1 The text of the UNCITRAL Rule was modified in the Tribunal Rules of the Iran-US Claims Tribunal in the following manner:
2 For a discussion of the advantages and disadvantages of arbitration as compared to other forms of dispute settlement, See A Redfern & M Hunter with N Blackaby & C Partasides, Law and Practice of International Commercial Arbitration (4th edn, 2004) at 26 et seq.
3 On the use of the UNCITRAL Rules, see above, Chapter 1.
4 For example, according to s. 3 of the Finnish Arbitration Act of 1992, Act No. 1992/967, an arbitration agreement must be made in writing.
5 Report of the Secretary–General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum 1 (Commentary), UN Doc. A/CN.9/112/Add.1 (1975), Reprinted in (1976) VII UNCITRAL Ybk 166, 167. See also S Baker & M Davis, The UNCITRAL Arbitration Rules in Practice: The Experience of the Iran-United States Claims Tribunal (1992) 8; J van Hof, Commentary of the UNCITRAL Arbitration Rules: The Application by the Iran-U.S. Claims Tribunal (1991) 15.
6 Hereinafter the New York Convention (New York, 10 June 1958; 330 TS 3 (1959)). Article II requires an “agreement in writing.”
7 For a discussion of the acceptance of an arbitration agreement in the course of electronic commerce or by tacit or oral conduct, see Possible Future Work in the Area of International Commercial Arbitration, UNCITRAL, 32nd Sess, UN Doc A/CN.9/460 (1999), paras 20–31, Reprinted in (1999) XXX UNCITRAL Ybk 395, 398–99 [hereinafter “Possible Future Work”].
8 Such modification has occurred in the context of NAFTA Chapter Eleven arbitrations. See Canfor Corporation and Glamis Gold Ltd, Reprinted below, section C.
9 P Sanders, “Commentary on UNCITRAL Arbitration Rules,” (1977) II YCA 177, 179.
10 The Tribunal Rules were adopted by the Tribunal provisionally on 10 March 1982 and finally on 3 May 1983. On the drafting of the Tribunal Rules, See H Holtzmann, “Drafting the Rules of the Tribunal,” in D Caron & J Crook (eds), The Iran-United States Claims Tribunal and The Process of International Claims Resolution (2000) 75.
11 According to Article III(2) of the Claims Settlement Declaration, “the Tribunal shall conduct its business in accordance with the [UNCITRAL Rules] except to the extent modified by the Parties or by the Tribunal to ensure that this Agreement can be carried out.” See also Article 1(1) of Tribunal Rules above, section A. See also para 3 of the last–mentioned Article, according to which the “[t]he Claims Settlement Declaration constitutes an agreement in writing by Iran and the United States … on behalf of their nationals …” See Chapter 8, section B(5) below.
12 See S Baker & M Davis above, n 6, at 7; J van Hof above, n 6, at 13–14. The adaptability of the UNCITRAL Rules is of course a separate question from limitations in law of the place of arbitration or in the New York Convention. As to the applicability of the New York Convention to non–contractual disputes, see I Eliasoph, “A Missing Link: International Arbitration and the Ability of Private Actors to Enforce Human Rights Norms,” (2004) 10 New England Journal of International and Comparative Law 83.
14 In the Larsen arbitration, the selection of the UNCITRAL Rules raised an important preliminary question for the tribunal, namely the applicability of the UNCITRAL Rules to a non–contractual dispute. The tribunal found “no reason why the UNCITRAL Rules cannot be adapted to apply to a non–contractual dispute.” See Lance Paul Larsen, Award, para 10.7, Reprinted below, section D(1). Noting the “nonprescriptive” and “noncoercive” nature of the Rules, the tribunal concluded that parties who agree to arbitrate under the Rules are able to adapt the terms of the Rules, either expressly or by implication, to suit their dispute, including a dispute where one of the parties is alleged to be a state. Ibid, paras 10.5–10.7. Specifically, the tribunal found that “[t]he parties to this arbitration effectively have agreed to apply the UNCITRAL Rules with such necessary adaptations as arise from the terms of the Arbitration Agreement and the nature of the issues referred to arbitration.” Ibid,para 10.10.
15 According to Article 15(1), discussed below in section 3, “[s]ubject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate …”
16 This fundamental tenet of international arbitration is widely recognized by international tribunals. See, e.g. Wintershall AG and Himpurna California Energy Ltd, Reprinted below, section D(2). In the case of arbitration arising under a bilateral investment treaty or Chapter Eleven of the NAFTA, the procedural law may be circumscribed by the specific terms of the treaty. See NAFTA, Chapter Eleven, Subchapter B, Art 1120(2) (“The applicable arbitration rules shall govern the arbitration except to the extent modified by this subchapter.”).
17 For a general discussion, see Böckstiegel, The Relevance of National Arbitration Law for Arbitrations Under the UNCITRAL Rules, (1984) 1 JIA 223–236.
18 Article 15 was adopted by the Iran-US Claims Tribunal without modification, but with the following notes:
19 See Dames & Moore, Reprinted below, section C(1).
20 H Bagner, “Enforcement of International Commercial Contracts by Arbitration: Recent Developments,” (1982) 14 Case Western Reserve Journal of International Law 573, 577. In the UNCITRAL Model Law, the main elements of the present provision are contained in two separate articles, Articles 18 and 19. Together they have been called the “Magna Charta of Arbitral Procedure.” See H Holtzmann & J Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (1989) 550, 564.
21 See A Redfern & M Hunter above, n 2, at 27–28. See also S Baker & M Davis above, n 5, at 75–76 (discussion on the “principle of flexibility” as applied by the Iran-US Claims Tribunal); UNCITRAL Notes on Organizing Arbitral Proceedings, UNCITRAL, UN GAOR, 51st Session, para 4, UN Doc A/51/17 (1996), Reprinted in (1996) XXVII UNCITRAL Ybk 45, 46 [hereinafter “UNCITRAL Notes”] (“This [procedural flexibility] is useful in that in enables the arbitral tribunal to take decisions on the organization of proceedings that take into account the circumstances of the case, the expectations of the parties and of the members of the arbitral tribunal, and the need for a just and cost–efficient resolution of the dispute.”).
Examples of the application of Article 15 powers by the Iran-US Claims Tribunal are Reprinted below, section 3(C): Watkin–Johnson Company (rejecting submission after closure of written record), General Electric Company (same), Gloria Jean Cherafat (refusing to reinstate terminated case), The Austin Company (holding settlement conference), White Consolidated Industries, Inc. (refusing to hold preliminary hearing), Parvin Mariam Samrad (granting request to extend filing deadline), World Farmers Trading, Inc. (refusing to hold oral hearing unless requested by parties), New York Blower Company (same), Tai, Inc. (rejecting request to make interlocutory award), Case Nos. A3, A8, A9, A14 and B16 (holding pre–hearing conference), Dadras International (refusing to admit unauthorized, late–filed documents into evidence), Vivian Mai Tavakoli (same), and Vera–Jo Miller Aryeh (same). Examples from the NAFTA Chapter Eleven context are Reprinted below, section D: Methanex Corporation (admission of amicus submissions and establishing deadlines) and United Parcel Services of America, Inc. (admission of amicus submissions). Other examples are found in Lance Paul Larsen (determining preliminary issues but refusing to issue preliminary award) and CME Czech Republic BV (adopting, as appropriate, the IBA Rules on Taking Evidence), Reprinted below, section E.
22 H Holtzmann & J Neuhaus above, n 20, at 564.
23 See M Aden, Internationale Handelsschiedsgerichtsbarkeit (1988) 50–51, 53–54, who notes, inter alia, that given their relatively detailed quality, the UNCITRAL Rules provide for more legal scrutiny than other rules.
