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2006 UNCITRAL Model Law: Are StatesAdopting the Law in Letter and Spirit?by T.W. Walsh

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ISSN : 1875-4120 Issue : Vol. 8, issue 2 Published : May 2011

Issue 3 ........................................................................................................................................................................ 215

......................................................................................................................................................................................2006 UNCITRAL Model Law

2006 UNCITRAL Model Law: Are States Adopting the Law in Letter and Spirit?

Thomas W. Walsh*

Introduction

The UNCITRAL Model Law on International Commercial Arbitration was adopted by the United Nations Commission on International Trade Law (“UNCITRAL” or the “Commission”) on June 21, 1985 (the “1985 Model Law”).1 In the 25 years since its adoption, the

Model Law has served – as UNCITRAL intended it to – as a vehicle for the harmonisation and improvement of national arbitration laws.2 The number of countries with legislation based on the 1985 Model Law numbers over 60 and includes States from all six inhabited continents.3 The Model Law was amended by UNCITRAL on July 7, 2006 (the “2006 Model Law”).4 The 2006 Model Law amends the articles of the Model Law that defi ne the form of the arbitration agreement – Article 7 – and the granting of interim measures – Article 17, and adds an article to the Model Law – Article 2 A – encouraging the interpretation of the Model Law in accordance with its international origin and nature as a harmonising instrument.5 Concurrent to and in connection with the amendment of the Model Law, UNCITRAL

∗ Associate, Sullivan & Cromwell LLP; Articles Editor, Arbitration International. The author

would like to thank Joseph E. Neuhaus of Sullivan & Cromwell LLP for his comments on an

earlier draft of this article.

1 UNCITRAL Secretariat, UNCITRAL Model Law on International Commercial Arbitration 1985

with Amendments as Adopted in 2006, Pt II, 1 (2008), http://www.uncitral.org/pdf/english

/texts/arbitration/ml-arb/0786998_ Ebook.pdf (hereinafter “UNCITRAL Explanatory

Note”).2 Id., 2.3 UNCITRAL Secretariat, Status - UNCITRAL Model Law on International Commercial

Arbitration, http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985

Model_arbitration_status.html (hereinafter “UNCITRAL Model Law Status”). 4 UNCITRAL Explanatory Note, para.1.5 UNCITRAL Secretariat, UNCITRAL Model Law on International Commercial Arbitration 1985

with Amendments as Adopted in 2006, Part I, arts. 2 A, 7, 9 (2008), http://www.uncitral.org/

pdf/english /texts/arbitration/ml-arb/07-86998_Ebook.pdf (hereinafter “2006 UNCITRAL

Model Law”).

2010 Arbitration and ADR Review 215 215 09/11/2010 11:09:27

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Arbitration and ADR Review 2010............................................................................................................................................................................

adopted a “Recommendation on interpretation of article II, paragraph 2, and article VII, paragraph 1” of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). The “Recommendation” suggests that those articles of the Convention be interpreted to apply the same standard as the 2006 Model Law for the permissible forms of an arbitration agreement.6 These subject areas were identifi ed by UNCITRAL as areas in which the 1985 Model Law and the Convention were not current with practice and in which States’ practices were divergent.7 The 2006 amendments are intended to update and harmonise the Model Law and, in turn, States’ approaches to the amended subject areas.8

With the enactment by the Republic of Ireland of a new Arbitration Act on March 1, 2010, six States have now passed legislation incorporating the 2006 Model Law in whole or in part. The other States are Mauritius (2008), New Zealand (2007), Peru (2008), Rwanda (2008) and Slovenia (2008).9 These States’ respective Arbitration Acts adopt the 2006 Model Law to varying degrees. Ireland’s new Arbitration Act, for example, adopts the 2006 Model Law with minor modifi cations, while Slovenia’s legislation integrates only a few aspects of the 2006 amendments. The comparison below of these States’ arbitration laws illustrates the extent and level of uniformity with which these States have adopted Articles 7, 2 A and 17 of the 2006 Model Law, and comments on the implications of the laws enacted by these States.10

Form of the Arbitration Agreement

Article 7 of the 2006 Model Law

As an initial matter, some discussion of the amended Article 7 is useful to understanding the signifi cance of its adoption by the aforementioned States. The defi nition and form of an arbitration agreement provided in Article 7 of the 1985 Model Law closely follows Article II of the New York Convention, which requires that an arbitration agreement be “in writing.”11

6 Id. Pt III (hereinafter “Convention Interpretive Recommendation”). 7 2006 UNCITRAL Model Law, p.viii. 8 Id.9 UNCITRAL Model Law Status. 10 For a comparative chart of the arbitration laws of the six 2006 Model Law countries, see

p.14, infra. 11 HOWARD M. HOLTZMANN & JOSEPH E. NEUHAUS, A GUIDE TO THE UNCITRAL MODEL LAW ON INTERNATIONAL

COMMERCIAL ARBITRATION 260 (1989).


