Revised arbitration rules from the United Nations Commission on International Trade Law (UNCITRAL) have commenced. The UNCITRAL Rules are amongst the most popular arbitration rules adopted for international arbitration.
The revised UNCITRAL Rules will apply to any new arbitration agreements, concluded after 15 August 2010, adopting the UNCITRAL Rules. They may also apply to arbitrations commenced after 15 August 2010 under existing arbitration agreements adopting the UNCITRAL Rules, depending on the terms of those agreements.
Background to the revisions
The UNCITRAL Rules are typically used in non-institutional arbitrations, but they also provide the basis for the international rules of some arbitral institutions, such as the HKIAC.
The original UNCITRAL Rules were issued in 1976 when use of arbitration as an alternative to domestic courts was not as widespread as it is today, and were intended to be used by parties in both common law and civil law systems. In 2006 UNCITRAL decided that the UNCITRAL Rules ought to be revised and updated to reflect changes in international arbitration practice over the last 30 years, as well as to refine the existing rules where it was felt revision was required.
According to Neil Kaplan, an internationally-renowned arbitrator and International Arbitration Adviser in our Asia practice:
Highlights of the revisions
- Notices - Notices can now be sent by any means that provides or allows for a record of transmission. Electronic service of notices is permitted, provided the parties have specifically agreed to this in advance. There are now more detailed provisions regarding receipt of notices.
- Response to notice of arbitration - The respondent is now required to issue a response to the notice of arbitration within 30 days of receipt of the claimant's notice of arbitration.
- Multiple parties and joinder - Provision is now expressly made for joinder of additional parties who are party to the same arbitration agreement. New rules are included to deal with difficulties in appointing the tribunal where there are multiple parties.
- Express recognition of need for efficiency and avoiding delay - The rules now expressly require the tribunal, when exercising discretion in conducting the proceedings, "to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the parties' dispute."
- Interim measures - More detail is provided under the new rules concerning the availability and scope of interim measures, such as preservation of assets. It is now clear that the party which sought the interim measure may be liable for costs and damages if it transpires that the interim measure was unjustified.
- Exclusion of liability - The rules now specify that the parties waive to the fullest extent permitted under the applicable law, claims against the arbitrators, the appointing authority and any person appointed by the tribunal for acts or omissions. Intentional wrongdoing is excluded from this waiver.
- Appointment of the arbitral tribunal and the appointing authority - New rules provide for agreement on an appointing authority if this has not been provided for in the arbitration agreement. Greater scope is also made for the appointment of a sole arbitrator where the parties have not agreed the number of arbitrators in advance. Previously, the automatic default position under the rules was three.1
- Experts appointed by the tribunal - New provisions provide the opportunity for parties to object to an expert appointed by the tribunal.
- Awards - References to partial, interim and interlocutory awards have been removed. All awards are now expressed to be final and binding, and the tribunal may make different awards at different times. The aim of this revision is to remove confusion over the status of awards, which is particularly important for enforcement purposes.
- Costs - The principle that the unsuccessful party bears the costs of the arbitration remains, subject to the tribunal's discretion. The costs of legal representation now fall within the general rule, and recovery of legal costs is no longer subject to special consideration. Additional provisions have also been added which give parties greater review rights relating the tribunal's costs.
The revisions to the UNCITRAL Rules are welcomed. Arbitration is of ever increasing importance as a means of resolving international disputes fairly. In most cases arbitration offers superior enforcement opportunities. The revisions to the UNCITRAL Rules will assist in maintaining UNCITRAL arbitration as a useful, efficient and effective procedure for dispute resolution.
1 In Hong Kong, specific provision is made under the Arbitration Ordinance for the HKIAC to decide on the appropriate number of arbitrators in the absence of agreement by the parties.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.