Australia: Highlights of the new 2010 UNCITRAL Arbitration Rules

Last Updated: 28 October 2011
Article by Doug Jones and Timothy Zahara

Key Points:

Thirty-four years on from the introduction of the UNCITRAL Arbitration Rules, the modified and improved UNCITRAL Arbitration Rules have come into force.

Four years in the making, the Working Group of the United Nations Commission on International Trade Law ("UNCITRAL") has completed the long-awaited revisions to the UNCITRAL Arbitration Rules of 1976. The new 2010 UNCITRAL Arbitration Rules came into force on 15 August 2010 and are applicable to all arbitration agreements concluded after that date. They reflect the development of international commercial arbitration in the last 34 years. The rules were primarily developed for use in ad hoc arbitrations but have been broadly accepted in both ad hoc and institutional arbitrations. They have also been widely used in investor-state and state-state arbitration.

The modifications and improvements of the UNCITRAL Rules can be divided into four categories. First, some major changes that reflect the evolution of arbitration procedure in line with technological advancements in the last 34 years, particularly the drafting process of arbitration clauses. Second, the suggestion of the designation of the Permanent Court of Arbitration in The Hague ("PCA") and its extended powers as an appointing authority under the rules. Third, a number of changes concerning the arbitral procedure with a view to increasing efficiency. Finally, some further general changes. To conclude, this Insights Article provides a short outlook on the future use of the UNCITRAL Rules.

Major changes regarding the technological evolution

The first group of changes in the UNCITRAL Rules echo technological advances over the last three decades. In particular, the UNCITRAL Rules no longer require an arbitration agreement to be "in writing" (Art 1(2)). Article 1 also does not require that the parties to an arbitration be "parties to a contract" as was stated in the 1976 Rules. This allows a dispute arising from any kind of legal relationship to be referred to arbitration under the UNCITRAL Rules. Importantly, the UNCITRAL Rules are now directly applicable to investor-state arbitration. Further, the prior requirement that communications be physically delivered has been removed as Art 2(1) states:

"A notice, including a notification, communication or proposal, may be transmitted by any means of communication that provides or allows for a record of its transmission."

However, this is limited by Art 2(2) which provides that:

"Delivery by electronic means such as facsimile or e-mail may only be made to an address so designated or authorised."

As a result, where no such electronic address has been designated or authorised, delivery must be made either physically to the addressee, or his/her place of business, habitual residence or mailing address (Art 2(3)).

With respect to email communications, the calculation of time periods under the UNCITRAL Rules begins on the day following the delivery of the e-mail to the designated address of the recipient (Art 2(6)).

Another salient improvement to the 1976 Rules is the ability to have videoconferences at hearings, allowing witnesses to be physically absent from the hearing as Art28(4) allows:

"[t]he arbitral tribunal [to] direct that witnesses, including expert witnesses, be examined through means of telecommunication that do not require their physical presence at the hearing (such as videoconference)".

Each of these changes can be seen as a much-needed update to the UNCITRAL Rules that accounts for developments in arbitral practice over the last 30 years, ensuring that the Rules remain relevant whilst retaining sufficient certainty in their operation.

Institutionalisation in the 2010 UNCITRAL Rules

The second category of changes is the expansion of the powers of appointing authorities under the UNCITRAL Rules. The 1976 Rules tried to promote ad hoc arbitration and encouraged all administration of the arbitral process to be left in the hands of the parties. Accordingly, these rules only gave the PCA the authority to act in the constitution or the challenge of an arbitrator (Art 6 et seq. 1976 Rules). By contrast, the new UNCITRAL Rules provide three additional matters in respect of which a third party, such as the PCA, ACICA or AAA, may assist in the arbitral proceedings. The three additional points are:

  • in the event that both parties fail to agree upon an appointing authority, the PCA serves as the default appointing authority (Arts 8-10);
  • upon request of a party the appointing authority may, in exceptional circumstances, deprive a party of the right to appoint a substitute arbitrator and appoint the substitute arbitrator itself (Art 14(2)); and
  • upon request of a party the appointing authority may supervise the arbitrators' fees and expenses, as discussed below (Art 41).

Additionally, Art 16 now provides an exclusion of liability for arbitrators and the appointing authority.

While the UNCITRAL Rules increase the role of the institution to a certain extent, they still aim to afford the parties maximum freedom in determining the process to be followed, and allow outside entities to assist in proceedings only when necessary The purpose of these amendments is to minimise the ability of a party to create deadlocks and delay the proceedings for tactical reasons by challenging the appointment of an arbitrator or failing to nominate an arbitrator.