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In particular, the “writing” must capture the parties’ consent to arbitration either by recording the parties’ signatures or in an exchange of documents.12 In the years since the adoption of the 1985 Law, the UNCITRAL Secretariat noted that the perception was developing in the arbitration community that the writing requirements of the New York Convention and the original Article 7 were overly restrictive.13 The Secretariat reported that practitioners had repeatedly observed “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.”14 For this reason, article 7 was amended in 2006 to better conform to international contract practices. In particular, as the Commission later reported, the Working Group that was charged with the amendment of the 1985 Law sought to modify the original Article 7(2) to, “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.”15

In amending Article 7, the Commission adopted two options, titled “Option I” and “Option II,” for enacting States to consider. Both options retain the definition of an arbitration agreement in Article 7(1) of the 1985 Model Law, which recognises the validity and effect of a commitment by the parties to submit to arbitration an existing dispute (“compromis”) or a future

12 For commentary on Art.7(2), see HOLTZMANN & NEUHAUS, p.260. Art.7(2) of the 1985 UNCITRAL

Model Law provides:

An 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 …

Article II of the New York Convention provides:

1. Each Contracting State shall recognise 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.13 First Report of the Secretary General, A/CN.9/WG.II/WP.108, para.7 (January 14, 2000).14 Id.15 2006 Commission Report, A/61/17, paras 146-47 (15 July 2006); see also April 2000

Working Group Report, A/CN.9/468, para.92 (10 April 2000); December 2000 Working

Group Report, A/CN.9/485, paras 22, 70 (December 20, 2000).


218 .........................................................................................................................................................................Issue 3


dispute (“clause compromissoire”).16 According to the Commission, the latter type of agreement is presently not given full effect under certain national laws.17 The two options differ in the requirements they place on the form of an arbitration agreement. Option I follows the detailed structure of the original 1985 text. It adheres to the New York Convention in requiring an arbitration agreement to be in writing, but recognises a record of the “contents” of the agreement “in any form” as equivalent to a traditional “writing.”18 This is to say, that the agreement to arbitrate may be entered into in any form – including orally – as long as the content of the agreement is recorded.19 This new interpretation of “writing” is significant in that it no longer requires a written record of the signatures of the parties or an exchange of messages between the parties – i.e., it is not necessary to record the parties’ consent to arbitration.20

Option I modernises the language in Article 7(2) of the 1985 Law referring to the use of electronic commerce by tracking the wording of the 1996 UNCITRAL Model Law on Electronic Commerce and the 2005 United Nations Convention on the Use of Electronic Communications in International Contracts.21 In adopting this language, the Commission observed the importance of maintaining consistency between UNCITRAL texts.22 Option I also covers with slight modification the provisions in Article 7(2) of the 1985 Law for recognition of an arbitration agreement created through “an exchange of statements of claim and defence in which

16 For commentary on Article 7(1), see HOLTZMANN & NEUHAUS, op. cit., p.259. Art.7(1) of the

1985 Model Law, and Option I, Art.7(1), and Option II of the 2006 Model Law define an

arbitration agreement as follows:

“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.17 UNCITRAL Explanatory Note, para.19.18 Option I, Arts 7(2)-(3) of the 2006 UNCITRAL Model Law provide:

(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.19 April 2006 Secretariat Note on Form of Arbitration Agreement, A/CN.9/606, para.8 (April

13, 2006).20 February 2006 Working Group Report, A/CN.9/592, para.59 (February 27, 2006); June

2001 Working Group Report, A/CN.9/487, paras 29-30 (June 15, 2001); February 2002

Secretariat Note, A/CN.9/WG.II/WP.118, para.15 (February 6, 2002).21 2006 UNCITRAL Model Law, Option I, art.7(4); see also 2006 Commission Report, A/61/17,

para.158.22 2006 Commission Report, A/61/17, para.158.


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the existence of an agreement is alleged by one party and not denied by another” and “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.”23

The second approach to Article 7, Option II, consists only of a definition of an arbitration agreement. It does not define the form of an agreement.24 Due to the omission from Option II of any requirements on the form of an arbitration agreement, scrutiny of the conclusion and content of an arbitration agreement is solely a matter of proof of the parties’ agreement rather than the validity of the agreement.25 Under this framework, the contract laws of the respective States govern the form of the arbitration agreement. Thus, if the applicable State laws allow for oral agreements, such agreements may be recognised as valid under Option II.26 To the extent that Option II does not reflect current contract practices, the Commission offered Option II as “a solution for the future.”27

Adoption of Article 7 of the 2006 Model Law

No preference was expressed by the Commission in favour of either Option I or II. The six countries that have adopted the 2006 Model Law, however, have shown a preference for Option I. Ireland adopted Option I verbatim in a schedule to its Arbitration Act.28 The Arbitration Acts of Mauritius, Peru and Rwanda contain the language of Option I with largely non-substantive edits of the Model Law text.29 More conservatively, Slovenia adopted the writing requirement of Article 7 of the 1985 Model Law, though Slovenia created a carve out that recognises arbitration agreements that are referenced in bills of lading, which are typically not signed by both parties to the bill.30 New Zealand’s Arbitration Act allows that an “arbitration agreement may be

23 2006 UNCITRAL Model Law, Option I, arts 7(5)-(6).24 Id., Option II.25 Secretariat Note Reporting Mexican Proposal, A/CN.9/WG.II/WP.137, para.II.2 (20 April

2005); October 2005 Working Group Report, A/CN.9/589, para.109 (October 12, 2005).26 October 2005 Working Group Report, A/CN.9/589, para.110.27 2006 Commission Report, A/61/17, para.165.28 Arbitration Act 2010, s.2(1); sch.1, Option I.29 International Arbitration Act 2008, ss 2(1), 4(1)-(3) (hereinafter “Mauritius Arbitration

Act 2008”); Legislative Decree No. 1071 – Legislative Decree Regulating Arbitration,

art.13(1)-(6) (hereinafter “Peru Arbitration Law 2008”); Law No. 005/2008 on Arbitration and

Conciliation in Commercial Matters, art.9 (hereinafter “Rwanda Arbitration Act 2008”). 30 Law on Arbitration of Slovenia 2008, art.10 (hereinafter “Slovenia Arbitration Law

2008”).


