggested that only the arbitral tribunal should be
P 736 permitted to request court assistance, in order to avoid dilatory tactics by parties
who might seek such assistance only for the purposes of delay. (13) Second, the
Secretariat also proposed that the court be empowered to refuse to give assistance
“(a) if the interests of the State would thereby be prejudiced, (b) if the reason for
which evidence is requested does not justify the assistance, or (c) if the arbitral
tribunal or the party has other reasonable means of obtaining the evidence.” (14)
A number of delegates objected that any involvement by the arbitral tribunal in
gathering evidence would imply an investigative function for the arbitrators that
might be inconsistent with the adversary system. (15) The Working Group then
adopted what it viewed as “a compromise” between allowing requests to be made
only by a party or only by the arbitral tribunal. (16) As finally adopted, the provision

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 permits the arbitral tribunal or the parties to make the request, provided that in the
latter case the parties obtain the approval of the arbitral tribunal.
The Working Group declined to adopt the second proposed restriction on court
assistance — specifying grounds on which the court might refuse the request —
although its decision is not explained in the Working Group Reports. As noted, the
proposal was initially advanced in a Secretariat Note. (17) The Working Group Report
of the next session does not discuss the proposal. (18) The next draft — the Third —
omitted the conditions. (19) At the next session, the proposal was renewed, with some
delegates urging that abuse could only be prevented by specifying rules on the
grounds for refusing assistance, either “by [referring] to domestic rules on court
assistance or by including appropriate rules in the model law.” (20) Other delegates
thought such a provision was unnecessary, since the arbitral tribunal could prevent
abuse. (21) The Fourth Draft essentially adopted the suggestion that domestic rules on
taking of evidence be incorporated into the Model Law; it provided the language
already quoted above: “[t]he court may [rather than shall], within its competence and
according to its rules on taking evidence … execute the request.” (22) This proposal
was adopted, with some modifications but without extensive discussion, by both the
Working Group and the Commission. (23)
P 736
P 737 It should be noted that while Article 27 thus incorporates domestic rules on court
assistance, it appears to have been the intent of the Working Group that the Article
itself establishes a right to such assistance to an arbitration. The Working Group
Report states:
There was wide support for the view that the provision had effect beyond
the realm of arbitral procedure and that the right to request court
assistance under article 27 carried with it the expectation that there were
circumstances under which the national law gave the possibility of
obtaining assistance by courts. While article 27, thus, was designed to
change, for example, a national law which envisaged court assistance only
to other courts but not to arbitral tribunals, it did not attempt to interfere
with national rules on civil procedure concerning the taking of evidence
and the organization of the judicial system including court competence.
(24)
3. International court assistance. The Working Group also considered including
provisions for the taking of evidence abroad and for assistance to be given by a court
of the Model Law State to a foreign arbitration. The Working Group felt that it might
be useful to address these topics in the Model Law, (25) and the Secretariat drafted
language on them. (26)
The Working Group recognized, however, that substantial problems were involved in any
effort to deal with the matter in the context of a Model Law. The report of its next session
on the Law points out that “international court assistance in taking evidence was an issue
which fell within the domain of international cooperation between States and that such
international cooperation could only be achieved in a satisfactory way by international
instruments such as conventions or bilateral treaties.” (27) The report went on to say that
the prevailing view in the Working Group was that “[a]n acceptable system of international
court assistance could not be established unilaterally through a model law since the
principle of reciprocity and bilaterally or multilaterally accepted procedural rules were
essential conditions for the functioning of such a system.” (28)
Nevertheless, in the hope of finding a solution, the Working Group decided to reconsider
the matter at its next session, and requested the Secretariat to attempt to redraft suitable
provisions. (29) Accordingly, the Secretariat proposed two provisions. First, it suggested
allowing the court of the Model Law State to transmit the request for assistance to a court
P 737 of a foreign State if the request so stipulates. Second, the Secretariat proposed that
P 738 consideration be given to providing that if a request for assistance to an arbitration is
transmitted from a foreign court, the court of the Model Law State would treat it as having
been made by the foreign court itself. (30) These provisions would thus have enabled the
arbitral tribunal to make use of whatever treaties, local law, or local practices might exist
governing international requests for assistance by courts.
These provisions were deleted, however, as a compromise between those in favor of
international court assistance and those opposed to any provision on court assistance —
domestic or international — on the ground that such a provision was “contrary to the
private nature of arbitration” and “interfered with the internal procedural law.” (31) Thus,
Article 27 applies to court assistance in obtaining evidence for arbitrations within the same
State as the court receiving the request, but does not reach abroad. Questions of
international assistance in the taking of evidence in arbitral proceedings are not governed
by the Model Law, so that any other applicable provisions of law on the question will
presumably continue to apply. (32)
Prior to the Commission's consideration of Article 27, it was noted that The Hague
Conference on Private International Law was examining whether to extend the Convention
on the Taking of Evidence Abroad in Civil or Commercial Matters (33) to cover arbitral
proceedings. (34) The Observer from The Hague Conference opened the Commission's
debate with an informal report on the Conference's initial conclusions. He stated that a

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 special commission had met and “had confirmed the technical feasibility of the scheme,
but had expressed doubts about its usefulness.” (35)

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
IV. Arbitral procedure
[ .… ]
3. Evidence
P 738
P 739 75. Subject to any rules agreed upon by the parties, the arbitral tribunal should be free,
under the model law, to adopt and follow its own rules on evidence, including the right to
determine the admissibility, relevance and weight of any evidence offered. Since the
arbitral tribunal lacks the power of enforcing its procedural decisions such as calling a
witness or requiring production of a document by a party, the model law may envisage
some assistance by courts in that regard. Here, one would have to clearly define the
possible court measures and their specific conditions. [ … ]
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
IV. Arbitral procedure
[ .… ]
3. Evidence (report, [First Secretariat Note, supra] para. 75)
[ .… ]
Question 4–6: What kind of court assistance may be envisaged in enforcing procedural
decisions of the arbitral tribunal, e.g. calling of a witness, taking of evidence?
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
3. Evidence
[ .… ]
Question 4–6: What kind of court assistance may be envisaged in enforcing procedural
decisions of the arbitral tribunal, e.g. calling of a witness, taking of evidence?
61. There was general agreement that assistance by courts in enforcing procedural
decisions of the arbitral tribunal could contribute to the proper and efficient functioning
of international commercial arbitration. However, divergent views were expressed as to
whether this issue of court assistance should be dealt with in the model law. Under one
view, it should be possible to draft an appropriate provision which would envisage such
P 739 court assistance, either in a general form or in a detailed manner. Under another view,
P 740 such an approach was not feasible in view of the following difficulties and concerns:
(a) The procedures of such court assistance formed an integral part of the procedural law
of the legal system concerned, and the relevant procedural laws varied considerably
from one legal system to another;
(b) Where such court assistance was required in a country other than the one where the
arbitration took place, the model law might not be able to secure such assistance. It
was noted in this context that such assistance by foreign courts was normally
governed by bilateral or multilateral treaties which, however, primarily covered
matters which were the subject of court litigation;
(c) Assistance by courts would require a certain supervision by the courts over the
arbitral tribunal as regards the justification for the tribunal's decision, since
automatic court assistance would open the possibility of abuse of court process.
62. The Working Group concluded that the issue required further study, and requested the
Secretariat to prepare a note taking into account the views expressed and suggestions
made during the deliberations. (*)
THIRD SECRETARIAT NOTE POSSIBLE FURTHER FEATURES OF A MODEL LAW
A/CN.9/WG.II/WP.41 (12 JANUARY 1983)
E. Court assistance in taking evidence (9)
27. Because of the lack of power of an arbitral tribunal to compel a person to testify or to
produce a document or because the tribunal may not be able to enforce its decision to
inspect goods or premises, the arbitral proceedings may be blocked. For this reason, some
national laws expressly provide that the arbitral tribunal may request from the court
assistance in taking evidence. There was general agreement in the Working Group that such

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 court assistance could contribute to the proper and efficient functioning of international
commercial arbitration. Under one view it should be possible to draft appropriate
provisions to this effect, while according to another view such provisions were not feasible
in view of certain difficulties and concerns. (10)
28. One difficulty indicated in the Working Group was that the procedures of such court
assistance formed an integral part of the procedural law of the legal system concerned,
P 740 and that the relevant procedural laws varied considerably from one legal system to
P 741 another. This difficulty, however, may be lessened if the model law minimized its
impact on the existing national rules and procedure. The model law could contain basic
provisions only on the contents of the request for court assistance, on the method of taking
evidence and on the conditions for refusing the requested assistance. The model law could
also provide that court assistance in taking evidence would be given in accordance with
the domestic rules which were applicable for similar assistance among the courts.
29. Another difficulty arises where the court assistance is required in a country other than
the one where the arbitration takes place, because the model law, by its nature, may not
be able to secure court assistance abroad. The arbitral tribunal could only avail itself of
existing procedures for obtaining evidence abroad, if such existed.
30. However, the model law could provide for court assistance to foreign arbitral tribunals.
For example, the model law may require a court to treat a request for assistance from a
foreign arbitral tribunal in the same way as the court treats a similar request from foreign
courts. Thus, a State which is bound by bilateral or multilateral treaties to execute such
requests from courts in other contracting States would also become obliged to execute
such requests from arbitral tribunals in those States. If this approach were followed, the
establishment of a set of detailed procedural rules for court assistance to foreign arbitral
tribunals may become unnecessary. The existing rules for assistance to foreign courts could
be applied to court assistance to foreign arbitral tribunals.
31. A more ambitious approach to court assistance might be to provide for an obligation of
States which adopted the model law to execute requests from foreign arbitral tribunals
regardless of the extent of the obligation of the States to give such assistance to foreign
courts. Such an approach would contribute considerably to the facilitation of taking
evidence in international commercial arbitration. However, a State may be reluctant to
accept the obligation to provide assistance to all foreign arbitral tribunals particularly if
the State is not prepared to provide assistance to courts of all States. The State may also
be reluctant to accept such an obligation if a request comes from an arbitral tribunal of a
State whose courts are not prepared to give assistance to arbitral tribunals of the first
State. This reluctance may be overcome if the obligation were subject to reciprocity,
although it should be recognized that the principle of reciprocity has many difficulties in
application.
32. If the model law were to provide for court assistance, a further question arises whether
court assistance should be provided only upon request by the arbitral tribunal. This
restriction may be useful to minimize the possibility of abuse of the court process. In most
cases, arbitral tribunals would not have an interest in deliberately abusing court
assistance. The parties who are not permitted to request court assistance directly could
seek for such assistance through the arbitral tribunal.
33. A further restriction may be imposed by providing in the model law that the court may
P 741 refuse to give assistance (a) if the interests of the State would thereby be prejudiced, (b) if
P 742 the reason for which evidence is requested does not justify the assistance, or (c) if the
arbitral tribunal or the party has other reasonable means of obtaining the evidence.
34. If, however, the Working Group decides that the parties should also be permitted to
submit a request for assistance directly to the court, some supervision by the court may
become necessary to prevent abuses. The court could effectively prevent abuses if it
examined the usefulness and relevance of evidence in regard to the dispute.
35. With regard to the method in which court assistance is provided, there are two
approaches in practice. In some legal systems the assisting court actually hears witnesses
or inspects goods or premises or procures documents. In other legal systems, the court
merely provides the element of compulsion which is absent in the arbitral tribunal. Under
the latter systems the court orders a witness to appear before the arbitral tribunal or
orders a person to submit evidence to the arbitral tribunal. Another approach may also be
envisaged where the arbitral tribunal has the choice between the two methods.
36. In this connexion, it may also be noted that an arbitral tribunal may occasionally wish
to obtain assistance of a court to avoid costs or inconvenience of travel. The Working Group
may, therefore, wish to consider whether the model law should also provide for court
assistance even for such a situation.
37. The following draft provision may form a basis for discussion:
Article E1
Alternative A
(1) Where the arbitration takes place in this State [, or under the law of this State] the
arbitral tribunal [or a party] may request the court (11) to order [a] [the other] party or

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 a third person to give evidence to the arbitral tribunal [if the arbitral tribunal or the
party is not able to obtain the evidence].
(2) The court shall execute such a request and apply the appropriate measures of
compulsion in accordance with the rules for taking evidence before that court.
(3) The court may refuse to order a party or a third person to give evidence:
(a) if the interests of the State would thereby be prejudiced;
(b) if the reason for which the assistance of the court is requested does not justify
the assistance; or
[(c) if the arbitral tribunal or the party has other reasonable means of obtaining the
evidence.]
P 742
P 743
Alternative B
(1) Where the arbitration takes place in this State [, or under the law of this State,] the
arbitral tribunal [or a party] may request the court to take evidence [if the arbitral
tribunal or the party is not able to obtain the evidence].
(2) The court shall execute such a request in accordance with the rules for the execution
of similar requests made by other courts of this State.
[(3) [If it is specified in the request,] the court shall inform the arbitral tribunal and the
parties of the place and the time of the proceedings of taking evidence in order that
the arbitrators and the parties may be present.]
[(4) The court shall comply with a special request by the arbitral tribunal that in taking
evidence a special method or procedure be followed, unless the court considers such
a method to be improper or that it would cause practical difficulties.]
(5) The court may refuse to provide evidence:
(a) if the interests of the State would thereby be prejudiced;
(b) if the reason for which the assistance of the court is requested does not justify
the assistance; or
[(c) if the arbitral tribunal or the party has other reasonable means of obtaining the
evidence.]
Article E2
(1) A request for assistance by the arbitral tribunal [or by a party] to the court shall
include:
(a) the names and addresses of the arbitrators and the parties;
(b) the reason for which the assistance is required;
(c) a reference to the arbitration agreement under which the arbitration is
conducted;
(d) the general nature of the claim, the relief sought and an indication of the
amount involved, if any;
(e) the points at issue in regard to which the assistance is required, giving all
necessary information thereto; and
(f) where appropriate,
(i) the names and address of [the party or] the third person to be examined;
(ii) the questions to be put to [the party or] the third person to be examined
or a statement of the subject–matter about which he is to be examined.
(iii) the description of documents, goods or other exhibits to be inspected.
(2) The request shall be in the language of the court.
P 743
P 744
Article E3
(1) A foreign arbitral tribunal [or a party to a foreign arbitration] may request the court of
this State for assistance in taking evidence.
(2) The court shall execute such a request in accordance with the rules for the execution
of similar requests from foreign courts. However, the court may refuse to give the
assistance if:
[(a) the courts of the State in which[, or under the law of which,] the arbitration
takes place do not have a right to request similar court assistance in this State;
or]
(b) the courts of that State are not required to give similar assistance to
arbitrations of this State.
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
I. Consideration of [Third Secretariat Note]
[ .… ]

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 E. Court assistance in taking evidence
31. The Working Group considered the question whether the model law should deal with
issues relating to the right of an arbitral tribunal or the parties to request a court for
assistance in taking evidence (on the basis of a note by the Secretariat [Third Secretariat
Note,], WP.41, paras. 27–37 and draft articles E1 to E3).
32. Divergent views were expressed as to the question whether the model law should deal
with court assistance in taking evidence. The prevailing view was that a possibility of
requesting such assistance would facilitate the functioning of international commercial
arbitration and that, therefore, rules on these issues were desirable. Under another view,
the possibility of a court being active in taking evidence to be used in arbitral proceedings
was contrary to the private nature of arbitration and might lead to undesirable
intervention of courts in arbitral proceedings.
33. The Working Group discussed the two alternative approaches contained in draft article
E1. The first alternative was that the requested court merely contributed the element of
compulsion and thus enabled the arbitral tribunal to take evidence, and the second
alternative was that the requested court took the evidence itself. Some support was
expressed for each alternative. However, the view prevailed that a combination of both
alternatives was desirable. Such a combined approach would allow the court which was
requested to give assistance to decide whether assistance is to be given in such a way that
the court itself takes evidence or whether compulsion is to be provided by the court to
enable the arbitral tribunal to take evidence. Such a combined approach would also have
the advantage of allowing the court to give assistance according to its own rules of
procedure.
P 744
P 745 34. Divergent views were expressed as to the question whether a party should have a
right to directly request a court for assistance. The prevailing view was that a party should
request for court assistance only through the arbitral tribunal or with its approval, in order
to prevent abuse of court assistance. Under another view, account should be taken of
arbitration practice according to which arbitral tribunals are not involved in gathering
evidence. According to this view, the mere fact that court assistance was needed in
procuring evidence did not warrant involving the arbitral tribunal in the process of
gathering evidence.
35. In respect of article E2, which contained provisions on the contents of a request for
court assistance, there was general agreement that this provision was too detailed and
should not be included in the model law.
36. In respect of article E3, which contained provisions on assistance by the courts of the
State which adopted the model law to foreign arbitral tribunals, the prevailing view was
that, if court assistance were to be regulated at all in the model law, a provision on such
international court assistance would be useful. The Working Group supported the view that
requests by foreign arbitral tribunals should be treated like similar requests by foreign
courts (as expressed in paragraph (2) of article E3). It was suggested that this rule would be
more easily acceptable if a request for assistance from a foreign court would have to be
made through a court in the State in which the arbitration took place.
37. It was further suggested that the model law should not contain detailed procedural
rules on international court assistance to arbitral tribunals and that it might be desirable
to elaborate such rules either in a separate convention or by extending an existing
convention. The Working Group requested the Secretariat to take note of that suggestion as
a possible future item of work to be discussed by the Commission.
THIRD DRAFT A/CN.9/WG.II/WA44 (5 JULY 1983)
E. Court assistance in taking evidence (13)
Article E [Art. 27 in the final text]
(1) The arbitral tribunal or a party [with the approval of the arbitral tribunal] may
request from [a court] [the Court specified in article V [Art. 6 in the final text]]
assistance in taking evidence. The court shall execute such a request by either taking
the evidence itself or by ordering a party or a third person to give evidence to the
arbitral tribunal.
(2) Where an arbitration takes place outside this State, the arbitral tribunal or a party
[with the approval of the arbitral tribunal] may submit such a request through a court
of the State where the arbitration takes place. Such a request shall be treated by the
court referred to in paragraph (1) as a request by that foreign court.
P 745
P 746
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
I. Consideration of [Third Draft] (A/CN.9/WG.II/WP.44)
[ .… ]
E. Court assistance in taking evidence
37. The text of article E [Art. 27 in the final text] as considered by the Working Group was as
follows:

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 [same as Third Draft, supra].
Paragraph (1)
38. There were divergent views in the Working Group on the question whether it was useful
to have a provision on court assistance in the State where the arbitration took place.
Under one view opposing the inclusion of a provision on court assistance in the model law,
such a provision would encourage dilatory tactics by making requests for assistance to
courts and, also, it would be contrary to the private nature of arbitration to involve courts
in taking evidence. However, the prevailing view was that such a provision would be useful
because it would enable the parties to obtain relevant evidence when a person would not
comply with a request to give such evidence. A suggestion was made to indicate in that
paragraph that court assistance included the possibility of a request by a court to a foreign
competent body to gather evidence in that foreign State.
39. The proponents of the prevailing view suggested that it was necessary to prevent the
possibility of abuse of court assistance. Under one view this could be achieved by
adopting the words in the first square brackets according to which the arbitral tribunal had
to approve the request for court assistance because an arbitral tribunal would not have an
interest in deliberately abusing court assistance. Under another view abuse could only be
prevented by more detailed rules specifying the grounds on which a court could refuse to
give assistance; such detailed rules could either be made applicable by reference to
domestic rules on court assistance or by including appropriate rules in the model law.
40. Some representatives suggested that only parties may request court assistance and the
arbitral tribunal should not have a right to refuse to approve a request for court assistance
nor should it be engaged in gathering evidence to be used in arbitral proceedings because
this would be contrary to the adversary principle according to which the parties have to
produce evidence in support of their case.
41. The Working Group requested the Secretariat to prepare alternative wordings in the
light of the discussion.
Paragraph (2)
42. Divergent views were expressed in the Working Group on the question whether the
model law should have a provision on international court assistance in taking evidence.
P 746 Under one view it was desirable to include in the model law a unilateral obligation of
P 747 domestic courts to give assistance to foreign arbitral tribunals because this would
facilitate the functioning of international commercial arbitration. However, the view
prevailed that it was not feasible for a model law on arbitration to regulate such a
complex matter.
43. In support of the prevailing view it was noted that international court assistance in
taking evidence was an issue which fell within the domain of international cooperation
between States and that such international cooperation could only be achieved in a
satisfactory way by international instruments such as conventions or bilateral treaties. An
acceptable system of international court assistance could not be established unilaterally
through a model law since the principle of reciprocity and bilaterally or multilaterally
accepted procedural rules were essential conditions for the functioning of such a system.
44. It was further noted that, even if a unilateral system of international court assistance
could be established, it would be necessary to include in the model law more detailed
procedural rules and that this would not be in balance with other parts of the model law
where procedure was not provided in such detail. It was also observed that conditions for
giving court assistance to an arbitral tribunal in a foreign State might have to touch upon
issues which were in the domain of the respective foreign procedural law and that such
interference with foreign procedural rules was to be avoided.
45. However, the view favouring the inclusion of a provision on international court
assistance in the model law suggested that it was feasible for the model law to have a
provision in the context of domestic law on the status of requests made from abroad
without interfering with procedural rules of foreign States.
46. The Working Group decided to reconsider the matter at its next session and requested
the Secretariat to redraft this provision in the light of the discussion.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (28 NOVEMBER 1983)
Article 27. Court assistance in taking evidence
(1) The arbitral tribunal or a party with the approval of the arbitral tribunal may request
from a competent court of this State assistance in taking evidence. The request shall
[be in the language of the court, include a certified copy of the arbitration agreement
and] specify:
(a) the names and addresses of the parties and the arbitrators;
(b) the general nature of the claim and the relief sought;
(c) the [necessary information on the] evidence to be obtained, in particular
(i) the name and address of any person to be heard as witness or expert
witness and a statement of the subject–matter of the testimony required;

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 (ii) the description of any document or other property to be inspected.
P 747
P 748
(2) The court may, within its competence and according to its rules on taking evidence[,
including provisions on admissibility and on enforcement procedures], execute the
request either by taking the evidence itself or by ordering that the evidence be
provided directly to the arbitral tribunal. If so [suggested] [demanded] in the
request, the court may transmit the request to a competent court of a foreign State
[where assistance in obtaining evidence is required].
[(3) Where a foreign court transmits to a competent court of this State a request for
assistance in taking evidence relating to arbitral proceedings in that foreign State,
the court of this State shall treat such request as having been made by that foreign
court itself].
FIFTH SECRETARIAT NOTE TERRITORIAL SCOPE OF APPLICATION AND RELATED ISSUES
A/CN.9/WG.II/WP.49 (21 DECEMBER 1983)
B. Special considerations with regard to provisions on court assistance and supervision
14. It may be useful to consider which provisions of the model law dealing with court
assistance and supervision should have the same scope of application as the model law in
general and which provisions should have a special delimitation of the scope of
application. On the basis of such consideration the Working Group may wish to decide
whether in a particular case an express provision on the scope of application is needed.
[ .… ]
2. Provisions on court assistance and supervision which should have a special
delimitation of scope of application
18. Some provisions in the model law dealing with court assistance and supervision are of
such a nature that they may require a different scope of application than the model law in
general. These provisions are discussed below.
[ .… ]
(c) Assistance in taking evidence (art. 27)
23. Article 27 deals with the assistance of the courts of the model law to arbitrations, in
paragraphs (1) and (2) to arbitrations governed by the procedural law of that State and in
paragraph (3) to arbitrations not governed by that procedural law. In this respect the scope
of application of this article is wider than the general scope of application of the model
law.
24. Assistance to arbitrations not governed by the procedural law of the State where the
assistance is to be given may be subject to stricter conditions than the assistance to
arbitrations governed by that law. The reason is that a foreign procedural law may be
different from the law of the State where assistance is to be given and that the courts of
that State do not have supervisory powers over such arbitrations. It is, therefore, suggested
P 748 that, for the purpose of assistance in taking evidence, the distinction between arbitrations
P 749 governed by the procedural law of the State where assistance is to be given and
arbitrations not governed by that procedural law should follow the general scope of
application of the model law. [Editors' Note: See generally the subsection on Article 1,
paragraph 2, pp. 97–133 supra, which addresses the territorial scope of application of the
Model Law.]
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[.… ]
Article 27
90. The text of article 27 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
91. The Working Group adopted that article in the following modified form:
[same as Fifth Draft, infra].
92. The Working Group, in considering whether a provision along the lines of article 27
should be retained in the model law, discussed the intended purpose and possible effect
of that article.
93. There was some support for the view that that article, since it formed part of a law on
arbitration, could not and should not attempt to alter the existing law of a State
concerning court assistance in taking evidence. For example, where that law contained
rules for court assistance to other courts but not to arbitral tribunals, article 27 would not
open the door to court assistance in aid of arbitration. Accordingly, the effect of the
provision was limited to recognizing the right to request court assistance as a part of
accepted arbitral procedure.
94. There was wide support for the view that the provision had effect beyond the realm of

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 arbitral procedure and that the right to request court assistance under article 27 carried
with it the expectation that there were circumstances under which the national law gave
the possibility of obtaining assistance by courts. While article 27, thus, was designed to
change, for example, a national law which envisaged court assistance only to other courts
but not to arbitral tribunals, it did not attempt to interfere with national rules on civil
procedure concerning the taking of evidence and the organization of the judicial system
including court competence.
95. In the light of that understanding, divergent views were expressed as to whether article
27 should be retained. Under one view, the article should be deleted since the envisaged
involvement of courts was contrary to the private nature of arbitration and was regulated
in a way which interfered with the internal procedural law. Under another view, the article
should be retained in its entirety, though with certain modifications. It was pointed out in
P 749 support of that view that the provision was useful in that it would provide the possibility of
P 750 assistance in obtaining evidence which the arbitral tribunal itself could not obtain
since it lacked means of compulsion. In the context of international commercial
arbitration such assistance should be provided not only in arbitrations which were held in
the State where the court was located but also in arbitrations held abroad (as envisaged in
the second sentence of paragraph (2) and in paragraph (3)). Under yet another view, article
27 should be retained only in so far as it dealt with court assistance in arbitrations within
the same State. It was stated in support of that view that, while court assistance as such
was useful, its extension to foreign arbitral tribunals could not be appropriately dealt with
by a model law.
96. That latter view was adopted by the Working Group as a compromise. Accordingly, it
was decided to retain, with some modifications, paragraph (1) and the first sentence of
paragraph (2).
97. The Working Group was agreed that it was desirable to express that limited scope of
application of the article by adding, before the first word of paragraph (1), the words “In
arbitral proceedings held in this State or under this Law.” It was understood that that
decision was subject to later review in the context of the general deliberation on the
territorial scope of application of the model law. (8)
98. As regards, in paragraph (1), the words “or a party with the approval of the arbitral
tribunal,” it was agreed that that wording reflected a compromise between the two
conflicting views that court assistance would be rendered only upon request by the parties
or exclusively upon request by the arbitral tribunal.
99. As regards, in paragraph (1), the words “be in the language of the court,” the Working
Group decided to delete them because such a provision was either redundant or in
possible conflict with national regulations on the use of languages in courts.
100. As regards, in paragraph (1), the words “include a certified copy of the arbitration
agreement and,” the Working Group decided to delete them since that requirement was
unnecessarily burdensome in some circumstances, and in other circumstances, for which it
seemed to be intended, not sufficient because it did not establish proof of the authority of
the arbitrators.
101. The Working Group was agreed that, in paragraph (1)(c), the words “necessary
information on the” and, in paragraph (2), the words “including provisions on admissibility
and on enforcement procedures” were redundant and should be deleted.
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 27. Court assistance in taking evidence
P 750
P 751 (1) In arbitral proceedings held in this State or under this Law, the arbitral tribunal or
a party with the approval of the arbitral tribunal may request from a competent court
of this State assistance in taking evidence. The request shall specify:
(a) the names and addresses of the parties and the arbitrators;
(b) the general nature of the claim and the relief sought;
(c) the evidence to be obtained, in particular,
(i) the name and address of any person to be heard as witness or expert
witness and a statement of the subject–matter of the testimony required;
(ii) the description of any document to be produced or property to be
inspected.
(2) The court may, within its competence and according to its rules on taking evidence,
execute the request either by taking the evidence itself or by ordering that the
evidence be provided directly to the arbitral tribunal.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 27. Court assistance in taking evidence

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 Comments relating to territorial scope of application of article 27
1. Austria, Japan and the Soviet Union are of the view that the scope of article 27 should be
limited to arbitral proceedings “held in this State” and that, therefore, the words “under
this Law” should be deleted. Austria emphasizes that this limitation would be in
conformity with the approach that the place of arbitration should be the exclusive
determining factor for the applicaton of the model law.
2. Japan expresses its support for the decision of the Working Group that this article should
deal only with court assistance to arbitrations taking place in the State of the court giving
assistance, (31) but stresses that this should not mean denial of assistance in obtaining
evidence pursuant to the rules of international judicial assistance or co–operation.
3. The United States notes that article 27(1) reflects the decision of the Working Group to
limit article 27 to obtaining evidence within the State in which the arbitration takes place
and not to extend it internationally, and that it was the understanding of the Working
P 751 Group that this decision was subject to later review in the context of the general
P 752 deliberation on the territorial scope of application of the model law. (32) It is believed
that it would serve the effectiveness of international commercial arbitration to include in
the model law, as an addition to article 27, provisions which would empower courts in the
State in which the arbitration is held (a) to transmit to a court in a foreign State a request
for assistance in obtaining evidence for use in arbitration (United States, also Norway), and
(b) to respond to any such request transmitted by a foreign court in the same manner as if
the request had been made by the foreign court itself for assistance in obtaining evidence
for the use in a court proceeding (United States).
Article 27, paragraph (1)
4. Austria suggests that the model law should provide that the arbitral tribunal's approval
of the party's request for court assistance should be given in writing. Austria further
suggests that the provisions of paragraph 1(a), (b) and (c) on the contents of a request for
court assistance are not necessary and should be deleted.
5. The Soviet Union considers that it is hardly appropriate to have a rule on court
assistance as regards the taking of evidence not only from a witness, but also from an
expert witness, since the participation in the arbitration proceedings of expert witnesses is
ensured by the party concerned (article 26(2)).
Proposed addition to article 27
6. Sweden suggests that differences among legal systems in procedures for court assistance
in obtaining evidence, and the difficulties arising therefrom, may warrant the inclusion of a
provision for the cases where evidence is possessed by a party; under such provision, the
arbitral tribunal, in addition to the possibilities laid down in article 27, should have the
power to order the party who is in possession of evidence to produce it, and, in the event
of refusal to comply with such order, the arbitral tribunal should be expressly empowered
to interpret the refusal to that party's disadvantage.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 27. Court assistance in taking evidence
1. The Hague Conference welcomes the decision of the Working Group not to include in the
model law a provision on international court assistance in taking evidence. (5) The
delegates in the Working Group recognized, in the view of the Hague Conference with good
reason, that the problem of international court assistance in taking evidence fell within the
domain of international co–operation, and that, therefore, it did not seem possible to deal
P 752 with and organize such co–operation by a model law, which, by its nature, was intended
P 753 to become a national law. In fact, international co– operation could only be based on a
convention which provided clearly defined international obligations. It is pointed out that
the Hague Conference on Private International Law, at its fifteenth session in October 1984,
decided to include in the agenda of one of its future sessions the discussion of the
possibility of using the Convention on the Taking of Evidence Abroad in Civil or Commercial
Matters [847 U.N.T.S. 231] (The Hague, 1970) for arbitral proceedings. The Hague Conference
on Private International Law is aware that a possible extension of the scope of the
Convention of 1970 to arbitral proceedings, for example, by a protocol to the Convention,
depends ultimately on whether the interested international arbitration circles consider it
useful to have such international instrument. With respect to this question, the Hague
Conference on Private International Law intends to consult with international organizations
dealing with arbitration and the member States of those organizations. For this purpose,
the Hague Conference on Private International Law requested a special commission to
conduct an exchange of views on the possibility of using the Convention of 1970 in aid of
arbitration for the taking of evidence abroad. This special commission will meet at the
Hague from 28 May to 1 June 1985 and will, at this stage, include only the Central
Authorities provided for by the Convention of 1970; it would be appropriate to know,
initially, whether a broadening of the scope of the Convention of 1970 to cover arbitral
proceedings is technically feasible. The Hague Conference envisages convening a second

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 session of this special commission which should then include arbitration experts and
which should express its view on the substance of the problem. The Hague Conference
would, of course, appreciate if the States members of the United Nations Commission on
International Trade Law and observers at the eighteenth session of the Commission, when
discussing article 27 of the model law, would express their opinion on the problem.
2. Canada notes, with respect to paragraph (2), that in May 1985 the Hague Conference on
Private International Law will be considering the question of taking evidence abroad in the
case of an arbitral proceeding.
3. AALCC [Asian–African Legal Consultative Committee] recommends modifying in paragraph
(1) the opening phrase of the second sentence “The request shall specify” so as to read “The
request shall be in conformity with the rules accepted before the court and shall specify.”
A/CN.9/263/ADD.3 (31 JULY 1985) (COMMENTS OF EGYPT)
II. Comments on the articles
[ .… ]
P 753 32. Article 27: We hold the view that the scope of this article should be restricted to arbitral
P 754 proceedings undertaken within the State. It seems to us excessive to oblige a State to
grant the benefit of assistance in the event of arbitral proceedings taking place outside its
territory.
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 27. Court assistance in taking evidence
[ .… ]
Purpose of provision
1. Article 27 calls upon the courts to render assistance in taking evidence, in particular by
compelling appearance of a witness, production of a document or access to a property for
inspection. Such assistance, although not frequently sought in practice and at times sought
for dilatory purposes, is considered useful in view of the fact that the arbitral tribunal,
under the model law and most existing laws, does not itself possess powers of compulsion.
(77)
2. Article 27 has effect beyond the realm of arbitral procedure in that it does not merely
cover the admissibility or mechanics of a request for court assistance. It rather attaches to
such a request the expectation that the national law under certain circumstances provides
for assistance by courts. Article 27 is designed to change, for example, a national law which
envisages court assistance only to other courts but not to arbitral tribunals, however,
without interfering with national rules on civil procedure concerning the taking of evidence
and the organization of the judicial system including court competence.
Territorial scope of provision
3. Assistance by courts of the State adopting the model law is envisaged for arbitral
proceedings “held in this State or under this Law” (paragraph (1)). Conceivably, this double
criterion might be retained if the Commission were to allow party autonomy in respect of
the applicable procedural law. (78) The criterion “in this State” would then extend to
arbitral proceedings held under a law other than the model law, and the criterion “under
this Law” would extend to arbitrations held elsewhere under the law of “this State.” It is
submitted, however, that it would be more appropriate to use only the general criterion
which the Commission may wish to adopt for the applicability of the model law, in which
case there may not be any need for expressing the territorial scope in article 27.
P 754
P 755
4. More important than this issue of detail is the observation that article 27 is limited
essentially to arbitrations taking place in “this State”; unlike earlier draft provisions, it
envisages neither assistance to foreign arbitrations nor requests to foreign courts in
arbitral proceedings held under the model law. (79) This limitation is the result of a
compromise between those in favour of international court assistance and those opposed
to any provision on court assistance. (80)
Request for assistance, paragraph (1), and its execution, paragraph (2)
5. According to paragraph (1), assistance would be rendered by a “competent court” which
is not necessarily the one designated pursuant to article 6 since its competence may be
based, for example, on the residence of the witness to be heard or the location of the
property to be inspected. A request for court assistance may be made by the arbitral
tribunal or by a party with the approval of the arbitral tribunal. Although the obtaining of
evidence may be regarded as being strictly a matter for the parties, the involvement of the
arbitral tribunal would be conducive to preventing dilatory tactics of a party. Paragraph (1)
lists the required contents of the request, without going into further details of form or
procedure.
6. Paragraph (2) implements the earlier mentioned “expectation” of court assistance,
without interfering with established national rules on court competence and organization

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 (see above, para. 2). The court may, within its competence and according to its rules on
taking evidence, execute the request in either of the following ways: It may take the
evidence itself (e.g., hear the witness, obtain the document or access to property and,
unless the arbitrators and parties were present, communicate the results to the arbitral
tribunal), or it may order that the evidence be provided directly to the arbitral tribunal, in
which case the involvement of the court is limited to exerting compulsion.
SUMMARY RECORD A/CN.9/SR.325, .330, .332
[17 June 1985, 9:30 a.m., A/CN.9/SR.325]
Article 27. Court assistance in taking evidence
Paragraph (1)
P 755 57. Mr. PELICHET (Observer, The Hague Conference on Private International Law) said that
P 756 the phrase “in this State or under this Law” in the English version of article 27(1) was
ambiguous; it should be brought into line with the French version which read “in this State
and under this Law.” As stated in his organization's written comments ([Sixth Secretariat
Note (Government Comments),] A/CN.9/263/Add. 1, [ … ] para. 1, under art. 27) a special
commission of The Hague Conference had met to decide whether the scope of the
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters [847 U.N. T.S.
231] (The Hague, 1970) might be extended by the addition of a protocol to cover arbitral
proceedings. The special commission had confirmed the technical feasibility of the
scheme, but had expressed doubts about its usefulness. He would welcome any comments
on the matter.
58. The CHAIRMAN [Mr. LOEWE (Austria)] pointed out that the French version of article 27
had been corrected and brought into line with the English text ([Fifth Draft,]
A/CN.9/246/Corr. 1, French only) [not included in this book].
59. Mr. SEKHON (India) pointed out that an arbitral tribunal could not usually make a direct
request to a court for assistance. He proposed that the text of article 27(1) should be
amended so as to state that the arbitral tribunal “… may request, through a competent
authority,….”
60. In its present form, article 27(1) could be understood to mean that a court would
provide assistance only in the taking of evidence. He proposed that the introductory
sentence of the paragraph should be amended to read “… the arbitral tribunal may
request … assistance in taking or securing evidence.”
61. Mr. ROEHRICH (France) endorsed the proposal of the Observer for The Hague Conference
that the first sentence of article 27(1) should be amended to read “… held in this State and
under this Law.” The model law was designed to be adopted as national legislation and
could not deal with the question of co–operation between courts of different countries.
That question was still open, and could perhaps be dealt with in the future. In view of the
differing provisions of various legal systems, it seemed unwise to specify explicitly that
only an arbitral tribunal or a party could request assistance in taking evidence. He
therefore proposed that article 27(1) should be worded more neutrally and should state
that, with the authorization of the arbitral tribunal, a request for assistance could be
submitted to a competent court. His delegation endorsed the written proposal of Austria
([Sixth Secretariat Note (Government Comments),] A/CN.9/263, [Art. 27,] para. 4) that sub-
paragraphs (a), (b) and (c) should be deleted as unnecessary.
62. Mr. STROHBACH (German Democratic Republic) expressed support for the territorial
approach advocated by Japan, Austria and the Soviet Union in their written comments
([Sixth Secretariat Note (Government Comments),] A/CN.9/263, [Art. 27,] paras. 2, 4 and 5). He
agreed that sub–paragraphs (a), (b) and (c) of article 27(1) should be deleted as
unnecessary.
P 756 63. Mr. SAWADA (Japan) confirmed his Government's comments ([Sixth Secretariat Note
P 757 (Government Comments),] A/CN.9/263, [Art. 27,] para. 1) concerning the scope of article
27 and the need to delete the words “under this law” in paragraph (1), as well as its support
for the Working Group's decision that the article should deal only with court assistance to
an arbitration taking place in the State of the court giving that assistance (Ibid., [ … ] para.
2). His Government was not against assistance in obtaining evidence, but considered that
the taking of evidence beyond national borders would be better regulated by international
conventions than by a provision in the model law which was intended to become a
domestic statute.
64. Mrs. RATIB (Egypt) said that her Government believed that the application of article 27
should be limited to arbitral proceedings held in the State concerned. It would be
excessive to oblige a State to lend assistance to arbitral proceedings held outside its own
territory.
65. Mr. AYLING (United Kingdom) agreed with the French representative's remarks both on
points of substance and on points of form, on the understanding that the proposals by that
representative would not confer on the State in which the model law was to apply,
discretion as to whether there should be court assistance or not; that discretion belonged
to the tribunal or to the parties.
66. Mr. HOLTZMANN (United States of America) withdrew his Government's written

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 amendment ([Sixth Secretariat Note (Government Comments),] A/CN.9/263, [Art. 27,] para. 3),
which would have empowered courts in the State in which the arbitration was held to
transmit requests for assistance in obtaining evidence to courts in other States. It now felt
that there was little practical need for such provisions in the model law or in a convention;
besides, arbitration could be delayed for as much as six months or a year by requests for
evidence to courts outside the country. He saw no need for a reference to the territorial
scope in article 27(1), since that would be covered elsewhere. He supported the Austrian
written suggestion that sub–paragraphs (a), (b) and (c) should be deleted ([Id.,] A/CN.9/263,
[Art. 27,] para. 4).
67. He also supported Sweden's written suggestion ([Id.,] A/CN.9/263, [Art. 27,] para. 6) for
the inclusion of a provision that would empower the arbitral tribunal to order the party in
possession of evidence to produce it and specify that refusal to comply would be
interpreted to that party's disadvantage. He suggested that the idea should be noted in
the report as the Commission's view.
68. He supported the French amendment to the first part of article 27(1), on the
understanding that a request could be made only by the arbitral tribunal or by one of the
parties.
69. Mr. SAMI (Iraq) supported the French amendment to replace the word “or” by “and” in
the first line of article 27(1). Regarding the authority receiving the request, he proposed
that words on the following lines should be added to the paragraph: “The authority
receiving the request shall be the court or the authority mentioned in article 6.” He also
supported the Austrian suggestion to delete sub–paragraphs (a), (b) and (c).
P 757
P 758
70. The CHAIRMAN said he had the impression that there was wide agreement that the
article should apply only to arbitrations taking place in the territory of the State. He
suggested that, pending discussion of a Secretariat proposal on the subject [see Summary
Record, A/CN.9/SR.330, para. 14, appearing in the subsection on Article 1, paragraph 2, p. 125
supra], the reference to arbitral proceedings “held in this State” should be retained. There
was also support for the deletion of subparagraphs (a), (b) and (c) in article 27(1). Regarding
the French amendment to that paragraph, he suggested that it might be unwise to amend a
text which had been agreed upon as a compromise after prolonged discussion. He wished
to know whether the members of the Commission were prepared to reach preliminary
agreement on those lines.
71. Mr. SAMI (Iraq) suggested that article 27 should be added to those listed in article 6.
72. Mr. HERRMANN (International Trade Law Branch) explained that article 6 was concerned
with centralizing the functions of a specially designated court. It would have been
inappropriate for the list in it to include article 27, which was concerned with matters such
as hearing witnesses, obtaining access to premises, and so forth; in these matters, local
court jurisdiction was determined by other factors such as residence of witness or location
of premises.
73. Mr. MATHANJUKI (Kenya) agreed with the Chairman's conclusions, but thought that the
Indian amendment to article 27(1) should be borne in mind.
74. Mr. LAVINA (Philippines) also agreed with the Chairman's conclusions, but considered
that it might, on rare occasions, be necessary to request assistance from a court in a
foreign State, as indicated in the United States proposal, now withdrawn. He supported the
proposal to delete subparagraphs (a), (b) and (c) in article 27(1).
75. Mr. TANG Houzhi (China) said that he entirely agreed with the Chairman's summing up.
He also supported the French amendment to article 27(1).
76. Mr. VOLKEN (Switzerland) said that he too supported the Chairman's conclusions.
77. In his opinion, the French amendment was not strong enough. The matter to be
regulated was the contact between the arbitral tribunal and the State court. He suggested
wording on the following lines: “When a court of this State receives a request for obtaining
evidence from an arbitral tribunal, this State court shall act on such a request.”
78. Mr. SEKHON (India) said that he agreed with the Chairman's summing up and supported
the territorial approach in article 27(1). He pointed out that the definition of “court” in
article 2 would not be appropriate to article 27 as far as routing of requests was concerned,
since more often than not requests were made by bodies which were not bodies or organs
of the judicial system of a country.
P 758
P 759
79. The CHAIRMAN suggested that it should be noted in the report that the rules in question
did not apply to routing of requests but only to originating and complying with requests.
80. It was so agreed.
81. Mr. KADI (Algeria) also endorsed the Chairman's summing up. Regarding the question
raised by the representative of Iraq, he saw a link between articles 25 and 27, because both
dealt with assistance. If the Iraqi proposal were supported he would suggest a draft on the
following lines: “In arbitral proceedings held in this State and in accordance with article 6,

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 the arbitral tribunal may request assistance from a competent court in taking evidence or
obtaining documents.”
82. The CHAIRMAN said that if there were no objections the amendment could be sent to
the drafting committee.
83. It was so agreed.
84. Mr. LOEFMARCK (Sweden) drew attention to his Goverment's suggestion ([Sixth
Secretariat Note (Government Comments),] A/CN.9/263, [Art. 27,] para. 6) that an explicit
provision should be included to the effect that refusal of a party possessing evidence to
comply with an order to produce it should be interpreted to that party's disadvantage. If
that notion were generally accepted, he would be satisfied if it was simply mentioned in
the report.
85. The CHAIRMAN said that the report would mention the proposal and also that it had not
been opposed.
86. It was so agreed.
87. Mr. LEBEDEV (Union of Soviet Socialist Republics) agreed with the Chairman's summing
up but asked whether the scope of territorial application would be included in article 27 or
in a separate article, as proposed by the Secretariat (A/CN.9/XVIII/CRP. 12 [appearing in the
subsection on Article 1, paragraph 2, as a footnote to Summary Record, A/CN.9/SR.330, para.
14, p. 125 supra]).
88. The CHAIRMAN said that for the time being territorial scope would be included in
article 27 but it might prove superfluous when the Secretariat proposal came to be
discussed.
Paragraph (2)
89. Mr. LAVINA (Philippines) proposed the deletion of the concluding portion of the
paragraph “either by taking the evidence itself or by ordering that the evidence be
provided directly to the arbitral tribunal.” The provision would thus end at the word
“request.”
90. The CHAIRMAN said that in the absence of any opposition he would take it that the
Commission agreed to adopt article 27(2) with that amendment.
91. It was so decided.
P 759
P 760
[19 June 1985, 9:30 a.m., A/CN.9/SR.330]
Article 27. Court assistance in taking evidence (continued)
40. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that, as he understood it, the
adoption of the new paragraph (1 bis) (*) for article 1 in the shorter version would also
settle the question left pending under article 27. In that connection, he drew attention to
the Soviet delegation's suggestion to delete the words “under this Law” ([Sixth Secretariat
Note (Government Comments),] A/CN.9/263, [Art. 27,] para. 1).
41. The CHAIRMAN [Mr. LOEWE (Austria)] suggested the deletion of the whole of the opening
phrase “In arbitral proceedings held in this State or under this law”; the article would then
read: “The arbitral tribunal or a party .…” There was no need to repeat the principle of
territoriality because it was now embodied in the new paragraph (1 bis) of article 1.
42. It was so agreed.
[20 June 1985, 3:00 p.m., A/CN.9/SR.332]
Article 27 [as revised by the Drafting Group]
81. Mr. GRIFFITH (Australia) asked for clarification as to whether, as a result of the
redrafting of the article, the “competent court” which it mentioned was the court specified
in article 6.
82. The CHAIRMAN [Mr. LOEWE (Austria)] said that the “competent court” to which article 27
referred was not the court specified in article 6. It was a court which might be requested to
take evidence from a witness who, for example, was unable to appear before the tribunal
because he lived at too great a distance.
83. Mr. MATHANJUKI (Kenya) asked the Chairman to confirm that article 27 did not cover the
question of the procedure for implementing the request.
84. The CHAIRMAN confirmed that.
85. Article 27 was adopted without change.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 27. Court assistance in taking evidence
222. The text of article 27 as considered by the Commission was as follows:
[same as Fifth Draft, supra].

