Appendix 3 A Tabular Comparison of the 1976–2010 UNCITRAL Arbitration Rules »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
Part III The Initiation of the Arbitration and the Identification and Clarification of the Issues Presented, Ch.15 Amendments to the Claim or Defence »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
A party may wish to modify its claim or defence in the course of the arbitral proceedings. For practical and economic reasons, the tribunal should maintain a flexible attitude towards accepting such modifications, as the alternative may be the commencement of new arbitral proceedings. Giving a party an unlimited right to make amendments, however, could be prejudicial to the other party and hamper the orderly conduct of the proceedings. Article 22 of the 2010 UNCITRAL Rules seeks to balance these competing interests. Article 22 of the 2010 UNCITRAL Rules provides:...
Part I Fundamental Principles and the Legal Framework within which the Arbitral Tribunal Operates, Ch.3 Applicable Law, Amiable Compositeur »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
The rules of law applied by the arbitrators to decide the substance of the dispute is the focus of Article 35 of the 2010 UNCITRAL Rules and this chapter. The applicable substantive law is distinct from the legal system regulating the arbitral proceedings, that is, the lex arbitri.1 Article 35(1) expresses the overriding principle of party autonomy in choosing the applicable rules of law, with provision for those instances where the parties fail to designate applicable rules of law. Article 35(2) addresses the authority of the arbitral tribunal to decide as...
Part II Arbitral Procedures to Control the Selection and Conduct of Arbitrators, Ch.5 The Challenge of Arbitrators »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
The challenge is a device to maintain minimal standards of independence and impartiality in arbitrators. Challenge is an exceptional and serious mechanism. It is a process that is infrequently initiated; it may be used more today than in the past, but that conclusion is difficult to assert with confidence given the rareness of published decisions. A challenge may be lodged in response to the appointment of an arbitrator at the commencement of an arbitration or at any time throughout the arbitration when, for example, new circumstances give rise to justifiable...
Part III The Initiation of the Arbitration and the Identification and Clarification of the Issues Presented, Ch.11 The Choice of Language »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
In international arbitration, the parties and other persons involved, such as arbitrators, witnesses and experts, may come from different linguistic backgrounds.1 Priority given to one language may present issues of fairness, while the right of all involved to operate in their own language can lead to inefficiency and delay. The choice of language of the proceedings presents issues addressed by the UNCITRAL Rules—in particular by Article 19(1). This article contains the general provisions for determining the language of oral proceedings and written statements....
Part VI The Award, Ch.27 The Costs of Arbitration »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
International arbitration may be quite costly because, unlike litigation, the parties pay not only for the costs of presenting their case, but also for the costs of the arbitral tribunal, including the arbitrators’ remuneration and expenses and any administrative fees.1 Further, the parties must typically pay upfront for the costs of the arbitral tribunal through advance monetary deposits. Unlike litigation in some countries, the prevailing party may be reimbursed for its costs at the end of arbitration through an award by the arbitral tribunal. The UNCITRAL Rules...
Dedication »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
Part V Default and Waiver, Ch.21 Default »
David D. Caron, Lee M Caplan
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
There are few more disruptive forces in arbitration than a party's unwillingness to engage in the proceedings.1 Party recalcitrance can impose unexpected costs on the arbitral process by dragging out the proceedings unnecessarily or, in a worse-case scenario, by holding up the proceedings indefinitely. The UNCITRAL Rules would have little utility if they did not include a provision for combating this problem. Accordingly, Article 30 authorizes the arbitral tribunal to advance its work in the face of a party's default on its obligation to participate in the...
Part VI The Award, Ch.23 Deliberations and Decisions »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
One of the most important aspects of the arbitral process is how a tribunal's decision is made. Article 33 of the UNCITRAL Rules sets forth the basic rules as to the degree of consensus required for its decisions. Article 33(1) establishes the general principle that “any award or other decision” is subject to the rule of majority voting. Article 33(2) provides that the presiding arbitrator may decide procedural matters alone where a majority opinion cannot be formed or where authorized by the other arbitrators to act on the entire tribunal's behalf. Procedural...
Endnotes »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
Part IV The Presentation of the Case: Evidence and Hearings, Ch.18 Evidence »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
Questions of evidence are among the most problematic aspects of any regulation of international arbitration. This is especially so in case of arbitration under the UNCITRAL Rules, which are intended for application in proceedings involving parties from around the world and from various legal systems, including common and civil law. The expectations of parties from different legal systems are never so likely to conflict as with questions of evidence. In the “adversarial” system of common law, the parties generate the evidence in accordance with relatively technical...
