Is the law governing international arbitration in your country based on the UNCITRAL Model Law? Are there significant differences between the two?
International Arbitration (3rd edition)
The Egyptian Arbitration Law is based on the UNCITRAL Model Law. There are some differences, basically in the distinction between domestic arbitrations and international commercial arbitrations (see 1. above).
French law on arbitration is not based on the UNCITRAL Model Law. However, French law provisions applicable to international arbitration are no less favourable and are substantially more liberal than the UNCITRAL Model Law in some respects – for example, with regard to the recognition and enforcement of arbitral awards made abroad or in international arbitration.
The Cyprus International Commercial Arbitration Law no 101/1987 as amended is the Cypriot adaptation of the 1985 UNCITRAL Model Law on International Commercial Arbitration, which applies exclusively to international commercial arbitrations (i.e. arbitration between parties who have their place of business in different states that pertains to matters arising from relationships of a commercial nature). All the mandatory provisions contained in the UNICTRAL Model Law were adopted verbatim by Law no101/1987, regulating only international commercial arbitrations.
The UNCITRAL Model Law has not been officially adopted by the Czech Republic, but Czech arbitration law is largely in line with it. Differences relate for example to the following: arbitrators cannot issue interim measures (but state courts can) or the number of arbitrators must be odd.
Romanian arbitration law does not strictly follow the UNCITRAL Model Law on International Commercial Arbitration, but it is consistent with the general principles of such law and with the general international arbitration standards.
Serbian Arbitration act is based on UNCITRAL Model Law on international commercial arbitration of 1985, and UNCITRAL lists Serbia as one of countries whose legislation is based on UNCITRAL model law.
Some differences between the two exist, most notably regarding provisions on appointment of arbitrators and in relation with the recourse against the award.
Unlike UNCITRAL Model Law, Serbian Arbitration Act prescribes that the number of arbitrators must be odd. Furthermore, in case a sole arbitrator is to be appointed, parties are given a 30-day period to agree on the arbitrator, after which the sole arbitrator shall be appointed by the appointing authority or in the absence of the said authority, the competent court. Such time limit does not exist in the Model law.
On the topic of recourse against the award, Serbian law prescribes an additional reason for setting aside an award, provided that the award is based on a false testimony of a witness or an expert witness, or on a forged document, or the award results from a criminal offence of an arbitrator or a party, if the abovementioned facts are determined as true by the final and binding court judgment.
The Arbitration Law was not based on the UNCITRAL Model Law. There are a number of major differences between them, for examples:
a. Form of arbitration: the Arbitration Law only permits institutional arbitration (Article 16). Although the Supreme People’s Court released the Opinions of the Supreme People’s Court on Providing Judicial Guarantee for the Building of Pilot Free Trade Zone in 2016 which allows ad hoc arbitration for disputes arising out of enterprises registered in the Free Trade Zone, ad hoc arbitration is in principle prohibited in China.
b. Principle of Competence-competence: the UNCITRAL Model Law permits the arbitral tribunal to rule on its own jurisdiction, including any objection with respect to the existence or validity of the arbitration agreement (Article 16). Under the Arbitration Law, both the Court and the arbitration commission have the power to decide on the validity of the arbitration agreement. But if one of the parties requests for a decision from the arbitration commission, but the other party applies to a people's court for a ruling, the people's court shall give the ruling. (Article 20).
c. Interim measures: the UNCITRAL Model Law permits parties to apply directly to the Court for interim measures (Article 9). Under the Arbitration Law, a claimant should apply to the arbitration commission for interim measure instead of applying directly to the Court. The arbitration commission will then transfer such application to the Court (Articles 28, 46 and 68).
a. The Arbitration Act 2005 is based upon and closely follows the UNCITRAL Model Law. However, some small differences do exist. For example, the Danish Arbitration Act 2005 allows for a less formal arbitration agreement, such as oral agreements. In 2006 the UNCITRAL Model got new provisions regarding interim measures and preliminary orders which are not incorporated in The Danish Arbitration Act 2005.
Since the 2004 reform, Polish arbitration law is based on the UNCITRAL Model Law, without the amendments of 2006. However, unlike the Model Law, Polish arbitration law is not limited to international commercial arbitration but applies to all arbitral proceedings in which the seat of arbitration is in Poland.
Neither the PILA nor the CPC are based on the UNCITRAL Model Law. There are, however, no substantial differences between them.
UAE - Federal
The UAE Arbitration Law contains certain elements of the UNCITRAL Model Law.
The UAE Arbitration Law does, however, retain certain procedural requirements which may affect the arbitral process.