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 Paragraph (1)
P 760 223. The Commission was in agreement that in conformity with a general decision
P 761 previously taken the scope of application of the article should be limited territorially.
Subject to drafting changes called for as a result of the decision yet to be taken on the
specific text in regard to territorial scope of application of the model law as a whole, the
Commission decided to delete the words “or under this Law.”
224. Subsequently, in light of the decision to adopt the text of article 1 (1 bis) (see above,
para. 81, [appearing in the subsection on Article 1, paragraph 2, p. 131 supra]), the
Commission also decided to delete the words “held in this State” as being unnecessary
since, except as provided in that article, the entire model law applied only to arbitral
proceedings held in “this State.”
225. The Commission was also in agreement that the question of international assistance in
the taking of evidence in arbitral proceedings should not be governed by the model law. It
noted that the Hague Conference on Private International Law was studying the possibility
of preparing a protocol to the 1970 Hague Convention on Taking of Evidence Abroad in Civil
or Commercial Matters [847 U.N.T.S. 231] to extend its application to arbitral proceedings
and that the Hague Conference would be interested in the views of arbitration experts
whether such a protocol would be desirable.
226. The Commission did not adopt a proposal to limit paragraph (1) to an indication that a
competent court might be requested to assist in taking evidence without referring to
whether it was the arbitral tribunal or the parties who might make the request to the court.
It was noted that the current provision was a compromise between those legal systems in
which only the arbitral tribunal might request the court for assistance and those legal
systems in which a party might request the court for assistance. In the current text either
the arbitral tribunal or a party might request such assistance, but in the latter case only if
the arbitral tribunal approved.
227. It was noted that paragraph (1) indicated only the court to which the request should be
addressed, but that the routing by which that request should reach the court would be
determined by local procedures. An observation was made that States adopting the model
law might wish to entrust the functions of court assistance in taking evidence to the court
or other authority specified in article 6 and that that should be reflected by appropriate
drafting.
228. The Commission decided to delete the second sentence of paragraph (1), including
sub–paragraphs (a), (b) and (c), on the grounds that they entered into excessive detail that
did not need to be expressed in the model law.
229. The Commission did not adopt a proposal to add a new provision to the effect that,
where evidence was possessed by a party and the party refused to comply with an order to
produce it, the arbitral tribunal should be expressly empowered to interpret the refusal to
that party's disadvantage. It was suggested, and not contradicted in the Commission, that
such a provision was unnecessary since the arbitral tribunal already had that power,
particularly under article 25(c).
P 761
P 762
Paragraph (2)
230. The Commission decided to place a full stop after the words “execute the request” and
to delete the remainder of the sentence. It was felt that there was no need to indicate the
manner in which the court should execute the request. Moreover, in some countries it
would be difficult to imagine the court ordering that the evidence be provided directly to
the arbitral tribunal.
P 762

References
1) First Working Group Report, A/CN.9/216, para. 61, pp. 739–40 infra.
2) Id.
3) See Third Secretariat Note, A/CN.9/WG.II/WP.41, para. 28, pp. 740–41 infra.
4) Id.
5) Id. paras. 28, 37 & draft Article E1, alternatives A & B, pp. 740–43 infra.
6) Id. para. 37.
7) Fifth Draft, A/CN.9/246 (Annex), Art. 27(2), p. 751 infra. The Fifth Draft's provisions on the
contents of the request would have required stipulation of “(a) the names and
addresses of the parties and the arbitrators; (b) the general nature of the claim and
the relief sought; (c) the evidence to be obtained, in particular” certain specified
details such as “the subject–matter of the testimony required.” Id. Art. 27(1).
8) For further discussion of the Working Group's decisions with respect to the proposed
conditions under which the court could refuse the request, see point 2 infra.
9) See Commission Report, A/40/17, para. 228, p. 761 infra.
10) Id. para. 230, p. 762 infra.

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 11) Id. The Summary Record contains no indication of the reason for this change. See
Summary Record, A/CN.9/SR.325, paras. 89–91, p. 759 infra.
12) An example of a rule that permits a court to require that the evidence be presented to
the arbitral tribunal is the United States Arbitration Act. Under that law, a court may
order appearance of the desired witness before the arbitral tribunal and punish a
failure to appear in the same manner as for appearances before the court. 9 U.S.C. § 7.
An example of a rule that permits the court only to take a witness's testimony itself
(through a “judge–commissary” appointed for the purpose) is Article 635 of the
Netherlands Code of Civil Procedure. See P. Sanders, National Report — The
Netherlands, 6 Yearbook Commercial Arbitration 60, 71 (1981).
13) See Third Secretariat Note, A/CN.9/WG.II/WP.41, para. 32, p. 741 infra.
14) Id. para. 33, pp. 741–42 infra.
15) See Third Working Group Report, A/CN.9/233, para. 34, pp. 744–45 infra; Fourth Working
Group Report, A/CN.9/245, para. 40, p. 746 infra.
16) See Fifth Working Group Report, A/CN.9/246, para. 98, p. 750 infra.
17) Third Secretariat Note, A/CN.9/WG.II/WP.41, paras. 33 & 37, Art. E1, pp. 741–43 infra.
18) See Third Working Group Report, A/CN.9/233, paras. 31–37, pp. 744–45 infra.
19) Third Draft, A/CN.9/WG.II/WP.44, Art. E, p. 745 infra.
20) Fourth Working Group Report, A/CN.9/245, para. 39, p. 746 infra.
21) Id.
22) Fourth Draft, A/CN.9/WG.II/WP.48, Art. 27(2), p. 748 infra (emphasis added).
23) See Fifth Working Group Report, A/CN.9/246, paras. 91, 101, pp. 749, 750 infra;
Commission Report, A/40/17, para. 230, p. 762 infra. The Fourth Draft contained the
phrase “including provisions on admissibility and on enforcement procedure”
following the term “rules on taking evidence.” This phrase was deleted as redundant.
24) Fifth Working Group Report, A/CN.9/246, para. 94, p. 749 infra.
25) See Third Working Group Report, A/CN.9/233, para. 36, p. 745 infra.
26) E.g., Third Draft, A/CN.9/WG.II/WP.44, Art. E(2), p. 745 infra.
27) Fourth Working Group Report, A/CN.9/245, para. 43, p. 747 infra.
28) Id.
29) Id. paras. 45–46, p. 747 infra.
30) Fourth Draft, A/CN.9/WG.II/WP.48, Art. 27(2), (3), p. 748 infra.
31) Fifth Working Group Report, A/CN.9/246, paras. 95–96, pp. 749–50 infra; see Seventh
Secretariat Note, A/CN.9/264, Art. 27, para. 4, p. 755 infra.
32) See Commission Report, A/40/17, para. 225, p. 761 infra; see also Article 5 of the Law.
33) 847 U.N.T.S. 231 (The Hague 1970).
34) See Sixth Secretariat Note (Government Comments), A/CN.9/263/Add. 1, Art. 27, para. 1,
pp. 752–53 infra.
35) Summary Record, A/CN.9/SR.325, para. 57, pp. 755–56 infra.
*) [Editors' Note: See also paragraph 58 of this document, which considers the general
question of the extent to which the Model Law should include “supplementary rules on
arbitral procedure.” It appears in the section on Article 19, p. 574 supra.]
9) As to the previous discussion at the Working Group, see [First Working Group Report,]
A/CN.9/216, paras. 61 and 62.
10) Ibid., para. 61.
11) The Working Group may wish to consider whether this court should be the Court
specified in Article V (in [Second Draft,] A/CN.9/WG.II/WP.40) [Art. 6 in the final text] or
whether it should be another competent court.
13) Discussion and conclusions of the Working Group in [Third Working Group Report,]
A/CN.9/233, paras. 31–37; see also note by the Secretariat, [Third Secretariat Note,]
A/CN.9/WG.II/WP.41, paras. 27–37.
8) See discussion below, paras. 165–168 [appearing in the subsection on Article 1,
paragraph 2, pp. 107–08 supra].
31) [Fifth Working Group Report,] A/CN.9/246, para. 96.
32) Ibid., para. 97.
5) [Fifth Working Group Report,] A/CN.9/246, para. 96; [Fourth Working Group Report,]
A/CN.9/245, para. 43.
77) Merely in those cases where the evidence is in the possession or under the control of a
party the arbitral tribunal may exert a certain influence by indicating its intention to
use the “sanction” provided for in article 25(c); see [Seventh Secretariat Note, ]
commentary to article 25, para. 5 [appearing in the section on that article, p. 711 supra].
78) As to the question of the territorial scope of application of the model law in general,
see [Seventh Secretariat Note] commentary to article 1, paras. 4–6 [appearing in the
subsection on Article 1, paragraph 2, pp. 113–14 supra].
79) [Third Working Group Report,] A/CN.9/233, para. 36; [Fourth Working Group Report,]
A/CN.9/245, paras. 37, 42–46; [Fifth Working Group Report,] A/CN.9/246, paras. 90–91,
95–96.
80) It was stated in this context that court assistance to foreign arbitral tribunals or
assistance by foreign courts in taking evidence could not appropriately be dealt with
in a model law, and it was suggested as a possible future item of work to be discussed
by the Commission that it might be desirable to elaborate rules on international
judicial assistance either in a separate convention or by extending an existing
convention ([Third Working Group Report,] A/CN.9/233, para. 37; [Fifth Working Group
Report,] A/CN.9/246, paras. 43–44).

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 *) [Editors' Note: This new paragraph 1 bis became Article 1(2) in the final text. See the sub-
section on Article 1, paragraph 2, pp. 125–28, 130–31 supra.]

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Document information
UNCITRAL Model Law, Chapter VI, Article 28 [Rules
Publication applicable to substance of dispute]
A Guide to the UNCITRAL P 763
Model Law on International P 764
Commercial Arbitration: (1) The arbitral tribunal shall decide the dispute in accordance with such rules of law
Legislative History and as are chosen by the parties as applicable to the substance of the dispute. Any
Commentary designation of the law or legal system of a given State shall be construed, unless
otherwise expressed, as directly referring to the substantive law of that State and
not to its conflict of laws rules.
Organization (2) Failing any designation by the parties, the arbitral tribunal shall apply the law
determined by the conflict of laws rules which it considers applicable.
United Nations Commission (3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if
on International Trade Law the parties have expressly authorized it to do so.
(4) In all cases, the arbitral tribunal shall decide in accordance with the terms of the
contract and shall take into account the usages of the trade applicable to the
Promulgation transaction.
21 June 1985
Commentary
At least as a matter of theory, the problem of selecting the rules applicable to the
Legislation number substance of the dispute is more complicated in international commercial arbitration than
United Nations Document it is for a domestic court or for an arbitral tribunal in a purely domestic arbitration. In
A/40/17, Annex I courts and in domestic arbitration, there is generally a single set of choice of law rules that
govern the choice. For a court, this set will be the binding choice of law rules promulgated
by the legislature of the State in which the court sits. In a domestic arbitration, the
situation is often similar: the arbitral tribunal will either, like a domestic judge, employ
Bibliographic reference the domestic conflicts rules of the place of arbitration, or it will almost automatically
'UNCITRAL Model Law, apply the substantive law of the State in which the parties reside, the contract was to be
Chapter VI, Article 28 [Rules performed, and the arbitration takes place. (1) There will in any event not usually be a
applicable to substance of choice of several potentially applicable rules to govern the selection of the applicable
dispute]', in Howard M. law.
Holtzmann and Joseph In international commercial arbitration, on the other hand, the tribunal is not bound to
Neuhaus , A Guide to the
UNCITRAL Model Law on P 764 apply the conflicts rules of the place of arbitration, and no single body of substantive law
International Commercial P 765 or rules will necessarily be the obvious and unquestioned choice. The element that
makes the arbitration international — be it the place of arbitration, the place of
Arbitration: Legislative performance, or the state of residence of one party — will generally introduce a potentially
History and Commentary, different rule of private international law.
(© Kluwer Law International;
Kluwer Law International National arbitral laws rarely address the question of choice of law. (2) They are generally
1989) pp. 764 - 807 designed primarily for arbitrations connected solely with the enacting State, and in such
noninternational arbitration there is rarely a serious choice of law question. (3) In order
fully to meet the needs of international arbitration, therefore, the Model Law, like
international conventions on arbitration (4) and some rules designed for international
arbitration, (5) provides guidelines on this subject. As the Commission Report noted, there
was wide support for the view “that the model law would be incomplete without a
provision on rules applicable to the substance of disputes, particularly in view of the fact
that the model law dealt with international commercial arbitration where a lack of rules
on that issue would give rise to uncertainty.” (6)
The Model Law attempts to provide rules that are in line with generally accepted modern
theory and practice. There was little disagreement on the main points of policy: first, that
the parties should have complete autonomy to choose any rules to govern the substance of
the dispute, even if those rules are territorially unconnected with the contract or the
dispute; (7) second, that in the absence of a choice by the parties the choice should be
made by the arbitral tribunal; third, that the Model Law should recognize an agreement by
the parties to have the arbitral tribunal decide the dispute ex aequo et bono or as amiable
compositeur.
Nevertheless, there was a divergence of opinion and lengthy discussion as to some of the
details of these policies, in particular, as to the precise scope of both the parties' power to
agree on, and the arbitral tribunal's power to choose, the applicable rules governing the
substance of the dispute.
P 765
P 766
Paragraph 1. Paragraph 1 permits the parties to make a binding choice of law to govern the
dispute and provides a rule of construction for interpreting whether that choice includes
the chosen law's conflict of law rules. The primary issue here was whether the parties could
choose not only the body of law in force in a particular jurisdiction but also parts of other
legal codes or part or all of sets of rules not in force as such anywhere. For example, the
parties might wish their dispute to be decided in accordance with an international
convention or uniform law that is not yet in force, or they may wish a decision based on

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 parts of the law of various States. In favor of this latter approach, it was noted that allowing
the parties to choose such rules was not essentially different from recognizing their
freedom to choose a national law that was unconnected with the dispute (8) — a freedom
that was widely accepted.
The Working Group adopted this view. The First Draft specifically mentioned the possibility
of the parties' choosing “even if not yet in force, a pertinent international convention or
uniform law.” (9) This specific approach was thought to raise problems, however. (10) A
broader and less explicit rule was suggested:
[I]t was … suggested that the statement as to the autonomy of the parties might
be broadened in this article to enable the parties implicitly to designate parts
of different systems of law as applicable to the substance of their dispute. It
was suggested that the autonomy of the parties could be broadened implicitly
by a rule according to which “the tribunal shall decide a dispute in accordance
with such rules of law as may be agreed by the parties.” (11)
This approach, with its crucial phrase “rules of law,” was preferred by the Working Group
and ultimately incorporated into the law. The Working Group stated that it was intended to
allow the parties to choose, for example, “rules of more than one legal system, including
rules of law which had been elaborated on the international level.” (12) There were limits
on the choice, however: “While some representatives would have preferred an even wider
P 766 interpretation or an even broader formula, to include, for example, general legal
P 767 principles or case law developed in arbitration awards, the Working Group, after
deliberation, was agreed that this was too far–reaching to be acceptable to many States,
at least for the time being.” (13)
During the consideration of the provision by the full Commission, a number of delegations
expressed reservations about the phrase “rules of law,” both in written comments and in
oral interventions. It was thought, on the one hand, that this approach was novel and
ambiguous, and would create considerable difficulties in practice, (14) that it might lead
to “extravagant choices” by the parties, and that it might encourage dividing up the
contract into innumerable parts, each governed by a separate set of rules. (15) On the other
hand, some thought the provision unnecessary, on the ground that most legal systems
already recognized the right to select different laws for different parts of the relationship,
a practice known as dépeçage, (16) and that the parties could always incorporate the
provisions of international conventions and the like into their agreements as contractual
terms. (17)
The Commission initially decided to replace the term “rules of law” with the more
traditional expression “law.” It agreed, however, that this expression should be interpreted
to be essentially as broad as “rules of law”: it would allow both dépeçage and selection of
international conventions not yet in force. (18) The Commission later reversed itself and
reinstated the term “rules of law.” This decision was connected with a similar debate that
arose during the discussion of paragraph 2 of Article 28, which deals with the choice of law
by the arbitral tribunal rather than by the parties. There, the question was whether the
arbitral tribunal was to choose the applicable substantive law directly or only via the more
traditional route of choosing a particular set of choice of law rules, which then would refer
the tribunal to a body of substantive law. A similar division of opinion surfaced. In such
circumstances, where no consensus for a change emerged, the Commission pursued a
general policy of retaining the text drafted over several years by the Working Group, and
this was the course followed in this instance. (19)
What, then, does the phrase “rules of law” mean? What rules may the parties choose to
P 767 govern the substance of their dispute? The Commission Report is reasonably clear that the
P 768 parties may choose the national law of any State and that they may choose the national
laws of different States to govern various aspects of their relationship (that is, dépeçage).
(20) Similarly, they can probably agree to have a given national law apply but exclude the
provisions on a specific topic. For example, it was said that there have been occasions
when parties to international contracts have chosen Swiss law except for the rules
governing judicially ordered set–offs, which are viewed by some as providing too much
authority to the court. (21) Another analogous example is the common contract provision
stipulating application of a law as it was worded at a particular time, excluding
subsequent amendments. (22) Finally, as noted above, there was also a clear indication
that the chosen provision need not be “law” as such: the Commission Report notes that it
was stated in support of the term “rules of law” that it would allow parties to “choose the
rules embodied in a convention or similar legal text elaborated on the international level,
even if not yet in force.” (23)
In addition, a few examples appear elsewhere in the legislative history. On the one hand,
several governments expressed their understanding that the term could include trade
usages (24) and “the rules of businessmen and business associations.” (25) On the other
hand, as noted above, the Working Group decided at an early stage that the term did not
extend to “general legal principles” or law developed in arbitration awards. (26)
The rationale for placing any limits on the parties' choice is probably that the rules chosen
should be reasonably ascertainable by the arbitral tribunal. Beyond this, however, it is
submitted that there is little reason for limiting the parties. If they are empowered to

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 authorize decisions ex aequo et bono — that is, based on equity and divorced from strict
legal standards — and if they may incorporate as a contractual term virtually any rule they
wish, they should likewise be empowered to choose virtually any set of rules to govern the
dispute (subject to the limits imposed by public policy and substantive law). (27)
The parties' freedom to choose rules applicable to the dispute must be interpreted in the
light of two other important sections of the Model Law. First, under Article 2(d), the parties
P 768 may not empower a third party, such as an arbitral institution, to choose the applicable
P 769 law. It must be accomplished by agreement of the parties, or else the arbitral tribunal
will do it. Second, Article 19 of the Model Law confers on the arbitral tribunal the power to
determine the admissibility, relevance, materiality, and weight of any evidence, unless the
parties have agreed to the contrary. In some States, such questions are matters of
substantive law, not procedure. Nevertheless, the Commission agreed that the discretion
of the arbitral tribunal conferred by Article 19(2) would not be affected by the choice of law
applicable to the substance of the dispute selected under Article 28. (28) This
interpretation — which is merely an application of the maxim that the specific rule
controls the general — means that the parties' choice of the substantive law of a particular
State will not include the rules of evidence of the designated State, unless the parties
specifically refer to those rules.
Paragraph 2. As noted above, a debate like that over the wording of paragraph 1 arose in
connection with paragraph 2 of Article 28, which deals with the arbitral tribunal's power to
choose the applicable law in the absence of a designation by the parties. The question
with respect to paragraph 1 was the extent of the parties' freedom to choose the rules
applicable to the substance of the dispute. With respect to paragraph 2 there were two
primary issues. One was whether the tribunal might be empowered to choose the
applicable substantive law directly or only via the conflict of law rules that it considered
to be applicable. The second, related issue was whether the arbitral tribunal could choose
“rules of law,” and not only the “law” of any given national State, just as the parties were
permitted to do under paragraph 1.
The discussions of paragraphs 1 and 2 were inevitably linked. It was argued by some that
the two provisions should be in harmony, that is, that the arbitral tribunal's power under
paragraph 2 should be the same as the parties' freedom under paragraph 1. (29) The
proponents of this view argued that in the absence of designation by the parties the
arbitral tribunal should be directed simply to “apply the rules of law it considers
appropriate,” which would free the tribunal from both a particular set of conflict rules and
any particular “law.” (30) They argued, inter alia, that this would accord better with present
practices in international commercial arbitration, in which the tribunal frequently did not
first decide on conflict of law rules but rather chose the substantive law by more direct
means. (31)
P 769 Others disagreed, stating that the broader freedom conferred by paragraph 1 was
P 770 appropriate in a provision directed at the parties but less so in one like paragraph 2
aimed at the arbitral tribunal. (32) They said that the narrower freedom given the arbitral
tribunal would provide greater predictability and certainty and would help to ensure that
the arbitral tribunal gave reasons for its choice of law. (33)
The Working Group and the Commission favored the latter approach and adopted the more
restrictive language requiring recourse to conflict of law rules (which would in turn require
application of a “law” to the substance of the dispute). (34) This “more cautious approach”
was viewed as advisable in view of the “rather progressive step” taken in paragraph 1. (35)
In the end, though, it was widely recognized that the practical result would generally be
the same regardless of which formulation were chosen, particularly with respect to whether
reference to conflict of law rules was required. It was said that the reasons invoked by
arbitral tribunals when they select the governing law directly, without separate reference
to conflicts rules, are often similar to the connecting factors used in such rules. (36)
Paragraph 3. Paragraph 3 gives effect to the parties' agreement to have the arbitral
tribunal decide ex aequo et bono or as amiable compositeur.
Both terms are used because some systems use one term and some the other, and because
it was thought that some systems might distinguish between them. (37) The Secretariat
commented that though this type of arbitration is not known in all legal systems, the
provision seemed appropriate in the Model Law for several reasons: first, on the ground
that the Law should not bar established features and practices of arbitration used in
certain legal systems; second, because it was consistent with the general policy of reducing
the importance of the place of arbitration in international commercial arbitration, insofar
as it recognized practices unknown in domestic arbitration at that place; and third,
because there was no risk of misleading an unwary party since the provision requires
express authorization of the parties. (38)
P 770
P 771 During the drafting of paragraph 3, three kinds of limitations or guidelines were
proposed for tribunals acting ex aequo et bono or as amiable compositeurs, only one of
which was actually incorporated into Article 28. That one is contained in paragraph 4 and
instructs the tribunal in all cases to decide the case in accordance with the terms of the
contract and to take into account usages of the trade applicable to the transaction. (39)
One feature that was proposed but not included in the law was a requirement that

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 arbitrators, even when acting ex aequo et bono or as amiable compositeurs, should strive to
ensure the enforceability of the decision in States with which the dispute has a significant
connection. (40) Similarly, the Secretariat suggested that tribunals acting ex aequo et bono
or as amiable compositeurs be required to “observe those mandatory provisions of law
regarded in the respective country as ensuring its (international) ordre public.” (41) These
proposals were not adopted primarily because of the difficulty of developing a
comprehensive definition of the mandate of arbitrators authorized to decide ex aequo et
bono or as amiable compositeurs. (42)
Paragraph 4. The First Draft of Article 28 contained two proposals for a paragraph on the
importance of trade usage and the terms of the contract. The first was based on Article
33(3) of the UNCITRAL Arbitration Rules and was similar to the provision in the final text.
The second was based on Article 9 of the United Nations Convention on Contracts for the
International Sale of Goods (Vienna 1980). This approach attempted to define the term
“trade usage.” It stated that the arbitral tribunal
[ … shall apply any usage to which the parties have agreed; the parties are
considered, unless otherwise agreed, to have impliedly made applicable to
their contract or its formation a usage of which they knew or ought to have
known and which in international trade is widely known to, and regularly
observed by, parties to contracts of the type involved in the particular trade
concerned.] (43)
The Working Group deleted this longer definition because it had been designed primarily
in respect of contracts for the sale of goods and was felt to be inapplicable to some other
types of contracts that might give rise to disputes subject to the Model Law, such as
investment contracts. (44)
P 771
P 772
Later, reservations were raised in the Working Group about the appropriateness of having
any provision along the lines of paragraph 4. First, it was said that the reference to contract
terms might be misleading where those terms conflicted with mandatory provisions of law
or “did not express the true intent of the parties.” (45) Second, the reference to trade usage
was considered both redundant — since reference to trade usage frequently was required
by the national law applicable to the dispute — and dangerous — since “their legal effect
and qualification was not uniform in all legal systems.” (46) As a result, the provision was
deleted by the Working Group.
The Commission reinstated the provision. (47) It was suggested that such a provision was
well known and appears in both the UNCITRAL Arbitration Rules and the European
Convention on International Commercial Arbitration. (48) Moreover, the provision was said
to ensure that the parties' expectations were fulfilled, on the ground that parties choose
arbitration in part because they expect that arbitrators “ ‘will above all base their
decisions on the wording and history of the contract and the usages of trade.’ ” (49)

Legislative History
SECRETARIAT NOTE ON FURTHER WORK
A/CN.9/169 (11 MAY 1979)
[Editors' Note: For the full text of the relevant portions of this document, see the section on
Purposes and Procedures of the Model Law, pp. 1173–74 infra.]
6. The participants in the consultative meeting referred to earlier (*) were of the
unanimous view that it would be in the interest of international commercial arbitration if
UNCITRAL would initiate steps leading to the establishment of uniform standards of
arbitral procedure. It was considered that the preparation of a model law on arbitration
would be the most appropriate way to achieve the desired uniformity. [ … ]
P 772
P 773
7. The major reason for this proposal is the fact that most national laws on arbitral
procedure were drafted to meet the needs of domestic arbitration and that many of these
laws are in need of revision. [ … ]
8. Yet another reason is the divergence existing between frequently used rules and
national laws; this is the area of concern expressed by AALCC [the Asian–African Legal
Consultative Committee] in its recommendations [referred to in para. 1 of this document].
For example, some national laws restrict the power of the parties to determine the
applicable law. Some national laws [ … ] provide for judicial control over the composition
of the tribunal and sometimes even over the application of substantive law. [ … ]
FIRST SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW
A/CN.9/207 (14 MAY 1981)
A. Concerns and principles of a model law on international commercial arbitration
I. General concerns and problems

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 9. The ultimate goal of a model law would be to facilitate international commercial
arbitration and to ensure its proper functioning and recognition. Its practical value would,
in particular, depend on the extent to which it provides answers to the manifold problems
and difficulties encountered in practice. Thus, in preparing the model law an attempt
should be made to meet the concerns which have repeatedly been expressed in recent
years, sometimes even labelled as “defects” or “pitfalls” in international commercial
arbitration.
10. A major complaint in this respect is that the expectations of parties as expressed in
their agreements on arbitration procedure are often frustrated by conflicting mandatory
provisions of the applicable law. To give only a few examples, such provisions may relate
to, and be deemed to unduly restrict, the freedom of the parties to submit future disputes
to arbitration, or the selection and appointment of arbitrators, or the competence of the
arbitral tribunal to decide on its own competence or to conduct the proceedings as
deemed appropriate taking into account the parties' wishes [Arts. 7, 11, 16, and 19 in the
final text]. Other such restrictions may relate to the choice of the applicable law, both the
law governing the arbitral procedure and the one applicable to the substance of the
dispute [Art. 28]. [ … ]
II. General principles and purposes
[.… ]
24. Other issues usefully to be included are those that have given rise to difficulties due to
divergent interpretations, or gaps, of the 1958 New York Convention as identified in the
study of the Secretary–General (A/CN.9/168). [ … ] To mention yet another point of a long
list of items that have given rise to difficulties, one could envisage a provision to the effect
P 773 that where parties have referred to the law of a given State as being applicable to the
P 774 substance of the dispute then this choice of law is deemed to refer directly to the
substantive law of that State and not to the conflicts rules contained in its private
international law. [Editors' Note: This problem — whether the parties' choice of law refers to
the conflicts rules of the relevant State or only to its substantive law — is not specifically
mentioned in the study of the New York Convention that is cited in this paragraph.]
[ .… ]
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
V. Award
[ .… ]
5. Law applicable to substance of dispute
90. The first question is to what extent arbitrators ought to observe rules of law in deciding
the dispute. It is suggested that the model law recognize an agreement by the parties that
the arbitrators shall decide as “amiables compositeurs” (or “ex aequo et bono”). It would be
helpful, though difficult, to define such mandate, for example, along the following lines:
Amiables compositeurs must observe those mandatory provisions of law regarded in the
respective country as ensuring its (international) ordre public. In view of the commercial
context, it may be added that the arbitrators, whether or not acting as amiables
compositeurs, shall decide in accordance with the terms of the contract, taking into
account the pertinent trade usages.
91. The model law may also empower the arbitral tribunal to determine what law is
applicable to the dispute unless the parties have designated a certain law to be applied.
As to the facility of designating a law, the model law might recognize not only the choice of
a specific national law but also allow reference to a uniform law or convention even if not
yet in force. It may also be useful, as mentioned earlier (para. 24), to include a provision to
the effect that any choice of the law of a given State means direct reference to the
substantive law of that State and not to its conflicts rules.
SECOND SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW:
QUESTIONS FOR DISCUSSION
A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
V. Award
[ .… ]
5. Law applicable to substance of dispute (report, [First Secretariat Note, supra] paras.
90–91)
Question
5–9: Should the model law recognize as binding on the arbitral tribunal an agreement by
P 774 the parties that the case be decided ex aequo et bono? If so, should an attempt be
P 775 made to define such mandate in the model law (e.g., “amiables compositeurs”
must observe those mandatory provisions of law regarded in the respective country
as ensuring its ordre public international)?

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 Question
5–10: Should the model law recognize as binding on the arbitral tribunal an agreement by
the parties that a certain law be applicable to the substance of the dispute?
Question
5–11: Failing an agreement envisaged under question 5–10, should the arbitral tribunal
apply the law it deems appropriate (as, e.g., under art. 1496 of the French New Code
of Civil Procedure) or the law determined by the conflict of laws rules which it
considers applicable (as, e.g., under art. 33(1) of the UNCITRAL Arbitration Rules)?
Question
5–12: Should the arbitral tribunal be required to decide in accordance with the terms of
the contract and to take into account the usages of the relevant trade? If so, should
this also apply to decisions ex aequo et bono?
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
V. Award
[ .… ]
5. Law applicable to substance of dispute
Question 5–9: Should the model law recognize as binding on the arbitral tribunal an
agreement by the parties that the case be decided ex aequo et bono? If so, should an
attempt be made to define such mandate in the model law (e.g., “amiables compositeurs”
must observe those mandatory provisions of law regarded in the respective country as
ensuring its ordre public international)?
84. There was general agreement that the model law should recognize as binding on the
arbitral tribunal an agreement by the parties that the case be decided ex aequo et bono. It
was noted that the term “ex aequo et bono” and the other term “amiables compositeurs”
often used in this connexion (e.g., article 33, para. 2 UNCITRAL Arbitration Rules) were not
clearly demarcated and sometimes given varying interpretations in different legal
systems. It was also noted that the consideration of this issue could not be completely
separated from the discussion on question 5–10 (parties' choice of the law applicable to
the substance of the dispute).
85. The Group agreed, therefore, though only on a tentative basis, to follow the approach
adopted in article 33, paragraph 2 of the UNCITRAL Arbitration Rules, with two
modifications. One was to use only the term “ex aequo et bono” although some support was
P 775 expressed for also retaining the words “as amiables compositeurs.” The other was not to
P 776 retain the last part of the paragraph which reads “if the law applicable to the arbitral
procedure permits such arbitration.” It was thought that such a requirement, while
meaningful in arbitration rules, was not appropriate in the model law which itself was to
be, for most cases, the very law determining the permissibility.
86. The Working Group was agreed that it was extremely difficult to define in a practicable
manner the mandate, and its limits, of arbitrators authorized to decide ex aequo et bono
(or as amiables compositeurs). However, in view of the desirability of a clarification, it did
not wish to exclude the possibility of a later attempt to draft a suitable provision. In this
respect, a proposal was made according to which the model law should expressly state
that arbitrators, even when deciding ex aequo et bono, should to the largest possible
extent ensure the enforceability of the decision within the State with which the dispute has
a significant connexion.
Question 5–10: Should the model law recognize as binding on the arbitral
tribunal an agreement by the parties that a certain law be applicable to the
substance of the dispute?
87. There was general agreement that the model law should recognize as binding on the
arbitral tribunal an agreement by the parties that a certain law be applicable to the
substance of the dispute. There was some support for the proposal (set forth in the report,
[First Secretariat Note,] para. 91) that parties may not only be given the facility of
designating a specific national law, but also of choosing an international convention or
uniform law even if it was not yet in force, or not in force in their countries.
Question 5–11: Failing an agreement envisaged under question 5–10, should the
arbitral tribunal apply the law it deems appropriate (as, e.g., under art. 1496 of
the French New Code of Civil Procedure) or the law determined by the conflict of
laws rules which it considers applicable (as, e.g., under art. 33(1) of the
UNCITRAL Arbitration Rules)?
88. Divergent views were expressed on the question of how the arbitral tribunal should
determine the law applicable to the substance of the dispute, where the parties had not
designated such law. Under one view, the model law should follow the rule embodied in

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 article 33, paragraph 1 of the UNCITRAL Arbitration Rules, according to which “the arbitral
tribunal shall apply the law determined by the conflict of laws rules which it considers
applicable.”
89. Under another view, the arbitral tribunal would directly determine the applicable
substantive law which it considered appropriate (e.g. because it was the law most closely
related to the transaction). Such determination would relate to the substantive law of a
given State. However, some support was expressed for the idea of allowing the arbitrators
to select parts of the substantive law of different countries and to apply rules contained in
relevant international conventions, even if not yet in force. A suggestion was made for
giving the arbitral tribunal some guidance in determining the applicable legal rules by
requiring it to take into account the interests and wishes of the parties and their national
laws.
P 776
P 777
90. The Working Group requested the Secretariat to prepare alternative draft provisions
reflecting the above views, and decided to reconsider the issue on the basis of those draft
provisions.
Question 5–12: Should the arbitral tribunal be required to decide in accordance
with the terms of the contract and to take into account the usages of the
relevant trade? If so, should this also apply to decisions ex aequo et bono?
91. In considering this question, it was noted that different considerations applied
depending on whether the arbitral tribunal was to decide the dispute according to law or
ex aequo et bono. In respect of the first type of arbitration, it was agreed that an arbitral
tribunal should have regard to the terms of the contract and relevant trade usages.
However, divergent views were expressed as to whether this should be expressed in the
model law, and if so in what manner. Concerning the regard to contract terms, the
prevailing view was that no provision should be included in the model law since this
requirement was self–evident. Furthermore, such a provision would be possibly misleading
or incorrect since a contract provision could be invalid under the applicable substantive
law. Under another view, however, it was advisable to require the arbitral tribunal to
decide in accordance with the terms of the contract (or, at least, to take those terms into
account).
92. Concerning the regard to trade usages, one view was not to include a provision in the
model law, since this was a matter of substantive law and a provision in the model law
could create a conflict with a national substantive law. The prevailing view was that an
attempt be made to draft an appropriate provision. Such a provision might be modelled
on article VII, paragraph 1 of the 1961 Geneva Convention [European Convention on
International Commercial Arbitration, 484 U.N.T.S. 349,] (“take account of the … trade
usages”) or on article 33, paragraph 3 of the UNCITRAL Arbitration Rules (“take into account
the usages of the trade applicable to the transaction”). A further suggestion was to consider
inclusion of a provision along the lines of article 9 of the 1980 Vienna Sales Convention
[United Nations Convention on Contracts for the International Sale of Goods, A/Conf.97/18
(Annex I)].
93. As regards arbitration ex aequo et bono, there was wide support for not including a
provision in the model law according to which amiables compositeurs should have regard
to the terms of the contract and trade usages. This was considered to be in accordance
with the earlier decision concerning a possible definition of the mandate of such
arbitrators (see question 5–9, above, para. 86). It was noted that if certain guidelines
seemed desirable, regard to trade usages should not be given greater weight than regard
to contract terms or observance of the applicable law.
94. The Working Group decided to take a final stand after considering alternative draft
provisions to be prepared by the Secretariat which would reflect the above views.
P 777
P 778
FIRST DRAFT
A/CN.9/WG.II/WP.38 (31 AUG 1982)
V. Award
[ .… ]
5. Law applicable to substance of dispute (20)
Article 31 [Art. 28 in the final text]
(1) The arbitral tribunal shall apply the law designated by the parties as applicable to
the substance of the dispute. (21) [Parties may so designate any national law or, even
if not yet in force, a pertinent international convention or uniform law.] (22)
(2) Failing such designation by the parties, the arbitral tribunal shall apply
Alternative
A: the law determined by the conflict of laws rules which it considers applicable.
(23)

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 Alternative
B: the substantive law rules which it considers most appropriate [, taking into
account the various factors of the transaction and the interests of the parties].
[Such rules may form part of a given national legal system or of an international
convention or uniform law, even if not yet in force]. (24)
(3) The arbitral tribunal [shall decide in accordance with the terms of the contract and]
shall take into account the usages of the trade applicable to the transaction. (25) [It
shall apply any usage to which the parties have agreed; the parties are considered,
unless otherwise agreed, to have impliedly made applicable to their contract or its
formation a usage of which they knew or ought to have known and which in
international trade is widely known to, and regularly observed by, parties to
contracts of the type involved in the particular trade concerned.] (26)
Article 32 [Art. 28 in the final text]
The arbitral tribunal shall decide ex aequo et bono [or as amiable compositeur] [only] if the
parties have expressly authorized it to do so.
P 778
P 779
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1981)
II. Consideration of [First Draft]
[ .… ]
Award
[ .… ]
Law applicable to substance of dispute
Article 31 [Art. 28 in the final text]
158. The text of article 31 as considered by the Working Group was as follows:
[same as First Draft, supra].
159. Under one view the model law should not contain conflict of law rules on the
substance of the dispute. It was noted that such rules are complex and cannot be reduced
properly to short formulas. It was also noted that in some States the rules on conflict of
laws are contained in a single law or code governing private international law in general.
The introduction into this model law of rules on the conflict of laws for use in international
commercial arbitration would make it difficult for those States to assimilate the model law
into their legal system.
160. Under the prevailing view, however, it would be useful to have general guidelines as to
the law applicable to the substance of the dispute in international commercial
arbitrations. The Working Group decided, therefore, to retain a text based upon this
article.
161. The Working Group was agreed that the basic rule should be the autonomy of the
parties to designate the applicable law. It decided, therefore, to retain the first sentence
of paragraph (1). It also decided that the sentence should be drafted so as to indicate
clearly that the designation by the parties of the law of a given State referred to the
substantive rules of law of that State and not to its conflict of law rules, unless the parties
have otherwise indicated.
162. There was general agreement to delete the second sentence of paragraph (1). It was
felt that the designation of an international convention or uniform law which was not yet in
force in any State would cause difficulties in determining the relationship between that
text and the other national law applicable to the substance of the dispute. It was
suggested that such a text could become applicable to the dispute only as a part of the
contract and then only if the parties had so indicated. However, it was also suggested that
the statement as to the autonomy of the parties might be broadened in this article to
enable the parties implicitly to designate parts of different systems of law as applicable to
the substance of their dispute. It was suggested that the autonomy of the parties could be
broadened implicitly by a rule according to which “the tribunal shall decide a dispute in
accordance with such rules of law as may be agreed by the parties.”
P 779
P 780
163. There was general agreement that alternative A of paragraph (2) was preferable. It was
agreed, however, that the choice of either alternative A or alternative B would probably
lead to the same result in practice.
164. Under one view trade usages are part of the applicable law. Under this view the
obligation to apply trade usages was impliedly incorporated in paragraph (1). Therefore,
paragraph (3) could be deleted.
165. Under the prevailing view, however, the model law should contain an express
provision that the arbitral tribunal should decide according to the terms of the contract
and take into account the usages of the trade applicable to the transaction.