24 According to the drafters of the UNCITRAL Rules, Article 24(3) is “a specific example of the general rule in article [15(1)] to the effect that ‘the arbitrators may conduct the arbitration in such a manner as they consider appropriate.’” Report of the Secretary General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Introduction, para 17, UN Doc A/CN.9/112 (1975), Reprinted in (1976) VII UNCITRAL Ybk 157, 160.
25 See Methanex Corporation and United Parcel Service of America, Inc., Reprinted below, section D.
26 Notably, both tribunals found that the scope of Article 15(1) was limited to procedural matters and thus granted no authority to treat third parties as parties to the arbitration. See Methanex Corporation, para 29, and United Parcel Services of America, Inc., para 39, Reprinted below, section D.
27 See M Aden above, n 23, at 24–25 (a violation of the procedure agreed upon by the parties may lead to the setting aside (Aufhebung&8;) of the award under German Law).
28 According to Article V(1)(d) of the Convention recognition and enforcement may be refused, inter alia, where the “arbitral procedural was not in accordance with the agreement of the parties …” See above, n 6. See also W Craig, “Uses and Abuses of Appeal from Awards,” (1988) 4 Arb Intl 174, 189.
29 For a discussion of the principle of audiatur et altera pars, See B Cheng, General Principles of Law as Applied by International Courts and Tribunals (1987) 290–98.
30 Report of the Secretary–General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, UN Doc A/CN.9/97 (1974), Reprinted in (1975) VI UNCITRAL Ybk 163, 172–73.
31 See Report of the UNCITRAL, 8th Session, Summary of Discussion of the Preliminary Draft, UN Doc A/10017, para 99 (1975), Reprinted in (1975) VI UNCITRAL Ybk 24, 35 (“In this context, the comment was made that what was important was not the imposition of an obligation to observe the principle of equal treatment, since in certain circumstances (such as where the parties made conflicting requests to an arbitral tribunal) such treatment was impossible; the real need was to stress that both parties should receive fair treatment. It was suggested, however, that the best course might be to modify the paragraph so as to impose an obligation on the arbitrators to treat the parties both with equality and fairness.”). For further discussion concerning the amendment in question and its legislative history, See S Baker & M Davis above, n 5, at 76–77; J van Hof above, n 5, at 102. For an application of the principle of equality by a NAFTA Chapter Eleven tribunal, see Pope & Talbot, Inc., Reprinted below, section D.
32 The language of arbitration is discussed in connection with Article 17 in Chapter 9, below.
33 See Stockholm Chamber of Commerce, Arbitration in Sweden (2nd rev edn, 1984) 111, which predates the present Swedish Arbitration Act of 1999 but contains discussion that is of general relevance today. On the Swedish law, See F Madsen, Commercial Arbitration in Sweden: A Commentary on the Arbitration Act (1999) (199: 116) and the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (2004).
34 See Foremost Tehran Inc., Reprinted below, section C(1).
35 The quoted requirement does not only prohibit discrimination in the presentation of the parties’ respective positions, but also prohibits the deprivation of the right to present one’s case even if this affects both parties “equally.” This kind of “equality,” however, amounts to arbitrariness which is likely to be beneficial to one party and disadvantageous to the other, i.e., to mean virtually a negation of equality in the material sense discussed above. It may be mentioned that the Revised Draft which followed the Preliminary Draft (but preceded the final text) required treatment “with equality and with fairness.” The text of the Revised Draft is reproduced in (1976) VII UNCITRAL Ybk 160. The Preliminary Draft had contained only the provision, referred to above, on “absolute equality.” Article 18 of the UNCITRAL Model Law (“the parties shall be treated with equality and each party shall be given a full opportunity of presenting his case”) does not contain the words “at any stage.” This phrase was omitted because “it was feared that it might be relied upon to prolong the proceedings unnecessarily.” H Holtzmann & J Neuhaus above, n 20, at 552. In the application of the UNCITRAL Rules. Articles 22–23 (see below, Chapter 14) provide means to eliminate such fears.
36 See P Sanders, The Work of UNCITRAL on Arbitration and Conciliation (2001) 6 (“Non–observance of equal treatment or not giving parties a full opportunity to present their case will make the award subject to an action for setting aside.”).
38 For examples from the practice of the Iran-US Claims Tribunal, see the Foremost Tehran case referred to above, n 34, and the Watkins–Johnson Company and General Electric Company cases, Reprinted below, section C(1). See generally J van Hof above, n 5, at 103–05. For an example from the practice of a NAFTA Chapter Eleven tribunal, see Methanex Corporation, Reprinted below, section D.
39 See, e.g. Case Nos. 33, 87 and 174, Dissent of Howard M Holtzmann from Orders Permitting Post–Hearing Statements, 20 June 1983, Reprinted in 3 Iran-US CTR 87–88 (1983–11); Ford Aerospace & Communications Corporation and The Islamic Republic of Iran, Case No. 93, Dissenting Opinion of Mohsen Mostafavi to the Order of 28 Feb 1986, 4 Mar 1986, Reprinted in 10 Iran-US CTR 108, 109 (1986–1).
40 See Klöckner and Cameroon, Decision of the Ad Hoc Committee, 3 May 1985, Reprinted in (1986) ICSID Rev–FILJ 90, para 88 (“it suffices to note that the Claimant has not established that it made a timely protest against the serious procedural irregularities it now complains of.”). See also J Thieffry, “The Finality of Awards in International Arbitration,” (1985) 1(3) JIA 27, 45 (“In practice, it appears that the courts will take into consideration a violation of the adversarial principle to deny enforcement of an international arbitral award only where such violation is serious in nature.”).
On the other hand, it is doubtful whether in domestic judicial proceedings mere lack of objection can cure clearly discriminatory treatment automatically by virtue of Article 30 of the Rules, according to which “[a] party who knows that any provision of, or requirement under, these Rules has not been complied with and yet proceeds with the arbitration without promptly stating his objection to such non–compliance, shall be deemed to have waived his right to object.” As the principles of non–discrimination and audi alterem partem are likely to be mandatory norms in most domestic systems, courts might be reluctant to accept that their violation can be made good on the basis of the quoted provision. The same is the case with excess of jurisdiction. The question of mandatory norms is discussed below in this section.
41 P Sanders above, n 9, at 179. See above, section 2.
42 See Article 1(1) of the Tribunal Rules above, section 2. See also J Selby & D Stewart, “Practical Aspects of Arbitrating Claims Before the Iran-United States Claims Tribunal”, (1984) 18 Intl Lawyer 211, 219, n 23 (“It is not possible … to waive mandatory requirements set forth in the Algiers Accords.”).
43 See Article 1(2) above, section 2.
44 K Böckstiegel, “The Relevance of National Arbitration Law for Arbitrations under the UNCITRAL Rules,” (1984) 1(3) JIA 223, 227.
45 For a NAFTA Chapter Eleven tribunal’s treatment of Canada’s refusal to comply with a document production request based on Crown privilege under Canadian law, see Pope & Talbot Inc., Reprinted below, section D(1).
46 This is a generally accepted principle in international arbitration law and theory. See A Redfern & M Hunter, above, n 3, at 98–99; K Böckstiegel above, n 44, at 230–31; P Sanders above, n 9, at 195; G Sacerdoti, “The New Arbitration Rules of ICC and UNCITRAL,” (1977) 11 JWTL 2 (on the standard adopted in the New York Convention of 1958); W Park, “The Lex loci Arbitri and International Commercial Arbitration,” (1983) 32 and ICLQ 21, 23; F Mann, “Lex Facit Arbitrum,” in International Arbitration–Liber Amicorum for Martin Domke (1967) 157, 160–61. See A Redfern & M Hunter above, n 2, at 98–99.
