A Guide to the UNCITRAL Arbitration Rules

Author: Clyde Croft; Christopher Kee; Jeff Waincymer
Publisher: Cambridge University Press
ISBN: 9780521195720
Published In: April 2013
Format: Hardback , 540 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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The first version of the UNCITRAL Arbitration Rules was endorsed by the General Assembly of the United Nations in December 1976. Now considered one of UNCITRAL's greatest successes, the rules have had an extraordinary impact on international arbitration as both instruments in their own right and as guides for others. The Iran-US Claims Tribunal, for example, employs a barely modified version of the rules for all claims, and many multilateral and bilateral foreign investment treaties adopt the UNCITRAL Rules as an arbitral procedure. The Rules are so pervasive and the consequences of the new version potentially so significant that they cannot be ignored. This commentary on the Rules brings the official documents together in one volume and includes the insights and experiences of the Working Group that are not included in the official reports.

• Article-by-Article commentary on an important set of arbitral rules provided by authors who participated in the drafting process

• Addresses both the original UNCITRAL Rules and the Revised Rules, thereby allowing for comparison and appreciation of differences and similarities

• Provides a baseline against which the Revised Rules can be considered and critiqued

Preface	xvii
Foreword	xxi
Introduction	1
Background	1
Approach to the amendment of the UNCITRAL Arbitration Rules	2
Section 1 Introductory rules	9
Article 1	11
Introduction	12
Form of the arbitration agreement	13
Scope of the revised Rules	18
The required agreement	21
Applicable version of the Rules	24
The UNCITRAL Rules and non-derogable provisions	28
Model Arbitration Clause	29
Article 2	32
Introduction	33
Means of communication	36
Addresses for notices	41
Delivery and receipt	42
Deemed delivery	44
Timing of receipt and establishment of time periods	45
Extension of time limits	47
Language	48
Article 3	50
Introduction	51
Purpose of Article 3	53
Commencement of arbitration proceedings	54
The nature of the notice of arbitration	54
Timing and service of the notice of arbitration	56
Contents of notice of arbitration	57
Jurisdiction of the arbitral tribunal and challenge to adequacy of the notice of arbitration	61
Article 4	66
Introduction	67
Time for response to notice of arbitration	68
Contents of response to notice of arbitration	69
Challenges to adequacy	73
Jurisdiction of the arbitral tribunal	74
The evidentiary status of the response	75
Article 5	76
Introduction	76
Scope of Article 5	77
Communication of representative and other information	80
Article 6	82
Purpose of Article 6	84
Agreement or designation of an appointing authority	87
The PCA procedure	90
Time limits	90
Effect of the failure of an appointing authority to act	91
Exercise of the functions of an appointing authority	92
Section II Composition of the arbitral tribunal	97
Article 7	99
Introduction	100
Composition of arbitral tribunal	100
Appointing authorities and selection of sole arbitrators	103
Article 8	107
Purpose of Article 8	109
Procedure for appointment of sole arbitrator	109
Criteria for selection by an appointing authority	111
Article 9	113
Purpose of Article 9	114
Party-appointed arbitrators	114
Procedure for appointment of presiding arbitrator	116
Criteria for appointment	118
Role of chair	118
Article 10	120
Purpose of Article 10	120
Procedure for appointment of three-person arbitral tribunal with multiple parties	121
Procedure for appointing multi-person tribunals other than three persons where multiple parties are involved	123
Residual appointments	124
Article 11	128
Introduction	128
Impartiality and independence	130
Disclosure requirements – potential appointees and arbitrators	131
Article 12	139
Purpose of Article 12	139
Basis and circumstances of challenge	140
Article 13	142
Purpose of Article 13	143
Challenge procedure	143
Resignation of an arbitrator	148
Article 14	152
Purpose of Article 14	153
Replacement procedure	153
Role of appointing authority	154
Article 15	162
Purpose of Article 15	162
Continuation of proceedings	163
Article 16	166
Purpose of Article 16	166
The extent of the waiver	167
Section III Arbitral proceedings	171
Article 17	173
Purpose of Article 17	175
Conduct of the proceedings	176
Provisional timetable	180
Abridgment or extension of time	181
Hearings	184
Communications to the arbitral tribunal	185
Joinder of parties	185
Third-party intervention	192
Confidentiality	193
Consolidation	195
Article 18	198
Purpose of Article 18	198
Model Law provisions	201
Determining the ‘place of arbitration’	203
Deliberations, hearings or meetings at ‘any location’	207
Article 19	209
Purpose of Article 19	209
Language of the arbitral proceedings	210
Translation of documents relied upon	213
Article 20	215
Purpose of Article 20	216
Communication of the statement of claim	217
Election to rely upon the notice of arbitration	217
Contents of the statement of claim	219