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 166. It was agreed to delete the second sentence of paragraph (3). This sentence, which was
taken from the 1980 Vienna Sales Convention, was thought to be applicable to contracts of
sale and perhaps other international trade contracts but not to be applicable to some
other types of contracts which might give rise to disputes subject to this law, such as
investment contracts.
167. Noting the strong support for maintaining the autonomy of the parties in choosing the
law applicable to the substance of the dispute, a view was expressed that similar freedom
of choice should be given to parties in transactions having international links to include a
provision in their agreement that the model law shall apply, thereby avoiding possible
uncertainty in determining whether the model law or domestic law applies. This view could
be considered in connexion with the next draft of article 1.
Article 32 [Art. 28 in the final text]
168. The text of article 32 as considered by the Working Group was as follows:
[same as First Draft, supra].
169. There was general agreement that this article was acceptable, even though many
States do not provide for such arbitrations. The prevailing view was to retain both
expressions ex aequo et bono and amiable compositeur in the model law because under
some national laws there might be a difference in meaning between them.
170. The prevailing view was to maintain the word “only” in the second square brackets in
order to indicate that the procedure was an exceptional one.
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
G. Rules applicable to substance of dispute
Article XIX [Art. 28 in the final text]
(1) The arbitral tribunal shall [decide the dispute in accordance with such rules of law as
P 780 may be agreed by the parties] [apply the law designated by the parties as applicable
P 781 to the substance of the dispute]. Any designation of the law or legal system of a
given State shall be construed, unless otherwise expressed, as directly referring to
the [pertinent] substantive law of that State and not to its conflict of laws rules.
(2) Failing any designation by the parties, the arbitral tribunal shall apply the law
determined by the conflict of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide in accordance with the terms of the contract and
shall take into account the usages of trade applicable to the transaction.
(4) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if
the parties have expressly authorized it to do so.
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[ .… ]
Article XIX
93. The text of article XIX as considered by the Working Group was as follows:
[same as Second Draft, supra].
Paragraph (1)
94. There was some support for the wording placed between the second square brackets
which was understood as referring to the law of one given State. The prevailing view,
however, was to adopt the wording between the first square brackets, to which the words
“as applicable to the substance of the dispute” should be added. The reference to “the
rules of law” (instead of “the law”) was deemed preferable since it provided the parties
with a wider range of options and would, for example, allow them to designate as
applicable to their case rules of more than one legal system, including rules of law which
had been elaborated on the international level. While some representatives would have
preferred an even wider interpretation or an even broader formula, to include, for
example, general legal principles or case law developed in arbitration awards, the Working
Group, after deliberation, was agreed that this was too far–reaching to be acceptable to
many States, at least for the time being.
95. The Working Group noted that the word “pertinent” placed between square brackets
was designed to refine the rule of interpretation, contained in the second sentence, with
regard to the case where a national legal system had two bodies of law dealing with the
same subject–matter (e.g., law on domestic sale of goods and law on international sale of
goods). While some support was expressed for retaining the word “pertinent” or similar
wording, the prevailing view was that it should be deleted since it was self–evident or
incomplete.
P 781
P 782

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 P 782
Paragraph (2)
96. There was considerable support for aligning this paragraph with the solution adopted
in paragraph (1) and not to require the arbitral tribunal to apply conflict of laws rules. A
provision according to which the arbitral tribunal “shall apply the rules of law it considers
appropriate” was deemed desirable not only because it would be in harmony with
paragraph (1) but also because it would avoid the difficulties of applying rules of private
international law and because it would better accord with present practices in
international commercial arbitration.
97. However, the prevailing view was to retain paragraph (2) in its present form. It was felt
that a more cautious approach in paragraph (2) was advisable in view of the fact that
paragraph (1) already presented a rather progressive step. While recognizing the disparity
between the two paragraphs, it was deemed to be acceptable in view of the fact that
paragraph (1) was addressed to the parties who could take advantage of the wider scope
while paragraph (2) was addressed to the arbitral tribunal and applied only in the case
where the parties had not made their choice.
Paragraph (3)
98. There was some support for retaining paragraph (3), though possibly with some
modifications. For example, it was suggested to align the reference to trade usages with
the provision of article 9 of the United Nations Convention on Contracts for the
International Sale of Goods [A/Conf.97/18 (Annex I)] (Vienna, 1980). It was also suggested
that the reference to the terms of the contract (to be redrafted as “terms of any
agreement”) should be incorporated into paragraph (1) since this formed the basis or
starting–point of the decision of the dispute.
99. The prevailing view, however, was not to retain this provision in view of the many
questions and concerns it raised. For example, the reference to the terms of the contract
could be misleading where such terms were in conflict with mandatory provisions of law or
did not express the true intent of the parties. Also, this reference did not belong in an
article dealing with the law applicable to the substance of the dispute and was not needed
in a law on arbitration, though appropriate in arbitration rules. As regards the reference to
trade usages, the concerns related to the fact that their legal effect and qualification was
not uniform in all legal systems. Also, where they derived from a national law they were
covered already by paragraph (1) or (2).
Paragraph (4)
100. The Working Group adopted this paragraph, although it was recognized that this type
of arbitration was not known in all legal systems.
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Chapter VI. Making of award and termination of proceedings
Article 28. Rules applicable to substance of dispute
P 782 (1) The arbitral tribunal shall decide the dispute in accordance with such rules of law as
P 783 [are chosen] [may be agreed] by the parties as applicable to the substance of the
dispute. Any designation of the law or legal system of a given State shall be
construed, unless otherwise expressed, as directly referring to the substantive law of
that State and not to its conflict of laws rules.
(2) Failing any designation by the parties, the arbitral tribunal shall apply the law
determined by the conflict of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if
the parties have expressly authorized it to do so.
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Chapter VI. Making of award and termination of proceedings
Article 28
102. The text of article 28 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
103. The Working Group adopted that article, subject to the retention, in paragraph (1), of
the words “are chosen” and the deletion of the words “maybe agreed.”
104. An observation was made that, in paragraph (2), the expression “considers” might be
construed as giving too wide a discretion to the arbitral tribunal in finding the conflict of
laws rules and that it was, therefore, desirable to use another expression. However, the
Working Group decided to retain the present wording in view of the fact that the same
wording had been adopted in other legal texts on arbitration.

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 FIFTH DRAFT
A/CN.9/246 (ANNEX) (6 MARCH 1984)
Chapter VI. Making of award and termination of proceedings
Article 28. Rules applicable to substance of dispute
(1) The arbitral tribunal shall decide the dispute in accordance with such rules of law as
are chosen by the parties as applicable to the substance of the dispute. Any
designation of the law or legal system of a given State shall be construed, unless
otherwise expressed, as directly referring to the substantive law of that State and not
to its conflict of laws rules.
(2) Failing any designation by the parties, the arbitral tribunal shall apply the law
determined by the conflict of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if
the parties have expressly authorized it to do so.
P 783
P 784
SIXTH SECRETARIAT NOTE
ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 28. Rules applicable to substance of dispute
Article as a whole
1. The Republic of Korea considers remarkable that the model law refers to such a critical
question as the conflict of laws rules applicable to the substance of international
commercial disputes.
2. Sweden suggests that the rules on the choice of law reflect a rather traditional view of
the question. If the rules are adopted in their present form, there is a risk that the trend
towards a free judgement of the question of choice of law that has been noticeable in
international arbitration practice will be adversely affected. Such a consequence would be
regrettable.
Article 28, paragraph (1)
3. The Federal Republic of Germany and the United States express their support for
paragraph (1) of article 28 on the understanding, also expressed by the Working Group, (33)
that it provides parties with a wider range of options and that it would, for example, allow
them to designate as applicable to their case rules of more than one legal system,
including rules of law which have been elaborated on the international level. The Federal
Republic of Germany notes that this would provide the parties with more room for
manoeuvre as regards the extent to which they desire a decision in accordance with the
rules of law or a decision ex aequo et bono. While, in general, decisions in accordance with
the rules of law are desired in arbitral proceedings as well, businessmen often want a
decision not according to the letter of the law, but a decision based on practical economic
factors. The term “rules of law” must be interpreted in a broad sense so as to allow
deviating from the provisions of law in accordance with the declared or presumed will of
the parties.
4. It is the understanding of Argentina that the rules of law chosen by the parties do not
necessarily have to be the rules of a national law but can be, in a hierarchical order, the
rules set forth in the contract, the trade usages and the rules of an international
convention such as the 1980 United Nations Convention on Contracts for the International
Sale of Goods [A/Conf.97/18 (AnnexI) (Vienna)]. It is observed that in the case of such choice
of rules of law the parties are not prevented from designating a national law to govern, in a
subsidiary way, the questions not resolved by the rules of law chosen by the parties.
Argentina points out that in making any of these choices account should be taken of the
P 784 rules of exclusive application of the law of the State where the arbitration takes place or of
P 785 other States where the award may have to be recognized or enforced, or of the rules of
public policy which the parties may not exclude by agreement.
5. The Soviet Union proposes to replace in paragraph (1) the words “rules of law” by the
word “law,” since the term “rules of law” introduces a new and ambiguous notion that may
cause considerable difficulties in practice. The traditional notion of “law” should be
retained in the present rules designed for universal application, in spite of the views,
mainly doctrinal ones, that the arbitrators may use not only the law of a State but also
“extra–national” or “non–national” principles and rules. In this connection reference is
made to the following rules which reflect the traditional approach: article VII of the 1961
Geneva Convention [European Convention on International Commercial Arbitration, 484
U.N.T.S. 349], article 33 of the UNCITRAL Arbitration Rules and article VII of the 1966 Rules
for International Commercial Arbitration and Standards for Conciliation of the United
Nations Economic Commission for Asia and the Far East.

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 6. Cyprus states that, perhaps, the word “law” (not “rules of law”) is the appropriate word.
Article 28, paragraph (2)
7. Italy proposes to redraft present paragraph (2) as follows:
“Failing any designation by the parties, the arbitral tribunal shall apply the
rules of law which it considers appropriate, taking into account the provisions
contained in existing international conventions or uniform laws, whether
already in force or not, and, in the absence of such conventions or uniform laws,
the laws of the State where the parties have their place of business.”
8. The Federal Republic of Germany and Norway express the view that paragraph (2) allows
too much discretion to the arbitral tribunal in finding the applicable conflict of laws rules.
The Federal Republic of Germany points out that such a broad rule may, on the one hand,
put an arbitral tribunal in a difficult position when determining the appropriate conflicts
rule and, on the other hand, give rise to additional controversy protracting the
proceedings.
9. Consequently, the Federal Republic of Germany proposes that, failing agreement of the
parties on the applicable rules of law, the applicable law should be determined in
accordance with the conflict of laws rules of the place of arbitration, provided that the
place has been agreed upon by the parties; it is thought that, if the place of arbitration has
been determined by the arbitral tribunal, the conflict of laws rules of that place would not
be appropriate because the arbitral tribunal may be guided in deciding on that place by
considerations unrelated to the case at issue. If the parties have not agreed upon a place
of arbitration, it is proposed to rely on the conflict of laws rules most closely connected
with the subject–matter of the dispute.
10. Norway puts forth two variants of paragraph (2) for consideration. The first one is the
following:
P 785
P 786 “(2) Failing any designation by the parties and provided that they have
agreed on a place of arbitration, the arbitral tribunal shall apply the law
determined by the rules of conflict of laws established in the jurisdiction where
that place is situated. If the parties have not agreed on the place of arbitration
but have their relevant places of business within the territory of the same legal
system, the arbitral tribunal shall apply the law determined by the conflict
rules of that system. Otherwise, the tribunal shall apply the law of the
jurisdiction [to which the dispute is most closely related] [with which the
dispute is most properly connected].”
With respect to the first variant it is said that the present paragraph (2) seems to give the
arbitral tribunal too wide a discretion in applying conflict of laws rules and thereby, by
implication, in deciding on the applicable law. If the parties have agreed on a place of
arbitration, they will often expect the conflicts rules of that place to be applicable; if,
however, the parties have not agreed on such place but happen to have their relevant
places of business in the same State, they will often expect the conflicts rules of that State
to apply even if the arbitral tribunal decides to conduct the proceedings in another State.
However, since Norway is not convinced that the indirect approach of the suggested
paragraph (2) to the choice of law question is the most suitable one, and since the model
law probably ought to address the question directly and also provide some criteria for the
choice, the following wording is proposed as a second variant:
“(2) Failing any designation by the parties, the arbitral tribunal shall apply the
law of the jurisdiction with which the dispute is most [closely related] [properly
connected]. If the dispute is not most [closely related to] [properly connected
with] any particular jurisdiction, the tribunal shall apply the law determined by
the rules of conflict of laws in the jurisdiction where the arbitration takes place
as determined in article 20 paragraph (1).”
Article 28, paragraph (3)
11. Italy proposes to add to the text of paragraph (3) the following provision:
“Notwithstanding such an authorization, the arbitral tribunal, in taking its
decision, shall, to the largest possible extent, ensure the enforceability of the
award within the States with which the dispute has a significant connection.”
Proposed addition to article 28
12. The United States, recalling the decision of the Working Group to delete from article 28
the requirement that the arbitral tribunal decide in accordance with the terms of the
contract and take into account the usages of the trade applicable to the transaction, (34)
advocates the restoration of such requirement. Reference by the arbitral tribunal to
contract terms as well as trade usages is required by article 33(3) of the UNCITRAL
Arbitration Rules which were unanimously recommended by the General Assembly in its
resolution 31/98 of 15 December 1976 as being acceptable in countries with different legal,
P 786 social and economic systems; in recommending these Rules, the member States of the
P 787
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 P 787 United Nations approved the important policy of recognizing the applicability of
contract terms and trade usages when deciding particular disputes. It is noted that a
provision such as the one proposed is also contained in article VII of the 1961 Geneva
Convention [European Convention on International Commercial Arbitration, 484 U.N. T.S. 349]
and in article 38 of the 1966 Arbitration Rules of the United Nations Economic Commission
for Europe [E/ECE/625/Rev.1]. Further, 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 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 reasons,
expect from the arbitrators that they will above all base their decisions on the wording
and history of the contract and the usages of trade.” (35) In accordance with the above
arguments the United States proposes the inclusion in this article of a new paragraph,
based largely on article 33(3) of the UNCITRAL Arbitration Rules, as follows:
“In all cases, the arbitral tribunal shall decide in accordance with the terms of
the contract and shall take into account the usages of the trade applicable to
the transaction.”
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 28. Rules applicable to substance of dispute
Article 28, paragraph (2)
1. In the view of ICC [International Chamber of Commerce], paragraph (2) of this article is not
consistent with modern practice in international commercial arbitration. The model law
requires the arbitral tribunal to apply a law, i.e., the law of a State, and the arbitral
tribunal must choose a conflict of laws rule to determine the applicable law. In finding the
law applicable to the merits of the case, arbitrators do not necessarily first decide on an
existing conflict of laws rule but find the appropriate law on substance by more direct
means. This development has been made possible by the great freedom allowed by
national laws and international regulations. ICC holds that to introduce strict limitations in
the model law would be detrimental to the further development in this domain and would
be regarded by many international arbitrators and practitioners as a step backwards. ICC
proposes that the arbitral tribunal, failing any designation by the parties, should apply the
rules of law that it considers applicable in the particular case.
P 787
P 788
Proposed addition to article 28
2. In the view of Yugoslavia, article 28 should be supplemented, along the lines of article
33(3) of the UNCITRAL Arbitration Rules, so as to require the arbitral tribunal also to take
into account “the usages of the trade applicable to the transaction.”
A/CN.9/263/ADD.3 (31 JULY 1985)
(COMMENTS OF EGYPT)
II. Comments on the articles
[ .… ]
33. Article 28: Proposal: Amend paragraph 2 as follows:
“Failing any designation by the parties, the arbitral tribunal shall apply the
substantive law which it considers applicable.”
34. Commentary: Article 28 paragraph 1 gives the parties the unrestricted right to choose
the law applicable to the substance of their dispute. It even establishes a presumption
that any designation of a law of a given State is considered, unless otherwise expressed, as
directly designating the substantive law and not the conflict of laws rules.
35. Failing a designation by the parties, paragraph 2 entrusts the arbitral tribunal with the
designation. But instead of giving it the right to designate the substantive law directly, as
paragraph 1 does for the parties, it only gives it the choice of law whose conflict of laws
rules will be used to designate the applicable substantive law.
36. This distinction between the two situations seems to us to be untenable. It is a relic of a
misguided sense of distruct of the institution of arbitration, a distrust which is outdated
and which practical experience has already discredited. Our proposal aims at removing
this distinction.
SEVENTH SECRETARIAT NOTE
ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1985)

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 Article 28. Rules applicable to substance of dispute
[ .… ]
1. Article 28 deals with the question which law or rules the arbitral tribunal shall apply to
the substance of the dispute. This question, which should be distinguished from the issue
of the law applicable to the arbitral procedure or the arbitration agreement, is often dealt
with in conventions and national laws devoted to private international law or conflict of
laws. However, it is sometimes covered by national laws on arbitration and often by
arbitration conventions and arbitration rules.
2. The model law follows this latter practice with a view to providing guidance on this
P 788 important point and to meet the needs of international commercial arbitration. It adopts
P 789 the same policy as in respect of procedural matters by granting the parties full
autonomy to determine the issue (including the option of “amiable composition”) and,
failing agreement, by entrusting the arbitral tribunal with that determination.
Parties' freedom to choose substantive “rules of law,” paragraph (1)
3. The provision of paragraph (1) that the dispute shall be decided in accordance with such
rules of law as are chosen by the parties is remarkable in two respects. The first one is the
recognition or guarantee of the parties' autonomy as such, which is at present widely but
not yet uniformly accepted. Article 28(1) could enhance global acceptance and help to
overcome existing restrictions such as substantial connection with the country of the
chosen law.
4. The second one is the freedom to choose “rules of law” and not merely a “law,” which
could be understood as referring to the legal system of one particular State only. This
provides the parties with a wider range of options and allows them, for example, to
designate as applicable to their case rules of more than one legal system, including rules
of law which have been elaborated on the international level. (81) Adoption of this formula,
to date only found in the 1965 Washington Convention [on the Settlement of Investment
Disputes between States and Nationals of Other States, 575 U.N.T.S. 159] (art. 42) and the
recent international arbitration laws of France (art. 1496 new CPC) and Djibouti (art. 12),
constitutes a progressive step, designed to meet the needs and interests of parties to
international commercial transactions. A useful rule of interpretation is added for those
cases where the parties designate the law or legal system of a particular State.
Determination of substantive law by arbitral tribunal, paragraph (2)
5. Paragraph (2) reflects a more cautious approach in that it does not provide, as would be
in line with paragraph (1), that the arbitral tribunal shall apply the rules of law it considers
appropriate. Instead, it requires the arbitral tribunal to apply a conflict of laws rule,
namely that which it considers applicable, in order to determine the law applicable to the
substance of the dispute.
6. The resulting disparity may be regarded as acceptable in view of the fact that paragraph
(1) is addressed to the parties who are free to take advantage of the wider scope, while
paragraph (2) is addressed to the arbitral tribunal and applied only in the case where the
parties have not made their choice. Incidentally, the parties could agree to widen the
scope of the arbitral tribunal's determination, just as they are free to limit it, for example,
by excluding one or more specified national laws. Above all, paragraph (2) deserves to be
P 789 judged on its own. In this regard it seems worth noting that it is in full harmony with the
P 790 1961 Geneva Convention (art. VII(1)) and with widely used arbitration rules (art. 13(3) ICC–
Rules, art. 33(1) UNCITRAL Arbitration Rules), which equally recognize the interests of the
parties in having some degree of certainty as to which will be the law determined by the
arbitral tribunal.
Express authorization of “amiable composition,” paragraph (3)
7. Arbitration rules often provide that parties may authorize the arbitral tribunal to decide
as amiable compositeur provided, however, that such arbitration is permitted by the law
applicable to the arbitral procedure. Article 28(3) grants this permission and, thus, gives
effect to an express authorization by the parties that the arbitral tribunal shall decide ex
aequo et bono, as this arbitration is labelled in some legal systems, or, as labelled in
others, as amiable compositeur.
8. Although this type of arbitration is not known in all legal systems, its inclusion in the
model law seems appropriate for the following reasons. It is sound policy to accommodate
features and practices of arbitration even if familiar only to certain legal systems. This is
reasonable not merely because it would be contrary to the purpose of the model law to
disregard or even prevent established practices but because it is in harmony with the
principle of reducing the importance of the place of arbitration by recognizing types of
arbitration not normally used or known at that place. Finally, such recognition does not
entail a risk for any unwary party unfamiliar with this type of arbitration since an express
authorization by the parties is required.
9. No attempt is made in the model law to define this type of arbitration which comes in
various and often vague forms. It is submitted, however, that the parties may in their
authorization provide some certainty, to the extent desired by them, either by referring to
the kind of amiable composition developed in a particular legal system or by laying down

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 the rules or guidelines and, for example, request a fair and equitable solution within the
limits of the international public policy of their two States.
Relevance of terms of contract and trade usages
10. Article 28 does not expressly call upon the arbitral tribunal to decide in accordance
with the terms of the contract and to take into account the trade usages applicable to the
transaction. However, this does not mean that the model law would disregard or reduce
the relevance of the contract and the trade usages.
11. This is clear from the various reasons advanced during the discussion of the Working
Group against retaining such a provision. (82) As regards the reference to the terms of the
contract, it was stated, for example, that such reference did not belong in an article
dealing with the law applicable to the substance of the dispute and was not needed in a
law on arbitration, though appropriate in arbitration rules, or that such reference could be
misleading where the terms of the contract were in conflict with mandatory provisions of
law or did not express the true intent of the parties. As regards the reference to trade
usages, the concerns related primarily to the fact that their legal effect and qualification
P 790 were not uniform in all legal systems. For example, they may form part of the applicable
P 791 law, in which case they were already covered by paragraph (1) or (2) of article 28.
Finally, it was difficult to devise acceptable wording, in particular, to decide whether to
adopt the formula of the UNCITRAL Arbitration Rules (art. 33(3)) or of the 1980 Vienna Sales
Convention [U.N. Convention on Contracts for the International Sale of Goods, A/Conf.97/18
(Annex I)] (art. 9).
SUMMARY RECORD
A/CN.9/SR.326–.327, .333
[17 June 1985, 2:00 P.M., A/CN.9/SR.326]
Article 28. Rules applicable to substance of dispute
Paragraph (1)
1. Mr. BONELL (Italy) said that his delegation welcomed paragraph (1), because most
existing national laws on arbitration did not deal with the law applicable to the substance
of the dispute. That created difficulties with regard to disputes of an international
character. So far, the problem had been solved either by applying the law of the place of
arbitration or the law of the procedure selected by the parties, or by leaving it to the
arbitral tribunal to determine the rules of private international law it considered
appropriate to the case. Both solutions were unsatisfactory; the first because frequently
there was very little connection between the place of arbitration and the substance of the
dispute, and the second owing to the uncertainty to which it could give rise. In both cases
it was assumed that, just like a national court, the arbitral tribunal should settle disputes
according to the substantive law of a given State. His delegation, on the other hand,
considered that parties should be allowed to denationalize the dispute by indicating as a
basis for its settlement rules and principles of a different nature, taken for example from
international instruments, whether in force or not, widely observed trade usages and
principles or rules common to the national legal systems of both parties.
2. Mr. KIM (Observer for the Republic of Korea) proposed that the title of article 28 should
be amended to read “Rules and principles applicable to substance of dispute.” The first
sentence of paragraph (1) should correspondingly be amended to read: “The arbitral
tribunal shall decide the dispute in accordance with such rules and principles of law as are
designated by the parties.” The remainder of the first sentence and the second sentence,
which was redundant, should be deleted.
3. Mr. SZASZ (Hungary) said that paragraph (1) introduced a new approach to the choice of
applicable law. His Government would have preferred a more traditional one, but if there
was massive support for the paragraph, it would accept it. All the same, the term “rules of
law” was very imprecise and would give rise to numerous difficulties of interpretation in
P 791 national legislations. That seemed clear from the written comments on the article. He
P 792 would recommend that any country adopting the term should provide a definition of it.
He approved the second sentence of paragraph (1) for usefully making clear what the
position was about conflict of laws rules.
4. The CHAIRMAN [Mr. LOEWE (Austria)] observed that without that sentence the parties
might find that the legal system of their choice referred them unexpectedly to that of a
third State.
5. Mr. HOELLERING (United States of America) approved the existing text of the first
sentence and the idea of extending party autonomy to the step of designating the
applicable law. The time was ripe for giving parties a new and wider range of options for
the rules of law which might apply to the settlement of international commercial disputes.
His delegation also approved the second sentence of the paragraph.
6. Mr. SEKHON (India) said he felt that the present text of paragraph (1) would create
unnecessary confusion. He would prefer it to be replaced by the formulation used in article
33(1) of the UNCITRAL Arbitration Rules.
7. Mr. BOGGIANO (Observer for Argentina) said that the text of paragraph (1) should be

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 approved, on the understanding that the expression “rules of law” did not mean
exclusively the national law of a given State; the parties would thus be able to subject
their dispute to international rules and practices or international conventions as well. In
view of the broad scope of application of the model law and the wide interpretation it
gave to the word “commercial,” a large number of relationships might become subject to
arbitration. It was therefore appropriate to give parties the greatest possible autonomy,
within the limits set by the model law in respect of public policy, for subjecting complex
contractual and other relationships to rules of their choice.
8. Mr. SCHUMACHER (Federal Republic of Germany) said that in its written comments [Sixth
Secretariat Note (Government Comments),] A/CN.9/ 263, [Art. 28,] para. 3) his delegation had
already expressed its appreciation of the wide range of options offered to parties by
paragraphs (1) and (3) of article 28. In its understanding, the term “rules of law” gave
parties the possibility to choose as applicable a mixture of rules from more than one legal
system. That followed from paragraph (3), for if parties were free to agree on a decision ex
aequo et bono they must also be free to agree on the application of legal rules from
wherever they were drawn. His delegation was in favour of paragraph (1) as it stood.
9. Mr. ROEHRICH (France) said that his delegation fully approved paragraph (1). The
principle of party autonomy required that parties should be free to choose a mixture of
different legal systems, or trade usages or international conventions which had not yet
entered into force, as the rules of law appropriate for their purposes. He also approved the
prohibition of unintentional referral which the second sentence of paragraph (1) provided.
10. Mr. GRAHAM (Observer for Canada) said that he was in favour of paragraph (1) as it
stood.
11. Mr. LEBEDEV (Union of Soviet Socialist Republics) referred to his delegation's written
P 792 comments on paragraph (1) ([Sixth Secretariat Note (Government Comments),] A/CN.9/263,
P 793 [Art. 28,] para. 5) in which it expressed its desire for a more traditional approach to a
complex and controversial issue than the paragraph provided. Instead of using the very
vague concept of “rules of law,” the paragraph should refer to “law” as that term was
understood in international conventions in force and in the UNCITRAL Rules and other
similar international documents. That was the traditional approach; it had proved
effective in practice and would be understood by those applying the model law. The
expression “rules of law” was an innovation the use of which had not really been justified or
well defined by its proponents. He agreed with them that parties should have an
opportunity to select the laws not of one country but of several, a process which had begun
with the introduction into French jurisprudence of the concept known as dépeçage.
However, the use of the expression “rules of law” did not address that issue, which would
have to be solved by national conflict of laws rules and international conventions dealing
with them.
12. The proponents of change had also said that it was desirable to allow arbitrators to
settle disputes on the basis of rules designated by the parties. That would be a matter of
the terms of the contract between the parties, which could refer to model rules or model
contracts in various fields of trade. The point had also been made that parties should be
free to call for the application of trade usages. He thought it would be better to adopt
expressis verbis the approach to those questions set out in article 33(3) of the UNCITRAL
Arbitration Rules, which required the arbitrators to apply the terms of the contract and
take into account the usages of the trade. In that way the desiderata he had mentioned
would be accommodated directly and not, as in the present text, indirectly by the use of
the nebulous expression “rules of law.”
13. Mr. KADI (Algeria) supported the changes proposed by the Soviet Union representative.
He was in favour of the text of paragraph (1) in all other respects.
14. Mr. VOLKEN (Observer for Switzerland) said that he too did not care for the term “rules
of law.” The Soviet Union representative had drawn attention to the fact that its use
seemed intended to permit the process known as dépeçage. The 1980 Rome Convention on
the Law Applicable to Contractual Obligations [23 O.J. Eur. Comm. (No. L 266) (1980)] had
gone a step in that direction in that it permitted different parts of a contract to be subject
to different law, but it did that as an exception, whereas the present text of paragraph (1)
might suggest that dépeçage was the basis of the rule. With such a provision there was a
danger of allowing the contract as a whole to be split up into too many parts. For that
reason his delegation would prefer a text on the lines of article 33(1) of the UNCITRAL
Arbitration Rules.
15. Mr. OLUKOLU (Nigeria) said that his delegation had difficulty in accepting paragraph (1).
Like the representatives of India and the Soviet Union, he would advocate the adoption of
the UNCITRAL Rules on the subject.
P 793 16. Mr. DUCHEK (Austria) said that his approach was much the same as that of the
P 794 Hungarian representative. His delegation could accept the present wording of
paragraph (1) but it would not be disappointed if the paragraph mentioned the notion of
law instead of rules of law. He had nothing against permitting parties to combine laws from
more than one national legal system, but in practice such an arrangement rarely appeared
in contracts. As to international conventions, it was a matter of technique whether parties
wrote the rules concerned into their contract or made a general reference by name to the

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 relevant convention, as for example, the 1980 United Nations Convention on Contracts for
the International Sale of Goods [A/Conf.97/18 (Annex I) (Vienna)]. Although he did not share
the concerns expressed by the Soviet Union representative, he thought it was essential for
the Commission's understanding of the paragraph to be clarified in the report. The
reference in the Secretariat commentary to “rules of law” as providing the parties with a
“wider range of options” ([Seventh Secretariat Note,] A/CN.4/264, [Art. 28,] para. 4) was far
too vague to serve that purpose.
17. Mr. STROHBACH (German Democratic Republic) endorsed the views expressed by the
Soviet Union representative. He too would like the paragraph to refer to the terms of the
contract and trade usages and to employ the expression “law,” well known in the context,
instead of “rules of law.” He therefore advocated the reformulation of paragraph (1) along
the lines of the UNCITRAL Arbitration Rules.
18. Mr. GOH (Singapore) said that his delegation was happy with the existing draft, which
gave recognition to widely accepted practices. In his understanding, the terms “rules of
law” and “law” conveyed the same meaning and any distinction drawn between them was
largely a question of semantics.
19. Mr. MOELLER (Observer for Finland) said that his delegation would prefer the term “law”
to “rules of law,” since many of those in Finland who had been asked to comment on the
draft had had difficulty in understanding the latter term. However, there was not much
difference in substance or in practice between the two terms and if many delegations were
strongly in favour of the term “rules of law,” his delegation could accept it.
20. Mr. SAWADA (Japan) said that law on the one hand and a decision ex aequo et bono on
the other could be regarded as two poles between which lay something else, namely the
rules of businessmen and business associations. He agreed with the view of the Federal
Republic of Germany that the term “rules of law” should be interpreted in a broad sense to
cover that intermediate position allowing deviation from provisions of law. Although the
Soviet Union representative had indicated that the term was too nebulous, but the
classical concept of law would be too narrow. Perhaps the Commission should add to the
expression “rules of law” in paragraphs (1) and (2) the term “trade usages” to cover the
position fully.
21. Mr. ENAYAT (Observer for the Islamic Republic of Iran) said that his delegation would
like the wording of paragraphs 1 and 2 of article 33 of the UNCITRAL Rules to be used for
paragraphs (1) and (2) of article 28 of the model law. It could accept the text proposed by
the Working Group for article 28(3).
P 794
P 795
22. Mrs. DASCALOPOULOU-LIVADA (Observer for Greece) said that her delegation would be
reluctant to accept the first sentence of article 28(1) as it stood: the expression “rules of
law” left the door wide open to extravagant choices by the parties, including the
application of a combination of rules drawn from various legal systems and possibly also
from an international legal instrument which might or might not have come into force. She
favoured instead the use of article 33(1) of the UNCITRAL Arbitration Rules, which employed
the term “law.” As to the second sentence, she could accept the wording proposed by the
Working Group.
23. Mr. PELICHET (Observer, The Hague Conference on Private International Law) said that if
the expression “rules of law” permitted dépeçage or dismemberment, it would be a shame
to exclude that option by returning to the wording of the UNCITRAL Rules, since the current
trend in private international law was to permit dépeçage. Also, if “rules of law” was
understood as referring to laws not enacted by a State legislature, party autonomy would
not be restricted. The main concern was that the parties should be entirely free to choose
whatever rule they pleased for their contract.
24. Mr. PAULSSON (Observer, Chartered Institute of Arbitrators) said that in practice a
contract scarcely ever referred to several national bodies of law; however, parties often
stipulated that a particular portion of a body of law did not apply to a contract. Swiss law,
for example, was often viewed as being appropriately neutral for international contracts
but as allowing too much scope for judicially ordered set–off. Consequently, parties often
accepted Swiss law for settlement of their disputes with the exception of the provision
which established judicially ordered set–off. If the term “law” was incorporated in the text,
arbitrators might be tempted to conclude that the parties had made an inappropriate
choice.
25. Mr. RAMOS (Observer for Portugal) said that he approved the text as it stood, including
the reference to “rules of law,” which expanded the range of choice available to the
parties.
26. Mr. BROCHES (Observer, International Council for Commercial Arbitration) said that he
fully approved the text as it stood. Contracts often incorporated a reference to a law as it
was worded at a given time but stipulated that any subsequent amendments to it would
not necessarily apply to the contract.
27. Mr. MTANGO (United Republic of Tanzania) suggested that the problem facing the
Commission might be overcome if the text read “law and/or rules of law.”

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 28. Mr. ROEHRICH (France) said that the important point was that the parties must have the
right to choose for the settlement of their dispute a set of provisions which was not
necessarily contained in an enacted law and would enable the arbitrators to decide the
dispute as flexibly as possible. Above all, parties wished to be certain that it would be
settled on the basis of known considerations, which might be trade usage, the provisions of
a convention which had not yet entered into force or the legislation of a third country.
P 795
P 796
29. Mr. BONELL (Italy) said that, at present, parties who entered into an arbitral agreement
had only two choices: to ask either that the decision be based on law or that it be made ex
aequo et bono. Article 28(1) was intended to show that there were other options: the
application, for example, of the rules of law of any given country or of the provisions of a
convention which had not yet entered into force. If the Commission reverted to the
traditional term “law,” it would miss a marvellous opportunity to assist parties in
overcoming the many difficulties that they encountered precisely because the current
system offered them only two options.
30. Mr. SZASZ (Hungary) said that international commercial arbitration had evolved in such
a way that parties were now able to choose the law of any State for application to their
disputes. They were also free to supplement non–mandatory provisions of law in
accordance with their declared or presumed will, and some States now permitted the
situation that, if parties did not make an express choice, a decision need not be made ex
aequo et bono and another type of procedure could be applied. The model law must allow
parties to use, as the applicable law, the provisions of conventions which had not yet
entered into force. Mentioning dépeçage in article 28(1) would not leave them as free as
did the term “rules of law,” which was much broader. The traditional approach, that of
using the word “law,” would also enable parties to choose separate rules for certain
obligations.
31. Mr. VOLKEN (Observer for Switzerland) said that a reference to dépeçage, which had
been widely acknowledged to be an acceptable practice, should be included in the text of
the article.
32. Mr. BONELL (Italy) said that his delegation could not accept that.
33. The CHAIRMAN said that although the Commission still seemed to be divided as to how
to deal with paragraph (1), considerable support had been expressed for the idea that the
reference to “rules of law” should be replaced by a reference to “law” and that the latter
notion should be interpreted in a broader sense than previously in the light of
developments in international commercial arbitration practice. It also seemed to be a
widely held view that the paragraph should at least contemplate allowing the parties to
engage in the process known as dépeçage, in other words, the specification of different
rules as being applicable to different parts of the contract.
34. Accordingly, if he heard no objection, he would take it that the Commission wished to
replace the words “rules of law” by the word “law” in the first sentence of paragraph (1); to
refer the paragraph to the drafting committee with a view to the incorporation in it of
wording which reflected the notion of dépeçage; and to explain in the report that the term
“law” should be understood in a broader sense than previously.
35. It was so agreed.
36. Mr. TORNARITIS (Cyprus) said that the decision to use the word “law” instead of the
P 796 words “rules of law” in paragraph (1) was consistent with paragraph (2), where the term
P 797 “law” was also used. The difficulty that the Commission had experienced arose partly
from the fact that the English language had only one word for the two notions expressed in
French as “droit” and “loi.” He saw paragraph (1) in terms of principles of law rather than
rules of law. Thus, paragraph (1) would give the parties liberty to adopt any principles of
law that they chose, and failing any designation by them, the law applicable would be that
referred to in paragraph (2).
Paragraph (2)
37. Mr. BONELL (Italy) withdrew the amendment proposed by his delegation in its written
comments ([Sixth Secretariat Note (Government Comments),] A/CN.9/263, [Art. 28,] para. 7).
38. Mr. SAWADA (Japan) said that paragraph (2), in referring to conflict of laws rules,
conformed to article 33(1) of the UNCITRAL Arbitration Rules. However, he favoured
removal of the reference to the conflict rules for two reasons: (1) it would be simpler
directly to designate a substantive law; (2) the conflict rules would point only to the
“narrow” law and that would not accord with the decision just taken to give a wide meaning
to the term “law” in the first paragraph.
39. Mr. SCHUMACHER (Federal Republic of Germany) said that in its written comments his
delegation had expressed reservations in regard to paragraph (2) but was now prepared to
allow more discretion to the arbitrators than it had earlier thought desirable. It therefore
withdrew its objection to the paragraph, which was in conformity with the 1961 European
Convention [on International Commercial Arbitration, 484 U.N.T.S. 349 (Geneva)], the ICC
rules and the UNCITRAL Arbitration Rules.
40. Mr. HOELLERING (United States of America) said that his delegaton had reached the

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 conclusion that the conflict of laws provision should be deleted in order to provide for a
more flexible and modern approach to the international commercial arbitration process.
In that connection, it agreed with the written comments of Sweden ([Sixth Secretariat Note
(Government Comments)], A/CN.9/263, [Art. 28,] para. 2) and ICC ([Id.,] A/CN.9/263/Add.1
(article 28), [ … ] para. 1).
41. His delegation strongly recommended that paragraph (3) or some other part of the
article should contain a reference to the terms of the contract and to trade usages. That
language had been deleted from the draft text by the Working Group on International
Contract Practices at its sixth session ([Fourth Working Group Report,] A/CN.9/245, para. 99).
However, it was to be found in article 33(3) of the UNCITRAL Rules and had been adopted
and recommended by the General Assembly as being acceptable to countries with
different legal systems. It was also to be found in article VII(1) of the 1961 European
Convention.
42. Mr. STROHBACH (German Democratic Republic) said that paragraph (2) should remain
as it was, as being in harmony with the 1961 European Convention.
P 797 43. Mr. BOGGIANO (Observer for Argentina) said that he was in favour of deleting the
P 798 reference to the conflict of laws rules. Its removal would allow a wider interpretation of
the word “law,” which would then be consistent with its use in paragraph (1). His delegation
would agree to the deletion on the understanding that the arbitrators could apply a
conflict of laws rule if they deemed it necessary but could also use more direct means to
find the appropriate law.
44. Mr. ROEHRICH (France) said that one reason for deleting the reference to conflict of
laws rules was that it was counter to the modern trend in international commercial
arbitration practice.
45. Mrs. RATIB (Egypt) said that her delegation was in favour of paragraph (2) as it stood. A
point to bear in mind was that under article 1(2)(c) the parties to a dispute could expressly
agree that the subject–matter of the arbitration agreement related to more than one
country; in other words, two nationals of the same country could agree that the subject–
matter of the arbitration was of an international character. The arbitration process would
then take place in the territory of the two nationals but the arbitrators would be free to
decide to apply the law of a different territory. She doubted whether that was advisable.
46. Mr. LOEFMARCK (Sweden) said that in its written comments on the article as a whole
([Sixth Secretariat Note (Government Comments),] A/CN.9/263, [Art. 28,] para. 2) his
delegation had suggested that the article as it stood reflected a rather traditional view of
the question, and that if it was adopted, there might be a risk of impeding the trend
towards a freer judgement of the question of choice of law. His delegation was therefore in
favour of deleting the reference in paragraph (2) to conflict of laws rules.
47. Mr. SZASZ (Hungary) said that his delegation was in favour of leaving the text as it stood
because it was concerned about the relationship between paragraphs (1) and (2). If the
term “law” was going to be taken as encompassing things that were not actually law, it
would be difficult to be sure of the meaning of paragraph (2), and would lead to giving it
equal status with paragraph (1) as far as the question of law was concerned. However, his
delegation would not object strongly to the proposed deletion because there was certainly
a trend in international trade law of the kind described by the Swedish representative.
48. Mr. GRIFFITH (Australia) said that his delegation was in favour of deleting the reference
to conflict of laws rules. It considered the relationship between paragraphs (1) and (2) to be
sufficiently well established.
49. Mr. BONELL (Italy) said that his delegaton also supported the Japanese proposal. The
term “law” as used in paragraph (1) was to be explained in the report. As far as its use in
paragraph (2) was concerned, it should be understood that national legislatures should
adopt a consistent approach to the two paragraphs when transferring the model law to
their own legislation.
50. Mr. SAMI (Iraq) said that the deletion of the reference to the rules of conflict of laws
would make paragraph (2) consistent with paragraph (1).
51. Mr. TANG Houzhi (China) said that he was in favour of leaving both paragraphs as they
P 798 stood. His delegation opposed the suggestion to delete the reference to conflict of laws
P 799 rules from paragraph (2) because it believed that without it the arbitral tribunal would
be likely in most cases to apply the law of the place of arbitration. Furthermore, the
UNCITRAL Rules used that wording.
52. Mr. MATHANJUKI (Kenya) said that his delegation too felt some apprehension about the
deletion, since it would give too much power to the arbitral tribunal, particularly when two
parties coming from two different legal systems were involved in the dispute. The arbitral
tribunal ought to have to take into account the law most closely connected with the
performance of the contract.
53. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that paragraph (2) should be left
as it stood. It represented a well–known compromise that had been achieved in 1961
during the preparation of the European Convention. The aim of the compromise was to
establish certainty and predictability in the arbitrators' choice of the applicable law. They

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 would be required to choose one system at the outset of the conflict, on the basis of which
they would determine the applicable law. The deletion of the reference to conflict of laws
rules would grant the arbitrators absolute freedom in the choice of the applicable law and
would constitute a precedent that would be unacceptable to many countries. His
delegation considered, therefore, that acceptance of the text proposed by the Working
Group was the best course.
54. Mr. GRAHAM (Observer for Canada) said that he favoured the idea of deleting the
reference to conflict of laws rules, for the reasons expressed by previous speakers.
55. Mr. DUCHEK (Austria) said it was true that, in matters of international commercial
arbitration, predictability was an important criterion. He was not certain, however, that it
would be satisfied any more easily with the existing text than with the wording which
would result from the deletion. Conflict of laws rules were themselves very flexible and
could well allow resort to the law most closely connected with the subject of the dispute.
As it stood, the paragraph could create a situation in which the parties might well be
surprised by the ultimate ruling as to which law would apply. If they had foreseen such a
possibility, they might have come closer to agreeing between themselves on the choice of
law. It was important, therefore, for the arbitrators to inform the parties as soon as
possible what set of rules their decision would be based on.
56. His delegation therefore considered that, while keeping the reference to conflict of
laws rules would not greatly affect the situation, its deletion would make the relationship
between paragraph (2) and paragraph (1) awkward. The word “law” used in paragraph (1)
could, in the interest of party autonomy, be interpreted as including conventions not yet in
force. The situation in paragraph (2) was different, in that “law” would mean existing
national law. It might therefore be advisable for the Commission to reconsider its decision
to replace the words “rules of law” in paragraph (1) by the word “law” if its intention was to
restrict paragraph (2) to law in the sense of a national set of rules. If that was done, his
delegation would be able to agree to the deletion of the reference to conflict of laws rules.
P 799
P 800
[17 June 1985, 7:00 p.m., A/CN.9/SR.327]
Article 28. Rules applicable to substance of dispute (continued)
1. Mr. KIM (Observer for the Republic of Korea) saw no need to include the phrase “conflict
of laws” but proposed, as a compromise, to insert after the words “conflict of laws rules”
the additional wording: “and/or the general rules and principles of private international
law.” He further proposed an additional clause to the effect that in cases where the parties
agreed, or the tribunal deemed it necessary, the tribunal could apply any established
custom or usage of international trade.
2. The CHAIRMAN [Mr. LOEWE (Austria)] said that that proposal would involve the
reconsideration of article 28(1), since it would give wider powers to the arbitrators than to
the parties, thereby reversing the present position.
3. Mr. TANG Houzhi (China) suggested that the deletion of the words “conflict of laws” might
lead to a situation where courts in developing countries were excluded. Where the parties
designated in their agreement a third country as the place of arbitration but failed to state
which law applied, then it was likely that the law of that third country would apply,
because it would be considered that such was the intention of the parties. However, if the
reference to conflict of laws rules was retained, the arbitral tribunal would use those rules
in determining which law to apply and where one of the parties was from a developing
country, the law of that country might thus be considered as the applicable law. That
possibility of applying the law of a developing country should not be excluded.
4. He felt that consistency between paragraphs (1) and (2) was not the most important
consideration. To avoid discrepancy, it would in any case be better to retain the text as
drafted by the Working Group.
5. Mr. SEKHON (India) said that he preferred article 28(1) to be formulated as in article 33 of
the UNCITRAL Arbitration Rules. His delegation also now felt that article 28(2) should be
retained as it stood, since deletion of the reference to “conflict of laws” would give the
arbitral tribunal too wide a discretion. It would be prudent to retain some degree of
regulation.
6. Mr. VOLKEN (Observer for Switzerland) favoured deleting the words “conflict of laws”
because they contributed little to the powers of the tribunal. In any event, an arbitral
tribunal would have to justify its choice of applicable law. Under article 28(2) as drafted, it
would in addition have to justify its choice of conflict of laws rules, so that two
justifications would be required. He also feared that the choice of conflict of laws rules,
and the justification of that choice, would be influenced by the result desired. Deletion of
the reference to conflict of laws did not exclude choice by the arbitrators and was
therefore the better solution.
7. Mr. MTANGO (United Republic of Tanzania) thought that article 28(2) should be retained
as it stood.
P 800 8. Mr. BONELL (Italy) recalled that the Commission, despite divided opinion, had accepted
P 801 change (the replacement of “rules of law” by “law”) in paragraph (1); to be consistent, it