Part II Arbitral Procedures to Control the Selection and Conduct of Arbitrators, Ch.7 Exclusion of Liability for Arbitrators and other Participants »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
A losing party in an arbitration, perhaps one which has failed to set aside an award, may be tempted to direct its frustrations toward the arbitral tribunal by suing one or more of the arbitrators in their personal capacities, alleging that they had mishandled the proceedings in some manner. The prospect of lawsuits of this nature can have a serious chilling effect on the process of arbitration, with concerns about exposure to liability possibly translating into a general reluctance by arbitrators to offer their services. In an increasingly litigious environment,...
Part II Arbitral Procedures to Control the Selection and Conduct of Arbitrators, Ch.6 Failure to Act, other Disruptions, and the Replacement of an Arbitrator »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
Lack of impartiality or independence in an arbitrator is not the only contingency that a set of arbitral rules must anticipate. An arbitrator's failure to perform his or her functions, resignation, absence, or death also have the potential to disrupt the arbitral proceedings. Article 12(3) addresses an arbitrator's failure to act or the impossibility of performing his or her functions. The problems of resignation, absence, and death have been dealt with extensively in the practice of the Iran–US Claims Tribunal. Article 14 establishes the procedures for...
Part VI The Award, Ch.24 Form and Effect »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
A decision of the arbitral tribunal can have binding legal effect, both domestically and internationally, if formalized properly. Article 34 addresses the technical requirements regarding the form and content of the award. In particular, the award: must be made in writing; must be signed by all the arbitrators or explain the failure of an arbitrator to sign; must include the reasons for the decision, unless otherwise agreed; must be dated and indicate the place where the award was made; and must be transmitted to the parties. Article 34 also identifies the types...
Part III The Initiation of the Arbitration and the Identification and Clarification of the Issues Presented, Ch.16 Further Written Statements and Time Limits on Submission »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
By the time of the final hearing, the issues to be determined should be well defined, and the facts and arguments should be elaborated in writing. The statement of claim and the statement of defence do not necessarily suffice for this purpose. Article 24 provides for the possibility of requiring further written statements from the parties. Article 25 deals with the time limits to be fixed for the submission of various written statements, including the statement of claim and the statement of defence. Article 24 of the 2010 UNCITRAL Rules provides:The arbitral...
Part IV The Presentation of the Case: Evidence and Hearings, Ch.19 The Hearings »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
The right to a hearing is often regarded as essential to the notion of a “fair trial.” Article 17(3), which addresses certain fundamental principles applicable to the conduct of arbitration proceedings, expresses that basic right.1 Article 28 deals with the more technical aspects of the arrangement and conduct of a hearing and it is closely connected with Article 27 on evidence, discussed in Chapter 18. The parties are free to supplement these somewhat skeletal rules on hearings and evidence with, for example, the International Bar Association Rules on the Taking...
Part II Arbitral Procedures to Control the Selection and Conduct of Arbitrators, Ch.8 The Institution of the Appointing Authority »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
A fundamental dimension of the UNCITRAL approach to its 1976 Rules is that those rules allow for unadministered arbitration, that is, that there need not be a supervising institution such as the International Chamber of Commerce (ICC) or the London Court of International Arbitration (LCIA). However, that choice created the need for some third party to take the place of a supervising institution for a minimum set of situations where the parties themselves are unable to resolve a question. Examples include selection of an arbitrator where one side fails to so...
Part III The Initiation of the Arbitration and the Identification and Clarification of the Issues Presented, Ch.17 Interim Measures »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
Judicial and arbitral proceedings take time—occasionally a great deal of time. As a result courts and tribunals may be called upon to preserve the alleged rights of the parties during the pendency of the proceedings by ordering interim measures. Article 26 of the 2010 UNCITRAL Arbitration Rules addresses the subject of interim measures. It does so in substantially greater detail than the 1976 UNCITRAL Arbitration Rules. Article 26(1) provides that the tribunal, on the request of a party, may grant interim measures while Article 26(2), through a non-exhaustive...
Ch.1 Introduction »
From: The UNCITRAL Arbitration Rules: A Commentary (2nd Edition)David D Caron, Lee M Caplan
The evolution of an effective and trustworthy private international arbitration system over the last half a century has had three major strands and the United Nations Commission on International Trade Law (UNCITRAL) is an international organization centrally involved with the evolution of all three. The first strand is embodied in the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (The “New York Convention”)1 that obliges the courts of state parties (1) to respect the agreement of parties to arbitrate and (2) to recognize and...