47 See K Böckstiegel above, n 44, at 231; F Mann above, n 46, at 161. See also M Ferrante, “About the nature (national or a–national, contractual or jurisdictional) of ICC awards under the New York Convention,” in The Art of Arbitration (1982) 129, 134–135; and Y Derains, “France as a Place for International Arbitration,” ibid, at 111, 112. See also M Aden above, n 23, at 24.
48 A Redfern & M Hunter, Law and Practice of International Commercial Arbitration (2nd edn, 1991) 88. See also W Craig above, n 28, at 180 (“The State where the arbitration takes place has the power to regulate how an arbitration procedure shall be held on its territory or, for that matter, whether it shall be held at all.”).
49 In practice this has not been frequently done either. See A van den Berg, The New York Convention of 1958 (1981) 292.
50 See, e.g. W Craig above, n 28, at 183.
51 On the concept of “a–national” (also called “floating” or “delocalised”) arbitration, as well as on pros and cons regarding that concept, see generally A Avanessian, Iran-US Claims Tribunal in Action (1993) 283–90; W Park, “Judicial Controls in the Arbitral Process,” (1991) 3 Arb Intl 230, 242–54; J Paulsson, “Delocalisation of International Commercial Arbitration; When and Why it Matters,” (1983) 32 ICLQ 53; A Redfern & M Hunter above, n 2, at 98–99; S Toope, Mixed International Arbitration (1990) 17 et seq.
52 K Böckstiegel above, n 44, at 230. This, however, is not the interpretation preferred by Böckstiegel himself.
53 But see the Belgian law on international arbitration as discussed below in connection with Article 16(1). See A Redfern & M Hunter above, n 2, at 108.
54 For example, an agreement on a modification to the UNCITRAL Rules, whereby Article 1(2) has been omitted from the Rules as applied in a particular arbitration.
55 See nn 27 and 28 above.
56 See P Sanders, The Work of UNCITRAL on Arbitration and Conciliation (2nd rev edn, 2004) 173–74; A Redfern & M Hunter, above, n 2, at 32; W Craig, W Park, J Paulsson, International Chamber of Commerce Arbitration (3rd edn, 2000) 311.
57 See Article 52, WIPO Arbitration Rules; Article 30.1, LCIA Rules; and Rule 34, AAA International Arbitration Rules. For Professor Sanders’ views on supplementing the Rules with provisions on confidentiality, See P Sanders, “Has the Moment Come to Revise the Arbitration Rules of UNCITRAL?”, (2004) 20(3) Arb Intl 243, 266–67.
58 The UNCITRAL Notes observe: “there is no uniform answer in national laws as to the extent to which the participants in an arbitration are under the duty to observe the confidentiality of information relating to the case.” UNCITRAL Notes above, n 21, at para 31.
59 See Ali Shipping Corporation v. Shipyard Trogir  1 WLR 314. Limitations on the general duty of confidentiality with respect to the award are set forth in Associated Electric and Gas Insurance Ltd v. The European Reinsurance Company of Zurich  UK PC 11.
60 Esso Australia Resources Lt and ors v. The Honourable Sidney James Plowman and ors (1995) 128 ALR 391, (1995) 183 Commonwealth Reports 10; United States v. Panhandle Eastern Corp., (1988) 118 FRD 346 (D Del); AI Trade Finance Inc v. Bulgarian Foreign Trade Bank Ltd,  Stockholm City Court, Case No. T–111–98.
61 Panhandle, 118 FRD at 349–50.
62 According to the NAFTA Notes of Interpretation of Certain Chapter 11 Provisions:
Nothing in the NAFTA imposes a general duty of confidentiality on the disputing parties to a Chapter Eleven arbitration, and, subject to the application of Article 1137(4), nothing in the NAFTA precludes the Parties from providing public access to documents submitted to, or issued by a Chapter Eleven tribunal. In ICSID arbitration, the ICSID system does not expressly require the parties to keep awards confidential.
Notes of Interpretation, s. A(1), adopted by NAFTA Free Trade Commission on 31 July 2001, Reprinted in (2001) 13(6) WTAM 139. See also M Stevens, “Revisiting Confidentiality,” News from ICSID, Spring 2000 (vol 17(1)).
63 New Zealand’s Arbitration law provides:
64 See, e.g. Panhandle, 118 FRD at 349–50.
65 Such a form may also include penalties for disclosure. See L Trakman, “Confidentiality in International Commercial Arbitration,” (2002) 18(1) Arb Intl 1, 9.
66 For example, in accordance with Articles 38 and 41 of the Rules, the arbitral tribunal may apportion the costs of additional proceedings caused by a breach of confidentiality to the breaching party. See Pope & Talbot Inc. and The Government of Canada, Decision (NAFTA Chapter Eleven, 27 Sep 2000), available at http://www.dfait-maeci.gc.ca/tna-nac/NAFTA-en.asp (investor to pay costs of pleadings caused by breach of confidentiality by investor’s counsel with understanding that investor’s counsel was personally to assume all costs). Where confidentiality measures are in place and a party still refuses to produce information to the tribunal on grounds that it is sensitive, the arbitral tribunal may consider drawing an adverse inference against the defaulting party pursuant to Article 28(3).
67 UNCITRAL Notes above, n 21, para 32 (numbers added).
68 Even then, as Fouchard, Gaillard, and Goldman observe, “the difficulty with confidentiality agreements becomes apparent if a document does become public knowledge. It will never be easy to establish which party is responsible for the document’s release, and it may be difficult for the disclosing party to prove that it suffered loss as a result of any breach by its adversary.” E Gaillard & J Savage (eds) Fouchard, Gaillard, Goldman on International Arbitration (1999) 693. The confidentiality order and the third–party confidentiality agreement used in the United Parcel Services case are Reprinted below in section D.
69 In the NAFTA context, for example, disclosure may be necessary pursuant to the US Freedom of Information Act or the Canadian Access to Information Act.
70 See Methanex and United Parcel Services of America, Reprinted below, section D(2). In another case, Glamis Gold Ltd, Reprinted below, section D(2), the parties agreed that non–party submissions could be filed contemporaneously with other case filings. See Glamis Gold Ltd and the United States of America, Procedural Order No. 6 (NAFTA Chapter Eleven, 15 Oct 2005), at 2–3, available at http://www.state.gov/s/1/c3439.htm.
71 See Note 5 of the Tribunal Rules above, n 18. In Case No. A/17 between the United States and Iran, the Tribunal applied Note 5 to permit a third–party financial institution to attend Tribunal hearings. The United States of America and The Islamic Republic of Iran, Decision No. DEC 37–A17–FT (13 May 1985), Reprinted in 8 Iran-US CTR 189, 191 n 5 (1985–I). See also United Parcel Services of America, para 64, Reprinted below, section D (citing the practice of the WTO and distinguishing that of the ICJ).
72 For example, in United Parcel Services of America, the tribunal deemed amicus submissions on the questions of jurisdiction and the place of arbitration inappropriate. United Parcel Services of America, para 71, Reprinted below, section D(2).
73 According to UNCITRAL, “[w]hile ensuring the privacy of proceedings does not necessarily also ensure confidentiality, privacy assists by limiting the number of people who have access to the arbitration hearing.” Possible Future Work, n 7 above, para 63.
74 Most arbitral institutions facilitate the exclusivity of commercial arbitration by employing strict internal rules and measures on privacy.
75 United Parcel Services of America, para 70, Reprinted below, section D(2).
76 Thus the Bill, discussed below, on the applicability of Dutch law to the Tribunal proceedings would have governed only the cases mentioned in Article II(1) of the Claims Settlement Declaration (“… Claims of nationals of the United States against Iran and claims of nationals of Iran against the United States, and any counterclaim which arises out of the same contract, transaction or occurrence …”).