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made orally or in writing.”31 Interestingly, the New Zealand Arbitration Act does not expressly provide that an arbitration agreement may be concluded by conduct or performance.

UNCITRAL presented Option I in its 2006 Commission Report as providing a form requirement that responds to the needs of international trade.32 The adoption of Option I by Ireland, Mauritius, Peru and Rwanda suggests that UNCITRAL correctly gauged the current or preferred international standards for the form of an arbitration agreement. The harmonisation of these standards is particularly advanced by Ireland’s Arbitration Act, which incorporates the 2006 Model Law with minimal alterations to the text.33 The modest success of Option I indicates that States are prepared to recognise arbitration agreements that do not record the consent of the parties to those agreement, but that States are not prepared to do away entirely with the writing requirement. The former conclusion is reinforced by the approval in the New Zealand Arbitration Act of oral agreements and the exception in the Slovenia’s Arbitration Act for bills of lading.34

Despite the popularity of Option I, prior to the adoption of the 2006 Model Law, the likely validity of arbitration agreements formed under Option I was questioned by some members of the Working Group. Concerns were raised that arbitration awards rendered under agreements that conform with Options I or II of Article 7 of the 2006 Law may be unenforceable under the New York Convention.35 The fear was that such arbitration agreements may contravene a literal or restrictive reading of the writing requirement of Article II(2) of the Convention.36 Both Options are

31 Arbitration Act 1996 as October 18, 2007, sch.1, s.7(1) (hereinafter New Zealand Arbitration

Act 2007”).32 See 2006 Commission Report, A/61/17, para.146.33 UNCITRAL Explanatory Note, para.3. The UNCITRAL Secretariat expects that minimising

variation from the 2006 Model Law will also increase the confidence of foreign parties

in the reliability of the arbitration law in the enacting State. Id.34 New Zealand Arbitration Act, sch.1, s.7(1) (“An arbitration agreement may be made

orally or in writing.”); Slovenia Arbitration Law 2008, art.10(5) (“An arbitration agreement

is valid also if the bill of lading contains an express reference to an arbitration clause in

a charter party.”).35 February 2006 Working Group Report, A/CN.9/592, paras 50, 59; 2006 Commission

Report, A/61/17, paras 146-47, 153.36 For commentary on the requirements of Article II of the New York Convention, see Toby

Landau QC & Salim Moollan, “Article II and the Requirement of Form” in ENFORCEMENT OF

ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS: THE NEW YORK CONVENTION IN PRACTICE 189

(Emmanuel Gaillard & Domenico Di Pietro eds., 2008).


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intended to encourage the enforceability of arbitration agreements under the New York Convention.37 Nonetheless, UNCITRAL was sufficiently concerned about the enforceability of such arbitration agreements as to prepare the above mentioned Recommendation regarding the interpretation of the Convention’s form requirements.38 During the deliberations over the amended law, some States also indicated that they continue to value the “warning function” of a writing to alert parties that agreeing to arbitration curtails the parties’ rights of recourse to the courts.39 This continued reticence towards arbitration in certain jurisdictions may cause those States to retain the view that a traditional form requirement is necessary to safeguard parties’ rights.

Slovenia’s decision to adopt the definition in the 1985 Model Law of the form of an arbitration agreement at the very least illustrates that not all States are prepared to recognise arbitration agreements that do not record the consent of the parties to resolve their differences in arbitration.40 In this regard, it also bears noting, that Armenia and the Dominican Republic adopted the 1985 Model Law – including the form requirements of the 1985 Law – in 2007 and 2008, respectively, foregoing the opportunity to adopt the 2006 Law.41 As noted above, the one caveat to Slovenia’s adoption of the form requirements of the 1985 Law, is Slovenia’s acceptance of arbitration agreements that are referenced in bills of lading.42 Such arbitration agreements do not expressly capture the parties’ consent to arbitration, as required by the 1985 Law, because bills of lading often are not signed by both parties to the bill. Bills of lading have, however, long been a common form of contract, and the recognition of arbitration agreements referenced in such bills was a concern of the Working Groups that drafted the 1985 and 2006 Model Laws.43 In this regard, Slovenia’s carve out for bills of

37 UNCITRAL Explanatory Note, p.19.38 See id. P. 20.39 April 2000 Working Group Report, A/CN.9/468, para.89.40 See Slovenia Arbitration Law 2008, art.10.41 UNCITRAL Model Law Status. 42 Slovenia Arbitration Law 2008, art.10(5).43 See April 2006 Secretariat Note on Form of Arbitration Agreement, A/CN.9/606, paras

11-12; see also HOLTZMANN & NEUHAUS, at 261. “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 [1985] Model Law. 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.” Id.


222 .........................................................................................................................................................................Issue 3


lading may – from the perspective of a New York lawyer – be intended to be read literally and not extended to other forms of arbitration agreement that do record the consent of the parties to arbitration.