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 P 801
should now accept the proposed change in paragraph (2) (the deletion of “conflict of laws”),
on which opinion was also divided. Since that would be unsatisfactory, he proposed, as a
compromise, that the decision relating to paragraph (1) should be reversed and that both
paragraphs (1) and (2) should be retained as drafted.
9. The CHAIRMAN said that paragraph (1) had already been decided. The difficulty in the
case of paragraph (2) was that without the reference to conflict of laws, it would no longer
be in harmony with paragraph (1). Moreover, opinions on that point were equally divided.
10. Mr. JOKO-SMART (Sierra Leone) suggested that paragraphs (1) and (2) should be taken
together. Once the parties had chosen the law to be applied, that law would include both
substantive law and conflict of laws rules. There would therefore be no need to attempt to
distinguish them.
11. Mr. MOELLER (Observer for Finland) said it was clear that the arbitrators must use some
rules to determine the applicable law and he supported the proposal by the
representative of Italy.
12. Mr. RUZICKA (Czechoslovakia) said his delegation supported the text as it stood. With
reference to the comments by the Observer for Switzerland, he stressed that the arbitral
tribunal should pay main attention to the contract and should therefore deal with the
conflict of laws rules first.
13. Mr. KADI (Algeria) favoured the retention of article 28(2) as it stood.
14. Mr. MOURA RAMOS (Observer for Portugal) favoured keeping article 28(2) as drafted.
With regard to the problem raised by the Observer for Switzerland, he felt that, once the
choice of conflict of laws rules had been justified, no further justificaton would be required.
Moreover, if the phrase “conflict of laws” were deleted, it would allow the arbitrators to
choose any substantive law they wished, and that would give them far too great a latitude.
15. Mr. LAVINA (Philippines) favoured retaining paragraph (2) as it stood for the reasons
given by several representatives, including those of the Soviet Union, China and Japan. He
also felt that consistency between paragraphs (1) and (2) was required and that it would
therefore be better to retain the words “rules of law” in paragraph (1). As a matter of
procedure, where there was equally divided opinion, the draft as prepared by the Working
Group should be retained.
16. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that article 28 was in effect no
more than a guideline, since there were no sanctions in the model law for failure to
observe its provisions. There was, for example, no possibility of setting aside the arbitral
decision under article 34 if the arbitrators did not apply the applicable law. A guideline
might be useful if its content had been agreed, but the fact was that the Commission could
not agree on what was to be included in the article and it might therefore be better to take
a more radical approach and delete, both paragraphs altogether.
17. Mr. ROEHRICH (France) said that a law on international commercial arbitration could
P 801 not remain silent on the choice of law governing the arbitration. He agreed with the
P 802 comments of the representative of the Philippines. Lastly, with regard to the choice of
rules for arbitration, it was reasonable that the parties should have greater freedom than
the arbitral tribunal.
18. Mr. LOEFMARCK (Sweden) said that he agreed with the representative of the Soviet
Union and felt that at least the first sentence of paragraph (1) and of paragraph (2) should
be deleted. His delegation could, however, also accept the text of the two paragraphs as
drafted by the Working Group.
19. Mr. GRIFFITH (Australia) said that, looking at article 28 as a whole, it would be better for
the Commission to retain the text as drafted by the Working Group. Where there was not
clear support for a change, it was appropriate to retain the text drafted by the Working
Group.
20. Mr. MTANGO (United Republic of Tanzania) proposed the inclusion of both the
alternative wordings for paragraph (1), leaving it to individual States to select whichever
they felt appropriate. It would then be possible to retain paragraph (2) as it stood.
21. Mr. HOELLERING (United States of America) opposed the deletion of paragraphs (1) and
(2). The two paragraphs were interrelated and had been discussed at length in the Working
Group, which had reached a consensus on the drafting of the text. A reasonable solution,
therefore, would be to accept the text as it stood. He did not favour leaving options open,
as the role of the Commission was to give guidelines.
22. Mr. JOKO-SMART (Sierra Leone) agreed with the representatives of the United States
and France that article 28 could not be omitted from the model law. He could accept the
text as it stood.
23. Mr. HOELLERING (United States of America) proposed the insertion of a new paragraph
(3) to provide that the arbitral tribunal should decide in accordance with the terms of the
contract and take account of the usages of the trade applicable to the transaction, in line
with article 33(3), of the UNCITRAL Arbitration Rules.
24. Mrs. VILUS (Yugoslavia) supported the United States proposal, although with
reservations regarding the inclusion of the reference to terms of contract and the use of the

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 wording “take into account.”
25. Mr. BONELL (Italy) withdrew the Italian written proposal for an addition to the present
article 28(3) ([Sixth Secretariat Note (Government Comments),] A/CN.9/263, [Art. 28,] para.
11).
26. Mr. BROCHES (International Council for Commercial Arbitration) suggested that the
terms amiable compositeur and ex aequo et bono should be described as equivalents (for
instance by using amiable compositeu[r] in the French text followed by ex aequo et bono in
brackets, and dealing similarly with the English text) to avoid their being possibly
interpreted as involving different procedures.
P 802 27. The CHAIRMAN thought that was a drafting point. He hoped that the proposal to include
P 803 a new paragraph (3) relating to usages would adopt the wording of article 33(3) of the
UNCITRAL Arbitration Rules, in order to avoid a lengthy drafting discussion.
28. Mr. MTANGO (United Republic of Tanzania) supported the suggestion that the proposed
new article 28(3) should conform to article 33(3) of the UNCITRAL Arbitration Rules.
29. Mr. AYLING (United Kingdom) said it was essential to introduce the rule proposed by the
United States representative, which was similar to the one in the UNCITRAL Arbitration
Rules, since the pre–eminent obligation of the arbitral tribunal was to determine the
matter in dispute by applying the terms of the contract. His delegation therefore strongly
supported the United States proposal.
30. Mr. PELICHET (Observer, The Hague Conference on Private International Law) said there
was a contradiction between article 28 and article 2(c) [Art. 2(d) in the final text], which
permitted parties, when allowed to do so by “this Law,” to decide on such matters as giving
decision–making authority to a third party or institution. First, it was certainly not the
intention of the Working Group to allow a body such as the International Chamber of
Commerce to decide on which law to apply to a substantive dispute. Secondly, even if the
parties allowed the arbitrators to do so, that would conflict with the provisions of article
28, whereunder the arbitral tribunal was bound to decide the dispute in accordance with
the law chosen by the parties. If the two provisions remained as they stood, the arbitrators
would not know whether they had freedom of choice or were bound instead by article 28.
His organization had therefore proposed the inclusion in article 2(c) of a reservation
concerning article 28 ([Sixth Secretariat Note (Government Comments),] A/CN.9/263/Add.1,
[Art. 2,] para. 2 in fine) [appearing in the section on Article 2, pp. 168–69 supra].
31. Mr. VOLKEN (Observer for Switzerland) said he agreed with the Observer for The Hague
Conference. Article 2(c) was intended to deal with technical aspects and not with choice of
the applicable substantive law.
32. Mr. BOGGIANO (Observer for Argentina) supported the view expressed by the Observer
for The Hague Conference.
33. Mr. AYLING (United Kingdom) said that he could not accept the proposition that a
dispute concerning the applicable law was not capable of being determined by an arbitral
tribunal, since it was no different from any other dispute.
34. Mr. ROEHRICH (France) said that the provisions of article 2(c) related only to the
functional matters involved in the constitution of an arbitral tribunal. They did not extend
to the substantive matters referred to in article 28(2).
35. Mr. MATHANJUKI (Kenya) was opposed, at that late stage, to reopening discussion of the
definitions contained in article 2(c).
36. Mr. STROHBACH (German Democratic Republic) said that a solution would be to state in
article 2(c), where, in the model law, the parties were free to decide certain issues.
P 803
P 804
37. The CHAIRMAN suggested that that was a drafting problem and invited the Observer for
The Hague Conference and the representative of the German Democratic Republic to
submit a draft for consideration by the Commission.
38. With regard to article 28 as a whole, the feeling of the Commission appeared to be that
paragraph (1), contrary to the earlier ruling, should be retained as drafted by the Working
Group, that paragraph (2) should remain as drafted by the Working Group, that a new
paragraph (3), corresponding to article 33(3) of the UNCITRAL Arbitration Rules, should be
inserted and that the former paragraph (3) should be renumbered paragraph (4).
39. It was so agreed.
[21 June 1985, 10:00 a.m., A/CN.9/SR.333]
Article 28 [as revised by the Drafting Group]
6. Mr. GRIFFITH (Australia) said that the Commission had decided to include in article 28 a
provision modelled on article 33(3) of the UNCITRAL Arbitration Rules,
(A/CN.9/XVIII/CRP.2/Add.15, paragraph 11 (*) ). However, the text of that rule had been
reproduced in article 28, paragraph (4). As a result, the word “contract” had been used for
the first time in the model law. In conformity with the general approach in that document,
he thought that an expression such as “agreement between the parties” would be more

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 appropriate.
7. Mr. HERRMANN (International Trade Law Branch) said that article 28(4) was not the first
time that the word “contract” had been used. It appeared in article 16(1). The expression
“agreement between the parties” was frequently used in the model law in connection with
the arbitration agreement and not with the main contract on substance. It would therefore
not be an appropriate substitute for the word “contract.”
8. Mr. GRIFFITH (Australia) withdrew his proposal.
9. Article 28 was adopted.
COMMISSION REPORT
A/40/17 (21 AUGUST 1985)
Article 28. Rules applicable to substance of dispute
231. The text of article 28 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
Paragraphs (1) and (2)
P 804 232. In the discussion on paragraph (1), the Commission was divided on the question
P 805 whether the model law should recognize the right of the parties to subject their legal
relationship to “rules of law.” Under one view, the model law should recognize that right of
the parties since it was not appropriate in international commercial arbitration to limit
the freedom of the parties to choosing the law of a given State. While recognizing the novel
and imprecise character of the term “rules of law,” which to date had been adopted only in
one international convention and two national laws, it was stated in support that it would
provide the necessary flexibility to allow parties in international commercial transactions
to subject their relationship to those rules of law which they regarded as the most suitable
ones for their specific case. It would enable them, for example, to choose provisions of
different laws to govern different parts of their relationship, or to select the law of a given
State except for certain provisions, or to choose the rules embodied in a convention or
similar legal text elaborated on the international level, even if not yet in force or not in
force in any State connected with the parties or their transaction. It was pointed out that,
as regards any interest of the State where the arbitration took place, to recognize such
freedom was not essentially different from allowing the designation of the law of a State
which was in no way connected with the parties or their relationship. Furthermore, since
article 28(3) permitted the parties to authorize the arbitral tribunal to decide ex aequo et
bono (as amiable compositeur), there was no reason to deny the parties the right to agree
on rules of law which offered more certainty than the rules to be applied in an ex aequo et
bono arbitration.
233. Under another view, article 28(1) should limit itself to providing that a dispute shall be
decided in accordance with the law chosen by the parties. That was in line with the
solution adopted in many international texts on arbitration (e.g., 1961 Geneva Convention,
1966 ECAFE Rules for International Commercial Arbitration and Standards for Conciliation,
1976 UNCITRAL Arbitration Rules, 1975 ICC Rules). That traditional approach provided a
greater degree of certainty than the novel and ambiguous notion of “rules of law,” which
might cause considerable difficulties in practice. It was not appropriate for a model law
designed for universal application to introduce a concept which was not known in, and
unlikely to be accepted by, many States. Furthermore, it was stated that the right to select
provisions of different laws for different parts of the relationship (the so–called dépeçage)
was recognized by most legal systems even under the more traditional approach; if there
was a need for clarification on that point the report should express the understanding of
the Commission that such a right was included in the freedom of the parties to designate
the law applicable to the substance of the dispute.
234. In the light of that discussion the Commission decided to amend the first sentence of
paragraph (1) to read as follows: “The arbitral tribunal shall decide the dispute in
accordance with the law chosen by the parties as applicable to the substance of the
dispute.” (*) It was agreed that the formulation would allow parties to designate portions of
the legal systems from different States to govern different aspects of their relationship. It
was also agreed to state in the report that States when enacting the model law were free to
give the term “law” a wider interpretation. It was understood that parties might agree in
their contracts to apply rules such as those in international conventions not yet in force.
P 805
P 806
235. As regards the second sentence of paragraph (1), it was agreed that the rule of
interpretation of the parties' designation of the law of a given State was useful in that it
made clear that, unless otherwise expressed in such agreement, the dispute was to be
decided in accordance with the substantive law of that State and not by the substantive
law as determined by the conflict of laws rules of that State.
236. In the subsequent discussion on paragraph (2), views were divided as to whether the
arbitral tribunal should be required to apply conflict of laws rules which it considered
applicable in order to determine the substantive law to be applied or whether it could
directly determine the applicable law it considered appropriate in the particular case.

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 Under one view, the model law should provide guidance to the arbitral tribunal by
providing that the applicable law was to be determined by a decision on the applicable
conflict of laws rules. It was noted that, although a court, under the model law and most
national laws, could not review the decision of the arbitral tribunal on the conflict of laws
rules and consequently on the applicable substantive law, a desirable effect of the rule
contained in paragraph (2) was that the arbitral tribunal would be expected to give
reasons for its decision on the choice of the conflict of laws rule. Furthermore, that
approach would provide the parties with a greater degree of predictability or certainty
than the approach of allowing the arbitral tribunal to determine directly the law
applicable to the substance of the dispute.
237. Under another view, it was not appropriate to limit the power of the arbitral tribunal
to decide on the law applicable to the substance of the dispute by requiring it to decide
first on an existing conflict of laws rule. In practice an arbitral tribunal did not necessarily
first decide on conflict of laws rules but often arrived at a decision on substantive law by
more direct means. It was suggested that it would not be appropriate for a model law on
international commercial arbitration to disregard such practices which developed on the
basis of a broad scope of party autonomy recognized in many legal systems. Furthermore,
it was doubtful whether the requirement of applying first a conflict of laws rule would, in
fact, provide a higher degree of certainty than a direct determination of the governing law
since, on the one hand, the conflict of laws rules often differed from one legal system to
another and since, on the other hand, the reasons which led the arbitral tribunal to select
the appropriate applicable law were often similar to the connecting factors used in
conflict of laws rules. It was also pointed out that the freedom of the arbitral tribunal
under paragraph (2) should not be narrower than the one accorded to the parties under
pargraph (1).
238. In view of the division of views on paragraphs (1) and (2), it was suggested that article
28 might be deleted since it was not necessary for a law on arbitral procedure to deal with
the law relative to the substance of the dispute. Moreover, since the model law did not
provide for court review of an award on the ground of wrong application of article 28, it
P 806 served as little more than a guideline for the arbitral tribunal. However, there was wide
P 807 support in the Commission for retaining article 28. It was pointed out that the model
law would be incomplete without a provision on rules applicable to the substance of
disputes, particularly in view of the fact that the model law dealt with international
commercial arbitration where a lack of rules on that issue would give rise to uncertainty.
239. The Commission, after deliberation, decided to reverse its previous decision in
respect of paragraph (1) and to adopt the original texts of paragraphs (1) and (2).
Paragraph (3)
240. The Commission adopted the text of paragraph (3).
New paragraph to be added to article 28
241. The Commission decided to include in article 28 a provision modelled on article 33(3)
of the UNCITRAL Arbitration Rules as follows: “In all cases, the arbitral tribunal shall decide
in accordance with the terms of the contract and shall take into account the usages of the
trade applicable to the transaction.”
Freedom to authorize third person to determine applicable law
242. The Commission recalled a suggestion made in the context of article 2(c) that the
freedom of the parties to authorize a third person to determine a certain issue did not
extend to the determination of the rules of law applicable to the substance of the dispute
(see above, para. 40 [appearing in the section on Article 2, p. 181 supra]). It was agreed to
make clear that article 2(c) did not apply to article 28.
P 807

References
1) The problem is a bit more complicated in federal systems, because each state,
province, canton, or district may well have differing provisions of both substantive law
and conflicts rules. Still, a federal rule for choosing among those provisions will
frequently apply.

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 2) See Y. Derains, Possible Conflict of Laws Rules and the Rules Applicable to the
Substance of the Dispute, in UNCITRAL's Project for a Model Law on International
Commercial Arbitration 169, 174 (ICCA Congress Series No. 2, P. Sanders ed. 1984). This
author notes only two recent laws that address the topic, and each of these provides a
special regime designed for international arbitration. Id. These are the French Code of
Civil Procedure of 1981, in its Article 1496, and the Djiboutian Code on international
arbitration adopted in 1984, in its Article 12.
The French provision states (in translation): “The arbitrator shall decide the dispute
according to the rules of law chosen by the parties; in the absence of such a choice, he
shall decide according to the rules he deems appropriate. In all cases he shall take
into account trade usages.” Id. The Djiboutian provision is essentially to the same
effect. Id.
3) See id.
4) E.g., European Convention on International Commercial Arbitration, Art. VII, 484
U.N.T.S. 349 (Geneva 1961); Convention on the Settlement of Investment Disputes
between States and Nationals of Other States, Art. 42, 575 U.N.T.S. 159 (Washington
1965).
5) E.g., UNCITRAL Arbitration Rules, Art. 33 (1976); ICC Rules of Arbitration, Art. 13(3) (1988);
Rules of the London Court of International Arbitration, Art. 13.1(a) (1985).
6) A/40/17, para. 238, pp. 806–07 infra.
7) The Secretariat noted that this approach was “at present widely but not yet uniformly
accepted.” Seventh Secretariat Note, A/CN.9/264, Art. 28, para. 3, p. 789 infra.
8) See Commission Report, A/40/17, para. 232, pp. 804–05 infra.
9) A/CN.9/WG.II/WP.38, Art. 31(1), p. 778 infra.
10) “It was felt that the designation of an international convention or uniform law which
was not yet in force in any State would cause difficulties in determining the
relationship between the text and the other national law applicable to the substance
of the dispute.” Second Working Group Report, A/CN.9/232, para. 162, p. 779 infra. As
noted below, though, the view of those who prevailed on these issues in the
Commission appears to have been that the text finally adopted would permit choosing
legal texts not yet in force.
11) Id.
12) Fourth Working Group Report, A/CN.9/245, para. 94, p. 781 infra.
13) Id.
14) Commission Report, A/40/17, para. 233, p. 805 infra; see, e.g., Sixth Secretariat Note
(Government Comments), A/CN.9/263, Art. 28, paras. 5, 6, p. 785 infra; Summary Record,
A/CN.9/SR.326, paras. 11–17, 19, pp. 792–94 infra.
15) See Summary Record, A/CN.9/SR.326, paras. 14, 22, pp. 793, 795 infra.
16) See Commission Report, A/40/17, para. 233, p. 805 infra; cf. Summary Record,
A/CN.9/SR.326, paras. 16, 24, pp. 793–95 infra (suggesting that dépeçage is rarely used in
practice).
17) See Summary Record, A/CN.9/SR.326, para. 16, pp. 793–94 infra; see also Second
Working Group Report, A/CN.9/232, para. 162, p. 779 infra.
18) See Commission Report, A/40/17, para. 234, p. 805 infra.
19) See Summary Record, A/CN.9/SR.327, paras. 9, 15, 18, 19, 21, 38, pp. 801–04 infra.
20) Commission Report, A/40/17, para. 232, pp. 804–05 infra.
21) Summary Record, A/CN.9/SR.326, para. 24, p. 795 infra.
22) Id. para. 26, p. 795 infra.
23) Commission Report, A/40/17, para. 232, pp. 804–05 infra.
24) Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 28, para. 4, pp. 784–
85 infra.
25) Summary Record, A/CN.9/SR.326, para. 20, p. 794 infra; see also Sixth Secretariat Note
(Government Comments), A/CN.9/263, para. 3 (“businessmen often want a decision …
based on practical economic factors”), p. 784 infra.
26) Fourth Working Group Report, A/CN.9/245, para. 94, p. 781 infra.
27) See Commission Report, A/40/17, para. 232, pp. 804–05 infra; Summary Record,
A/CN.9/SR.326, paras. 8, 12, 29, pp. 792, 793, 796 infra.
28) Commission Report, A/40/17, para. 174, appearing in the section on Article 19, p. 590
supra; Summary Record, A/CN.9/SR.316, para. 70, appearing in the same section, p. 587
supra.
29) See, e.g., Fourth Working Group Report, A/CN.9/245, para. 96, p. 782 infra; Summary
Record, A/CN.9/SR.326, paras. 49, 50, p. 798 infra; id. A/CN.9/SR.327, paras. 8, 15, pp.
800–01 infra; Commission Report, A/40/17, para. 237, p. 806 infra.
30) Fourth Working Group Report, A/CN.9/245, para. 96, p. 782 infra.
31) See id.; Commission Report, A/40/17, para. 237, p. 806 infra; Summary Record,
A/CN.9/SR.326, paras. 46–47, p. 798 infra; see also Y. Derains, supran. 2, pp. 176–79, 185–
89, 192–93.
32) See, e.g., Fourth Working Group Report, A/CN.9/245, para. 97, p. 782 infra; Summary
Record, A/CN.9/SR.327, para. 5, p. 800 infra.
33) See Commission Report, A/40/17, para. 236, p. 806 infra; Summary Record,
A/CN.9/SR.326, para. 53, p. 799 infra.
34) See Fourth Working Group Report, A/CN.9/245, para. 97, p. 782 infra; Commission
Report, A/40/17, para. 239, p. 807 infra.

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 35) Fourth Working Group Report, A/CN.9/245, para. 97, p. 782 infra.
36) See Commission Report, A/40/17, para. 237, p. 806 infra; Second Working Group Report,
A/CN.9/232, para. 163, p. 780 infra. Cf. Y. Derains, supran. 2, p. 192. The author of the
last–cited work suggests that the requirement that the arbitral tribunal refer to
“conflict of laws rules” is merely a requirement that the tribunal indicate the reasons
for its choice, because it does not require reference to a “conflict system” of any given
State, but merely to “rules.” In view of the Working Group's evident belief that
paragraph 2 as drafted provided to the arbitral tribunal a narrower “scope” than
paragraph 1 did to the parties, see, e.g., Fourth Working Group Report, A/CN.9/245,
para. 97, p. 782 infra, one may question whether this suggestion reflects the intent of
the drafters.
37) See Second Working Group Report, A/CN.9/232, para. 169, p. 780 infra; Seventh
Secretariat Note, A/CN.9/264, para. 7, p. 790 infra.
38) Seventh Secretariat Note, A/CN.9/264, Art. 28, para. 8, p. 790 infra.
39) See First Secretariat Note, A/CN.9/207, para. 90, p. 774 infra. The Working Group at first
specifically decided not to apply such a provision to amiable composition, noting that
this seemed consistent with an earlier decision not to define the mandate of an
amiable compositeur. See First Working Group Report, A/CN.9/216, para. 93, p. 777 infra.
The decision was reversed by the Commission when it added paragraph 4 of Article 28.
Commission Report, A/40/17, para. 241, p. 807 infra.
40) See First Working Group Report, A/CN.9/216, para. 86, p. 776 infra.
41) First Secretariat Note, A/CN.9/207, para. 90, p. 774 infra.
42) See First Working Group Report, A/CN.9/216, para. 86, p. 776 infra.
43) First Draft, A/CN.9/WG.II/WP.36, Art. 31(3), p. 778 infra. The use of square brackets in the
draft indicates wording that was offered as an alternative or that was otherwise still
under consideration. The Vienna Sales Convention may be found at A/Conf.97/18
(Annex I).
44) Second Working Group Report, A/CN.9/232, para. 166, p. 780 infra.
45) Fourth Working Group Report, A/CN.9/245, para. 99, p. 782 infra.
46) Id.
47) Commission Report, A/40/17, para. 241, p. 807 infra.
48) Article 33(3) of the UNCITRAL Rules and Article VII(1) of the European Convention, 484
U.N.T.S. 349 (Geneva 1961). See Summary Record, A/CN.9/SR.326, para. 41, p. 797 infra.
49) Sixth Secretariat Note, (Government Comments), A/CN.9/263, Art. 28, para. 12, pp. 786–
87 infra, quoting P. Sanders, Model Rules for International Commercial Arbitration:
UNCITRAL Arbitration Rules, Proceedings of the Fifth International Arbitration Congress,
New Delhi 1975, Part C, p. C Ia 13.
*) [Editors' Note: Para. 3 of this document refers to a consultative meeting held at Paris on
7–8 September 1978 attended by representatives of the UNCITRAL Secretariat and of the
secretariat of the Asian–African Legal Consultative Committee, and members of the
International Council for Commercial Arbitration and of the Commission on International
Arbitration of the International Chamber of Commerce.]
20) Discussion and conclusions of the Working Group in [First Working Group Report,]
A/CN.9/216, paras. 84–94.
21) This sentence is modelled on article 33(1) of the UNCITRAL Arbitration Rules.
22) The sentence in parenthesis reflects a suggestion set forth in para. 87 of [First Working
Group Report,] A/CN.9/216.
23) Alternative A is modelled on article 33(1) of the UNCITRAL Arbitration Rules.
24) Alternative B reflects the view reported in para. 89 of [First Working Group Report,]
A/CN.9/216.
25) This sentence is modelled on article 33(3) of the UNCITRAL Arbitration Rules.
26) The sentence in parenthesis reflects a suggestion set forth in para. 92 of [First Working
Group Report,] A/CN.9/216 and is modelled on article 9 of the United Nations
Convention on Contracts for the International Sale of Goods [A/Conf.97/18 (Annex I)]
(Vienna, 1980).
33) [Fourth Working Group Report,] A/CN.9/245, para. 94.
34) [Fourth Working Group Report,] A/CN.9/245, paras. 98–99.
35) Pieter Sanders, Model rules for international commercial arbitration: UNCITRAL
Arbitration Rules, Proceedings of the fifth international arbitration congress, New Delhi
1975, Part C., p. C Ia 13.
81) As a further aid in interpreting the term “rules of law” and defining its limits, it may be
reported that some representatives would have preferred an even wider
interpretation or an even broader formula to include, for example, general legal
principles or case law developed in arbitration awards but that this, in the view of the
Working Group, was too far–reaching to be acceptable to many States, at least for the
time being ([Fourth Working Group Report,] A/CN.9/245, para. 94).
82) [Fourth Working Group Report,] A/CN.9/245, para. 99; [Second Working Group Report,]
A/CN.9/232, para. 164.
*) [Editors' Note: This citation refers to the draft Commission Report. The cited paragraph
was identical to paragraph 241 of the final Report, infra.]
*) [Editors' Note: The Commission later reversed this decision. See para. 239 of this
document infra.]

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Document information
UNCITRAL Model Law, Chapter VI, Article 29 [Decision
Publication making by panel of arbitrators]
A Guide to the UNCITRAL Article 29. Decision making by panel of arbitrators
Model Law on International
Commercial Arbitration: In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal
Legislative History and shall be made, unless otherwise agreed by the parties, by a majority of all its members.
Commentary However, questions of procedure may be decided by a presiding arbitrator, if so
authorized by the parties or all members of the arbitral tribunal.

Organization Commentary
United Nations Commission Article 29 provides rules to govern the method of reaching decisions when the arbitral
on International Trade Law tribunal consists of more than one arbitrator. It was modelled on Article 31 of the UNCITRAL
Arbitration Rules. (1) The first sentence provides a supplementary rule — that is, one that
applies only if the parties have not agreed otherwise — that all decisions be made by a
majority of the tribunal. The second sentence permits the parties or the full arbitral
Promulgation tribunal to delegate decisions on procedural questions to a presiding arbitrator.
21 June 1985 The legislative history of Article 29 reveals few substantial disagreements among the
drafters. The primary issue discussed at any length by the Commission was whether to
provide for a tie–breaking vote in case of deadlock. Under the first sentence of Article 29,
Legislation number the arbitral tribunal must reach a majority decision. Thus, if there is a deadlock — if there
is no majority for any single position — the arbitral tribunal must continue to deliberate
United Nations Document until a majority is formed, or else issue no award. Both in the Working Group and in the
A/40/17, Annex I Commission, a suggestion was made to provide in this first sentence for the presiding
arbitrator to cast the deciding vote, or to act as sole arbitrator, in case of deadlock. (2) It
was argued that under the present provision time and expense would be wasted if the
Bibliographic reference arbitral tribunal failed to deliver an award and that a presiding arbitrator might “be
'UNCITRAL Model Law, tempted to agree to a juridically dubious solution in order to attain the necessary
Chapter VI, Article 29 majority.” (3)
[Decision making by panel of This view was not adopted for several reasons. It was said that in some circumstances it
arbitrators]', in Howard M. could lead to depriving the other members of the arbitral tribunal of “appropriate
Holtzmann and Joseph
P 808 influence” on decisions taken. (4) In addition, it was suggested that questions might receive
Neuhaus , A Guide to the P 809 fuller consideration if the tribunal had to reach a majority decision, rather than if the
UNCITRAL Model Law on presiding arbitrator was given the power to decide alone in case a deadlock arose. (5)
International Commercial Furthermore, it was noted that cases of actual deadlock were rare: in the history of the
Arbitration: Legislative International Chamber of Commerce — a period of over sixty years — the provision in its
History and Commentary, rules that allowed a presiding arbitrator to make decisions where there was no majority
(© Kluwer Law International; was said to have been used only twice. (6) Finally, it was noted that the provision is in any
Kluwer Law International event nonmandatory. The parties can always agree to provide for the presiding arbitrator
1989) pp. 808 - 821 to cast the deciding vote or for some other form of voting. (7)
Another significant issue considered by the Working Group was the extent to which Article
29 should explicitly guarantee that all arbitrators have an opportunity to join in
deliberations on decisions to be taken. The First Draft of Article 29 would have permitted a
majority decision only if “all arbitrators [had] taken part in the deliberations leading to the
award [or decision].” (8) The Working Group took the view that actual participation of all
the arbitrators should not be a condition of the validity of the award and replaced the
proviso with one that required only that all arbitrators “had the opportunity to take part in
the deliberations.” (9) This clause was itself ultimately deleted because it was felt to state
a principle that was implicit; the proponents of this view suggested that expressly stating
the condition might encourage arbitrators to refuse to take part in deliberations. (10)
Nevertheless, it was understood, as the Secretariat stated in its commentary on the
provision, that all arbitrators must be given such an opportunity to participate, (11) though
it was noted during the Commission's discussion that the deliberations could take place by
telex, telephone, mail, or other means not requiring the presence of all arbitrators in one
place. (12)
P 809 The second sentence of Article 29 was modelled on Article 31(2) of the UNCITRAL Arbitration
P 810 Rules, but with three differences of some significance. First, the Working Group deleted
the provision under which the presiding arbitrator may decide questions of procedure
“when there is no majority,” even without the authorization of the arbitral tribunal. The
Working Group Report does not explain this change other than to say that the Group
adopted the principle that questions of procedure could be left to a presiding arbitrator,
“providing that the arbitral tribunal or the parties had authorized” him or her to decide
them. (13) Second, the Rules state that authorization merely by “the arbitral tribunal” is
required for the presiding arbitrator to act on his or her own, rather than requiring
authorization of “all members of the arbitral tribunal.” The argument for the change was
that it would prevent a problem from arising where two arbitrators authorized the
presiding arbitrator to make a decision but that arbitrator declined to act alone. (14)
The third difference is that the UNCITRAL Arbitration Rules provide that the decision by the

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 presiding arbitrator is “subject to revision, if any, by the arbitral tribunal.” The Working
Group was very clear as to its intention: “It was agreed that, once this authorization [for the
presiding arbitrator to act alone] had been given, an individual decision on procedure
should not be subject to revision by the arbitral tribunal.” (15) Thus, the proviso, which had
been incorporated into earlier drafts, was deleted.
In this connection, it should be noted that the second sentence of Article 29 should
presumably be regarded, like the first sentence, as nonmandatory. While the second
sentence does not explicitly state that it applies “unless otherwise agreed by the parties,”
it is nevertheless closely linked to the first sentence by the word “[h]owever,” and the
drafters appear to have considered both sentences to be non-mandatory. Thus, one of the
Working Group Reports states, “There was general agreement that this article was not
mandatory on the parties and that the article should so state,” (16) and the Secretariat's
commentary on the provision states, “Since article 29 is non-mandatory, the parties may
lay down different requirements.” (17) In addition, the Working Group elsewhere cautioned
P 810 that the presence in some articles of express wording that a provision was non-mandatory
P 811 “did not mean that all those provisions of the model law which did not express their
non–mandatory character were necessarily of mandatory nature.” (18)
The Model Law does not define the term “presiding arbitrator,” or require that there be
one. Article 29(2) is carefully worded to allow decisions on questions of procedure to be
made by “a presiding arbitrator” (emphasis added). Thus, the rule applies only if the
arbitral tribunal actually has a presiding arbitrator, either as a result of the parties'
agreement to have one or the tribunal's choice so to organize itself. (19)

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
V. Award
[ .… ]
2. Making of award
83. There are essentially two procedural issues to be considered relating to the making of
the award. One is the period of time within which the award shall be made, the other one is
the process of making the decision to be embodied in the award. [Editors' Note: The first
procedural issue — the period of time in which an award shall be made — is discussed in the
section on Article 14, p. 442 supra.]
[ .… ]
85. As to the decision–making process in arbitration proceedings with more than one
arbitrator, the basic question will be whether the model law should impose certain
standards or whether it should leave that issue to the parties and only establish
“supplementary” rules, if deemed desirable. In view of the legal status of an award in
terms of its recognition and enforceability, a mandatory rule may seem preferable. It
could require that the award be made by a majority of the arbitrators; yet, in the
exceptional case that a majority cannot be obtained, the model law may recognize an
agreement by the parties to the effect that the chairman shall have a casting vote. For the
sake of clarification, one might add that all arbitrators have to take part in the
deliberations leading to the award.
P 811
P 812
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
V. Award
[ .… ]
Question 5 – 3: Should the model law contain any mandatory provisions on the decision–
making process in proceedings with more than one arbitrator? For example, should it
require that an award be made by a majority of the arbitrators, provided that all
arbitrators had the opportunity to take part in the deliberations leading to that award?
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
V. Award
[ .… ]
2. Making of an award
[ .… ]
Question 5–3: Should the model law contain any mandatory provisions on the decision–
making process in proceedings with more than one arbitrator? For example, should it
require that an award be made by a majority of the arbitrators, provided that all

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 arbitrators had the opportunity to take part in the deliberations leading to that award?
76. The Working Group was agreed that the model law should contain mandatory provisions
on the decision–making process in proceedings with more than one arbitrator. In this
connexion, it was agreed that a provision should be included that, in proceedings with an
uneven number of arbitrators, an award shall be made by a majority of arbitrators,
provided that all the arbitrators had taken part in the deliberations leading to that award.
77. It was noted that the content of provisions on the decision–making process would be
related to the number of arbitrators forming the arbitral tribunal, and it was recalled that
the Working Group had concluded that the model law should not contain any mandatory
provision specifying the number of arbitrators (question 3–7, above, para. 46 [appearing in
the section on Article 10, pp. 350–51 supra]). It was noted that there were proceedings
conducted by an even number of arbitrators and that the practice of appointing an
arbitral tribunal consisting of one arbitrator appointed by each party, with an umpire to
decide if the two arbitrators failed to agree, was well established in the commercial
practice of some countries. It was accepted that provisions on decision–making in the
model law should not exclude these practices.
P 812
P 813
FIRST DRAFT A/CN.9/WG.II/WP.38 (31 AUGUST 1982)
V. Award
[ .… ]
2. Making of an award (4)
Article 26 [Art. 29 in the final text] (5)
(1) When there are three or another uneven number of arbitrators, (6) any award [or other
decision of the arbitral tribunal] shall be made by [all or] a majority of the arbitrators,
provided that all arbitrators have taken part in the deliberations leading to the award [or
decision].
[(2) In the case of questions of procedure, when there is no majority or when the arbitral
tribunal so authorizes, the presiding arbitrator may decide on his own, subject to revision,
if any, by the arbitral tribunal.]
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Award
[ .… ]
Making of an award
Article 26 [Art. 29 in the final text]
136. The text of article 26 as considered by the Working Group was as follows:
[same as First Draft, supra].
137. There was general agreement that this article was not mandatory on the parties and
that the article should so state.
138. There was general agreement that the actual participation of all the arbitrators in the
deliberations should not be a condition for the validity of the award. The prevailing view
was that it should be expressly stated in this article that the award could be made by a
P 813 majority of the arbitrators provided that all the arbitrators had had the opportunity to
P 814 take part in the deliberations. Under another view such a condition was self–evident
and, if expressly mentioned in the model law, could give rise to a wrong impression that an
arbitrator had a right to refuse to take part in the deliberations. The proponents of this
view therefore proposed that the model law should not mention the condition that the
arbitrators must be given an opportunity to take part in the deliberations.
139. It was suggested that the wording of the article should leave no doubt that the term
“majority” means “more than half of all appointed arbitrators” and does not mean “more
than half of those who made the award.”
140. There was general agreement that the provisions of paragraph (2) should be retained,
even though it was recognized that it is not always easy to distinguish between substance
and procedure. The view was expressed that once the presiding arbitrator decided a
procedural question on his own, the other arbitrators should not have the possibility to
change his decision. However, the prevailing view was that the arbitral tribunal should
retain the possibility of controlling all the decisions made by the presiding arbitrator.
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
H. Making of award and other decisions
Article XX [Art. 29 in the final text]

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 (1) When there are three [or another uneven number of] (20) arbitrators, any award or other
decision of the arbitral tribunal shall be made, unless otherwise agreed by the parties, by
[a majority of the arbitrators, i.e.,] more than half of all appointed arbitrators [, provided
that all arbitrators had the opportunity to take part in the deliberations leading to the
award or decision].
(2) However, in the case of questions of procedure, when there is no majority or when the
arbitral tribunal so authorizes, a presiding arbitrator may decide on his own, subject to
revision, if any, by the arbitral tribunal.
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[ .… ]
Article XX [Art. 29 in the final text]
101. The text of article XX as considered by the Working Group was as follows:
P 814
P 815
[same as Second Draft, supra].
Paragraph (1)
102. The Working Group adopted the majority–principle embodied in this paragraph. It was
agreed that the wording of this provision could be simplified along the following lines: “In
arbitration proceedings with more than one arbitrator, any award or other decision of the
arbitral tribunal shall be made, unless otherwise agreed by the parties, by a majority of all
its members.”
103. In view of the importance of the decisions covered by paragraph (1), the Working Group
did not adopt a suggestion according to which paragraph (1) should adopt the approach of
paragraph (2) and give the presiding arbitrator the decisive vote if there was no majority
for a decision envisaged in that paragraph.
Paragraph (2)
104. The Working Group adopted the principle that questions of procedure, for the sake of
expediency and efficiency, may be left to a presiding arbitrator, provided that the arbitral
tribunal or the parties had authorized him to do so. It was agreed that, once this
authorization had been given, an individual decision on procedure should not be subject
to revision by the arbitral tribunal.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 29. Decision–making by panel of arbitrators
In arbitral proceedings with more than one arbitrator, any award, including interim [,
interlocutory] and partial award, and any other decision of the arbitral tribunal shall be
made, unless otherwise agreed by the parties, by a majority of all its members. However,
the parties or the arbitral tribunal may authorize a presiding arbitrator to decide
questions of procedure [on his own].
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 29
105. The text of article 29 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
106. The Working Group adopted that article in the following modified form:
“In arbitral proceedings with more than one arbitrator, any decision of the
arbitral tribunal shall be made, unless otherwise agreed by the parties, by a
majority of all its members. However, the parties or the arbitral tribunal may
authorize a presiding arbitrator to decide questions of procedure.”
P 815
P 816
107. The Working Group was of the view that that article should only deal with the majority
principle in the making of decisions in arbitral proceedings and that it should not attempt
to define the term “award”. It was, therefore, decided to consider at a later stage whether a
definition of “award” should be included in another appropriate article of the model law.
(9)
108. There was some support for deleting the last entence of that article because it might
create controversies in cases where it was not certain whether a question was one of
procedure or one of substance. However, the Working Group decided to retain the
provision because the parties or the arbitrators may use it in order to make an arbitration
more expedient and efficient.