77 See W Lake & J Tucker Dana, “Judicial Review of Awards of the Iran-United States Claim Tribunal: Are the Tribunal’s Awards Dutch,” (1984) 16 Law and Policy in International Business 755, 771–73.
78 See ibid 733–80; See also n 52 above.
79 For an example of a case (not decided by the Iran-US Claims Tribunal) in which the tribunal has explicitly addressed the question of compatibility of its proceedings with mandatory local law, see Wintershall AG, Reprinted below, section 4(D) (under Article 16).
80 Amman & Whitney, Reprinted below, section C(1).
81 Fedders Corporation, Reprinted below, section C(1).
82 An English translation can be found in (15 Jul 1983) IALR 6,899. On the contents of the Bill, See also W Lake & J Tucker Dana above, n 77 at 783–86.
83 The Bill was criticized basically on two grounds: first, for facilitating the enforceability of the awards, as Dutch arbitral awards, under the New York Convention and, second, for limiting the grounds of challenge against the awards so as to make the setting aside of them a very unlikely possibility. Letter of Mohammed K Eshragh, the Agent of the Islamic Republic of Iran before the Iran-US Claims Tribunal to the Dutch Ministry of Foreign Affairs of 24 Feb 1984, Reprinted in Mealey’s Litigation Reporter 394 (6 Apr 1984). See also W Lake & J Tucker Dana above, n 77, at 778, 786–87.
84 W Lake & J Tucker Dana above, n 77, at 759 et seq.
85 See L Hardenberg, “The Awards of the Iran-United States Claims Tribunal Seen in Connection with the Law of the Netherlands,” (September 1984) IBL 337. See A van den Berg, “Proposed Dutch Law on the Iran-U.S. Claims Settlement Declaration–A Reaction to Mr. Hardenberg’s Article,” ibid, at 341.
86 W Lake & J Tucker Dana above, n 77, at 778.
87 A van den Berg above, n 85, at 343. See also van den Berg above, n 49, at 24–43. Support for this argument is believed to be found, inter alia, in Article V(1)(d) of the Convention, according to which the recognition and enforcement of an award may be refused if the “composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place.” van den Berg above, n 49, at 34–39 (emphasis added).
88 W Craig above, n 28, at 201. Indeed, Article V(1) (d) of the New York Convention relied on by the authors referred to in the previous note can also be construed as envisaging control by national law and party agreement as alternatives. Moreover, an award not subject to judicial control at the seat of arbitration as such is not excluded by the basic definition contained in Article 1(1) of the Convention: “This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought…” For views favoring the enforceability under the New York Convention of awards not subject to the law of the place of arbitration, see W Lake & J Tucker Dana above, n 77, at 789 et seq.; V Saario, “Asianosaisautonomia kansainväliseen kauppaan liittyvässä välimiesmenettelyssä” (Party Autonomy in International Commercial Arbitration, in Finnish) in Juhlajulkaisu (Essays in Honor of) Matti Ylöstalo (1987) 341, 345.
89 W Lake & J Tucker Dana above, n 77, at 778.
90 Gould Marketing, Inc. and Ministry of Defence of the Islamic Republic of Iran, Award No. 136–49/50 (29 Jun 1984), Reprinted in 6 Iran-US CTR 272 (1984–II).
92 The Islamic Republic of Iran and The United States of America, Decision No. DEC 62–A21–FT (4 May 1987), Reprinted in 14 Iran-US CTR 324 (1987–1). The Tribunal, however, held that it is “incumbent on each State Party to provide some procedure or mechanism whereby enforcement may be obtained within its national jurisdiction, and to ensure that the successful party has access thereto.” Ibid, para 15, 14 Iran-US CTR 331 (1987–1).
93 Ministry of Defence of the Islamic Republic of Iran v. Gould, Inc., CV 87–03673 RG, Order of 14 Jan 1988, Reprinted in (1988) MIAR 3.
94 Ministry of Defence of the Islamic Republic of Iran v. Gould, Inc., Decision filed 23 Oct 1989,  CDOS 7832.
95 The District Court concluded that the award could not be recognized and enforced on the basis of “federal question jurisdiction.” On this question, which essentially turned on whether the Algiers Accords are “self–executing,” see the 14 January Order, n 93, above, at 4–5, and R Lewis, “What Goes Around Comes Around: Can Iran Enforce Awards of the Iran-US Claims Tribunal in the United States,” (1987) 26 Columbia Journal of Transnational Law 515, 528–49. The Court of Appeal did not reach the question, because it held that jurisdiction existed under section 203 of the Federal Arbitration Act concerning the New York Convention. Ministry of Defence of the Islamic Republic of Iran v. Gould, Inc.,  CDOS at 7836.
96 Article II(1) of the New York Convention.
97 See Ministry of Defence of the Islamic Republic of Iran v. Gould, Inc.,  CDOS at 7835. The Court of Appeal distinguished the English case Dallal v. Bank Mellat, Queens Bench Division (Commercial Court),  1 All ER 239, in which what appears to be a contrary conclusion concerning the arbitration agreement was reached. See ibid. In Dallal, the Tribunal award was, however, recognized on the basis of “international comity,” as a consequence of which the claim before the English Court was struck out. For the award by the Tribunal, see Dallal and The Islamic Republic of Iran, Award No. 53–149–1 (10 Jun 1983), Reprinted in 3 Iran-US CTR 10 (1983–III).
98 Ministry of Defence of the Islamic Republic of Iran v. Gould, Inc.,  CDOS at 7835.
101 Iran Aircraft Industries and Iran Helicopter Support and Renewal Company v. Avco Corporation, 980 F 2d 141 (US Ct of Apps 2nd Cir, 1992), Reprinted in (1992) 7(12) MIAR A–1.
104 Certain of Avco’s claims were based on a large number of invoices which were not presented to the Tribunal. At the pre–hearing conference held in May 1985 Avco was notified by the then Chairman of the Chamber, Judge Mangård, that the Tribunal was not “very much enthusiastic” (ibid, at A–3) about getting all the invoices, but that Avco should have an independent audit of the invoices. In its Award of 18 July 1988, the Tribunal, in a different composition, held–as stated with regard to one of the claims in question–that it “cannot grant Avco’s claim solely on the basis of an affidavit and a list of invoices, even if the existence of the invoices was certified by an independent audit.” Avco Corporation and Iran Aircraft Industries, Award No. 377–261–3 (18 Jul 1988), Reprinted in 19 Iran-US CTR 200, 214 (1988–II). Respondents (and Counterclaimants) Iran Aircraft Industries and Iran Helicopter Support and Renewal Co. were awarded $3.5 million (against the dissent of Judge Brower, ibid at 231).
105 As long as awards against Iran are satisfied from the Security Account, this control, of course, may only work in favor of unsuccessful American parties before the Tribunal. This lack of balance is compensated only to a very limited extent by the control exercised in connection with payments made by the Federal Reserve to American claimants. In Gordon Williams, Award No. 342–187–3 (18 Dec 1987), Reprinted in 17 Iran-US CTR 269 (1987–III), in which the named claimant turned out to be a fictitious entity created by an Iranian national, no payment was made. The funds were returned to The Hague after a US court had concluded that the award had been obtained by fraud. See D Bederman, “Nationality of Individual Claimants before the Iran-United States Claims Tribunal,” (1993) 42 ICLQ 119, 121.