Clarifications in the 2010 UNCITRAL Rules

The third category of changes in the UNCITRAL Rules deal with the clarification of arbitral procedures to eliminate uncertainty in some areas, such as the establishment of procedural timetables and certain procedures to be followed by the parties in selecting the appointing authority. The majority of the amendments consist of the adoption of international best practices developed by arbitrators using the UNCITRAL Rules over the last 30 years. For instance the new UNCITRAL Rules provides for:

  • the establishment of a procedural timetable as soon as practicable (Art 17(2));
  • the inclusion of the Claimant's legal arguments and documents and other evidence in the Statement of Claim (Arts 20(2)-(3)); and
  • a precise outline of the procedure to be followed by the parties in relation to selecting the appointing authority and, if the parties fail to agree, the procedure of how the PCA must act upon request of a party as the designated authority to select an appointing authority (Art 6).

While these procedures may be self-evident for experienced arbitrators, the clarification of such procedures will undoubtedly be useful for new arbitrators and counsel, who are new to or have not dealt with the UNCITRAL Rules extensively.

General changes in the 2010 UNCITRAL Rules

The fourth category of changes under the new UNCITRAL Rules comprises several general amendments to areas including the appointment of arbitrators in a multi-party arbitration, ie. multiple Claimants or multiple Respondents, (Art 4.1), interim measures (Art 4.2), and the arbitrator's fees and costs (Art 4.3).

Multi-party arbitration

Previously, the 1976 Rules had no provisions for appointing a three arbitrator tribunal in a multi-party arbitration. This issue is resolved by the new Art 10 which provides that where there are multiple parties as either claimant or respondent, they shall jointly appoint a single arbitrator to the three-member tribunal. This however does not apply if the parties have agreed to use a different number of arbitrators rather than one or three (Art 10(2)).

In the event that the parties are unable to constitute an arbitral tribunal, the appointing authority, if requested by the parties, shall constitute the arbitral tribunal (Art 10(3)). The rationale for using a third-party appointing authority is to avoid the situation where any one party obtains an unjustified advantage by gaining the right to appoint an arbitrator in a multi-party dispute where the others are unable to agree.

Furthermore, Art 17(5) permits the joinder of other parties to the arbitral proceedings, as long as it does not prejudice any party. However, before doing so, the Tribunal must grant each party the opportunity to be heard so as to consider the arguments favouring or objecting to such joinder.

Interim measures

While Art 26 of the 1976 Rules did not have any specific formulation on the scope of interim measures, the new Art 26 delivers much-needed clarity on this issue. It contains a broader definition for interim measures and imposes requirements that must be satisfied in order to obtain them. Furthermore, it gives the tribunal the authority to award interim measures to achieve purposes including, but not limited to, the:

  • maintenance or restoration of the status quo between the parties;
  • prevention of actions that would cause imminent harm or prejudice;
  • preservation of assets to satisfy a subsequent award (ie. "Mareva injunction"); and
  • preservation of evidence.

Arbitrator's fees and costs

The new UNCITRAL Rules now provide the parties with an opportunity to review the arbitrators' fees and expenses. Under the 1976 Rules, the parties had no right to review the tribunal's calculation of its fees and expenses. In contrast, the new Art 41(3) provides that the tribunal must inform the parties of its proposal as to how it will determine its fees and that within 15 days of receiving the tribunal's proposal, the parties may refer this proposal to the appointing authority for review. Within 45 days of the receipt of such a referral, the appointing authority shall adjust the fees and expenses and this shall be binding upon the tribunal. If the appointing authority fails to act within those 45 days or refuses to do so, a party may refer the review of the tribunal's proposal to the Secretary-General of the PCA (Art 41(3)(c)).


The development of the newly revised UNCITRAL Rules is certainly a step in the right direction in providing quick and effective dispute resolution arbitral proceedings. Additionally the broader formulation, which allows the UNCITRAL Rules to be used directly in investor-state arbitrations and the resolution of complex multi-party arbitrations, will increase their popularity and usage.

It should be noted as a matter of practical importance that the Rules state that the new version is presumed to apply only to arbitration agreements referring to the UNCITRAL Rules that were concluded after 15 August 2010 and that do not specify that a particular version of the Rules is to apply. This however does not apply if the arbitration agreement has been concluded by accepting an offer which was made before 15 August 2010. Such agreements are presumed to remain subject to the 1976 Rules. Consequently, the effects of the new rules may take some time to receive sufficient industry scrutiny. It remains to be seen whether the desired objectives of the UNCITRAL Working Group will be fully achieved. However, as the new rules incorporate international best practices in the arbitration arena and nominate the PCA as its default appointing authority, this will undoubtedly harmonise the evolution of international arbitration jurisprudence.

Moreover, the new rules deliver a variety of valuable improvements whilst maintaining the essential features of an already established and successful set of rules and procedures. It should be expected therefore that they will positively contribute to the efficient conduct of modern arbitrations.

You might also be interested in ...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.