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 FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 29. Decision making by panel of arbitrators
In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal
shall be made, unless otherwise agreed by the parties, by a majority of all its members.
However, the parties or the arbitral tribunal may authorize a presiding arbitrator to decide
questions of procedure.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 29. Decision making by panel of arbitrators
1. Finland, Sweden and (with regard to awards) IBA [International Bar Association] express
the view that in the case where a majority of the members of the arbitral tribunal cannot
be obtained, the presiding arbitrator should decide as if he were a sole arbitrator. In
support of this view Sweden points out that, according to experience with the “majority
P 816 rule,” there is a risk that, in the event of three different opinions, the presiding arbitrator
P 817 may be tempted to agree to a juridically dubious solution in order to attain the
necessary majority. IBA recognizes that any change of the text regarding the method of
decision–making would involve a change of policy which has already been settled, and it
would also lead to a difference from the provisions of the UNCITRAL Arbitration Rules;
nonetheless, it is suggested that this can give rise to a real problem, and that the parties
can suffer a total waste of time and expense if the arbitration ends without any award
being issued. It is believed that most practising lawyers would prefer to see the proposed
solution.
2. For the cases where no majority can be obtained, the Republic of Korea proposes to
redraft the second sentence of article 29 as follows:
“Except as otherwise stipulated in an arbitration agreement, in case the ayes
and nays are equal, where there are several arbitrators, the arbitration
agreement in question shall forfeit its effect.”
3. Italy suggests allowing decisions to be made by correspondence; at least it would be
necessary to provide that where an arbitrator fails to come to the agreed place without
just cause the other arbitrators could proceed with the deliberations.
4. Norway, appreciating the intention of the provision contained in the last sentence of this
article, suggests that the word “presiding” is unclear. It is proposed either to explain this
word in the model law or, perhaps better, to delete it.
5. As to the proposal by Qatar to provide in article 11 of the model law a definition of the
presiding arbitrator, see paragraph 3 of the compilation of comments on article 11
[appearing in the section on that Article, p. 379 supra].
ACN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 29. Decision making by panel of arbitrators
1. Canada observes that this article refers for the first time to a “presiding arbitrator” which
raises the question of how the presiding arbitrator was appointed. This procedural gap
could be rectified in article 11.
2. Yugoslavia observes that the formulation of the second sentence of article 29 might
imply that the presiding arbitrator is empowered to make the decision on the merits of the
case, which certainly is not intended. This article should be re–formulated so as to make
clear that it refers to the role of the presiding arbitrator as regards the procedure.
3. ICC [International Chamber of Commerce] notes that the model law provides for decisions
by a majority of the arbitrators, whereas under certain existing arbitration rules the
P 817 chairman of an arbitral tribunal can decide alone where no majority can be obtained.
P 818 Since the provision in article 29 is not mandatory, article 31(1), which requires the
signatures of a majority of the arbitrators in arbitral proceedings with more than one
arbitrator, should be amended accordingly.
4. AALCC [Asian – African Legal Consultative Committee] recommends that the title of this
article should be “Decision – making.”
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 29. Decision making by panel of arbitrators
[ .… ]
1. Article 29 deals with one important aspect of the decision–making process in those

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 common cases where the arbitral tribunal consists of more than one arbitrator (in
particular: three arbitrators). While leaving out other aspects relating to the mechanics of
how a decision is arrived at, article 29 adopts the majority–principle for any award or other
decision of the arbitral tribunal, with a possible exception for questions of procedure,
which, for the sake of expediency and efficiency, the parties or the arbitral tribunal may
authorize a presiding arbitrator to decide.
2. The majority–principle, as compared with requiring unanimity, is more conducive to
reaching the necessary decisions and the final settlement of the dispute. This principle,
which is also adopted for the signatures required on the award (article 31(1)), does not
mean, however, that not all arbitrators need take part in the deliberations or at least have
the opportunity to do so.
3. Since article 29 is non–mandatory, the parties may lay down different requirements. For
example, they may authorize a presiding arbitrator, if no majority can be reached, to cast
the decisive vote, or to decide as if he were a sole arbitrator. The parties may also, for
quantum decisions, provide a formula according to which the decisive amount would be
calculated on the basis of the different votes of the arbitrators.
SUMMARY RECORD A/CN.9/SR.327, .333
[17 June 1985, 7:00 p.m., A/CN.9/SR.327]
Article 29. Decision–making by panel of arbitrators
40. Mr. GRIFFITH (Australia) said that he assumed that the reference to “a presiding
arbitrator” in article 29 implied that the presiding arbitrator would be the third arbitrator
chosen by the arbitrators appointed by the parties. As he understood it, it was also
implicit in the model law that, in the absence of any express requirement to the contrary,
it was not necessary for arbitrators to be formally present in order to take decisions.
Decisions could be taken by telephone, telex or similar means of communication; that
point should be recorded in the commentary on the model law for the guidance of national
legislators.
P 818
P 819
41. Difficulties were bound to arise if, as stated in the second sentence of article 29, the
arbitral tribunal were empowered to authorize a presiding arbitrator to settle procedural
questions. In common law countries at least, the distinction between procedural and
substantive matters was not always clear. That was not important where it was the parties
that authorized a presiding arbitrator to take decisions and not the arbitral tribunal. In
order also to avoid possible conflict between the arbitrators on such questions, he
therefore proposed the deletion of the words “or the arbitral tribunal.”
42. The CHAIRMAN [Mr. LOEWE (Austria)] said the Commission might perhaps agree that it
would be sufficient to mention in the report the matters referred to by the representative
of Australia.
43. Mr. SEKHON (India) said he was concerned that, unlike in article 7 of the UNCITRAL
Arbitration Rules, the model law contained no definition of the presiding arbitrator, nor
did it indicate the manner of his appointment.
44. Mr. HERRMANN (International Trade Law Branch) said that the question of definition
and appointment of the presiding arbitrator was encapsulated in the very careful wording
of the second sentence of article 29. In English, the use of the indefinite article “a” before
the words “presiding arbitrator” meant that there need not necessarily be such an
appointment. With regard to the distinction between procedural and substantive matters,
it had been felt, when drafting the article, that since the arbitral tribunal had powers to
decide on matters both of procedure and of substance, it should also have power to
decide on the distinction between them.
45. Mr. GRIFFITH (Australia) said that a presiding arbitrator authorized by the arbitral
tribunal might not necessarily be the third arbitrator appointed by the arbitrators of the
parties. In such a case, questions of procedure might be decided by an arbitrator
designated by one of the parties alone. That would remove proceedings from the control of
the parties, which was contrary to the intentions of the model law. His delegation would
therefore prefer that the words “or the arbitral tribunal” should be deleted, but if that did
not prove acceptable, it would prefer to retain the text as it stood.
46. Mr. MELIS (Austria) said he felt it was already implied in the first sentence of article 29
that the arbitral tribunal was empowered to authorize one of its members to take
decisions. The reference to “the parties” in the second sentence should be deleted, since it
was inconsistent. A problem could arise where two arbitrators authorized a presiding
arbitrator to take decisions but that arbitrator refused to act alone. That problem could be
avoided if a unanimous decision of the arbitral tribunal were required for the authorizaton
of a presiding arbitrator.
47. Mr. MOELLER (Observer for Finland) said that where the arbitral tribunal could not
reach a majority decision, the presiding arbitrator should decide as if he were sole
arbitrator. It was essential, to avoid the wasting of time and money by the parties, that the
arbitral tribunal should always reach a decision. With regard to the second sentence, he
supported the proposal of the representative of Austria.
P 819

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 P 819
P 820
48. Mr. HOLTZMANN (United States of America) said that his delegation favoured the
requirement of a majority decision. Where a presiding arbitrator was empowered to decide
in the absence of a majority, he was in effect a sole arbitrator. If that was what parties
wished, it would be cheaper and more practicable to appoint a sole arbitrator in the first
place. In addition the requirement of a majority decision made it more likely that all
issues would be fully considered as a result of the need to reach agreement. Moreover, the
parties would more readily accept the decision, thus reducing the likelihood of subsequent
litigation or appeals. He therefore favoured the retention of article 29 as drafted.
49. Mr. LOEFMARCK (Sweden) said that he agreed with the representative of Finland that
where there was no majority, the presiding arbitrator should decide. The parties wanted a
decision and that a decision should be reached was more important than the manner of
reaching it.
50. Mr. MELIS (Austria) agreed with the United States representative that where the parties
had appointed three or more arbitrators, all should contribute to the decisions. However,
in the entire history of the ICC, whose rules allowed a presiding arbitrator to take decisions
where there was no majority, he knew of only two instances when that had in fact occurred.
In practice, therefore, he foresaw little difficulty in the matter. Also there was nothing in
the first sentence of article 29 to prevent the parties, where the arbitral tribunal was
unable to reach a decision, from authorizing a presiding arbitrator to decide alone. The
first sentence of article 29 should therefore be retained as drafted.
51. Mr. ROEHRICH (France) agreed with the United States representative that, for the
reasons stated by him, article 29 should be retained as drafted.
52. Mr. AYLING (United Kingdom) said that his delegation agreed that article 29 should be
retained.
53. Mr. HOLTZMANN (United States of America) opposed the Australian proposal to delete
the words “or the arbitral tribunal.” To do so would make it inconsistent with the UNCITRAL
Arbitration Rules, and thus create a serious risk of conflict where the parties had agreed to
use those rules.
54. Mr. TANG Houzhi (China) said he would like to delete the second sentence of article 29
altogether. Failing that, he preferred the Austrian proposal to insert the word
“unanimously” at an appropriate place in that sentence.
55. Mr. MELIS (Austria) said that the real problem with the second sentence arose from the
use of the word “however,” which implied an alternative power to that given in the first
sentence. That word should therefore be deleted.
56. Mr. SZASZ (Hungary) said that the Working Group had drafted the article in that form in
order to clarify expressly the rights and powers of the parties and of the arbitral tribunal.
P 820 57. The CHAIRMAN proposed that the second sentence of article 29 should become a
P 821 separate paragraph and that the word “however” should be deleted. It would also be
specified that the arbitral tribunal's decision to authorize a presiding arbitrator to decide
questions of procedure would have to be taken unanimously.
58. Mr. GRIFFITH (Australia) said that he favoured the retention of article 29 as drafted,
subject to the amendments thus proposed.
59. The CHAIRMAN said that, in the absence of any objection, he would take it that the
Commission agreed to approve article 29 as drafted subject to the proposed amendments.
60. It was so agreed.
[21 June 1985, 10:00 a.m., A/CN.9/SR.333]
Article 29 [as revised by the Drafting Group]
10. Article 29 was adopted.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 29. Decision making by panel of arbitrators
243. The text of article 29 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
244. It was suggested that article 29 should empower a presiding arbitrator, if no majority
could be reached, to decide as if he were a sole arbitrator. The Commission did not adopt
the suggestion since it might, under certain circumstances, lend itself to precluding the
other members of the arbitral tribunal from having an appropriate influence on the
decision–making. It was noted that parties who preferred that solution were free to agree
thereon, since the provision was of a non–mandatory character.
245. The Commission decided to express in the second sentence of article 29 that a
decision of the arbitral tribunal to authorize a presiding arbitrator to decide questions of
procedure had to be unanimous. Subject to that modification, which was referred to the
Drafting Group, the Commission adopted article 29.

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 246. It was noted that it was implicit in the model law that, subject to contrary agreement,
arbitrators might make decisions without necessarily being present at the same place.
P 821

References
1) First Draft, A/CN.9/WG.II/WP.38, Art. 26 n. 5, p. 813 infra.
2) See Fourth Working Group Report, A/CN.9/245, para. 103, p. 815 infra; Commission
Report, A/40/17, para. 244, p. 821 infra.
3) E.g., Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 29, para. 1, pp.
816–17 infra.
4) Commission Report, A/40/17, para. 244, p. 821 infra.
5) Summary Record, A/CN.9/SR.327, para. 48, p. 820 infra.
6) Id. para. 50. It may be noted, of course, that the existence of the presiding arbitrator's
power to decide alone may have caused the other arbitrators to agree where they
otherwise might not have, in order to retain some influence.
7) See id.; Commission Report, A/40/17, para. 244, p. 821 infra; Seventh Secretariat Note,
A/CN.9/264, Art. 29, para. 3, p. 818 infra. Note that even where the parties have
permitted a presiding arbitrator to decide as a sole arbitrator, and he or she does so,
the award must be signed by a majority of the arbitral tribunal under Article 31(1). See
Sixth Secretariat Note (Government Comments), A/CN.9/263/Add.1, Art. 29, para. 3, p.
817 infra.
8) First Draft, A/CN.9/WG.II/WP.38, Art. 26(1), p. 813 infra. The use of square brackets “[ ]”
by the Working Group indicates wording that was offered as an alternative or was still
under consideration. The bold–faced brackets “[]” denote an insertion by the present
editors.
9) Second Working Group Report, A/CN.9/232, para. 138, pp. 813–14 infra; Second Draft,
A/CN.9/WG.II/WP.40, Art. XX(1), p. 814 infra.
10) See Fourth Working Group Report, A/CN.9/245, para. 102, p. 815 infra; Second Working
Group Report, A/CN.9/232, para. 138, pp. 813–14 infra.
11) Seventh Secretariat Note, A/CN.9/264, Art. 29, para. 2, p. 818 infra.
12) Commission Report, A/40/17, para. 246, p. 821 infra; Summary Record, A/CN.9/SR.327,
para. 40, 42, pp. 818–19 infra.
13) Fourth Working Group Report, A/CN.9/245, para. 104, p. 815 infra. The fact that the
Model Law states that the parties may authorize the presiding arbitrator to act alone,
while the Rules do not, follows from the nature of the two documents. The Rules are
themselves an agreement of the parties, which can be altered by a further agreement.
14) See Commission Report, A/40/17, para. 245, p. 821 infra; Summary Record,
A/CN.9/SR.327, para. 46, p. 819 infra. Another, possibly more common, example of when
the change in the Model Law provision might make a difference is where a non–
presiding arbitrator opposes the proposal to give the presiding arbitrator the power to
decide on some matter on his or her own. Under the Rules, the majority could grant
that power; under the Law, it could not.
15) Fourth Working Group Report, A/CN.9/245, para. 104, p. 815 infra (bracketed language
added by the editors); see also Second Working Group Report, A/CN.9/232, para. 140, p.
814 infra.
16) Second Working Group Report, A/CN.9/232, para. 137, p. 813 infra.
17) Seventh Secretariat Note, A/CN.9/264, Art. 29, para. 3, p. 818 infra.
18) Fifth Working Group Report, A/CN.9/246, para. 177, appearing in the section on Matters
Not Addressed in the Final Text, pp. 1152–53 infra.
19) See Summary Record, A/CN.9/SR.327, para. 44, p. 819 infra.
4) Discussion and conclusions of the Working Group in [First Working Group Report,]
A/CN.9/216, paras. 74–77. [ … ] [Editors' Note: Paragraphs 74–75 appear in the section on
Article 14, p. 443 infra.]
5) This draft provision is modelled on article 31 of the UNCITRAL Arbitration Rules.
6) Despite the parties' freedom to agree on any number of arbitrators, no provision on an
even number is suggested here, following the approach suggested in draft article 16
[Art. 11 in the final text] and accompanying foot–note 28 ([First Draft,]
A/CN.9/WG.II/WP.37 [appearing in the section on Article 11, p. 367 supra]).
20) The words “or another uneven number of” are placed between square brackets in order
to invite discussion by the Working Group on whether it might not be sufficient to deal,
in the model law, only with the case of three (and not more) arbitrators and, then,
either to include a “mutatis mutandis” – provision for cases with more than three
arbitrators or to leave it to the States adopting the model law whether or not to deal
with questions of such big panels.
9) See discussion below, paras. 192–194 [appearing in the section on Article 2, pp. 164–65
supra].

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Document information
UNCITRAL Model Law, Chapter VI, Article 30 [Settlement]
Publication (1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall
A Guide to the UNCITRAL terminate the proceedings and, if requested by the parties and not objected to by the
Model Law on International arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.
Commercial Arbitration: (2) An award on agreed terms shall be made in accordance with the provisions of article
Legislative History and 31 and shall state that it is an award. Such an award has the same status and effect as any
Commentary other award on the merits of the case.

Commentary
Organization
Article 30 sets forth the procedures to be followed in the happy event that the parties
United Nations Commission settle the dispute during the arbitral proceedings.
on International Trade Law
Two main issues were raised during the consideration of this article. The first was whether,
after the parties reach a settlement, they must join in a request for an arbitral award on
agreed terms, or whether one party — presumably the one to receive money under the
Promulgation agreement — may make the request alone. The second issue was whether the tribunal
21 June 1985 should have discretion to refuse to record a settlement as an award on agreed terms, if, for
example, it includes illegal terms.
Request by both parties or one. The question of whether after the parties reach a
Legislation number settlement a request to record it as an award on agreed terms must be made by both
parties was initially raised in the Working Group's first session on the Model Law, where it
United Nations Document was suggested that only one party need make the request, unless the parties had
A/40/17, Annex I stipulated otherwise. (1) The First Draft offered both alternatives — one requiring a request
by both parties and the other permitting one party to make the request unless the
arbitration agreement required a request by both parties. (2) The Secretariat pointed out
Bibliographic reference in a footnote that the alternative requiring a request by both parties was modeled on
Article 34(1) of the UNCITRAL Arbitration Rules. (3)
'UNCITRAL Model Law,
Chapter VI, Article 30 At the next session of the Working Group, support was voiced for both alternatives. The
[Settlement]', in Howard M. P 822 argument in favor of permitting single–party requests was that often only the party who is
Holtzmann and Joseph P 823 to receive payment has an interest in converting the settlement into an award
Neuhaus , A Guide to the enforceable under the 1958 New York Convention. (4) The argument in favor of requiring
UNCITRAL Model Law on both parties to request an award on agreed terms was that such a requirement would serve
International Commercial to reduce the danger of injustice because “a settlement [might] be ambiguous or subject to
Arbitration: Legislative conditions that might not be apparent to the arbitral tribunal.” (5) This latter view
History and Commentary, commanded the support of the majority of the Working Group. The Second Draft thus
(© Kluwer Law International; contained the language that appears in the Law as adopted: a settlement can be
Kluwer Law International converted into an award on agreed terms “if requested by the parties.” (6)
1989) pp. 822 - 835
The matter was raised again during the deliberations of the article by the Commission.
While declining to amend the language of the provision to allow a request by only one
party, the Commission provided in its Report that as long as both parties intend to have an
award on agreed terms issue, the actual request could as a mechanical matter come from
only one party acting on behalf of the other. (7)
Thus, while the language of the Law may possibly admit of differing interpretations, (8) the
intent of the drafters was clear that both parties must agree to have the settlement
converted into an award on agreed terms.
Tribunal discretion to refuse to record a settlement. The second issue raised during the
drafting of Article 30 was the extent to which the arbitral tribunal should be permitted to
refuse to record a settlement in the form of the arbitral award on agreed terms. The
Working Group and Commission considered whether any discretion to refuse to record the
settlement should be permitted at all, and, if so, whether criteria should be included in
the Law to govern the exercise of that discretion. Ultimately, the Commission adopted the
solution set forth in Article 34 of the UNCITRAL Arbitration Rules, which provides that the
arbitral tribunal may refuse to record a settlement, but provides no guidelines for the
exercise of this power.
P 823
P 824
This solution was agreed on early in the consideration of the question. The delegates
generally thought that “arbitrators would normally accede to a request by the parties to
enter the settlement in an award,” but that “they should not be compelled to do so in all
cir-cumstances.” (9) However, “[d]ivergent views were expressed as to the extent of the
discretion to be given to the arbitrators in this respect.” (10) The First Draft proposed both
solutions: an alternative modeled on Article 34(1) of the UNCITRAL Arbitration Rules, and
an alternative providing criteria — that the tribunal have “good and substantial” or
“compelling” reasons, “in particular grounds of international public policy,” for not
following the request of the parties. (11) The Working Group selected the wording of the
UNCITRAL Arbitration Rules. (12)
The question of whether to allow the arbitral tribunal to refuse a request to record a

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 settlement as an award was discussed again by the Commission, which also concluded that
the the tribunal should have discretion to refuse to record a settlement as an award on
agreed terms. (13)
While the Commission's discussion did not explicitly address adding criteria to govern the
tribunal's discretion, a number of examples of grounds for refusing to record a settlement
were mentioned. The examples illustrate the evil that the Commission hoped to address in
providing discretion to the tribunal not to record a settlement as an award on agreed
terms. Like those proposed in the Working Group, the criteria discussed in the
Commission's sessions all have to do with considerations of public policy, either domestic
or international. First, for example, Yugoslavia proposed in its comments on the Working
Group's draft that the arbitral tribunal's objections to a settlement “should be limited to
establishing that the stipulated settlement is incompatible with the public order of the
legal system applicable to the arbitration.” (14) Second, the Secretariat's commentary on
the draft suggested that the tribunal might refuse to record the settlement “in case of
suspected fraud, [or] illicit or utterly unfair settlement terms.” (15) Third, during the
Commission's debate on the question, the delegate of the United States suggested that the
arbitrators not be forced to concur in a settlement that might “violate antitrust laws or
income tax laws or be in furtherance of a conspiracy between the parties.” (16) And finally,
P 824 the Commission Report noted that it had been pointed out that the tribunal could object
P 825 because the settlement might, “in exceptional cases, be in conflict with binding laws or
public policy, including fundamental notions of fairness and justice.” (17) Although the
tribunal's discretion to decline a request is not limited to these examples, they probably
encompass the vast majority of cases in which a tribunal might decline to act.

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
II. Arbitration agreement
[ .… ]
6. Termination
[ .… ]
63. Another detail question possibly to be dealt with is whether an arbitration agreement
is terminated by a settlement on agreed terms (“accord des parties”), whereby a distinction
may be drawn between agreed settlements in the form of an award and those in the form
of a normal agreement.
[ .… ]
V. Award
[ .… ]
6. Settlement
92. Where parties, as is often the case, during arbitration proceedings reach an amicable
settlement of their dispute, questions arise as to the form and legal status of such
settlement. While national laws and arbitration rules provide varied answers, an
acceptable approach could be that the model authorize, but not compel, the arbitral
tribunal to record such a settlement in the form of an award on agreed terms (“accord des
parties”) . Then, it would have to be decided whether such an award should be treated, e.g.,
as regards registration, enforcement, or any recourse, exactly like a “normal” award or
whether any special regulations seem necessary.
P 825
P 826
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
II. Arbitration agreement
[…]
6. Termination (report [First Secretariat Note, supra] paras. 62–63)
Question 2–17: Should the model law specify certain circumstances under which an
arbitration agreement would be terminated (e.g. settlement on agreed terms; expiry of
time limit for making award) or would not be terminated (e.g. death of one party)?
[ .… ]
V. Award
[ .… ]
6. Settlement (report, [First Secretariat Note,] para. 92)
Question 5–13: Where parties settle their dispute amicably during arbitration proceedings,

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 should the arbitral tribunal be authorized (but not compelled) to record such settlement
in an award (“accord des parties”), and should this type of award be treated like any other
award?
FIRST WORKING GROUP REPORT A/CN.9/216/ (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
II. Arbitration agreement
[ .… ]
6. Termination
Question 2–17: Should the model law specify certain circumstances under which
an arbitration agreement would be terminated (e.g. settlement on agreed
terms; expiry of time limit for making award) or would not be terminated (e.g.
death of one party)?
40. The Working Group was of the view that instances which could conceivably terminate
the arbitration agreement were often also relevant in the context of the procedure of
arbitration, and that these instances could only be fully considered in the light of its later
discussion on arbitral procedure. The Working Group requested the Secretariat to prepare
a study on the issues relevant to termination, but only on those which were peculiar to
arbitration. [Editors' Note: The issues concerning settlement were thereafter considered
separately from those regarding termination of the arbitration agreement and the arbitral
P 826 proceedings generally. For the subsequent history of proposed provisions on termination of
P 827 the arbitration agreement and termination of the arbitral proceedings, see the section on
Article 32, pp. 874–87 infra.]
[ .… ]
V. Award
[ .… ]
6. Settlement
Question 5–13: Where parties settle their dispute amicably during arbitration
proceedings, should the arbitral tribunal be authorized (but not compelled) to
record such settlement in an award (“accord des parties”), and should this type
of award be treated like any other award?
95. There was general agreement that the arbitral tribunal should be authorized to record
a settlement, which parties had reached during arbitration proceedings, in an award. It
was thought that arbitrators would normally accede to a request by the parties to enter the
settlement in an award. However, they should not be compelled to do so in all
circumstances. Divergent views were expressed as to the extent of the discretion to be
given to the arbitrators in this respect.
96. A suggestion was made that the arbitral tribunal could be empowered to enter a
settlement by the parties in an award upon the request of one party only, unless the
parties had stipulated otherwise.
97. The Working Group was agreed that a settlement entered in an award should indicate
that it was an award. It was also agreed that such an award should be treated like any
other award.
FIRST DRAFT A/CN.9/W.II/WP.38 (31 AUGUST 1982)
V. Award
[ .… ]
6. Settlement (27)
Article 33 [Art. 30 in the final text]
Alternative A: (1) If, during the arbitration proceedings, the parties agree on a settlement of
the dispute, the arbitral tribunal shall either issue an order for the termination of the
arbitration proceedings or, if requested by both parties and accepted by the tribunal,
record the settlement in the form of an arbitral award on agreed terms. (28)
P 827
P 828 Alternative B: (1) If, during the arbitration proceedings, the parties agree on a
settlement of the dispute, the arbitral tribunal shall, if requested by [both parties] [a
party, unless the arbitration agreement requires a request by both parties], record the
settlement in the form of an arbitral award on agreed terms, unless the arbitral tribunal
has [good and substantial] [compelling] reasons, in particular grounds of international
public policy, not to follow that request.
(2) An award on agreed terms shall be made in accordance with the provisions of articles 27
and 35 [these Articles became Article 31 in the final text] and shall state that it is an award
[on agreed terms]. Such an award [has the same status and executory force as] [shall be

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 treated like] any other award on the merits of the case.
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Award
[ .… ]
Settlement
Article 33
171. The text of article 33 as considered by the Working Group was as follows:
[same as First Draft, supra].
172. There was general agreement that alternative A of paragraph (1) was preferable.
173. However, in this context a view was expressed that the procedure for recording a
settlement as an award on agreed terms would not be necessary if the model law would
provide for the enforceability of the settlement agreement as such.
174. It was suggested that the arbitral tribunal should be empowered to record a
settlement in the form of an arbitral award on agreed terms on the request of either party.
It was pointed out that it is often the case that only the party who is to receive payment
under the award has an interest in converting the settlement into an award which can then
be enforced under the 1958 New York Convention.
175. On the other hand, it was noted that a settlement may be ambiguous or subject to
conditions that might not be apparent to the arbitral tribunal. According to this view,
which received a majority of the support, there were fewer dangers of injustice by requiring
both parties to request an award on agreed terms.
P 828
P 829 176. The Working Group was of the view that the arbitral tribunal should have the right to
decide whether it would record the settlement in the form of an agreed award.
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
H. Making of award and other decisions
[ .… ]
Article XXI [Art. 30 in the final text]
(1) If, during the arbitration proceedings, the parties agree on a settlement of the dispute,
the arbitral tribunal shall either terminate the arbitration proceedings or, if requested by
the parties and accepted by the tribunal, record the settlement in the form of an arbitral
award on agreed terms.
(2) An award on agreed terms shall be made in accordance with the provisions of article
XXII [Art. 31 in the final text] and shall state that it is an award. Such an award has the same
status and executory force as any other award on the merits of the case. (21)
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] A/CN.9/WG.II/WP.40)
[ .… ]
Article XXI [Art. 30 in the final text]
105. The text of article XXI as considered by the Working Group was as follows:
[same as Second Draft, supra].
Paragraph (1)
106. The Working Group adopted this paragraph, subject to improvement of its wording
along the following lines: “If, during arbitration proceedings, the parties settle the dispute,
the arbitral tribunal shall terminate the proceedings and, if requested by the parties and
not objected to by the arbitral tribunal, record the settlement in the form of an arbitral
award on agreed terms.”
Paragraph (2)
107. The Working Group adopted this paragraph. It was noted that the last sentence might
later have to be modified in order to qualify this statement as regards reasons for recourse
against such an award or its enforcement.
P 829
P 830
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 30. Settlement
(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall
terminate the proceedings and, if requested by the parties and not objected to by the

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 arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.
(2) An award on agreed terms shall be made in accordance with the provisions of article 31
and shall state that it is an award. Such an award has the same status and executory force
as any other award on the merits of the case.
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 30
109. The text of article 30 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
110. The Working Group adopted that article, subject to the replacement, in paragraph (2),
of the words “executory force” by the word “effect.”
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 30. Settlement
(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall
terminate the proceedings and, if requested by the parties and not objected to by the
arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.
(2) An award on agreed terms shall be made in accordance with the provisions of article 31
and shall state that it is an award. Such an award has the same status and effect as any
other award on the merits of the case.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 30. Settlement
P 830
P 831 Austria and Mexico propose the deletion of the words “and not objected to by the
arbitral tribunal” in article 30(1). Austria considers that these words restrict the autonomy
of the parties in an unjustified way since, if the subject–matter of the dispute is capable of
being submitted to arbitration, the parties are free to settle the dispute without any
restrictions by the arbitral tribunal. In the view of Mexico, the arbitral tribunal should not
be able to oppose the recording in the form of an award of the settlement which the
parties have reached.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 30. Settlement
Article 30, paragraph (1)
1. Canada poses the question whether the request of the parties mentioned in paragraph
(1) must be a joint request or whether it may be made by either of the parties. If the former,
a party might easily block the arbitral tribunal from recording a settlement in the form of
an arbitral award. It would seem preferable that article 30 should provide that either party
has the right to make such a request.
2. In the view of Yugoslavia, it would be necessary to determine, at least by using general
terms, the criteria on the basis of which the arbitral tribunal would be empowered to
reject the parties' proposal to record their settlement in the form of an arbitral award.
Objections of the arbitral tribunal should be limited to establishing that the stipulated
settlement is incompatible with the public order of the legal system applicable to the
arbitration.
3. AALCC [Asian-African Legal Consultative Committee] is of the view that if the parties settle
the dispute during the arbitral proceedings they must be obliged to notify the arbitral
tribunal, and the arbitral tribunal should terminate the proceedings only upon receipt of
such notification. Paragraph (1) of article 30, therefore, needs to be amended accordingly.
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 30. Settlement
[ .… ]
1. Article 30 deals with the fortunately not infrequent case that the parties themselves
settle the dispute during, and often induced by, the arbitral proceedings. In order to make
the settlement agreement enforceable, it is necessary, under nearly all legal systems, to
record it in the form of an arbitral award.
P 831

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 P 831
P 832 2. The arbitral tribunal shall issue such an award on agreed terms, if requested by the
parties and not objected to by it. The first condition is based on the view that there are
fewer dangers of injustice by requiring the request of both parties, instead of only one who,
however, may have a particular interest, since a settlement may be ambiguous or subject
to conditions which might not be apparent to the arbitral tribunal. The second condition is
based on the view that the arbitral tribunal, although it would normally accede to such a
request, should not be compelled to do so in all circumstances (e.g., in case of suspected
fraud, illicit or utterly unfair settlement terms).
3. According to paragraph (2), an award on agreed terms shall be treated like any other
award on the merits of the case, not only as regards its form and contents (article 31) but
also its status and effect.
SUMMARY RECORD A/CN.9/SR.328, .333
[18 June 1985, 9:30 a.m., A/CN.9/SR.328]
Article 30. Settlement
Paragraph (1)
1. Mr. SEKHON (India) suggested that the last part of the paragraph should be reworded to
read “record the settlement and make the award on the agreed terms.”
2. The CHAIRMAN [Mr. LOEWE (Austria)] suggested that the amendment should be sent to the
drafting committee.
3. It was so agreed.
4. Mr. GRIFFITH (Australia) said that his delegation considered that if the parties settled
their dispute, they should be entitled to obtain a record of the settlement in the form of an
arbitral award. There was no reason why the arbitral tribunal should have discretion not to
make an award in those circumstances. He therefore proposed that the words “and not
objected to by the arbitral tribunal” should be deleted.
5. Mr. GRAHAM (Observer for Canada) said that his delegation considered that it should be
sufficient if the award was requested by one party. He therefore suggested that the words
“requested by the parties” should be replaced by the words “requested by one of the
parties.”
6. Mr. HOELLERING (United States of America) said that the arbitral tribunal should have
discretion not to approve a settlement, since an arbitral award recording agreed terms
might include something they considered inappropriate.
7. Mr. MOELLER (Observer for Finland) said that he was in favour of the arbitral tribunal
having the discretionary power, for the reasons stated in paragraph 2 of the Secretariat's
commentary ([Seventh Secretariat Note,] A/CN.9/264, [Art. 30]) and emphasized by the
United States representative. He would prefer the paragraph to remain unchanged.
P 832
P 833
8. Mr. SAMI (Iraq) supported the Australian proposal. If the two parties reached agreement,
the proceedings should be terminated in a form appropriate to them if they so requested.
9. Mr. GRAHAM (Observer for Canada) opposed the proposal, for the reasons set forth in
paragraph 2 of the Secretariat's commentary. There were antitrust and other
considerations which the arbitral tribunal should be able to take account of, regardless of
any agreement by the parties.
10. Mr. de HOYOS GUTIERREZ (Cuba) said that the arbitral tribunal should not be able to
object to a settlement being recorded in the form of an award. In the event of one of the
parties failing to fulfil the agreement, the award would constitute useful evidence if the
other party sought to enforce the settlement.
11. Mr. ROEHRICH (France) supported the Australian proposal and considered it reasonable.
Arbitration was only a manifestation of private justice, and an arbitral tribunal should not
therefore have powers which conflicted with the will of the parties.
12. Mr. BARRERA GRAF (Mexico) also supported the Australian proposal.
13. Mr. HOELLERING (United States of America) said that his delegation felt very strongly
that arbitrators should not be forced to concur in a settlement which might, for example,
violate antitrust laws or income tax laws or be in furtherance of a conspiracy between the
parties. The wording should remain unchanged, otherwise the arbitrators might simply be
forced to resign from the case. There were also the UNCITRAL Arbitration Rules to consider.
14. In reply to a question from the CHAIRMAN as to what would happen if the arbitrators
refused the parties' request, Mr. HOELLERING (United States of America) said that instances
had been rare in which an arbitrator had not signed the award and the parties had been
forced to rely on a private settlement agreement instead.
15. Mr. SZASZ (Hungary) said that a distinction must be made between the duty to
terminate the proceedings and the duty to sign an award. It was true that if the parties
reached agreement the arbitration proceedings could not continue. But the arbitrators
should still be free to say that they did not agree with a settlement because it was against

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 the law. If, therefore, the text was amended as suggested, it must make a distinction
between the question of termination and the question of the award.
16. Mr. STROHBACH (German Democratic Republic) said that he entirely agreed with the
preceding speaker.
17. Mr. GRIFFITH (Australia) withdrew his amendment in the light of the objections raised to
it by other speakers, in particular the United States and Hungarian representatives.
18. The CHAIRMAN suggested that it should be noted in the report that the question of
making an award should be left to the discretion of the arbitrators.
P 833
P 834
19. Mr. BONELL (Italy) agreed with the Chairman's suggestion. Regarding the Canadian
proposal, he felt that if the text was amended to refer to a request by only one of the
parties, it could easily be understood as implying that no further agreement was needed to
transform the contractual agreement into an award. That would be unacceptable. He was
strongly in favour of maintaining the existing text.
20. The CHAIRMAN suggested that, since there seemed to be no strong feeling in favour of
amending paragraph (1), it should remain as it was and be sent to the drafting committee
in regard to the change suggested by the representative of India.
21. It was so agreed.
Paragraph (2)
22. Mr. SEKHON (India) said that if his amendment to paragraph (1) was accepted, the
words “and shall state that it is an award” in paragraph (2) would be redundant.
23. The CHAIRMAN suggested that the matter should be referred to the drafting committee.
24. It was so agreed.
[21 June 1985, 10:00 a.m., A/CN.9/SR.333]
Article 30(1) and (2) [as revised by the Drafting Group]
11. Mr. SEKHON (India) recalled that his delegation had suggested that, in article 30(1),
“record the settlement in the form of an arbitral award on agreed terms” be replaced by
“record the settlement and make the award on agreed terms” and that, in article 30(2),
“and shall state that it is an award” be deleted.
12. Mr. HERRMANN (International Trade Law Branch) said that the proposal had been
referred to the drafting group, which had decided to retain the wording set out in the text.
13. The CHAIRMAN [Mr. LOEWE (Austria)] said that, if he heard no objection, he would take it
that the Commission wished to retain the text of article 30 unaltered.
14. It was so agreed.
15. Article 30 was adopted.
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 30. Settlement
247. The text of article 30 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
P 834
P 835 248. A proposal was made to delete, in paragraph (1), the words “and not objected to by
the arbitral tribunal.” It was stated in support that if the parties wanted their settlement to
be in the form of an award, rendering it enforceable as an award under the 1958 New York
Convention or other applicable procedures, the arbitral tribunal should not be able to
disagree.
249. It was stated in reply that a distinction should be drawn between the right of the
parties to have the arbitral proceedings terminate as a result of their settlement and their
right to have their settlement recorded as an award. It was pointed out that arbitrators
should not be forced to attach their signatures to whatever settlement the parties have
reached since the terms of such settlement might, in exceptional cases, be in conflict with
binding laws or public policy, including fundamental notions of fairness and justice.
Furthermore, even if the words were deleted, arbitrators who felt sufficiently strongly that
they should not record the settlement in the form of an award might resign. After
discussion, the proposal was not adopted.
250. Another proposal was that the request to record the settlement as an award needed to
be made by only one of the parties. The Commission, after deliberation, was agreed that
there must be the dual will of the two parties that the settlement be recorded as an award,
but that the formal request needed to be made by only one of them.
P 835

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 References
1) First Working Group Report, A/CN.9/216, para. 96, p. 827 infra.
2) First Draft, A/C/CN.9/WG.II/WP.38, Art. 33, pp. 827–28 infra.
3) Id. n. 28.
4) Second Working Group Report, A/CN.9/232, para. 174, p. 828 infra. See also Sixth
Secretariat Note (Government Comments), A/CN.9/263/Add.1, Art. 30(1), para. 1, p. 831
infra (Canada suggests that requiring both parties to make the request could permit a
party to block an award).
5) Second Working Group Report, A/CN.9/232, para. 175, p. 828 infra.
6) Second Draft, A/CN.9/WG.II/WP.40, Art. XXI(1), p. 829 infra. This draft dropped the
phrase “both parties,” which had been contained in the First Draft, A/CN.9/WG.II/WP.38,
Art. 33, Alternative A, p. 827 infra (emphasis added). The change was presumably made
by the Secretariat to take account of settlements involving more than two parties.
7) Commission Report, A/40/17, para. 250, p. 835 infra. The language of the Report is as
follows: “The Commission, after deliberation, was agreed that there must be the dual
will of the two parties that the settlement be recorded as an award, but that the
formal request needed to be made by only one of them.” Id. Thus, one clause that may
be advisable in some settlement documents drafted under the Model Law would
provide for each party to appoint the other as agent for the purpose of making a joint
request for an arbitral award on agreed terms.
Note that the Summary Record does not specifically reflect any discussion of the
distinction between the “dual will” of the parties and the making of the formal request
for an award (although the remark at Summary Record, A/CN.9/SR.328, para. 19, p. 834
infra, hints at the issue). The Commission Report should be taken as the authoritative
record of the session.
8) See Sixth Secretariat Note (Government Comments), A/CN.9/263/Add.1, Art. 30(1), para.
1, p. 831 infra (comments of Canada suggesting that language could be taken to require
either that both parties make the request or that either may).
9) First Working Group Report, A/CN.9/216, para. 95, p. 827 infra.
10) Id.
11) First Draft, A/CN.9/WG.II/WP.38, Art. 33, pp. 827–28 infra.
12) Second Working Group Report, A/CN.9/232, para. 172, p. 828 infra.
13) See Commission Report, A/40/17, paras. 248–49, pp. 834–35 infra.
14) Sixth Secretariat Note (Government Comments), A/CN.9/263/Add.1, Art. 30, para. 2, p.
831 infra.
15) Seventh Secretariat Note, A/CN.9/264, Art. 30, para. 2, pp. 831–32 infra.
16) Summary Record, A/CN.9/SR.328, para. 13, p. 833 infra.
17) Commission Report, A/40/17, para. 249, p. 835 infra.
27) Discussion and conclusions of the Working Group in [First Working Group Report,]
A/CN.9/216, paras. 95–97.
28) This alternative is modelled on article 34(1) of the UNCITRAL Arbitration Rules. If this
alternative were to be adopted, the part referring to termination might later be
incorporated into the provisions, if any, on “Termination of arbitration proceedings”
(under IV. 11) [see the section on Article 32, p. 875 infra].
21) The last sentence might later have to be modified in order to qualify this statement as
regards reasons for recourse against such award or its enforcement (a subject–matter
to be dealt with in WP.42 [a subsequent part of the Second Draft, appearing in the
sections on Articles 34 & 36, pp. 932–34, 1077–80 infra]).

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 98
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 KluwerArbitration

Document information
UNCITRAL Model Law, Chapter VI, Article 31 [Form and
Publication contents of award]
A Guide to the UNCITRAL (1) The award shall be made in writing and shall be signed by the arbitrator or arbitrators.
Model Law on International In arbitral proceedings with more than one arbitrator, the signatures of the majority of all
Commercial Arbitration: members of the arbitral tribunal shall suffice, provided that the reason for any omitted
Legislative History and signature is stated.
Commentary
(2) The award shall state the reasons upon which it is based, unless the parties have
agreed that no reasons are to be given or the award is an award on agreed terms under
article 30.
Organization
(3) The award shall state its date and the place of arbitration as determined in
United Nations Commission accordance with article 20(1). The award shall be deemed to have been made at that
on International Trade Law place.
(4) After the award is made, a copy signed by the arbitrators in accordance with
Promulgation paragraph (1) of this article shall be delivered to each party.
21 June 1985 Commentary
Article 31 establishes the minimum formal requirements for all awards issued under the
Legislation number Model Law. Most of these standards — such as the requirement that the award be in
writing, that it be signed, that it state the place and date of making, and that it be
United Nations Document delivered to the parties — were relatively noncontroversial. In addition, the Working Group
A/40/17, Annex I agreed early that, like the New York Convention, the Model Law should not require that the
parties deposit the award with any government or other registry in order to make it
binding. (1) There was some difference of opinion, however, on other points, in particular,
Bibliographic reference whether the arbitrators should be permitted to sign the award at a date and place other
than that stated in the award, whether dissenting opinions should be permitted, and
'UNCITRAL Model Law, whether the Model Law should state the precise point when an award becomes binding. On
Chapter VI, Article 31 [Form the last point the disagreement prevented the inclusion of any provision whatsoever. All of
and contents of award]', in these matters are discussed in the commentary that follows. (2)
Howard M. Holtzmann and
Joseph Neuhaus , A Guide to Paragraph 1. Both the requirement that an award be in writing and that it be signed were
the UNCITRAL Model Law on P 836 considered “obvious” by the Secretariat and, it appears, by the Working Group. (3) There
International Commercial P 837 was also little disagreement over the method of dealing with cases in which not all
Arbitration: Legislative arbitrators signed an award. This might happen, for example, if an arbitrator died, became
History and Commentary, incapacitated, or refused to sign the award. The Working Group adopted the solution found
(© Kluwer Law International; in Article 32(4) of the UNCITRAL Arbitration Rules and in a number of national laws,
Kluwer Law International pursuant to which a majority of the arbitrators is required to sign the award and the
1989) pp. 836 - 865 reasons for the missing signature must be stated. (4) This corresponds with the rule in
Article 29 that decisions be made by a majority of the arbitrators. Unlike Article 29,
however, the signature requirement apparently is not waivable: it does not provide that
the parties may agree otherwise. The Secretariat suggested that the signature requirement
of Article 31 be fully aligned with Article 29 and made nonmandatory, but the Commission
did not act on the suggestion. (5)
One further point that was raised in connection with the requirement that an award be in
writing was whether the Model Law should address the rights of dissenting arbitrators to
have the arbitral tribunal issue dissenting opinions. In their comments on the Working
Group's final draft of Article 31, two delegations addressed the question, reflecting very
different national traditions on the question: the Norwegian delegation urged that the Law
state explicitly that a dissenting arbitrator is entitled to state the reasons for his dissent;
(6) the delegation of the Sudan proposed that it state that the award could not include any
“dissenting judgement.” (7) The Secretariat suggested that the Commission take up the
question of whether dissenting opinions would be permitted; the Secretariat added that
under the Working Group's final draft — which is the same as the final text on this point —
the question would presumably be governed by Article 19, which regulates the conduct of
the arbitral proceedings. (8) The Commission did not address the question.
Paragraph 2. The arguments for and against requiring awards to state the reasons upon
P 837 which they were based were summarized by the Working Group in its first report on the
P 838 Model Law. (9) In favor of the requirement it was noted that many national arbitration
laws required reasons and that this requirement was thought to improve the quality of the
arbitral decision. Against the requirement it was suggested that awards that did not state
reasons could be issued more speedily and were less subject to challenge, and that certain
kinds of arbitrations, such as those to determine whether the quality of goods met industry
or contractual standards, were generally conducted without giving reasons. The Working
Group decided to adopt the solution contained in Article 32(3) of the UNCITRAL Arbitration
Rules, which is to require reasons but to permit the parties to waive the requirement. Both

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 the Working Group, and the Secretariat in its commentary on the final draft of the Law,
emphasized that the parties' waiver did not have to be explicit, but could be inferred from
the fact that the type of arbitration envisioned does not usually result in an award with
reasons. (10)
Paragraph 3. The debate on the third paragraph of Article 31 reveals two somewhat
conflicting principles. On the one hand, it was recognized at the outset that the award
would have to state the place at which it was made because that would determine the law
under which the award could be set aside and under which it would be judged for certain
purposes in enforcement proceedings. (11) On the other hand, it was repeatedly noted that,
particularly in international arbitrations, the arbitrators often found it inconvenient to
perform the physical task of signing the award in the country whose law was intended to
govern it. (12) They might, for example, reside in other countries or, by the time the award
was ready for signing, be engaged in business elsewhere. The First Draft of Article 31 thus
provided, on the one hand, that the award had to be made at the place of arbitration, but,
on the other hand, included as a suggested alternative a provision that the award would be
deemed to be made at the place stated therein. (13) The Working Group was somewhat torn
between these two approaches at its next session. There was some reluctance to “imply
that the arbitral tribunal ha[d] a right to state a fictitious place of making the award,” but
it was nevertheless agreed that as a basis for further discussions the draft Article would
provide that the award would be deemed to be made at the place of arbitration stated
therein. (14)
P 838 The discussion continued at the next session at which the Article was discussed, and this
P 839 “deeming” approach ultimately prevailed. As the proponents of this view argued, “[T]he
making of the award was a legal act which in practice was not necessarily one factual act
but, for example, done in deliberations at various places, by telephone conversation or
correspondence.” (15) The provision remained unchanged in subsequent deliberations. It is
thus clear that while the award must state the place of arbitration (16) and that place
should be treated as the place of making for all purposes, the actual deliberations,
agreement, and signing may take place elsewhere.
Paragraph 3 does not, however, apply the same presumption to the date of making. The
initial drafts of the provision did provide that the award would be deemed made at the
place and date stated therein, (17) but the reference to the date was deleted by the
Working Group without explanation in the Reports. (18) The omission was raised during the
Commission's deliberations, but the Commission decided to retain the text as drafted. (19)
The reason for applying an irrebuttable presumption to the place of making the award but
not to the date is no where completely stated, but the legislative history does point to a
basic difference between the significance of the place and that of the date of the award.
Since it was widely agreed that the arbitral proceedings may take place elsewhere than at
the place of arbitration, the actual place at which the award was signed is essentially
irrelevant. In other words, the significance of the place stated in the award is purely legal
— it identifies the procedural law governing the arbitration — so the stated place may
appropriately be made a legal fiction. The date of making an award, on the other hand,
should not be divorced from the actual date the award was made, because in certain cases
— such as when new evidence is discovered or when the arbitrators fail to meet a time
limit set for the rendering of the award — it might be important to show that the award was
not in fact made on the date stated in the award, but at an earlier or later date. (20)
P 839
P 840
Paragraph 4. Paragraph 4 is as significant for what it does not say as for what it says. By its
terms, it requires delivery of the award to the parties, a requirement that was modeled on
the provision in Article 32(6) of the UNCITRAL Arbitration Rules. (21) The delivery
requirement is an important adjunct to post–award proceedings under Articles 33
(correction of the award), 34 (setting aside), and 35 (enforcement and recognition), all of
which rest to some extent on “receipt of the award.” (22) As finally adopted, however,
paragraph 4 does not address several significant matters that were considered at least
briefly during drafting. The most important of these was whether there should be a
requirement that the award be deposited with a court or other authority. In addition, some
consideration was given to the timing of delivery, publication of the award, and the point
in time when an award becomes binding.
Given that it would work a major change in the laws of many countries, the absence of a
requirement that awards under the Model Law be deposited or registered with a local
authority was surprisingly uncontroversial. The reason is probably that, after twenty–five
years' experience with the New York Convention, the international community had become
accustomed to the lack of a deposit requirement for international awards. As the
Secretariat noted in proposing the Model Law provision, the “major achievement [of that
Convention] was to abolish the requirement of a double–exequatur,” the procedure
whereby leave to enforce an arbitral award might have to be obtained both in the State
where it was made and in the State where enforcement was sought. (23) The Convention left
intact, however, any deposit requirements that might apply as to awards enforced in the
country where made. The Secretariat proposed essentially to import the Convention's
solution into the procedure of the States adopting the Model Law; the Model Law would
eliminate the deposit requirement for all international commercial awards rendered in
those States. Thus, such an award would be enforced in exactly the same way whether

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 enforcement was sought in the awarding State under the Model Law or in another State
under the Convention. (24)
P 840
P 841
In the Working Group there was initially some support for a deposit requirement on the
ground that it would ensure “the continued availability of the … award.” (25) A compromise
was suggested, and drafted, that would provide for deposit or registration if a party
requested it. (26) At its next session, however, the Working Group deleted this provision.
(27)
The matter was raised again in discussions on Article 35 of the Law. The Secretariat in a
Note on the Fourth Draft of the Law proposed that that Article state that registration or
deposit of an award in the country of origin was not a pre–condition of recognition or
enforcement of the award under the Model Law. (28) It added that such an express
statement “would help to clarify” that the absence of a deposit requirement in Article 31
for awards issued in the Model Law State was not a gap left to be filled by other law of that
State but rather was “positive regulation to the effect that registration or deposit is not a
pre–condition for recognition or enforcement.” (29) Such an explicit proviso was inserted in
the draft of Article 35 by the Working Group, (30) but it was deleted by the Commission,
apparently because it was thought unnecessary. (31)
With respect to the timing of delivery under paragraph 4, the Working Group Reports make
one observation: “It was also noted that arbitrators sometimes withheld their award until
the parties had paid the fees and expenses for the arbitration and that this practice
should not be precluded by the model law.” (32)
The question of publication of the award also received only brief attention by the Working
Group and none by the Commission. Noting that the matter was controversial, the
Secretariat suggested that whether the award would be published could be left to the
agreement of the parties and the arbitration rules they selected. Alternately, it proposed
as a “compromise” that the award be published only with the express consent of the
P 841 parties. (33) One delegation later expressed support for this alternative, (34) but generally
P 842 there was wide agreement not to address the matter in the Model Law. (35)
The question of when an award becomes binding was considered twice in drafting the
Model Law but was never resolved. The point was important for the purposes of recognition
and enforcement under Article 36 and under the New York Convention, both of which
provide that recognition and enforcement may be refused if the award “has not yet
become binding on the parties.”
In connection with the Working Group's consideration of Article 35, the Secretariat
proposed that that provision “indicate the exact point of time from which an award shall
be recognized as binding.” (36) The Secretariat suggested that this point in time be the
date of the award. (37) The Working Group declined to adopt the suggestion; its Report
states simply that “there was no need for [such an] express statement[]” on the point. (38)
Later, at the Commission stage, the Soviet Union delegation proposed adding to Article 31
a provision establishing a date when an award made under the Model Law would become
binding. (39) A lengthy discussion ensued, during which the following proposed dates were
addressed: (i) the date the award was made, (ii) the date the award was received by either
the party against whom it was being invoked or the last party to receive notification, or (iii)
the date the period for setting aside the award expired (that is, generally three months
from when the award was received by the parties). (40) The arguments for each of these
dates may be summarized as follows: the date of the award was urged for its certainty; the
date of notification was favored because it was thought fairer to bind parties only once
P 842 they have notice, although it was suggested that such a system might require extensive
P 843 proof of mailing or receipt under Article 3; and the argument for selecting the expiration of
the setting aside period is that it would ensure that the award is definitely final in the
country where it was made before it is to be enforced. (41) There was little support for the
last–stated proposal, but each of the other suggested dates received wide support.
Because a ground rule of the Commission's deliberations was that in the absence of a
consensus urging a change the Working Group's draft would be adopted, no provision on
when the award becomes binding was ultimately included. (42)
In light of this legislative history, the precise point in time when an award made in a Model
Law State will become binding is ambiguous. Courts may be called upon to devise
innovative solutions, bearing in mind that the latest date considered by the Commission
for an award to become binding was the end of the setting aside period stipulated in
Article 34 and that the drafters of the Model Law may be said with reasonable certainty to
have intended to bar any requirement that awards be deposited or registered in order to
become binding.