106 Although the question is open in light of the case–law, much can be said in favor of the view that the Tribunal proceedings are governed by the Dutch legal system. For an extensive analysis to this effect, See D Caron, “The Nature of the Iran-United States Claims Tribunal and the Evolving Structure of International Dispute Resolution,” (1990) 84 AJIL 104. See also below, Chapter 8. For further discussion on this question, see S Toope above, n 51, at 263 et seq. A Avanessian above, n 51, at 272 et seq. D Jones, “The Iran-United States Claims Tribunal: Private Rights and State Responsibility,” (1984) 24 VJIL 259.
108 Ram International Industries and The Air Force of the Islamic Republic of Iran, Decision No. DEC 118–148–1 (28 Dec 1993), para 20 (footnote omitted). See also Cherafat, Reprinted below, section C(1). The Gordon Williams Award above, n 105, has not been vacated by the Tribunal. See also A Mouri, “Striking a Balance between the Finality of Award and the Right to a Fair Judgment: What is the Contribution of the Iran-United States Claims Tribunal?” (1993) IV FYIL 1.
109 K Böckstiegel above, n 44, at 232.
110 See P Sanders above, n 9, at 195; M Aden above, n 23, at 50–51.
111 In this particular respect resort may be had to the supplementary IBA Rules on the Taking of Evidence in International Commercial Arbitration. See below, Introduction to Chapter 16 on Article 24.
112 For the text of note 5 of the Tribunal Rules, see above, n 18. For the application, see the Drucker and E–Systems cases, Reprinted below, section C(1). For a general discussion of the involvement of non–disputing parties, such as amicus curiae, see above, section 3(B)(1)(b).
113 In 1982 UNCITRAL adopted certain guidelines for both arbitral and related institutions willing to conduct administered arbitration under the UNCITRAL Rules and those ready to take a more limited role as appointing authority and a provider of administrative services. See Recommendations to Assist Arbitral Institutions and Other Interested Bodies with regard to Arbitrations under the UNCITRAL Arbitration Rules, Reprinted in (1982) XIII UNCITRAL Ybk 420, and in I Dore, Arbitration and Conciliation under the UNCITRAL Rules: A textual Analysis, Appendix 3 (1986). See also Chapter 1 above.
114 See Report of the Secretary–General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, UN Doc A/CN.9/97 (1974), Reprinted in (1975) VI UNCITRAL Ybk 163, 173 (Draft Articles 13(2) and (3)).
115 See Report of the Secretary–General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, Addendum 2 (Suggested Modifications), UN Doc A/CN.9/97/Add 2, para 15 (1975), Reprinted in (1975) VI UNCITRAL Ybk 182, 183. See also Summary Record of the 6th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.6, at 2–4, paras 9–28 (1976).
116 Article 24(1) of the Model Law:
Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials. However, unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by a party.
117 H Holtzmann & J Neuhaus above, n 20, at 673.
119 Summary Record of the 6th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.6, at 4, para 24 (1976) (Comment by Mr. Lebedev, USSR).
121 In the discussion concerning what became Article 21(4) the representative of Sierra Leone stressed that “[i]t should be quite clear that the question of jurisdiction was a preliminary question which must be decided prior to the hearing.” Summary Record of the 8th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.8, at 5, para 35 (1976).
122 Note 2 to Article 15 above, n 18.
123 See Component Builders, Reprinted below, section C(2). But see Ladjevardi, Reprinted below, section C(2).
125 H Holtzmann & J Neuhaus above, n 20, at 674.
126 See Report of the Secretary–General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, Addendum 2 (Suggested Modifications), UN Doc A/CN.9/97/Add. 2, para 15 (1975), Reprinted in (1975) VI UNCITRAL Ybk 182, 183; see generally Chapter 25, s. 4 on apportionment of costs.
127 See H Holtzmann & J Neuhaus above, n 20, at 673–74. Note that Article 24(1) of the Model Law (n 117, above) contains a provision on the holding of a hearing “at the appropriate stage of the proceedings.”
128 See Tchacosh Company, Reprinted above, section C(2), and the other case mentioned therein. See also J van Hof above, n 5, at 107.
129 See Ladjevardi, Reprinted below, section C(2).
130 See Tchacosh, Reprinted below, section C(2). See the Sylvania and World Farmers Trading cases, Reprinted below, section C(2).
131 Arbitration in Sweden above, n 33, at 114.
132 See above, n 18. Although “pre–hearing conferences” or the like find their basis in Article 15(1) rather than 15(2), they can conveniently be discussed in connection with hearings.
133 See Phelps Dodge, Reprinted below, section C(2).
134 See The Austin Company, Reprinted below, section C(2). See generally J Selby & D Stewart above, n 42, at 222–26 and S Baker & M Davis above, n 5, at 123 (“The purported goals of pre–hearing conferences at the Tribunal were twofold: (1) to allow parties to exchange views; and (2) to narrow and clarify issues.”).
135 See, on the one hand, J Selby & D Stewart above, n 42, at 222, according to whom the utility of the conferences “is in many cases doubtful,” and, on the other, S Belland, “The Iran-United States Claims Tribunal: Some Reflections on Trying a Claim,” (1984) 1 JIA 240–41, who regards the pre–hearing conference as “a good idea” and the guidance afforded by comments made during it as “invaluable.”
136 See Tai, Inc., Reprinted below, C(2), and The Islamic Republic of Iran and The United States of America (Case Nos. A3, A8, A9, A14 and B16), Order of 3 Dec 1992, Reprinted below, section C(2).
137 See Tai, Inc., Reprinted below, section C(2). The additional benefits of a pre–hearing conference are described in P Sanders above, n 36, at 7–8.
138 According to S Baker & M Davis above, n 5, at 123, this was because gradually “pre–hearing conferences were recognized as being of dubious value.”
139 The Islamic Republic of Iran and The United States of America, Reprinted below, section C(2). It may be mentioned that as of 26 July 2005 the Tribunal had held 301 hearings, 165 pre–hearing conferences and 8 combined pre–hearing and hearing conferences. Communique No. 05/3 of 26 July 2005, issued by the Office of the Secretary–General of the Tribunal.
140 See Report of the Secretary–General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, UN Doc A/CN.9/97 (1974), Reprinted in (1975) VI UNCITRAL Ybk 163, 173 (Commentary of Draft Article 13(4)).
141 See J Thieffry above, n 40, at 44–45.
142 See Note 3 to Article 15 of the Tribunal Rules of the Iran-US Claims Tribunal, above, n 18. See also Chapter 10, below.
143 Article 24(3) of the Model Law reads as follows: “[a]ll statements, documents or other information supplied to the arbitral tribunal by one party shall be communicated to the other party. Also any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.” The wording of the first sentence differs from that of Article 15(3) of the UNCITRAL Rules “in order to accommodate the practices of some arbitral institutions, under which documents are sent first to the institution or the tribunal which then transmits them to the arbitrators and the other party.” H Holtzmann & J Neuhaus, n 20, above, at 674.
144 Article 16 was adopted by the Iran-US Claims Tribunal without modification.
145 See Report of the Secretary–General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, UN Doc A/CN.9/97 (1974), Reprinted in (1975) VI UNCITRAL Ybk 163, 173 (Commentary on Draft Article 14). A similar provision is to be found, inter alia, in Article 12 of the ICC Arbitration Rules and in Article 20(1) of the UNCITRAL Model Law, which provides: “The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.”
146 In a recent NAFTA Chapter Eleven arbitration the parties, Glamis Gold Ltd and the United States of America, agreed on Washington, DC as the place of arbitration, in their Agreement on Certain Procedural Matters, dated 20 January 2004.
147 See P Sanders above, n 9, at 194; K Rauh, Die Shieds– und Schlichtungs–Ordnungen der UNCITRAL 89 (1983). But see above n 116.
