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Philip Jessup’s ground-breaking work Transnational Law (1956) identifies the evolution of law as emerging from a concern with regulation of events confined within national boundaries to events “transcend[ing] national frontiers.” His identification of this new realm of interaction, absent the corresponding existence of a world state, has led to a useful analytic framework for a number of important issues extending Cardozo’s observation that “we must enlarge [law] until it is broad enough to answer to realities.” This framing has important implications for the study of developments in transnational dispute resolution and corresponding questions of adaptation, harmonization and diversity in global practice.
Article 17A of the Model Law enumerates the conditions for the grant of interim measures of protection by an arbitral tribunal. Interim measures of protection are orders of temporary relief, which serve to protect the parties’ rights pending the final resolution of a dispute. Over time, it has generally become legally acceptable for claimants to be granted such protective measures in tribunals or courts in most States. In the context of the Model Law, interim measures are specifically defined under the revised article 17. These measures are increasingly used in international commercial arbitration, and the effectiveness of arbitration and the resultant arbitral awards will often depend upon the enforcement of such interim measures.
The discussion of the Working Group centred around two variant drafts of the provision concerning refusal of recognition or enforcement. The two initial variants of article 17 bis considered the discretion of the courts in granting interim measures of protection. Initial Variant 1 set out six exceptions to a principle of enforcement upon application to the courts, and was drafted in terms of ‘the court shall enforce, unless …’, intended to establish an obligation to enforce if prescribed conditions based on article 36 of the Model Law and article V of the New York Convention were met. A comparison had previously been drawn with the New York Convention, which also limits the reasons for which recognition and enforcement can be refused – although the requirement to enforce under the Convention does not extend to interim measures.
Article 9 is concerned with the compatibility of an arbitration agreement in connection with a request for interim measures from the courts (as opposed to such a measure being granted by an arbitral tribunal). The article was discussed under the common ground that pre-arbitration attachments and interim measures applied for or granted by the courts should not be seen as incompatible with an agreement to arbitrate disputes between the parties. At the same time, it was equally clear that the Model Law also ought not to prescribe or exclude any specific rules in relation to the possible measures that may be requested from or granted by a court, with a view to ensuring respect for domestic laws and jurisprudence and its separation from the international arbitral legal system, as well as to provide the maximum extent of freedom to the parties of the arbitration agreement.
In the early drafting stages, it was noted that the ultimate aim of the Model Law was to establish uniform standards of arbitral procedure. It was further noted that some national laws allowed judicial control over the constitution of the arbitral tribunal and a number of States imposed nationality restrictions on the appointment of arbitrators. The parties’ expectations in the arbitration agreement in relation to the appointment procedure had previously often been unnecessarily and unduly frustrated by conflicting national law provisions. Against this background, a set of widely accepted standard rules to govern the composition of an arbitral tribunal was intrinsically necessary in order to facilitate the smooth operation of cross-border commercial arbitration.
Article 27 concerns the assistance of the courts in evidentiary matters. Obtaining the support of national courts in the taking of evidence can be important, although this cooperation must certainly not curtail the efficiency of arbitration. The jurisdiction of the arbitral tribunal originates in the arbitral agreement between the parties. As a result, arbitral tribunals often lack the power to compel discovery through calling or compelling attendance of witnesses, requiring the production of documents, or ordering inspection of goods or premises. Some national laws expressly allow the arbitral tribunal to seek court assistance in the taking of evidence.
Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Although the time of commencement is not used as a point of reference in any other part of the Model Law, it can have legal consequences in the relevant jurisdiction, such as the cessation of any time limitation or expiration periods.
The functions referred to in articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2) shall be performed by … [Each State enacting this model law specifies the court, courts or, where referred to therein, other authority competent to perform these functions.] Article 6 serves to allow state legislatures to confer competence upon local courts or other bodies in domestic legal systems to intervene in certain key aspects of the arbitral process. Its main purpose is to assist foreign parties to more easily identify the competent local court or other authorised institution and obtain information in relation to the features of that court or body.
The issue of the liability of an arbitrator was previously discussed during the drafting process of the Model Law. As to whether or not the Model Law should deal with questions relating to an arbitrator’s liability at all, it was generally agreed that a model law on international commercial arbitration would not be able to fulfil such a purpose appropriately. Article 17, as adopted in 1985, only provided that ‘[t]he arbitral tribunal may require any party to provide appropriate security in connection with such [interim] measure’, and the issue of any liability arising therefrom was not mentioned in the text.
Article 23 of the Model Law governs the submission of statements of claim and defence. The article provides the parties with equal opportunity of arguing their respective cases and, importantly, serves to set out for the arbitral tribunal the facts and issues that will need to be decided. The statements of claim and defence referred to in article 23 are usually less formal than court pleadings. The statement of claim is to complement the request for arbitration that is provided for under article 23.