Legislative History
SECRETARIAT NOTE ON FURTHER WORK
A/CN.9/169 (11 MAY 1979)
[Editors' Note: For the full text of this part of this document, see the section on Purposes and

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 Procedures of the Model Law, pp. 1173–74 infra.]
6. The participants in the consultative meeting referred to earlier (*) were of the
unanimous view that it would be in the interest of international commercial arbitration if
UNCITRAL would initiate steps leading to the establishment of uniform standards of
arbitral procedure. It was considered that the preparation of a model law on arbitration
would be the most appropriate way to achieve the desired uniformity. [ … ]
P 843
P 843 7. The major reason for this proposal is the fact that most national laws on arbitral
procedure were drafted to meet the needs of domestic arbitration and that many of these
laws are in need of revision. [ … ]
8. Yet another reason is the divergence existing between frequently used rules and
national laws; this is the area of concern expressed by AALCC in its recommendations. (*)
For example, [ … ] [some national] laws [ … ] require the award to be accompanied by a
statement of reasons irrespective of any agreement by the parties to the contrary.
FIRST SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW
A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
V. Award
[ .… ]
3. Form of award
86. An obvious requirement as to the form of the award is that it be in writing. Another
obvious requirement, equally common in national laws, is that it be signed by the
arbitrator(s). However, national laws differ on whether any exceptions should be allowed
here in the case of arbitration proceedings with more than one arbitrator. Probably the
most acceptable compromise in the context of international commercial arbitration would
be not to require without exception that the award be signed by all arbitrators but to
prescribe that the fact of a missing signature and the reason therefor be stated in the
award and that at least a majority of the arbitrators have signed the award.
87. Another issue to be considered is whether the model law should establish any
requirements as to the contents of the award. (32) Some such elements might be viewed as
being too obvious to be expressly stated in the law, for example, the operative part
(decision), the names and addresses of the parties and of the arbitrators, and the subject–
matter of the dispute. However, there are points which may be less obvious but very
important, for example, the place and the date of the award. Finally, there is a point to be
included on which national laws differ and which is controversial, that is, whether the
award shall state the reasons on which it is based. Probably the most acceptable solution
on the international plane would be to require such statement of reasons unless the
parties have agreed that no reasons are to be given.
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P 845
[ .… ]
9. Delivery and registration of award
95. It is clear that the award has to be delivered to the parties, whereby copies signed by
the arbitrators or duly certified copies could be used. Such delivery or notification should
be required under the model law since it is one condition for the final and binding nature
of the award which, in turn, is a condition for its enforcement.
96. Another condition is, under a substantial number of national laws, that the award,
normally the authenticated original, is registered or deposited with a certain court or
office, differently designated in different States. It will have to be considered whether the
model law should require such deposit although it is not found in all national laws and,
where it is found, its regulation varies widely as regards form, procedure and competent
authority. Another possible reason against such a requirement relates to the fact that the
deposit, where it is required, is primarily needed for the enforcement of the award. Here,
special considerations come into play with regard to the model law to be discussed now.
[Editors' Note: Paragraphs 97–100 concern the “[e]xecutory force and enforcement of [an
arbitral] award”; they appear in the section on Article 35, pp. 1014–16 infra. These paragraphs
touch upon the question of whether to have a deposit requirement for awards issued under
the Model Law, which is a question that was also discussed in the drafting of Article 31. The
Secretariat suggests that the Model Law requirements for enforcement be aligned with those
of the New York Convention. In paragraph 100, the Secretariat notes that if this approach
were adopted, no deposit would be required for enforcement of any “international” award,
either when enforcing it in the country of origin under the Model Law, or elsewhere under the
Convention.]
11. Publication of award

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 101. It may be doubted whether the model law should deal with the question whether an
award may be published. Although it is controversial, since there are good reasons for and
against such publication, the decision may be left to the agreement of the parties or the
arbitration rules chosen by them. If, nevertheless, a provision were to be included,
probably an acceptable compromise could be that the award may be made public only
with the express consent of the parties.
SECOND SECRETARIAT NOTE
POSSIBLE FEATURES OF A MODEL LAW:
QUESTIONS FOR DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
V. Award
[ .… ]
3. Form of award (report, [First Secretariat Note, supra], paras. 86–87)
P 845
P 846 Question 5–4: Should the model law require that the award, which must be in writing, be
signed by all arbitrators or should it allow any exception, e.g., require that at least a
majority of the arbitrators has signed and that the fact of a missing signature of a named
arbitrator and the reasons therefor be stated (above the signatures of the other
arbitrators)?
Question 5–5: Should the model law require that the date and place of the award be stated
therein?
Question 5–6: Should the model law require that the award state the reasons upon which it
is based, unless the parties have agreed that no reasons are to be given?
[ .… ]
9. Delivery and registration of award
26. As indicated in the report (paras. 95–96), it is clear that the award must be
communicated or delivered to the parties, while it is less clear whether the model law
should also require deposit or registration of the award. Here, a fundamental question
arises which is closely connected with the enforcement of an “international” award under
the model law.
27. As suggested in the report (paras. 96–100 [see the section on Article 35, pp. 1014–16
infra]), an attempt might be made to treat all “international” awards alike irrespective of
whether recognition and enforcement is sought in the country of origin or abroad. If that
approach were accepted, deposit or registration may not be required but merely an
enforcement order (exequatur) in the country of enforcement, i.e. the system applicable
under the 1958 New York Convention would be adopted for all “international” awards. It
may be noted that the new French arbitration law has adopted such a unified approach in
its articles 1498–1500 which govern the recognition and enforcement of arbitral awards
whether rendered abroad or in international arbitration (in France).
* [Editors' Note: Decree No. 81–500 of 12 May 1981, appearing in VII Yearbook Commercial
Arbitration 271 (1982).]
Question 5–17: Should the model law state that the award shall be delivered to the parties
and in what form (e.g. signed copies)?
Question 5–18: Should the model law require that the award be deposited or registered
with a specified authority in the country where it was made? Or would it be preferable to
adopt the system of the 1958 New York Convention, which allows recognition and
enforcement of foreign arbitral awards without such deposit or registration, for all awards
covered by the model law, i.e. international commercial arbitration awards?
[ .… ]
11. Publication of award (report, para. 101)
Question 5–21: Would it be appropriate for the model law to deal with the question
whether an award may be published and, if so, should an express consent of the parties be
required?
P 846
P 847
FIRST WORKING GROUP REPORT
A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
V. Award
[ .… ]
3. Form of award
Question 5–4: Should the model law require that the award, which must be in writing, be

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 signed by all arbitrators or should it allow any exception, e.g., require that at least a
majority of the arbitrators has signed and the fact of a missing signature of a named
arbitrator and the reasons therefor be stated (above the signatures of the other
arbitrators)?
Question 5–5: Should the model law require that the date and place of the award be stated
therein?
Question 5–6: Should the model law require that the award state the reasons upon which it
is based, unless the parties have agreed that no reasons are to be given?
78. There was general agreement that, in the interests of certainty, the model law should
require that the award be in writing. As regards the signing of the award by the arbitrators,
the model law should include a provision envisaging signature by all the arbitrators.
However, provisions should also be included dealing with the cases where, exceptionally,
the award was not signed by all the arbitrators (e.g. where one arbitrator was unable or
unwilling to sign). Under the prevailing view, in such cases it should be sufficient if a
majority of the arbitrators had signed, and that the fact of the missing signature, and the
reasons therefor, were stated. Such a solution was found in several national laws, and was
in accord with article 32, paragraph 4 of the UNCITRAL Arbitration Rules. In relation to this
issue, it was pointed out that an arbitrator who was unable to sign could authorize another
person (e.g., the chairman of the tribunal) to sign on his behalf.
79. There was general agreement that the model law require that the date and place of the
award be stated therein. It was noted that the identity of the place of the award might be
relevant in enforcement proceedings under the 1958 New York Convention (e.g., article V,
1(e) — award set aside by a competent authority of the country in which the award was
made). If the date and place of the award was not stated therein, however, the prevailing
view was that the model law should not on that account declare the award invalid. In this
connexion, it was noted that this question had also to be considered subsequently in
connexion with the setting aside or annulment of awards (questions 6–6 et seq. [appearing
in the section on Article 34, pp. 929–31 infra]). A suggestion was made that thought might be
P 847 given to formulating a rule under which the award was to be deemed made on the date
P 848 and at the place indicated therein, even though the award may, for convenience, have
been signed in different places and at different times by the arbitrators.
80. There was wide support for the view that the model law should require that the award
state the reasons upon which it is based. Such a requirement was found in many national
arbitration laws, and would also have a beneficial influence on the decisions of the
arbitrators. Under another view, however, not requiring reasons to be stated also had
advantages: the award could be rendered speedily, could not easily be challenged, and
was appropriate for certain types of arbitrations (e.g., quality arbitrations). During the
deliberations, it was suggested that an acceptable solution might be to require the
statement of reasons, but to permit parties to waive this requirement. Such waiver might
take place expressly, or even by usage where the arbitration was conducted under rules
which did not contemplate the giving of reasons. It was noted that this solution was in
accordance with article 32, paragraph 3 of the UNCITRAL Arbitration Rules, and it received
very wide support.
[ .… ]
9. Delivery and registration of award
Question 5–17: Should the model law state that the award shall be delivered to the parties
and in what form (e.g. signed copies)?
100. There was general agreement that the model law should require that the award be
delivered to the parties and should specify in what form.
Question 5–18: Should the model law require that the award be deposited or
registered with a specified authority in the country where it was made? Or
would it be preferable to adopt the system of the 1958 New York Convention,
which allows recognition and enforcement of foreign arbitral awards without
such deposit or registration, for all awards covered by the model law, i.e.
international commercial arbitration awards?
101. There was wide support for not requiring that the award be deposited or registered in
the country where it was made. This was to adopt the system of the 1958 New York
Convention, which allows enforcement of foreign arbitral awards without such deposit or
registration, for all awards covered by the model law, although in borderline cases it might
be difficult to determine whether or not an award was covered by the model law.
102. Some support was expressed for requiring deposit or registration of an award. This
requirement would benefit parties, by ensuring the continued availability of the original
award or an authenticated copy thereof. A suggestion was made to provide for deposit or
registration only if at least one party so requested.
[ .… ]
11. Publication of award
Question 5–21: Would it be appropriate for the model law to deal with the question

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 whether an award may be published and, if so, should an express consent of the parties be
required?
P 848
P 849
105. There was general agreement that the model law should not deal with the question
whether an award may be published.
FIRST DRAFT
A/CN.9/WG.II/WP.38 (31 AUGUST 1982)
V. Award
[ .… ]
3. Form of award (7)
Article 27 [Art. 31 in the final text]
(1) An award shall be made in writing and shall be signed by the arbitral tribunal. If, in
arbitration proceedings with more than one arbitrator, the signature of an arbitrator
cannot be obtained, the signatures of a majority of the arbitrators shall suffice, provided
that the fact and the reason for the missing signature are stated.
(2) An award shall be made at the place of arbitration (article 18 [Art. 20 in the final text]). It
shall state the place where and the date on which it is made. [The award shall be deemed
to have been made at the place and on the date indicated therein.] (8) [Failing such
indication, the award shall be deemed to have been made at the place of arbitration and
on the date on which it is signed by the arbitral tribunal.] (9)
(3) The arbitral tribunal shall state the reasons upon which the award is based, unless the
parties have agreed that no reasons are to be given. (10) The arbitral tribunal is not
obliged to give reasons for an award on agreed terms. (11)
[ .… ]
8. Delivery and registration of award (31)
Article 35 [Art. 31 in the final text] (32)
(1) After an award is made under article 27, copies thereof signed by the arbitral tribunal
shall be communicated to the parties. (33)
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P 850
(2) Upon request by [the parties] [either party], the original award shall be filed with the
Authority specified in article 17 [Art. 6 of the final text]. (34) [This provision shall not be
interpreted as making such filing a pre–condition for recognition or enforcement of the
award.]
SECOND WORKING GROUP REPORT
A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Award
[ .… ]
Form of award
Article 27 [Art. 31 in the final text]
141. The text of article 27 as considered by the Working Group was as follows:
[same as First Draft, supra].
142. The policy underlying paragraph (1) of this article was supported. It was suggested that
the words “arbitral tribunal” in the first sentence of paragraph (1) should be replaced by
the word “arbitrators” to make it clear that it was the arbitrators who must sign the award
and not for example the presiding arbitrator or secretary of the arbitral tribunal on behalf
of the tribunal. It was also observed that in cases of arbitral tribunals composed of five or
more arbitrators the award could be valid even if more than one signature was missing. It
was agreed that paragraph (1) covered all such cases.
143. Regarding paragraph (2) of this article there was general agreement that as a matter of
principle the arbitral tribunal should make the award at the place of arbitration. However,
it was recognized that for reasons of convenience of the arbitrators and the parties an
award was often decided upon and signed in some other place.
144. Under the prevailing view the model law should not make doubtful the validity of the
award for the sole reason that the final agreement by the arbitrators on the award was not
reached at the place of arbitration. It was suggested, however, that the model law should
P 850 not imply that the arbitral tribunal has a right to state a fictitious place of making the
P 851 award. Therefore, under this view no provision establishing a presumption on the place

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 of making the award should be included in the model law. After the discussion it was
agreed that the basis of further discussions would be a provision to be drafted by the
Secretariat providing that the place of arbitration should be stated in the award and that
the award is deemed to be made at the place of arbitration.
145. There was general agreement that paragraph (3) of this article was acceptable.
[ .… ]
Delivery and registration of award
Article 35 [Art. 31 in the final text]
184. The text of article 35 as considered by the Working Group was as follows:
[same as First Draft, supra].
185. There was general agreement that paragraph (1) should be retained. It was suggested
that the words “by the arbitral tribunal” should be replaced by the words “by the
arbitrators in accordance with article 27.” It was also noted that arbitrators sometimes
withheld their award until the parties had paid the fees and expenses for the arbitration
and that this practice should not be precluded by the model law.
186. The Working Group decided to delete paragraph (2).
SECOND DRAFT
A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
H. Making of award and other decisions
[ .… ]
Article XXII [Art. 31 in the final text]
(1) An award shall be made in writing and shall be signed by the arbitrator or arbitrators. In
arbitration proceedings with more than one arbitrator [, if the signature of one or more
arbitrators cannot be obtained,] the signatures of more than half of all appointed
arbitrators shall suffice, provided that the fact and the reason for the missing signature or
signatures are stated. (22)
(2) The arbitral tribunal shall state the reasons upon which the award is based, unless the
parties have agreed that no reasons are to be given or the award is an award on agreed
terms under article XXI [Art. 30 in the final text].
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P 852
(3) An award shall state the place of arbitration [as referred to in article XVI [Art. 20 in the
final text]]. The award shall be deemed [irrebuttably] to have been made at that place and
on [the] [any] date indicated therein.
(4) After an award is made, a copy thereof signed by the arbitrators in accordance with
paragraph (1) of this article shall be communicated to each party.
FOURTH WORKING GROUP REPORT
A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[ .… ]
Article XXII [Art. 31 in the final text]
108. The text of article XXII as considered by the Working Group was as follows:
[same as Second Draft, supra].
Paragraph (1)
109. The Working Group adopted this paragraph, subject to improvement of the wording of
its second sentence along the following lines: “In arbitration proceedings with more than
one arbitrator, the signatures of the majority of all members of the arbitral tribunal shall
suffice, provided that the reason for any missing signature is stated.”
Paragraph (2)
110. The Working Group adopted this provision. Paragraph (3)
111. The Working Group noted that the date and the place at which an arbitral award was
made was of great importance, in particular, with regard to its recognition and
enforcement and any possible recourse against such award.
112. As regards the date, the Working Group decided to require in paragraph (3) that “the
award shall state its date.”
113. As regards the place, the Working Group adopted the principle that the award shall be
made at the place of arbitration as determined pursuant to article XVI(1) [Art. 20(1) in the
final text]. However, divergent views were expressed as to how one could best link this
principle with the requirement of establishing clearly the place at which the award was

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 made.
114. Under one view, the above principle should be embodied in the model law as a rule
binding on the arbitral tribunal, followed by a provision according to which the award shall
state the place at which it is made. The prevailing view, however, Was to adopt the
approach taken in paragraph (3), i.e., to require that the award state the place of
P 852 arbitration as determined pursuant to article XVI(1), followed by a provision according to
P 853 which the award shall be deemed to have been made at that place. It was noted that
the making of the award was a legal act which in practice was not necessarily one factual
act but, for example, done in deliberations at various places, by telephone conversation or
correspondence.
115. While there was some support for retaining the word “irrebuttably,” the prevailing view
was in favour of its deletion. It was understood, however, that such deletion should not be
construed as making the presumption rebuttable.
Paragraph (4)
116. The Working Group adopted this paragraph.
FOURTH DRAFT
A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 31. Form and contents of award
(1) An award shall be made in writing and shall be signed by the arbitrator or arbitrators. In
arbitral proceedings with more than one arbitrator, the signatures of the majority of all
members of the arbitral tribunal shall suffice, provided that the reason for any missing
signature is stated.
(2) The arbitral tribunal shall state the reasons upon which the award is based, unless the
parties have agreed that no reasons are to be given or the award is an award on agreed
terms under article 30.
(3) An award shall state its date and the place of arbitration as determined in accordance
with article 20(1). The award shall be deemed to have been made at that place.
(4) After an award is made, a copy thereof signed by the arbitrators in accordance with
paragraph (1) of this article shall be communicated to each party.
FIFTH WORKING GROUP REPORT
A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 31
111. The text of article 31 as considered by the Working Group was as follows: [same as
Fourth Draft, supra, except for minor drafting changes (*) ].
112. The Working Group adopted that article.
P 853
P 854
FIFTH DRAFT
A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 31. Form and contents of award
(1) The award shall be made in writing and shall be signed by the arbitrator or arbitrators.
In arbitral proceedings with more than one arbitrator, the signatures of the majority of all
members of the arbitral tribunal shall suffice, provided that the reason for any omitted
signature is stated.
(2) The award shall state the reasons upon which it is based, unless the parties have agreed
that no reasons are to be given or the award is an award on agreed terms under article 30.
(3) The award shall state its date and the place of arbitration as determined in accordance
with article 20(1). The award shall be deemed to have been made at that place.
(4) After the award is made, a copy signed by the arbitrators in accordance with paragraph
(1) of this article shall be delivered to each party.
SIXTH SECRETARIAT NOTE
ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 31. Form and contents of award
1. Czechoslovakia suggests stating expressly that the award must be definite in order to

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 exclude any uncertainty as regards the decison on the disputed claim. It further suggests
adding a paragraph to article 31 as follows: “An award meeting all requisites in accordance
with this article has the force of res judicata and shall be enforceable in courts.”
2. Norway expresses the opinion that the award ought to state whether any arbitrator has
dissented. The dissenting arbitrator should be allowed to state in the award itself his
reasons for dissenting. The proposal is to include in article 31 the following new paragraph:
“ (3 bis) The award shall state whether it has been rendered unanimously. If the
award has been rendered under dissent, it shall state the issue of the dissent
and which arbitrator dissented. Any dissenting arbitrator is entitled to state in
the award the reasons upon which his dissent was based.”
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 31. Form and contents of award
Article 31, paragraph (1)
1. The Sudan proposes adding at the end of paragraph (1) the following sentence: “However,
the award shall not include any dissenting judgement.”
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P 855
Article 31, paragraph (4)
2. AALCC recommends that, since paragraph (1) uses the wording “the arbitrator or
arbitrators,” the same wording should be used in paragraph (4).
Proposed addition to article 31
3. The Sudan suggests adding the following new paragraph to article 31:
“(5) The award shall not be published except with the written consent of both
parties.”
[ .… ]
C. Comments on additional points
[ .… ]
Secrecy of deliberations by arbitral tribunal
2. In the view of Canada, consideration should be given to providing in the model law that
from the time the inquiry by the arbitral tribunal is complete until the time the arbitration
is terminated by a final award or otherwise, the arbitral tribunal should keep its
deliberations secret and not discuss the arbitration with either party ex parte.
SEVENTH SECRETARIAT NOTE
ANALYTICAL COMMENTARY ON DRAFT TEXT
A/CN.9/264 (25 MARCH 1985)
Article 31. Form and contents of award
[ .… ]
Award in writing and signed, paragraph (1)
1. For the sake of certainty, the arbitral award shall be made in writing and signed by the
arbitrator or arbitrators. However, corresponding with the provision on decision making by
a panel of arbitrators (article 29), (83) the signatures of the majority of all members of the
arbitral tribunal shall suffice, provided that the reason for any omitted signature is stated.
2. This proviso is certainly appropriate for those cases where, after the award has been
finalized, an arbitrator dies or becomes physically unable to sign or cannot in fact be
P 855 reached anymore. Where, however, an arbitrator refuses to sign, the proviso may be open
P 856 to objection by those who are strictly against revealing whether an award was made
unanimously or whether an arbitrator dissented. On the other hand, there are those who,
based on their legal systems and practice, even want a provision in the model law entitling
the dissenting arbitrator to state his opinion. The Commission might wish to consider
whether the requirement of stating the reason for the omitted signature should be
maintained in the proviso and whether the model law should take a stand on the separate
issue of dissenting opinions, i.e., either generally allow or generally prohibit their issuance.
At present, it is submitted, this question falls under article 19(1) or (2) as a matter of the
conduct of the proceedings.
Statement of reasons, paragraph (2)
3. The practice of stating the reasons upon which the award is based is more common in
certain legal systems than in others and it varies from one type or system of arbitration to
another. Paragraph (2) adopts a solution which accommodates such variety by requiring

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 that the reasons be stated but allowing parties to waive that requirement. An agreement
that no reasons are to be given would normally be made expressly, including reference to
arbitration rules containing such waiver, but may also be implied, for example, in the
submitting of a dispute to an established arbitration system which is known not to
contemplate the giving of reasons. The same would apply to an intermediate solution,
practised in certain systems, such as to state the reasons in a separate and confidential
document.
Date and place of award, paragraph (3)
4. The date and the place at which the award is made are of considerable importance in
various respects, in particular, as far as procedural consequences are concerned, in the
context of recognition and enforcement and any possible recourse against the award.
Paragraph (3), therefore, provides that the award shall state its date and the place of
arbitration, which shall be deemed to be the place of the award.
5. This presumption, which should be regarded as irrebuttable, (84) is based on the
principle that the award shall be made at the place of arbitration determined in
accordance with article 20(1). It also recognizes that the making of the award is a legal act
which in practice is not necessarily one factual act but, for example, done in deliberations
at various places, by telephone or correspondence.
Delivery of award, paragraph (4)
6. Paragraph (4) provides that a signed copy of the award be delivered to each party.
Receipt of this copy is relevant, for example, as “receipt of the award” for the purposes of
articles 33(1), (3) and 34(3) and as a necessary condition for obtaining recognition or
enforcement under article 35(2). The model law does not require any other administrative
act such as filing, registration or deposit of the award.
P 856
P 857
SUMMARY RECORD
A/CN.9/SR.328–.329, .333
[18 June 1985, 9:30 A.M., A/CN.9/SR.328]
Article 31. Form and contents of award
Paragraph (1)
25. Mr. LAVINA (Philippines) said that the words “provided that the reason for any omitted
signature is stated” should be deleted. In his view, whether the reason for an omitted
signature was stated or not, the signatures of the majority of the members of the arbitral
tribunal should be sufficient to validate the award. He asked what the position would be if
the reason for an omitted signature was not given.
26. The CHAIRMAN [Mr. LOEWE (Austria)] said that paragraph (1) represented a compromise
between two extreme positions: on the one hand, that the majority of the arbitrators could
take any decision they wished; on the other, that all the arbitrators must sign an award.
The latter position could lead to difficulties in the event of an arbitrator's death, illness,
prolonged absence or refusal to sign. If the reason for an omitted signature was not given,
the users of the arbitral award should request the reason from the arbitrators. He noted
that a similar provision to paragraph (1) was found in article 32(4) of the UNCITRAL
Arbitration Rules. He suggested that the Commission should retain the existing wording.
27. It was so agreed.
Paragraph (2)
28. The Commission did not comment on paragraph (2).
Paragraph (3)
29. Mr. GRIFFITH (Australia) proposed that the provision in the second sentence should
apply to the date as well as the place of the award.
30. Mr. BONELL (Italy) said that the application of the second sentence might create a legal
fiction, since the place where the award was deemed to have been made might not
necessarily be the same as the actual place of arbitration.
31. Mr. GRIFFITH (Australia) said that a similar legal fiction might arise with regard to the
date of the award.
32. Mr. SZASZ (Hungary) said that there was an important difference between the date of
the award and the place of arbitration. It was right, for reasons of the enforcement of the
award, that the provision in the second sentence of paragraph (3) should apply to the
place of the award. However, in the case of the date of the award, the parties should have
the right to argue that the date on the award was not the true date.
33. Mr. HOLTZMANN (United States of America) said that he was inclined to favour the
P 857 Australian proposal, which filled a gap. An arbitral award was often circulated by mail
P 858 among the arbitrators for signature, and the date on the award could be a deemed date
just as the place of the award might be a deemed place. There were legal implications with

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 regard, for example, to the payment of interest from the date of an award.
34. Mr. ROEHRICH (France) said that he could not really understand the Australian
proposal. While there could be two places concerned, namely the place of arbitration and
the place of the award, there could be only one date — the date on which the proceedings
ended.
35. The CHAIRMAN pointed out that there could be several possible dates relating to the
award: the date of signing it, the date of making it or the date of its notification to the
parties. The aim of the Australian proposal was to prevent any litigation concerning the
date of the award, but the Commission might not see any reason to forbid such litigation.
36. Mr. ROEHRICH (France) said that there could be litigation concerning the date even with
the existing text. The main thing was that the arbitrators should fix the date of the award;
in that respect, the present text was satisfactory. The introduction of the notion of a
deemed date might be more likely to lead to litigation than leaving the sentence as it was.
37. Mr. MOELLER (Observer for Finland) said that the purpose of the second sentence was to
specify an irrebuttable presumption about the place of arbitration. The date of the award
should not be treated in the same way. He did not favour the Australian proposal but
thought that the drafting committee might find a way of overcoming the problem it
addressed.
38. Mr. VOLKEN (Observer for Switzerland) said that the present text should be retained. He
noted that a deemed date might have implications for the application of article 34(3)
concerning the time–limit for the setting aside of an award.
39. Mr. BONELL (Italy) said that arbitration rules or arbitration agreements often set a
time–limit for the making of the award. It sometimes happened that the arbitrators were
not able to keep within the time–limit. If the date of the award could not be rebutted,
difficulties might arise, for example in connection with the discovery of new evidence.
40. Mr. HOLTZMANN (United States of America) said that the discussion had made it clear
that the place of the award should be an irrebuttable presumption while the date of the
award should be a rebuttable one.
41. Mr. GRAHAM (Observer for Canada) said that the arbitrators could sit in one jurisdiction
and make the award in another. The purpose of the provision was to give the arbitral
tribunal flexibility in stating the place of the award.
42. Mr. JOKO-SMART (Sierra Leone) suggested that the Commission might dispose of the
issue by redrafting the paragraph as follows: “The award shall state its date, the place
where it is made and the place of arbitration as determined in article 20(1).”
P 858 43. The CHAIRMAN said that he thought the suggestion made by the representative of Sierra
P 859 Leone would lead to a very long discussion. Since there seemed to be little support for
the Australian proposal he would take it that the Commission wished to leave the
paragraph unchanged.
44. It was so agreed.
Paragraph (4)
45. Mr. de HOYOS GUTIERREZ (Cuba) suggested that the paragraph should provide for the
date of notification of the award, because any time–limit with respect to enforcement
would run from that date. The date of notification could be determined by the criterion
either of the date of dispatch or of the date of receipt.
46. The CHAIRMAN said that he did not see how the date of notification could be known in
advance and indicated in the award. Proof of the date of dispatch or receipt could be
obtained only after the event. He suggested that the Commission's report should refer to
the point made by the representative of Cuba, indicating the importance of the date of
notification and the need for proof of it to be provided where possible.
47. Mr. RUZICKA (Czechoslovakia) said that the status and effects of an award made under
the model law could usefully be included in the article under discussion. His Government
had proposed in its written comments ([Sixth Secretariat Note (Government Comments),]
A/CN.9/263, [Art. 31, para. 1]) that a new paragraph should be added to the effect that an
arbitral award made in accordance with the article had the force of res judicata and would
be enforceable in the courts.
48. Mr. MOELLER (Observer for Finland) supported the Czechoslovak proposal because it
emphasized the fact that an award did not need to be filed, registered or deposited with a
court in order to be recognized or enforced.
49. Mr. ENAYAT (Observer for the Islamic Republic of Iran) said that the text should not be
changed. The Czechoslovak amendment would not be consistent with the provisions
concerning suspension of the setting aside proceedings in article 34(4).
50. Mr. ROEHRICH (France) said that the Czechoslovak proposal would duplicate the
provisions of article 35(1), which stated that an arbitral award should be recognized as
binding irrespective of the country in which it was made.
51. Mr. HOLTZMANN (United States of America) pointed out that, under some legal systems,

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 the concept of res judicata might be too limited for the purposes of the article under
discussion.
52. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that it was important that the
model law should specify whether the arbitration award became binding on the date it
was made, the date on which it was notified to the parties, or at the end of the three–
month setting aside period mentioned in article 34(3). The point was relevant to the
recognition and enforcement of foreign arbitral awards under the 1958 New York
Convention. The date on which an arbitral award became binding could be indicated in a
separate paragraph or simply in a separate sentence.
P 859
P 860
53. Mr. BONELL (Italy) agreed with the Soviet Union representative that the date on which
an award became binding should be indicated in the model law. He would prefer that to
be done in article 31(3) or article 31(4). His delegation considered that the arbitral award
should be binding from the date on which it was made. However, the Czechoslovak
proposal was not an acceptable way of dealing with the matter because of its reference to
res judicata.
54. The CHAIRMAN said that, in his personal opinion, the arbitral award should be binding
from the date of its notification to the parties. If that view was acceptable, a statement
might be added to article 31(4) to the effect that the award was binding upon the parties
from the date of its delivery to each party. If the award became binding from the day it
was made, it would be binding on the parties before they had had a chance to study it. On
the other hand, three months was too long a period to allow it not to be binding if there
was clearly no prospect of either party seeking to set it aside.
55. Mr. HOLTZMANN (United States of America) said that his delegation supported the
Soviet Union suggestion in principle but felt that the Commission had not yet had time to
consider its implications. The Chairman's suggestion could mean that the arbitral award
would become binding on each party on a different date.
56. The CHAIRMAN said that, in that case, the later of the two dates should be taken as the
date on which the award became binding.
57. Mr. VOLKEN (Observer for Switzerland) asked why the matter had not been made clear
in the original draft text of the model law.
58. Mr. HERRMANN (International Trade Law Branch) said that the issue had been raised in
connection with article 35, but had not been dealt with in the text. It seemed best for an
award to become binding on the date on which it was made, but as a safeguard, article
34(3) stated that an application for setting aside could be made for three months from the
date of notification of the award, rather than from the date on which the award was made.
[18 June 1985, 2:00 p.m., A/CN.9/SR.329]
1. The CHAIRMAN [Mr. LOEWE (Austria)] said that the discussion seemed to be moving
towards an agreement that article 31 should contain some definition of when an award
became binding. One view was that the date should be that of the rendering of the award
and the other that it should be the date on which the award was received by one or other
party, or if there were two dates the later of the two.
2. Mr. HOLTZMANN (United States of America) thought that for simplicity's sake it would be
better to select the date of the award, which was known and certain. The date of receipt
would require proof, and the later of two dates would require two sets of evidence. Any
possible unfairness that might result from using the date of the award, such as the
curtailment of the period for recourse, could be remedied in the later articles.
P 860
P 861
3. Mr. LOEFMARCK (Sweden) doubted whether there was any point in specifying that an
award became binding on a certain date. If other delegations felt strongly that a date
should be set, however, his delegation would not object.
4. Mr. GRIFFITH (Australia) also felt that the proposed addition was unnecessary. If there
must be a date, however, it should be that of the award.
5. Mr. SAWADA (Japan) believed that if a date had to be determined it should be the date
on which the party was informed of the award — possibly several different dates because
there might be several different parties. It would seem very strange if the award were to
become binding without the parties knowing of it. He was still not certain, however, that
any date should be set.
6. Mr. de HOYOS GUTIERREZ (Cuba) endorsed the principle of the Czechoslovak proposal
but felt that a definite time should be set for the award to become binding, in other words,
to have the force of res judicata and be enforceable in courts. A period of time must elapse,
however, before an award became final. His delegation therefore considered that the
proposal would be acceptable if it was made clear that the award would only become
binding after three months from the time of its receipt.
7. Mr. MTANGO (United Republic of Tanzania) was also doubtful as to the advantage of
specifying a date on which the award would be regarded as binding. If the consequences of

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 the award had to run from a certain date, however, that date must be the one on which the
party received it. Questions of enforcement and setting aside were involved, and if a date
was set it must be that on which the award was actually received by the party concerned.
8. Mr. VOLKEN (Observer for Switzerland) said that the point at issue was whether a specific
date was actually necessary. The model law contained three articles for which such a date
could be useful, namely articles 33, 34 and 36. In article 33(1), which dealt with the
correction and interpretation of awards, a date was specified — “within thirty days of
receipt of the award”. In article 34(3), on application for setting aside, there was again a
specific time period — “an application for setting aside may not be made after three
months have elapsed from the date on which the party making that application had
received the award.” Article 36, on grounds for refusing recognition or enforcement,
contained in its paragraph (1)(a)(v) a provision to the effect that recognition or
enforcement could be refused at the request of the party against whom it was invoked if
there was proof that the award had “not yet become binding.” If the model law did not
anywhere define the point of time at which an award became binding, a party making a
request for refusal on those grounds would not know when that point was. He felt, therefore,
that it was necessary to specify the time somewhere in the model law and agreed with
those representatives who were in favour of the date of the award itself.
P 861 9. Mr. SCHUMACHER (Federal Republic of Germany) supported the Czechoslovak proposal;
P 862 the question of when an award became binding was an important one and it was
inappropriate for it to be dealt with only implicitly, through article 35. His delegation
considered that the time should be the latest date of receipt by the parties.
10. Mr. RICKFORD (United Kingdom) agreed with the doubts that had been expressed as to
the desirability of specifying a date in the model law. If the general feeling was that a date
should be determined, a number of considerations should be taken into account. The
uniform rules of the model law ought to be subject to the agreement of the parties, who
might wish to delay the binding effect of the award between themselves until after the
expiry of a certain period. Room should also be left for the award itself to state that it was
not binding until a certain time had elapsed. If some presumptive date was required,
however, his delegation would endorse the view of the Federal Republic of Germany. The
United States proposal had considerable value in terms of certainty but it was difficult to
reconcile with article 36(1)(a)(v). On the whole, however, his delegation had grave doubts as
to the wisdom of adding such a rule.
11. Mr. STROHBACH (German Democratic Republic) supported the Czechoslovak proposal to
the effect that it should be expressly stated that an award was definite and binding on the
parties. As to the date on which that should occur, he shared the view of the United States
representative as being the most practical way of arriving at a uniform date and
preventing additional subsequent disputes. He did not think that it would be helpful to
bring up the question of party agreement. He therefore proposed that the date should be
that of the award itself, without leaving open any possibility for the parties to prescribe an
additional period. He did not think it would be necessary to make any change in article 36,
since that article referred to the recognition or enforcement of awards made under the
model law and under other systems.
12. Mr. HOLTZMANN (United States of America) agreed with the Observer for Switzerland
that, if a definition of when an award became binding was needed in the model law, it was
for the purposes of article 36. If no provision was made in the model law the matter might
be covered by local law, which might require filing, registration and so on. Accordingly, a
provision stating that an award became binding at the moment it was signed by the
arbitrators would be helpful. The necessity of proving receipt, which would arise if the last
date of delivery was accepted, could cause many practical difficulties, especially where
time was an important consideration.
13. Mr. TORNARITIS (Cyprus) agreed in principle with the Czechoslovak proposal. In order,
however, to cover certain legal effects governed by other provisions of the model law it
might be well to state that the award became binding from the date on which it was
rendered unless otherwise provided by law.
14. Mr. PAULSSON (Observer, Chartered Institute of Arbitrators) endorsed both the
Czechoslovak proposal and the United States suggestion in regard to a date. He noted that
in French law the matter had been considerably developed. There had been many cases in
P 862 French judicial practice prior to 1980 in which the finding was that an award was binding as
P 863 from the moment it was rendered. A provision to that effect, included in the law on
arbitration which had been adopted in 1980, had become very important in practice and
was frequently invoked. The rendering of an award created certain abstract rights which
could be of great interest and which did not necessarily require for their existence an
awareness on the part of the party which enjoyed them.
15. Mr. LAVINA (Philippines) thought that the formula proposed by the United States
delegation was both practical and realistic, and would result in a uniform date. He agreed
that it was also necessary for the purposes of article 36(1)(a)(v).
16. The CHAIRMAN noted that some delegations considered that it was useful and
necessary to fix a date on which an award became binding, though omitting the reference
to res judicata and enforceability, while others felt that such a provision would not be very

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 useful. As for the actual time to be set, there seemed to be a slight majority in favour of the
date of the rendering of the award.
17. Mrs. RATIB (Egypt) said that her delegation considered that the date should be that on
which the parties received notification of the award.
18. Mr. LOEFMARCK (Sweden) said that his delegation would prefer the date of the award. At
the same time, if a specific date was decided on, it would be necessary to clarify what was
meant by an award that was binding.
19. Mr. MTANGO (United Republic of Tanzania) agreed that it would be necessary to know
the meaning of “binding” before deciding on a date. Delegations would have to be clear on
that point in order to advise their Governments which might be considering adopting the
model law.
20. Mr. BONELL (Italy) felt that the Commission could not embark at that stage on a
discussion of the implications of the binding effect of an award. His delegation would
favour including a provision drafted on the lines suggested by the delegations of the Soviet
Union and the United States and specifying the date of the rendering of the award.
21. Mr. ROEHRICH (France) said that, if the provision was included, the date set should be
that of the award, as being the only known and certain date.
22. Mr. GRAHAM (Observer for Canada) said that it was customary in many countries to
specify in the arbitration agreement when precisely an award became binding. As far as
the model law was concerned, if the last date of receipt was taken as the relevant one the
problem would remain of ascertaining that date. The point could be solved by the
provision in article 2(e) which laid down when a written communication should be deemed
to have been received. While his delegation would prefer the United States suggestion, it
would therefore not object strongly to the proposal to use the date of receipt.
23. Mr. TORNARITIS (Cyprus) still believed that a distinction should be made between the
P 863 validity of the award and its legal consequences. It should be stated that the award
P 864 became valid as from the date of its rendering and that it produced its legal effects at
that time, unless otherwise expressly provided in “this Law.”
24. The CHAIRMAN said that, since it was apparently not possible to satisfy all points of
view, the Commission would have to keep the text as it stood and not insert a new
paragraph. The report would state that there had been a lengthy discussion, with several
delegations in favour of inserting a provision of the kind proposed, some of them being in
favour of specifying the time of the award, others the time of its receipt by the parties and
one delegation the time of the expiry of the period laid down for making application to set
aside the award. If there were no objection, he would take it that the Commission agreed to
approve article 31 on that basis.
25. It was so agreed.
[21 June 1985, 10:00 a.m., A/CN.9/SR.333]
Articles 31 and 32 [as revised by the Drafting Group]
16. Articles 31 and 32 were adopted.
COMMISSION REPORT
A/40/17 (21 AUGUST 1985)
Article 31. Form and contents of award
251. The text of article 31 as considered by the Commission was as follows: [same as Fifth
Draft, supra].
Paragraphs (1) and (2)
252. Paragraphs (1) and (2) were adopted.
Paragraph (3)
253. Various views were expressed in respect of a proposal made to amend the second
sentence of paragraph (3) to read “The award shall be deemed to have been made at that
place and on that date.” Under one view the amendment was desirable because it would
make the second sentence consistent with the first sentence. Moreover, the date of the
award might be significant in a number of different contexts. Since an award might be
circulated among the arbitrators by mail for their signature, it might be difficult to know
the date of the award. The only date that could be certain was the date on the award, even
if that date was a deemed date.
254. Under another view there was a basic difference between the place stated on the
award being deemed to be the place of the award and the date stated on the award being
deemed to be the date of the award. The former is an irrebuttable presumption to assure
the territorial link between the award and the place of arbitration. The latter must be
rebuttable, since the arbitrators, as well as the parties, might have reasons for stating the
date of the award to be earlier or later than the date it was actually rendered.
255. The Commission, after discussion, did not adopt the proposal.
P 864

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 P 864
P 865
Date on which award becomes binding
256. It was observed that according to article 36(1)(a)(v) of the model law and article V(1)(e)
of the 1958 New York Convention recognition or enforcement of an award might be refused
if the award had not yet become binding on the parties and that article 35(1) in dealing
with the binding nature of an award did not specify the moment when an award became
binding. In the light of that observation it was proposed that the model law should define
that moment. The Commission considered the following three variants of a possible rule:
an arbitral award becomes binding on the parties as of (a) the date on which the award is
made, (b) the date on which the award is delivered to the parties, or (c) the date on which
the period of time for making an application for setting aside the award expires.
257. There was general approval of the idea that it would be useful to have such a
provision, although some doubt was raised as to whether it was necessary. In that regard it
was pointed out that under article 34(3) the setting aside procedure already specified that
it was the date on which the party making the application received the award that
commenced the three month period after which application for setting aside could not be
made. There was little agreement as to the date on which the award should become
binding. The previous discussion had demonstrated the difficulties of relying either on the
date stated on the award or the date of the award. As regards the date on which one or
both parties were notified of the award, the practical difficulties of establishing that date
in the various factual situations arising in arbitration were described. Moreover, it was
difficult to conceive of an award becoming binding on the parties on different dates simply
because they were notified of it on different dates.
258. After discussion the Commission did not adopt the proposal.
Res judicata
259. A proposal was made to include in article 31 a provision clarifying that the award
made in the form provided in article 31 had the effect of res judicata. While not disagreeing
with the general principle that awards were binding on the parties, the Commission did not
adopt the proposal because it was considered that the term res judicata was a complex
one which could have different applications in various legal systems.
P 865

References
1) See First Working Group Report, A/CN.9/216, para. 101, p. 848 infra. The question of a
requirement that awards be deposited is discussed further below under the heading
“Paragraph 4.”
2) The question of the date and place of making the award is discussed under the
heading “Paragraph 3”; the question of the rights of dissenting arbitrators is discussed
under the heading “Paragraph 1”; the question of when the award becomes binding is
discussed under the heading “Paragraph 4.”
The Working Group and the Commission considered — but did not adopt — a definition
of the term “award.” These materials appear in the section on Article 2, supra.
3) First Secretariat Note, A/CN.9/207, para. 86, p. 844 infra; see First Working Group
Report, A/CN.9/216, para. 78, p. 847 infra.
4) First Working Group Report, A/CN.9/216, para. 78, p. 847 infra.
5) See Seventh Secretariat Note, A/CN.9/264, para. 1, n. 83, p. 855 infra; see also Sixth
Secretariat Note (Government Comments), A/CN.9/263/Add.1, Art. 29, para. 3, pp. 817–
18 supra (suggesting that Article 31 requires majority to sign award even if the parties
have agreed under Article 29 that the presiding arbitrator is to make the decision). It
may be argued that Article 31 is nonmandatory even though it does not state that the
parties may agree otherwise. In connection with the drafting of a proposed Article that
would have listed the mandatory provisions of the Law, the Working Group cautioned
that the fact that some Articles were stated to be nonmandatory did not mean that all
other Articles were necessarily intended to be mandatory. See Fifth Working Group
Report, A/CN.9/246, para. 177, appearing in the section on Matters Not Addressed in
the Final Text, pp. 1152–53 infra.
6) Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 31, para. 2, p. 854
infra.
7) Id., A/CN.9/263/Add.1, Art. 31, para. 1, pp. 854–55 infra.
8) Seventh Secretariat Note, A/CN.9/264, Art. 31, para. 2, pp. 855–56 infra. The
Secretariat's discussion was presumably limited to the question of whether a
dissenting opinion will be issued by the arbitral tribunal. It is submitted that the
Model Law does not address the quite different question of whether a dissenting
arbitrator might issue his or her dissenting opinion separately if the arbitral tribunal
does not issue it.
9) First Working Group Report, A/CN.9/216, para. 80, p. 848 infra.