148 See P Sanders above, n 9, at 194.
149 See M Aden above, n 23, at 230 (“Die Parteien sind Herren des Verfahrens. Sie können auch in ein bereits begonnenes Verfahren eingreifen, es abbrechen oder neu beginnen, sie können daher auch, wenn sie nunmehr zu einer gemeinschaftlichen Entscheidung kommen, den vom Schiedsgericht bestimmten Ort ändern.”).
150 See A Redfern & M Hunter (4th edn, 2004) above, n 2, at 321; H Holtzmann, “The Importance of Choosing the Right Place to Arbitrate an International Case,” in Private Investors Abroad–Problems and Solutions in International Business (1977) 183, 188–91; K Lionnet, “Erfahrungen mit der internationalen Schieds–gerichtsbarkeit im Anlagenbau aus der Sicht der Partei,” in K Böckstiegel (ed), Vertragsgestaltung und Streiterledigung in der Bauindustrie und im Anlagenbau (1984) 291, 302 (KH Böckstiegel (ed), 1984). See the Model Arbitration Clause above, section 2(A). See also Report of the Secretary General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Introduction, para 17, UN Doc A/CN.9/112 (1975), Reprinted in (1976) VII UNCITRAL Ybk 157, 160.
151 Ibid. See also R David, Arbitration in International Trade (1985) 282.
152 H Holtzmann above, n 150, at 189.
153 The UNCITRAL Notes above, n 21, para 22, enumerate a number of similar, non–binding “factual and legal factors” that may influence the choice of the place of arbitration:
These factors have figured prominently in a number of NAFTA Chapter Eleven cases in which the parties disputed the appropriate place of arbitration. See below, section D.
154 A Redfern & M Hunter above, n 2, at 284. See also e.g. Y Derains above, n 47, at 111–112; K Lionnet above, n 150, at 303. The Final Act of the Conference on Security and Cooperation in Europe, signed in Helsinki in 1975, urges the participating states, inter alia, to “[r]ecommend, where appropriate, to organizations, enterprises and firms in their countries, to include arbitration clauses in commercial contracts … and permit arbitration in a third country …” (1975) 14 ILM 1292, 1304.
155 H Holtzmann above, n 150, at 187.
156 See, e.g. A Redfern & M Hunter above, n 2, at 321–22; Y Derains above, n 47, at 111.
157 In some cases the parties, however, may have difficulties in agreeing on a neutral venue. Thus certain developing countries may refuse, or at least be very reluctant, to submit disputes involving their governmental entities or agencies for settlement outside their own boundaries. See J McLaughlin, “Arbitration and Developing Countries,” (1979) 13 Intl Lawyer 211, 217–19. This attitude used to be shared by some Eastern European countries, but the situation has changed decisively. In certain Latin American countries arbitrations concerning investment and related contracts is prohibited unless it takes place in the country which received the investment. H Holtzmann, above, n 150, at 201–02. On investment arbitration and Latin America, See also G Naón, “Arbitration in Latin America: Overcoming Traditional Hostilities,” (1989) 5 Arb Intl 131, 141–42. It should be noted, however, that where a state or state entity has, in derogation from its domestic law, consented to arbitration in a neutral venue, it should be regarded as estopped from relying on the national rules in order to get rid of its commitment. See G Delaume, “The Finality of Arbitration Involving States,” (1989) 5 Arb Intl 21, 26 and the cases mentioned therein. Note also that in maritime cases the parties’ freedom to choose a neutral place may be curtailed by international regulations such as the Hamburg rules. See H Holtzmann & J Neuhaus above, n 20, at 595.
158 For example, in an arbitration initiated by a Dutch corporation against the Czech Republic the place of arbitration was determined to be Stockholm. See CME Czech Republic BV and The Czech Republic, Partial Award (Ad Hoc UNCITRAL Proceeding, 13 Sep 2001), Reprinted in (No. 3, 2002) 14 WTAM 109, 121.
159 Thus “[t]he legal rules applicable to arbitral proceedings in the respective countries may differ, and they could be more burdensome or otherwise less satisfactory to a party in one country than in the other. In addition, arbitral proceedings conducted in the respective countries will be controlled by different courts, which may exercise differing degrees of control over the proceedings.” UNCITRAL, Legal Guide on Drawing Up International Contracts for the Construction of Industrial Works (1988) 317. See also I Hertzfeld, “Applicable Law and Dispute Settlement in Soviet Joint Ventures,” (1988) 3 ICSID Rev–FILJ 249, 258, which provides:
[S]uch split jurisdictional clauses, which leave doubt as to the ultimate forum for litigation, may pose certain problems in practice. They may, for example, cause a party to act in such a manner as to oblige the opposing party to commence an action, in order that the action be brought in the first party’s home jurisdiction. They may also give rise to multiple actions in different jurisdictions with the rise of contradictory decisions.
Ibid. The author refers to agreements concluded between the former USSR Chamber of Commerce and certain foreign chambers in which arbitration in the respondent’s country is recommended.
160 A Redfern & M Hunter above, n 48, at 429.
161 See discussion concerning Article 15(1) in section 3(B), above.
162 See Wintershall AG, Reprinted below, section E.
163 See K Böckstiegel above, n 44, at 223–34.
164 Surveys on various domestic arbitration laws and regimes are conveniently located in the ICC publication Arbitration Law in Europe and in the ICCA publication, Yearbook of Commercial Arbitration, which cover national reports on the subject from 1976 to 1988, and The International Handbook on Commercial Arbitration, where the national reports are covered since 1989.
165 See H Holtzmann above, n 150, at 183.
167 In general, see A Redfern & M Hunter above, n 2, at 163–72; H Arfazadeh, Ordre public et arbitrage international à l’épreuve de la mondialisation (2005) 79–109; H Holtzmann above, n 150, at 198–204; K Böckstiegel above, n 44, at 234.
168 See A Redfern & M Hunter above, n 2, at 164; W Park, “Judicial Controls in the Arbitral Process,” (1991) 3 Arb Intl 230, 253–54. An important US decision confirming, in principle, the arbitrability of international antitrust disputes was rendered by the Supreme Court in 1985 in Mitsubishi v. Soler, 473 US 614 (1985). For a comment, See S Jarvin, “Arbitrability of Anti–Trust Disputes: The Mitsubishi v. Soler Case,” (1985) 2(3) JIA 69. See also PD O’Neill, Jr, “Recent Developments in International Commercial Arbitration: an American Perspective,” (1987) 4(1) JIA 7. See also R Brand, “International Trade Law and the Arbitration of Administrative Law Matters: Farrel Corp v. US International Trade Commission”, (1993) 31 Columbia Journal of Transnational Law 181.
169 A Redfern & M Hunter above, n 2, at 172.
170 See ibid (references to two cases involving an exclusive distributorship agreement and an international employment contract respectively).
173 See H Holtzmann above, n 150, at 204–06.
174 Thus under the general rule of Saudi Arabian law an “arbitrator shall be a Saudi national or Muslim expatriate.” According to an authority on that law, what in this respect “is applicable in national arbitration is not necessarily so in international arbitration.” A El–Ahdab, “Arbitration in Saudi–Arabia under the New Arbitration Act, 1983 and its Implementation Rules of 1985,” Part One, (1986) 3(3) JIA 27 and Part Two, ibid at (No. 4, 1986) 23. See also A Redfern & M Hunter above, n 2, at 325–326.
175 Further, see below, Chapter 3 on Article 33(1).
176 If no particular procedural law has been designated for the arbitration, the law of the place presumptively is also the law applicable to the interpretation of the UNCITRAL Rules. See M Aden, above n 23, at 34–35. This aspect, however, is likely to be of such a limited importance as not to play a role in the choice of the place.