New Zealand’s explicit endorsement of oral arbitration agreements makes it the most progressive of the six countries to have adopted the 2006 Model Law, with the caveat that the New Zealand Act does not expressly accept arbitration agreements concluded by conduct. As noted, the New Zealand Arbitration Act does not go so far as to not discuss form requirements. Rather, New Zealand’s Act discards most requirements on form by explicitly endorsing arbitration agreements that are “made orally or in writing.”44 Thus, the New Zealand Arbitration Act, the Slovenia Arbitration Law and the arbitration laws of the other States that have adopted the 2006 Model Law have all chosen to explicitly address the requirements on the form of arbitration agreements. None of these States has adopted Option II or otherwise adopted arbitration laws that do not define the form of an award. The Commission offered Option II as “a solution for the future” and the enacting States’ lack of interest in adopting Option II indicates that Option II remains an alternative for the future.45

The success of the 2006 Model Law is not limited to the question of whether the Law is adopted by States. To provide predictability in commercial disputes, the Law must also be applied by these States in a consistent manner. The primary risk for divergence in the application of Option I by the adopting States is in the States’ interpretations of the requirement in Article 7(3) that the “content” of the arbitration agreement be recorded.46 The 2006 Model Law is clear for this purpose that the “content” of the arbitration agreement does not necessarily include the consent of the parties to arbitrate.47 However, the Model Law does not otherwise give States guidance as to what elements of an arbitration agreement are to be considered the “content” of an agreement.48 The Working Group discussed this issue and certain members of the Working Group considered the content requirement to be satisfied by an oral reference to a written set of arbitration terms and conditions or arbitration rules.49 Other members

44 New Zealand Arbitration Act, sch.1, s.7(1). 45 2006 Commission Report, A/61/17, para.165.46 2006 UNCITRAL Model Law, Option I, art.7(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.”).47 Id.48 See id.49 June 2001 Working Group Report, A/CN.9/487, para.30 (June 15, 2001).


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of the Working Group advocated that the arbitration clause should be in writing, even if the clause was a standard form.50 A more restrictive view was also advanced that the arbitration clause should be in writing and that the writing could not be a form, but rather should be a writing created by the parties.51 These views were not included, however, in the 2006 Model Law or in the Secretariat’s accompanying explanatory note.52 Moreover, it appears that none of the arbitration laws that adopted Option I, have attempted to defi ne “content.”53

Interpretation of the 2006 Model Law

Article 2 A of the 2006 Model Law

To provide predictability in commercial disputes, the Model Law must be interpreted and applied with a certain consistency within and across jurisdictions. To this end, Article 2 A provides that, in the interpretation of the 2006 Model 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,” and that “[q]uestions concerning matters governed by this Law which are not expressly settled in it are to be settled in conformity with the general principles in which [the Model] law is based.”54 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 fi nal adoption of the 2006 amendments to the Law. The Commission based the provision on Article 3 of the UNCITRAL Model Law on Electronic Commerce, adopted in 1996, and on a closely parallel provision in the 1980 United Nations Convention on Contracts for the International Sale of Goods. In adopting the amendments to the Model Law, 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.”55

50 Id.51 April 2002 Working Group Report, A/CN.9/508, para.6 (April 12, 2002).52 See UNCITRAL Explanatory Note, para.19.53 See Ireland Arbitration Bill 2008, sch.1, Option I, art.7; Mauritius Arbitration Act 2008,

section 4(1)-(3); Peru Arbitration Law 2008, arts 13(1)-(6); Rwanda Arbitration Act 2008,

art.9.54 2006 UNCITRAL Model Law, art.2 A(1)-(2).55 July 2006 Commission Report, A/61/17, para.175.


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Adoption of Article 2 A of the 2006 Model Law

The six 2006 Model Law States have adopted Article 2 A to varying degrees. Mauritius and Slovenia adopted Article 2 A with few changes to the text.56 In addition to adopting Article 2 A, the arbitration law of Mauritius gives a non-exhaustive list of “international materials” that may be referred to in the application and interpretation of the Model Law, “including” “reports and analytical commentaries” of UNCITRAL and the UNCITRAL Secretariat, “case-law from other Model Law jurisdictions” and “textbooks, articles doctrinal commentaries on the Amended Model Law.”57

The arbitration laws of Peru and Rwanda neither adopt Article 2 A nor otherwise instruct their courts to interpret their arbitration laws in accordance with the travaux préparatoires of the Model Law or other UNCITRAL materials.58 The arbitration laws of Ireland and New Zealand tread a middle ground; neither law adopts Article 2 A, but both contain language that promotes the uniform application of the 2006 Model Law. The New Zealand Arbitration Act declares that one of the “purposes” of the Act is “to promote international consistency of arbitral regimes based on the Model Law on International Commercial Arbitration.”59 In this regard, New Zealand’s arbitration law provides that “[t]he material to which an arbitral tribunal or a court may refer in interpreting [the Arbitration] Act includes the documents relating to” the 1985 Model Law – not the 2006 Model Law.60 Ireland’s new Arbitration Act similarly encourages the uniform application of the Model Law. The Act instructs that “[j]udicial notice shall be taken of the travaux préparatoires” and that the “travaux préparatoires . . . may be considered when interpreting the meaning of any provision of the Model Law.”61 The Act does not explicitly authorise reference to other related materials.

Interim Measures

Article 17 of the 2006 Model Law

In amending the Model Law, the Commission expanded Article 17 extensively. Article 17 of the 1985 version of the Model Law consists of two

56 Mauritius Arbitration Act 2008, s.3(9)(a)-(b); Slovenia Arbitration Law 2008, art.2(1)-(2).57 Mauritius Arbitration Act 2008, s.3(9)(c)(i)-(iv). 58 See generally Peru Arbitration Law 2008; Rwanda Arbitration Act 2008.59 New Zealand Arbitration Act, s.5(b). 60 Id., s.3.61 Ireland Arbitration Act 2010, s.8(1)-(2).


