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With increasing digitalization and the evolution of artificial intelligence, the legal profession is on the verge of being transformed by technology (legal tech). This handbook examines these developments and the changing legal landscape by providing perspectives from multiple interested parties, including practitioners, academics, and legal tech companies from different legal systems. Scrutinizing the real implications posed by legal tech, the book advocates for an unbiased, cautious approach for the engagement of technology in legal practice. It also carefully addresses the core question of how to balance fears of industry takeover by technology with the potential for using legal tech to expand services and create value for clients. Together, the chapters develop a framework for analyzing the costs and benefits of new technologies before they are implemented in legal practice. This interdisciplinary collection features contributions from lawyers, social scientists, institutional officials, technologists, and current developers of e-law platforms and services.
In the negotiations leading to the 1985 text of the Model Law, article 17 was the subject of an articulate debate. The draft provision consisted of one paragraph only, recognising the arbitral tribunal’s power to grant interim measures and requiring, where appropriate, the provision of security. The drafters expressly considered a range of different practical scenarios where this interim relief may prove necessary: the travaux refer in particular to an urgent sale of perishable goods, the preservation of assets, the protection of trade secrets and proprietary information or the protection of evidence.
Where the mandate of an arbitrator terminates under article 13 or 14 or because of his withdrawal from office for any other reason or because of the revocation of his mandate by agreement of the parties or in any other case of termination of his mandate, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. Article 15 was initially not meant to encompass cases where the arbitrator’s mandate can be terminated: in the first draft, the Working Group’s sole objective was to regulate what happens after the termination of the mandate has taken place.
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.
Article 34 regulates the setting aside of arbitral awards. The pro-arbitration rationale underlying the Model Law requires that judicial review of arbitral awards be limited to a small number of well-defined situations. Consistently with this approach, the drafters used the New York Convention as a source of inspiration, indicating the situations listed in article V of the Convention as grounds for setting aside and introducing only a few adaptations. Needless to say, courts in Model Law jurisdictions can only set an award aside if the arbitral proceedings were seated in the territory of that particular State, as implicitly confirmed by article 1(2). However, the same grounds may also be invoked to resist the recognition and enforcement of an award, irrespective of the country in which it was made.
When drafting the 1985 version of the Model Law, the UNCITRAL Working Group on International Contract Practices relied heavily on articles 9 and 10 of the 1976 version of the UNCITRAL Arbitration Rules, but introduced some significant modifications as well. The reason why the text of the Rules was modified is twofold: in some cases, the Commission decided to introduce some clarifications to avoid doubts that could have arisen if the text of the UNCITRAL Arbitration Rules were adopted without amendments. In other cases, instead, modifications were necessary because of the different nature of the Model Law, whose aim is to provide a transnational template for domestic arbitration statutes rather than to lay down rules to be adopted by private parties and incorporated in their agreement by reference.
Article 24 deals with some fundamental aspects of the right to be heard, relevant for both written and oral proceedings. The final text of article 24 (and of its first paragraph in particular) is the result of a particularly tortuous and interesting legislative history. The Working Group used as a drafting basis article 15 of the 1976 UNCITRAL Arbitration Rules.
During the drafting of the Model Law, the wording of article 35 was not particularly controversial: the provision, after all, is little more than a literal transposition (with some amendments) of articles III and IV of the New York Convention. The drafters, however, engaged in an extensive debate on two fundamental questions concerning not the specific contents of the article, but the very raison d’être of such a provision in the Model Law. First, the Working Group and the Commission discussed whether the Model Law should regulate the recognition and enforcement of both foreign and domestic awards, or whether it would be more appropriate to regulate only the latter, considering that the former were already covered by the New York Convention. Second, should the Model Law regulate both situations, the drafters discussed whether the regime should be the same, or whether differentiations should be made.
Article 20 deals with the ‘place’ of arbitration, commonly also referred to as the ‘seat’. This notion has a fundamental legal relevance in any arbitration, as it creates a particular juridical link between the arbitral proceedings and a certain national legal system. The concept at hand, however, does not necessarily entail the existence of a strong physical/geographical connection between the arbitration and the territory of the State where the arbitral proceedings are seated.
Article 17E descends, in part, from the original text of article 17. It is useful, therefore, to start the analysis of the provision’s background from an overview of the 1985 version of article 17, in the part where it deals with the provision of security. In the 1985 version of the Model Law, article 17 stated that ‘the arbitral tribunal may require any party to provide appropriate security in connection with’ an interim measure it has issued.
Within the Working Group, divergent views were expressed as to whether it would be desirable to allow an arbitral tribunal to issue an interim measure ex parte. Some members of the Working Group argued that this power should be conferred exclusively to State courts, and that the availability of preliminary orders in arbitration would constitute an ‘open avenue for dilatory and unfair practices that should be avoided’. The main rationale justifying this line of reasoning was the need to ensure the parties’ equality and a full opportunity to present their case. Against this argument, however, it was objected that the same needs are equally present in State court litigation, but are not regarded as ‘sufficient grounds for refusing the possibility of ordering ex parte measures in exceptional circumstances’.
During the drafting of the Model Law, article 2 was a relatively uncontroversial provision. The drafters never meant to include an exhaustive list of definitions for all the terms and notions that the Model Law refers to, or to set forth an articulate body of rules determining how the Law should be interpreted. Less ambitiously, the Commission simply aimed at offering some basic clarifications, in order to avoid certain foreseeable misunderstandings and guide the interpretation of the Law. Article 2, hence, is best understood as a set of ‘targeted interventions’, addressing specific points without any pretence at completeness. It must be also noted that, despite its title (‘Definitions and rules of interpretation’), article 2 is not the only provision of the Model Law where definitions can be found: the notion of ‘arbitration agreement’, for instance, is defined at article 7(1), and the notion of ‘interim measure’ is defined in article 17(2).