177 As will be discussed later in this section, non–compliance with the mandatory rules of the law of the place of arbitration may also negatively influence the chances of having the award enforced in other jurisdictions.
178 For a comparative analysis of the appeal and review possibilities under the arbitration laws of selected countries, See D Kolkey, “Attacking Arbitral Awards: Rights of Appeal and Review in International Arbitrations,” (1988) 22 Intl Lawyer 693.
179 See K Böckstiegel above, n 44, at 233. See also M Aden above, n 23, at 24 (“Im Grunde scheint es nur eine wirklich zwingende Verfahrensregel zu geben, nämlich die ‘audiatur et altera pars’, auf welche sich alle anderen, jeweils nach den nationalen Rechten bestehenden zwingenden Verfahrensregeln zurühführen lassen”) and at 50.
181 See Arbitration in Sweden above, n 33, at 66.
182 See A Redfern & M Hunter above, n 2, at 462–63 and Chapter 3, section 2(B)(2) on Article 33(2), below.
183 A Redfern & M Hunter above, n 21, at 310–11. See below, Chapter 12 on Article 21.
184 The underlying philosophy behind this distinction is well illustrated in the following example by Craig: “Think of the difference between the criminal procedure that the Anglo–American observer is familiar with and criminal proceedings in any other country. If judged by these standards, any Japanese, French … case, for example, would be found to have numerous ‘errors.’ However, we can still look at the same case and say it was procedurally just. When we do, we are making a judgment about procedural fairness that is no longer tied to our own national standards.” See W Craig above, n 28, at 197–98.
185 P Sanders above, n 10, at 179–80. “More restrictive” here denotes the narrower scope of public policy considerations which in international cases, as distinct from domestic cases, may affect the validity of the award. See Arbitration in Sweden above, n 33, at 120 (“Affidavits are looked upon with suspicion in Sweden … A more lenient attitude towards affidavits prevails in connection with international arbitration proceedings in Sweden, however…”).
186 See Craig above, n 28, at 197, and the French cases referred to therein.
187 Law of 27 March 1985 amending Article 1717 of the Code of Civil Procedure. For the text in English with an Introductory Note by E Gaillard, see (1986) 25 ILM 725. The Belgian solution has been the subject of criticism. Thus the shifting of all judicial control from the place of arbitration (a neutral site) to the courts of the country of enforcement (usually the home country of one of the parties) may run counter to the very purpose why the neutral place was selected. See W Craig above, n 28, at 201–02. As to the argument that this kind of “non–national” award is not enforceable at all under the New York Convention, see above, section 3(B)(1).
188 Now the parties to an international arbitration are allowed to opt out of local control. See A Redfern & M Hunter above, n 2, at 108. See B Hanetiou & G Block, “La, les du 19 mai modifrant la legislation belge relative à l’arbitrage”, Bulletin de l’Association Suisse de l’Arbitrage 1998, 528 et seq.
189 In Australia the Arbitration (Foreign Awards and Agreements) Act 1974, as amended on the basis of the UNCITRAL Model Law, specifies that, in case of international commercial arbitration, an award is in conflict with the public policy to the extent justifying its setting aside or the refusal of its enforcement where: “(a) the making of the award was induced or affected by fraud or corruption; (b) a breach of the rules of natural justice occurred in connection with the making of the award.” See C Croft above, n 164, at 190. As to France and its Decree No. 81–500 of 12 May 1981, see, e.g. A Redfern & M Hunter above, n 2, at 304; W Craig above, n 28, at 196–97. The first award to be successfully challenged under Article 1502 of the new Code of Civil Procedure concerned the ICC arbitration in the so–called Pyramids case, in which the French Court, unlike the arbitral tribunal sitting in Paris, held that Egypt had not consented to arbitration. (i.e., there was no valid arbitration agreement). Arab Republic of Egypt v. Southern Pacific Properties, Ltd, et al., Court of Appeal of Paris, 12 Jul 1984, Reprinted in (1984) 23 ILM 1048. The original award is reproduced in (1983) 22 ILM 752. See also n 22 in Chapter 17, below.
190 Arbitration Act 1996. See also A Redfern & M Hunter above, n 2, at 503.
191 See s. 51 of the Swedish Arbitration Act of 1999; Art 192 of the Act on Swiss Public International Law (Loi sur le droit international public suisse). See also H Arfazadeh above, n 167, at 77.
192 A Redfern & M Hunter above, n 2, 499.
193 Model Law, Article 34(2). See H Holtzmann & J Neuhaus above, n 20, at 911 et seq. See also M Kerr, “Arbitration and the Courts: the UNCITRAL Model Law,” (1985) 34 ICLQ.
194 See S Jarvin, “Canada’s Determined Move Towards International Commercial Arbitration,” (1986) 3(2) JIA 111, as well as R Paterson, “Implementing the UNCITRAL Model Law: The Canadian Experience,” 2 The Arb. and Dispute Resolution Law Journal 159 (1996).
195 This is the case, for example, with the Spanish arbitration law adopted in 2003. See F Mantilla–Serrano, Ley de Arbitraje: Una Perspectiva International (2005) 31–33.
196 See generally M Savola (ed), Law and Practice of Arbitration in Finland (2004). See also E Gaillard, “The UNCITRAL Model Law and Recent Statutes on International Arbitration in Europe and North America,” (1987) 2 ICSID Rev–FILJ 424.
197 See A Redfern & M Hunter above, n 2, at 108 n 75, who point out that while a claimant may be interested in speedy proceedings which are not interrupted by court, the respondent may formulate his priorities quite differently.
198 A Redfern & M Hunter above, n 2, at 390.
200 See below, discussion on Article 26(3) concerning interim measures ordered by a court in Chapter 15.
201 As noted in connection with Article 15 above, there is some uncertainty as to the international enforceability of a–national awards.
202 See A Redfern & M Hunter above, n 2, at 518.
203 Ibid at 518. It is for this reason that arbitration in the respondent’s home country, instead of in a neutral place, is recommended in some cases. See UNCITRAL Guide above, n 159, at 317 (“The enforcement of an award against a party in his own country that was rendered in that country would not encounter the problems associated with the enforcement of a foreign award.”).
204 See, e.g. the Inter–American Panama Convention of 1975, reproduced in (1978) III YCA 15.
205 330 UNTS 3 (New York, 10 Jun 1958). On the “predecessor” of this Convention, the Geneva Convention of 1927, See A Redfern & M Hunter above, n 2, at 521–23. A thorough commentary is provided by A van den Berg above, n 49. See also H Holtzmann above, n 150, at 195–97. As to the New York Convention and a–national awards, see above n 87–88 in section 3(B) dealing with Article 15.
206 Article 1(3). According to this provision, a state may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, “which are considered commercial under the national law of the state making such declaration.” A “commercial reservation” is rarely likely to hamper the enforcement of an award rendered by a tribunal applying the UNCITRAL Rules. See generally A Redfern & M Hunter above, n 2, at 525–26.
207 States which have not made any of the two reservations mentioned apply to the main rule of Article I(1) according to which:
This convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the state where the recognition and enforcement of such awards are sought, and arising out of differences between person, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where the recognition and enforcement are sought.
208 A Redfern & M Hunter above, n 2, at 326. See also H Holtzmann above, n 150, at 196.
209 “R” denotes what has been referred to in the text accompanying note 208 as the “reciprocity reservation.” (This designation does not include reservations by contracting parties, such as Belarus, Russian Federation, and Ukraine, which apply the provisions of the Convention with respect to awards made in the territories of non–contracting states only to the extent to which they grant reciprocal treatment.) “C” stands for “commercial reservation,” as explained above in note 206. The list reflects the situation as of 6 June 2005. Up–to–date information on the status of ratifications, accessions, and reservations to the New York Convention is available in the Multilateral Treaties Collection (Chapter XXII on Commercial Arbitration) in the UN Treaty Database, available at http://www.untreaty.un.org/English/access.asp.