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sentences. The first sentence authorises arbitral tribunals to, “at the request of a party, order any party to take such interim measures of protection as the arbitral tribunal may consider necessary in respect o the subject-matter of the dispute.” The second sentence authorises that the arbitral tribunal “may require any party to provide appropriate security in connection with such measure.” The amended Article 17 addresses interim measures and preliminary orders, and has been assigned its own chapter, chapter IV A, which includes five sections containing Articles 17 through 17 J. The revision of Article 17 was considered necessary in light of the increasing reliance upon such measures in the practice of international commercial arbitration, and the sparse direction provided in the 1985 version of Article 17.62

Some of the more significant changes to Article 17 are in the definition and enforcement of interim measures, the provision for preliminary orders and the clarification of the role of the courts in interim measures. Section 1 of the amended Article 17 defines the form and scope of interim measures and sets out the conditions for granting such measures. The Working Group considered at length the form in which an interim measure should be issued by an arbitral tribunal. The Working Group ultimately agreed that the 2006 Rules should not create any form requirements for interim measures.63 This neutral stance is reflected in the provision in the amended Article 17(2) that “[a]n interim measure is any temporary measure, whether in the form of an award or in another form.”64 The decision of the Working Group to adopt no form requirement for interim measures was inspired by Article 26 of the UNCITRAL Arbitration Rules, which also forgoes a definition of form for such measures.65

The amendments to the scope of interim measures and the conditions on such measures elaborated on the vague standards of the 1985 Law. The 1985 Model Law recognises a broad power of the arbitrators to grant any “interim measures of protection.”66 This is a moderate departure from Article 26(1) of the UNCITRAL Arbitration Rules – on which the original Article 17 was modelled, which adopts a nonexclusive list of example

62 See UNCITRAL Explanatory Note, para.4. 63 April 2006 Secretariat Note, A/CN.9/605, para.5 (April 25, 2006).64 2006 UNCITRAL Model Law, art.17(2).65 April 2006 Secretariat Note, A/CN.9/605, para.6. For commentary on Article 26(2) of

the UNCITRAL Arbitration Rules, see DAVID D. CARON, LEE M. CAPLAN & MATTI PELLONPÄÄ, THE

UNCITRAL ARBITRATION RULES 540 (2006). Article 26(2) of the UNCITRAL Arbitration Rules

provides that: “Such interim measures may be established in the form of an interim

award.”66 HOLTZMANN & NEUHAUS, p.530.


226 .........................................................................................................................................................................Issue 3


measures.67 The legislative history of the original Article 17 shows that the Working Group considered, but declined to limit the scope of interim measures to an exclusive list of specific measures.68 In the 2006 Model Law, the Working Group changed its tack. The amended Article 17 enumerates four categories of actions a party may be ordered to perform pursuant to an award of interim measures. These categories include orders for a party to: “maintain or restore the status quo”; “prevent, or refrain from taking action that is likely to cause . . . harm or prejudice to the arbitral process”; “preserv[e] assets out of which a subsequent award may be satisfied”; and “preserve evidence.”69 The Working Group was of the view that all purposes for interim measures were generically covered by these four categories and that the list of measures available under these categories should be considered an exhaustive one.70

The condition for granting an interim measure under the 1985 Law was simply that the measure be “necessary in respect to the subject-matter of the dispute.” The amended Law elaborates on this necessity requirement. The amended Article 17 conditions a grant of interim measures on the likelihood that the requested measure will prevent harm that is “not adequately reparable by an award of damages” and that such harm “substantially outweighs” the harm that is likely to result from the imposition of the measure. The Working Group intended that this test be applied in a “flexible” manner, balancing the potential harm of each party.71 To award interim measures, the arbitral tribunal must also be satisfied that there is a “reasonable possibility that the requesting party will succeed on the merits of the claim.”72 Notably, the Working Group chose not to make “urgency” a condition for the award of interim measures, thereby foreclosing the

67 Id. at 531. For commentary on Article 26(1) of the UNCITRAL Arbitration Rules, see CARON,

CAPLAN & PELLONPÄÄ, THE UNCITRAL ARBITRATION RULES, p.533. Article 26(1) of the UNCITRAL

Arbitration Rules provides that:

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.68 HOLTZMANN & NEUHAUS, p.530. 69 2006 UNCITRAL Model Law, art.17(2)(a)-(d).70 April 2006 Secretariat Note, A/CN.9/605, para.6.71 Id., para.7.72 2006 UNCITRAL Model Law, art.17 A(1)(a)-(b). These conditions apply to applications

under Article 17(2)(d) for interim measures to preserve evidence “only to the extent the

arbitral tribunal considers necessary.” Id. art.17 A(2).


Issue 3 ........................................................................................................................................................................ 227


application of the jurisprudence requiring urgency in interim measures to the 2006 Model Law.73

In the 2006 Law, the term “preliminary order” is used to emphasise the “temporary” and “extraordinary” nature of the measures that may be ordered by a tribunal when an application for interim measures is pending before it.74 Indeed, in recognition of the extraordinary nature of preliminary orders, the text of the amended Article 17 allows for parties to agree to opt-out of the provisions in the 2006 Model Law authorising preliminary orders.75 Preliminary orders may be made ex parte, have a maximum duration of twenty days and, while binding on the parties, are not subject to court enforcement and do not constitute an award.76 In regard to court-ordered interim measures, the amended Article 17 provides that “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 the enacting State, as it has in relation to proceedings in courts.”77 This section of Article 17 was included in the 2006 Model Law in order to eliminate any doubt that the existence of an arbitration agreement does not infringe on the powers of a competent court to issue interim measures and that parties to an arbitration agreement may approach a court with a request to order interim measures.78 The amendment of Article 17 to authorise court-ordered interim measures and tribunal-ordered preliminary orders clarifies what protective tools are available to parties to preserve the status quo until the arbitral tribunal is convened or until the tribunal issues an interim measure. The authorisation of court-ordered interim measures also gives parties a means of attaining enforceable measures other than to request tribunal-ordered interim measures.