Article 58(2) of the UAE CPC, for example, requires that ‘The attorney may not:… go to arbitration; … abandon litigation …or undertake any other action for which the law requires special authorisation’.
The requirement for specific powers of attorney for senior executives, other than a named “General Manager” in a company’s trade licence, appears to have survived the introduction of the UAE Arbitration Law.
UAE - Free-zone Jurisdictions
The DIFC Arbitration Law and the ADGM Regulations are both based on the UNCITRAL Model Law.
The UNCITRAL Model Law has not been adopted in England and Wales but it has influenced the 1996 Act. Some significant differences relate to arbitrability, separability, competence of the arbitral tribunal to rule on its own jurisdiction, and judicial intervention (including the availability of appeals on a point of law).
The KSA Arbitration Law (2012) is mainly based on the UNCITRAL Model Law (1985).
The FAA is not based on the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”), as the FAA predates the Model Law. However, similar to the Model Law, its provisions contain a strong presumption in favor of enforcing arbitral agreements and awards, and U.S. courts have largely interpreted the FAA in a manner that is consistent with the Model Law. Several states have adopted legislation based on the UNCITRAL Model Law, including California, Florida, Illinois, and Texas, among others. See, e.g., California Arbitration Act, Code of Civil Procedure Sec.1280 et seq.
The Model Law generally provides more detailed procedures for arbitration, while the FAA is less detailed and leaves many procedural points to be addressed by the parties’ agreement and the applicable institutional rules. There are some significant differences between the FAA and the Model Law. For example, each provides different grounds and procedures for the vacatur or setting aside of an award. See 9 U.S.C. § 10 and Model Law, Art. 34. In addition, the FAA does not address the issue of a tribunal’s competence to determine its own jurisdiction, while the Model Law provides that a tribunal may rule on its own jurisdiction, including any objections related to the validity of the arbitration agreement. See Model Law, Art. 16. We note, however, that the U.S. courts have recognized the principle of competence-competence to some extent, as explained below.
Since 2006, the Austrian arbitration law is based on the UNCITRAL Model Law with a few minor deviations. Significantly, Austrian arbitration law does not differentiate between domestic and international arbitration.
The ACA regulates international arbitrations. It is largely based on the UNCITRAL Model Law with slight modifications. Part I of the ACA (that is, sections 1 to 36 of the ACA) applies to domestic commercial arbitration while Part III of the ACA (containing sections 43 to 55 of the ACA) applies solely to international commercial arbitration, in addition to other provisions of the ACA. The ACA also embodies the UNCITRAL Arbitration and Conciliation Rules and the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
LAV is based on the UNCITRAL Model Law and there are no significant differences between the two. However, LAV contains a few particular features, notably the following:
(a) The concept of arbitrable disputes, which comprises disputes involving economic interests and disputes which, although not involving economic interests, may be settled by the parties (art. 1 LAV);
(b) The concept of international arbitration: arbitration is considered to be international when international trade interests are at stake (art. 49 LAV);
(c) Third parties joinder: there are specific rules on the requirements, timing and formalities of a third party intervention in arbitral proceedings, which shall only be allowed if deemed relevant and not disruptive to the normal course of the proceedings (art. 36 LAV);
(d) The inadmissibility of pleas based on the domestic law of a party: within international arbitration if one of the parties to the arbitration agreement is a State, a State-controlled organization or a State-controlled company, this party may not invoke its domestic law to either challenge the arbitrability of the dispute or its capacity to be a party to the arbitration, neither to in any other way evade its obligations arising from such agreement (art. 50 LAV).
(e) Arbitrators’ fees and costs: if parties fail to regulate such matters in the arbitration agreement, the arbitrators’ fees and costs shall be agreed upon in writing by the parties and the arbitrators. If parties and arbitrators fail to do so, the arbitrators shall fix the amount of their fees and expenses, taking into consideration the complexity of the issues decided, the amount of the dispute and the time spent or to be spent with the arbitral proceedings until its conclusion, and furthermore determine the payment by the parties of their advance payments (art. 17 LAV).
(f) The arbitral award is only subject to appeal to the competent State court if the parties have expressly contemplated such possibility in the arbitration agreement, and provided that the dispute has not been decided ex aequo et bono or through amiable composition. (art. 39 (4) LAV)
(g) A time limit to render an award: usually of 12 months from the date of acceptance of the last arbitrator, which may be freely (although duly motivated) extended one or more times by an agreement of the parties or, alternatively, by a decision of the arbitral tribunal for successive periods of 12 months (art. 43 LAV).
