Recent Amendments to the Model Arbitration Law

Question: Discuss about the Recent Amendments to the Model Arbitration Law. Answer: Introduction Arbitration practice dates back to 1697 in England. In its actual meaning, arbitration is the alternative jurisdiction to federal courts which are specifically established by the State to apply and uphold the law and determine all forms of dispute.[1] In 1919, there was an establishment of International Chamber of Commerce (the ICC). From then, an increased demand for enforcement of trade agreements and international recognitions of ICC led to the birth of New York Convention (NYC) in 1958. Later in early 1974, under the supervision of the United Nations, the United Nations Commission on International Trade Law (UNICTRAL) prepared the arbitration rules. With this in the mind, (UNICTRAL) was then specifically designed to apply to International arbitration.[2] Recent Significant Changes The latest 2010 UNCITRAL Arbitration Laws and Rules started operating on 15th of August 2010. These changes also apply to all arbitration disputes and agreements finalized after that date. All of these reflect the growth of international commercial arbitrated disputes of the past. Article 1(1): Unlike the 1976 version, the new changes in 2010 dont necessarily require the parties seeking arbitration to be parties to a contract. It also removed the restriction to a written agreement as a requirement for any arbitrated case. Article 2: There is no longer need to deliver a notice physically. Now notices delivered electronically. Article 4: This article provides that the respondent should respond to the arbitration notice of within 30 days of receipt of the notice. That addition gives a room for a respondent to file a claim concerning the other party if the respondent deems it fit. Article 6: The 1976 rules provided the parties with 60 days to appoint the authorities, but the 2010 rules provide for 30 days. Article 10: Before then, the 1976 Rules didnt provide for the appointment of a three-arbitrator tribunal. Fortunately, the 2010 rules allow three arbitrators for multi-party circumstances. Article 16: In this article, there is an addition to provide for an exclusion of liability on the side of arbitrators in addition to the choosing authority. Article 17(1) necessitates the tribunal to carry out the proceedings to minimize unnecessary delays and expense. Article 17(2) there is an introduction of a timetable to the tribunals. Article 17(5) Permits a third party or a joinder at the call from any party. Article 26: Unlike 1976 which never had any precise provisions for the possibility of interim measures, 2010 provides sufficient clarity concerning them. Article 29(2): The appointed tribunal-experts must prove their qualifications and impartiality. From then, the parties have the right to choose or reject them. This part is not available in 1976 rules. Article 34(5): this article allows the parties to choose whether they want an award to be made public or not by giving their consents. Article 41(4): the tribunal is supposed to clarify on their fees and expenditures. Plus the parties may seek the assistance of the PCA or the appointing authority reviewing the calculations. The Law Governing the Contract Lord Simonds explained it as the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connection.[3] In other words, the law that governs the substance or the cause of the conflict is the same law or rules that govern the contract that creates the dispute. So after choosing the applicable law, all the parties, and the arbitrators are supposed to apply that law as the governing law.[4] Juridical Seat The judicial seat or the arbitral seat is the nation where the international arbitration has its legal domicile or its statutory home.[5] With this interpretation, the judicial seat refers to the legal place chosen as opposed to a geographical setting. These place of arbitration doesnt have to be strict or limit the arbitral process to the boundaries of a particular country. So the arbitration board can meet, talk, hear, or see the evidence without the panel limiting itself within the state of its seat.[6] Procedural Law In defining procedural law, there is a need to distinct between the provisions of the law concerned with arbitration (the lex ar-bitri) and procedural rules that would need to be applied to reach the fair proceedings. ICC just gives an overall framework similar to the UNCITRAL Arbitration Rules. However, the parties need to supplement these rules. Considerably, its the reason the parties are free to choose some rules or else the arbitrators can choose where there is no choice.[7] After choosing and settling on the rules, such rules would be applied as the applicable procedural law to the cause of the dispute.[8] Conclusion Whenever parties to a dispute choose to go for arbitration, they except themselves from the huge cost of law suits, and also save themselves the time that they would have wasted in court. There is a need for parties to always seek alternative dispute resolutions before going to the court. Bibliography Bonython v The Commonwealth [1950] UKPCHCA 3; 81 CLR 486; [1951] AC 201 Gautami T S, International Institutions And Dispute Settlement: The Case Of Icsid [2010] Charles M, International Arbitration:The Key Elements 39 Essex Street [2004] Jones D, A Guide To International Arbitration' [2012] UNCITRAL Arbitration Rule (as revised in 2010) Art 35 Yas B, The Law Applicable in Investment Treaty Arbitration [2009] Gary Born, international commercial arbitration (Kluwer Law international, 2nd Ed, 2014) UNCITRAL Arbitration Rule (as revised in 2010) Art 18