An important innovation of the 2006 amendments of the Model

73 April 2006 Secretariat Note, A/CN.9/605, para.9. See, e.g., Biwater Gauff (Tanzania) Ltd.

v. United Republic of Tanzania, ICSID Case No. ARB/05/22, ¶ 76 (2006) (“In the Arbitral

Tribunal’s view, the degree of ‘urgency’ which is required depends on the circumstances,

including the requested provisional measures, and may be satisfied where a party can

prove that there is a need to obtain the requested measure at a certain point in the

procedure before the issuance of an award.”). 74 April 2006 Secretariat Note, A/CN.9/605, para.10; UNCITRAL Explanatory Note, para28. 75 2006 UNCITRAL Model Law, art.17 B(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 . . . .”). 76 2006 UNCITRAL Model Law, art.17 C(4)-(5); see also April 2006 Secretariat Note, A/

CN.9/605, para.10.77 Id., art.17 J.78 UNCITRAL Explanatory Note, para.30.


228 .........................................................................................................................................................................Issue 3


Law lies in the establishment in Articles 17 of rules for the recognition and enforcement of interim measures. The Working Group chose not to include such provisions in the 1985 Model Law because it was thought that they would be unacceptable to many States.79 UNCITRAL included an enforcement regime in the 2006 Law in response to the perception that the effectiveness of arbitration frequently depends upon the possibility of enforcing interim measures.80 The enforcement provisions of the amended Article 17 are modelled on the regime for the recognition and enforcement of arbitral awards under Articles 35 and 36 of the Model Law, which are largely unchanged from the 1985 version of the Model Law81 and are in turn modelled on the New York Convention.82 By adopting the language of the Convention in Article 17, UNCITRAL has made it possible for the courts of the 2006 Model Law States to draw on the depth of jurisprudence from numerous jurisdictions applying the relevant provisions of the Convention. Two differences between the recognition and enforcement provisions for interim measures and those provisions for arbitration awards in Articles 35 and 36 of the Model Law are that, as noted, Article 17 does not define the form in which an interim measure should be issued, and Article 17 does not make any provisions regarding the allocation of the burden of proof in enforcement proceedings. As such, the framework in the Model Law for the recognition and enforcement of interim measures is intended to be applied to interim measures regardless of the form of issuance of the measures.83 The allocation of the burden of proof in the enforcement of interim measures is a matter that is to be determined in accordance with the applicable law.84

79 HOLTZMANN & NEUHAUS, p.531. “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.” Id. 80 See UNCITRAL Explanatory Note, para.4. 81 Id., para.27. 82 HOLTZMANN & NEUHAUS, pp.1006, 1055. “Like Article 35, Article 36 was closely modelled

on the New York Convention. Article 36 goes further than the New York Convention,

however, in that it applies not only to arbitral awards issued outside the State in which

enforcement or recognition is sought, but also to domestic awards, i.e., awards issued in

international commercial arbitrations taking place in the enforcing or recognising State.”

Id., p.1055. For commentary on the scope of the New York Convention, see ENFORCEMENT OF

ARBITRATION AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS, PI, p.91 (Gaillard & Di Pietro eds.). 83 April 2006 Secretariat Note, A/CN.9/605, para.17.84 Id., para.18.


Issue 3 ........................................................................................................................................................................ 229


Adoption of Article 17 of the 2006 Model Law

Article 17 is, to date, the article of the 2006 Model Law that has been most widely adopted by the enacting States. The six 2006 Model Law States have each integrated all or part of the amended Article 17 in their respective arbitration laws. Impressively, each of these States has included provisions in their arbitration laws for the recognition and enforcement of interim awards from international arbitrations.85 Each of these States has also ratified the New York Convention.86 Accordingly, because the relevant provisions of the Model Law are based on the Convention, the courts of each State should now recognise and enforce international arbitration awards and international interim awards in the same manner. Parties applying to the courts of the six 2006 Model Law States for the enforcement of an interim award may draw on the courts’ respective jurisprudence on the enforcement of international arbitration awards. This will help foster the development of a uniform and predictable regime for the enforcement of interim measures, and, as a result, improve the effectiveness of interim measures and of arbitration as a tool for protecting the rights of the parties.87

The 2006 amendments to the scope of permissible interim measures and the conditions for granting those measures have been embraced to varying degrees by the enacting States. As noted above, the 2006 Model Law authorises four categories of interim measures.88 Five of the enacting States included this enumeration of categories in their arbitration laws.89 Slovenia is the one State that has not adopted the 2006 definition of the scope of interim measures. Slovenia’s legislature enacted the 1985 version of the scope of interim measures, which authorises any type of interim

85 Ireland Arbitration Act 2010, sch.1, arts 17 H-17 I; Mauritius Arbitration Act 2008, ss 21-23;

New Zealand Arbitration Act 2007, arts 17 L-17 M; Peru Arbitration Law 2008, arts 47-48;

Rwanda Arbitration Act 2008, art.9; Slovenia Arbitration Law, art.43.86 UNCITRAL Secretariat, Status – 1985 Convention on the Recognition and Enforcement of

Foreign Arbitral Awards, http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/

NYConvention_status.html.87 See HOLTZMANN & NEUHAUS, p.1056. “Aligning the Model Law with the Convention thus

would tend to further unification of law in the area of recognition and enforcement,

because States adopting the Law would join the many Convention States in a more

or less identical system.” Id. For commentary on the recognition and enforcement

of arbitration awards under the New York Convention, see ENFORCEMENT OF ARBITRATION

AGREEMENTS AND INTERNATIONAL ARBITRAL AWARDS (Gaillard & Di Pietro eds.). 88 See 2006 UNCITRAL Model Law, art.17(2)(a)-(d). 89 Ireland Arbitration Act 2010, Schedule 1, art.17 (2); Mauritius Arbitration Act 2008, section

21(1); New Zealand Arbitration Act 2007, art.17; Peru Arbitration Law 2008, art.47(2);

Rwanda Arbitration Act 2008, art.19.