(h) Confidentiality: as a rule, the arbitrators, the parties and the arbitral institutions are bound to keep as confidential all information they obtain and documents brought to their attention in the course of the arbitration proceedings (arts. 30 (5)(6) LAV).
Although the ICA generally follows the language of the UNCITRAL Model Law, there exist some differences between the two. For example, the ICA provisions on interim measures are far less detailed than those in the Model Law and the opposite is true for the provisions on arbitral agreements. Furthermore, the ICA allows parties to an institutional arbitration to opt out of its provisions on judicial assistance to and supervision over arbitral proceedings, as well as the right to seek to have the award set aside.
Yes, the Arbitration Act, 2010 incorporates the UNCITRAL Model Law into Irish law for all arbitrations, both domestic and international.
There are no significant differences.
The Arbitration Act is based upon and closely follows the UNCITRAL Model Law. There are few significant differences between the Arbitration Act and the Model Law. One major difference, however, is that the Norwegian Arbitration Act does not require that arbitration agreements are entered into in writing.
The German Arbitration Law is based on the UNCITRAL Model Law on International Commercial Arbitration. However, it is applicable to any kind of arbitration with a German seat, and not only to "commercial disputes" in "international arbitration", for which UNCITRAL had prepared its "Model Law".
The main differences between the German arbitration law and the UNCITRAL Model Law are:
- Formal requirements for the arbitration agreement are more flexible;
- The option to request a ruling from a court on the admissibility of arbitration prior to the constitution of the arbitral tribunal (section 1032 (2) ZPO);
- Greater powers of state courts with regard to the appointment of arbitrators (e.g. if there is a preponderance of one party in the constitution of the tribunal) and with regard to the enforcement of interim relief;
- In case the parties did not agree on the applicable substantive law: obligation for the arbitral tribunal to apply the law of the country to which the subject matter is most closely connected (1051 ZPO); and
- Time limits for the initiation of annulment proceedings.
Germany has not adopted the 2006 amendments of the UNCITRAL Model Law. A task force is currently exploring how to reform the German arbitration law, it also considers the 2006 amendments of the UNCITRAL Model Law.
The Croatian Arbitration Act is based on the UNCITRAL Model Law, with some differences relating to the scope of application. Unlike the UNCITRAL Model Law, the Croatian Arbitration Act applies both to national and international disputes, as well as to disputes that are not necessarily considered as commercial.
Yes. International arbitration in Chile is regulated in the International Commercial Arbitration Law No 19.971 (ICAL), which was adopted on September 2004 and it presents no significant differences in respect of the UNCITRAL Model Law. As the history of ICAL shows, the Chilean legislature deemed necessary to maintain as much as possible the original law drafting proposed by UNCITRAL, in order to promote the development of international arbitration in Chile. Therefore, the modifications made to the ICAL in respect of the Model Law, are minimal and specifically related to the competence of the local courts.
Yes, the Philippines adheres to the UNCITRAL Model Law for Commercial Arbitration. Section 19 of Republic Act No. 9285 provides that international commercial arbitration shall be governed by the UNCITRAL Model Law for Commercial Arbitration.
As noted above Law 2735/1999 incorporated into the Greek legal system the UNCITRAL Model Law, only with minor deviations. Amongst others:
(a) Under article 16 para. 3 L. 2735/1999 in case the arbitral tribunal decides on its own jurisdiction by virtue of a preliminary ruling, the parties are not allowed to bring a separate challenge against it before State Courts. It is deemed an integral part of the final award on the merits and may only be challenged as such only once the award is rendered (by virtue of a request for setting it aside).
(b) Article 15 L. 2735/1999 provides that in case a replacement arbitrator is appointed, absent an agreement by the parties, the arbitral tribunal may by virtue of a unanimous decision decide that arbitral proceedings will resume from the point of interruption.
(c) Article 17 para. 2 L. 2735/1999 provides that the interim or conservative measures granted by the arbitral tribunal shall be imposed – enforced by a decision of the competent One - Member Court of First Instance following petition of the interested party. Para. 3 of the same article provides that said enforcement decision may be revoked or amended by a decision issued by the same State Court.
(d) Article 33 L. 2735/1999 does not provide for an additional award as to claims made before the arbitral tribunal but not decided.
(e) Article 7 L. 2735/1999 introduces certain provisions unknown to Model Law pertaining to the formal validity of the arbitration agreements. A short reference to them is made further below under Question 7.
Further to the above, it has been argued in legal literature that certain differentiations in the (Greek) language of individual provisions of L. 2735/1999 may reflect also differentiations on the merits. We find this approach far-fetched. Absent a clear indication to the contrary based on the drafting history, mere translation questions shall not be elevated to legal ones.