Challenges to adequacy	222
Contract or other legal instrument(s) required	222
Annexures to the statement of claim	223
Article 21	227
Purpose of Article 21	228
Communication of the statement of defence	229
Election to rely on the response to notice of arbitration	229
Contents of statement of defence	231
Annexures to the statement of defence	232
Counterclaims or set-offs	233
Contents of counterclaims and claims by way of set-off	241
Timing	242
Cross-claims and claims against third parties	242
Article 22	243
Purpose of Article 22	243
When amendment or supplement will not be allowed	244
Extent of amendment or supplement allowed	245
Article 23	248
Purpose of Article 23	249
Power of the arbitral tribunal to rule on its own jurisdiction	250
Time at which objection to jurisdiction must be raised	257
Manner in which arbitral tribunal may rule on jurisdiction	258
Article 24	260
Purpose of Article 24	260
Provision of statements	261
Article 25	263
Purpose of Article 25	263
Period of time for the provision of statements	264
Article 26	266
Purpose of Article 26	268
1985 Model Law provisions	269
Revision of the Model law	271
Revision of the 1976 Rules	278
Criteria for relief	287
Process issues	288
Variety of interim measures of protection	288
Measures aimed at preserving the status quo	289
Measures aimed at preventing, or the refraining from taking, action that is likely to cause (i) current or imminent harm or (ii) prejudice to the arbitral process itself	289
Measures aimed at preserving assets out of which a subsequent award may be satisfied	290
Measures relating to the preservation of evidence	292
Ex parte applications for interim measures of protection	292
Article 27	298
Introduction to evidentiary issues	299
Purpose of Article 27	303
Burden of proof	303
General witnesses and expert witness evidence	307
Lay and expert witness statements	310
Production of documents, exhibits or other evidence	313
Timing of document production	317
Admissibility, relevance, materiality and weight of evidence	320
Late production	321
Article 28	324
Purpose of Article 28	325
Notice of hearings	326
Treatment of those appearing at hearings	327
Hearings to be held in camera	329
Hearings by teleconference and the like	331
Article 29	334
Purpose of Article 29	335
Proposals for revision	336
Qualifications, impartiality or independence	337
Article 30	338
Purpose of Article 30	339
Proposals for revision	339
Failure by claimant to submit statement of claim	342
Failure by respondent to communicate response or statement of defence or by claimant to submit defences to counterclaims and/or set-off claims	343
Failure to appear at a hearing	344
Failure to produce evidence on the invitation of the tribunal	345
Sufficient cause	347
Article 31	349
Purpose of Article 31	349
Preconditions to closure of hearings	351
Reopening of hearings in exceptional circumstances	355
Article 32	357
Purpose of Article 32	357
Language of Article 32	359
Actual or constructive knowledge	362
Section IV The award	367
Article 33	369
Purpose of Article 33	369
Majority decision making	370
Procedural orders	374
Deliberations	375
Confidentiality of deliberations	376
Article 34	378
Purpose of Article 34	379
Proposed revisions	379
Separate awards	380
Final and binding	381
The possibility of waiver of challenge rights	383
Form and service of awards	386
Dissenting opinions	389
Public disclosure	390
Article 35	394
Purpose of Article 35	394
Proposed revisions	396
Applicable law	396
Mandatory principles of substantive law	399
Decisions as amiable compositeur or ex aequo et bono	400
Terms of the contract and any usage of trade	401
Timing of determinations	402
Proof of applicable law	402
Article 36	404
Purpose of Article 36	405
Proposed revisions	405
Consent award	406
Termination of arbitral proceedings	408
Signature and communication	409
Article 37	410
Purpose of Article 37	410
Proposed revisions	411
The nature and process of ‘interpretation’	412
Costs	413
Article 38	415
Purpose of Article 38	415
Revisions	416
Article 39	419
Purpose of Article 39	419
Necessary elements	420
Inclusion of termination orders	422
Form, process and timing	424
Article 40	427
Purpose of Article 40	428
Proposed revisions	429
Fixing of costs	429
The definition of costs	430
Legal and other costs	431
Additional fees for interpretation, correction or completion	433
Article 41	435
Purpose of Article 41	437
Proposed revision	439
Reasonable fees and expenses	442
Appointing authority schedules or methods	443
Information to parties and review	443
Information and challenge as to fees and expenses as fixed	444
Continuation of proceedings on challenge	445
Article 42	447
Purpose of Article 42	448
Unsuccessful party	451
Article 43	453
Purpose of Article 43	454
Initial advance	454
Supplementary deposits	455
Consultation with appointing authority	455
Failure to pay deposits	455
Final account and refunds	456
Appendix 1: UNCITRAL Notes on Organising Arbitral Proceedings	457
Appendix 2: Recommendations to assist arbitral institutions and other interested bodies with regard to arbitration under the UNCITRAL Arbitration Rules as revised in 2010	484
Index	507