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 10) See id.; Seventh Secretariat Note, A/CN.9/264, Art. 31, para. 3, p. 856 infra. The
Secretariat noted that the same could be said of a submission to arbitration that
contemplated that the statement of reasons would be contained in a separate,
confidential document. Id.
11) See First Working Group Report, A/CN.9/216, para. 79, pp. 847–48 infra.
12) See generally id.; Second Working Group Report, A/CN.9/232, para. 143, p. 850 infra;
Fourth Working Group Report, A/CN.9/245, para. 114, pp. 852–53 infra; Summary Record,
A/CN.9/SR.328, para. 41, p. 858 infra.
13) A/CN.9/WG.II/WP.38, Art. 27(2), p. 849 infra.
14) Second Working Group Report, A/CN.9/232, para. 144, pp. 850–51 infra.
15) Fourth Working Group Report, A/CN.9/245, para. 114, pp. 852–53 infra; accord Seventh
Secretariat Note, A/CN.9/264, Art. 31, para. 5, p. 856 infra.
16) The Working Group stated at the outset that the award should not be declared invalid
for failure to comply with this requirement. First Working Group Report, A/CN.9/216,
para. 79, pp. 847–48 infra. To implement this proposal, the Secretariat drafted a
provision that if the place where the award had been made was not stated, the award
would be deemed to have been made at the place of arbitration. First Draft, A/CN.9/
WG.II/WP.38, Art. 27(2) & n. 9, p. 849 infra. This provision was not specifically discussed
later and was not included in subsequent drafts or the final text of Article 31.
17) See First Draft, A/CN.9/WG.II/WP.38, Art. 27(2), p. 849 infra; Second Draft,
A/CN.9/WG.II/WP.40, Art. XXII(3), p. 852 infra.
18) Fourth Working Group Report, A/CN.9/245, para. 112, p. 852 infra.
19) See Summary Record, A/CN.9/SR.328, paras. 29–44, pp. 857–59 infra; Commission
Report, A/40/17, paras. 253–254, p. 864 infra.
20) This distinction is suggested by several comments recorded in the Summary Record,
see Summary Record, A/CN.9/SR.328, paras. 32, 39, pp. 857–58 infra; and by the
Commission Report's somewhat cryptic discussion of the question: “The former [the
presumption regarding the place stated in the award] is an irrebuttable presumption
to assure the territorial link between the award and the place of arbitration. The latter
[regarding the date stated in the award] must be rebuttable, since the arbitrators, as
well as the parties, might have reasons for stating the date of the award to be earlier
or later than the date it was actually rendered,” A/40/17, para. 254, p. 864 infra.
21) First Draft, A/CN.9/WG.II/WP.38, Art. 35(1), n. 33, p. 850 infra. The term “communicated”
in the Rule provision was changed to “delivered,” apparently by a drafting group prior
to the Working Group's final session on the Law. Compare Fourth Draft,
A/CN.9/WG.II/WP.48, Art. 31(4), p. 853 infra, with Fifth Working Group Report,
A/CN.9/246, para. 111, p. 853 infra. No explanation for the change was given in the
Report. While the term “delivered” suggests more of a physical transmittal than does
the term “communicated,” no substantive change in meaning should be inferred from
a drafting group change. The term may have been chosen simply because it was
considered easier to translate accurately into the other official languages of the
United Nations.
22) See Seventh Secretariat Note, A/CN.9/264, Art. 31, para. 6, p. 856 infra.
23) See First Secretariat Note, A/CN.9/207, para. 97, appearing in the section on Article 35,
p. 1014 infra. “Exequatur” refers to court–granted leave to enforce an arbitral award.
The relevant provisions of the New York Convention are Articles III and IV, which are
quoted and explained in the First Secretariat Note, paragraphs 99 and 100, pp. 1015–16
infra.
24) See id. paras. 97–100, appearing in the section on Article 35, pp. 1014–16 infra; Second
Secretariat Note, A/CN.9/WG.II/WP.35, para. 27, p. 846 infra.
25) First Working Group Report, A/CN.9/216, para. 102, p. 848 infra.
26) Id.; First Draft, A/CN.9/WG.II/WP.38, Art. 35(2), p. 850 infra. The Secretariat suggested
that the provision might be extended to all documents and records of the arbitration
proceedings. Id. n. 34.
27) Second Working Group Report, A/CN.9/232, para. 186, p. 851 infra.
28) Fourth Secretariat Note, A/CN.9/WG.II/WP.50, para. 29, appearing in the section on
Article 35, pp. 1029–30 infra.
29) Id.
30) Fifth Working Group Report, A/CN.9/246, para. 148, appearing in the section on Article
35, p. 1033 infra.
31) See Summary Record, A/CN.9/SR.320, paras. 81–84; Commission Report, A/40/17, paras.
316–317; both sources appear in the section on Article 35, pp. 1047–1052 infra. The
materials are not entirely unambiguous as to the reason for the change. See the
commentary on Article 35, p. 1009–10 infra.
32) Second Working Group Report, A/CN.9/232, para. 185, p. 851 infra. The Working Group
considered but did not adopt provisions on the fees and costs of arbitration. See the
section on Matters Not Addressed in the Final Text, pp. 1145–48 infra.
33) First Secretariat Note, A/CN.9/207, para. 101, p. 845 infra.
34) Sixth Secretariat Note (Government Comments), A/CN.9/263/Add.1, Art. 31, para. 3, p.
855 infra.

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 35) First Working Group Report, A/CN.9/216, para. 105, p. 849 infra.
A related matter that was briefly raised was whether the Model Law should include a
provision barring the tribunal from revealing the contents of its deliberations or from
having ex parte discussions with either party. Such a proposal was advanced by
Canada in its comments on the Working Group's final draft, see Sixth Secretariat Note
(Government Comments), A/CN.9/263/Add.1, “Comments on additional points,” para. 2,
p. 855 infra, but was not raised or discussed during the Commission's session.
36) Fourth Secretariat Note, A/CN.9/WG.II/WP.50, para. 28, appearing in the section on
Article 35, p. 1029 infra.
37) Id. Cf. Second Draft, A/CN.9/WG.II/WP.42, Art. 37, n. 7, appearing in the section on
Article 36, p. 1079 infra (under the New York Convention, an award is commonly
considered not binding if it is “still open to ordinary means of recourse”); Secretariat
Study on the New York Convention, A/CN.9/168, para. 41, appearing in the same
section, p. 1068 infra (same).
38) Fifth Working Group Report, A/CN.9/246, para. 148, appearing in the section on Article
35, p. 1033 infra.
Citing this statement in the Working Group's Report, the Secretariat's commentary on
the Working Group's final draft stated that under Article 35(1), “an award shall be
recognized as binding, which means, although this is not expressly stated, binding …
from the date of the award.” Seventh Secretariat Note, A/CN.9/264, Art. 35, para. 4,
appearing in the section on Article 35, p. 1040 infra. But see Commission Report,
A/40/17, para. 313, appearing in the section on Article 35, p. 1051 infra (“As regards
foreign arbitral awards, th[e] question [of when an award becomes binding] would have
to be answered, in conformity with the rule laid down in Article 36(1)(a)(v), by the law
of the State in which, or under the law of which, the award was made.”).
39) Summary Record, A/CN.9/SR.328, para. 52, p. 859 infra; see also Sixth Secretariat Note
(Government Comments), A/CN.9/263, Art. 35, para. 2, appearing in the section on
Article 35, p. 1037 infra.
40) See Commission Report, A/40/17, para. 256, p. 865 infra; Summary Record,
A/CN.9/SR.328, paras. 52–58; SR.329, paras. 1–25, pp. 859–64 infra.
41) See generally the sources cited in the preceding footnote. No rationale for this last
date is stated in the Summary Record or the Report; the one stated is supplied by the
editors. Cf. Summary Record, A/CN.9/ SR.329, para. 6, p. 861 infra (urging that “[a]
period of time must elapse … before an award became final”).
42) Summary Record, A/CN.9/SR.329, para. 24, p. 864 infra. A similar debate occurred
during consideration of when a proposed limitations period for enforcing an arbitral
award should begin to run. The proposal was not adopted. See the commentary on
Matters Not Addressed in the Final Text, p. 1121, n. 39 infra.
*) [Editors' Note: Para. 3 of this document refers to a consultative meeting held at Paris on
7–8 September 1978 attended by representatives of the UNCITRAL Secretariat and of the
secretariat of the Asian–African Legal Consultative Committee (AALCC), and by members
of the International Council for Commercial Arbitration and of the Commission on
International Arbitration of the International Chamber of Commerce.]
*) [Editors' Note: This refers to recommendations by the AALCC that led to the drafting of
the Model Law. They appear in the Secretariat Note Reporting AALCC Decision,
A/CN.9/127, Annex, para. 3, appearing in the section on Purposes and Procedures of the
Commission, p. 1162 infra.]
32) Cf. e.g. art. 22 (5), (6) of the 1966 Strasbourg Uniform Law [European Convention
Providing a Uniform Law on Arbitration, Europ. T.S. No. 56 (Annex)]:
“5. An award shall, in addition to the operative part, contain the following particulars:
(a) the names and permanent addresses of the arbitrators: (b) the names and
permanent addresses of the parties; (c) the subject–matter of the dispute; (d) the date
on which the P 844 award was made; (e) the place of arbitration and the place where
the award was made. 6. The reasons for an award shall be stated.”
7) Discussion and conclusions of the Working Group in [First Working Group Report,]
A/CN.9/216, paras. 78–80.
8) The sentence in parenthesis reflects the suggestion set forth in para. 79 of [First
Working Group Report,] A/CN.9/216.
9) The last sentence is modelled on article 22 of the ICC Rules of Arbitration (1975). It
would indirectly express the view prevailing in the Working Group ([First Working Group
Report,] A/CN.9/216, para. 79) that an award was not invalid by the mere reason that
the place and time were not stated therein.
10) This sentence is modelled on article 32(3) of the UNCITRAL Arbitration Rules.
11) This sentence could also be incorporated into the draft article relating to settlement
by the parties (article 33 [Art. 30 of the final text]).
31) Discussion and conclusions of the Working Group in [First Working Group Report,]
A/CN.9/216, para. 100–102.
32) This draft article might later be combined with draft article 27.
33) This draft provision is modelled on article 32(6) of the UNCITRAL Arbitration Rules.

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 34) The Working Group may wish to consider the appropriateness of including a similar
provision for the filing of all documents and records of the arbitration proceedings, in
particular in ad hoc arbitration.
22) The idea mentioned in foot–note 20 might be considered here, too. [Editors' Note:
Footnote 20, which appears in full in the section on Article 29, p. 814 supra, invited
“discussion by the Working Group on whether it might not be sufficient to deal, in the
model law, only with the case of three (and not more) arbitrators and, then, either to
include a mutatis mutandis provision for cases with more than three arbitrators or to
leave it to the States adopting the model law whether or not to deal with questions of
such big panels.”]
*) [Editors' Note: The drafting changes were all carried into the final text. They were: In
paragraphs 1, 3 and 4, the term “an award” was replaced with “the award”; in paragraph
1, the term “missing” was replaced with “omitted”; in paragraph 2, the first clause was
replaced with “The award shall state the reasons upon which it is based”; in paragraph 4,
the word “thereof” was deleted and the word “communicated” was replaced with
“delivered.”]
83) The Commission may wish to consider the appropriateness of establishing full
correspondence with article 29, by aligning the signature requirement to any agreed
system other than decision by majority (see commentary to article 29, para. 3 [p. 818
supra]).
84) [Fourth Working Group Report,] A/CN.9/245, para. 115.

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Document information
UNCITRAL Model Law, Chapter VI, Article 32 [Termination of
Publication proceedings]
A Guide to the UNCITRAL (1) The arbitral proceedings are terminated by the final award or by an order of the
Model Law on International arbitral tribunal in accordance with paragraph (2) of this article.
Commercial Arbitration:
Legislative History and (2) The arbitral tribunal shall issue an order for the termination of the arbitral
Commentary proceedings when:
(a) the claimant withdraws his claim, unless the respondent objects thereto and the
arbitral tribunal recognizes a legitimate interest on his part in obtaining a final
Organization settlement of the dispute;
United Nations Commission (b) the parties agree on the termination of the proceedings;
on International Trade Law (c) the arbitral tribunal finds that the continuation of the proceedings has for any other
reason become unnecessary or impossible.
(3) The mandate of the arbitral tribunal terminates with the termination of the arbitral
Promulgation proceedings, subject to the provisions of articles 33 and 34(4).
21 June 1985
Commentary
Article 32 prescribes the circumstances under which the arbitral proceedings are to be
Legislation number terminated and the mechanisms for doing so. (1) Two purposes of the Article are plain on
United Nations Document its face: (2) First, it provides important guidance as to the procedure to be followed at what
A/40/17, Annex I the Secretariat called “this last, but not unimportant, phase of the proceedings”; (3) the
Article indicates, for example, under what circumstances the proceedings are to be
terminated when the claimant withdraws the claim. Second, it regulates the termination of
the mandate of the arbitral tribunal, which is a consequence of a termination of
Bibliographic reference proceedings except in the two instances noted in the Article — when there is a request to
'UNCITRAL Model Law, correct or interpret the award under Article 33 and when a matter is remitted to the
Chapter VI, Article 32 arbitral tribunal under Article 34(4). (4)
[Termination of
proceedings]', in Howard M. P 866 A third purpose of the article — not explicitly mentioned therein but noted several times
P 867 during the drafting of the provision — is to provide a specified and certain date of
Holtzmann and Joseph termination for purposes not directly related to the arbitration per se. Two examples were
Neuhaus , A Guide to the suggested of situations in which such certainty might be important: determining when the
UNCITRAL Model Law on limitations period on a matter should be restarted and deciding at what point a party may
International Commercial resort to another forum. (5)
Arbitration: Legislative
History and Commentary, Although the basic outlines of Article 32 did not change significantly after the Secretariat's
(© Kluwer Law International; initial drafts of it, many of its details evolved during the debates by the Working Group and
Kluwer Law International the Commission; these deliberations shed light on the drafters' understanding of the
1989) pp. 866 - 887 provisions ultimately adopted. The remainder of this commentary discusses the major
issues discussed in connection with each paragraph or subparagraph.
Paragraph 1. The two words that received the most attention in the drafting of paragraph 1
were “final award.” They are all that remain of a proposal to address in a separate article
the different possible types of awards — e.g., final, interim, interlocutory, partial — that a
tribunal might issue.
In its initial discussion of this proposal, the Secretariat expressed doubt whether there was
any real need to deal with the various types of awards that a tribunal might issue. (6) In the
Working Group there were divergent views on the subject. Some thought the Model Law
should not deal with the topic, noting that the various types were “not clearly defined.” (7)
Others appear to have favored such a provision but noted that the nature and
consequence of each type of award would have to be specified. “The main point in need of
clarification,” it was said, “was that the making of an interim award would not terminate
the mandate of the arbitral tribunal, since there were national legal systems under which
this result could ensue.” (8)
The Secretariat's subsequent drafts of an article on the various types of awards
emphasized this last point: They provided simply that a nonfinal award would not
terminate the proceedings or the mandate of the tribunal and referred to “interim,”
“interlocutory,” and “partial” awards as examples of such nonfinal awards. These drafts
also each included a clause defining in general terms the concept of a nonfinal award.
Although none was included in the final text of the Model Law, these proposed definitions
provide an indication of what the drafters had in mind by the term “final award,” which
does appear in the final text.
P 867 Common to the various definitions is the common–sense notion that a final award is simply
P 868 one that decides, or completes the decision of, all claims presented. In the First Draft,
the Secretariat suggested that the rule regarding nontermination would apply to an award
that either “[is apparently]” or “[indicates that it is]” “not intended to settle the dispute in
full.” (9) In the next draft, a slightly different formulation appeared: The rule would apply
to an award that either “[is not intended to]” or “[does not]” “constitute a final disposition

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 of the substance of the dispute.” (10) Each of these provisions also mentioned “interim,”
“interlocutory,” and “partial” awards as examples of such nonfinal awards. At the same
time, the Secretariat also suggested as an alternative a definition of the term “final
award”; this draft provided that the making or delivery of “the final award, which
constitutes or completes the disposition of all claims submitted to arbitration,” would
terminate the mandate of the arbitral tribunal. (11)
The Working Group initially favored this last approach, although it was noted that it would
be “desirable” to express in some provision of the Model Law that the arbitral tribunal had
the power to render awards such as interim, interlocutory, or partial awards. (12) This
affirmative definition of the term “final award” — without a mention of the other types of
awards that might be issued — was incorporated into the draft of what became Article 32,
dealing generally with termination of the arbitral proceeding. (13) Later, however, “for the
sake of simplicity,” the Working Group deleted the defining clause — the words “which
constitutes or completes the disposition of all claims submitted to arbitration” — leaving
just the term “the final award” that appears in Article 32(1). (14)
The significance of this analysis of the legislative history is twofold. First, as noted, it
provides a reasonably clear idea of what the drafters had in mind by the term “final
award,” a phrase that appears no where else in the Model Law. (15) Second, although
interim, interlocutory, and partial awards were not ultimately mentioned in the final text,
P 868 it would appear that there was no intention to bar an arbitral tribunal from issuing such
P 869 nonfinal awards. Indeed, the language of Article 32 implies such a power because there
would otherwise be no need to indicate that only “the final” award will terminate the
tribunal's mandate.
Paragraph 2(a). The main issue discussed with respect to terminations resulting from the
claimant's withdrawal of the claim was the extent of the arbitral tribunal's discretion not
to terminate the proceedings. The Secretariat's initial draft would not have provided any
discretion on the point: It simply would have required the tribunal to issue a termination
order, after giving “suitable notice to the parties,” when the claimant withdrew the claim.
(16) The Working Group declined to adopt this approach, instead taking the view that “the
withdrawal of a claim should not ipso facto terminate arbitral proceedings since the
defendant might have a legitimate interest in a final settlement of the dispute.” (17) The
essential words in this sentence from the Working Group Report — “legitimate interest in a
final settlement of the dispute” — were incorporated into the draft provision and remained
virtually unchanged through subsequent drafts and into the final text. (18)
During the Commission's consideration of the draft Article, two proposals were advanced
that would channel or eliminate the tribunal's discretion to continue the proceedings after
a claimant withdrew the claim, but neither was adopted. One government submitted a
written proposal to provide specific criteria on when withdrawal of the claim should result
in termination of the proceedings. The proposal would have required termination either (1)
when the withdrawal came before the communication of the statement of defence by the
respondent, (2) where the termination was consented to by the respondent, or (3) where
the claimant waived its rights to the subject matter. (19) This written proposal was not
discussed during the Commission's session. A later proposal would have gone further and
removed any discretion to continue the proceedings, on the ground, inter alia, that the
claimant should not have to incur costs after withdrawing the claim. (20) After a member of
the Secretariat explained the Working Group's rationale for the provision, the proposal was
not adopted. (21)
P 869
P 870
Paragraph 2(b). Two issues arose during the deliberations on this subparagraph, which
deals with termination of the proceedings pursuant to the parties' agreement. The first was
whether the proceedings should be terminated pursuant to an advance agreement by the
parties calling for termination by a certain date or after a certain period of time. The
second was whether the proceedings should terminate automatically on an agreement or
only pursuant to an order of the tribunal.
In its initial proposals on the topic of termination of the arbitral proceeding, the
Secretariat raised the question of whether the proceedings should be terminated on expiry
of a time limit for making the award. (22) The Working Group did not at first address the
point, and the Secretariat's initial draft provided merely that proceedings would be
terminated “[w]hen the parties agree that the arbitral proceedings are to be terminated.”
(23) Some delegations found this language ambiguous, and it was suggested that the
subparagraph “should make clear” whether it included both specific agreements to
terminate the proceedings and agreements in advance setting a deadline for making an
award. (24) One alternative of the next draft would have specifically included advance
agreements, (25) but the Working Group “for the sake of simplicity” opted for language that
referred simply to termination “by agreement of the parties.” (26) During the Commission's
consideration of the Article, this language was changed to its present form pursuant to the
decision (described below) not to permit termination of the proceedings automatically but
only pursuant to an order of the tribunal; the problem of “advance” agreements was not
mentioned at that time.
Thus, neither the Working Group nor the Commission ever squarely decided whether
subparagraph 2(b) meant that the mandate of an arbitral tribunal terminated if it failed to

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 make an award prior to a deadline for rendering an award that had been set in advance by
the parties. The language of the Article as finally adopted — “when … the parties agree on
the termination” — tends slightly to suggest that advance agreements are not grounds for
termination of the proceedings because it refers to “when” the parties “agree” and not to
the date agreed on. Still, the words remain ambiguous and open to reasoned
interpretation by tribunals and courts. (27)
P 870
P 871
The second issue discussed in connection with subparagraph 2(b) was clearly resolved. The
Working Group's final draft provided that the arbitral proceedings would terminate “by
agreement of the parties.” (28) The Soviet Union stated in its comments on the draft that
“from the juridical and technical point of view arbitral proceedings may be terminated by
an award or by an order of the arbitral tribunal, but not directly by an agreement of the
parties.” (29) During the Commission's session, the Soviet delegate further suggested that
requiring an order in such a case was necessary to make Article 32 consistent with Article
30, which provides that if the parties settle the dispute “the arbitral tribunal shall
terminate the proceedings.” (30) The Commission agreed and referred the matter to the
Drafting Group for implementation.
Paragraph 2(c). This clause was modeled on Article 34(2) of the UNCITRAL Arbitration Rules,
from which is derived the phrase “the continuation of the arbitral proceedings has …
become unnecessary or impossible.” This test was changed to “unnecessary or
inappropriate” in the Third Draft, evidently in an attempt to implement a direction in the
preceding Working Group Report that the Model Law “should contain a rule empowering
the arbitral tribunal to decide whether it was appropriate to terminate the proceedings.”
(31) The word was changed back to “impossible” after a number of delegations commented
that the term “inappropriate” gave the arbitral tribunal too much discretion. (32)
As noted above, two other Articles explicitly provide for termination of the proceedings:
Article 25(a), dealing with failure to communicate the statement of claim, and Article 30(1),
dealing with settlements. Presumably, these are instances in which continuation of the
proceedings has become unnecessary or impossible, requiring issuance of an order under
Article 32(2)(c).
Paragraph 3. The terms of paragraph 3, relating to termination of the tribunal's mandate,
remained virtually unchanged from the first drafts to its adoption as part of the final text
(except for the later inclusion of references to the appropriate exceptions detailed in
Articles 33 and 34(4) of the law).
P 871
P 872

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
II. Arbitration agreement
[ .… ]
6. Termination
62. It may be considered to specify in the model law certain circumstances under which an
arbitration agreement would be terminated or would not be terminated. Examples, not
necessarily to be followed, are provided by the 1966 Strasbourg Uniform Law [European
Convention Providing a Uniform Law on Arbitration, Europ. T.S. No. 56 (Annex)]. According to
art. 10(1), the arbitration agreement shall terminate ipso jure, if an arbitrator who has been
named in the agreement dies, or cannot for a reason of law or of fact perform his office, or
refuses to accept it, or does not carry it out, or if his office is terminated by mutual
agreement of the parties. Art. 19 regulates the period of time within which the award is to
be made and then provides, in para. 4, that “where arbitrators are named in the
arbitration agreement and the award is not made within the relevant period, the
arbitration agreement shall terminate ipso jure, unless the parties have agreed otherwise.”
An example of nontermination is provided by art. 11: “Unless the parties have agreed
otherwise, neither the arbitration agreement nor the office of arbitrator shall be
terminated by the death of one of the parties.”
63. Another detail question possibly to be dealt with is whether an arbitration agreement
is terminated by a settlement on agreed terms (“accord des parties”), whereby a distinction
may be drawn between agreed settlements in the form of an award and those in the form
of a normal agreement. [Editors' Note: The question of terminating the proceedings in case
of a settlement ultimately was addressed in Article 30 of the final text.]
[ .… ]
V. Award
1. Types of awards

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 82. It seems doubtful whether there is a real need for the model law to deal with the
different possible types of awards. If it were considered to include this item, the arbitral
tribunal should, in addition to making a final award, be entitled to make interim,
interlocutory, or partial awards and ought to do so, if jointly requested by the parties.
P 872
P 873
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
II. Arbitration agreement
[ .… ]
6. Termination (report [First Secretariat Note, supra], paras. 62–63)
Question 2–17: Should the model law specify certain circumstances under which an
arbitration agreement would be terminated (e.g. settlement on agreed terms; expiry of
time–limit for making award) or would not be terminated (e.g. death of one party)?
[.… ]
V. Award
1. Types of award (report, para. 82)
Question 5–1: Would it be appropriate for the model law to deal with the different possible
types of awards (e.g. final, interim, interlocutory partial)?
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
II. Arbitration agreement
[ .… ]
6. Termination
Question 2–17: Should the model law specify certain circumstances under which
an arbitration agreement would be terminated (e.g. settlement on agreed
terms; expiry of time–limit for making award) or would not be terminated (e.g.
death of one party)?
40. The Working Group was of the view that instances which could conceivably terminate
the arbitration agreement were often also relevant in the context of the procedure of
arbitration, and that these instances could only be fully considered in the light of its later
discussion on arbitral procedure. The Working Group requested the Secretariat to prepare
a study on the issues relevant to termination, but only on those which were peculiar to
arbitration.
[ .… ]
P 873
P 874
IV. Arbitral procedure
[ .… ]
8. Further issues of arbitral procedure
72. The Working Group was agreed that, in addition to the procedural issues contained in
questions 4–1 to 4–14 [appearing in the sections on Articles 9, 17–20, 24 and 25, supra, and in
the section on Matters Not Addressed in the Final Text (representation and assistance), infra],
there were other issues of arbitral procedure possibly to be dealt with in the model law.
The issues suggested for consideration were: [see the sections on Articles 21–23, supra] and
termination of arbitral proceedings (cf. art. 34 of the UNCITRAL Arbitration Rules). The
Working Group requested the Secretariat to prepare for its consideration draft provisions
on these issues, with explanatory notes if appropriate.
[ .… ]
V. Award
1. Types of award
Question 5–1: Would it be appropriate for the model law to deal with the
different possible types of award (e.g. final, interim, interlocutory, partial)?
73. Divergent views were expressed as to whether the model law should deal with the
different possible types of award (e.g. final, interim, interlocutory, partial). Under one view,
it was not appropriate for the model law to deal with the above types of awards which
were not clearly defined. Under another view, it served no useful purpose merely to list
them as possible types of awards which an arbitral tribunal might render; it was necessary
in addition to specify the legal qualifications and consequences of the different types,
including possible means of recourse and enforceability. The main point in need of

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 clarification was that the making of an interim award would not terminate the mandate of
the arbitral tribunal, since there were national legal systems under which this result could
ensue. The Working Group decided to further consider this question on the basis of draft
provisions to be prepared by the Secretariat.
FIRST DRAFT A/CN.9/WG.II/WP.38 (31 AUGUST 1982)
V. Award
1. Types of award (1)
Article 25 [incorporated in part into Art. 32 in the final text]
Where the arbitral tribunal makes an award which [is apparently] [indicates that it is] (2)
not intented [sic] to settle the dispute in full, the making of such an (interim, interlocutory,
or partial) award does not terminate the mandate of the arbitral tribunal. (3)
P 874
P 875
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
I. Consideration of [Second Secretariat Note]
[ .… ]
Further issues of arbitral procedure
23. The Working Group noted that at its third session it had agreed that there were other
issues of arbitral procedure that might be dealt with in the model law. (5) Together with
proposals accepted by the Working Group at its fourth [i.e., this] session the issues still to
be considered for possible inclusion in the model law are:
[…]
— The termination of arbitration proceedings;
[ … ].
II. Consideration of [First Draft]
[ .… ]
Award
Types of award
Article 25 [incorporated in part into Art. 32 of the final text]
132. The text of article 25 as considered by the Working Group was as follows:
[same as First Draft, supra].
133. The Working Group agreed that it was useful to have a provision on awards which do
not settle the dispute in full.
134. The Working Group was of the view that if an enumeration of different types of awards
not settling the claim in full (i.e., interim, interlocutory and partial) were to be retained at
P 875 all, it should be made by way of illustration only. By such an approach difficulties arising
P 876 from possible differences in the meaning of these words in various legal systems would
be avoided.
135. The Working Group noted that both articles 25 and 34 [Art. 33 in the final text] seek to
ensure the continuation of the mandate of the arbitral tribunal in cases of awards which do
not settle the dispute in full and that co–ordination in the drafting of these two articles
would be appropriate.
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
I. Duration of mandate of arbitral tribunal (23)
Article XXIII [incorporated in part into Art. 32 of the final text]
Alternative A:
The [making] [delivery] of the final award, which constitutes or completes the disposition
of all claims submitted to arbitration, terminates the mandate of the arbitral tribunal,
subject to the provisions of article XXIV [Art. 33 in the final text]. (24)
Alternative B:
Where the arbitral tribunal makes an award which [is not intended to] [does not] constitute
a final disposition of the substance of the dispute, the making of such an award (for
example, an interim, interlocutory, or partial award) does not terminate the mandate of
the arbitral tribunal.
THIRD SECRETARIAT NOTE POSSIBLE FURTHER FEATURES OF A MODEL LAW
A/CN.9/WG.II/WP.41 (12 JANUARY 1983)
F. Termination of arbitral proceedings (12)
38. The Working Group may wish to consider whether it would be appropriate to include in

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 the model law a provision on termination of arbitral proceedings. In this respect, two
approaches may be considered.
39. One approach is to enumerate various circumstances which would cause automatic
termination of arbitral proceedings or empower the arbitral tribunal or the court to
terminate the proceedings. If this approach were to be taken it may be advisable to
enumerate those circumstances after all other provisions on arbitral proceedings have
been established.
P 876
P 877
40. The other approach is to limit the termination of arbitral proceedings to those cases
only when the continuation of proceedings is either impossible or unnecessary (e.g., the
rendering of an award on the merits of the case, the agreement by the parties to terminate
the proceedings, the withdrawal of the claim, or the lapse of jurisdiction or mandate of the
arbitral tribunal). Under this approach there would be no termination of arbitral
proceedings when various circumstances merely obstruct the normal course of
proceedings without, however, making the continuation of proceedings impossible (e.g.,
difficulties or delays in appointing the presiding arbitrator, failure of action on the part of
arbitrators, or unreasonable delay in rendering the award). In those cases appropriate
measures may still be taken to make the continuation of the proceedings possible. If this
approach is taken, a special rule on termination of arbitral proceedings may be regarded
as superfluous because it would cover the cases when termination is a self–evident
consequence. However, there may be some merit in such a rule in cases when the arbitral
tribunal considers the continuation of the proceedings unnecessary and a party has a
justified objection to the termination (e.g., the parties are inactive for a long time and the
arbitral tribunal considers terminating the proceedings).
41. The following draft provisions may form a basis for discussion:
Article F
(1) [The arbitral proceedings shall be terminated] [The arbitral tribunal shall issue an order
for the termination of arbitral proceedings] in the following cases:
(a) When the parties agree that the arbitral proceedings are to be terminated; and
(b) in all other cases where the continuation of the arbitral proceedings becomes
unnecessary or impossible.
(2) When the arbitral proceedings are to be terminated without an award on the merits of
the claim, the arbitral tribunal shall inform the parties of its intention to issue an order for
the termination of the proceedings. The arbitral tribunal shall have the power to issue such
an order unless a party raises justifiable grounds for objection. (13)
THIRD WORKING GROUP REPORT A/CN.9/233 (28 MARCH 1983)
I. Consideration of [Third Secretariat Note] (A/CN.9/WG.II/WP.41)
[ .… ]
F. Termination of arbitral proceedings
P 877 38. The Working Group considered the question whether it would be appropriate to include
P 878 in the model law a provision on termination of arbitral proceedings (on the basis of a
note by the Secretariat, WP.41 [Third Secretariat Note], paras. 38–41 and draft article F [Art.
32 in the final text]).
39. There was wide support in the Working Group for the view that the model law should
contain a provision on termination of arbitral proceedings. Such a provision would be
useful because it would provide certainty in respect of important consequences of the
termination of arbitral proceedings.
40. The prevailing view was that there should be no automatic termination of arbitral
proceedings and that a procedural decision by the arbitral tribunal was needed for
terminating the arbitral proceedings. However, it was suggested that the wording should
indicate that a special order of termination was not always necessary, for example, when
the dispute was settled by an agreement of the parties or by an award on the merits of the
claim.
41. It was also suggested that the model law should contain a rule empowering the arbitral
tribunal to decide whether it was appropriate to terminate the proceedings after the
tribunal gave suitable notice to the parties of its intention to terminate the proceedings.
THIRD DRAFT A/CN.9/WG.II/WP.44 (5 JULY 1983)
F. Termination of arbitral proceedings (14)
Article F [Art. 32 in the final text]
(1) The arbitral proceedings are terminated:
(a) by the [making] [delivery] of the final award which constitutes or completes the
disposition of all claims submitted to arbitration; or
(b) by an agreement of the parties that the arbitral proceedings are to be terminated;

25
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 (15) or
(c) by an order of the arbitral tribunal in accordance with paragraph (2) of this article.
(2) After having given suitable notice to the parties, the arbitral tribunal shall issue an
order for the termination of the arbitral proceedings when the claimant withdraws his
claim or if for any other reason the continuation of the proceedings becomes unnecessary
or inappropriate.
P 878
P 879 (3) The mandate of the arbitral tribunal is terminated with the termination of the
arbitral proceedings, subject to the provisions of article XXIV [Art. 33 in the final text]. (16)
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Third Draft] (A/CN.9/WG.II/WP.44)
[ .… ]
F. Termination of arbitral proceedings
47. The text of article F [Art. 32 in the final text] as considered by the Working Group was as
follows:
[same as Third Draft, supra].
General considerations
48. Some support was expressed for the deletion of this article because it was not
necessary to regulate in such detail the ending of the mandate of the arbitral tribunal.
However, the view prevailed that the article should be retained since there may be other
cases where the moment of termination of arbitral proceedings may be important, like, for
example, the continuation of the running of a limitation period or the possibility to
institute legal proceedings before another forum on the same dispute.
Paragraph (1)
49. The Working Group adopted sub–paragraph (a) with the word “making” instead of the
word “delivery.”
50. Regarding sub–paragraph (b) it was suggested that the wording should define more
clearly the moment of the termination of the arbitral proceedings. It was also suggested
that sub–paragraph (b) should make clear whether an agreement of the parties to
terminate arbitral proceedings covered only specific agreements to that effect or also
cases where the parties had agreed in advance on a deadline for making the award.
51. Regarding sub–paragraph (c) it was suggested that, while the arbitral tribunal should be
under an obligation to issue an order for the termination of the proceedings, in the
absence of such an order the interested party should have a possibility to establish that
the proceedings had terminated.
Paragraph (2)
52. The Working Group was of the view that the withdrawal of a claim should not ipso facto
terminate arbitral proceedings since the defendant might have a legitimate interest in a
final settlement of the dispute.
Paragraph (3)
P 879 53. There was general support for paragraph (3) of this article. It was noted that this
P 880 paragraph should include a reference to article XXX (3) [Art. 34(4) in the final text] as
suggested in foot–note 16 of [the Third Draft,] document A/CN.9/WG.II/WP.44.
[ .… ]
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
Article XXIII [incorporated in part into Art. 32 in the final text]
117. The text of article XXIII as considered by the Working Group was as follows:
[same as Second Draft, supra].
118. There was some support for alternative B since it addressed in a more direct manner
the question which the article was intended to answer, i.e., to make clear that the making
of, for example, interim, interlocutory or partial awards did not terminate the mandate of
the arbitral tribunal. The prevailing view, however, was in favour of the approach taken in
alternative A. Yet, it was deemed desirable to express in some provision of the model law
in positive terms that an arbitral tribunal had the power to render awards or decisions of
the kind listed by way of example in alternative B.
119. It was noted that the rule in alternative A did not add anything to what was provided in
(the more recently drafted) article F, paragraphs (1)(a) and (3). There was, thus, no need for
maintaining article XXIII, unless it was used for incorporating the above idea concerning
interim and similar awards or article F itself was later reconsidered and changed.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 32. Termination of proceedings

26
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 Variant A:
(1) The arbitral proceedings are terminated:
(a) by the making of the final award which constitutes or completes the disposition of all
claims submitted to arbitration; or
(b) by an agreement of the parties that the arbitral proceedings are to be terminated at
a specified date [or after expiry of a specified period of time]; or
(c) by an order of the arbitral tribunal in accordance with paragraph (2) of this article.
(2) After having given suitable notice to the parties, the arbitral tribunal shall issue an
order for the termination of the arbitral proceedings
(a) when the claimant withdraws his claim, unless the respondent objects thereto and
the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final
settlement of the dispute; or
(b) if for any other reason the continuation of the proceedings becomes unnecessary or
inappropriate.
P 880
P 881 [Where the arbitral tribunal fails to issue an order of termination, any party may request
from the Court specified in article 6 a ruling on the termination of the proceedings.]
(3) The mandate of the arbitral tribunal terminates with the termination of the arbitral
proceedings, subject to the provisions of articles 33 and 34(4).
Variant B:
(1) The arbitral proceedings are terminated either with the final award or by agreement
of the parties or by an order of termination [by the arbitral tribunal] [which the
arbitral tribunal may issue when the continuation of the proceedings appears
unnecessary or inappropriate].
(2) The mandate of the arbitral tribunal terminates with the termination of the arbitral
proceedings, subject to the provisions of articles 33 and 34(4).
FOURTH SECRETARIAT NOTE COMMENTS AND SUGGESTIONS ON THE FOURTH DRAFT
A/CN.9/WG.II/WP.50 (16 DECEMBER 1983)
I. Effect of setting aside on arbitration agreement (articles 32, 34)
24. The Working Group may wish to consider the question how a party may pursue his claim
after the award has been set aside under article 34. Where lack of a valid arbitration
agreement was the ground for setting aside, the answer would be that the party may resort
to a court. If the award was set aside for other reasons, there are essentially two possible
solutions.
25. One possibility would be to conclude that arbitration did not work and to refer the
parties to court litigation without, of course, taking away the (here probably more
theoretical than practical) option of concluding a new arbitration agreement.
26. The other possibility would be to re–activate the original arbitration agreement or to
regard it as still operative, on the ground that the final award, which under article 32 would
terminate the mandate of the arbitral tribunal, has been set aside and, thus, cannot have
this terminating effect. However, in order to limit the risk of repeated futile arbitrations,
one might consider adopting the recent innovation in Austrian law (sect. 595(2) Code of
Civil Procedure) according to which the arbitration agreement becomes invalid if an
arbitral award on the matter has been set aside twice. [Editors' Note: The question of the
effect on the arbitration agreement of setting aside an award, which is discussed in
paragraphs 24–26, does not appear to have been discussed by the Working Group or the
Commission in subsequent sessions.]
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 32
113. The text of article 32 as considered by the Working Group was as follows:
P 881
P 882
[same as Fourth Draft, supra].
114. The Working Group adopted that article, based on variant B, in the following modified
form:
“(1) The arbitral proceedings are terminated either by the final award or by agreement of
the parties or by an order of the arbitral tribunal in accordance with paragraph (2) of
this article.
“(2) The arbitral tribunal
“(a) shall issue an order for the termination of the arbitral proceedings when the
claimant withdraws his claim, unless the respondent objects thereto and the
arbitral tribunal recognizes a legitimate interest on his part in obtaining a final

