SALIENT FEATURES OF
UNCITRAL MODEL LAW
Presented by:
Md. Ayub Ali
Assistant Professor
Dept. of Law & Justice
Southeast University
Advocate
Supreme Court of Bangladesh
ARBITRATION AGREEMENT
Chapter II of the Model Law deals with the
arbitration agreement, including its recognition
by courts.
This may be summarized as follows:
i. Definition and form of arbitration agreement
ii. Arbitration agreement and the courts
DEFINITION AND FORM OF
ARBITRATION AGREEMENT
Article 7 deals with the definition and form
of arbitration agreement.
Article 7 adopted two options or two
different approaches on the question of
definition and form of arbitration
agreement.
The first approach 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”).
DEFINITION AND FORM OF
ARBITRATION AGREEMENT
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.
DEFINITION AND FORM OF
ARBITRATION AGREEMENT
The second approach defines the arbitration
agreement in a manner that omits any form
requirement.
“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.
ARBITRATION AGREEMENT AND
THE COURTS
Articles 8 and 9 deal with two important aspects
of the complex relationship between the
arbitration agreement and the resort to courts.
Article 8 (1) of the Model Law places any court
under an obligation to refer the parties to
arbitration if the court is seized with a claim on
the same subject-matter unless it finds that the
arbitration agreement is null and void, inoperative
or incapable of being performed.
The referral is dependent on a request, which a
party may make not later than when submitting its
first statement on the substance of the dispute.
ARBITRATION AGREEMENT AND
THE COURTS
This provision is binding only on the courts of
that State where the Model Law is adopted
by the State.
However, since article 8 is not limited in
scope to agreements providing for arbitration
to take place in the enacting State, it
promotes the universal recognition and
effect of international commercial
arbitration agreements.
ARBITRATION AGREEMENT AND THE COURTS
Article 9 expresses the principle that any
interim measures of protection that may be
obtained from courts under their procedural
law (for example, pre-award attachments)
are compatible with an arbitration
agreement.
That provision is ultimately addressed to the
courts of any State, insofar as it establishes
the compatibility between interim measures
possibly issued by any court and an
arbitration agreement, irrespective of the
place of arbitration.
COMPOSITION OF ARBITRAL TRIBUNAL
Chapter III contains a number of detailed
provisions on appointment, challenge,
termination of mandate and replacement of an
arbitrator.
The chapter illustrates the general approach
taken by the Model Law in eliminating difficulties
that arise from inappropriate laws or rules.
First, the approach recognizes the freedom of
the parties to determine, by reference to an
existing set of arbitration rules or by an ad hoc
agreement, the procedure to be followed,
subject to the fundamental requirements of
fairness and justice.
COMPOSITION OF ARBITRAL TRIBUNAL
Secondly, where the parties have not exercised
their freedom to lay down the rules of
procedure or they have failed to cover a
particular issue, the Model Law ensures, by
providing a set of rules, that the arbitration
may commence and proceed effectively until
the dispute is resolved.
Where under any procedure, difficulties arise in
the process of appointment, challenge or
termination of the mandate of an arbitrator,
articles 11, 13 and 14 provide for assistance by
courts or other competent authorities
designated by the enacting State.
See, Art. 10 – 15.
CONT…
Article 10 provides for the number of
arbitrators:
i. The parties are free to determine the number
of arbitrators;
ii. Failing such determination, the number of
arbitrators shall be (3) three.
Article 11 provides for the appointment of
arbitrators:
i. No person shall be precluded by reason of his
nationality from acting as an arbitrator, unless
otherwise agreed by the parties.
ii. The parties are free to agree on a procedure of
appointing the arbitrator or arbitrators.
CONT…
Failing such agreement:
i. in an arbitration with three arbitrators, each party
shall appoint one arbitrator, and the two arbitrators
thus appointed shall appoint the third arbitrator;
ii. if a party fails to appoint the arbitrator within thirty
days of receipt of a request to do so from 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 or other authority;
iii. 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 or other authority.
FINALITY OF COURT’S ORDER
A decision on appointment of arbitrator by the
court or other authority shall be subject to no
appeal.
The court or other authority, in appointing an
arbitrator, shall have due regard to:
i. 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,
ii. in the case of a sole or third arbitrator, shall
take into account the advisability of
appointing an arbitrator of a nationality other
than those of the parties.
GROUNDS FOR CHALLENGE
Art. 12 and 13 deals with the grounds and
the challenge procedure respectively.
As per Art. 12 an arbitrator may be
challenged only if circumstances exist as to
justifiable doubts regarding
i. his impartiality or independence, or
ii. if he does not possess qualifications agreed
to by the parties.
CHALLENGE PROCEDURE: ART.13
1. The parties are free to agree on a procedure
for challenging an arbitrator, or
2. A party shall, within 15 days after the
constitution of the arbitral tribunal, send a
written statement of the reasons for the
challenge to the arbitral tribunal and the
arbitral tribunal shall decide on the challenge.
3. If a challenge under any procedures as
mentioned above are not successful, the
challenging party may request, within thirty
days after having received notice of the
decision rejecting the challenge, the court to
decide on the challenge, which decision shall
be subject to no appeal.
