The UNCITRAL Model Law on International Commercial Arbitration (the Model Law) was adopted in 1985 and amended in 2006. The objective of the Model Law is to assist states in reforming and modernising their arbitration legislations and to work towards a harmonised legal framework for international arbitration. The Model Law provides a set of procedural rules drafted in simple and clear language governing all stages of arbitration, including actions available before national courts in support of arbitration, that may serve as a basis for a modernised arbitration law.
Under the Model Law, parties may seek the assistance of the national courts in various aspects of the arbitral process. In terms of interim relief, the courts may assist in the enforcement of interim measures ordered by an arbitral tribunal (Articles 17H-17I) and in the issuance of court-ordered interim measures (Article 17J). The parties may also seek the support of the courts in the taking of evidence (Article 27).
Once the award has been rendered, a party against whom an award is rendered may apply to set aside the award at the seat of arbitration on the following grounds:
- Lack of legal capacity of the parties to the arbitration agreement or invalidity of the said agreement (Article 34(2)(a)(i));
- Improper notice of the arbitrator’s appointment or of the arbitral proceedings, or lack of due process (Article 34(2)(a)(ii));
- Arbitral tribunal’s lack of jurisdiction to address issues not falling within the scope of the arbitration agreement or request for arbitration (Article 34(2)(a)(iii));
- Improper constitution of the arbitral tribunal (Article 34(2)(a)(iv)).
Under Articles 34(2)(b), the competent court may refuse recognition and enforcement if it finds that, under its laws, the subject matter of the dispute is non-arbitrable, or recognition and enforcement would breach the country’s public policy.
Article 36 lists the grounds on which a court may refuse recognition or enforcement of foreign awards (ie, awards issued in other jurisdictions). In addition to the grounds listed in Article 34(2)(a), a party may also challenge an award that was suspended or set aside by a court at the seat of arbitration.
To date, nearly 118 jurisdictions worldwide have adopted the Model Law or have arbitration laws based on the Model Law. These include Australia, Belgium, Canada, Hong Kong, Germany, Greece, Japan, Poland, Singapore, and the United Kingdom.
The role of the courts in facilitating arbitral proceedings varies from jurisdiction to jurisdiction. Most jurisdictions have implemented or adopted similar statutory provisions to the Model Law. Under the Model Law, the courts play a role in:
- determining challenges on the appointment of arbitrators (Article 13);
- deciding whether to terminate the mandate of an arbitrator (Article 14);
- assisting with the recognition and enforcement of interim measures granted by the tribunal or issuing interim measures to the same effect (Articles 17H & 17J);
- providing assistance in relation to the taking of evidence (Article 27);
- determining applications to set aside arbitral awards (Article 34); and
- recognising and enforcing arbitral awards (Article 35).
Whether the aforementioned provisions apply to both institutional and ad hoc arbitrations would largely be jurisdiction specific, although they would apply equally to both ad hoc and institutional arbitrations in the majority of jurisdictions.
In an ad hoc arbitration, the parties would preferably specify certain procedures in the arbitration agreement in order to avoid uncertainty in case of disagreement on key procedural issues.
In case of disagreement on a procedural issue and in the absence of any applicable arbitration rules, the parties would have no other choice than to seise the national court at the seat of arbitration for assistance. Such actions may increase the duration and cost of the overall arbitration and may not necessarily lead to the desired outcome, depending on the applicable arbitration laws and the practices of the national courts.
The extent of powers exercised by national courts varies from one jurisdiction to another. For example: the French arbitration law empowers the “judge acting in support of the arbitration” to appoint arbitrators in ad hoc arbitration, resolve challenges to arbitrators, and extend procedural time limits. Meanwhile, under the Hong Kong Arbitration Ordinance, the Hong Kong International Arbitration Centre (HKIAC) has been designated to deal with any issues relating to the constitution of the tribunal in ad hoc arbitrations, whilst the Court retains the power in determining challenges on the appointment of arbitrators and on whether to terminate the mandate of an arbitrator.
In terms of assistance in the constitution of the arbitral tribunal, most major arbitral institutions, including the ICC, International Centre for Dispute Resolution (ICDR), London Court of International Arbitration (LCIA) and the Permanent Court of Arbitration (PCA) offer their services as appointing authority for a fee. The advantage of these institutions over national courts is their experience with international arbitration and their ability to select arbitrators with the necessary skills and experience to hear specific types of disputes.
In practice, the parties are more likely to turn to national courts for assistance in ad hoc arbitration than in institutional arbitration, where the arbitral institution can help resolve procedural disputes in accordance with the relevant institutional rules. This is the case for, among others, arbitrator appointments, arbitrator challenges and replacements, and any disagreement on fees.
The adoption of a set of non-institutional rules such as the UNCITRAL Arbitration Rules would help to enhance predictability and ensure a smoother and more efficient arbitration. Parties may agree to adopt such rules once a dispute has arisen.