27
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 settlement of the dispute;
“(b) may issue an order of termination when the continuation of the proceedings
becomes for any other reason unnecessary or inappropriate.
“(3) The mandate of the arbitral tribunal terminates with the termination of the arbitral
proceedings, subject to the provisions of articles 33 and 34(4).”
115. While there was some support for the more elaborate draft provisions presented in
variant A, the Working Group, after deliberation, decided in favour of variant B, for the sake
of simplicity.
116. As regards termination of the proceedings by an order of the arbitral tribunal, the
Working Group adopted the more explicit wording “which the arbitral tribunal may issue
when the continuation of the proceedings appears unnecessary or inappropriate” as well
as the provision contained in paragraph (2)(a) of variant A, in order to give some indication
of the reasons for an order of termination.
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 32. Termination of proceedings
(1) The arbitral proceedings are terminated by the final award or by agreement of the
parties or by an order of the arbitral tribunal in accordance with paragraph (2) of this
article.
(2) The arbitral tribunal
(a) shall issue an order for the termination of the arbitral proceedings when the claimant
withdraws his claim, unless the respondent objects thereto and the arbitral tribunal
recognizes a legitimate interest on his part in obtaining a final settlement of the
dispute;
(b) may issue an order of termination when the continuation of the proceedings for any
other reason becomes unnecessary or inappropriate.
(3) The mandate of the arbitral tribunal terminates with the termination of the arbitral
proceedings, subject to the provisions of articles 33 and 34(4).
P 882
P 883
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 32. Termination of proceedings
Article 32, paragraphs (1) and (2)
1. The Soviet Union states that from the juridical and technical point of view arbitral
proceedings may be terminated by an award or by an order of the arbitral tribunal, but not
directly by an agreement of the parties. Such agreement by the parties rather serves as a
ground for an order for the termination of proceedings. For this reason it is proposed to
move the reference to the agreement of the parties from paragraph (1) to paragraph (2)(a)
of article 32.
Article 32, paragraph (2)
2. Austria suggests specifying in article 32(2)(a) criteria for the withdrawal of a claim, in
order to avoid uncertainty about the termination of arbitral proceedings. The following
rewording of paragraph (2)(a) is proposed:
“(a) shall issue an order for the termination of the arbitral proceedings when the claimant
withdraws his claim either before the communication of the statement of defence by
the respondent or with the consent of the respondent if the latter has already
communicated his statement of defence or by waiver of the claimant's rights to the
subject–matter;”
3. In the view of the Soviet Union, the reference in paragraph (2)(b) to the case where the
continuation of proceedings becomes unnecessary or inappropriate is unclear. It is
proposed to replace the word “inappropriate,” which gives too much discretion to an
arbitral tribunal, by the word “impossible” (following the example of article 34(2) of the
UNCITRAL Arbitration Rules) or by the word “pointless” or any similar word.
A/CN.9/263/ADD.1 (15 APRIL 1985)
B. Specific comments on individual articles
[ .… ]
Article 32. Termination of proceedings
Article 32, paragraph (2)(b)
1. Canada states that paragraph (2)(b) apparently gives the arbitral tribunal complete
discretion to terminate the proceedings whenever it decides that the continuation of the

28
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 proceedings becomes “unnecessary or inappropriate.” It might be desirable to provide
that such a decision is reviewable by the Court.
P 883
P 884 2. In the view of Yugoslavia, the grounds for the termination of arbitral proceedings
specified in paragraph (2)(b) are too general and vague and may result in terminating the
proceedings even where this is not in the interest of the parties. The suggestion is that an
attempt be made to identify some grounds more precisely.
A/CN.9/263/ADD.3 (31 JULY 1985) (COMMENTS OF EGYPT)
II. Comments on the articles
[ .… ]
37. Article 32, paragraph 2, subparagraph (b): The text states that where the arbitral
proceedings become unnecessary or inappropriate, the arbitral tribunal “may” order the
termination of the proceedings. The word “may” indicates a right and not an obligation.
Consequently, despite a conviction that the proceedings have become unnecessary or
inappropriate, the arbitral tribunal may, nevertheless, order their continuation. On what
grounds? To what purpose? In whose interest? The text does not state. It is clear that the
continuation of such proceedings would be nothing more than a waste of time, effort and
money. We therefore propose that paragraph 2 be amended as follows:
“2. The arbitral tribunal shall issue an order for the termination of the arbitral
proceedings when:
(a) The claimant withdraws … (no change).
(b) The arbitral proceedings become, for any other reason, unnecessary or
inappropriate.”
SEVENTH SECRETARIAT NOTE ANALYTICAL COMMENTARY ON DRAFT TEXT A/CN.9/264 (25
MARCH 1985)
Article 32. Termination of proceedings
[ .… ]
1. Article 32, which deals with the termination of the arbitral proceedings, serves three
purposes. The first one is to provide guidance in this last, but not unimportant, phase of
the proceedings. A good example is paragraph (2) (a) which makes it clear that withdrawal
of the claim does not ipso facto lead to termination of the proceedings.
2. The second purpose is to regulate the consequential termination of the mandate of the
arbitral tribunal and its exceptions (paragraph (3)). A good example is that the arbitrators
would become functus officio by making an award only if that is “the final award,” i.e., the
one which constitutes or completes the disposition of all claims submitted to arbitration.
The third purpose is to provide certainty as to the point of time of the termination of the
proceedings. This may be relevant for matters unrelated to the arbitration itself, for
example, the continuation of the running of a limitation period or the possibility of
instituting court proceedings.
P 884
P 885
SUMMARY RECORD A/CN.9/SR.329, .333
[18 June 1985, 2:00 p.m., A/CN.9/SR.329]
Article 32. Termination of proceedings
Paragraph (1)
26. Mr. LEBEDEV (Union of Soviet Socialist Republics) drew attention to his delegation's
written comment in [the Sixth Secretariat Note (Government Comments),] document
A/CN.9/263 [Art. 32, para. 1]. The Commission had already approved in article 30(1) the
principle that if there was a settlement between the parties, the proceedings should be
terminated by the arbitral tribunal. For the sake of consistency with that the reference to
the agreement of the parties should be transferred from paragraph (1) of article 32 to
paragraph (2). He thought that was only a drafting point. Also, by describing the award as
“final,” the article introduced a new concept.
27. The CHAIRMAN [Mr. LOEWE (Austria)] said that he regarded the points raised by the
Soviet Union representative as a drafting matter. If he saw no objection, they would be
referred to the drafting committee.
28. It was so agreed.
Paragraph (2)
29. Mr. MTANGO (United Republic of Tanzania) questioned the inclusion of the proviso in
paragraph (2)(a). If the claimant withdrew his claim, there was no longer a dispute. Even if
that assumption was wrong, there was still the matter of costs. If the respondent insisted
on the proceedings continuing, could the original claimant be held responsible for the
costs arising out of that insistence? How could that matter be settled? He would like the
proviso to be deleted.
30. Mr. HERRMANN (International Trade Law Branch) said that the Working Group on

29
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 International Contract Practices had discussed the point raised by the representative of
the United Republic of Tanzania and had decided that the arbitral tribunal should be
given a certain discretion in the matter. As between the parties, the withdrawal of a claim
might mean either a withdrawal from the current proceedings to enable the claimant to
bring the dispute before another tribunal or a waiver of the rights alleged in the claim. It
was not the intention of the model law to pronounce on that point. However, the Working
Group had realized that the other party might have a certain interest in the current
proceedings being pursued in order to reduce the risk of harassment by a claimant
repeatedly bringing a claim and then withdrawing it. The question of costs was directly
involved and there had been a proposal to include a reference to liability for them in the
text. That had not been done because in general the Working Group had been reluctant to
deal with the matter of costs in the model law. (*) The present formulation of paragraph (2)
(a) was an attempt to describe instances in which, in the objective judgement of the
arbitral tribunal and not only in the view of the respondent, the latter had a legitimate
interest in obtaining a final settlement of the dispute.
P 885
P 886
31. Mr. MTANGO (United Republic of Tanzania) said he still felt that the provision was open
to abuse by the respondent: cases might occur, for example, in which the latter insisted on
the proceedings continuing before an arbitral tribunal which was subsequently found
incompetent. However, he would not press the point.
32. Mrs. RATIB (Egypt) said that paragraph (2)(b) provided the following: “when the
continuation of the proceedings … becomes unnecessary or inappropriate” the arbitral
tribunal “may issue an order of termination.” The word “may” indicated a right and not an
obligation. It followed that in spite of its conviction that the proceedings were unnecessary
or inappropriate, the arbitral tribunal might nevertheless, for reasons unspecified in the
text, order them to be pursued. It was clear that the continuation of such proceedings
could only be a waste of time and money. She therefore proposed that paragraph (2)
should be amended to read:
“(2) The arbitral tribunal shall issue an order for the termination of the arbitral
proceedings when:
(a) the claimant withdraws his claim … [text unchanged];
(b) the continuation of the arbitral proceedings for any other reason becomes
unnecessary or inappropriate.”
33. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that the meaning of the word
“inappropriate” was not sufficiently clear. In the corresponding text in the UNCITRAL
Arbitration Rules (article 34(2)) the phrase used was “unnecessary or impossible.” He
suggested that the drafting committee might consider replacing the word “inappropriate”
by the word “impossible.”
34. Mr. SAMI (Iraq) supported the Egyptian proposal.
35. The CHAIRMAN said that the Egyptian proposal was one of substance. Perhaps wording
such as the following might make it clear that it was for the arbitral tribunal to decide
whether continuation was unnecessary or impossible: “The arbitral tribunal shall issue an
order of termination when it finds that the continuation of the proceedings for any reason
is unnecessary or impossible.” If there was no objection, he would send the paragraph to
the drafting committee for reformulation along those lines.
36. It was so agreed.
Paragraph (3)
37. The Commission did not comment on paragraph (3).
[21 June 1985, 10:00 a.m., A/CN.9/SR.333]
Articles 31 and 32 [as revised by the Drafting Group]
16. Articles 31 and 32 were adopted.
P 886
P 887
COMMISSION REPORT A/40/17 (21 AUGUST 1985)
Article 32. Termination of proceedings
260. The text of article 32 as considered by the Commission was as follows:
[same as Fifth Draft, supra].
261. The Commission decided to move the reference to the agreement of the parties from
paragraph (1) to paragraph (2) so as to make clear that such agreement was a basis for the
arbitral tribunal's order for the termination of the arbitral proceedings.
262. Concern was expressed that paragraph (2)(a) might operate unfairly against a claimant
in that he might be forced to continue participation in arbitral proceedings although he
had good reasons for withdrawing his claim. It was stated in reply that the provision was
balanced in that it enabled the arbitral tribunal to meet such concern in a particular case
and, in appropriate circumstances, to meet the possible concern of a respondent that the

30
© 2019 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
 claimant might withdraw his claim at a late stage of the proceedings and then compel the
respondent to participate in other proceedings.
263. The Commission was agreed that paragraph (2)(b) should express more clearly that its
intended meaning was that the arbitral tribunal had to make a judgement whether the
continuation of the arbitral proceedings was unnecessary or inappropriate, but that, when
the arbitral tribunal found continuation of the proceedings to be unnecessary or
inappropriate, it had to issue an order for termination. The Commission was also agreed
that the word “inappropriate” in paragraph (2)(b) might be seen as giving too much
discretion to the arbitral tribunal and that it should be replaced by a word of a more
precise meaning such as “impossible.”
264. The Commission adopted article 32, subject to the above modifications which were
referred to the Drafting Group.
P 887

References
1) Termination of the proceedings is also mentioned in two other articles of the Model
Law: Article 25(a), which deals with the claimant's failure to communicate the
statement of claim, and Article 30, concerning settlement of the dispute. See the
discussion under the heading “Paragraph 2(c)” infra.
2) See generally Seventh Secretariat Note, A/CN.9/264, Art. 32, paras. 1–2, p. 884 infra.
3) Id.
4) See id. The termination of the mandate of the arbitral tribunal under Article 32 is
different from the termination of the mandate of an arbitrator under Articles 13
(challenge) and 14 (failure or impossibility to act). A termination of an individual
arbitrator's mandate under the latter two provisions is to be followed by appointment
of a substitute arbitrator under Article 15. The termination of the mandate of the
arbitral tribunal under Article 32 presumably means the tribunal is functus officio. See
id. para. 2.
5) See id.; Fourth Working Group Report, A/CN.9/245, para. 48, p. 879 infra; see also Third
Working Group Report, A/CN.9/233, para. 39, p. 878 infra.
6) First Secretariat Note, A/CN.9/207, para. 82, p. 872 infra.
7) First Working Group Report, A/CN.9/216, para. 73, p. 874 infra.
8) Id.
9) First Draft, A/CN.9/WG.II/WP.38, Art. 25, p. 874 infra. The Secretariat offered the
bracketed language in order, in the words of a footnote, “to stimulate discussion on
whether an indication of the intent should be required … or whether it would be more
appropriate to require merely that the intent is apparent (or evident).” Id. n. 2, p. 875
infra.
10) Second Draft, A/CN.9/WG.II/WP.40, Art. XXIII, Alt. B, p. 876 infra. Again, the bracketed
language was intended to indicate alternative suggestions.
11) Id. Alt. A (emphasis added).
12) Fourth Working Group Report, A/CN.9/245, para. 118, p. 880 infra.
13) See id. para. 119.
14) Fifth Working Group Report, A/CN.9/246, para. 115, p. 882 infra.
In connection with a proposal to define the term “award,” one final attempt was made
in the Commission to include a reference to other types of awards in the Model Law. In
the end, however, a definition of the term “award” was not included in the final text,
and the proposal was not pressed. See Summary Record, A/CN.9/ SR.308, paras. 21–26,
appearing in the section on Article 2, p. 175 supra.
15) See Summary Record, A/CN.9/SR.329, para. 26, p. 885 infra (Soviet delegate notes that
“by describing the award as lsquo;final,' the article introduced a new concept”).
16) Third Draft, A/CN.9/WG.II/WP.44, Art. F(2), p. 878 infra.
17) Fourth Working Group Report, A/CN.9/245, para. 52, p. 879 infra. One such interest was
suggested later by a member of the Secretariat at the Commission's session on the
Article. He noted that the respondent might wish to have the proceedings pursued “in
order to reduce the risk of harassment by a claimant repeatedly bringing a claim and
then withdrawing it.” Summary Record, A/CN.9/SR.329, para. 30, p. 885 infra.
18) The clause requiring the giving of “suitable notice” was deleted in the simplification
referred to above. See note 14 and accompanying text supra. There was no suggestion
that notice should not be given, and it is evident from the terms of the Article that the
respondent must be given some opportunity to object.
19) Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 32, para. 2, p. 883
infra. The proposal did not specifically address what would happen in other cases, but
presumably the arbitral tribunal was to have discretion not to terminate.
20) Summary Record, A/CN.9/SR.329, para. 29, p. 885 infra.
21) Id. paras. 30–31, pp. 885–86 supra. See note 17 supra.
22) See First Secretariat Note, A/CN.9/207, para. 62, p. 872 infra; Second Secretariat Note,
A/CN.9/WG.II/ WP.35, Question 2–17, p. 873 infra.

31
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 23) Third Secretariat Note, A/CN.9/WG.II/WP.41, para. 41, p. 877 infra; see First Working
Group Report, A/CN.9/216, para. 40, p. 873 infra.
24) Fourth Working Group Report, A/CN.9/245, para. 50, p. 879 infra.
25) Fourth Draft, A/CN.9/WG.II/WP.48, Art. 32, Variant A(1)(b), p. 880 infra.
26) See Fifth Working Group Report, A/CN.9/246, paras. 114–115, p. 882 infra.
27) It is fairly clear that an advance agreement of the parties setting a deadline for an
award should be taken into account in deciding whether to terminate the mandate of
the arbitrators for failure to act “without undue delay” under Article 14. See the
commentary on that Article, p. 439 n. 6 supra. As noted above, the consequence of such
a termination is appointment of a substitute arbitrator or arbitrators under Article 15,
rather than displacement of the arbitration as a whole.
28) Fifth Draft, A/CN.9/246 (Annex), Art. 32, p. 882 infra.
29) Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 32, para. 1, p. 883
infra. (This language is the Secretariat's summary of the comment, not the Soviet
comment itself.)
30) Summary Record, A/CN.9/SR.329, para. 26, p. 885 infra.
31) See Third Working Group Report, A/CN.9/233, para. 41, p. 878 infra; Third Draft,
A/CN.9/WG.II/ WP.44, Art. F(2), p. 878 infra (emphasis added).
32) See Sixth Secretariat Note (Government Comments), A/CN.9/263, Art. 32, para. 3, p. 883
infra; id., A/CN.9/263/Add.1, Art. 32, paras. 1–2, pp. 883–84 infra; Summary Record,
A/CN.9/SR.329, paras. 33–36, p. 886 infra.
One other proposal that was offered during the drafting of subparagraph 2(c) was a
provision to allow a party to establish that the proceedings had terminated even if the
arbitral tribunal failed to issue an order for the termination. See Fourth Working Group
Report, A/CN.9/245, para. 51, p. 879 infra; Fourth Draft, A/CN.9/ WG.II/WP.48, Art. 32,
Variant A(2), pp. 880–81 infra. This proposal apparently was abandoned during the
simplification of the draft Article referred to in the text accompanying note 14 supra.
1) Relevant discussion of the Working Group in [the First Working Group Report,] A/CN.9/
216, para. 73.
2) Alternative wording is submitted here to stimulate discussion on whether an indication
of the intent should be required (which could be interpreted as requiring a statement
to that effect) or whether it would be more appropriate to require merely that the
intent is apparent (or evident).
3) If this draft article were to be retained, it might later be incorporated into the
provisions, if any, on termination of arbitration proceedings (under IV. 11). [Editors'
Note: The symbol “IV. 11” refers to the classification system adopted by the Secretariat in
the First Secretariat Note. “IV. 11” was assigned to the topic of termination of arbitral
proceedings, but the system was no longer in use when the topic was next addressed (in
the Third Secretariat Note, infra).]
5) [First Working Group Report,] A/CN.9/216, para. 72. [Editors' Note: The Working Group's
third session was the first to address the Model Law. The earlier two sessions had
concerned other matters.]
23) The draft articles included here [the other draft article included in Part I, Article XXIV,
became Article 33 in the final text] might later be combined (and harmonized) with any
draft provisions on termination of arbitration proceedings (to be dealt with in WP.41
[the Third Secretariat Note]).
24) In addition to the extension of the mandate under article XXIV, another case of
“extension” which might be regulated in the model law is where the final award is later
set aside.
12) The decision to consider this subject was adopted at the third session of the Working
Group; see [First Working Group Report,] A/CN.9/216, para. 72.
13) The second paragraph is modelled on Article 34, para. 2 of the UNCITRAL Arbitration
Rules.
14) Discussion and conclusions of the Working Group in [the Third Working Group Report,] A/
CN.9/233, paras. 38–41; see also note by the Secretariat, [Third Secretariat Note,]
A/CN.9/WG.II/ WP.41, paras. 38–41.
15) This sub–paragraph also covers the case where the parties agree on the settlement of
the dispute without requesting the recording of the settlement in the form of an
arbitral award; such a case implies the agreement of the parties that the arbitral
proceedings are to be terminated. If the parties, after having settled the dispute,
request that the settlement be recorded in the form of an award, the arbitral
proceedings are terminated by the making of the award on agreed terms.
16) Another possible extension of the mandate of the arbitral tribunal to be listed in this
article could be the case of remission by a court as envisaged under article XXX(3) [Art.
34(4) in the final text] in A/CN.9/WG.II/WP.46 [a separate edition of the Third Draft].
*) [Editors' Note: See generally the section on Matters Not Addressed in the Final Text (fees
and costs), pp. 1145–48 infra.]

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Document information
UNCITRAL Model Law, Chapter VI, Article 33 [Correction and
Publication interpretation of award; additional award]
A Guide to the UNCITRAL (1) Within thirty days of receipt of the award, unless another period of time has been
Model Law on International agreed upon by the parties:
Commercial Arbitration:
Legislative History and (a) a party, with notice to the other party, may request the arbitral tribunal to correct in
Commentary the award any errors in computation, any clerical or typographical errors or any
errors of similar nature;
(b) if so agreed by the parties, a party, with notice to the other party, may request the
Organization arbitral tribunal to give an interpretation of a specific point or part of the award.
United Nations Commission If the arbitral tribunal considers the request to be justified, it shall make the correction or
on International Trade Law give the interpretation within thirty days of receipt of the request. The interpretation
shall form part of the award.
(2) The arbitral tribunal may correct any error of the type referred to in paragraph (1)(a) of
Promulgation this article on its own initiative within thirty days of the date of the award.
21 June 1985 (3) Unless otherwise agreed by the parties, a party, with notice to the other party, may
request, within thirty days of receipt of the award, the arbitral tribunal to make an
additional award as to claims presented in the arbitral proceedings but omitted from the
Legislation number award. If the arbitral tribunal considers the request to be justified, it shall make the
additional award within sixty days.
United Nations Document (4) The arbitral tribunal may extend, if necessary, the period of time within which it shall
A/40/17, Annex I make a correction, interpretation or an additional award under paragraph (1) or (3) of this
article.
Bibliographic reference (5) The provisions of article 31 shall apply to a correction or interpretation of the award or
to an additional award.
'UNCITRAL Model Law,
Chapter VI, Article 33 Commentary
[Correction and
interpretation of award; Article 33 provides three ways in which the arbitral tribunal may alter the award after it
additional award]', in has been issued: correcting computational, clerical, or similar errors; interpreting specific
Howard M. Holtzmann and points or parts of the award; and issuing an additional award to decide claims omitted
Joseph Neuhaus , A Guide to from the original award. (1) It was suggested at the outset that the provision be modeled on
the UNCITRAL Model Law on P 888 Articles 35 through 37 of the UNCITRAL Arbitration Rules, (2) and the discussion thereafter
International Commercial P 889 was focused on certain fairly significant changes that were made from that model. These
Arbitration: Legislative changes, and other matters discussed during the drafting of the provision, are addressed
History and Commentary, below.
(© Kluwer Law International; Issues relevant to the Article as a whole. With respect to all three of the methods of
Kluwer Law International altering an award, both the final text of the Model Law and the UNCITRAL Rule provisions
1989) pp. 888 - 907 contain specific time limits for a request by a party to make a change and for action by the
arbitral tribunal on that request. In the Working Group, there were divergent views on
whether these time limits should be retained. (3) Those in favor of the provisions argued
that they would help to limit delays in the disposition of a party's request and thereby to
limit the period of uncertainty about the content of the award. On the other hand, some
delegates contended that the arbitral tribunal might in certain circumstances have good
reasons for failing to comply with what were then rigid time limits in the draft article and
that such time limits might create uncertainty as to the validity of actions taken after they
expired.
Two possible solutions were considered: (1) replacing the specific periods of time in which
the arbitral tribunal must act that are mentioned in the UNCITRAL Rule provision with a
general formulation such as “promptly” or “without delay” or (2) permitting the arbitral
tribunal to extend those time limits if necessary under the circumstances. (4) The Working
Group adopted the latter proposal. Examples of possible reasons why an arbitral tribunal
might wish to extend the time limits, suggested by the Secretariat, include: (1) to permit
consultations among the arbitrators; (2) in order to hold additional hearings or otherwise
to take further evidence in cases in which an additional award is to be rendered; and (3) to
permit the nonrequesting party to respond to a request for a modification to an award. (5)
One other point of significance to the Article as a whole that was discussed in the
legislative history was the necessity of providing parties to the proceeding with an
opportunity to respond to a request by a party for a correction, an interpretation, or an
additional award. On this there appears to have been broad agreement. The Working
Group considered but did not adopt a proposal to lay down a time schedule for this
purpose, but it noted in its Report that “it was understood that the arbitral tribunal should
allow sufficient time for a reply.” (6) During the later discussion of the matter by the
P 889 Commission, this view was repeated and it was said that the requirement of an
P 890
opportunity to respond flowed from the general standards of fairness imposed by Article
18 and was also encapsulated in the phrase “with notice to the other party,” which is

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 contained in both the Model Law and the UNCITRAL Arbitration Rules. (7)
Correction of clerical and similar errors. This power, conferred in paragraphs 1(a) and (2) of
Article 33, mirrors the corresponding provision of the UNCITRAL Rules, except that, unlike
the Rules, it addresses the extent to which the provision is mandatory (a matter that the
Rules, as a comprehensive party–selected procedural code, do not have to deal with). The
Working Group decided that this power should be mandatory — that is, that the parties
could not agree to eliminate it — but that they could agree on a different period of time for
the making of the request. (8)
Interpretation of award. Leaving aside minor drafting changes, the Working Group and
Commission altered this provision in three ways from the UNCITRAL Rule provision on
which it is modeled. First, the Working Group added the limitation that the request for
interpretation must refer to “a specific point or part of the award”; the Rule provision
provides simply that the request may seek an interpretation “of the award.” The Working
Group's Report states that the clause was added “in order to avoid possible abuses and
delay.” (9) The change should probably be regarded merely as a clarification rather than a
substantive modification.
Second, the Working Group also changed the time period for the arbitral tribunal to act on
the request from forty-five days to thirty days in order to align it with the power to correct
errors in the award. (10) Third, the Commission decided that the arbitral tribunal would
have the power to interpret the award only if the parties agreed, either in advance or at
the time of the request for interpretation, to provide this power. (11)
This last change was the product of considerable discussion in the Commission. Initially,
the Working Group decided to make the provision conferring the power to interpret the
award mandatory, that is, not subject to the contrary agreement of the parties. (12) During
the Commission's consideration of the Article, a number of delegations expressed doubts
P 890 about whether a power to interpret awards should be included at all, arguing that the
P 891 provision undermined the principle of finality of the award and might be abused to
delay the proceedings or harass the tribunal. (13) Various proposals were made to limit the
power, including allowing interpretation only of the reasons for an award, not its dispositif,
(14) and replacing the word “interpretation” with a word such as “clarification” or
“explanation.” (15) In the end, the Commission decided that the arbitral tribunal should
have the power to “interpret” the award only where the parties have affirmatively agreed
to confer it. (16)
Although the Commission declined to change the word “interpretation” — the word used in
the UNCITRAL Arbitration Rule provision — to “clarification,” it is submitted that a request
for interpretation should be found to be “justified” under paragraph 1 only if the request
points to a portion of the award that is ambiguous, in need, that is, of “clarification.” This is
the conclusion of at least one arbitral tribunal that has considered the term in the
UNCITRAL Arbitration Rules. (17) Moreover, it appears to have been the understanding of
the Commission members. (18)
Issuing additional award. In addition to making the provision non-mandatory, (19) the
Working Group made one substantive change in the UNCITRAL Rule provision on issuing an
additional award to decide claims presented in the arbitration proceedings but omitted
from the original award: it deleted the requirement in Article 37(2) of the Rules that the
omission “can be rectified without any further hearings or evidence.” This was done in
response to a question raised by the Secretariat of what would happen where claims were
omitted as to which further hearings or evidence would be needed. The Secretariat
suggested that “[f]rom a practical point of view” the arbitral tribunal should be permitted
to resolve such claims because the alternative might be that the award as a whole would
be set aside. (20) The Working Group agreed, and the restriction was omitted. (21)
One change from the UNCITRAL Arbitration Rule provision that probably should have no
P 891 substantive effect is the deletion of the words “after the receipt of the request” following
P 892 the statement providing for a time limit of sixty days for issuing the additional award.
The Working Group specifically stated with respect to all of the time limits governing
tribunal action in Article 33 that “there was no need for … an explicit statement [that the
time period ran from receipt of the request] since the correct answer obtained clearly from
the current text [which lacked the qualification].” (22) Although the Drafting Group
nevertheless inserted the phrase “of receipt of the request” in the comparable time limit
governing corrections and interpretations in paragraph 1, it did not do so in paragraph 3.
(23) The omission was probably inadvertent. (24)

Legislative History
FIRST SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW A/CN.9/207 (14 MAY 1981)
B. Identification of issues possibly to be dealt with in the model law
[ .… ]
V. Award
[ .… ]
7. Correction and interpretation of award

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 93. It might be useful to include a provision according to which a party may request within
a certain period of time that the arbitral tribunal give an interpretation of the award or
correct certain errors (c.f. e.g. arts. 35 and 36 of the UNCITRAL Arbitration Rules). Such a
provision, though of limited importance, could help to overcome any problems arising
from the fact that the mandate of the arbitral tribunal is terminated by making the award.
SECOND SECRETARIAT NOTE POSSIBLE FEATURES OF A MODEL LAW: QUESTIONS FOR
DISCUSSION A/CN.9/WG.II/WP.35 (1 DECEMBER 1981)
V. Award
[ .… ]
7. Correction and interpretation of award (report [First Secretariat Note, supra], para. 93)

P 892 Question 5 – 14: Should the model law contain a provision according to which a
P 893 party may request within a specific period of time that the arbitral tribunal
give an interpretation of the award or correct technical errors therein?
FIRST WORKING GROUP REPORT A/CN.9/216 (23 MARCH 1982)
Consideration of [First and Second Secretariat Notes]
[ .… ]
V. Award
[ .… ]
7. Correction and interpretation of award
Question 5 – 14: Should the model law contain a provision according to which a
party may request within a specific period of time that the arbitral tribunal give
an interpretation of the award or correct technical errors therein?
98. There was general agreement that the model law should contain provisions concerning
the correction and interpretation of an award. Such provisions could be modelled on
articles 35 and 36 of the UNCITRAL Arbitration Rules. However, it was agreed that a request
for interpretation of the award should be limited to specific points in order to avoid
possible abuses and delay.
FIRST DRAFT A/CN.9/WG.II/WP.38 (31 AUGUST 1982)
V. Award
[ .… ]
7. Correction and interpretation of award (29)
Article 34 [Art 33 in the final text] (30)
(1) [Unless otherwise agreed by the parties,] within thirty days after the receipt of the
award, either party, with notice to the other party, may request the arbitral tribunal
(a) to correct in the award any errors in computation, any clerical or typographical
errors, or any errors of similar nature; the arbitral tribunal may, within thirty days
after the communication of the award, make such corrections on its own initiative;
(b) to give, within forty–five days, an interpretation of a specific point or part of the
award; such interpretation shall form part of the award;
P 893 (c) to make an additional award as to claims presented in the arbitration proceedings
P 894 but omitted from the award; if the arbitral tribunal considers such request to be
justified and that the omission can be rectified without any further hearings or
evidence, it shall complete its award within sixty days after the receipt of the
request.
(2) The provisions of articles 27, paragraphs (1) and (2), and 35 [these provisions became Art.
31 in the final text] shall apply to a correction, interpretation or an additional award.
SECOND WORKING GROUP REPORT A/CN.9/232 (10 NOVEMBER 1982)
II. Consideration of [First Draft]
[ .… ]
Award
[ .… ]
Correction and interpretation of award
Article 34 [Art. 33 in the final text]
177. The text of article 34 as considered by the Working Group was as follows:
[same as First Draft, supra].
178. The Working Group was in general agreement that the arbitral tribunal should have the
right to correct any errors in computation, any clerical or typographical errors, or any

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 errors of similar nature as provided in paragraph (1)(a), and that the parties should not be
able to stipulate to the contrary. The Working Group did not feel, however, that the time–
limit of 30 days was of a similar mandatory character.
179. In respect of paragraph (1)(b) the prevailing view was that the right of a party to
request an interpretation of the award was not subject to the contrary agreement of the
parties. The Working Group was not in agreement as to whether the interpretation should
form part of the award and it was decided to put this portion of the paragraph in square
brackets.
180. The Working Group agreed to retain paragraph (1)(c). The Working Group also agreed
that the provision was not binding on the parties.
P 894 181. A question was raised and referred for later decision as to whether it was preferable to
P 895 provide in each article of the model law whether that article or a part of it was binding
on the parties or whether it was preferable to have a single provision on that subject.
[Editors' Note: See the Section on Matters Not Addressed in the Final Text, pp. 1119–20, 1150–
53 infra, for further material on this proposal.]
182. It was noted that the time–limits should be in harmony with the time–limits for
“attacking” an award in the courts.
183. The Working Group also noted that this article should be harmonized with the
provisions of articles 25 and 36. [Editors' Note: Draft Article 36 became Article 35 in the final
text. Draft Article 25 addressed the various types of awards that an arbitral tribunal might
issue. It was not included in the final text, but contributed to the drafting of Article 32, and
materials on the proposal are included in the section on that Article.]
SECOND DRAFT A/CN.9/WG.II/WP.40 (14 DECEMBER 1982)
I. Duration of mandate of arbitral tribunal (23)
[ .… ]
Article XXIV [Art. 33 in the final text]
(1) Within thirty days after the receipt of the award, [unless another period of time has
been agreed upon by the parties,] a party, with notice to the other party, may request the
arbitral tribunal
(a) to correct in the award any errors in computation, any clerical or typographical errors
or any errors of similar nature; the arbitral tribunal may, within thirty days after the
communication of the award, make such corrections on its own initiative; and
(b) to give, within forty–five days, an interpretation of a specific point or part of the
award [; such interpretation shall form part of the award].
(2) Unless otherwise agreed by the parties, a party, with notice to the other party, may
request the arbitral tribunal, within thirty days after the receipt of the award, to make an
additional award as to claims presented in the arbitration proceedings but omitted from
the award; if the arbitral tribunal considers such request to be justified and that the
omission can be rectified without any further hearings or evidence, it shall complete its
award within sixty days after the receipt of the request.
(3) The provisions of article XXII [Art. 31 in the final text] shall apply to a correction or
interpretation of the award or to an additional award.
P 895
P 896
FOURTH WORKING GROUP REPORT A/CN.9/245 (22 SEPTEMBER 1983)
II. Consideration of [Second Draft] (A/CN.9/WG.II/WP.40)
[ .… ]
Article XXIV [Art. 33 in the final text]
120. The text of article XXIV as considered by the Working Group was as follows:
[same as Second Draft, supra].
Paragraph (1)
121. The Working Group adopted this paragraph including the wording between the two
square brackets, subject to possible revision of the time-periods fixed therein. It was felt
that the different time–periods for the various actions envisaged in this and the following
paragraph should be harmonized. It was also noted that these time–periods should be
taken into account when considering the length of the time–period during which an action
may be brought under article XXX [Art. 34 in the final text] for setting aside or remission.
Paragraph (2)
122. The Working Group adopted this paragraph. It was noted with approval that this
paragraph provided for the making of an additional award only if no further hearings or
evidence were required.
Paragraph (3)

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 123. The Working Group adopted this paragraph.
FOURTH DRAFT A/CN.9/WG.II/WP.48 (29 NOVEMBER 1983)
Article 33. Correction, interpretation and completion of award
(1) Within thirty days after the receipt of the award, unless another period of time has been
agreed upon by the parties, a party, with notice to the other party, may request the
arbitral tribunal:
(a) to correct in the award any errors in computation, any clerical or typographical errors
or any errors of similar nature; the arbitral tribunal may, within thirty days after the
communication of the award, make such corrections on its own initiative; and
(b) to give [, within thirty days,] an interpretation of a specific point or part of the award;
such interpretation shall form part of the award.
(2) Unless otherwise agreed by the parties, a party, with notice to the other party, may
request, within thirty days after the receipt of the award, the arbitral tribunal to make an
additional award as to claims presented in the arbitral proceedings but omitted from the
P 896 award; if the arbitral tribunal considers such request to be justified and that the omission
P 897 can be rectified without any further hearings or evidence, it shall make that additional
award [within sixty days after the receipt of the request].
(3) The provisions of article 31 shall apply to a correction or interpretation of the award or
to an additional award.
FOURTH SECRETARIAT NOTE COMMENTS AND SUGGESTIONS ON THE FOURTH DRAFT
A/CN.9/WG.II/WP.50 (16 DECEMBER 1983)
G. Suspension of award (articles 33, 34, 36)
20. The draft model law refers to the procedural possibility of a suspension of the award
only indirectly in article 36(1)(a)(v) and (4), stating certain legal consequences of a
suspension or an application for suspension. The Working Group may wish to consider
adding a positive provision which would grant a right to request suspension of an award
made under this Law. Such a right may be appropriate in conjunction with the right to
request a correction under article 33(1)(a), possibly in conjunction with the right to request
an interpretation under article 33(1)(b), and certainly in conjunction with an application for
setting aside under article 34. [Editors' Note: This proposal does not appear to have been
discussed by the Working Group or the Commission in subsequent sessions.]
H. Additional award requiring further hearings or evidence (articles 33, 34)
21. Article 33(2) envisages the making of an additional award as to claims presented in the
arbitral proceedings but omitted from the award only where such omission can be
rectified without any further hearings or evidence. The question therefore remains what
would happen in those cases where further evidence or hearings are required.
22. From a practical point of view, the suggested answer would be that the arbitral tribunal
could still be entitled or required to make the additional award since it did not
completely fulfill the mandate entrusted to it. If this view were adopted, it would mean
that the restriction contained in article 33(2) would be abolished, although this provision
might be retained for the residual purpose of setting a time–limit of sixty days for these
restricted cases. A supplementary consideration would be to include in article 34 a
provision to the effect that the award may be set aside if the points dealt with therein
cannot be separated from the points omitted. In this context, the possibility of remission
under article 34(4) may prove to be a very useful device.
23. The need for an express rule on this question becomes apparent when one looks at the
present draft provisions. It is at least a possible interpretation of articles 33(2) and 34 that
omission of a claim requiring further hearings or evidence constitutes a ground for setting
aside the award, irrespective of whether the omitted points can be separated from the
points dealt with in the award. The omission could then be rectified by the arbitral
tribunal if the award would be remitted to it for completion. If, however, the Court would
P 897 not remit the award but would set it aside, a problem of general relevance arises which is
P 898 treated in the following section (paras. 24–26). [Editors' Note: These paragraphs
discussed what the effect should be of setting aside an award, in particular, for reasons other
than lack of a valid arbitration agreement. In that case, the Secretariat asked, should
another attempt at arbitration be made? See the section on Article 34, pp. 945–46 infra.]
FIFTH WORKING GROUP REPORT A/CN.9/246 (6 MARCH 1984)
A. Consideration of [Fourth Draft]
[ .… ]
Article 33
117. The text of article 33 as considered by the Working Group was as follows:
[same as Fourth Draft, supra].
118. The Working Group adopted that article in the following modified form:
“(1) Within thirty days of the receipt of the award, unless another period of time has been

37
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 agreed upon by the parties, a party, with notice to the other party, may request the
arbitral tribunal:
“(a) to correct, within thirty days, in the award any errors in computation, any
clerical or typographical errors or any errors of similar nature;
“(b) to give, within thirty days, an interpretation of a specific point or part of the
award; such interpretation shall form part of the award.
“(2) The arbitral tribunal may correct any error of the type referred to in paragraph (1) (a)
of this article on its own initiative within thirty days of the date of the award.
“(3) Unless otherwise agreed by the parties, a party, with notice to the other party, may
request, within thirty days of receipt of the award, the arbitral tribunal to make an
additional award as to claims presented in the arbitral proceedings but omitted
from the award. The arbitral tribunal shall make the additional award within sixty
days, if it considers the request to be justified.
“(4) The arbitral tribunal may extend, if necessary, the period of time within which it shall
make a correction, interpretation or an additional award under paragraph (1) or (3) of
this article.
“(5) The provisions of article 31 shall apply to a correction or interpretation of the award
and to an additional award.”
119. Divergent views were expressed as to whether the article should prescribe a period of
time during which the arbitral tribunal would have to dispose of a request by a party for a
correction or interpretation or an additional award. Under one view, it was not appropriate
P 898 to fix any period of time. It was pointed out in support of that view that there may be
P 899 circumstances in which the arbitral tribunal would be unable, for good reasons, to comply
with a fixed time–limit. Furthermore, rigid periods of time may create uncertainty as to the
validity of actions taken after their expiration and would raise questions as to the
sanctions for non–compliance.
120. Under another view, time–limits were necessary in order to ensure timely disposal of a
party's request and to limit the duration of uncertainty about the definitive content of the
award. It was also pointed out that time-limits were needed in view of the provision of
article 34(3) which set a time-limit for an application for setting aside of an award.
121. Under yet another view, a general formula was preferable which would, for example,
require the arbitral tribunal to act “promptly” or “without delay.”
122. The Working Group, after deliberation, adopted as a compromise the following
solution. Article 33 would set fixed periods of time (of 30 days for a correction or
interpretation and of 60 days for an additional award) and would empower the arbitral
tribunal to extend these periods of time, if necessary under the circumstances.
123. The Working Group was agreed that these periods of time would commence to run
when the arbitral tribunal received the request for a correction, interpretation or an
additional award. While it was suggested to express that understanding in the text by
adding, after the respective time-period, the words “of receipt of the request,” the Working
Group decided that there was no need for such an explicit statement since the correct
answer obtained clearly from the current text.
124. It was noted that a party requesting a correction, interpretation or an additional
award had to give notice to the other party in order to give that party the opportunity to
express its views concerning that request. It was suggested that a reasonable period of
time during which that party could reply should be taken into account for the calculation
of the period of time during which the arbitral tribunal should dispose of the request.
While the Working Group did not consider it necessary to lay down an elaborate time
schedule in that respect, it was understood that the arbitral tribunal should allow
sufficient time for a reply.
125. As regards paragraph (2), it was noted that that provision empowered the arbitral
tribunal to make an additional award only in cases where the omission could be rectified
without any further hearings and evidence. The Working Group, after deliberation, decided
not to retain that requirement because it was unduly restrictive in that it excluded a
considerable number of cases where at least a hearing, if not further evidence, was
necessary before making the additional award.
FIFTH DRAFT A/CN.9/246 (ANNEX) (6 MARCH 1984)
Article 33. Correction and interpretation of awards and additional awards
[Editors' Note: This draft differs in certain respects from the text reported to have been
“adopted” by the Working Group in the Fifth Working Group Report, supra, para. 118. The
modifications were made by a drafting group.]
P 899
P 900
(1) Within thirty days of receipt of the award, unless another period of time has been
agreed upon by the parties, a party, with notice to the other party, may request the
arbitral tribunal:
(a) to correct in the award any errors in computation, any clerical or typographical errors

38
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 or any errors of similar nature;
(b) to give an interpretation of a specific point or part of the award.
The arbitral tribunal shall make the correction or give the interpretation within thirty days
of receipt of the request. The interpretation shall form part of the award.
(2) The arbitral tribunal may correct any error of the type referred to in paragraph (1)(a) of
this article on its own initiative within thirty days of the date of the award.
(3) Unless otherwise agreed by the parties, a party, with notice to the other party, may
request, within thirty days of receipt of the award, the arbitral tribunal to make an
additional award as to claims presented in the arbitral proceedings but omitted from the
award. The arbitral tribunal shall make the additional award within sixty days, if it
considers the request to be justified.
(4) The arbitral tribunal may extend, if necessary, the period of time within which it shall
make a correction, interpretation or an additional award under paragraph (1) or (3) of this
article.
(5) The provisions of article 31 shall apply to a correction or interpretation of the award or
to an additional award.
SIXTH SECRETARIAT NOTE ANALYTICAL COMPILATION OF GOVERNMENT COMMENTS
A/CN.9/263 (19 MARCH 1985)
B. Specific comments on individual articles
[ .… ]
Article 33. Correction and interpretation of awards and additional awards
1. Czechoslovakia proposes to restrict the provisions on the interpretation of the award to
interpretation of the reasons upon which the award is based.
2. The German Democratic Republic proposes not to deal in the model law with the
possibility of the interpretation of an award.
3. Sweden and the United States propose to reconsider this article with a view to
establishing an obligation of the arbitral tribunal, which has received a request from a
party under this article, to give the other party an opportunity to respond to the request.
While the suggestion of Sweden does not refer expressly to the making of an additional
award, the proposal of the United States relates to all three cases of actions which may be
requested from the arbitral tribunal under this article, i.e., correction and interpretation of
awards and making of additional awards. As to the period of time to be allowed for a
P 900 response to a request under this article and for the ensuing action by the arbitral tribunal,
P 901 Sweden regards a period of 30 days as too short; the United States proposes to provide
that, unless the parties have agreed otherwise, the time for the arbitral