230 .........................................................................................................................................................................Issue 3


measure.90 The enumeration of permissible measures in the 2006 Law facially appears more complicated and restrictive than the scope of measures available in the 1985 Law. However, the categories of available measures are phrased broadly to include, for example, measures to “maintain . . . the status quo” and “prevent . . . harm or prejudice to the arbitral process.”91 These categories may prove in practice largely to include all measures parties may request. In addition, the explicit provision in the Model Law for these broad categories of interim measures may increase parties’ certainty that such measures are indeed authorised by the Model Law.

During the review of the amended Article 17, objections were raised by a UNCITRAL Member State to the allowance in Article 17 for interim measures ordering a party to not take actions that cause harm to the arbitral process.92 The Member States were concerned that such measures may include anti-suit injunctions, which are not considered acceptable measures by some civil law jurisdictions and are now challengeable within the European Union.93 Ireland and Slovenia are the only EU countries that have adopted the 2006 Model Law, and, as noted, Ireland adopted this provision of Article 17 and Slovenia did not. Regardless, the sample of the six 2006 Model Law States demonstrates that these States prefer these categories of available interim measures to the authorisation in the 1985 Law that arbitrators may grant any interim measure.

The conditions in the 2006 Law on granting interim measures also appear more complicated and restrictive than the conditions in the 1985 Law. As noted above, the 1985 Law requires that the arbitrators determine whether a requested measure is “necessary in respect to the subject-matter of the dispute.” The 2006 Law requires that arbitral tribunals undertake three steps of analysis. The arbitrators must evaluate whether the requested measure will prevent harm that is “not adequately reparable by an award of damages” and whether such harm “substantially outweighs” the harm that is likely to result from the imposition of the measure. Moreover, the arbitrators must also decide whether there is a “reasonable possibility that

90 Slovenia Arbitration Law, art.20(1). “[T]he arbitral tribunal may, at the request of a party, at

any time before the issuance of the final award, grant against the other party an interim

measure it considers appropriate having regard to the subject matter of the dispute.”

Id.91 2006 UNCITRAL Model Law, art.17(2)(a)-(b).92 Secretariat Note Reporting Comments from Member States and International

Organisations, A/CN.9/609/Add.5, para.4 (May 29, 2006) (France). 93 Id.


Issue 3 ........................................................................................................................................................................ 231


the requesting party will succeed on the merits of the claim.”94 At least one UNCITRAL Member State suggested that this last condition be deleted from Article 17 because it could be difficult for arbitrators to accurately prejudge the likelihood that the requesting party will prevail on the merits of its claim.95 The conditions of the 2006 Law were adopted by the legislators of Ireland, Mauritius, New Zealand and Rwanda.96 Peru chose the simple necessity requirement of the 1985 Law.97 Slovenia adopted a more permissive standard, authorising an arbitral tribunal to grant any “interim measures it considers appropriate having regard to the subject matter of the dispute.”98 The selection of the more elaborate conditions of the 2006 Law by four States suggests that some States consider the potential complications of applying such standards to be outweighed by the benefits of those standards. These standards refine the application of interim measures and, as a result, may increase the predictability with which interim measures are granted.

The Working Group’s inclusion of preliminary orders in the amended Article 17 was a subject of controversy within UNCITRAL. There was little consensus on whether ex parte measures should be included in the Model Law. Indeed, a number of UNCITRAL Member States objected to the inclusion of preliminary orders in the 2006 Model Law99 and one Member State even said that the inclusion of preliminary orders in the Model Law may “damage UNCITRAL’s international standing and future influence” because ex parte orders are too controversial.100 Two Member States also suggested that the language of Article 17 allowing parties to agree to opt-out of preliminary orders should be reversed to require parties to affirmatively agree to grant the arbitral tribunal the authority to issues such orders.101

94 Id. art.17 A(1)(a)-(b).95 Secretariat Note Reporting Comments from Member States and International

Organisations, A/CN.9/609/Add.1, para.1 (May 4, 2006) (China).96 Ireland Arbitration Act 2010, sch.1, art.17 A(1)-(2); Mauritius Arbitration Act 2008, s.21(2);

New Zealand Arbitration Act 2007, art.17 B(1); Rwanda Arbitration Act 2008, art.20.97 Peru Arbitration Law 2008, art.47(1).98 Slovenia Arbitration Law, art.20(1).99 Secretariat Note Reporting Comments from Member States and International

Organisations, A/CN.9/609/Add.4 (May 18, 2006) (United Kingdom); Secretariat

Note Reporting Comments from Member States and International Organisations,

A/CN.9/609/Add.5, para.1; Secretariat Note Reporting Comments from Member States

and International Organisations, A/CN.9/609/Add.6 (April 6, 2006) (Austria).100 Secretariat Note Reporting Comments from Member States and International

