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New UNCITRAL Arbitration Rules Revision
The UNCITRAL (United Nations Commission for International Trade Law) arbitration rules were adopted in 1976. The rules seek to create a unified, predicable and stable procedural framework for ad hoc (non-administered) international arbitration acceptable in countries with different legal, social and economic systems. These rules have been used as the template for arbitral rules for numerous institutions.
In an effort to modernise the rules, an UNCITRAL working group was set up to discuss revisions to the rules in 2006, and the draft revised rules are tabled for review and adoption at the 43rd session of UNCITRAL.
The draft proposes to extensively revise the rules, inserting new provisions concerning multiparty arbitrations, and assessing the roles of the designating and appointing authority and immunity from liability.
New ProvisionsMultiparty arbitrationsArticle 10(1) of the revised rules provides that unless the parties have agreed otherwise, where a three member tribunal needs to be appointed and there are multiple parties as claimant or as respondent, the multitude parties will jointly appoint an arbitrator. Article 10(3) grants the appointing authority with a default power to constitute the entire arbitral tribunal, to avoid the paralysis that occurs when parties on the same side cannot jointly appoint an arbitrator.
Designating & Appointing AuthorityArticle 6 of the revised rules emphasises the importance of the role of the appointing authority. It provides that: the appointed authority can be appointed at any time during arbitral proceedings; it shortens the period a party must wait before it can request the PCA to designate the appointing authority, and grants the secretary general of the PCA the power to designate a substitute appointing authority; as well as providing the designating and appointing authorities the power to determine and review the fees and expenses of the arbitral tribunal.
Immunity from LiabilityArticle 16 provides that parties waive any claim against the arbitrators, the appointing authority or the secretary general of the PCA, except where there has been intentional wrongdoing.
Other ChangesArticle 1 clarifies that the rules can be applied to all disputes.
Article 35 refers to “rules of law” rather than “law” enabling parties to select legal sources other than national law, and to elect different laws to govern different aspects of their legal relationship.
The new rules seek to limit the parties’ recourse to the courts, and by adopting these rules, the parties waive their right to appeal or review against an award to any court.
CounterclaimsArticle 21(3) broadens the basis for counterclaims, as there is a vague permittance of counterclaims in respect of any claims over which the arbitral tribunal has jurisdiction.
Article 26 of the revised rules clarifies that an arbitral tribunal’s power to award interim measures is not limited to conservation measures, and includes the right to grant injunctions and order the preservation of evidence. In a departure from the rules of major arbitral institutions, Article 26(8) provides that a party requesting an interim measure may be liable for any costs and damages caused by the measure to any party if the arbitral tribunal later determines that the measure should not have been granted.
The new rules aim to reflect the best practice in the field of international arbitration. |
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