Choice of Law in International Commercial Arbitration

By Okezie Chukwumerije | Go to book overview

zation could not reach the great majority of arbitration that fell outside the convention.

The arbitrations that fell outside the convention were subject to the procedural rules of the place of arbitration that were often not well developed to handle international arbitrations. Several countries still had arbitration laws dating from the period when national courts were hostile to arbitration. Additionally, the divergence in national arbitration laws complicated the ability of arbitrators to familiarize themselves with arbitration laws and procedures. The above factors underscored the need for the modernization and harmonization of national laws relating to international commercial arbitration. 103

On the initiative of the Afro-Asian Legal Consultative Committee (AALCC), the United Nations Commission on International Trade Law (UNCITRAL) commenced a study aimed at the formulation of a model law that if enacted by member countries of the United Nations would modernize and harmonize the law relating to international commercial arbitration. UNCITRAL is the "core legal body within the United Nations system in the field of international law, [with a mandate] to coordinate legal activities in this field in order to avoid duplication of effort and to promote efficiency, consistency and coherence in the unification and harmonization of international trade law." 104

A draft text of the model law formulated by the UNCITRAL Working Group on International Contract Practices was considered and amended by representatives and observers from 60 states and 18 international and intergovernmental organizations. On December 11, 1985, the United Nations General Assembly adopted a resolution approving the Model Law on International Commercial Arbitration (the Model Law). The resolution recommended that States give due consideration to the Model Law "in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international arbitration practice." 105

The Model Law deals, inter alia, with arbitration agreements (chapter II), the composition of arbitral tribunals (chapter III), the jurisdiction of arbitral tribunals (chapter IV), the conduct of the arbitral proceedings (chapter V), the making of awards and the termination of proceedings (chapter VI), recourse against awards (chapter VII), and the recognition and enforcement of awards (chapter VIII). It thus covers virtually all aspects of arbitration, including those dealt with by other conventions, such as the New York and the Washington conventions. Article 1 of the Model Law provides that the Model Law is subject to treaty law. In areas of conflict between the Model Law and any other treaty dealing with international arbitration, the former is subservient to the latter. The New York Convention remains, therefore, the ultimate reference point for the recognition and enforcement of awards. The main domain of the Model Law are those stages preceding the phase for the recognition and enforcement of awards. 106

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Choice of Law in International Commercial Arbitration
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface xi
  • Chapter One - General Introduction 1
  • Introduction 1
  • Notes 19
  • Chapter Two - the Arbitration Agreement 29
  • Introduction 29
  • Conclusion 61
  • Notes 62
  • Chapter Three - Law Governing Arbitration Proceedings 75
  • Introduction 75
  • Conclusion 97
  • Notes 98
  • Chapter Four - Law Governing Substantive Issues 107
  • Introduction 107
  • Conclusion 134
  • Notes 134
  • Chapter Five - Issues in the Law Applicable to State Contracts 143
  • Introduction 143
  • Conclusion 164
  • Notes 168
  • Chapter Six - Mandatory Rules of Law in International Commercial Arbitration 179
  • Introduction 179
  • Conclusion 194
  • Notes 194
  • Chapter Seven - Conclusion 199
  • Introduction 199
  • Selected Bibliography 205
  • Index 215
  • About the Author 219
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