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Although fair trial guarantees have always been recognised as constituting an integral aspect of international arbitral proceedings, this has largely been viewed through the lens of civil procedure rather than as a matter of public law and human rights. This state of affairs has further been compounded by the confidential nature of arbitration and the relative scarcity of set aside (annulment) proceedings before the courts of the seat of arbitration on the grounds of unequal treatment, and before human rights bodies such as the European Court of Human Rights. Moreover, it has always been difficult to reconcile contractual freedom and the advantages offered by arbitration with equal treatment and fair trial claims. This article demonstrates the existence of a set of general principles concerning the meaning and content of equal treatment, which are consistent with its commercial (and civil procedure) and human rights dimensions. The basis of this conclusion is Article 18 of the UNCITRAL Model Law on International Commercial Arbitration, as consistently interpreted and adapted by local laws and judgments, arbitral statutes and determinations by the European Court of Human Rights.
Although the Model Law has, through article 9, settled that the application for interim measure is not incompatible with the arbitration agreement, it does not expressly stipulate whether the forum court enjoys the power to issue interim measures. Therefore, it was thought that the mere adoption by some regimes of article 9 may not be sufficient, in and of itself, to establish the power of the courts to issue interim measures, which in turn gave rise to the need for the formulation of a provision such as article 17J in the 2006 amendments to the Model Law.
Article 2A was first adopted in 2006 and was inspired and modeled after article 7 of the Convention on the International Sale of Goods (CISG) in an attempt to promote and enhance the uniformity of the Model Law. Despite its importance, one finds very little discussion in the 2006 travaux, and hence the assumption must have been that the principles enunciated in article 2A were either self-evident or that they were already settled (to a larger or lesser degree) on the basis of judicial and arbitral pronouncements in the context of article 7 of the CISG; or that they were discernible in general international law. This conclusion is justified by the fact that unification was already on the agenda since the first draft of the Model Law in the mid-1980s and hence was not an innovation of the 2006 revision.
Footnote 36 in the same document explained that the brackets were meant in case the provision was declared mandatory and/or where service was required to be made by the tribunal and not the parties. So, the delicate matter of the sender had not been decided early on in the discussions. During the same time, discussions concerning other provisions entailing an element of notification focused very little, if at all, on setting out a general rule as to proof of receipt.
Article 31 is typically associated with the formalities of arbitral awards. Given that this is the first time in the Model Law that significant – as opposed to mere passing – reference is made to the award, it is necessary to examine the legal nature of awards. The travaux to the 1986 version of the Model Law does not demonstrate significant differences from the current version, save for the fact that paragraph 4 (on delivery of the award to the parties) was not included in the first draft. This was added a little later and is identical to its current wording.
Article 8 was perceived as expressing a universal general principle that was fundamental to international arbitration. A suggestion was put forward whereby the courts would be vested with authority to refuse recourse to arbitration if the award was unlikely to be enforced in the seat. However, it was felt that this obfuscated the very essence of arbitration and in any event there were no assurances that the award would ultimately be challenged, let alone set aside, or that it would not be recognised or enforced in other jurisdictions. While there was no contention that a party could not be allowed to invoke the arbitration agreement following his or her submission of the first statement on substance, it was felt that the court should not be empowered ex officio (i.e. without request) to refer the parties to arbitration.
When the Model Law was originally developed in 1985, discussions regarding what became article 7 were not conducted on an entirely theoretical basis, focusing solely on the question of what types of proof should be required for a finding that a binding arbitration agreement exists. Rather, the content of article 7 was also fundamentally informed by the fact that national laws regarding the validity of arbitration agreements have important consequences for the international enforceability of arbitral awards.
From a methodological point of view, this chapter adheres to the distinction between equality and the right to an opportunity to present one’s case. Functionally, however, these are not distinct rights. They are part of the right to fair trial and its equality of arms limb. This suggests that the parties to civil/arbitral proceedings must be afforded equal opportunities, including the right to present their case to the best of their abilities. Significant reliance is placed in this chapter on the case law of the European Court of Human Rights (ECtHR). This is done for a variety of reasons. First, its right to fair trial jurisprudence is the most extensive among its international counterparts. Second, to a large extent it reflects customary international law and general principles of law. Third, it is part of the lex arbitri of over fifty member States of the Council of Europe, which constitute a bulk of the globe’s arbitration seats, not to mention that it may also be an integral part of the governing law of the parties’ agreement (for Council of Europe member States).
The termination of arbitral proceedings is an issue of immense significance for the parties because from that moment onwards the tribunal’s mandate is deemed to have expired and it is only under very exceptional circumstances that it may be re-constituted. Article 32 sets out the two obvious procedural mechanisms through which the tribunal may terminate proceedings: a final award; or a termination order. It is important to note that whether through an award or order, termination takes place only where either of the two is not amenable to further recourse to the courts under the laws of the seat, as spelt out in paragraph 3 of article 32. Furthermore, the article touches upon the notion of functus officio.
A party who knows that any provision of this Law from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time-limit is provided therefor, within such period of time, shall be deemed to have waived his right to object.
Article 33 sets out the conditions warranting a correction or interpretation of the award, or the making of an additional award. In the beginning of the drafting process, there was no certainty if there was any need for the Model Law to deal with the various types of awards. However, later the negotiators were convinced that the Model Law should deal with this issue and the Commission affirmed this position by stating that in ‘preparing the model law due account be taken of the 1958 New York Convention and of the UNCITRAL Arbitration Rules’. As to the particular point concerning the various types of awards, it was desired that if various types of awards were to be encompassed under the Model Law, the arbitrator should be entitled to make those awards only on the request of the parties. A fixed standard time period, as followed in national laws, was considered good practice, despite the difficulty of regulating such time limits uniformly. However, it was stipulated that if the standard time is laid down, it should be coupled with mechanisms for possible extensions.
Article 10 was very much influenced by the 2010 UNCITRAL Arbitration Rules, article 7 (article 5 of the 1976 Rules) of which provides that in the absence of party agreement ‘and if within 30 days after the receipt by the respondent of the notice of arbitration the parties have not agreed that there shall be only one arbitrator, three arbitrators shall be appointed’. This default rule is the cornerstone of paragraph 2 of article 10 of the Model Law. Even so, the UNCITRAL Working Group has never exhibited significant consensus regarding the default option of three arbitrators.