210 Article V reads as follows:
211 Article V(1)(e). As indicated earlier, in the application of the UNCITRAL Rules law other than the lex loci arbitri should never be designated as the applicable procedural law (lex arbitri&8;). For discussion of the requirement in Article V(1)(e) that an award be binding on the parties, see below Chapter 22, section (2)(B)(2) on Article 32(2) of the UNCITRAL Arbitration Rules. See also A J van den Berg above, n 49, at 333 et seq.
212 For more detailed discussion concerning Article V of the New York Convention, See van den Berg above, n 49, at 275, et seq.; A Redfern & M Hunter above, n 2, at 528–45.
213 Article 34 (setting aside) was partly reproduced above following n 193. Provisions on recognition and enforcement, which also concern domestic awards, are contained in Articles 35 and 36. See H Holtzmann & J Neuhaus above, n 20, at 1006 et seq.
214 In general, see H Holtzmann above, n 150, 206–10; A Redfern & M Hunter above, n 3, at 322.
215 See P Sanders above, n 9, at 194–95.
216 In two relevant cases, the Secretary–General has acted in the way just indicated. He appointed the President of the Supreme Court of the Netherlands as Appointing Authority for the Iran-US Claims Tribunal at The Hague, and the principal arbitral institution of the Federal Republic of Germany as Appointing Authority for an arbitration in which the parties had chosen the Federal Republic as the place of arbitration. See A Redfern & M Hunter above, n 48, at 482–85 and the Commentary of Article 7 in Chapter 4, below.
217 UNCITRAL Legal Guide above, n 159, at 317. See also section (3), below.
218 See UNCITRAL Notes above, n 21, para 23 (geographical flexibility allows the “arbitral proceedings to be carried out in a manner that is most efficient and economical”); K Lionnet above, n 150, at 302 and the Commentary on paras 2 and 3 of Article 16, below.
219 As to certain concrete indications, See A Redfern & M Hunter, Law and Practice of International Commercial Arbitration (3rd edn, 1999) 288–90. See also H Holtzmann above, n 150, at 211–21, who tests (with positive results) the suitability of Sweden and the United States as places of arbitration according to the various relevant criteria.
220 P Sanders above, n 9, at 194. Similarly see K Rauh above, n 147, at 80, and M Aden above, n 23, at 230. Aden indicates–correctly, it is believed–that the presiding arbitrator can only decide “purely procedural questions” (reine Verfahrensfragen). Decision–making is dealt with in Article 31 of the UNCITRAL Rules discussed below, in Chapter 21.
221 See A Redfern & M Hunter above, n 2, at 438.
222 Article VI(1), Reprinted below, section C.
223 Initially there had been some discussion about locating at least one Chamber in London, but these plans never materialized. S Baker & M Davis above, n 5, at 78.
224 See R David above, n 151, at 281 (“[I]t is unimportant from a legal point of view whether arbitration takes place in one town or another within a same state. On the other hand it is important to know whether arbitration will take place in one state or in another.”). As to “town,” however, See M Blessing, “The New International Arbitration in Switzerland–A Significant Step Towards Liberalism,” (No. 2, 1988) 5 JIA 9, 21, who with a view to arbitration in Switzerland recommends the naming of the city in the arbitration agreement. Failing such a designation, “it might be difficult to determine the state judge whose assistance may be called on by the parties, or the arbitral tribunal…” Ibid.
225 The parties, of course, are free to select even the locale, if they so wish.
226 Due to the lack of any far–reaching legal consequences, this kind of decision clearly falls under procedural matters in the sense of Article 31(2), which is discussed below in Chapter 21. See also previous subsection.
227 Failure to do this is about the only conceivable situation in which the determination of the locale (as distinct from the place) of arbitration could entail legal consequences (because of breach of the principle of equality of the parties).
228 P Sanders above, n 9, at 196.
230 For example, in the Himpurna California Energy Ltd case, Himpurna, the claimant, won an arbitral award against PT Perusahaan Listruik (“PLN”), an entity controlled by the Republic of Indonesia. See Himpurna California Energy Ltd and PT (Persero) Perusahaan Listruik Negara, Reprinted in (2000) XXV YCA 13. PLN failed to pay damages. In a separate but related arbitration against the Republic of Indonesia, Himpurna claimed that Indonesia failed to ensure PLN’s payment of damages. See Himpurna California Energy Ltd and Republic of Indonesia, (2000) XXV YCA 112. Shortly thereafter, Pertamina, another entity controlled by Indonesia, successfully sought an injunction in the courts of Jakarta enjoining the arbitral proceedings and imposing a fine of US $1 million per day for any breach of the injunction. As the seat of the arbitration was Jakarta, the arbitral tribunal felt it necessary to move the hearing from Jakarta to The Hague, without changing the legal seat of the arbitration. See Himpurna, Interim Award, Reprinted below, section E. In an effort to block the tribunal’s decision, Indonesia sought (unsuccessfully) an injunction in the Dutch court to enjoin the arbitral tribunal from holding the hearing in The Hague. See Himpurna, Dutch Decision, and Himpurna, Final Award, Reprinted below, section E.
232 See Report of the Secretary–General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum 1 (Commentary), UN Doc A/CN.9/112/Add.1 (1975), Reprinted in (1976) VII UNCITRAL Ybk 166, 172 (Commentary on Draft Articles 15(2) and (3)).
233 Article 20(2) reads as follows: “Notwithstanding the provisions of paragraph (1) of this article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.”
234 See H Holtzmann & J Neuhaus above, n 20, at 595–96.
235 See M Blessing above, n 224, 22–23, who refers to the difficulties which may arise if an arbitral tribunal having its formal seat in Switzerland (or London) conducts most of its proceedings in Germany. According to German doctrine, an award rendered under such circumstances may come to be regarded as a German award, while in Switzerland (London) it may be considered a Swiss (an English) award.
236 A Redfern & M Hunter above, n 2, at 101. Similar respect for the sovereignty of the territorial state, which always makes it incumbent on the arbitral tribunal to pay due respect to the mandatory norms of the place of arbitration, should also be taken into account where a part of the proceedings are conducted outside the principal place.
239 See Article 25(1) discussed below in Chapter 17.
240 Report of the Secretary–General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum 1 (Commentary), UN Doc A/CN.9/112/Add.1 (1975), Reprinted in (1976) VII UNCITRAL Ybk 166, 172 (Commentary on Draft Article 15(4)).
241 See A van den Berg, above, n 49, at 294–95; A Redfern & M Hunter above, n 2, at 104–05, 328.
242 See A van den Berg above, n 49, at 295; A Redfern & M Hunter above, n 2, at 105.
243 See F Mann, “Where is an Award ‘made’?” (1989) 5 Arb Intl 107, 108 (while arguing that, regardless of the actual place of the signing of the award, an award is “made” at the place of arbitration admits that “the view suggested … attributes a somewhat strained meaning to the word ‘made’.”)
244 See Summary Record of the 6th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.6, at 8–10, paras 70–89 (1976). See also P Sanders above, n 36, at 9 (“An award may be circulated to the arbitrators for signing at their convenience.”).
245 A Redfern & M Hunter above, n 2, at 328. By so doing the arbitral tribunal may avoid the risk of the award being regarded by a court as having been rendered in breach of the agreement by the parties.
246 See M Aden above, n 23, at 231–32.
247 Apparently most laws allow this kind of flexibility. See the document referred to above in n 214, para 81 (Comment by Mr. Melis, Austria).
248 Holtzmann & J Neuhaus above, n 20, at 596.