Organisations, A/CN.9/609/Add.4. 101 Secretariat Note Reporting Comments from Member States and International


232 .........................................................................................................................................................................Issue 3


Another set of Member States recommended that preliminary orders be made enforceable because without recourse to the courts, preliminary orders would lose much of their effectiveness since juridical persons, such as banks, would be unable to comply with a preliminary order absent a writ of enforcement.102

Despite this controversy, the 2006 Model Law States are almost equally accepting of UNCITRAL’s provision in the 2006 Model Law for tribunal-ordered preliminary orders and court-ordered interim measures. Mauritius is the only 2006 Model Law State that has not expressly authorised preliminary orders,103 though the Mauritius Arbitration Act authorises its courts to accept ex parte applications for interim measures.104 This judicial authority likely precludes the necessity for preliminary orders. New Zealand and Slovenia are the only States not to authorise court-ordered interim measures.105 However, the New Zealand Arbitration Act and Slovenia Arbitration Law expressly authorise their courts to assist arbitral tribunals in the taking of evidence.106 The New Zealand Act in particular, authorises the “detention, preservation or inspection of any property or thing which is in issue in the arbitral proceedings.”107 These provisions for assistance by the courts in taking evidence may be seen to compensate for the absence of court ordered interim measures in New Zealand and Slovenia. Moreover, with the adoption by the six 2006 Model Law States of provisions for the recognition and enforcement of tribunal-ordered interim measures and the general acceptance of preliminary orders, the only period in which interim measures are not available to the parties under the New Zealand and Slovenia Acts is before the arbitral tribunal has been convened.

Organisations, A/CN.9/609/Add.5, para.6; Secretariat Note Reporting Comments from

Member States and International Organisations, A/CN.9/609/Add.6. 102 Secretariat Note Reporting Comments from Member States and International

Organisations, A/CN.9/609/Add.5, para.7; Secretariat Note Reporting Comments from

Member States and International Organisations, A/CN.9/609/Add.1, para.2.103 See Ireland Arbitration Act 2010, sch.11, art.17 B(1); New Zealand Arbitration Act 2007,

art.17 C; Peru Arbitration Law 2008, art.47(3); Rwanda Arbitration Act 2008, art.24; Slovenia

Arbitration Law, art.20(2).104 Mauritius Arbitration Act 2008, s.23(3).105 See Ireland Arbitration Act 2010, sch.1, art.17 J; Mauritius Arbitration Act 2008, s.23(1);

Peru Arbitration Law 2008, art.47(9); Rwanda Arbitration Act 2008, art.23.106 New Zealand Arbitration Act 2007, art.27; Slovenia Arbitration Law, art.31.107 New Zealand Arbitration Act 2007, art.27(2)(c)(iii).


Issue 3 ........................................................................................................................................................................ 233


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234 .........................................................................................................................................................................Issue 3


Conclusion

The six 2006 Model Law States have largely adopted the amendments to Articles 7, 2 A and 17 of the Model Law. The initial acceptance of the 2006 amendments indicates that the Secretariat and the Working Group that amended the Model Law accurately identifi ed areas of the Law that required updating and have provided legal standards that States and their constituents consider to be improvements to the legal framework for international commercial arbitration. The wide adoption of two of the most signifi cant 2006 amendments – the revision in Option I, Article 7 of the defi nition of the form of an arbitration agreement and the application in Article 17 of the New York Convention standards to the enforcement of awards of interim measures – will ensure that a greater number of agreements to arbitration are honoured, and improve the capacity for arbitrators to protect the parties’ rights in arbitration. The only point of concern to date, is the inconsistent adoption of Article 2 A. Though Article 2 A is not essential to the uniform interpretation of the Model Law, it will likely improve the predictability of arbitration laws, and, as a result, help ensure that international commercial arbitration meets the expectations of its users. A broader acceptance of Article 2 A is in the best interests of the international arbitration community.

While some States – Ireland in particular – have enacted the exact text and structure of the 2006 Model Law, others have enacted legislative provisions that in substance hopefully will be interpreted in the same manner as the Model Law articles on which those provisions are based. While UNCITRAL’s goals of harmonising and improving national arbitration laws can be achieved by the adoption of legislative provisions that do not recite the Model Law word-for-word but are substantively rooted in the Model Law, States should nonetheless be encouraged to adopt legislation that closely follows the text and structure of the Model Law. Such uniformity across national arbitration laws can only help to increase the predictability of international commercial arbitration.


Arbitration and ADR Review2010 Issue 3

Edited byPeter Shanley, B.L. and

Ercus Stewart, S.C.

ContentsEditorial .....................................................................173

The Need for a Code of Ethics for Lawyers Involved in

Arbitration ............................................................174PETER SHANLEY, B.L.

Arbitration Rules for the Public Works Contract ..........182EDDIE QUIGG

Germany as a Seat For International Arbitration in the

Light of the German State Courts´ Attitude

Towards Arbitration ..............................................194DR SUZANNE KRATZSCH

Arbitrators’ Immunity from Suit in the New Order ......206GEAROID CAREY

2006 UNCITRAL Model Law: Are States Adopting

the Law in Letter and Spirit? .................................215THOMAS W. WALSH

Mediation in the Hospitality Industry .........................235PAUL QUINN

Enforcement of Domestic Arbitral Awards After The

Arbitration Act 2010: In with the New, Still

with the Old ..........................................................238ARRAN DOWLING-HUSSEY, B.L. AND DEREK DUNNE, B.L.

Case Notes ..................................................................252LYDIA BUNNI, B.L.


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